2017–2018: Building Code Commission annual report

Letter to the Minister

Building Code Commission
12^th Floor, 777 Bay Street
Toronto, ON  M5G 2E5

Telephone: 416-585-6503
ontario.ca/buildingcode

June 29, 2018

The Honourable Steve Clark
Minister of Municipal Affairs and Housing
17^th Floor, 777 Bay Street
Toronto, Ontario
M5G 2E5

Dear Minister Clark:

Re: Building Code Commission
Annual Report – Fiscal year – 2017 - 2018

It is my pleasure, as Chair of the Building Code Commission, to present to you the Building Code Commission’s Annual Report for the fiscal year ending March 31, 2018.

The enclosed Annual Report highlights the Building Code Commission’s accomplishments over the 2017 - 2018 fiscal year and outlines challenges that have been identified for the future. Overall, the Building Code Commission had a productive year, having received 33 new applications and conducted 31 hearings.

I would like to thank my fellow Commission members whose knowledge and dedication have earned the Building Code Commission an excellent reputation as a valuable service provider in the building and construction industry. On behalf of all members of the Commission, I would also like to express our thanks to the staff of the Ministry of Municipal Affairs and Housing for their exemplary expert support to the Building Code Commission. Without their excellent administrative, technical and legal assistance, the Building Code Commission simply could not function.

Sincerely,

Tony Chow, Chair
Building Code Commission

A. Mandate

The Building Code Commission (the “Commission”) is an adjudicative agency whose legislative authority is set out in sections 23 and 24 of the Building Code Act, 1992 (the “Act”).

The Commission has a mandate to resolve disputes between proponents of construction projects and local enforcement officials. The Act sets out three types of disputes that can be heard by the Commission:

• those relating to the sufficiency of compliance with the technical requirements of the Building Code;
• those related to compliance with the prescribed time frames for permit processing; and
• those related to compliance with the prescribed time frames for site inspections.

Commitment to Service and Guiding Principles

The inaugural meeting of the Commission was held on February 9^th, 1976, shortly after the first Building Code Act came into effect in 1974. Since then the Commission has endeavoured to provide a timely, cost effective and non-adversarial process for resolving Building Code disputes through a streamlined and accessible appeals system. In doing so, the Commission has earned a reputation within the construction industry of being an effective, useful and high quality adjudicative body.

The Commission has entered into a Memorandum of Understanding with the Minister of Municipal Affairs in respect of the administration of the Commission. The Memorandum of Understanding sets out the relationship between the Chair of the Commission, the Minister and the Ministry of Municipal Affairs with respect to the Building Code Commission and the service it provides. The purpose of the Memorandum of Understanding is to establish the responsibilities of these parties and to ensure that accountability is a fundamental principle that is observed in the management, administration and operations of the Commission.

As an agency of government, the Commission conducts itself according to the management principles of the Government of Ontario. The Commission’s proceedings are governed by the Statutory Powers Procedure Act, the Building Code Act, 1992, the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, the Building Code Commission’s Guidelines, Policies and Procedures Handbook, Management Board of Cabinet Directives and the Public Service of Ontario Act, 2006. The principles and governance elements required of the Commission by these statutes and documents include ethical behavior, accountability, excellence in management, wise use of public funds, and high-quality service to the public by contributing to the health, safety, accessibility and energy efficiency of buildings in Ontario, and by playing a positive role within Ontario’s design and construction sector.

B. About the Building Code Commission

Building Code Commission Process and Procedures

The process leading to a Commission hearing begins with the receipt of an application for hearing. Section 24 of the Act provides that the Commission may determine disputes between a chief building official, inspector or registered code agency and an applicant for a permit, a holder of a permit, or a person to whom an order is given. Parties to an application to the Commission are typically builders, developers, architects, engineers, building owners as applicants, and municipal chief building officials, plan reviewers, building inspectors, registered code agencies and health officials as respondents.

Once an application is submitted, the Commission requests confirmation of the dispute from the respondent by sending them a Confirmation of Dispute form for completion and return. The Confirmation of Dispute is similar to the application form. Its purpose is twofold: 1) to verify that there is a dispute involving the technical requirements of the Building Code, and 2) to allow the Respondent to explain their position on the issue.

For disputes related to sufficiency of compliance with the technical requirements of the Building Code: once the Confirmation of Dispute is received, the Commission under their authority in subsection 24(6) of the Act, requests a technical report from the Building and Development Branch of the Ministry of Municipal Affairs. This report, known as the Technical Background Information memo, analyzes the matters raised by the parties with regard to the provisions of the Building Code identified by the parties as being relevant to the disputed matter. The Technical Background Information memo examines the history, technical considerations, and proposed amendments (if any) regarding the pertinent Building Code provision(s).

