2022–2023: Building Code Commission annual report

Letter to the Minister

June 13, 2023

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 2022–2023 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, 2023.

The enclosed Annual Report highlights the Building Code Commission’s accomplishments and challenges over the 2022–2023 fiscal year. Overall, the Building Code Commission had a productive year, having received 22 new applications, and conducted 23 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

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, and was made possible by the Legislature passing the first Building Code Act 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 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 (the “ministry”) 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
• 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.

About the Building Code Commission

Building Code Commission process and procedure

The process leading to a Commission hearing begins with the receipt of an application for a 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, and building owners as applicants, and municipal chief building officials, plan reviewers, building inspectors, and registered code agencies 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 completed Application for Hearing 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 Form and supporting documentation directly to the applicant. The Confirmation of Dispute Form is similar to the Application for Hearing Form.

The purpose is twofold:

1. to verify that there is a dispute involving the technical requirements or the prescribed time frame 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 confirmation of dispute is received, the Commission, under the 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 technical considerations, and proposed amendments (if any) regarding the pertinent Building Code provision(s).

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

In addition to the 3 types of disputes noted above in Section A Mandate, under subsection 25(5) of the Building Code Act, 1992, a judge may refer question(s) respecting the interpretation of the technical requirements of the Building Code or the sufficiency of compliance with the technical requirements of the Building Code to the Building Code Commission for a hearing and report to the judge. The Commission’s procedure for hearing a court referred matter is the same as an application made under section 24 of the Act.

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 to a legal reporting website, CanLII.

Commission members and ministry staff

As of March 31, 2023, the Commission had 14 part-time members, which includes 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-Chairs also make administrative decisions regarding operations and relations with the ministry.

The Commission believes it is appropriate to seek staggered 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 branches of the ministry and technology cluster support the Commission in fulfilling the requirements of the Agencies and Appointments Directive:

• the Planning and Growth 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 I&IT 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.

2022-2023 caseload

The Commission can hold up to six 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 22 new applications, no court referral applications and conducted 23 remote hearings.

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

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.

Analysis of Building Code Commission performance

Performance measures and targets

The Commission has long standing established performance measures and targets. These are:

• fairness
• timeliness
• quality and consistency
• transparency
• expertise
• courtesy

These performance measures were adopted as a result of the recommendations established in 2000 by the Agency Reform (Guzzo) Commission.

Several steps have been taken to enhance the Commission’s performance and accountability over the years, including continued monitoring of Commission-specific performance measures and continued surveying of its clients to provide feedback on the Commission’s performance. Overall, the Commission has surpassed its targets for fiscal year 2021-2022. The results of the Commission’s performance can be found in Appendix 1.

Fairness

• The stated target of not more than 10% of hearings resulting in judicial review was again met in the 2022-2023 fiscal year. Survey results for the 2022 - 2023 fiscal year indicate that 100% of clients that responded to the survey agreed that they were treated fairly.

Timeliness

• The Commission met and exceeded its target for timely communication of its decisions to parties within 15 working days of completion of hearing for 100% of all hearings.
• The Commission did not meet its target to offer a hearing date within 30 working days from receipt of a complete application for 85% of all hearings where a complete application includes receipt of all required documents from both parties to a dispute. The Commission offered a hearing date within 30 working days from receipt of a complete application for 60% of all hearings.
  • Commentary: During the Covid-19 pandemic, the Commission temporarily suspended its practice of offering a hearing date within a specific timeframe and modified certain administrative processes in order to provide parties to a dispute and ministry staff scheduling flexibility during the pandemic. The Commission has resolved to return to its pre-Covid administrative practices and timelines and expects it will achieve this target in the next fiscal year. The Commission worked with Applicants and Respondents to ensure they were aware of process changes during this time, and as a result, the Commission received an overall satisfaction rating of 96% from clients that were surveyed.
• The Commission has set a target for preparing and finalizing full written decisions within six months of completion of hearing for 75% of all hearings. The Commission finalized full written decisions within six months of completion of hearing for 70% of all hearings.
  • Commentary: The Commission continues to review its processes to see where it can make improvements in order 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 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 96% 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 parties will be satisfied that Commission members demonstrated an appropriate level of expertise regarding the technical matters under consideration. Survey results indicate that 95% 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 ministry staff throughout the application process, and 100% felt that they were treated with courtesy by Commission members.

Strategic direction

The Commission’s strategic direction is consistent with its mandate as well as government priorities for the agency sector. As part of the Government of Ontario, agencies are expected to act in the best interests of Ontarians by being efficient, effective, and providing value for money. In alignment with this expectation, the Commission’s direction and objectives are consistent with the following government priorities that were outlined in the Commission’s 2022-2025 Business Plan and reflected in the work done during the 2022-2023 fiscal year.

Transparency and accountability

• Abide by applicable government directives and policies and ensuring transparency and accountability in reporting.
• Adhere to accounting standards and practices, and responding to audit findings, where applicable.
• Identify appropriate skills, knowledge and experience needed to effectively support the board’s role in agency governance and accountability.

Risk management

• Develop and implement an effective process for the identification, assessment, and mitigation of agency risks, including COVID-19 impacts and any future emergency risks.

Digital delivery and customer service

• Explore and implement digitization for online service delivery to ensure customer service standards are met.
• Use a variety of approaches or tools to ensure service delivery in all situations, including pursuing delivery methods that have evolved since COVID-19.

Operational performance

The Commission believes that in order to provide quality service to the public and to 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 and strategic direction 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 the 2022-2023 fiscal year:

• The Commission continued to accept electronic applications and hold all hearings electronically. These measures are in keeping with the government’s aforementioned priority to enhance digital delivery and customer service.
• The Commission continued to maintain its compliance with the Management Board of Cabinet’s Agencies and Appointments Directive:
  • The three-year Business Plan for 2023-2026 was prepared, finalized and submitted within the specified time frame.
  • The Annual Report for 2021-2022 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.
• The Commission held two semi-annual meetings of the full Commission in order to complete the review and approval of its accountability requirements, assess risks, and consider proposed operational improvements such as improving the timeliness for issuance of written decisions and digitizing its applications.
• 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.
• The Commission continued its practice of surveying clients and received an overall satisfaction rating of 96% 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.
• The Commission Chair and ministry staff continue to work with the Public Appointments Secretariat and the Minister’s Office to improve its membership in terms of regional representation and technical expertise. A job advertisement to recruit members is currently underway.

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, ministry staff and administrative support, and operational costs, are borne by the Ministry of Municipal Affairs and Housing.

The chart below provides details of 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 fee for filing an application to the Commission in 2022 was $198.00; and, effective January 1, 2023, the fee increased to $212.00 in keeping with the Consumer Price Index.

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

As part-time appointees, Commission members receive remuneration in the form of a per diem at rates established by the Management Board of Cabinet Agencies and Appointments Directive. 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 Travel, Meal and Hospitality Expenses Directive. The list of Commission members’ renumeration for this fiscal year 2022-2023 can be found in Appendix 2.

Costs associated with Commission activities, including operating costs and member per diems, form part of the overall budget of 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 list

The following Table shows the Commission’s Appointments from April 1, 2021 to March 31, 2022. 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.