Tuesday 15 September 1992

Building Code Act, 1992


*Chair / Président: Beer, Charles (York North/-Nord L)

*Vice-Chair / Vice-Président: Daigeler, Hans (Nepean L)

Drainville, Dennis (Victoria-Haliburton ND)

Fawcett, Joan M. (Northumberland L)

Martin, Tony (Sault Ste Marie ND)

Mathyssen, Irene (Middlesex ND)

*O'Neill, Yvonne (Ottawa-Rideau L)

Owens, Stephen (Scarborough Centre ND)

*White, Drummond (Durham Centre ND)

*Wilson, Gary (Kingston and The Islands/Kingston et Les Îles ND)

Wilson, Jim (Simcoe West/-Ouest PC)

Witmer, Elizabeth (Waterloo North/-Nord PC)

Substitutions / Membres remplaçants:

*Harrington, Margaret H. (Niagara Falls ND) for Mr Martin

*Lessard, Wayne (Windsor-Walkerville ND) for Mrs Mathyssen

*Mammoliti, George (Yorkview ND) for Mr Drainville

*Marchese, Rosario (Fort York ND) for Mr Drainville

*Marland, Margaret (Mississauga South/-Sud PC) for Mrs Witmer

*Perruzza, Anthony (Downsview ND) for Mr Owens

*Poole, Dianne (Eglinton L) for Mrs Fawcett

*Tilson, David (Dufferin-Peel PC) for Mr Jim Wilson

*In attendance / présents

Also taking part / Autres participants et participantes:

Harrington, Margaret, parliamentary assistant to the Minister of Housing

Parrish, Colleen, director, legal services, Ministry of Housing

Wildish, George, special assistant to the director, Ontario buildings

branch, Ministry of Housing

Clerk / Greffière: Mellor, Lynn

Staff / Personnel: Mifsud, Lucinda, legislative counsel

The committee met at 1008 in committee room 1.


Consideration of Bill 112, An Act to revise the Building Code Act / Loi révisant la Loi sur le code du bâtiment.

The Chair (Mr Charles Beer): I will call the meeting to order. We're resuming clause-by-clause on Bill 112, An Act to revise the Building Code Act. Members of the committee will recall we had completed up to the end of section 16, save for section 7, where we had been looking at clause 7(g). It had been suggested that we stay clause 7(g) and hence the whole section to see if we could come up with some wording that everyone would be comfortable with. We have that now; at least we have the Liberal motion on clause 7(g). I wonder if either Ms Poole or Ms Harrington --

Ms Margaret H. Harrington (Niagara Falls): Could I address it, please?

The Chair: Yes, Ms Harrington.

Ms Harrington: We have discussed this with our advisers in the ministry. I would ask if we could further stand it down until this afternoon. What we are doing this morning is calling the Toronto Area Chief Building Officials Committee, which had proposed our position to us. We do have some sympathy with the Liberal motion in the interests of streamlining the building industry and also making sure that affordable housing is enabled in any way it can. So that's what I would like to propose to the committee at this time.

Ms Dianne Poole (Eglinton): Certainly that would be satisfactory.

The Chair: All right, we'll stand that down then until later this afternoon.

Section 17:

The Chair: We will then move on to section 17. There is an amendment. The clerk has handed out a new package, but the single sheet for subsection 17(3.1) is the one that we should look at. Don't look at subsection 17(3.1) in the package. I'd ask Miss Harrington if she would bring that amendment forward.

Ms Harrington moves that section 17 of the bill be amended by adding the following subsection:

"No liability

"(3.1) Despite subsection 31(2), the crown, a municipal corporation, a county corporation or a board of health or a person acting on behalf of any of them is not liable to compensate the owner, occupant or any other person by reason of anything done by or on behalf of the chief building official or an inspector in the reasonable exercise of his or her powers under subsection (3)."

Ms Harrington: I would like to read into the record the reason for this amendment, which you do have before you.

"Section 17 permits a chief building official to take expeditious remedial action when he or she is confronted with a building in a very dangerous condition. This remedial action may be taken even before an order has been served on the person affected and this person has had an opportunity to appeal the validity of the order to a court under section 25.

"After taking the remedial action, the chief building official must, under subsection 17(6), apply to a court for confirmation of the order and recovery of sums expended by the municipality in remedying the situation.

"Should the court fail to confirm the order, the municipality may be concerned about its liability to compensate the owner or occupants of the property for losses arising from the municipality's remedial action. This potential liability may inhibit the chief building official from taking remedial measures under section 17, even though a public danger may exist.

"In order to provide some protection for municipalities when, in the public interest, they take immediate remedial action in such situations, it is proposed to exempt them from liability for taking the remedial action, so long as the action was taken in a reasonable manner.

"This will provide the same protection as is accorded to municipalities under subsection 31(24) of the Planning Act where, under circumstances similar to those in section 17 of Bill 112, the municipality may take emergency remedial measures prior to notifying the person concerned and prior to that person having an opportunity to appeal the order.

"The chief building official and inspector are not included in the proposed amendment as they already possess an immunity from proceedings for damages for acts done in good faith in the execution of their duties (ss 31(1) of the bill).

The Chair: Comments?

Ms Poole: Having just looked at the revised one, it appears there isn't a lot of change to what was originally proposed as an amendment by the government.

This would seem to be quite a reasonable protection for the municipality, because my understanding is -- and perhaps the parliamentary assistant or Mr Wildish could confirm this -- that these are only situations where the building poses an immediate danger to the health or safety of people. So we're talking about an emergency situation, health and safety, and this is just to enable the municipality to take corrective action very quickly without having to worry and get legal opinions over whether it's going to be sued and liable and this type of thing.

Ms Harrington: That is correct.

Ms Poole: I think, in the face of that, we will support it.

Mr David Tilson (Dufferin-Peel): I have no comment, although I have a question to Ms Parrish. I assume there's somewhere in the act -- I'm looking at subsection (2).

Ms Colleen Parrish: Of section 17?

Mr Tilson: Yes.

The Chair: Ms Parrish, why don't you come forward.

Mr Tilson: It's a very brief question.

The Chair: That's all right. I just think there may be a number. Why don't you just ensconce yourself at the table and then that way you don't have to keep moving back and forth.

Mr Tilson: Just out of curiosity, Ms Parrish, and I'm sure there's somewhere in the code, I just want to be assured there is, is there some section in the code or the act that tells the chief building official what service is?

Ms Parrish: Yes, there is. I'll have to --

Mr Tilson: I don't need to know, but by person or delivery or posting up.

Ms Parrish: Yes. I'll tell you what, over the break I'll pull out the section for you and you can see what it says.

Mr Tilson: I'm sure it's the usual section that's in most -- I don't need to look at it. That's fine.

The Chair: Any other comments? If not, shall the government amendment, subsection 17(3.1), carry?

Motion agreed to.

The Chair: Shall section 17 carry, as amended?

Ms Poole: I'm sorry, Mr Chair, isn't there a Conservative amendment?

The Chair: I apologize, I forgot there is a Conservative amendment, so we will withhold on the section. Mr Tilson, you have an amendment to subsection 17(8) which we will need to deal with before we deal with the whole section. Would you care to comment on that?

Mr Tilson moves that subsection 17(8) of the bill be amended by adding "and binding" at the end of "is final."

Mr Tilson: The rationale for that amendment, if I can find my notes, although if I find them I probably can't read them anyway, was that one of the delegations referred to a legal decision which questioned the effect of the legal interpretation of the appeal process and referred to a decision -- if you'll bear with me, perhaps I'd better find it.

The Chair: Please.

Mr Tilson: I think this was a recommendation of the Canadian Bar Association -- Ontario and it was at its initiative that we put the amendment forward. I don't know whether any of you have your CBA package and its comments on 17(8). They refer to a judicial decision, and maybe Ms Parrish could give her thoughts on that submission that was made by the Canadian Bar Association. They suggest that this wording be put in, and the representatives of the CBA indicated that:

"This is intended to mean that there is to be no right of appeal. The words `final and binding,' found in the Planning Act, 1983, which have been interpreted by the court in the Yorkville North Development decision, would be preferable, because the court found in that decision that the word `final' does not abrogate an appeal, whereas the words `final and binding' do."

I guess if that's the intent of what the bill is going to be doing, and this is a decision that came forward in the court as to making it clear what the intent is, we felt that perhaps that amendment should be made. I don't know whether Ms Parrish has any strong feelings about the Yorkville North decision, but I'd like to perhaps hear her thoughts.


The Chair: Ms Parrish, any strong feelings?

Mr Tilson: She probably hasn't even read it.

Ms Parrish: Actually, it's kind of a famous decision. I guess my concern about adding the term "binding" is that it creates, from my viewpoint, some sort of interpretation problems. For example, if you look at subsection 24(4) of the act, you'll see that you get exactly the same language. It says here that the decision of the Building Code Commission is final, so do we mean that it's final and not binding? But it's binding here.

My interpretation would be that all of these decisions are binding until they are overturned by another court and that the decision of the court is final and is not appealable except under judicial review. It's true that if you had a judicial review at the end of the day, the court could overturn that decision, but in the interim, all of these decisions are binding.

For example, the emergency order is binding until the courts say it isn't. My concern is, if you say this is final and binding and you don't say everything else is binding, then you suggest that it's binding and that people don't have to obey these orders until the court says, "This is final and binding."

I think that all of these orders and decisions are binding until a court comes along. I have to say I respectfully disagree with the interpretation of the Yorkville North decision as to essentially these sort of privative clauses, as they're called in the jargon, as to what prevents anybody else from looking at a case.

I think the magic word is "final," which deals with whether or not it's a final decision, but everything is binding, including this emergency order. My concern is, if you put "final and binding" here, you suggest that everything else is not binding and that you don't actually have to obey any of these orders until this court has agreed. Then later on, when you have exactly the same language in the commission where it says "final," if you don't put "binding" in there too, then people are going to say, "Well, we don't have to obey that either." The point we want to make here is that you must obey every order until the court says otherwise.

Mr Tilson: Obviously I don't feel that strongly about the issue. It was an issue raised by the bar people. What did the court say as to what those words mean? They didn't just make this up; obviously there's some rationale for that.

Ms Parrish: If you would like, I can obtain this decision and try and interpret it for you. I guess I just wouldn't interpret this case as standing for that, so narrow.

Mr Tilson: Perhaps we could set this down. Obviously if there is a problem that's been created as a result of this case, we should probably deal with it while we're going through these sections. Maybe there are other sections that need to be amended as well. The reason why we put this forward is that if this is a problem, now's the time to deal with it, as opposed to waiting and having some court tell us what it means.

Ms Parrish: Honestly, I don't think it is a problem.

Mr Tilson: I accept that, but perhaps, Mr Chairman, you have no objections to setting that down for a period of time to allow Ms Parrish to pull that report out.

The Chair: Ms Parrish, is that something, in terms of the judgement, that we could look at right after lunch?

Ms Parrish: We have to pull the case. I guess all I'm going to say is just that, again, I --

Mr Rosario Marchese (Fort York): I would like to hear Mrs Harrington on this in terms of response to the amendment, because if it's an issue of consistency, surely if we have no problem with the word "binding," then you make it consistent. The word appears in 24(4) and you say "final and binding." That's not a big deal.

It seems to me logical that a final decision is not necessarily "binding," which is what I think you're getting at, although I hear from Ms Parrish that "final" means "binding" or that all decisions are final until reversed by court, for example.

Ms Parrish: No. What I'm trying to say is quite the contrary. All the decisions are binding until a court overrules them. They're all binding decisions. They may not be final because they're subject to appeal, but they certainly are binding.

