2019–2020: Building Code Commission annual report

Letter to the Minister

Building Code Commission
16^th Floor, 777 Bay Street
Toronto, Ontario  M7A
Tel: 416-585-6503
ontario.ca/buildingcode

June 12, 2020

The Honourable Steve Clark
Minister of Municipal Affairs and Housing
17^th Floor, 777 Bay Street
Toronto, Ontario
M7A 2J3

Dear Minister Clark:

Re: Building Code Commission Annual Report – Fiscal year – 2019-2020

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, 2020.

The enclosed Annual Report highlights the Building Code Commission’s accomplishments over the 2019-2020 fiscal year and outlines challenges that have been identified for the future. Overall, the Building Code Commission had a productive year, having received 44 new applications, one court referral application and conducted 35 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,

Stephen Wong, Chair
Building Code Commission

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, 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 and Housing 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 and Housing 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 building 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 and Housing. 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 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, engineer, lawyer, or specialized consultant.

Once a hearing has concluded, the members of the panel deliberate on the evidence and render their ruling. This decision is then communicated to the parties to the hearing and the full written decision is subsequently issued to the parties and posted online. As of November 2019, Commission decisions when completed are posted to a legal reporting website, CanLII, which can be found at https://www.canlii.org/en/on/onbcc/.

Members and staff

As of March 31, 2020, the Commission has 18 part-time members, which include the Chair and two Vice-Chairs. 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.

Succession planning continues to be an appointments-related issue. With 9 members’ terms set to expire in calendar year 2020, and an additional 7 members in calendar year 2021, the Commission may be in a situation where the ten-year maximum tenure of the majority of its membership will occur within a two-year period.

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 trying to address the succession planning issue noted, in June of 2019 the Commission Chair and staff worked with the Public Appointments Secretariat and the Minister’s Office to advertise for new members with expertise in the construction sector. Seeking new members is the beginning of the implementation of the succession plan that has been developed in order to address the issue of having the terms of most of its members expire at the same time.

As a result, two new members were appointed in early 2020. In addition, a second Vice-Chair was also appointed to the Commission in April of 2019 to fill the vacancy for this role. The Commission will continue to work towards staggering terms for its members and will advertise for new members and anticipates new appointments in the next fiscal year.

These appointments and the anticipated new appointments will help the Commission to improve succession planning and achieve appointment overlaps, allowing for knowledge transfer from existing members to newly appointed members to enhance knowledge retention and operational continuity.

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 following divisions of the ministry support the Commission in fulfilling the requirements of the Agencies and Appointments Directive:

• The Municipal Services Division’s Building Services Transformation Branch (from April 1, 2019 to September 30, 2019), and Building and Development Branch;
• The Business Management Division’s Corporate Services Branch, and Controllership and Financial Planning Branch;
• Legal Services Branch; and
• Community Services Information and Information Technology Cluster.

Until October 1, 2019, the Commission’s direct support staff (who are ministry employees) consisted of a 1.0 Full Time Equivalent (FTE) Commission Secretary, a 0.4 FTE Coordinator, Building Innovation, and a 0.4 FTE Administrative assistant.

Starting October 1, 2019, the Commission’s direct support staff consists of just a 1.0 FTE, Policy/Program Analyst, Building Code Commission.

In the Commission’s 2020-2023 Business Plan, the Commission noted that with the Commission support staff decreased by 44%, it was anticipated the Commission’s performance would be impacted. The workload of the Commission has not decreased, and the remaining 1.0 FTE has taken on additional work and responsibilities formerly provided by the Coordinator and Administrative Assistant.

As of March 31, 2020, the Commission has operated for 6 months with the reduction in support staff. The Commission notes that the effects of the reduction in support staff, if any, may not be fully reflected until at least one full year has elapsed. The impact of COVID-19 measures will further hamper the Commission’s ability to assess the staffing implications. The Commission will continue to closely monitor and evaluate impacts and report as necessary.

