Building Code Commission process and procedures handbook
Learn how we resolve disputes under the Building Code.
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Applicant is an Applicant to the Building Code Commission. An Applicant is an applicant for a building permit, the holder of a building permit or a person to whom an order has been issued.
Application means an Application for Hearing to the Building Code Commission.
Agent is a person who has been authorized by the Applicant to act on their behalf and represent them in the matter before the Building Code Commission.
Respondent is the Respondent to the Application for Hearing to the Building Code Commission. A Respondent is a chief building official or registered code agency of the municipality in which the construction or proposed construction that is at issue is located.
Designate is a person who is an employee, other than the chief building official, of the municipality or registered code agency with whom the Applicant may have dealt with regarding the issue before the Building Code Commission. A designate may also be authorized by the Respondent to act on behalf of the municipality and make representations at the hearing.
CBO means the Chief Building Official. The Chief Building Official is appointed by the Building Code Act, 1992 and is responsible for co-ordinating and overseeing the enforcement of the Building Code and the Building Code Act within the applicable jurisdiction.
COD is the Confirmation of Dispute document that is submitted by the Chief Building Official in response to an Application. The Confirmation of Dispute document is expected to provide all parties with the municipality’s reasoning and rationale regarding the matter at dispute.
Technical Advisor is an employee of the Ministry of Municipal Affairs and Housings' Building and Development Branch. The technical advisor attends the hearing and provides the Building Code Commission panel members with technical support regarding the matter at dispute.
TBI means Technical Background Information report. The technical advisor provides all parties with a Technical Background Information report which outlines what the Building Code says with regards to the provisions of the Code that form the basis of the matter at dispute.
Secretary means the Secretary of the Building Code Commission. The Secretary of the Building Code Commission provides the administrative, policy and operational support to the Building Code Commission.
Commission Members - Members of the Building Code Commission are appointed to the Commission by the Lieutenant Governor in Council. Members are individuals with technical expertise in different areas of construction, engineering, design and building materials.
Chair using a capital “C” means the member appointed by the Lieutenant Governor in Council as the Chair of the Building Code Commission. In this document, chair without a capital “C” means the hearing panel chair (i.e. the member who is chairing the hearing).
B. Mandate of the Building Code Commission
- The Building Code Commission (BCC) is an adjudicative tribunal authorized under ss. 23(1) of the Building Code Act, 1992 (BCA).
- Under ss. 24(1) of the BCA, the BCC has a mandate to resolve disputes:
- between an applicant for a permit, the holder of a permit or a person to whom an order is given and the chief building official (CBO), a registered code agency (RCA) or an inspector concerning the sufficiency of compliance with the technical requirements of the Building Code
- between an applicant for a permit and the chief building official concerning whether the official complied with the time frame requirements for processing of permit application
- between a holder of a permit and the chief building official, a registered code agency or an inspector concerning whether the time frame requirements for inspections have been met
- A proceeding before the BCC is terminated if an appeal is made to the Ontario Court (General Division) under s.25 of the BCA in respect of the same matter pending before the BCC (BCA ss.25(3)
C. Relationship of the BCC to the Ministry of Municipal Affairs and Housing
- The BCC reports to the Minister of Municipal Affairs and Housing through the Director of the Building and Development Branch.
- The BCC is supported administratively, financially and technically by the Building and Development Branch, Ministry of Municipal Affairs and Housing.
- Building and Development Branch employees have been assigned to provide direct support to the BCC. The BCC’s direct support staff consists of a Coordinator, a Secretary, and an Administrative Assistant.
- The BCC consists of members appointed by the Lieutenant Governor in Council including a Chair and Vice-Chair(s). Members are chosen for their individual expertise and abilities and are expected to exercise broad objective judgments. The Commission membership may be viewed online at the Public Appointments Secretariat.
D. General information about the BCC and its hearings
- The BCC is a statutory tribunal that is composed of members appointed by the Lieutenant Governor in Council (BCA ss. 23(1)).
- Members of the BCC shall not be in the public service of Ontario or an employee of a municipality or in a prescribed relationship to a registered code agency (BCA ss.23(3)).
- Hearings are conducted by the BCC in accordance with the Statutory Powers and Procedure Act. The hearings are informal, and parties may participate personally or be represented by an agent or a lawyer.