Mr Marchese: If all decisions are binding, then if you put "final and binding," then it's not a big problem to say "binding," if all decisions are final and binding. If it satisfies some people, then I wonder whether there are any problems. I wanted to hear, before we sent it down, whether that is useful to do.

Ms Harrington: We have had a look at it and we found it was not necessary to have it, from our point of view. I don't want to get tied up in this binding stuff for ever this morning, but if you do want to look at that one particular decision, maybe I could ask Ms Parrish. It's broader than this one other section 24.

Ms Parrish: Yes, it is, because it is suggesting that all these other orders that have been made are not binding. I think they are binding. They're all binding, they're just not final.

Mr Tilson: I'm not suggesting anything. I'm simply saying we had a delegation come forward with this suggestion. I think if the solicitor for the Minister of Housing says she respectfully disagrees, that's fine, but I would like her at least to have a second look at the report.

The Chair: Could I perhaps suggest, so we can move along, that if Ms Parrish could have a look at that over the lunch break, we could deal with that fairly expeditiously when we come back. So we'll just put aside 17.

Mr Marchese: We won't review the entire case.

The Chair: No, but I think it may just help if that can be noted. Let's move on to 18, and we'll come back to 17 once we've dealt with that.

Sections 18 to 20, inclusive, agreed to.

Section 21:

The Chair: We then come to section 21. There is a government motion. I would just like to note for all members, in particular the two opposition members who have also moved amendments to section 21, that we will be dealing first with the government motion. If that passes, it would then render the other amendments null and void. So if everyone would keep that in mind, the discussion on the government motion may encompass the other proposals as well.

Mr Tilson: With respect, there is a Liberal amendment which is adding a section which --

The Chair: Sorry, I didn't state that clearly enough. There could be an addition or an amendment to that. We'll go ahead with the government motion. I think your comment is appropriate that there are a couple that could be discussed because they amend or add, but let's deal with the government motion first.


Ms Harrington moves that section 21 of the bill be struck out and the following substituted:

"Warrant for entry and search

"21(1) A provincial judge or justice of the peace may at any time issue a warrant in the prescribed form authorizing a person named in the warrant to enter and search a building, receptacle or place if the provincial judge or justice of the peace is satisfied by information on oath that there is reasonable ground to believe that,

"(a) an offence under this Act has been committed; and

"(b) the entry into and search of the building, receptacle or place will afford evidence relevant to the commission of the offence.


"(2) In a search warrant, the provincial judge or justice of the peace may authorize the person named in the warrant to seize anything that there is reasonable ground to believe will afford evidence relevant to the commission of the offence.


"(3) Anyone who seizes something under a search warrant shall,

"(a) give a receipt for the thing seized to the person from whom it was seized; and

"(b) bring the thing seized before the provincial judge or justice of the peace issuing the warrant or another provincial judge or justice to be dealt with according to law.

"Expiry of warrant

"(4) A search warrant shall state the date on which it expires, which date shall not be later than fifteen days after the warrant is issued.

"Time for execution

"(5) A search warrant may be executed only between 6 am and 9 pm unless it provides otherwise.


"(6) Sections 159 and 160 of the Provincial Offences Act apply with necessary modifications in respect of any thing seized under this section."

Ms Harrington: The reason for this amendment is to bring the provisions for search warrants in Bill 112 into conformity with current developments in this area, as most recently reflected in the draft consultation paper called An Act to amend the Planning Act and the Municipal Act with respect to Residential Units and Garden Suites. The search warrant provisions for the Planning Act proposed in the consultation draft and those proposed for Bill 112 would be essentially identical and would thus help to contribute to uniformity and consistency across Ontario legislation in this area. Except for the requirement respecting the intention to seize evidence of an offence, the two pieces of legislation would be the same in their provisions respecting search warrants as the Provincial Offences Act, with which most municipal officials are familiar.

The Chair: Is there any further comment on that at this time? No. We'll move to Ms Poole.

Ms Poole: Mr Chair, I've just been advised that what was a Liberal motion, subsection 21(1.1), should instead be moved as an amendment to the amendment of this section. Would you prefer that I move that at this time or would you prefer to have discussion on the main motion first?

The Chair: I think the way we should do this, subject to the clerk, is that you should move your amendment --

Ms Poole: Then discuss the whole thing.

The Chair: Yes. Then we would vote on the amendment to the amendment and then on the amendment.

Mr Marchese: You've got it.

The Chair: Mr Marchese indicates that I've got it. Thank you. The Chair is learning quickly on the job.

Ms Poole moves that subsection 21(1) of the amendment be amended by adding the following subsection:

"Warrant to inspect

"(1.1) A justice of the peace may issue a warrant in the form prescribed by the regulations authorizing an inspector to enter upon the land specified in the warrant to carry out an inspection if the justice of the peace is satisfied by information on oath that,

"(a) there is reasonable ground for believing that it is necessary to carry out an inspection to determine whether an order should be made under this act or whether an order made under subsection 15(3) has been complied with; and

"(b) the inspector has been denied entry to the land, has reasonable grounds to believe that entry would be denied, has been obstructed or has been refused the production of any document or thing."

The Chair: Thank you. Just to remind members, then, we can discuss both, but we will vote on the amendment to the amendment and then on the amendment.

Mrs Yvonne O'Neill (Ottawa-Rideau): Mr Chairman, I think we should be describing it as it is. I think we need to say that section 21, as now presented, be amended as follows; that's not the way? We're dealing with an entirely new section. I don't know how we can talk about a section being amended when it's been totally wiped.

The Chair: But it hasn't happened yet. We are still discussing the government amendment, which is to change 21. But we haven't passed that, so it is an amendment and Ms Poole's at this time is an amendment to that amendment. If I understand the government, it's really substituting a new 21.

Mr Tilson: I think I'd prefer to deal with the government amendment first and the Liberal amendment second, because it's possible that members of the committee may be in favour of --

The Chair: That's fine. You can do that. I just meant if people wanted to.

Mr Tilson: That's fine. So we're discussing the government amendment?

The Chair: We're discussing both.

Mr Tilson: That's out of order. You can't do that.

The Chair: No. Again, the government motion is to replace what is in the bill with section 21. Ms Poole's motion is to amend that.

Mr Tilson: Well, that's fine. Let's see; we may not get past this government amendment. Somehow I think we will, but it's out of order, Mr Chairman.

The Chair: The first issue, though, that we'll have to deal with is that because Ms Poole's amendment is an amendment to the government amendment, we will have to vote. We can discuss both at the same time.

Mr Tilson: Mr Chairman, could I ask you to converse with the clerk, because I don't --

The Chair: I have.

Mr Tilson: You have done that? And the clerk agrees?

The Chair: I've been trying to follow the instructions on procedure. What I am told is that Ms Poole's is an amendment to the government amendment and that in the order of voting we must deal with Ms Poole's first, but that we can discuss both at the same time.

Mr Marchese: Mr Chairman, I think it would be useful to speak to the amendment to the amendment first and then speak to the main motion to substitute, otherwise it can be confusing. It would be much easier to speak to Mrs Poole's amendment first, then move on to the main motion.

Mr Tilson: I may support one and not the other.

Mr Marchese: That's fine.

Mr Tilson: How can we discuss an amendment to an amendment that hasn't even carried yet?

Mrs O'Neill: That's exactly what I say: It's totally illogical. I'm sure it's not according to the rules of order we have used in the past.


The Chair: Can we just pause for a moment?

Mr Tilson: Sure, we can pause, Mr Chairman.

The Chair: I recognize the issues in terms of the order of things. If this government amendment is passed, that is the end of section 21. So if there is an amendment to it, it must be moved prior to the passage of the main amendment. What we need to do, then, is to deal with both.

I'm in the committee's hands in terms of dealing with Ms Poole's amendment first, if we want to discuss that, and then discussing the government motion. But if we were simply to deal with the government motion and pass it, then we could not deal with Ms Poole's amendment.

With that, just so we can move on, Ms Poole, do you want to just set out your arguments with respect to your amendment to the amendment?

Ms Poole: Let me put it this way. When somebody moves an amendment or an amendment to an amendment, there's always an opportunity to explain what the rationale is behind it, so that is what I will do. Then, after that if members wish to deal with either, they would probably be free to do so.

Mr Tilson: On a point of order, Mr Chairman: I take the position that if we're dealing with Ms Poole's amendment now, then the proposed amendment by the government doesn't even exist at this stage.

The Chair: Both have been put on the table.

Ms Poole: They have to be.

Mr Tilson: You can't do that.

Ms Poole: That's the way the rules say you have to do it.

Mr Tilson: You can't have two amendments on the floor at the same time. I've never seen it done anywhere.

The Chair: I understand that one can and that we have, and I would ask Ms Poole to provide her explanation for her amendment.


Ms Poole: We did have some extensive conversations and debate yesterday about a warrant to enter and inspect. This is again an amendment on the suggestion of the Toronto Area Chief Building Officials Committee, which has suggested that the wording in Bill 103 would actually be far better than what is in Bill 112.

My understanding, from looking at this, is that this is not subject to the charter argument that the motion we brought forward yesterday was. Before we continue even debating this or the amendment, perhaps Ms Parrish could confirm that to the best of her knowledge there would be nothing that contravenes the charter in this particular amendment.

The Chair: In terms of your amendment to the amendment?

Ms Poole: In terms of my amendment.

Ms Parrish: The Liberal amendment to subsection 21(1)?

The Chair: Just to be clear here, there are two brief amendments to subsection 21(1) and then the one you read. But you're talking about the one you read into the record, the longer one.

Ms Parrish: I have to say I'd like to ask for a little bit more time to look at this. My sense is that there's not a charter problem with clause 21(1.1)(b). In fact, there are quite a few statutes that say if you've been denied entry you can get a warrant. I'm not sure; the opening flush raises the same issue around whether or not you can obtain an inspection warrant.

My view is that inspection warrants are not justified if you are entering a dwelling place or if you are obtaining evidence of an offence, that under those two circumstances the charter prohibits entry except with a search warrant and would permit entry for the purposes of inspection if it is not a dwelling unit and you are not obtaining evidence related to an offence.

Ms Poole: Is that the same, then, even if there's a warrant involved?

Ms Parrish: You have to issue a search warrant.

Ms Poole: It cannot be an inspection warrant?

Ms Parrish: There's no animal. There's a search warrant and there's warrantless entry, and that's all there is. So if you want a warrant, it's a search warrant. The only difference you're making under this statute, as you are under a number of other statutes, is that it used to be that the only warrant you could get was a search-and-seizure warrant, which meant that you said, "I want to search and seize something."

That kind of warrant is not terribly useful where you're trying to find out about a condition. If what you want to find out is that there's some sort of inadequate condition, you can't seize it. You can't seize the lack of exit or whatever you're unhappy about. What all these provisions are trying to do essentially is to create a warrant which is called a search warrant, in which you don't have to seize anything, because normally you have to seize something when you get a warrant.

There's no such thing as an inspection warrant. You can either have a search warrant -- and you can get a search warrant under certain conditions -- or you can have warrantless inspection. The act does authorize warrantless inspection, but only in very rare cases or defined cases such as where you've applied for a building permit and you're inspecting a site for that purpose.

Ms Poole: So then it is in your opinion, if I'm reading this correctly, that to have an inspection warrant itself, which doesn't exist -- if it did exist, under clause (a) it would be contrary to the charter?