For disputes related to the legislated time frames: a Technical Background Information memo is not requested, as no technical matters are involved in the dispute.

Hearing Procedures

Once all of the required information is received and has been provided to all parties to the hearing, a hearing is scheduled.

Commission hearings, while generally informal, are conducted in accordance with procedural rules established under the Building Code Act, 1992 and the Statutory Powers Procedure Act.

The Commission Chair, Vice-Chair, or Chair-Designate for the day conducts the hearing. Hearings begin with introductions of the parties and preliminary matters, such as identification of exhibits. Parties can represent themselves, but Applicants often choose a designated agent such as a contractor, architect, building and fire code consultant, or lawyer.

Once the hearing has concluded, the members of the panel deliberate on the evidence and render their decision. This decision is then provided to the parties to the hearing and is eventually posted on the ministry’s website.

Members and Staff

As of March 31, 2018, the Commission has a total of 19 part-time members, including the Chair. All Commission members are appointed by the Lieutenant Governor in Council through an Order in Council. Current Management Board of Cabinet Directives permit individuals appointed to the Commission to serve a combined term of appointment of up to ten years.

Commission members preside over hearings and render decisions on disputes. The Chair and Vice-Chair also make administrative decisions regarding operations and relations with the ministry.

Commission members are provided with learning opportunities throughout the year, such as attendance at the conference for The Society of Ontario Adjudicators and Regulators or in-house training provided by the Building and Development Branch on changes to the Building Code.

The Commission is provided with administrative, technical and secretarial support by the Ministry of Municipal Affairs. The following divisions of the ministry support the Commission:

• Municipal Services Division’s Building Services Transformation Branch and Building and Development Branch;
• Business Management Division’s Corporate Services Branch and Controllership and Financial Planning Branch;
• Legal Services Branch; and
• Community Services I&IT Cluster.

The direct support staff assigned by the ministry to the Commission consist of a 1.0 Full Time Equivalent (FTE) Commission Secretary, a 0.4 FTE Coordinator, Building Innovation, and a 0.4 FTE administrative assistant.

The Commission notes that for eight and a half months of the 2017-2018 fiscal year, the Coordinator position was vacant. This resulted in additional duties for the Secretary to perform which had an impact on the overall performance of the Commission. In particular, this had an impact on the production of full written decisions.

With 14 members having been appointed during the 2016-2017 fiscal year, the Commission was able to continue to operate. However, the Commission is once again in a situation where the ten year maximum tenure of the majority of its membership occurs at the same time. This trend, in which the terms of appointment of large groups expire at the same time, will continue to be an issue.

The Commission believes it is appropriate to try and stagger the terms of appointment for Commission members. This staggering of terms of appointment can be achieved by appointing members in smaller groups so that Orders in Council will not expire all at once. This staggering will also allow for newly appointed members to be mentored by experienced members.

In order to mitigate this issue from continuing to occur, the Commission strongly urges that this be taken into account for any future appointments and that the Commission Chair considers this issue when making recommendations on reappointment of existing members.

In addition to ensuring an adequate number of members, the Commission must also work at maintaining the knowledge base of its membership. It is important for the Commission to continue to solicit new members with expertise that reflects the full spectrum of technical disciplines represented in the Building Code. As described in the Memorandum of Understanding, the role of the Chair includes keeping the Minister informed of upcoming appointment vacancies and providing recommendations for appointments and/or reappointments to the Commission.

The Commission Chair and staff continue to work with the Public Appointments Secretariat and the Minister’s Office to improve the existing complement of regional representation and to maintain the gender diversity.

2017-2018 Caseload

The Commission can hold from six to 10 hearings in a month; however, the number of applications received determines the number of hearings the Commission needs to schedule. For the current reporting cycle, the Commission received 33 new applications and held 31 hearings.

The Commission received the following number of applications and held the following number of hearings over the last five years:

Note: Difference in application vs. hearing totals may be attributed, in part, to matters being resolved between the parties before a hearing is held.

* In addition to the 42 building applications in 2015-2016, two more applications were referred to the Commission by the Superior Court of Justice under Section 25 of the Building Code Act, 1992. One of the court referred applications was heard over one hearing day. However, the other court reference has required the Commission to hold the hearing over multiple days and multiple fiscal years. There were 10 hearing days held during the 2015-2016 fiscal year, seven hearing days were held during the 2016-2017 fiscal year and a further four hearing days were held during the 2017-2018 fiscal year.

In the current reporting cycle, the number of applications has remained relatively consistent with previous years. It should be noted that while the number of applications has been maintained, the complexity of applications continue to increase. In addition, the Commission has also seen an increase in the number of applications requiring it to examine and determine its jurisdiction and mandate, because of disputes that may extend beyond the technical requirements of the Building Code.