- Copies of all documentation provided by a party to the BCC must be sent to the other party to the hearing. It is the responsibility of a party to a hearing before the BCC to provide copies of all documentation submitted to the BCC in connection with the hearing to the other party.
- Hearings concerning sufficiency of compliance with technical requirements of the Building Code are usually held within six to eight weeks of receiving the required documentation (i.e. completed application and confirmation of the dispute). Hearings involving time frame disputes will be heard, as prescribed by the Building Code, within five business days from the date of receipt of a completed application for hearing.
- Once the Notice of Hearing has been issued, the BCC may hold a hearing in the absence of a Party or Parties and the Party or Parties will not be entitled to any further notice of the proceedings.
- Three members of the BCC constitute a quorum for hearings involving the sufficiency of compliance of a building/structure with the technical requirements of the Building Code. One member of the BCC may hear and determine any dispute involving the building code requirements for sewage systems or prescribed time frame compliance.
- Members of the BCC conducting a hearing:
- will not take part before the hearing in any investigation or consideration of the subject matter of the hearing (BCA ss.24(5)(a)).
- will not communicate directly or indirectly in relation to the subject matter of the hearing with any person unless all parties are given notice and allowed to participate (BCA ss.24(5)(b)).
- may seek independent legal or technical advice but the nature of the advice will be made known to the parties in order that they may make submissions (BCA ss.24(6)).
- The BCC will determine the dispute involving sufficiency of compliance with the provisions of the Building Code, and for this purpose may substitute its opinion for that of the CBO, RCA or inspector (BCA ss. 24(3)).
- The BCC will determine a dispute involving compliance with the prescribed time frames and may require the CBO, RCA or inspector to comply with the applicable subsection of the Act (BCA ss.24 (3.1).
- Where a question is referred to the BCC by a judge under the Act (BCA ss.25(5)) the procedure for such a hearing will be the same as for hearings under ss.24(1) except that the BCC will render a report to the judge instead of rendering a decision for the parties.
- Decisions made by the BCC are final (BCA ss. 24(4)).
- The BCC endeavours to make its decisions as quickly as possible, often on the day of the hearing.
- Copies of the written decision are sent to the parties upon completion.
- BCC decisions are prepared using metric units. All test results and information provided by the parties must be in metric units or show metric equivalents.
- The BCC has been designated as an institution for the purposes of the Freedom of Information and Protection of Privacy Act, and that statute, therefore, applies to records in the custody and control of the BCC.
E. The application process
Persons wishing to apply to the BCC for a hearing should complete the appropriate application form, depending on the nature of the dispute, and submit the required application fee.
The BCC has four different types of application form:
- sewage systems
- permit processing time periods
- inspection time periods
The application form seeks to capture the basic information related to the matter at dispute. The application forms differ slightly in the type of information required in respect of the dispute.
For disputes related to the sufficiency of compliance with the technical requirements of the Building Code (Building/Structures and Sewage System Application forms), the Application form seeks information such as the stage of construction, provisions of the Building Code that are in dispute, a description of the construction of the building and/or sewage system that is the subject of the dispute, a description of the portion of the project that is in dispute, statement from the applicant regarding the nature of this dispute, including reasons for non-acceptance of the Applicant’s proposal given by the Respondent.
For disputes related to the time frames (Permit Processing and Site Inspection Time Frame Application forms), the Application form seeks information related to not only the type of construction proposed but the dates of when a building permit application was filed or a site inspection was requested. It also seeks information regarding any communication received from the Respondent in relation to the building permit application or site inspection request.
The original application, together with the number of copies identified on the application form, and the required application fee should be submitted to the address below. If supporting documents are attached, one set for each copy of the application must be provided.
Applications should be directed to:
Building Code Commission
777 Bay Street, 12th Floor
Note: It is the responsibility of the Applicant to provide the Respondent with a copy of the application and all supporting documentation submitted.
Once an Application for Hearing is received, the Secretary prepares the Confirmation of Dispute document and sends it to the Respondent requesting that it be completed and returned. Similar to the Application for Hearing, the COD seeks information related to the stage of construction, provisions of the Building Code that are in dispute, a description of the construction of the building and/or sewage system that is the subject of the dispute, a description of the portion of the project that is in dispute, statement from the Respondent regarding the nature of this dispute, including the Respondent’s reasons for non-acceptance of the Applicant’s proposal. For disputes related to time frames, the Respondent is informed that the BCC has received an Application for Hearing related to time frames and is afforded the opportunity to respond to the by providing a concise statement of their position in respect of the subject dispute and by submitting any documentation in support of the position
Note: It is the responsibility of the Respondent to provide the Applicant with a copy of the Confirmation of Dispute and all supporting documentation submitted.