2018 - 2019 caseload

The Commission can hold up to 6 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 44 new applications, one court referral and held 35 hearings.

The Commission received the following numbers of applications over the previous five years:

Notes:

* The Commission’s fiscal year runs from April 1 – March 31.

** Differences in application vs. hearing totals may be attributed in part to matters being resolved between the parties before a hearing is held as well as having some hearings involving files from previous fiscal years.

*** In addition to the 42 building applications in 2015-2016, two more applications were referred to the Commission by the Superior Court of Justice, which resulted in ten additional hearing days. In 2016-2017, the same two applications resulted in seven additional hearing days. In 2017-2018, one court referral resulted in 4 additional hearing days. In addition to the 24 applications received from April 1, 2019 to October 31, 2019, one more application was referred to the Commission by Superior Court of Justice, resulting in one additional hearing day.

In the current reporting cycle, the number of applications has increased by 43% relative to the average number of applications over the last three previous years. It should be noted that the complexity of applications continues to increase. With the increase in the complexity of the applications and the increase in the number of applications that contain multiple disputes, the Commission notes that the length of time it takes to fully hear the matter has also increased. 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 years, including continued monitoring of Commission-specific performance measures (Guzzo Report recommendations) and continued surveying of its clients to provide feedback on the Commission’s performance. 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 2019-2020 fiscal year. The Commission did not receive any judicial reviews. Survey results for the 2019- 2020 fiscal year indicate that 100% 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, holding hearings and rendering decisions. Matters beyond the control of the Commission, such as delayed return of documents or parties being unavailable for hearing dates, are filtered out.
• 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 first target for these performance measures. The Commission offered a hearing date within 40 working days from receipt of a complete application in 85% of its cases. In the second case, the Commission was able to offer a hearing date within 20 working days from receipt of the respondent’s confirmation of dispute in 80% of its cases. Meeting this target was impacted by the postponement of hearings that were scheduled for March 2020 but were required to be postponed due to the COVID-19 outbreak. The Commission was not able to hold the scheduled in-person hearings in the latter part of March due to the office being closed and staff having to transition to remote working.
• 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 did not receive any prescribed time frame disputes this past fiscal year.
• In its 2020-2023 Business Plan, the Commission revised one of its performance measure commitments related to communication of decisions. The Commission revised its performance target to communicate all decisions, both technical and prescribed timeframe appeals, to parties within 15 working days from completion of hearing for 75% of all hearings. The Commission met its target and communicated decisions to parties within 15 working days of completion of a hearing for 100% of all hearings.
• 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 56% of the technical disputes have been completed within the six-month target timeline.
• The Commission’s performance in meeting its target for preparation and finalization of full written decisions continues to be a challenge. As reported in the Commission’s 2020-2023 Business Plan, the Commission resolved to stop issuing partial rulings and only issue full rulings in order to help the Commission reach its targets for full written decisions. The Commission believed removing this step would assist in meeting the target timeline for issuing full written decisions.
• Implementing the above-noted strategy resulted in an increase in the timely release of decisions. Full written decisions for 77% of all hearings for the first two quarters of the reporting period and 73% of all hearings for the first three quarters of the reporting period were achieved.
• However, as also noted in the Business Plan, the performance targets for preparation and finalization of full written decisions can be highly affected by changes in staff resources, number of applications and hearings held within a fiscal year.
• In the third quarter of the 2019-2020 fiscal year, the Commission saw an increase in the number of applications for hearings. The Commission received 19 applications during this period, approximately 44% of the annual reported caseload.
• Additionally, in the third quarter, on October 1, 2019, the number of personnel supporting the Commission was reduced by 44% as a result of a ministry branch reorganization.
• The Commission recognizes that the effects of the reduction in support staff, if any, may not be fully reflected until at least one full year has elapsed. Therefore, the Commission will closely monitor its ability to meet its performance targets and delivery of services and will work with the ministry on addressing any concerns moving forward.
• The COVID-19 outbreak and associated measures also impacted late fourth quarter hearings.
• The Commission’s ability to achieve timelines will also be impacted by the COVID-19 outbreak and associated measures. The Commission will continue to monitor performance measures related to ongoing procedural adjustments.
• The Commission’s target for timely posting of final written decisions online for 85% of final written decisions within ten working days of completion of the French translation was not met in 2019-2020. The Commission's former internet site was decommissioned in late October 2019 and updated and moved to Ontario.ca in keeping with other ministries across the government. From November 2019 and onwards, the Commission’s decisions are being posted to a legal reporting website, CanLII. Although the Commission endeavors to post all past and recent decisions to the CanLII website, due to the recent staffing reduction, and increased caseload in the third quarter, the Commission was not able to meet this target.