Ms Parrish: It certainly would be contrary to the charter if you were trying to enter a dwelling place or if there were any possibility that you were going to charge someone with an offence. So the question is whether an order should be made under the act or whether an order has been complied with. The remedy for orders that are not complied with may be prosecution. In that case, you've got a problem.

Ms Poole: One last question for you, then. Under the government's amendment to subsection 21(1), where it says "warrant for entry and search," could that apply to a dwelling place?

Ms Parrish: Yes.

Ms Poole: That can apply to any place?

Ms Parrish: Yes.

Ms Poole: So you can have a warrant for entry and search but you can't have a warrant for inspection.

Ms Parrish: That's right.

Ms Poole: For some reason which seems to elude me, the charter has decided that if it is a dwelling place you can't enter to inspect it; but you could, with the appropriate warrant, enter to search it.

Ms Parrish: You cannot have a warrantless entry in a dwelling place and you cannot have a warrantless entry where you are attempting to have an offence proved.

Ms Poole: But this would be a warranted entry for inspection.

Ms Parrish: Yes. I will explain to you the rationale that has been given to me in these cases that have been under the charter. Bear in mind that the charter doesn't lay out all these rules. What has happened is that over time there have been cases and the courts have said various things. What the courts say about all these kinds of provincial offences, searches and so on is that the intrusion of the state has to be limited by the necessity of that intrusion. So what has tended to be the case is, for example, that the courts will say, "If you need to have entry to save somebody's life, we won't require the same standards of protection against intrusion because we all agree that saving somebody's life is a higher good." So it's a "reasonable" provision.

What the courts have said is that if you're trying to prosecute somebody because you have reasonable and probable grounds to believe that he or she has broken the law, then that intrusion is warranted because people are not supposed to break the law. If you have reasonable and probable grounds to believe that they have and there is evidence in that place, you should be able to enter. What's more, the courts say there's a higher degree of privacy afforded to dwelling units than to business places, so you have to obtain a search warrant if you want to enter a dwelling place.

What the courts have tended to say is that laws that authorize people to simply go and look around because they think something don't stand up to the sort of task of how reasonable the intrusion should be.

As I said, it's an evolving area of law. There have been a number of cases that have come out in the last few years that didn't exist three or four years ago. What the courts are trying to do is to balance the degree of intrusion. The courts have tended to say: "Where you have reasonable grounds to believe that people are breaking the law, then it's okay to go in. But if what you want to do is just go in and eyeball the place and people will not consent, we are reluctant to give those powers to provincial civil servants because we're not dealing with the kind of situation that warrants that kind of intrusion." I should say that in reading the CBAO brief, it says the same thing.

It's really a question of balancing. Where we're dealing with emergency cases, I think you can go ahead. Where you're just dealing with sort of a desire to go in and look around, I think you've got a problem.

Ms Poole: Is it mitigated by the fact that it's necessary to have reasonable grounds before you can get this warrant to inspect?

Ms Parrish: As I said before, I think the courts are more likely to uphold provisions that say you have reasonable and probable grounds to believe that there's an offence and that there's evidence of the offence, because people are not supposed to disobey the law. So what the courts would say exactly about a provision like this, I'd have to say I think it's on the grey line.

The question is, what is an appropriate level of intrusion that the courts will support? If we give municipal inspectors laws that will be struck down, we don't give them any favour. That is, they'll have something they can't use. As I said, there have been cases that would indicate that in general the amount of intrusion you've got to have has to be justified, and if you've got no offence and no reasonable grounds to believe you've got an offence, I think you're really in a grey area. But I can't guarantee it. I have to be honest and say there hasn't been enough law. There have been some cases, and the courts are pretty sympathetic to the rights of individuals versus the rights of the state to intrude.


Ms Poole: It would seem to me, if we are running up against the charter argument again, that it is no use putting into the bill something you have reasonable and probable grounds to suspect may be struck down, so I will withdraw the amendment to the amendment.

The Chair: All right, the amendment to the amendment is withdrawn, which removes other points in dispute. We will continue to deal with the government amendment. Further discussion on the government amendment?

Mr Tilson: The government amendment is an interesting one. It looks to me like a carbon copy of the search warrant provisions in Bill 121, which is the rent control bill. That section got me all excited then and it gets me all excited now because it's very broad. At least, I believe it's very broad.

The first issue is, it says, "authorizing a person named in the warrant." I don't know what that means. That could be anybody. Is it the building inspector, the chief building official? Is it the building official's secretary? It could be anybody. Can anybody go and get one of these things?

The second issue is, it says they can "enter and search a building, receptacle or place." That may not necessarily be the building in question. It may mean that one is looking for records. The same arguments were made during the Bill 121 arguments. Essentially, for example, someone's records, the owner of the building's records, if that's what you're looking for, perhaps the plans, it could be anything, could be kept in someone's house, someone's home, another building, another building across town, a person's home across town, the owner's home across town, and they could literally go into his private home or any other building. So it's very general.

If a justice of the peace is satisfied that an offence under this act is committed, I guess that is specific, but clause 21(1)(b) certainly talks about the building, receptacle or place. Again, the same argument applies that it could be anywhere, it could be any building, it could be anybody's house, which may be really an unwarranted search. You may believe that the records aren't kept in the person's building that is under review; they may be kept in someone's house. They can go into someone's house with this order.

Subsection (2) says they can seize anything. They go in the house; they could find something that's interesting. It's like, "We're going to shoot first and ask questions later." It's like a fishing expedition of great magnitude. I guess it's just that the very unrestrictive provisions of this section enable someone to get a warrant to search something or some building, not necessarily the building we're looking for.

Clause (3)(b) says they've got to bring the things seized to the judge. It doesn't say when.

With due respect, I hope Ms Parrish didn't prepare it. It's a very sloppily prepared section. I say that with due respect, because it's the same section that came forward in Bill 121.

Mrs Margaret Marland (Mississauga South): I'm just suggesting Ms Parrish might like to say she didn't.

Mr Tilson: I'm sure she will; you're quite right. Mr Chairman, Ms Marland has said that perhaps Ms Parrish would like to say that she didn't prepare it. In fact, it's improper for me to say that, but I would like some comments from Ms Parrish on those comments I've made as to whether or not she believes -- I think we had this out before when we were discussing Bill 121, but perhaps we could have it out again.

Ms Harrington: Could I make a brief comment first? Your comments with regard to seizure under subsection (2): It says, "to seize anything that there is reasonable ground to believe will afford evidence relevant to the commission of the offence." So it's not just anything; it's quite specific. You have to convince the judge that there is reasonable ground here.

I want to ask, with regard to Mr Tilson's concern about going into another building or into some home to get records, whether or not that's a concern for you, Mr Wildish.

Mr George Wildish: I don't know if there's been a record of this kind of occurrence in the past, but you raised the point that material -- samples, drawings, whatever -- about a building may be stored somewhere else. I can imagine that the pursuit of this information may require going to someplace other than the actual dwelling. I can think, for example, of going to the architect's or the engineer's office, if that's where the evidence is located and the only way to get it would be to enter such a place.

Mr Tilson: It could be anywhere. It could be an engineer's office, it could be a law office, it could be an accounting office, a basement apartment. Interesting ramifications, Mr Wildish; that's all I'm saying. I believe they're very serious and we should consider them.

Ms Harrington: I'm just pointing out to you that this does not differ from what we have done in the past.

Mr Tilson: Oh, I think you're being consistent, Mrs Harrington. No question about that. I feel as concerned now as I did with Bill 121. You are most consistent.

Ms Harrington: We're talking way before Bill 121. I'm wondering if Ms Parrish would like to comment on the drafting of this.

Ms Parrish: I'd like to comment on the substance. I didn't in fact prepare this amendment, but all the government amendments, of course, are exceptionally well drafted.

Mr Tilson: I apologize. I get all excited at times like this.

Ms Parrish: This provision is not actually identical to that in Bill 121. There are differences. For example, in Bill 121 there is a system for the establishment and appointment of inspectors, and only inspectors can get these warrants and so on. In this case, my understanding is the reason it is a little bit more open is that, as you know, different municipalities enforce their building codes with different personnel. So if we said it had to be an employee of the chief building official or it had to be this or that, you'd have a problem, because each municipality does this a little bit differently.

But clearly, the justice of the peace will authorize that person, and the person has to be authorized personally, so it will say, "I authorize Colleen Parrish, assistant building official, to do this." So the JP does go through a process of ensuring that not anybody wanders in.


Mr Tilson: Excuse me. How do we know that?

Ms Parrish: Because the warrant is in a prescribed form, and the warrant, in any prescribed form I've ever seen, says "name of person." The JP looks for that and won't issue a search warrant unless those kinds of protections are there. That's why you go before a JP.

Mrs Marland: Can it name the Minister of Housing or a delegate, and then we don't know who's going in?

Ms Parrish: It has to be a person named in the warrant. So it has to be Colleen Parrish and it can't be George Wildish who enters. It has to be Colleen Parrish who enters. There is a process of identifying the person.

It is true that you could enter an accounting office or an architectural office. That is true. That's because you don't want people to be in the position where they can evade enforcement of the law by giving all their documents to their architect, for example. But first of all I have to say that I have reasonable and probable grounds to believe that an offence has been committed, ie, that you haven't built according to your filed plans, for example. Secondly, I have to say that I believe entry into the architect's office will give me evidence of the offence, ie, that they didn't build according to the drawings.

So it is true that you could enter into other than the subject building in order to obtain this evidence. If you couldn't, you probably would have a lot of difficulty enforcing these provisions, because people would just learn to hide all their documents in places you could never get search warrants for.

Mr Wayne Lessard (Windsor-Walkerville): It's been my experience that the granting of search warrants is something that's taken very seriously by justices of the peace and that they're not granted frivolously. In fact, if there was any problems that has been indicated to us by the people who've made submissions before this committee, it's been that it's probably more difficult to get a warrant than it is easy to get one. I think that's something we need to keep in mind.

I think it's interesting that we're having this debate. I think it indicates some of the difficulties we have in balancing the rights of individuals to privacy and the ability of building officials to get information about offences, because before we had this debate about the possibility of building officials going on fishing expeditions, we were debating that we should have the power for building officials to go on fishing expeditions. So we're still dealing with the same issue and it's very difficult to resolve. That's a fine line that we need to keep in mind when we're debating these provisions.

There are some changes with respect to what was in the original bill and what's been proposed here and I wanted to ask about some of the changes I see. One of them in the original bill was that there was the ability to have police assistance in the execution of the warrants, and I don't see that in this section.

There was also a provision that there didn't need to be any notice to the person who was the subject of the search warrant in the process of getting the warrant, and there was another provision in the original bill that dealt with making copies or extracts of documents and then returning the documents. However, the final subsection of the amendment refers to sections 159 and 160 of the Provincial Offences Act, which I don't have before me but may address some of those concerns as far as procedure is concerned. I wonder if you could comment on those items, Ms Parrish.

Ms Harrington: If I could comment briefly and then turn it over to Colleen, what has been happening over a number of years, as you may be aware, is that the Attorney General has been looking at legislation in all ministries with regard to the issuance of search warrants. So this is an evolving process and it's been changing very recently.

To my knowledge, what we have done, in this change right now, as I've explained, is make it in line with the draft consultation paper on changing the Planning Act with regard to the residential units, that is, apartments and homes, so that both procedures will be the same. That's why we've changed in the last short while. Ms Parrish, would you comment further.

Ms Parrish: For example, one of the changes that has been made from the last draft changes the old provisions which said that you could execute a warrant at any reasonable time to say that you can only execute between 6 and 9. That's a change and that's part of the attempt to be more consistent and to ensure that people are not executing warrants in the middle of the night and so on. In the Rent Control Act, it says 7 to 9; that's a small change there.