For disputes related to the technical provisions of the Building Code, once the completed Confirmation of Dispute is received, the Secretary requests that the Building and Development Branch provide technical background information concerning the Building Code provisions relevant to the dispute. Specifically, the Commission looks for information related to the history and development of the Building Code provisions at issue; technical considerations relevant to the Building Code provisions at issue; and if there are any amendments proposed in regard to the provisions at issue. The Secretary requests that a representative of the Building and Development Branch of the Ministry of Municipal Affairs and Housing be present at the hearing in order that the representative is available as a witness to answer any questions about the technical background information provided by the Branch.
For disputes related to time frames, the Building and Development Branch technical advisory section are not involved in the application process as the matter at dispute in these cases is not technical in nature. As such, the Secretary will schedule a tentative date for hearing at the same time as a Confirmation of Dispute is sent to the Respondent. The date for hearing is required to be scheduled within five (5) business days of receipt of a completed application for hearing.
Note: It is the responsibility of the Secretary to provide the Applicant/Agent and Respondent/Designate with a copy of the Technical Background Information memo once it has been received.
Upon receipt of all the above noted information, the Secretary will schedule a date for hearing and will notify the parties to the hearing in writing of the date, time, and location for the hearing. Parties are also informed that if they do not attend the hearing, the hearing may take place in their absence and they will not be entitled to any further notice of the proceedings.
F. What to expect at a hearing
- The Chair or Vice-Chair will serve as chair of any hearing panel in which they participate. The Chair of the BCC will designate a member who will be assigned as chair for hearing panels on which the Chair or Vice-Chair of the BCC do not participate.
- The hearing panel chair will introduce the hearing and address any preliminary matters to open the hearing. The chair will introduce the panel members sitting on the hearing.
- The chair will ask the parties if they have any objections to the jurisdiction of the BCC to hear the matter or whether there are any preliminary matters that should be addressed prior to the commencement of the hearing.
- Any preliminary matters raised by the parties will be addressed by the hearing panel before proceeding further with the hearing.
- The chair will request the Secretary to identify the exhibits to the hearing and will ask if all parties have had access to or are aware of the exhibits, as identified. The chair will ask if there any additional exhibits from either party that need to be entered.
Note: If parties are wishing to enter new exhibits on the day of the hearing they should bring five (5) copies to be distributed to the panel members, for the file and for other party to the hearing.
- The chair will ask the parties and their representatives introduce themselves. Staff attending the hearing will also be asked to introduce themselves.
- The chair will then request the Applicant to state his/her case, and call any witnesses, if required.
- After the Applicant has stated his/her case and any witnesses have given testimony, the Respondent is provided the opportunity to cross-examine/ask questions of the Applicant and witnesses regarding their testimony. Following the Respondent’s questioning, the Commission members may ask questions of the Applicant and witnesses regarding their testimony.
- The chair will request that the Respondent state his/her case and call any witnesses, if required.
- After the Respondent has stated his/her case and any witnesses have given testimony, the Applicant may cross-examine/ask questions of the Respondent and witnesses regarding their testimony. Following the Applicant’s questioning, the Commission members may ask questions of the Respondent and witnesses regarding their testimony.
- The Applicant will be permitted to call any reply evidence after the Respondent has presented his/her case.
- For hearings involving sufficiency of compliance with the technical requirements of the Building Code, a representative of the Building and Development Branch will be in attendance at the hearing to present the technical background information concerning the Building Code provision(s) identified by the parties as being relevant to the dispute and to respond to questions from members of the Commission and parties to the hearing.
- For hearings involving time frames, the Building and Development Branch does not participate in the hearing process as the matter at dispute in these cases is not technical in nature.
- The chair will request that the Applicant and Respondent provide final arguments and summarize their position.
- The chair will conclude the hearing or, if Commission members feel it is appropriate, the hearing will be adjourned to be continued at a later date.
G. Swearing or affirming of parties or witnesses
- Upon request, the chair may swear or affirm any or all persons (including the Applicant and the Respondent) who will be giving evidence at the hearing. Such requests should be made at the earliest opportunity.
