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Values this chapter turns on
- to appeal an RCA, CBO or inspector order to court
- 20 days
- to appeal an RCA, CBO or inspector order to court
- for the Commission to hear an inspection timing dispute
- 5 days
- for the Commission to hear an inspection timing dispute
- after mailing that registered mail service is deemed
- 5th day
- after mailing that registered mail service is deemed
- email cutoff for same-day deemed service
- 5 p.m.
- email cutoff for same-day deemed service
When an applicant and an RCA disagree, where does the dispute go? This chapter covers the Building Code Commission, appeals to the courts, service of notices and orders, the Building Materials Evaluation Commission (BMEC), the Minister's binding interpretations and rulings, and alternative solutions. In almost every provision the Act lists the RCA alongside the CBO and inspectors, so an RCA's technical decisions are reviewable the same way.
Excluded: s. 22(1), 24(8) and (9), 26(2), 28.1(3) and (4), 29(2), (3) and (8), and Division C 2.2.1.1., 2.2.1.2. and 2.3.
Reviews, the Building Code Commission and appeals
BCA s. 22(2)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.: a CBO "may exercise any of the powers or perform any of the duties of an inspector."
Building Code Commission (s. 23). Members are appointed by the Lieutenant Governor in Council; three members are a quorum. Under BCA s. 23(3)BCA 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… a person is not eligible to be a member if they are a deputy minister, a public servant under Part III of the Public Service of Ontario Act, 2006, a municipal employee, or "in a prescribed relationship to a registered code agency". Division 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… prescribes three relationships: being registered as an RCA, being an officer, director, partner or employee of an RCA, or being engaged by an RCA to perform functions on its behalf.
Disputes (s. 24). 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)… covers three kinds of dispute:
| Clause | Parties | Subject |
|---|---|---|
| (a) | Applicant, permit holder or person given an order vs. CBO, RCA or inspector | Sufficiency of compliance with the technical requirements of the code |
| (b) | Applicant vs. CBO | Whether the CBO met the permit decision timelines in s. 8(2.2) or (2.3) |
| (c) | Permit holder vs. CBO, RCA or inspector | Whether the s. 10.2(2) inspection timeline was met |
Either party may apply. The Commission holds a hearing with notice to the parties. For (a) disputes it may substitute its opinion for that of the CBO, RCA or inspector; for (b) and (c) it may require compliance with the applicable subsection. Its decision is final (s. 24(4)). Hearings on (b) and (c) disputes must be held within the prescribed period: Division C 2.2.1.3.OBC Div. C 2.2.1.3. Time Period(1) A hearing to decide a dispute described in Clause 2.2.1.2.(2)(b) shall be held not more than five days after the Commission receives an application for a hearing in a form approved by the Commission. (2) The time period described in Sentence (1) commences on the day after the Commission receives the application… says not more than five days after the Commission receives the application, counting from the next day and excluding Saturdays, holidays and days Government of Ontario offices are closed. The application fee is $212 for 2025 and later (Division C 2.2.1.5.OBC Div. C 2.2.1.5. Application Fee(1) The fee on an application to the Building Code Commission under subsection 24(1.1) of the Act is $212, for 2025 and subsequent calendar years.).
Appeals to court (s. 25 and 26). 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 person aggrieved by an order or decision of the CBO, "a registered code agency" or an inspector (except a decision not to issue a conditional permit) may appeal to the Superior Court of Justice within 20 days after the order or decision is made. Key rules:
| Rule | Subsection |
|---|---|
| Judge may extend the 20 days, before or after it runs | 25(2) |
| A pending Building Code Commission proceeding on the same matter is terminated | 25(3) |
| Judge may affirm or rescind and substitute their opinion for that of the official, agency or inspector | 25(4) |
| Judge may refer technical questions to the Commission | 25(5) |
| The appeal does not stay the order, but a judge may stay it | 25(7) |
| Further appeal to the Divisional Court, on a question that is not one of fact alone | 26(1), (3) |
The Divisional Court may confirm or alter, direct the CBO, RCA or inspector to take authorized action, refer back, or substitute its opinion (s. 26(3)).