Mr Lessard: I was asking about the assistance of the police.

Ms Parrish: The general rule is that you can use reasonable force, that the force has to be commensurate with the thing you are doing. For example, you can open a door; that is reasonable force. I believe that calling upon police officers for assistance is no longer done in provincial offences. Regarding the use of force, the law is that it has to be reasonable force in the circumstances. To be blunt, you can't go around kicking down doors and so on in order to get architectural drawings. You can certainly open doors. You can certainly unlock doors and do things of that nature.

Mr Lessard: So you can call for police assistance if you think it's required.

Ms Parrish: Yes, if you're dealing with an emergency case -- remember the emergency provisions we have where we're concerned with life and health and safety and so on -- then it would be reasonable. But the courts are always on the lookout for the unreasonable use of force in proportion to the activity you're trying to prevent. It's all right if you're dealing with health and safety and imminent danger; if you're not, you have an issue of unreasonable force.

Mrs Marland: I too have a number of concerns with this section. For example, if the warrant permits the person named to seize anything, does it also, under law, give the person whose property is being seized the opportunity to copy something before it's taken? It says here that anyone seizing something has to give a receipt for the thing seized to the person from whom it was seized. But I can imagine a person saying, "I've got a number of files here and I'm giving you a receipt." I wonder what kind of protection is built in here for the public. Is the receipt going to document what is in those files? After my personal belongings are seized, will I know I'm going to get them all back or will I even know in detail what was seized?

It may be that a number of my files or a number of my bookkeeping records are taken. If I have a stack of bills for work that has been done on my building, I'm quite sure the receipt is just going to say "a number of bills." Yet it may well be that in there is a bill that is very important to my argument, my defence, and if they're going to seize the bill and it is lost, then my important piece of evidence might also be lost. I don't mind them coming in and demanding that I give them a copy of something, as long as I retain the original.

You can imagine some of the offices, if they are offices at home or offices in a commercial building -- I bet if we walked out of this committee room and went to our own offices, we would all find that we all have piles of this, that and the other all over the place. The reason we have those piles is because we know there's something in there that we need and we haven't had the time to go through the pile to retrieve, keep and file those items we need. Agreed? Don't we all do that? It stands to reason the property owner, for the most part, probably works the same way.

I'm sure the receipt is not going to detail every single piece of paper they take out of the office, so I have a lot of concern about the section. It looks very clean. It looks like they're only going to seize something that's relative evidence and they're going to give a receipt. My point is that I may not even recall what, from my defence point of view, is a relevant piece of evidence that was in there, yet when I start looking for it, I'll recall that it was in the pile that was seized.


I don't mind a warrant, or as I said yesterday, even having an inspection without a warrant. If this section was just to come in for an inspection, then I wouldn't have a concern about it, because the inspection is to find out if an offence is being committed, but when we get into searching and then seizing property, I do have a lot of concern about it.

I'll tell you something else that ties into this which I also have a lot of concern with. I should really wait till Ms Harrington comes back in, because it's regarding the comments she made yesterday.


Mrs Marland: Oh, you're here. Sorry. I thought you had gone out of the room.

In your opening remarks yesterday, Ms Harrington, on page 2, you talked about first, second and third points. At your third point, I got quite excited, because for a minute I thought you were going to answer my concerns about existing buildings, but in fact you go on to say, "I'll give you a few brief examples of the changes we propose for the committee's consideration." The second change you refer to here is, "The provision on search warrants has been altered to conform with the search warrant provision provided in" -- guess what? -- "the upcoming legislation concerning apartments in houses." What does that mean to us? We haven't seen the legislation. It's "upcoming legislation concerning apartments in houses." That something is upcoming doesn't give me any comfort that it's right, that it's fair or that it will work.

My concern about the provision of these search warrants is that they're just a little too powerful, based on the way they're executed. I think the public has to be protected. I think inspection has to be permitted. I'm concerned with the wording as it stands, unless there could be some assurance given to me that when you come in and seize my property, even if you follow me to a copier, you allow me to copy my material before you take it out from my place of operation. Would you consider that?

Ms Harrington: Letting you get to a copier? Is that it?

Mrs Marland: Would you consider permitting me to record, either through a copier or make handwritten notes, what it is that you're taking of my property before you take it, even, by necessity, if it's a lot of detail?

Ms Harrington: I'll let Ms Parrish comment on that and how it actually works in practice. But I do want to recommend to you Apartments in Houses, the discussion paper, and you will see the section here on search warrants. I'm sure you appreciate the consistency and how important that is within different pieces of legislation. I hope that is a positive step, to have consistency. Ms Parrish, would you like to comment with regard to copiers?

Ms Parrish: Yes. I think to some degree Mrs Marland and Mr Lessard were asking some of the same questions. Some of the answer is given in the sense that sections 159 and 160 of the Provincial Offences Act apply to these search warrant provisions. Section 159 provides that if you seize something, such as a record, you must bring it before the justice of the peace, and then the justice of the peace says what you can do with it. You have to have a pretty detailed list, because the justice of the peace will require you to have a detailed list.

The justice of the peace can order you to authorize examination or testing, for example, if you're seizing insect samples, paint samples or in the reproduction of documents. Then you have a limited period in which you can maintain that material, which is no more than three months unless you come before the JP again. In addition, a person whose objects have been seized has the right to go before the justice to ask for a reproduction of any of the documents or testing of any of the material that's been seized. So there is a process.

I know that people who do seizures often allow people to copy the documents while they are there. Sometimes they seized things when people weren't there or the right people weren't there or they didn't know what they wanted to copy. But you can go before the JP and require that the material is copied.

There are also a number of powers here by which the JP can order the material to be returned, and the person whose material has been seized can make all these applications to the JP. There are certain restrictions in section 160 that deal with documents that are held by lawyers in solicitor-client privileged situations.

Mrs Marland: But you can keep it for three months. It may be income tax filing time, and I may be penalized three months' interest for late filing and an extra charge for late filing and everything else, but you're still allowed to keep my files, my records, for three months?

Ms Parrish: No, only if you have an order from a JP. The JP has to consider having regard to the nature of the investigation and so on. In addition, you can ask the JP to have all of this material copied. It's hard for me to imagine that the JP would deny you the right to have this material copied. Why would they?

Mrs Marland: Ms Parrish, when that material is taken from my house or my office, is it put in a sealed envelope and is it then opened in front of the JP or can it be opened somewhere else and material misplaced or lost? What kind of control is there? Do they just come in and scoop it all up and walk down the hall and out to the parking lot on a windy day, or is there a process whereby it's put in sealed envelopes and identified as my material and not opened until it is in front of the JP?

Ms Parrish: The Provincial Offences Act and this act do not authorize those kinds of procedures. Certainly, when you do training of inspectors, you train them in these kinds of prudent behaviours. The reason is partly because of the desire to maintain the property of others, but also because you want to be sure that you can establish that this evidence is in fact the evidence which you have seized. So people who seize evidence have their own reasons for wanting to make sure that this is their evidence and not evidence that they might have found blowing around the parking lot. They are trained.

It would be untruthful to say that it would be impossible that people could follow bad practices. There's no guarantee that everybody will be competent, but certainly people are counselled and trained to maintain this evidence appropriately because if they don't they probably will have trouble proving the offence and that's why they seek this stuff to begin with. So they have their own reasons for wanting to maintain these records in good shape.

Mrs Marland: Or I might have trouble proving my defence because one of the most important invoices as to a major cost that I have had has now been lost between my office and the JP's office, if I haven't been allowed to copy it. I think that's very serious.


Ms Parrish: I certainly cannot comment on whether or not people deliberately lose evidence.

Mrs Marland: Ms Parrish, that last comment you made, you don't want to comment on whether people would deliberately lose something. Nowhere in my questioning am I suggesting that anything is done deliberately. I'm not suggesting that. I'm saying it's possible, knowing how some files are put together and some records are kept in the individual's office or place of operation, that something can very easily be misplaced or lost -- not deliberately, I wasn't suggesting that -- by the person seizing the evidence. I'm simply being very clear about the fact that it may be very important to me and because you've come when I'm not there or my staff aren't there and I haven't had a chance to copy that material, then, wow, it's gone.

The Chair: Thank you. I have Ms Poole and Mr Tilson. I would perhaps just remind members, it's 11:20 and we are at section 21.

Ms Poole: I'll be quite brief, Mr Chair, because Mr Lessard brought up the one point about the police officers who had been removed, which I think has been answered satisfactorily.

The second one I was going to ask about was the specificity of the time for execution which has now been 6 to 9, which Ms Parrish had touched on. Quite frankly, I would be much more comfortable, if you are going to specify hours, that it would say 7 to 9, the same as in the Rent Control Act.

There's something very Gestapo-like to be woken up at 6 in the morning, when usually in Canada it's dark, by somebody banging on your home demanding entry with a search warrant. I think, while there are undoubtedly many people who do work shift work, most people are still abed at 6 o'clock in the morning or very close to waking up. Would it not be more reasonable to go with the 7 to 9? Is there any particular reason why you made that the terrible hour of 6 am? Particularly when it applies to dwelling places to as well, right?

Ms Parrish: My understanding is that 6 to 9 is the sort of standard provision that's being used in all the search warrant laws as they are changed in Ontario. Under the Rent Control Act we did stick with 7 to 9 because most of the inspections we have under that act involve residential units or offices in residential buildings or whatever, so we felt there was some justification to deviate from the norm; whereas in a lot of cases the inspections and so on and seizures may involve seizures on building sites and, as you know, if you've ever had a building site nearby you, they're certainly on the job early in the morning.

I guess it's just a line-drawing exercise. I have to say that in general the government is using 6 to 9, but I can't say that 7 is not right or 6 is not okay. I think it's simply an attempt to have greater consistency. Certainly under the Planning Act I think it will be 6 to 9, so if it's all the same folks doing the inspections it's sort of easier if they all have the same rules in force, because otherwise they'll get confused. That's the best answer I can give you.

Ms Poole: Consistency is a good argument. I guess my only concern is the fact that existing buildings are now brought under the building code for all sorts of reasons, so it's not only new construction where you want to be able to go in there while construction workers are on the site and somebody's around. Maybe the question for Mr Wildish would be whether he would anticipate that this section would be primarily used for non-residential structures or about the search warrant provisions. In the best opinion you might have on the subject, do you believe it would be primarily used for non-residential structures?

Mr Wildish: We usually have very little trouble getting into non-residential places. Industrial buildings, commercial buildings -- there's not much sensitivity about it and we get into those without a problem. It's when you enter a dwelling that we have the warrant problems. So no, I would say it is mainly for entering private dwellings that you have to have a warrant and hence this would come up.

I might point out that the "time for execution" phrase, (5), does provide for 6 am and 9 pm, unless it provides otherwise. If there's any reason why the judge wanted to restrict 6 am and make it only between 7 and 9, I presume he could do so, or he could extend it to 5 and 10, if there was some good argument for doing so. Ms Parrish may wish to comment on that, but I would think freedom was there under (5).

Ms Poole: So there would actually be no problem with making this consistent with the Rent Control Act, which primarily deals with residential dwellings, if this is also to make it 7 to 9, unless it provides otherwise. It would mean that if it was necessary, because somebody left for work at 6:30 every day and he or she wanted to be there before the person left, the order could provide otherwise. I'm just a little uncomfortable with that. I don't think the government would accept a friendly amendment to 7 to 9, but I'd be happy to propose it if that's possible.

