Building Code Commission business plan 2020–2023

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 Commission has a mandate to resolve disputes between proponents of construction projects and enforcement officials. The Building Code Act, 1992 sets out three types of disputes that can be heard by the Building Code 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. The Commission’s adjudicative decisions are made independently from the Ministry and the Government of Ontario.

In exercising its mandate, the Commission receives all its staffing and financial resources from the Building Services Transformation Branch of the Ministry of Municipal Affairs and Housing.

Guiding principles

As an agency of the 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 Public Service of Ontario Act, 2006, Treasury Board/Management Board of Cabinet Directives and the Building Code Commission’s Guidelines, Policies and Procedures Handbook. These principles and governance elements include ethical behaviour, 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.

The Commission has a signed Memorandum of Understanding (MOU) with the Minister relating to the exercising of its mandate. The MOU sets out the relationship between the Commission, the Minister and the Ministry of Municipal Affairs and Housing with respect to the Commission and the service it provides. The purpose of the MOU 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.

B. Strategic direction

The Commission endeavours 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 of being an effective, useful and quality service provider within the construction industry. There are, however, certain challenges that face the Commission. In order to address these challenges and to improve its ongoing operations and client service delivery, the Commission plans to undertake the following initiatives.

Time to hearings

The Commission’s process requires 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. Accordingly, 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’s performance measure reads “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”.

As reported in the Commission’s 2018-2019 Annual Report, the Commission met its target in both of these performance measures. The Commission offered a hearing date within 40 working days from receipt of a complete application in 100% of its cases. The Commission was able to offer a hearing date within 20 working days from receipt of the Respondent’s confirmation of dispute in 85% of its cases.

Time to written decisions

The Commission’s performance measure target for timely communication of decisions reads, “Communicate decisions to parties within 20 working days of completion of hearing for 75% of all hearings”. The Commission notes that the target for this performance measure was met in the 2018-2019 fiscal year for 85% of all hearings. For its 2020-2023 performance measure commitments, the Commission has 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 also has a performance measure target for the timely preparation and finalization of full written decisions, which reads, “Full written decision to be prepared and finalized within six months of completion of hearing for 75% of all hearings”. The Commission notes that this performance measure was met in the 2015-2016 and 2016-2017 fiscal years. However, the target was not met for the 2018-2019 fiscal year. Full written decisions for 55% of the technical disputes and for 100% of the time frame disputes have been completed within six months of completion of the hearing.

In its previous Business Plan, the Commission noted that 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. The Commission attributes this reduction in performance to the fact that the Coordinator position was vacant for the majority of the 2017-2018 fiscal year as the backlog of decisions has not been fully caught up yet.

In order to help the Commission reach its targets for full written decisions, the Commission has decided to stop issuing partial rulings and only issue full rulings. Removing this step will help in issuing the full written decisions in line with Commission targets. The Commission and staff will continue to analyse these performance measures annually, along with any factors that may impact results.

Transparency and accountability

The Commission continues to comply with the accountability requirements set out in the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009. The legislation requires the Commission to review its accountability documents on a regular basis and places some additional requirements on the process for recruitment of new members. As a result of the rules contained within the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, the Commission was required to develop a recruitment statement which details the process to be undertaken when seeking recruitment of new members. In accordance with its recruitment statement, the Commission developed job advertisements seeking candidates for new members. These advertisements were posted on the Public Appointments Secretariat website. The competition and appointment of four new Members and one Vice Chair was completed as of February 2019. The competition process for the appointment of two additional new members is currently underway.

Succession planning

The Commission has a total of 16 part-time members, including the Chair and two Vice-Chairs. All Commission members are appointed by the Lieutenant Governor in Council through an Order in Council. Management Board of Cabinet’s Agencies and Appointments Directive permits individuals appointed to the Commission to serve a combined term of appointment of up to 10 years. The current directive specifies that the appointment terms will be an initial appointment for a period of two years. On the recommendation of the Chair, the appointee is eligible for a reappointment term of three years and final appointment term of five years.

Succession planning continues to be an appointments-related issue. However, over the last three years the Commission has made progress in staggering member appointments. In keeping with the specified appointment terms, the Commission believes it would be ideal to have one third of its membership in its initial appointment term, one third of its membership in its second appointment term and one third of its membership in its final appointment term. This would enable the Commission to maintain a balance of new and veteran appointees. Further, it would be appropriate to stagger the appointment terms throughout the year so that not all of the terms expire in the same month.

