Disputes, appeals, authorizations and rulings

Review of orders and the Building Code Commission

Review by the official. "The chief building official may review and amend or rescind an order made by an inspector" (BCA s. 22(1)BCA s. 22 Review of inspector’s order(1) The chief building official may review and amend or rescind an order made by an inspector. (2) A chief building official may exercise any of the powers or perform any of the duties of an inspector.), and may exercise any inspector power (s. 22(2)).

The Commission. The Building Code Commission is appointed by the Lieutenant Governor in Council (BCA s. 23BCA s. 23 Building Code Commission(1) The Building Code Commission is continued under the name Building Code Commission in English and Commission du code du bâtiment in French and shall be composed of those persons appointed by the Lieutenant Governor in Council. (2) The Lieutenant Governor in Council may designate one of the members as chair and one…). Three members are a quorum. A person is not eligible to be a member if they are a deputy minister, a provincial public servant under Part III of the Public Service of Ontario Act, 2006, a municipal employee, or in a prescribed relationship with a registered code agency. Division C 2.2.1.4. defines that relationship: being a registered code agency, or its officer, director, partner or employee, or someone it engages to perform its functions (OBC Div. C 2.2.1.4.OBC Div. C 2.2.1.4. Eligibility(1) The following relationships to a registered code agency are prescribed for the purposes of clause 23(3)(d) of the Act as relationships to a registered code agency that make a person ineligible to be a member of the Commission: (a) the person is registered under Article 3.4.3.2. as a registered code agency, (b) the…).

What the Commission decides. Under BCA s. 24(1)BCA s. 24 Dispute resolution(1) This section applies if there is a dispute, (a) between an applicant for a permit, a holder of a permit or a person to whom an order is given and the chief building official, a registered code agency or an inspector concerning the sufficiency of compliance with the technical requirements of the building code; (b)… there are three kinds of dispute:

A party applies to the Commission, which holds a hearing on notice. For (a) disputes the Commission may substitute its opinion; for (b) and (c) it may order the official, RCA or inspector to comply. "The decision of the Building Code Commission is final" (s. 24(4)). Members must not investigate beforehand or talk to anyone about the matter without all parties present, but may get independent legal or technical advice if they tell the parties its nature (s. 24(5) and (6)).

Key Division C numbers:

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Appeals to court and service

Appeal to the Superior Court. "A person who considers themself aggrieved by an order or decision made by the chief building official, a registered code agency or an inspector under this Act (except a decision under subsection 8 (3) not to issue a conditional permit) may appeal the order or decision to the Superior Court of Justice within 20 days after the order or decision is made" (BCA s. 25(1)BCA s. 25 Appeal to court(1) A person who considers themself aggrieved by an order or decision made by the chief building official, a registered code agency or an inspector under this Act (except a decision under subsection 8 (3) not to issue a conditional permit) may appeal the order or decision to the Superior Court of Justice within 20…).

• A judge may extend the 20 days (s. 25(2)).
• Filing an appeal on a matter pending before the Commission terminates the Commission proceeding (s. 25(3)).
• The judge may affirm or rescind and substitute their opinion (s. 25(4)), and may refer a technical question to the Commission for a hearing and report (s. 25(5)).
• The appeal does not stay the order unless a judge orders a stay (s. 25(7)).

Further appeal. A party may appeal to the Divisional Court on any question that is not a question of fact alone (BCA s. 26BCA s. 26 Further appeal(1) A party to the hearing before the Superior Court of Justice under section 25 may appeal from the decision to the Divisional Court. (2) The Minister is entitled to be heard, by counsel or otherwise, upon the argument of an appeal under this section. (3) An appeal under this section may be made on any question that…).

Service. Notices and orders may be served personally, by email to the last known email address, or by registered mail to the last known address (BCA s. 27BCA s. 27 Service(1) A notice or order required by this Act to be served may be served personally, by email to the last known email address of the person to whom service is required to be made or by registered mail sent to the last known address of the person to whom notice is to be given or to that person’s agent for service. (2) If…).

In each case the person can show that, acting in good faith, they did not receive it until later because of absence, accident, illness or another unintentional cause.

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BMEC, binding interpretations and Minister's rulings

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Rules to remember:

• BMEC must not act on a material the Canadian Construction Materials Centre of the National Research Council has examined or intends to examine (s. 28(6)).
• If a BMEC authorization conflicts with a Minister's ruling under clause 29(1)(c), "the ruling prevails" (s. 29(7)).
• Notice of a ruling is published at least once in The Ontario Gazette (s. 29(4)).
• Interpretations are made public by posting on the Building Code website and by giving a written copy on request (OBC Div. C 2.4.3.1.OBC Div. C 2.4.3.1. Interpretations By Minister(1) Every interpretation issued by the Minister under section 28.1 of the Act shall be made available to the public, (a) by posting the interpretation on the Building Code website, and (b) by providing a written copy of the interpretation on receipt of a request for it.).
• A ruling approving an alternative must be consistent with one of three things: a Commission decision on a technical dispute, an approval of its use throughout another province or territory, or an approved revision of the National Building Code or National Plumbing Code (OBC Div. C 2.4.2.1.OBC Div. C 2.4.2.1. Criteria(1) Sentence (2) sets out criteria to be followed by the Minister when making a ruling under clause 29(1)(c) of the Act to approve the use of an alternative material, system or building design. (2) The Minister’s approval of the use of an alternative material, system or building design referred to in Sentence (1) may…).

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Alternative solutions (Division C 2.1.)

An "alternative solution" is a substitute for an acceptable solution (OBC Div. A 1.4.1.2.OBC Div. A 1.4.1.2.(1) Alternative solutionAlternative solution means a substitute for an acceptable solution.). Part 2 of Division C applies to all buildings (OBC Div. C 2.0.1.1.OBC Div. C 2.0.1.1. Application(1) This Part applies to all buildings covered in this Code. (See Article 1.1.1.1. of Division A.)).

The person proposing it must give the chief building official or RCA documentation that (OBC Div. C 2.1.1.1.OBC Div. C 2.1.1.1. Documentation(1) The person proposing the use of an alternative solution shall provide documentation to the chief building official or registered code agency that, (a) identifies applicable objectives, functional statements and acceptable solutions, and (b) establishes on the basis of past performance, tests described in Article…):

• identifies the applicable objectives, functional statements and acceptable solutions; and
• shows, from past performance, tests or other evaluation, that it will achieve the level of performance the code requires;
• including relevant assumptions, limiting factors, test procedures, studies or performance parameters, and any commissioning, operational and maintenance requirements.

If there is no published test method, tests must simulate or exceed expected service conditions, or compare the proposal with a similar material or system known to be acceptable. Other test standards may be used if they give comparable results (OBC Div. C 2.1.1.2.OBC Div. C 2.1.1.2. Tests(1) Where no published test method to establish the suitability of an alternative solution proposed under Article 2.1.1.1. exists, then the tests used for the purposes of that Article shall be designed to simulate or exceed anticipated service conditions or shall be designed to compare the performance of the material…).

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