Ms Harrington: From what Ms Parrish was saying, I'm not sure it's important to be consistent with all the other pieces of legislation or whether it would be more important to be consistent with the Rent Control Act. What is your legal opinion? It would be most helpful.

Ms Parrish: I think probably the act you want to be the closest to is the Planning Act, because it's usually the same folks who enforce both statutes. The people who enforce the Rent Control Act are provincial civil servants and, except in unorganized territories, they don't enforce the building code and they don't enforce the Planning Act. So the consistency I think is probably of the greatest utility is with other statutes administered by municipal staff, which would be primarily the Planning Act.

Ms Harrington: I would like to hold with that then.

Ms Parrish: Ms Poole is certainly right in saying that a JP could say: "I won't issue a warrant for 6 o'clock in the morning. I will only issue a warrant for 9 to 5." They can do that and I've seen cases where they've done that, but, as I said, it's a line-drawing exercise. It's just an attempt to say at some level that searching people's houses in the middle of the night is not acceptable as a general rule.

Ms Poole: Could we have winter hours, when you know it's going to be dark at 6, during daylight?

Ms Parrish: We used to have it during daylight and that created a lot of problems, because warrants were always being struck down. There would always be this big argument --

Ms Poole: Particularly in Norway.

Ms Parrish: -- about whether there was daylight. Was there daylight when it was raining?

Mr Tilson: I'll put my concerns on the record. I'd only like to repeat the submission made by TACBOC, which agreed with me that perhaps the section is too broad, and this is, of course, the original proposed amendment. Ms Marland has made some reference to this, but our position is that a warrant to inspect, as put forward in the previous government's bill, would be a more positive approach.

We agree with the delegation and that a warrant to inspect will be much more appropriate, as opposed to the general search warrant, because you get into all of these areas of concern that Ms Marland has raised. I don't think that many of those issues would develop if it were a warrant to inspect, and that's what we're trying to do. I have no hesitancy in saying that where you believe an offence has been committed -- it's getting very quasi-criminal in the whole approach. I think what we are trying to do is to inspect these buildings.

I would hope that the government would reconsider its position and support the section that was in the old Bill 103, which is a warrant to inspect. So we will be opposing the proposed amendment.


The Chair: I would then move the amendment. Shall the government amendment to section 21 carry?

Mr Tilson: A recorded vote.

The Chair: We will have a recorded vote.

The committee divided on Ms Harrington's motion, which was agreed to on the following vote:


Harrington, Lessard, Marchese, Perruzza, White, Wilson (Kingston and The Islands).


Daigeler, Marland, Poole, O'Neill (Ottawa-Rideau), Tilson.

The Chair: The government amendment is carried. Because of that, the other proposed amendments to section 21 are out of order. I would then ask, shall section 21, as amended, carry? All in favour? Opposed?

Section 21, as amended, agreed to.

The Chair: Shall section 22 carry? Ms Marland.

Mrs Marland: The problem with declaring that the following motions were out of order as a result of the government amendment is that our amendments do not get in the record. I'm just wondering where the Progressive Conservative amendment, asking to insert after "warrant" in the 10th line "for inspection," is actually out of order. It's not changing the government motion and it's not changing the bill, except by addition. In other words, it's not contrary to the motions that have been passed.

The Chair: My understanding, Ms Marland, is that because those amendments are to the bill, they are therefore, with the passage of the government amendment, out of order. They would have to be, as in the way Ms Poole's was done.

Mrs Marland: Okay. The government moved, "That section 21 of the bill be struck out and the following substituted." The government has substituted a whole section, correct? So why is it out of order for us then to move a motion that says that subsection 21(1) of the bill now be amended -- after "warrant" in the 10th line "for inspection"? Is it because the 10th line is the wrong number of lines?

The Chair: It is because the motion you were making was to the bill, not to the amendment. You would have had to move that to the bill before the amendment we passed had been passed, in the way Ms Poole did.

Mrs Marland: Yes, thank you, Mr Chair. I accept that explanation.

The Chair: Thank you. I appreciate your indulgence of the Chair.

Mrs Marland: It's too bad we didn't jump to move it, though, before we voted on the government replacing its section. I guess that's what we should have done.

Sections 22 to 24, inclusive, agreed to.

Section 25:

The Chair: There are two motions to subsection 25(1), one by the Liberals and one by the Conservatives. They are the same motion, so we will deal with them together. There is also a Liberal motion to 25(7). We'll begin, then, with Ms Poole and 25(1).

Ms Poole moves that subsection 25(1) of the bill be amended by striking out "who considers themself" in the first and second lines.

If you would like to address that, as I noted, the Progressive Conservatives have a similar motion.

Ms Poole: In fact, Mr Chair, I think the PC 25(1) is identical, if I'm not mistaken. Here we go again.

Right now, subsection 25(1) reads:

"Any person who considers themself aggrieved by an order or decision made by an inspector or chief building official under this act or the regulations, except a decision not to issue a conditional permit under subsection 8(3), may, within twenty days after the order or decision is made, appeal the order or decision to a judge of the Ontario Court (General Division)."

The particular instance that concerns this section was brought forward to us by the Price Club. Its submission, which in the opinion of a number of people on this committee was quite well founded, was that this section is too broad by allowing anybody who considers himself aggrieved by an order to actually appeal. Its concern is that any person can actually consider himself aggrieved. It doesn't have to be a person whom a reasonable person would consider to be aggrieved; it wouldn't have to be a judgement of the court. Anybody who considers himself aggrieved could actually appeal. It seemed to me, once it was pointed out, that it was a very broad section and very subjective.

A person walks her dog by a house once a month, for instance. The owners have received a building permit because they're putting in front-lot parking. None of the neighbours have objected, but this woman might object because the dog uses it as a watering lot the one time a month she walks that route. So she can consider herself to be aggrieved or her dog to be aggrieved. That's a silly example, but it is a situation which shows that a person who considers himself aggrieved may not, in the opinion of a reasonable person, actually be an aggrieved party.

The situation which the Price Club brought to us was actually considerably more serious than that scenario, but it did have a frivolous and vexatious element to it in that the competition allegedly wanted to delay the opening of the Price Club. Therefore it appealed a decision, allegedly without grounds, simply to stall the opening of the competitor's building. In fact, what happened in that particular situation was that it has been very costly to the Price Club. It has had to delay construction, and everything has been stayed until such time as the matter is resolved. It is our submission, in agreement with the Price Club position, that if we amended it to say "any person who is aggrieved by an order" --

Mr Marchese: Or "any person aggrieved"?


Ms Poole: Actually, Mr Marchese is quite right. It would say "any person aggrieved," and it would be in the judgement of the judge of the Ontario Court (General Division) whether a person is indeed aggrieved. It might stop frivolous and vexatious actions. I would very much hope that the committee and the government would consider this very reasonable amendment.

The Chair: Any further discussion on this amendment?

Mrs Marland: Obviously, when we're placing the same amendments for the same reasons, it would be redundant for us to repeat the comments that have been made.

Ms Harrington: May I comment?

The Chair: Yes. Miss Harrington and then Mr Wilson.

Ms Harrington: As you know, when we did have the presenters before us, as Ms Poole said, the Price Club made a very interesting and powerful submission to us. On first looking at and hearing what they were asking us for, I was certainly of the opinion that it sounded reasonable to me because, as Ms Poole pointed out, there can be very frivolous concerns and "considering yourself aggrieved."

I would like to point out that the right to appeal is a very important right in our democratic country, and we have to be very careful in this area. We have certainly looked at this, because I was of the opinion this was a good idea, and I would like Ms Parrish to explain what we are getting into here. I think she can explain very clearly the concerns with regard to changing to "aggrieved" instead of "considers themself aggrieved."

Mr Marchese: I'm sorry, Miss Harrington, because I missed it again.

Ms Harrington: I think Miss Parrish will explain it.

Ms Parrish: The generic issue really is -- I want to be careful. I can't really comment on the rights or wrongs of the case, because I understand there hasn't been a ruling on that case, so I don't know to what extent the courts will deal with the rights and wrongs of the particular case. But in a generic sense, what people are concerned about is that people could appeal this when their interest is pretty remote or where they have some other reason for wishing to be aggravating to the person who has the building permit.

With respect, I don't think this language really helps to deal with that issue. All it says is that people may appeal if they are aggrieved as opposed to if they consider themselves to be aggrieved. The courts are still going to have to make the decision as to whether or not you are aggrieved and whether or not they will give you a remedy. So you still have the problem of disputes about who really is aggrieved, unless you're willing to have sort of a long laundry list of whom you consider to be a possibly aggrieved person, such as adjacent land owners but not ratepayers' groups, for example. So I'm not too sure that this really solves the problem.

Normally, what happens is that when you appeal, a person says, "I am the aggrieved person; I think I am aggrieved," or "I think I am hurt by the issuance of this building permit," and the courts decide whether in fact you are aggrieved and what remedy, if any, you should get.

Mr Tilson: Yes, but they don't do that until later.

Ms Parrish: Yes, that's true, but it's still all in the same court action. You get into the courtroom and they say: "Are you an aggrieved person? Are you a person who is affected or hurt or injured by the issuance of this building permit?" Then they can decide what they're going to do about it, if anything. So I don't think taking out the words about considering yourself to be aggrieved and just saying you're an aggrieved person makes any difference, because the courts still have to decide whether or not you are in fact aggrieved and what they're going to do about it. You still have the problem, if you consider it to be a problem, of persons bringing applications. What the courts then have to decide is -- if people are misusing that application, the courts have to penalize those people with costs.

Mr Marchese: I'm tempted to agree with Mrs Poole on this. First of all, as it is written, there is some grammatical concern. I don't know how you can say "any person who considers themself." Either this is Old English or I am not clear about its grammatical connection here, because it's "any person who considers himself or herself aggrieved," as opposed to "any person who considers themself." If that were to pass -- I certainly think we should look at that.

The Chair: Could I just ask legislative counsel, who could perhaps do what Oxford and Webster cannot.

Mr Marchese: There's a point here, I'm sure.

Ms Lucinda Mifsud: This is an example of a little creative drafting in trying to be gender-free. The only other choice is to say "himself, herself or itself." We thought it was simpler to try to invent a slightly new word, "themself," which has been done in a few of the books on gender-free drafting now. We agree that it is not the normal grammatical use and we try to avoid it as much as possible, but when you have a reflexive pronoun, himself, herself or itself -- because we also have to deal with the "it" situation -- we thought this was the lesser of the two evils.

Ms Poole: Mr Chairman, I think this solves the problem: Take it all out.

Mr Marchese: I must admit that English teachers would use this as an example of what should never be done. But beyond that, I'm tempted to say that eliminating it is clearer than leaving it. I think what you're eliminating by taking the words "who considers themself" is the possibility of a frivolous case, which is what I believe you were presenting earlier on. In a sense it's a preventive kind of language. If the person is aggrieved or feels aggrieved, that person will take the case forward as part of an appeal -- but "aggrieved" will do it -- whereas if "consider yourself," it does lend itself to a frivolous case, and I think it's totally redundant and totally unnecessary. I would support its elimination, because I think it makes it easier and clearer.

Mr Gary Wilson: Just on the grammar part of it, why couldn't we make the first one plural? In other words, it would read, "persons who consider themselves."

Ms Mifsud: We try to draft as much as possible in the singular because it makes it a little easier to read. We've done "person" all the way through, and "persons who consider themselves" would be a plural one.

Mr Gary Wilson: Okay.

Ms Mifsud: It is always an option, though; that's true. We try to be creative.

Mr Gary Wilson: Yes, because I think as it reads now it's pretty abysmal.