Service (s. 27)
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…: personally, by email to the last known email address, or by registered mail to the last known address or the person's agent for service.
| Method | Deemed served |
|---|---|
| Registered mail | Fifth day after mailing |
| Email sent by 5 p.m. | Day of sending |
| Email sent after 5 p.m. | Following day |
Either deemed date can be displaced if the person shows that, acting in good faith, through absence, accident, illness or other unintentional cause, they did not receive it until later. Note s. 13(5): s. 27 does not apply to a notice that a covered part is ready for inspection under s. 13(4).
BMEC, interpretations and rulings
| Body or tool | Key rules |
|---|---|
| BMEC (s. 28) | Research; on application, authorize innovative materials, systems or designs (use as approved is deemed not a contravention); recommend changes to the Minister. Must not act on a material the Canadian Construction Materials Centre has examined or intends to examine |
| Minister's interpretation (s. 28.1) | Written interpretation binding on everyone exercising powers under the Act (including RCAs) and everyone subject to it; made public by posting on the Building Code website and giving a written copy on request (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.) |
| Minister's ruling (s. 29) | Adopt amendments to documents adopted by reference, or approve alternative materials, systems and designs; notice in The Ontario Gazette; usable in all of Ontario unless stated otherwise; prevails over a conflicting BMEC authorization |
| Inquiry (s. 30) | Minister may designate a person to inquire into a failure in construction standards or enforcement |
Criteria for a s. 29(1)(c) ruling (Division 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…): consistency with a Building Code Commission decision on a s. 24(1)(a) dispute, with an approval in the whole of another province or territory, or with an approved revision of the 2020 National Building Code or National Plumbing Code.
Alternative solutions (Division C Part 2)
Division 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… requires the person proposing an alternative solution to give documentation to "the chief building official or registered code agency". The documentation identifies the applicable objectives, functional statements and acceptable solutions, and shows, using past performance, tests or other evaluation, that the solution will achieve the level of performance required. It includes assumptions, limiting factors, testing procedures, studies or performance parameters, including commissioning, operational and maintenance requirements. Where no published test method exists, tests must simulate or exceed anticipated service conditions or compare performance with a known acceptable material or system (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…).
The RCA must keep these records and copy them to the CBO (Division C 3.7.6.3.(2)(d)), and its quality management plan must include procedures for assessing alternative solutions.
Worked scenarios
Scenario 1. An RCA refuses to issue a plans review certificate because it says the proposed fire separation does not comply. The designer disagrees. The designer can apply to the Building Code Commission under s. 24(1)(a), or appeal to the Superior Court within 20 days under s. 25.
Scenario 2. A permit holder says the RCA did not inspect within the prescribed two days. That is a s. 24(1)(c) dispute; the hearing must be held within five days of the application.
Scenario 3. A retired CBO who now works part time as a plans reviewer for an RCA is offered a seat on the Commission. Being an employee of, or engaged by, an RCA is a prescribed relationship that makes them ineligible.
Common traps
- Thinking RCA decisions are final. They are subject to the Commission and the courts like any CBO decision.
- Forgetting that an appeal does not automatically stay an order.
- Mixing up the 5-day Commission hearing window (Div. C 2.2.1.3.) with the 5-day registered mail rule (s. 27(2)).
- Assuming BMEC authorizations outrank a Minister's ruling. The ruling prevails (s. 29(7)).
Chapter review
Chapter at a glance
One line per section: the idea to carry into the exam. Then the answers that most often catch candidates out.
- Reviews, the Building Code Commission and appeals
Building Code Commission (s. 23).