The Commission Chair and staff have developed a plan to address this issue. In summary, the plan is to work with the Minister’s Office and the Public Appointments Secretariat to seek appointments of new members more often and in smaller groups, so that their terms of appointment do not all expire at once.

This strategy allows the Commission to improve succession planning; achieve appointment overlaps, allowing for knowledge transfer from existing members to newly appointed members; achieve an appropriate balance of geographical representation; promote mentoring of new members; and achieve and maintain membership having expertise in all technical disciplines (structural, fire safety, plumbing, mechanical systems, on-site sewage systems, etc.)

In addition, in trying to address the overall succession planning issue noted, the Commission Chair will continue to carefully consider what recommendations to make regarding reappointment of current members. Accordingly, not all members may be recommended for reappointment.

Annual survey

The Commission intends to continue its independent survey which assists the Commission in determining satisfaction with levels of service delivery.

C. Overview of key activities

Staff supporting the Commission are responsible for case management and customer service to persons wishing to apply to the Commission for a hearing. The Commission Secretary liaises with the applicants and respondents throughout the appeal process. The Commission Secretary also works with Building and Development Branch staff in order to obtain information from the Branch on the technical issues involved in applications. Hearings are scheduled for the earliest possible hearing date, based on the volume of applications received.

The Ministry’s Coordinator of Building Innovation is the senior Commission staff person and is responsible for the overall administration of and policy development for the Commission. This involves liaising with the Minister’s Office regarding the appointments process, issues management, business planning, performance measurement, monitoring of expenditures and ensuring compliance with agency sector requirements and Treasury Board/Management Board of Cabinet directives.

In late 2019, the Municipal Services Division of the Ministry of Municipal Affairs and Housing underwent a reorganization of its branches. The Building Services Transformation Branch which provided the staff support to the Commission was part of the reorganization. There were a number of changes that result in an impact to the Commission.

Firstly, the support for the Building Code Commission was moved to the Building and Development Branch. The Building Code Commission recognizes this decision is not within their purview, however, this change may impact the Commission’s priorities and activities.

Secondly and most importantly, the staff support for the Commission was reduced from 1.8 full time equivalents to 1.0 full time equivalents. This amounts to a 44% reduction in staff support for the Commission.

As of October 1, 2019, the new position of Policy/Program Analyst, Building Code Commission was created. This position combines the roles of Commission Secretary, the Coordinator, and parts of the Commission Administrative Assistant. With the additional duties being assigned to the only staff member supporting the Commission, the Commission anticipates key activities of the Commission may be impacted.

Please refer to Section D for further information regarding changes to the Commission’s resources and the anticipated impacts on the Commission.

The Commission received 24 new applications and held 29 hearings between April 1, 2018 and March 31, 2019. 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 eventually posted on the website at https://www.ontario.ca/page/building-code-commission. As of November 2019, Commission decisions will be posted to a legal reporting website, CanLII, which can be found at https://www.canlii.org/en/on/onbcc/.

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

Table 1

Achievements

Several steps have been taken to enhance the Commission’s performance and accountability over the past several years, including addition of performance measurements to the Ministry’s business planning process, and continued monitoring of Commission-specific performance measures. The Commission surveys its clients; survey results for the 2019-2020 fiscal year will not be received and tabulated until end of April 2020. Results are reported in the Commission’s Annual Report.

Based on the annual client survey, the Commission identified the following achievements for 2018-2019:

• Heard 100% of service level disputes within five days from the date of application.
• Continued to provide a fair and expeditious appeal mechanism regarding technical disputes and, as a result, again faced no judicial review challenges during the 2018-2019 fiscal year.
• Continued its practice of surveying clients.

• Survey results of parties that used Commission services in the 2018-2019 fiscal year indicated that:
  • 92% felt that the processes and procedures were clear and understandable.
  • 92% felt that members demonstrated an appropriate level of expertise regarding the matter under consideration.
  • 92% felt that they were treated with courtesy throughout the application process.
  • 92% felt they were treated with courtesy at the hearing.
  • 92% were satisfied with the overall level of service provided by the Commission.

Other achievements in 2018-2019 fiscal year included:

• The Commission Chair and staff worked with the Public Appointments Secretariat and the Minister’s Office to process the appointment of four new members and one Vice Chair having various technical expertise.
• The Commission continued to maintain its compliance with the Management Board of Cabinet’s Agencies and Appointments Directive.
  • It prepared, finalized and submitted its three year Business Plan for 2019-2022;
  • Its Annual Report for 2018-2019 fiscal year was completed and approved by the Commission within the specified time frame.