Originally, though, I had the question that Ms Parrish has answered about what difference it made to change it the way Ms Poole wants to change it. I don't see that it makes any difference.

Ms Poole: I guess to go to that argument, if it doesn't make any difference, why wouldn't you opt for the clearer language? What you really want to do is to protect a person who is aggrieved or persons who are aggrieved. I think if you go back to it, Ms Parrish's argument is that it's all taken care of in the same court action, so it doesn't really matter. But if you look at the preventive action, somebody is going to have a solicitor take a look at this and the solicitor is going to say: "You do fit this category. You `consider themself aggrieved'; therefore let's go ahead."

If it said "any person aggrieved," the judge may deem that you are not aggrieved, not that you consider -- it's a very subjective thing, whether persons consider themselves aggrieved. Anybody here who spends much time in his or her constituency office will know there are a lot of people out there who believe they are aggrieved by all sorts of strange and wonderful things, but whether they are is another matter. If it clarifies the wording and if it doesn't make any difference from any other vantage point, why wouldn't we clarify it?

One of the things that distressed me somewhat about this situation, both with subsection 25(1) and subsection 27(7), which we also have an amendment to, was when I was talking to the solicitor for the Price Club about these particular sections, she said that the ministry legal counsel refused to meet with her -- this was not Ms Parrish; it was another party -- because there are, particularly in subsection 25(7), some very good arguments on either side as to why the language should be a certain way.

It seems to me that when you have a matter like this which has been brought up and which is the concern of members of the committee -- at least, a number have raised it -- it would have been a good idea for the ministry counsel at least to meet with the solicitor and hear some of the arguments before making the judgement call that "We didn't consider it in the consultation. It's coming too late; therefore, we're not going to consider it." I don't like the way that particular part was handled. Again, it wasn't Ms Parrish who was involved, so I don't want anybody glaring at her or giving her Robbie Alomar-type looks or any of that type of stuff going on.

I would perhaps just ask the very simple question to the parliamentary assistant: If the language is clearer and if it doesn't make any difference for any other reason, why not? I really don't think it jeopardizes anybody's right of appeal, if he or she has a genuine right to appeal.


Ms Harrington: First of all, let me just comment on your saying that the Price Club could not meet with our legal person. This may be because the Price Club case was directly before the courts at that time. That may be the reason we would hesitate.

Ms Poole: By the way, it was not the reason he gave. It was, he said: "No, I don't see any reason for discussing it further because I don't see any merit in it. We don't agree with the language." It was not that it was before the courts, which is, I think, quite a relevant position to put forward.

Ms Harrington: Ms Parrish, did you want to comment?

Ms Parrish: I can't comment on the issue, although I will raise it with my staff. We have always tried to take the policy, except in a situation where a case is before the court, that we do try to meet with anybody who wants to meet with us.

I would point out that this language, as inelegant as it might be considered to be, is in the current act, and there are cases in this area under the old section, section 51.

The concern is that if you change the language, you lose the case law. The case law says, the courts say, "We have considered who a person who considers himself to be aggrieved is, and we have decided that they are adjacent land owners or next-door land owners but are not ratepayers' groups," for example. So the courts have actually interpreted these words.

As I said before, I don't think it's a big difference if you change the language. The courts will still have to decide whether or not you are in fact aggrieved. But you will lose the case law which has already decided, for example, that a ratepayer group probably can't bring itself within this language.

So that's the risk: When you change the language, you lose the case law and the courts have to decide all over again what this could possibly mean. It's really a question of judgement. I personally don't think it makes a lot of difference. You do lose some of your old case law. I'm more concerned about some of the amendments that come along later in this regard.

Ms Harrington: I just want to reiterate that point that Ms Parrish just made, because I think it is probably one of the most important; that is, if we do change the language now, it could jeopardize the case law history that we rely on.

I want to go further and say that what we're trying to do is eliminate frivolous cases, but there is a real danger here of eliminating some serious appeals as well. This change would likely prevent anyone who didn't have a direct financial or legal interest from appealing the issuing of a permit. If we say they have to be aggrieved, I'm not a lawyer, I can't interpret this, but it may mean that it could have a direct financial interest or have a direct legal interest in the proceedings.

This narrowing of opportunity of the third-party appeals should not be taken lightly. It is something we have to look into a lot more broadly as to what the consequences would be. It could prevent appeals by citizens concerned on environmental or other grounds. We would want very extensive consultation before considering such a change, and there have been serious concerns about the implications of this. I do understand what Price Club was saying; I have the same feelings the opposition members had at that time. But we have looked into it, and those two cautions come up that we don't want to change it with regard to the case law situation. The wording though, as Ms Parrish said, is inelegant; it is still important. I hope that's of some help.

Mr Tilson: It's for that very reason that I think both opposition parties have put an amendment forward. The two lawyers very elegantly put forward their concerns and they want to change the case law. They want to change the law; the law isn't working.

Margaret Harrington may personally feel that she's aggrieved in this committee, but the rest of the committee members may not feel that she's aggrieved, and a judge deciding that is the issue. Whether she is aggrieved and whether she thinks she aggrieved may be two different matters, and that's the intent of the amendment. So as the two solicitors set forth, all someone has to do is to come and say that they are personally aggrieved. The words say, "who consider themselves aggrieved."

Ms Harrington: Just to comment on that, the judge will decide whether they are aggrieved or not. Secondly, you can't say that it has not worked up to now. There have been very few cases, I would suggest, that are frivolous.

Mr Tilson: You don't understand. There's quite a distinction between a judge deciding whether a person is aggrieved and whether that person considers himself aggrieved. There's quite a major difference. That's what the solicitors were trying to put forward.

You could have someone who has a competitor -- which is what it's got, and I don't think it's appropriate for this committee to comment on that case because it's still before the courts, I gather -- but that type of thing is an example where a competitor who has no direct interest, none whatsoever, can say, "We consider ourselves aggrieved."

Then all the judge had to decide was whether they thought themselves aggrieved -- not whether they were aggrieved, but whether they thought themselves aggrieved. That's all the judge has to decide. The judge isn't deciding whether that person was aggrieved. The judge is deciding, under the current law and under this bill, whether they thought themselves aggrieved. That's the distinction and that's the reason for the amendment; quite a major difference between what the judge should be deciding and what this section says the judge is going to be deciding.

Ms Harrington: Just to comment very briefly, this wording, "who considers himself aggrieved," has been in the Building Code Act for a long time --

Mr Tilson: I'm quite aware of that.

Ms Harrington: -- and there have not been huge numbers of problems with regard to frivolous appeals. If this is going to happen more and more with regard to competition and these types of things, then it will be, but at this point in time we cannot throw out all of the rights of people to appeal. We have to be careful.

Mr Tilson: I must respond to that, because that is the very reason why the amendment is being made. The two opposition parties feel that the direction to the court to make a decision is that the court must decide whether someone was aggrieved, not whether he or she considers himself or herself aggrieved. That's the distinction.

The Chair: I have Mr Wilson, who has just gone out the door, who wanted to speak. I wonder if Mr Wilson still wants to speak. Would Mr Wilson want to speak? Just before Mr Wilson comments, it is, as the Speaker always says, almost 12 of the clock, at which point we're supposed to rise. So I will hear Mr Wilson and then I think we'll have to move to deal with the question at hand.

Mr Gary Wilson: I just want to say I did find the arguments of Ms Harrington and the ministry lawyer, Colleen, compelling and I think because of the case law it should stand the way it is now.

Mr Marchese: If it's all right with the parliamentary assistant, given the hour, could we stand it down as well so that this is the first item we deal with after lunch?

The Chair: Is that agreeable? We will stand it down.

Could I just remind all honourable members that we still have a considerable amount of material to go through. I guess we're about halfway through, but there are a number of amendments. We were authorized to sit yesterday and today. Today ends shortly before midnight. I'm not sure that's really what everybody is necessarily intending to do, but I wonder if I could perhaps meet briefly with the parliamentary assistant and the two critics and we might just look at how we would like to proceed this afternoon, just so everybody can organize his or her life, themself or themselves, according to any particular order.

Mrs O'Neill: Will you add my name to the speaking list on this item when we pick it up again, please?

The Chair: Fine. Therefore, we will adjourn, and can we start at 2 o'clock sharp? Okay? We stand adjourned.

The committee recessed at 1202.


The committee resumed at 1407.

The Chair: We'll begin the afternoon session of the standing committee on social development. Again we're dealing with Bill 112, An act to revise the Building Code Act. We're on clause-by-clause.

We have a number of amendments to deal with, but in order to expedite the process I thought we could first of all deal with all those sections of the bill where there are no amendments. If we could go through those with the assistance of the clerk, I'll put the question on those sections for which there are no amendments. We will then go back to deal with the two that we stayed over from this morning and deal with the one that we stayed at noon as well,

Sections 26 and 27 agreed to.

The Chair: There are some amendments to section 28, so we'll skip that.

Sections 30 to 33, inclusive, agreed to.

The Chair: Section 34 seems to be a popular one.

Sections 36 to 38, inclusive, agreed to.

Sections 40 and 41 agreed to.

Sections 43 and 44 agreed to.

The Chair: Therein endeth the reading of the first lesson.

Mr Lessard: Shall the bill carry?

The Chair: Not yet. We will now go back to clause 7(g). I just note again that all the sections for which there are no amendments have now been carried. We've just done that, so we will only be dealing then with the amendments that are in the integrated copy we have in front of us. We will then go back to clause 7(g), if that's appropriate.

Ms Harrington: This section, as you remember, dealt with the residential building where we were concerned with having as-built plans filed. What we had done yesterday was ask Mr Wildish to contact the Toronto Area Chief Building Officials Committee to see how it felt about the Liberal amendment this morning.

I would like to ask Mr Wildish to report their feedback to him, and I would suggest to the committee right at this point that I'd like it to listen very carefully and judge for itself and make its decision, because the government is willing and prepared to go with the decision of the committee as a whole, whether or not you agree or disagree with Mr Wildish's report. I would like to call on Mr Wildish to give us some feedback.

Mr Wildish: I've checked with some of our building officials, in particular people who are involved in the building officials association who have made input all along the way on the preparation of this bill.

As-constructed plans is a provision, as you know, that was in the old act and has been carried over, with modifications, into the new act, into the new bill at least.

There were some changes made and I'll just refer to a couple of those, if I may. The current bill calls for an identification in the regulations of such class or classes of buildings as prescribed by the regulations. Those are the places in which a municipality may make bylaws or ask for as-constructed plans, and no classes of buildings have ever been prescribed in the regulations. Thus this provision has been inoperative.

Municipal officials, as I mentioned yesterday, do not want whole classes of buildings to be prescribed. They don't have the interest or the staff to review these drawings, store them and so on. They do feel, however, that as-constructed plans for certain individual buildings, types of buildings or parts of buildings would be useful.

I'll give you a couple of indications of what's involved here. As a building is going along, if there are substantial changes in it, if it is a large building, there's an architect involved, engineers involved, and drawings are submitted with the changes on. They go to the municipality and there's an approval process and plans are filed, so the municipality has an excellent record of what happens in a large building.

Small buildings, and that means mostly housing, for example, are much less rigorous in the way they're handled. The drawings are often not modified within the buildings department. They are marked up on the site, usually on the contractor's working drawings. The building official comes along, initials the working drawings and that's the authority the contractor has to do his job. They may never get back into the drawings that are filed in the municipality.

Because of paper storage, municipalities now keep only as-constructed plans, if you call them that, or plans for homes, for residences for about a year. Then they're gone. So this is not a big record that's involved in this thing.

