2020–2021: Building Code Commission annual report

Letter to the Minister

Building Code Commission
16^th Floor, 777 Bay Street
Toronto, ON M7A 2J3

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

June 09, 2021

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

Dear Minister Clark:

Re: Building Code Commission

Annual Report 2020–2021 Fiscal Year

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, 2021.

The enclosed Annual Report highlights the Building Code Commission’s accomplishments and challenges over the 2020–2021 fiscal year. Overall, the Building Code Commission had a productive year, having received 23 new applications, one court referral application and conducted 31 remote 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 secretariat, administrative, technical and legal assistance, the Building Code Commission simply could not function.

Sincerely,

Stephen Wong, 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 
• 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 9th, 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
• Building Code Act, 1992
• Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009
• Building Code Commission’s Guidelines
• Policies and Procedures Handbook
• Management Board of Cabinet Directives
• 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.

The applicant submits a completed Application for Hearing form together with supporting documents and the application fee. At the same time, the applicant is required to also provide a copy of the application form and the supporting documentation directly to the respondent. Once an application is received, the Commission requests confirmation of the dispute from the respondent by sending a Confirmation of Dispute form for the respondent to complete and return. The respondent is required to provide a copy of the completed Confirmation of Dispute and supporting documentation directly to the applicant. 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
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.

Members and staff

As of March 31, 2021, 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.

The Commission believes it is appropriate to try and stagger the terms of appointment for Commission members as part of its succession plan strategy. This staggering of terms of appointment allows for newly appointed members to be mentored by experienced members and ensures that large numbers of members do not have terms that expire all at the same time.

To ensure adequate membership, the Commission Chair and Ministry staff work with the Public Appointments Secretariat to advertise positions for new members with relevant expertise in the construction sector.

In addition to ensuring an adequate number of members, the Commission also works 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 relevant technical disciplines represented in the Building Code.

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 and Development Branch
• The Business Management Division’s Corporate Services Branch, and Controllership and Financial Planning Branch
• Legal Services Branch
• Community Services Information and Information Technology Cluster

The Commission receives all of its staffing and financial resources from the Building and Development Branch of the Ministry of Municipal Affairs and Housing.

Although the Commission has no staff of its own, the Policy/Program Analyst-Building Code Commission is the Ministry staff person assigned to support the Commission. The Policy/Program Analyst is responsible for the overall administration of the Commission. This involves managing the appointments process, issues management, business planning, performance measurement, monitoring of expenditures, managing the application and hearing process, communicating and publishing rulings, and ensuring compliance with agency sector requirements and Management Board of Cabinet directives.

2020–2021 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 23 new applications, one court referral and held 31 hearings.

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

Notes:

It should be noted that the complexity of applications continues to increase. With the increase in the complexity of the applications and 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.

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 2020–2021 fiscal year. The Commission did not receive any judicial reviews. Survey results for the 2020–2021 fiscal year indicate that 89% of clients that responded to the survey agreed that they were treated fairly.

Timeliness

• Due to the COVID-19 pandemic, on March 30, 2020, the Commission resolved to make modifications to its process in order to continue to offer its services, including accepting electronic applications, holding remote hearings, and offering flexible timelines to parties and Ministry staff to allow for the adaptation to remote working and adjustment to new protocols and procedures during the pandemic. The Commission notes that holding a hearing within a certain number of working days is based on the responses received from the parties and Ministry within a specific time frame. Therefore, the Commission temporarily suspended its practice of offering a hearing within 40 working days from receipt of a complete application and offering a date for a hearing within 20 working days from receipt of the respondent’s confirmation of dispute, as responses from participants were expected to be delayed under the pandemic working conditions. The Commission notes that during this past fiscal year, timing from application to hearing and timing from receipt of the respondent’s confirmation of dispute to hearing was, on average, twice the target timelines. The Commission will continue to evaluate its current processes as it looks for opportunities to improve timing to hearings and monitor for any impacts in the next fiscal year as the COVID-19 pandemic continues.

• 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 for technical disputes, to parties within 15 business days from completion of hearing for 75% of all hearings. The Commission met its target by communicating 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 50% of disputes were completed within the six-month target timeline.

• As mentioned in the 2021–2024 Business Plan, the Commission introduced a pilot project in the fall of 2020 to meet its performance target of providing timely written decisions. The pilot project was launched in December 2020. The Commission will continue to monitor, and report results in the next fiscal cycle.

• The Commission also notes that its ability to achieve timelines was impacted by the ongoing COVID-19 pandemic and associated measures. The Commission will continue to monitor performance measures and will endeavor to adapt quickly to continue its delivery of services.

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 89% 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 89% 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 88% 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 2020–2021:

• The Commission adapted quickly in response to the COVID-19 pandemic to ensure the continuance of its service delivery. On March 30th, 2020, the Commission determined it would accept electronic applications for hearings and proceeded with scheduling hearings via telephone and video conferencing, while modifying procedures and timelines where appropriate in keeping with the government’s priority on digitizing services where possible and continuing to ensure the continuance of service delivery in all situations.

• During the COVID-19 pandemic, the Commission continued to maintain its compliance with the Management Board of Cabinet’s Agencies and Appointments Directive:
  • The three-year Business Plan for 2021–2024 was prepared, finalized and submitted within the specified time frame.
  • The Annual Report for 2019–2020 was completed, approved by the Commission and submitted within the specified time frame.
  • Both the Commission’s Business Plan and Annual Report were publicly posted as required by the Agencies and Appointments Directive.

• The Commission continued to maintain compliance with the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009

• In December 2020, the Commission held a General Meeting with the full Commission members by video conference in order to complete the review and approval of its accountability requirements (for example, the 2021-2024 Business Plan), assess risks, and consider proposed operational improvements, such as launching its pilot project to improve the timeliness for issuance of written decisions.

• Consistent with the government’s priority of risk management, the Commission continues to monitor risks, including identifying and assessing the risks and proposing mitigation strategies which are reported in the business plan each year.

• In the fall of 2020, the Commission posted a job advertisement for new members, as part of its succession plan for staggering appointments and maintaining the technical expertise of its membership.

• The Commission continued its practice of surveying clients and received an overall satisfaction rating of 90% from clients that responded to the survey.

• 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.

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:

Revenues

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

The current application fee, effective January 1, 2021 for the Commission is $194.00.

The table 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

Appendix 2: Building Code Commission Appointees

Note: The following Table shows the Commission’s Appointments as of March 31, 2021. 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.