A. Definitions

Agent means a person who has been authorized by the Applicant to act on behalf of the Applicant and make representations in the matter before the Building Code Commission.

Applicant means a person making an Application to the Building Code Commission. An person to whom an order has been issued under the Building Code Act, 1992.

Application means an Application for hearing to the Building Code Commission.

CBO means Chief Building Official. The Chief Building Official is appointed under the Building Code Act, 1992 and is responsible for coordinating and overseeing the enforcement of the Building Code and the Building Code Act within the applicable jurisdiction.

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). The Chair or Vice Chair will usually serve as a chair of a hearing panel and if they are not available a Member will serve as chair of the hearing panel.

Commission means the Building Code Commission.

Members means the persons appointed to the Building Code Commissions by the Lieutenant Governor in the Council. Members are individuals with technical expertise in different areas of building construction, engineering, design and building material standards.

Designate means a person authorized by the Respondent to act on behalf of the Respondent and make representations in the matter before the Building Code Commission.

Policy/Program Analyst Building Code Commission means the Policy/Program Analyst of the Building Code Commission who provides
Program administrative, policy and operational support to the Building Code Commission.   

Respondent means the Respondent to the Application to the Building Code Commission. A Respondent is a Chief Building Official, a registered code agency or an inspector under the Building Code Act, 1992.

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 Building Code that are in dispute

Technical Advisor means an employee of the Ministry of Municipal Affairs and Housing's Building and Development Branch. The Technical Advisor attends the hearing and provides the Building Code Commission panel members with the technical support regarding the matter in dispute.   
 

B. Mandate of the Building Code Commission

  1. The Building Code Commission is an adjudicative tribunal authorized under ss. 23(1) of the Building Code Act, 1992 (BCA).
  2. Under ss. 24(1) of the BCA, the Commission 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 CBO, a registered code agency, or an inspector concerning the sufficiency of compliance with the technical requirements of the Building Code;
    • between an applicant for a permit and the CBO concerning whether the official complied with the time frame requirements for the processing of permit applications; and
    • between a holder of a permit and the CBO, a registered code agency, or an inspector concerning whether the time frame requirements for inspections have been met.
  3. A proceeding before the Commission is terminated if an appeal is made to the Superior Court of Justice under s.25 of the BCA in respect of the same matter pending before the Commission (BCA ss.25(3).
  1. A proceeding before the Commission is terminated if an appeal is made to the Superior Court of Justice under s.25 of the BCA in respect of the same matter pending before the Commission (BCA ss.25(3)

C. Relationship of the Commission to the Ministry of Municipal Affairs and Housing

  1. The Commission reports to the Minister of Municipal Affairs and Housing through the Director of the Building and Development Branch.
  2. The Commission is supported administratively, financially and technically by the Building and Development Branch, of the Ministry of Municipal Affairs and Housing. 
    Building and Development Branch employees have been assigned to provide direct support to the Commission. The Commission's direct support staff consists of a Policy/Program Analyst - Building Code Commission.
  3. The Commission 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 judgment. The Commission membership may be viewed online at the Public Appointments Secretariat.

D. General information about the Commission and its hearings

  1. The Commission is a statutory tribunal that is composed of Members appointed by the Lieutenant Governor in Council (BCA ss. 23(1)).
  2. Members 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)).
  3. Hearings are conducted by the Commission in accordance with the Statutory Powers Procedure Act, and parties may participate personally or be represented by an Agent.
  4. Copies of all documentation provided by a party to the Commission must be sent to the other party to the hearing. It is the responsibility of a party to a hearing before the Commission to provide copies of all documentation submitted to the Commission in connection with the hearing to the other party.
  5. For hearings concerning sufficiency of compliance with the technical requirements of the Building Code, the Commission aims to offer a hearing date within 30 working days from receipt of a complete Application. A complete Application includes receipt of all required documents from both parties to a 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.
  6. Once the Notice of Hearing has been issued to the parties in respect of the dispute, the Commission 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.
  7. Three Members constitute a quorum for hearings involving sufficiency of compliance of a with the technical requirements of the Building Code. One Member may hear and determine any dispute involving the Building Code requirements for sewage systems or prescribed time frame requirements.
  8. Members 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)); and
    • 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)).
  9. The Commission will determine the dispute involving sufficiency of compliance with the technical requirements of the Building Code and, for this purpose, may substitute its opinion for that of the CBO, a registered code agency or an inspector (BCA ss. 24(3)).
  10. The Commission will determine a dispute involving compliance with the prescribed time frames and may require the CBO, a registered code agency or an inspector comply with the applicable subsection of the BCA (BCA ss.24 (3.1).
  11. Where a question is referred to the Commission by a judge under the BCA (BCA ss.25(5)), the procedure for such a hearing will be the same as for hearings under ss.24(1) except that the Commission will render a report to the judge instead of rendering a decision to the parties.
  12. Decisions made by the Commission are final (BCA ss. 24(4)).
  13. The Commission endeavours to make its decisions as quickly as possible, often on the day of the hearing.
  14. Copies of the written decision are sent to the parties upon completion.
  15. Commission decisions are prepared using metric units. All test results and information provided by the parties must be in metric units or show metric equivalents.
  16. The Commission 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 Commission.