C. Analysis Of Building Code Commission Performance

Performance Measures and Targets

The Commission has adopted the recommendations for performance measurement established by the Agency Reform (Guzzo) Commission. These are: fairness, accessibility, timeliness, quality and consistency, transparency, expertise, optimum cost, and courtesy. While not all of the goals were rated as “high” by the Commission, there are processes in place to ensure that all goals are integrated into the Commission’s operations and are, therefore, adequately addressed. The chart below indicates how the Commission ranked the goals.

* It should be noted that the term “Accessibility” for the purposes of the performance measurement recommendations of the Agency Reform Commission was related to providing seamless and simple access to dispute resolution so that the public can receive quality and timely services regardless of their familiarity with the system.

Measured Performance Results

Several steps have been taken to enhance the Commission’s performance and accountability over the past several years, including incorporating performance measurement in the ministry’s Estimates Briefing Book and introducing Commission-specific performance measures (Guzzo Report recommendations). Overall, the Commission has surpassed its targets for high rated goals. Performance measures based on these goals are found in Appendix 1.

Fairness

• The stated target of not more than 10% of hearings resulting in judicial review was again met in the 2017-2018 fiscal year. The Commission did not receive any judicial reviews. Survey results for the 2017-2018 fiscal year indicate that 92% of clients that responded to the survey agreed that they were treated fairly.

Timeliness

• In past general meetings, the Commission reviewed the wording of its performance measure related to timeliness of hearings. The Commission decided that the performance measure should track what the Commission is responsible for, which is providing hearing dates, and filter out matters beyond the control of the Commission, such as delayed return of documents or parties being unavailable for hearing dates.
• The Commission decided that the performance measure will read “Offer a date for a hearing to be held within 40 working days from receipt of a complete application for 85% of all hearings” and “Offer a date for a hearing to be held within 20 working days from receipt of the Respondent’s confirmation of dispute for 85% of all hearings”. The Commission’s process includes input from the parties; therefore the Commission’s ability to hold a hearing within a certain number of working days is based on the responses from the parties being received by the Commission within a specific time frame.
• The Commission met its target in one of these performance measures. The Commission offered a hearing date within 40 working days from receipt of a complete application in 88% of its cases. However, the Commission did not meet its stated target of offering a hearing date within 20 working days from receipt of the Respondent’s confirmation of dispute. The Commission was able to offer a hearing date within 20 working days from receipt of the Respondent’s confirmation of dispute in 82% of its cases. The Commission was not able to offer hearing dates for on-site sewage system files until such time as members having the appropriate expertise were appointed.
• The above figures do not include the wait time associated with prescribed time frame appeals, for which the hearing must be held by the Commission not more than 5 business days after receipt of an application for hearing. In this regard, the Commission met the stated target 100% of the time.
• The Commission’s performance in meeting its target for preparation and finalization of full written decisions has declined during this fiscal year. The Commission’s target of preparing and finalizing full written decisions within six months of completion of hearing for 75% of all hearings was not met during this fiscal cycle. Written decisions for 45% of the technical disputes and for 100% of the time frame disputes have been completed within six months of completion of the hearing. This reduction in performance can be attributed to the fact that the Coordinator position was vacant for the majority of this fiscal year. In addition, the Commission finalized its Report for the Court Referral hearing during this fiscal year which took up a significant amount of effort and time.

Quality and Consistency

• The Commission has set a target that 85% of parties will feel that the process had a high degree of quality and consistency. Survey results indicate that 92% of clients that responded to the survey agreed that the processes and procedures had a high degree of quality and consistency.

Transparency

• The Commission has set a target that 85% of parties will feel that the process and procedures were clear and understandable. Survey results indicate that 92% of clients that responded to the survey agreed that the processes and procedures were clear and understandable.

Expertise

• The Commission has set a target that 85% of clients will be satisfied that Commission members demonstrated an appropriate level of expertise regarding the technical matters under consideration. Survey results indicate that 92% of clients that responded to the survey agreed that members demonstrated an appropriate level of expertise regarding the technical matters under consideration.

Courtesy

• The Commission has set a target that 85% of parties will feel that they are treated with courtesy throughout the application process and the hearing. Survey results indicate that 92% of clients that responded to the survey agreed that they were treated with courtesy by Commission staff throughout the application process, and 92% felt that they were treated with courtesy by Commission members.

The “Goals” ranked high and medium were surveyed by the Commission, and the results can be found in Appendix 1.