H. Summons to witness
- Upon request, the Chair of the Commission may consider issuing a summons to be served on a person to require attendance at a hearing
- A request to summons a witness should be made in writing and submitted to the Secretary at the earliest opportunity. The request must set out the issues and the evidence that a witness is to address and explain the relevance of that evidence.
- If the Chair is satisfied that the evidence to be given by the witness named in the request for summons is relevant to the issue(s) before the BCC, the summons shall be signed and issued.
- Once the Chair has issued the summons, it is the responsibility of the person requesting the summons to serve the summons and pay any required witness fees.
I. Requesting an Adjournment
- Any party seeking an adjournment should first seek the agreement of the other party to the hearing. If such consent is obtained, the parties seeking the adjournment should contact the Secretary. The Secretary will then contact the Chair or in his/her absence the Vice-Chair, to see if the adjournment will be granted. If the Chair or Vice-Chair declines to grant the adjournment, the party may renew the request to the hearing panel at the opening of the hearing.
- If the party requesting an adjournment is unable to obtain the consent of the other party, the request for the adjournment must be made to the hearing panel at the opening of the hearing; however, notice of the intention to request such an adjournment must first be communicated to the other parties and to the Secretary at the earliest possible time.
- Adjournments are granted at the discretion of the BCC on the terms and conditions as determined by the BCC.
- Members of the BCC shall not participate in a decision of the Commission pursuant to a hearing unless they were present throughout the hearing (BCA s.24(8)).
- Except with the consent of the parties, no decision of the BCC will be given unless all members present throughout the hearing participate in the decision (BCA s.24(9)).
- Pursuant to s.17 of the Statutory Powers and Procedures Act, decisions of the BCC will be given in writing and the BCC will provide reasons for its decision.
- After the hearing panel renders a decision, the Secretary will:
- provide a copy of the decision to the Applicant, Respondent, authorized agents and all members of the BCC
- file the decision in the BCC file
- publish the decision on the BCC website
- provide a copy to any person who requests a copy of the decision
- The findings of fact at a hearing of the BCC will be based exclusively on evidence admissible or matters that may be noticed under s.15 and 16 of the Statutory Powers and Procedures Act (BCA ss.24(7)).
- The BCC hears Applications in panels of one or three members depending on the type of Application, in accordance with Section 2.2 of Division C of the Building Code. The parties to the hearing are responsible for identifying the Articles of the Building Code they believe are at issue and the evidence they wish to present. Panel decisions are site specific and only applicable to the particular Application. The BCC does not review panel decisions.
- Decisions of the BCC are not appealable, as section 24(4) of the Building Code Act, states that “the decision of the Building Code Commission is final”.
K. Communication with the public
- Inquiries from the public concerning BCC applications, the status of applications, or other administrative matters should be directed to the Secretary.
L. Conflict of interest
- In accordance with Management Board Secretariat Guidelines, BCC members must declare a conflict-of-interest situation to the Chair at the earliest opportunity.
- The BCC adopts the following three principles in respect of conflict of interest:
- a BCC member will not use information obtained as a result of his or her appointment for personal benefit
- a conflict of interest situation should be declared at the earliest opportunity
- no BCC member will divulge confidential information obtained as a result of his or her membership on the BCC, unless legally required to do so
- The BCC adopts the following definition of conflict of interest, taken from the Management Board Secretariat Guidelines:
- Conflict of interest normally relates to a direct pecuniary interest of the appointed or elected member, either personally or through the member’s family
- Direct pecuniary interest should be interpreted as an individual interest rather than one that is common to a class of persons. That is to say, it is not considered a conflict of interest if a large segment of the population, including the BCC member, will benefit from a decision to which the member is a party.
- However, there is a conflict of interest if the member or his or her immediate family could benefit personally from a decision while a larger group of people could not.
Immediate family should be interpreted to include the spouse, parents or children of the BCC member
- The following practices are adopted in respect of conflict:
Declaration of conflict
A BCC member who has a conflict of interest in a matter under consideration by the BCC should disclose the nature of that conflict to the Chair or Vice-Chair at the first opportunity and refrain from any further participation in the discussion.
The Chair or Vice-Chair shall record in the minutes any declared conflict of interest on the part of the member.
When a declaration of conflict of interest has been made in the course of a hearing, the parties will be advised of the conflict and the remaining members of the hearing panel will take legal advice and then determine if the hearing can continue.