There are certain things a municipality does want to know about a home that goes up. I'm talking about small buildings, a home that goes up. They like to know where the sewer line comes in, where it crosses the property line. They like to know where the water service comes, where that crosses the property line. Some of them will go so far as to send their own inspector out to make that measurement and record it on their plans. Where the line enters the building, of course, they can always find out later, but the other end, where it crosses the property line, they can't, so someone will do that.

Building officials in general, almost in every case, can't tell if a building is properly located on a site or not. Only a surveyor can do that by taking measurements. So to check on the zoning, sometimes building officials would like to have, and often do have, requirements that a survey be taken that indicates how far the setback actually was and how high the building actually was so they can confirm that the zoning was complied with.

Another situation that comes up of course is when someone builds without a permit, and they might like to get, instead of as-constructed plans, as the building was actually built. A lot of the problems with knowing what was actually built comes up when there are a lot of deviations from plan. These deviations from plan occur in small buildings mostly, not in big buildings that are well planned by architects and engineers in the first place. But often, as someone was mentioning yesterday, when a custom-built home is going up, they keep shifting walls, doors and windows around as they try to finish it. So when there's been a lot of deviation from plan, that's the time in which a building official might say, "Give us a set of as-constructed plans to show how this thing finally turned out."

Mr Tilson: On that point, there's no question that the regulations or the practice would be, as you indicated yesterday, that those would be marked up or handwritten, amended plans. You wouldn't have to prepare another set of plans.

Mr Wildish: If we're talking just about homes or residences --

Mr Tilson: That's right. We're talking strictly on the Liberal amendment.

Mr Wildish: In general, municipalities, because of costs and other reasons, don't go through the formality of maintaining a very detailed set of plans on file, showing every little deviation in a house. It's just not worth it to anybody. If someone moves a non-load-bearing wall a foot over, it's usually just approved on the site and that's all there is to it. They mark it not on the permit drawings but on the set of drawings the builder is using in his shed. He usually doesn't like to touch the permit drawings because they are official documents.

Sometimes in a tract where they are building 20 homes from the one set of plans, the only plan on file in the municipality is for the model home. If people have individual little variations in their homes, they never get into a file in the municipality. As I mentioned, they only stay in the municipality a year and they're gone anyway. Homes don't get that treatment you might expect for large buildings.

To get to the point of which ones are most important to municipal officials to get information on sometimes, they are the homes, rather than the big buildings where there are architects and engineers involved, where there are site visits as the job progresses and there's lots of contact. But someone building a small, custom-built home, perhaps on his own, that's the kind of person who forgets or neglects to call for inspections. Things go along without being looked at. When the inspector arrives, it's not supervised on the job. No one's there and of course there's no architect or engineer dropping in; it's kind of loose. Those are the areas where they'd like to be able to call for as-constructed plans.

In summary, odd situations, once in a while, that's where they would like to be able to call for as-constructed plans: usually, residential, small-building types. Big buildings, it's formal; there are architects and engineers and there's no problem in getting the information they want.

Ms Harrington: To summarize, my understanding is that the building officials seem to desire that in the odd case they have the opportunity to ask for as-constructed plans.

Now I'll turn it over to both opposition parties for comments and their decisions as to how they'd like to deal with this.

Ms Poole: I thank Mr Wildish for securing that explanation from TACBOC. The concern I have, which I mentioned yesterday, is that when you formulate legislation it should take into account how it may be used, not how at this particular point in time certain people may intend for it to be used. In other words, will it be abused as opposed to being used as was originally intended?

It was one of the reasons I supported the Ontario Home Builders' Association in its desire to have an amendment in this regard, because I am concerned that in some municipalities, not necessarily the larger ones which really have their plates full but some of the smaller municipalities, this may be a way to generate new revenues with new fees they would charge for filing as-built plans. It might not come to fruition, but the bottom line is you want the legislation to be able to withstand the test of time so that there can be uniformity, so that it isn't taken out of context and isn't prescribed for whole classes of buildings where municipalities require, for every home to be built, the filing of a second set of plans in an as-built state.

Maybe, naturally enough given the fact that I moved the motion, my tendency would be to still support exempting the residential buildings.

Mr Tilson: I must confess that at the outset I was supportive of the amendment, but Mr Wildish is right, I think, in practice, particularly in the residential sector. Most building inspectors I've ever come across certainly are reasonable and don't require the fears I was initially suggesting. So unless there is some further debate, I would be opposing the amendment.


The Chair: Any further discussion?

Ms Harrington: Mr Wildish had one further comment to make.

Mr Wildish: Two comments, if I may, in response to what you just said. A municipality, I think, would be very reluctant to ever pass a blanket kind of a thing that costs builders money for every house, because of course it's a very competitive area and they don't want to scare off builders coming to their municipality. If every house costs an extra $500, say, they would shy away from that, I think, very quickly.

What I wanted to mention was that if you look at clause 7(g), the last part of clause 7(g) refers to conditions that would be laid down in the regulations. Those conditions would be things to protect this operation. I think perhaps I could allay some of your fears here. Those conditions would be things like thou shalt not ask for gold plating leaf on linen, thou shalt not ask for drawings that are more detailed than the original drawings, thou shalt not ask for these drawings within two days -- reasonable things that would constrain -- or thou shalt not ask for them for warehouses, or whatever. So constraints would be placed in there.

The Chair: It has become a very biblical afternoon.

Ms Poole: So thou shalt only use this section where absolutely necessary, not as a general rule.

The Chair: And thou shalt now vote. We're going to deal then with clause 7(g) on the Liberal amendment.

Shall the Liberal amendment carry? Those opposed? Okay. I see another member here. If that member could cast his vote from his seat, I could then count it. If he wants to tell me what he's going to do on the way, I can --

Mr Lessard: I'm voting with Gary.

The Chair: All right. He's voting with Gary. The Liberal amendment then does not carry.

Motion negatived.

Ms Poole: Mr Chair, just one question about that particular vote. With Mr Lessard coming in late to vote, does that mean the Conservative vote on the Ontario Home Builders' Association amendment is what made it fail? Is that correct?

The Chair: I wouldn't want to express any opinion on that.

Now, shall section 7 carry?

Section 7 agreed to.

The Chair: Okay. We will go on to subsection 17(8). This was the Progressive Conservative amendment. This was the interesting question of when is "final and binding" really final and binding. Over the lunch hour Ms Parrish, on our behalf, has sought out the ultimate final and binding conclusion to that. We were looking at the question of the specific court case and I wonder, Ms Parrish, if there are some further thoughts you can add, and then Mr Tilson, if you want to raise some questions as well.

Ms Parrish: Mr Beer, I did go back and look at this case. Since it's a fairly short case, I'll provide a copy of it to members of the committee.

As far as I can tell, this is a tree-planting case or a dead tree case in which there was an order made to remove a dead tree. The issue that was before the court was whether or not there was an appeal to the Court of Appeal from a final and binding decision of the district court judge. What they attempted to do was read together the Planning Act and the Courts of Justice Act to find out whether or not there was an appeal to the Court of Appeal from the decision of the district court.

With respect, I cannot see anything in this decision that would have changed what I said this morning. The court, for example, discusses the difference between "final" and "binding" and other clauses such as "final" and "conclusive," and goes on and on about that. It goes on to say, in general, "Unless the context indicates otherwise, it is generally accepted that where a legislative provision provides that an order is `final' there is no appeal from that order," and then they go on to talk about what that means.

Then the courts go on to say what the legislative intent was in this particular case, whether there was intended to be a further appeal to the Court of Appeal. This really deals with what the Courts of Justice Act said. As many of you may know, the Courts of Justice Act will distinguish between final decisions of the courts and decisions of the courts on interlocutory matters which are not final. This is a sort of technical legal discussion.

I don't think this court tells you very much about what "binding" means. What it does say is that when you read a statute and you decide whether there's going to be a further appeal to the Court of Appeal, you have to look at the legislative intent and so on. In the end, I don't think this case really tells you very much about what "binding" means. I think it does tell you about when a decision is final.

I'm not sure I agree that adding the word "binding" really tells you that much; that this case stands for that. Certainly, members of the committee can read the case and decide otherwise, but I don't see anything in this case that would say that if it says "final" only, you'd have an appeal, and if it says "final and binding," you would not have an appeal. I think the case says you have to interpret the entire statute and the statutory interpretation and look at the provisions of the statute. I don't think it tells you anything about "binding" per se.

The Chair: Thank you. Just before opening discussion on this, I want to note there is an understanding that we will try to complete our hearings by approximately 4 o'clock.

There was some discussion of this specific item. I want to allow Mr Tilson to comment and ask questions. If there are some new points that people feel need to be made, I will obviously recognize those, but I think we should be mindful of other issues we need to deal with and of the time.

Mr Tilson: I would concur, and I thank you for bringing this decision to the committee, because it certainly does indicate that perhaps the concerns of the delegation aren't as strong as they'd appear. So I have no further comments.

The Chair: We will then vote on the Conservative --

Mr Tilson: I'm prepared to withdraw the amendment.

The Chair: Okay, the amendment is withdrawn. We will then vote on section 17, as amended. Remember, there was a previous amendment. Shall section 17, as amended, carry?

Section 17, as amended, agreed to.

Ms Harrington: I want to thank Mr Tilson. I want to thank you for your help.

Section 25:

The Chair: We will then move back to section 25. We were dealing there with an issue that not only affected Her Majesty's grammar but also another fundamental point. I know Ms O'Neill had a comment she wanted to make, and then if there's somebody who can tell the Chair whether an agreement has been reached on this, the Chair would be pleased to hear that from whomever. But first of all, Ms O'Neill, I believe you had a comment you wanted to make on this.

Mrs O'Neill: Yes. I'm really going back to one of the parliamentary assistant's remarks. She felt that everything now would be given an opportunity to come before and there wouldn't be judgement calls or -- what should I say? -- interpretations made before we got to the court stage. She did mention environmental issues and that everyone should have that real right and liberty, even if it was only within their own minds that this was the case.

I just wanted to make a comment that I find that extremely contradictory to the discussion we had yesterday afternoon on clause 15(2)(c), where I was stating some of the same things in reference to safety, which I think is a lot more important on a scale of values. Anyway, what I'm saying is there will still be contradictions in the act, and withdrawing because we haven't got definitions, in my mind, is very similar here, because we sure don't have definitions; we've got a bit of case law. Some people around this table think the case law is weak. I happen to be one of those. I just find that the reasons given this morning by the parliamentary assistant are not consistent with her statement yesterday.


The Chair: Do we now want to move to vote on subsection 25(1), the Liberal amendment, or has there been some discussion?

Mr Drummond White (Durham Centre): Sufficient discussion, yes.

The Chair: It was stayed by a member of the government caucus, so that was why I'm --

Ms Poole: That was actually my question, Mr Chair. The member of the government caucus who indeed showed support for this particular amendment is not here this afternoon, contrary to what he stated as his intention of being here to vote in favour. I wonder if perhaps Mr Marchese is returning later in the afternoon, and if so, we could put this over till he returns.

Mr White: No, I don't think so.

Mr George Mammoliti (Yorkview): I'm here in his place.

Mrs O'Neill: They brought in the jackboots this afternoon. The jackboots are here.


The Chair: I would now put the question on the Liberal amendment to -- sorry.

Ms Poole: I want Mr Marchese to be here, because he's going to vote for it with us.

The Chair: Mr Marchese's whereabouts are --

Mr Mammoliti: Mammoliti, Marchese; what's the difference?

Ms Poole: Oh, you're going to vote with us?