- Service (s. 27)
Either deemed date can be displaced if the person shows that, acting in good faith, through absence, accident, illness or other unintentional cause, they did not receive it until…
- BMEC, interpretations and rulings
Criteria for a s. 29(1)(c) ruling: consistency with a Building Code Commission decision on a s. 24(1)(a) dispute, with an approval in the whole of another province or territory…
- Alternative solutions (Division C Part 2)
The RCA must keep these records and copy them to the CBO (Division C 3.7.6.3.(2)(d)), and its quality management plan must include procedures for assessing alternative solutions.
Usual exam traps
- Thinking RCA decisions are final. They are subject to the Commission and the courts like any CBO decision.
- Forgetting that an appeal does not automatically stay an order.
- Mixing up the 5-day Commission hearing window (Div. C 2.2.1.3.) with the 5-day registered mail rule (s. 27(2)).
- Assuming BMEC authorizations outrank a Minister's ruling. The ruling prevails (s. 29(7)).
Practice this chapter
Questions on Disputes, appeals, authorizations and rulings, in the exam format, every answer explained and cited to its article. Sign in to start; a free account gets the free questions.
Code cited in this chapter
Based on the official 2024 Building Code Compendium on ontario.ca.
© King's Printer for Ontario, 2024. Reproduced with permission.
BCA s. 22 Review of inspector’s order
Open BCA s. 22 in the code viewer(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.
BCA s. 23 Building Code Commission
Open BCA s. 23 in the code viewer(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 or more of the members as vice-chair.
(3)A person is not eligible to be a member of the Commission if the person is,
(a)a deputy minister of a ministry;
(b)a public servant employed under Part III of the Public Service of Ontario Act, 2006;
(c)an employee of a municipality; or
(d)in a prescribed relationship to a registered code agency.
(4)The members of the Commission shall receive such remuneration and expenses as the Lieutenant Governor in Council may determine.
(5)Three members of the Commission constitute a quorum.
OBC Div. C 2.2.1.4. Eligibility
Open OBC Div. C 2.2.1.4. in the code viewer(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 person is an officer, director, partner or employee of a registered code agency, or
(c)the person is engaged by a registered code agency to perform functions under the Act on behalf of the registered code agency.
BCA s. 24 Dispute resolution
Open BCA s. 24 in the code viewer(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)between an applicant for a permit and the chief building official concerning whether the official complied with subsection 8 (2.2) or (2.3); or
(c)between a holder of a permit and the chief building official, a registered code agency or an inspector concerning whether the requirements of subsection 10.2 (2) have been met.
(1.1)A party to the dispute may apply to the Building Code Commission to resolve the issue.
(2)The Building Code Commission shall hold a hearing to decide the dispute and shall give the parties to the dispute notice of the hearing.
(2.1)A hearing to decide a dispute described in clause (1) (b) or (c) must be held within the prescribed period.
(3)The Building Code Commission shall, by order, determine a dispute described in clause (1) (a) and, for that purpose, may substitute its opinion for that of the chief building official, registered code agency or inspector.
(3.1)The Building Code Commission shall, by order, determine a dispute described in clause (1) (b) or (c) and, for that purpose, may require the chief building official, registered code agency or inspector, as the case may be, to comply with the applicable subsection of the Act.
(4)The decision of the Building Code Commission is final.
(5)Members of the Building Code Commission holding a hearing shall not,
(a)take part before the hearing in any investigation or consideration of the subject-matter of the hearing; or
(b)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.
(6)Despite subsection (5), members of the Building Code Commission may seek independent legal or technical advice but the nature of the advice shall be made known to the parties in order that they may make submissions.
(7)The findings of fact at a hearing shall be based exclusively on evidence admissible or matters that may be noticed under sections 15 and 16 of the Statutory Powers Procedure Act.
(8)Members of the Building Code Commission shall not participate in a decision of the Commission pursuant to a hearing unless they were present throughout the hearing.
(9)Except with the consent of the parties, no decision of the Building Code Commission shall be given unless all members present throughout the hearing participate in the decision.
(10)Documents and things put in evidence at the hearing shall, upon the request of the person who produced them, be released by the Building Code Commission to that person within a reasonable time after the matter in issue has been finally determined.