• 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.

The Commission has also identified the following achievements in 2019-2020 from April 1, 2019 to October 31, 2019:

• 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 the majority of its members expire at the same time.

D. Resources

Human resources

The Commission currently has a total of 16 part-time members, including the Chair and two Vice Chairs. All members are appointed by an Order-in-Council for terms totalling up to 10 years, in accordance with Management Board of Cabinet’s Agencies and Appointments Directive. The Chair and Vice-Chairs are responsible for agency governance and relations with the Ministry.

The following divisions of the Ministry support the Commission in fulfilling the Agencies and Appointments Directive:

• Building Services Transformation Branch (from April 1, 2019 to September 30, 2019);
• Building and Development Branch;
• Corporate Services Branch;
• Controllership and Financial Planning Branch;
• Legal Services Branch; and
• I&IT Community Services 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.

As of October 1, 2019, the Commission’s direct support staff consists of a 1.0 Full Time Equivalent (FTE), Policy/Program Analyst, Building Code Commission.

With the Commission support staff decreased by 44%, it is anticipated the Commission’s performance may be impacted. The Commission will continue to monitor its performance targets and achievements over this fiscal year and evaluate any impacts.

Financial Resources

The Commission has no financial budget of its own. The Commission is supported by Ministry staff. The operating expenses for this Commission are funded through the Ministry of Municipal Affairs and Housing’s budget.

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

Table 2

Note: Numbers may not add due to rounding

Revenue

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 $189.00 on January 1, 2019. For the purposes of determining the estimated revenues for 2020-2021, 2021-2022 and 2022-2023, a CPI increase of 2% was assumed which resulted in estimating the following fees of $192.00 for January 1, 2020, a fee of $196.00 effective January 1, 2021, a fee of $200.00 effective January 1, 2022 and a fee of $204.00 effective January 1, 2023.

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

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

Table 3

E. Communication plan

The agency communicates with applicants and potential applicants through appropriate publications, forms and instructions, either posted on its public Internet page or distributed on request.

Telephone and email inquiries are responded to by the Policy/Program Analyst, Building Code Commission.

F. Environmental scan

(Conditions with Impacts on the Business Plan)

Changes in demand

The increased complexity of the applications as well as an increase in the number of applications that contain multiple disputes will influence the need for appropriately skilled Commission members and could potentially impact the administrative support system required by the Commission. It is essential that the Commission have a sufficient number of skilled members appointed to ensure that it can continue to provide Ontarians with a cost effective and efficient avenue for resolution of disputes.

The Commission has also seen an increase in the number of applications requiring the Commission to examine and determine its jurisdiction and mandate relative to disputes that may extend beyond the technical requirements of the Building Code.

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.

Potential financial pressures

As part-time appointees, Commission members receive remuneration in the form of a per diem as established by Treasury Board/Management Board of Cabinet. This per diem ranges 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 Toronto. Costs and expenses associated with Commission activities, including operating costs and member per diems, form part of the overall budget for the Building Services Transformation Branch of the Ministry of Municipal Affairs and Housing.

Any changes to the Commission’s application rate and/or complexity of issues will also directly impact the Branch’s budget in support of Commission activities.

G. 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” priorities for the Commission, processes are in place to ensure that all goals are integrated into the Commission’s operation and are, therefore, adequately addressed. The table below indicates how the Commission ranked the goals:

Table 4

* 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.

Table 5

H. Risk assessment

Based on the Commission’s strategic directions and objectives, one risk to performance has been identified.

Mitigation strategies (including contingency plans, mitigation controls, and monitoring where required as part of prudent risk management protocols) are identified. Planning is required to address these issues and will be scheduled.

The Reference Impact and Probability Matrix used in this assessment is shown below:

Risk impact and probability matrix

Risk #1: Lack of knowledge transfer/succession planning impacting commission

Issue:

Succession planning continues to be an important issue for the Commission.

Insufficient overlap between sitting members whose terms are nearing expiration, and newly appointed members, has in the past resulted in a disproportionate load on some of the more experienced members. Newly appointed members are unfamiliar with Commission processes. Ideally, not more than 33% of members should retire from the Commission in any given year. This allows for gradual phasing in and out of members and maintains a balance of veteran and newer members. The Commission has expressed an interest in having more overlap between sitting members and newly appointed members than has been afforded in the past. At this time, 44% of the current membership could potentially reach their ten-year maximum term in 2026.

Probability: Low

The Chair along with one other member reached their ten-year maximum term in 2018. The former Chair and Ministry staff were able to have the Chair appointment package completed before the end of the term of the former Chair and as noted previously a new Chair was appointed on December 31, 2018.