Operational Performance

The Commission believes that in order to provide quality service, to the public and the design and construction sector in particular, the Commission as an agency must operate as effectively and efficiently as possible. This means more than having performance measurements in place to strive for service excellence on a day-to-day basis. It also means pursuing excellence from an operational and administrative standpoint over the long term. To achieve this, the Commission also assesses itself on its operational performance. As with the above performance measures, operational excellence ensures accountability. The following are some of its operational achievements in 2017-2018:

• The Commission continued to provide a cost effective and expeditious mechanism for resolution of disputes.
• The Commission continued to maintain its compliance with the Management Board of Cabinet’s Agencies and Appointments Directive for agencies:
  • prepared, finalized and submitted its three year Business Plan for 2018-2021; and
  • its Annual Report for 2016-2017 fiscal year was completed and approved by the Commission within the specified time frame.
  • publically posted the Commission’s Memorandum of Understanding, Business Plan and Annual Report as required by the Agencies and Appointments Directive.
• The Commission continues to maintain compliance with the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009.
• The Commission held two meetings of the full Commission, and will continue this practice as it accommodates the review and approval of accountability requirements such as the Annual Report and the Business Plan.
• Three new members were appointed to the Commission in August/September 2017.
• The Commission has achieved and maintained its gender diversity target set by the Ontario government that, by 2019, women make up at least 40% of all appointments to every provincial agency, board and commission.
• The Commission continued its practice of surveying clients and received an overall satisfaction rating of 92% from clients that responded to the survey.
• The Commission Chair and staff worked with the ministry and the Public Appointments Secretariat to develop a job advertisement which advertised vacant Vice-Chair positions. The Chair has developed recommendations on candidates to be considered for an appointment to the position of Vice-Chair. These recommendations will be provided to the Minister for consideration.
• The Commission Chair and staff worked with the ministry and the Public Appointments Secretariat to develop a job advertisement to advertise the position of Chair of the Building Code Commission.
• As a result of an amendment to the Building Code, the Commission began collecting application fees for its services as of January 1, 2014. In accordance with the Building Code amendment, the application fee increased on January 1, 2017 and January 1, 2018.
• The Commission continues to be committed to providing services in accordance with the Accessibility Standards for Customer Service and the Integrated Accessibility Standards regulation made under the Accessibility for Ontarians with Disabilities Act, 2005 (AODA).
• The Commission staff continues to work with the ministry to ensure that its webpage and its public documents comply with the accessibility requirements under the AODA.
• The Commission concluded its hearing related to a reference from the Superior Court of Justice under Section 25 of the Building Code Act, 1992. The hearing for this matter resulted in a total of 21 hearing days. The first hearing date was November 17, 2015 and the final hearing date was June 21, 2017.

D. Financial Report

Budget

The Commission has no financial budget of its own, separate from that of the Ministry. All of the Commission’s costs, including Commission members’ per diem remuneration, staff and administrative support, and operational costs, are borne by the Ministry of Municipal Affairs.

The chart below provides details on the costs associated with the Commission:

*The operating expenses cover costs associated with Commission hearings; per diems for Commission members; and reimbursement for out-of-pocket travel expenses related to meetings, including hotel accommodations, meal allowances (to the allowable maximum), parking and public transit.

**The number of hearings is determined by the application rate. Member per diem compensation rates are established by the Management Board of Cabinet’s Agencies and Appointments Directive. The expenditure estimates are based on typical application rates (using historical data and projecting forward), member per diem compensation rates and other operating expenses noted above.

Revenues

A fee for filing an application to the Building Code Commission was implemented starting January 1, 2014 ($170 per application) and is set to increase annually up to the rate of the Consumer Price Index (CPI). Accordingly, the application fee increased to $184, effective January 1, 2018. For the purposes of determining the estimated revenues for 2018-2019, a CPI increase of 2% was assumed resulting in a fee of $187.00 effective January 1, 2019.

Revenues received from the application fee are recorded as part of the Ministry of Municipal Affairs non-tax revenues.

The chart below provides details of the revenues associated with applications to the Commission:

Remuneration of Commission Members

As part-time appointees, Commission members receive remuneration in the form of a per diem at rates established by Treasury Board/Management Board of Cabinet. Effective January 1, 2018, this per diem ranged from $472 for members to $583 for the Vice-Chair and $744 for the Chair. Commission members are also reimbursed for out-of-pocket expenses associated with attending Commission hearings, in accordance with the Management Board of Cabinet’s Travel, Meal and Hospitality Expenses Directive.

Costs associated with Commission activities, including operating costs and member per diems, form part of the overall budget for the Ministry of Municipal Affairs. The number of applications to the Commission and/or the complexity of issues raised in the applications directly impact the budget requirement in support of Commission activities.

It should be noted that the court referenced hearing resulted in an increase in the overall expenditures of the Commission.

Appendix 1: Performance Measures Table

* In this Table, “parties” are those recognized by the Building Code Act, 1992, namely BCC Applicants (i.e. applicants for building permits, holders of building permits or persons to whom an order has been issued) and Respondents (i.e. municipal enforcement officials and their designates).

Appendix 2: Members of the Building Code Commission