OBC Div. C 2.2.1.3. Time Period
Open OBC Div. C 2.2.1.3. in the code viewer(1)A hearing to decide a dispute described in Clause 2.2.1.2.(2)(b) shall be held not more than five days after the Commission receives an application for a hearing in a form approved by the Commission.
(2)The time period described in Sentence (1) commences on the day after the Commission receives the application and excludes Saturdays, holidays and all other days when the offices of the Government of Ontario are not open for the transaction of business with the public.
OBC Div. C 2.2.1.5. Application Fee
Open OBC Div. C 2.2.1.5. in the code viewer(1)The fee on an application to the Building Code Commission under subsection 24(1.1) of the Act is $212, for 2025 and subsequent calendar years.
BCA s. 25 Appeal to court
Open BCA s. 25 in the code viewer(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 days after the order or decision is made.
(2)A judge to whom an appeal is made may, upon such conditions as the judge considers appropriate, extend the time for making the appeal before or after the time set out in subsection (1), if the judge is satisfied that there is reasonable grounds for the appeal and for applying for the extension.
(3)If an appeal is made under this section in respect of a matter in which a question is pending before the Building Code Commission, the proceeding before the Commission is terminated.
(4)On an appeal, a judge may affirm or rescind the order or decision and take any other action that the judge considers the chief building official, registered code agency or inspector ought to take in accordance with this Act and the regulations and, for those purposes, the judge may substitute his or her opinion for that of the official, agency or inspector.
(5)A judge may refer a question 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.
(6)The procedure on the reference shall be the same as on an application under section 24.
(7)An appeal under subsection (1) does not stay the operation of the order or decision appealed from but a judge may, on such terms as are just, stay the operation of the order or decision until the disposition of the appeal.
BCA s. 27 Service
Open BCA s. 27 in the code viewer(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 a notice or order is served by registered mail, the service shall be deemed to have been made on the fifth day after the day of mailing unless the person to whom the notice or order is given or that person’s agent for service establishes that, acting in good faith, through absence, accident, illness or other unintentional cause the notice was not received until a later date.
(3)If a notice or order is served by email, the service shall be deemed to have been made on the day of sending unless,
(a)the document was sent after 5 p.m., in which case service shall be deemed to have been made on the following day; or
(b)the person to whom the notice or order is given or that person’s agent for service establishes that, acting in good faith, through absence, accident, illness or other unintentional cause, the notice was not received until a later date.
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OBC Div. C 2.4.3.1. Interpretations By Minister
Open OBC Div. C 2.4.3.1. in the code viewer(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.
OBC Div. C 2.4.2.1. Criteria
Open OBC Div. C 2.4.2.1. in the code viewer(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 be granted only if the approval is consistent with,
(a)a decision of the Building Code Commission in respect of a dispute described in clause 24(1)(a) of the Act,
(b)an approval of the use of the material, system or building design in the whole of another province or territory in accordance with the law of that province or territory, or
(c)a revision of the NRCC-CONST-56435E 2020, “National Building Code of Canada”, or the NRCC-CONST-56436E 2020, “National Plumbing Code of Canada”, that has been approved by the Canadian Commission on Building and Fire Codes.
OBC Div. C 2.1.1.1. Documentation
Open OBC Div. C 2.1.1.1. in the code viewer(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 2.1.1.2. or other evaluation that the proposed alternative solution will achieve the level of performance required under Article 1.2.1.1. of Division A.
(2)The documentation described in Sentence (1) shall include information about relevant assumptions, limiting or restricting factors, testing procedures, studies or building performance parameters, including any commissioning, operational and maintenance requirements.
OBC Div. C 2.1.1.2. Tests
Open OBC Div. C 2.1.1.2. in the code viewer(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 or system with a similar material or system that is known to be acceptable.
(2)The results of tests or evaluations based on test standards, other than as described in this Code, may be used for the purposes of Sentence (1), if the alternate test standards provide comparable results.