Further, the former Chair of the Commission made recommendations on reappointments so that there would be a need to seek new members. This results in the staggering of appointment terms which will allow the Commission to transition new members in and allow for transfer of knowledge. Once appointment terms are staggered, the risk will be significantly reduced. However, the risk will be an ongoing issue for the Commission which will fluctuate in its severity depending on the specific status of appointments.

Impact: Medium

Extensive simultaneous changes in Commission membership can result in a disproportionate workload on some members and creates difficulty in determining the appropriate composition of a hearing panel. Newer members, while they may be technically experienced, ideally should be phased into hearings to learn the processes of the Commission.

Tolerate and monitor:

While the risk matrix above indicates that the Commission can tolerate and monitor the risk, the Commission intends to follow the mitigation strategy outlined below. This risk will be ongoing for the Commission, and the probability and impact will fluctuate depending on the circumstance at the time of assessing the risk. It seems prudent for the Commission to continue to mitigate the risk as best as it can.

Mitigation:

Advertisements for new Members were posted on the Public Appointments Secretariat’s website in the fall of 2018 and following a competitive, merit-based process five new Members were recommended and appointed to the Commission in 2019.

On June 3, 2019, a second advertisement was posted on the Public Appointment Secretariat’s website seeking to fill two vacant member positions. Having completed the screening and interview process of eligible candidates, the Chair has made recommendations to the Minister to appoint two new Members.

In seeking appointments of new members more often and in smaller groups, the Chair, the Commission and Ministry staff are working towards addressing the overall succession planning issue.

This strategy will allow the Commission to improve succession planning; achieve appointment overlaps, allowing for knowledge transfer from existing members to newly appointed members; achieve an appropriate balance of geographical representation; promote mentoring of new members; and achieve and maintain membership having expertise in all technical disciplines (structural, fire safety, plumbing, mechanical systems, on-site sewage systems, etc.).

Contingency plan:

The Commission Chair and Ministry staff will continue to make it a priority to work with the Minister’s Office and the Public Appointments Secretariat on recruitment to achieve appointment overlaps that improve succession planning, allowing for knowledge transfer from existing members to newly appointed members, and promoting mentoring of new members.

Risk #2: Impact of Reduction in Staffing Resources on the Commission and its Performance Targets

Issue:

Up until October 1, 2019, the Commission was supported by 1.8 full time equivalents. The Commission notes that in late 2019, its staffing resources have been reduced by 44%. Most of the duties that were previously performed by the Coordinator and many of the duties that were previously performed by the Administrative Assistant will need to be undertaken by the only staff person assigned to the Commission. With the Commission being supported by one staff person, any absence by this person, such as illness or vacation, leaves the Commission vulnerable to delays in processing of its applications, scheduling of hearings and issuance of decisions which will impact its performance targets.

Probability: MEDIUM:

The Commission believes that this reduction in staff in combination with the additional duties required to be performed will have a significant impact on the performance targets that it has set. The Commission has experienced situations in the past where staff resourcing created negative impacts on the ability of the Commission to produce and finalize its full written decisions within its six-month target. The Commission is concerned that this reduction in staffing will also negatively affect other performance targets, such as applications processing and timely scheduling of hearings.

Impact: HIGH:

The Commission is appreciated by the construction industry as an efficient and cost-effective way to resolve disputes. With only one staff person supporting the Commission, the Commission anticipates any absences of the staff person will result in delays to the processing of applications, the timely scheduling of hearings, and issuance of full written decisions. The Commission believes this change in resources will negatively impact some of the Commission’s performance targets.

Tolerate and Monitor:

The risk matrix above indicates that the Commission will have to develop mitigation controls and contingency plans that need to be monitored closely. This risk is new and will be ongoing for the Commission. The impact is initially assessed as high. The Commission intends to follow the mitigation strategy outlined below.

Mitigation strategy:

Mitigation:

The Commission will closely monitor staffing resources to determine the nature of the impact on the Commission’s mandated responsibilities and its performance measures. The Commission will assess the impacts and work with staff on developing a plan of action to mitigate issues to the best of its ability. The Commission Chair will work with the Ministry to determine the best actions to take to resolve the issue.

Contingency Plan:

The Commission will continue to process its applications, hold its hearings and issue its full written decisions as quickly as possible. The Commission notes that it has no control over the number of staffing resources it is assigned and so it can only make recommendations to the Ministry on possible ways to address the issue.