E. The application process

Persons wishing to apply to the Commission for a hearing should complete the appropriate Application form, depending on the nature of the dispute, and submit the required Application fee.

The Commission has four different types of Application forms:

  • Buildings/Structures
  • Sewage Systems
  • Permit Processing Time Periods
  • Inspection Time Periods

The Application forms seek to capture the basic information related to the matter in dispute. The four types of Application forms differ slightly in the type of information required in respect of the dispute.

For disputes related to 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, and a 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 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.

A complete Application, together with all supporting documentation (all in electronic PDF file format) must be emailed to the Policy/Program Analyst - Building Code Commission named on the form, and the required application fee should be mailed to the address below.

Fees should be directed to:

Policy/Program Analyst - Building Code Commission
Building Code Commission
777 Bay Street, 12th Floor                           
Toronto, Ontario
M7A 2J3

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 is received, the Policy/Program Analyst - Building Code Commission prepares the Confirmation of Dispute document and sends it to the Respondent requesting that it be completed and returned. Similar to the Application, the Confirmation of Dispute 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, and a statement from the Respondent regarding the nature of the 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 Commission has received an Application related to time frames and is afforded the opportunity to respond to the Commission by providing a concise statement of their position in respect of the subject dispute and by submitting any documentation in support of their 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 Policy/Program Analyst - Building Code Commission requests that the Building and Development Branch provide a TBI concerning the Building Code provisions relevant to the dispute. Specifically, the Commission looks for information related to the technical considerations, proposed amendments and any other relevant and available background information related to the Building Code provisions in dispute.

The Policy/Program Analyst - Building Code Commission 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 TBI.

For disputes related to time frames, the Building and Development Branch's Technical Advisory Section is not involved in the Application and hearing process as the matter in dispute in these cases is not technical in nature. As such, the Policy/Program Analyst - Building Code Commission will schedule a tentative date for hearing at the same time that 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.

Note: The Policy/Program Analyst - Building Code Commission will provide the Applicant/Agent and Respondent/Designate with a copy of the TBI once it has been received.

Upon receipt of all the above noted information, the Policy/Program Analyst - Building Code Commission will offer a date for hearing and will notify the parties to the hearing in writing of the date, time, and location for the hearing. The Policy/Program Analyst - Building Code Commission will offer hearing dates in consideration of the availability of the parties, Members of the panel, the Technical Advisor and staff. Once a hearing date has been established and a Notice of Hearing is issued, the parties to the dispute 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

  1. The Chair or Vice-Chair will serve as chair of any hearing panel in which they participate. The Chair of the Commission will designate a Member who will be assigned as chair for hearing panels in which the Chair or Vice-Chair of the Commission do not participate.
  2. The hearing panel chair will introduce the hearing and address any preliminary matters to open the hearing.
    The chair will ask the parties if they have any objections to the jurisdiction of the Commission to hear the matter or whether there are any preliminary matters that should be addressed prior to the commencement of the hearing.
  3. Any preliminary matters raised by the parties will be addressed by the hearing panel before proceeding further with the hearing.
  4. The chair will request the that the Policy/Program Analyst - Building Code Commission 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 are any additional exhibits from either party that they would like to enter as evidence. 

    In addition to the exhibits submitted in the Application and Confirmation of Dispute, all additional exhibits pertaining to hearings should be submitted by email to the Policy/Program Analyst – Building Code Commission, with a copy to the other party no later than five business days before the hearing date. The Policy/Program Analyst – Building Code Commission will provide the additional exhibits to the hearing panel prior to the hearing. Additional exhibits presented on the day of the hearing will require the approval of the Commission hearing panel and the other party in order to be accepted.
  5. The chair will ask the parties and their representatives to introduce themselves. Staff attending the hearing will also be asked to introduce themselves.
  6. The chair will then introduce the panel and ask the parties to confirm the provisions of the Building Code in dispute, as described in the hearing notice.
  7. The chair will describe the procedure and order of the hearing.
  8. The chair will request the Applicant to state their case and call any witnesses, if required.
  9. After the Applicant has stated their case and examined their witnesses, the chair will request that the Respondent may cross-examine/ask questions of the Applicant and/or the Applicant's witnesses regarding their testimony. Following the Respondent’s questioning, Commission Members may ask questions of the Applicant and/or the Applicant's witnesses regarding their testimony.
  10. The chair will request that the Respondent state their case and call any witnesses, if required.
  11. After the Respondent has stated their case and any witnesses have given testimony, the Applicant may cross-examine/ask questions of the Respondent and/or the Respondent's witnesses regarding their testimony. The Applicant may then call any reply evidence. Following the Applicant’s questioning, Commission Members may ask questions of the Respondent and/or the Respondent's witnesses regarding their testimony.
  12. 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 TBI concerning the Building Code provision(s) identified by the parties as being in dispute and to respond to questions from panel Members and parties to the hearing.
  13. For hearings involving time frames, the Building and Development Branch does not participate in the hearing process as the matter in dispute in these cases is not technical in nature.
  14. The chair will request that the Applicant and Respondent provide final arguments and summarize their positions.
  15. The chair will ask the panel Members if they have any final questions for either party.
  16. The chair will conclude the hearing or, if panel Members feel it is appropriate, the hearing will be adjourned to be continued at a later date.
  17. If the panel Members determine that they require more information after a hearing has concluded, a request for further information will be sent to the parties via email from the Policy/Program Analyst - Building Code Commission.