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 100% 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 100% 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 90% 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 100% of clients that responded to the survey agreed that they were treated with courtesy by Commission staff throughout the application process, and 100% 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 building design and construction sector, 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 2019-2020:

• 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:
  • Prepared, finalized and submitted its three-year Business Plan for 2019-2022;
  • Its Annual Report for 2018-2019 was completed and approved by the Commission within the specified time frame.
  • Publicly posted the Commission’s 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 in order to complete the review and approval of accountability requirements such as the Annual Report and the Business Plan.

• The Commission Chair and staff worked with the Public Appointments Secretariat and the Minister’s Office to advertise for new members and two new members were successfully appointed in February and March 2020.

• In October 2018, the Commission needed to fill the second Vice-Chair position. The Chair reviewed the applications received in connection with the Vice-Chair competition and made a recommendation for the Minister’s consideration. In April 2019, the Commission welcomed its newly appointed second Vice-Chair.

• The Commission continued its practice of surveying clients and received an overall satisfaction rating of 100% from clients that responded to the survey.

• As a result of an amendment to the Building Code, the Commission began collecting application fees for its services as of January 1, 2014. The fee is set to increase annually up to the rate of the Consumer Price Index. In accordance with the Building Code amendment, the application fee increased on January 1, 2019 and January 1, 2020.

• 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 (AODA).

• The Commission initially postponed all its hearings following the direction of Ontario Tribunals on March 16th, 2020. The Commission was able to adapt quickly and efficiently to address continuity of its service delivery during the COVID-19 outbreak. On March 30th, 2020, the Building Code Commission Chair, Vice-Chairs along with ministry staff and legal counsel communicated by telephone conference, to discuss the continuation of its services in light of the outbreak. At this meeting, the Commission resolved it would accept electronic applications for hearings and proceed with holding hearings via telephone or video conferencing where possible, while modifying procedures and timelines where appropriate.

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 and Housing.

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 hearings/meetings, including hotel accommodations, meal allowances (to the maximum allowed through the Travel, Meal and Hospitality Expenses Directive), parking and public transit.

** The number of hearings is determined by the application rate. Member per diem remuneration rates are established by the Management Board of Cabinet Agencies and Appointments Directive applying to part-time Order in Council appointed members. The expenditure estimates are based on typical application rates (using historical data and projecting forward), member per diem remuneration rates and other operating expenses noted above.

*** From April 1, 2019 to September 30, 2019, the Commission was supported by 1.8 FTEs. From October 1, 2019 onwards, it is supported by 1.0 FTE.

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 $189, effective January 1, 2019 and $192, effective January 1, 2020.

Revenues received from the application fee are recorded as part of the Ministry of Municipal Affairs and Housing 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 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 and Housing. 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.

Appendix 1: Performance measures table

Building Code Commission: Performance measures

Note: The following Table shows the Commission’s Appointments from April 1, 2019 to March 31, 2020. New appointments and re-appointments that occur after the end of the reporting period are not shown. See Public Appointments Secretariat website for current Appointees List.

Building Code Commission appointees list

* This member is no longer with the Commission as of the expiry date of the appointment