G. Swearing or affirming of parties or witnesses

  1. Upon request by the Applicant or Respondent, 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

  1. Upon request by the Applicant or Respondent, the chair may consider issuing a summons to be served on a person to require attendance at a hearing.
  2. A request to summons a witness should be made in writing and submitted to the Policy/Program Analyst - Building Code Commission 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.
  3. 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 Commission, the summons shall be signed and issued.
  4. 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

  1. Any party seeking an adjournment should first seek the agreement of the other party to the hearing. If such consent is obtained, the party seeking the adjournment should contact the Policy/Program Analyst - Building Code Commission. The Policy/Program Analyst - Building Code Commission will then contact the Chair or in the Chair's absence the Vice-Chair, to determine 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.
  2. 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 Policy/Program Analyst - Building Code Commission at the earliest possible time.
  3. Adjournments are granted at the discretion of the Commission on the terms and conditions as determined by the Commission.

J. Decisions

  1. Members shall not participate in a decision of the Commission pursuant to a hearing unless they were present throughout the hearing (BCA s.24(8)).
  2. Except with the consent of the parties, no decision of the Commission will be given unless all Members present throughout the hearing participate in the decision (BCA s.24(9)).
  3. Pursuant to s.17 of the Statutory Powers Procedure Act, decisions of the Commission will be given in writing and the Commission will provide reasons for its decision.
  4. After the hearing panel renders a decision, the Policy/Program Analyst - Building Code Commission will:
    • provide a copy of the decision to the Applicant and Respondent, authorized Agents and Designate (if applicable);
    • file the decision in the Commission's electronic filing system;
    • send the decision to CanLII, a legal reporting website, for publishing; and
    • provide a copy to any person who requests a copy of the decision.
  5. The findings of fact at a hearing of the Commission will be based exclusively on evidence admissible or matters that may be noticed under s.15 and 16 of the Statutory Powers Procedure Act (BCA ss.24(7)).
  6. Panel decisions are site specific and only applicable to the particular Application. The Commission does not review panel decisions.
  7. Decisions of the Commission 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

  1. Inquiries from the public concerning Commission Applications, the status of Applications, or other administrative matters should be directed to the Policy/Program Analyst - Building Code Commission.

L. Conflict of interest

  1. Commission Members shall comply with the conflict of interest provisions in The Public Service of Ontario Act, 2006, and must declare a conflict-of-interest situation to the Chair at the earliest opportunity. In accordance with the Approved Rules for Public Bodies determined by the Office of the Integrity Commission of Ontario, Members must also meet the ethical standards set by The Conflict of Interest Rules in O.Reg 381/07.
  2. The Commission adopts the following three principles with respect to conflict of interest:
    • A 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; and
    • No Member will disclose confidential information obtained in the course of their duties to any unauthorized person or entity.

  3. The Commission defines conflict of interest as the following:

    Conflict of interest normally relates to a direct pecuniary interest of the appointed 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 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 Member.

  4. The following practices are adopted in respect of any conflict of interest: 

    Declaration of Interest
    A Member who believes they have an interest in a matter under consideration by the Commission shall disclose the nature of that interest 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 interest on the part of the Member.
    The Chair, as ethics executive, will ensure that any conflict of interest matters are dealt with in accordance with the Public Service of Ontario Act, 2006.  

    Quorum
    When a declaration of conflict of interest has been made in the course of the 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.

M. Abandoned Applications

  1. In cases where an Application is inactive for a period of 12 months due to the Applicant not responding to requests of the Commission for the information or documents related to the Application, the Commission will give notice to the Applicant that the Application may be closed if the information or documents are not provided. If the Applicant does not provide the requested information or documents, the Chair may determine an Application to be abandoned and close the hearing file.