Mrs O'Neill: Quite a difference, George.

Mr Hans Daigeler (Nepean): Most of the time that's true.

The Chair: Order, please. The parliamentary assistant.

Ms Harrington: I was hoping that Mr Marchese would be here. I thought he would be.

I did want to clarify what I said this morning, and this is what I said, word for word:

"This change would likely prevent anyone who didn't have a direct financial or legal interest from appealing the issuing of a permit....This narrowing of opportunity of the third-party appeals should not be taken lightly....It could prevent appeals by citizens concerned on environmental or other grounds. We would want very extensive consultation before considering such a change." One last line here, "We have very serious concerns about the implications of narrowing the grounds for appeal."

The Chair: Thank you. Shall the Liberal amendment to subsection 25(1) carry? Opposed?

Motion negatived.

The Chair: We would then move to a second Liberal amendment, subsection 25(7). Does everybody have that in their package? There are some who are missing, but does everybody have 25(7), the Liberal amendment? Okay.

Ms Poole moves that subsection 25(7) of the bill be struck out and the following substituted:

"Order, decision remains in effect

"(7) Where the order or decision appealed from is the issuance of a building permit, that building permit remains in effect despite the appeal unless stayed by order of a judge.

"Stay pending appeal

"(8) Upon application without notice, a judge may order that the order or decision appealed from be stayed pending the appeal on such terms as are just if, in his or her opinion, the stay is necessary to prevent the appeal from being meaningless and would not result in danger to the public.

"Security for stay

"(9) If the judge orders a stay, he or she may also order that the person who applied for the stay post appropriate security with the court."

Any comments, Ms Poole?

Ms Poole: Yes, Mr Chair. This again is an amendment which stemmed from the situation brought forward by the Price Club where it was alleged that the competitors had launched an appeal, not with cause but simply to delay the competition from opening up for some lengthy period. The concern the Price Club brought forward was that the way the legislation is framed right now, they could not continue with the construction until such time as the appeal was heard. They felt that if the wording were reversed, it would continue unless the judge stated otherwise. If the judge felt that, in his or her opinion, it was necessary to stay the construction and stay the action or else the appeal would be meaningless, then in that case obviously there would be a stay.

So this is a lot of legalese in this particular one. It was obviously drafted by the lawyers in legislative counsel, as opposed to by yours truly. But I think the intent of it, as was the previous motion, was to ensure that there is fair play, which I believe has long been one of the precepts of British parliamentary tradition. If it is to a competitor's advantage to launch an appeal that may not be justified and thus accomplish his purpose in delaying the construction and delaying the competition in being realized, then I think perhaps it might be a good idea to try to rectify this in the legislation so that in those isolated incidents where it might occur, it does not occur.

Mrs Marland: A point of procedure, Mr Chair: You know, we have a motion for the same section.

The Chair: On subsection 25(7)? I have one on 25(1) which was identical.

Mrs Marland: Yes. Subsection 25(1) we didn't deal with because it was the same as the Liberal one, but we also have one on 25(7).

The Chair: Okay. I'm sorry, I don't have that, but we'll just arrange to get that.

Mrs Marland: I'm sorry if you don't have that. It's in our package.

The Chair: Can you just wait one moment?

Mrs Marland: It's probably about the same, anyway.

Mr Tilson: I think what happened is that it was left out of the consolidated package but it was in the initial package.

The Chair: Okay. It's similar to 25(7).

Mr Tilson: It's very similar.

Mrs Marland: I think it's similar, but I just want to check that.

The Chair: We'll get some copies made. Can we proceed in our discussion of the Liberal amendment?

Mrs Marland: Yes, certainly.

Mr Tilson: We support the amendment made. It is similar to the amendment we are proposing. I will say it's regrettable that the government took the position it did with the last amendment by not allowing the amendment. I understand the rationale behind it. They're afraid, I suppose, for unknown matters such as "environmental situations," I think were your words -- I'm speaking to Ms Harrington's comments, of course -- and there may be other examples of a general public nature.

However, having said that, there is no question that it leaves it open to competitors, to individuals who are making an application to simply hold up proceedings, as Ms Poole has stated. It may not be for matters of a general public nature; it may be nothing compared to what you've anticipated. It may be simply a blatant effort to delay the proceedings so that the application, the whole process and the construction of the building will be delayed, and that would be regrettable.

I think if there is a frivolous application, it becomes quite blatant that there's a frivolous application. Having security deposited for costs would give some sort of protection and might in fact discourage competitors from making frivolous applications, because the costs in these things can be astounding. That's another reason, of course, which was emphasized by the solicitors. I mean, here they are; not only is their whole project being delayed but they're being put to tremendous cost.

Again, it's unfortunate that we're dealing with a matter that is currently before the courts, and I don't think this committee should be. But at the same time, I can foresee a hypothetical situation where a competitor could appeal a matter and the matter's quite frivolous. It may not have anything to do with what you've anticipated, so I think that's one of the major reasons why we would support the proposed amendment.

Ms Harrington: At this point I'd like to ask Ms Parrish to give us some background with regard to the effect of this amendment.


Ms Parrish: My staff member Jeff Levitt, who unfortunately can't be with us today for personal reasons, did phone a number of building officials and building departments to ascertain their viewpoints. I understand they are strongly in favour of the stay. The reason is that they don't want buildings built that subsequently, as a result of a court appeal, have to be torn down.

Their concern is this: What is going to happen in the case -- you know, you have some concern about rare cases in which the system might possibly be misused, but there are other cases where there is a very legitimate appeal by, say, an adjacent property owner, and while this appeal process goes on the building starts because there's no stay, trees are ripped down and building goes on and so on and so forth. You get partway through this building -- it's partway up, partway down -- and the court decides there was an error and the court says a building permit was issued that should not have been issued for whatever reason. You've now got this half-built building which is a problem for the municipality. There may be adequate costs for ripping it down or there may not be.

Mr Tilson: We had a big one a number of years ago over in Leaside, or wherever it was.

Ms Parrish: The famous Bayview ghost.

Mr Tilson: Bayview, yes.

Ms Parrish: I think they are very concerned about buildings that get partway up and then they're in limbo. They're also concerned that because people start building, there's sort of a suggestion: "Well, they've spent all this money, they've started building. Surely you courts shouldn't overrule them." There's a concern that if you allow people to go ahead and build pending these appeals, there is the risk that would happen. I understand that building officials were contacted and they preferred the stay for reasons of public safety and so on.

If you have an appeal, it doesn't matter what system you have; there's always some risk that somebody will use the court system inappropriately. But the courts have tools to deal with that. They can award costs; they can award costs on a solicitor and on their own solicitor's basis. If the courts are really of the view that there is no validity at all, no ground for appeal, and that this has been taken entirely for an inappropriate reason, there are remedies. My understanding is that the building officials preferred the stay because they were greatly worried about half-built buildings and the rights of people who were legitimately appealing being essentially taken away. So there are two sides to this story.

Mr Tilson: On that point, I understand what you're saying. I don't necessarily agree with it, because the other side of the coin could be that a building is up or partially up and a competitor puts forward a frivolous claim and it's stopped. The whole process stops and the building starts to deteriorate, they lose their investment -- all kinds of terrible things can happen. Yes, there can be compensation and costs, but that's about it. They're out of luck. What do we do in those situations?

Ms Parrish: Is it all right for me to respond?

Mr Tilson: I'm sorry, Mr Chairman. I'm asking a question to Ms Parrish.

The Chair: Yes, please.

Ms Parrish: I guess the one comment I would make is on the appeal period. You must want your appeal within 20 days, so it's not as if you have to wait for months wondering whether there's an appeal. You simply wait for 20 days and at that time you know whether there's an appeal or not. It is a common practice among builders to wait for the appeal period, the same as in zoning, where the people wait for the 30-day appeal period before they build.

Mr Tilson: But, as you know, these matters can be held up interminably. They can go on and on and people have their investments lined up. Well, if it's stalled --

Mrs Marland: Financing.

Mr Tilson: That's what I mean. The financing is lined up and it just disappears. I guess I sound like a sore loser on that previous amendment, but it is tied in and that's why this second amendment is quite reasonable, notwithstanding Ms Harrington's comments of leaving the previous section in for matters of public nature or public benefit. But when you get beyond that, there are going to be some innocent people who are going to be hurt by a competitor who simply wants to put his thumb on someone advancing. That's why I think, in conclusion, that this is a reasonable amendment.

The Chair: I will now put the Liberal motion, unless there is anything further. We'll vote then on the Liberal motion to subsection 25(7). Shall the Liberal amendment to subsection 25(7) carry? Opposed?

Motion negatived.

The Chair: We have a Conservative motion on the same subsection 25(7).

Mrs Marland: I think the intention of our motion is the same and the points of our concerns are on record, so I would suggest this amendment is now redundant.

The Chair: I will call section 25.

Mrs Marland: I just have one question. Did we discuss the 20-day appeal period today on section 25?

The Chair: There was reference in our discussion on 25(1) and (7). I don't know that it was discussed in great detail.

Mrs Marland: When the deputations were here, I think both the Liberals and ourselves agreed that the 20-day period was a concern, so I guess we've both missed making an amendment to address that concern.

The Chair: But your comments are noted by Hansard.

Mrs Marland: I guess we'll have to wait till we clean up the rest of this bill on the next go-round.

The Chair: Shall section 25 carry?

Section 25 agreed to.

The Chair: We have already carried 26 and 27.

Section 28:

The Chair: We will then move to section 28. There is a government motion 28(4)(b).

Ms Harrington moves that clause 28(4)(b) of the bill be amended by striking out "technique" in the fourth line and substituting "system."

Ms Harrington: The bill makes several references to the concept of "materials, systems and building designs." Unfortunately, the bill does not always use exactly identical words each time it refers to this concept. It would avoid possible confusion if the words used were identical.

The Chair: Any comments, thoughts, observations? If not, shall the government amendment 28(4)(b) carry?

Motion agreed to.

The Chair: Government motion on 28(5).

Ms Harrington moves that subsection 28(5) of the bill be amended by striking out "technique or" in the second line and substituting "system or building."

Ms Harrington: Basically, the same reasoning.

Mrs Marland: I just have to ask, why are we adding "building" in 28(5)? Is it different wording?

The Chair: I'm sorry, Ms Marland, in section 25 or 28(5)?

Mrs Marland: In subsection 28(5), the amendment that's in front of us now, we're adding "system or building."

The Chair: Yes.

Mrs Marland: In the previous amendment we just added "system." I suppose it all makes eminent good sense.

The Chair: One always hopes.

Ms Harrington: What we are trying to use in all instances is the same phrase, which is "materials, systems and building designs." That's why in some cases we're deleting or adding to get to that same phrase.

Mrs Marland: Thank you.

The Chair: Shall the government amendment to subsection 28(5) carry?

Motion agreed to.

Section 28, as amended, agreed to.


Section 29:

The Chair: Ms Harrington moves that section 29 of the bill be amended by:

(a) striking out "products, systems or services" in the fourth line of subsection (1) and substituting "systems or building designs";

(b) striking out "product, system or service" in the third and fourth lines of subsection (5) and substituting "system or building design";

(c) striking out "product, system or service" in the second line of subsection (6) and substituting "system or building design"; and

(d) striking out "product, system or service" in the fourth and fifth lines and in the eighth line of subsection (8) and substituting "system or building design" in each case.

Motion agreed to.

The Chair: Ms Harrington moves that subsection 29(4) of the bill be amended by striking out "A ruling" in the first line and substituting "Notice of a ruling."

Ms Harrington: The reason for this amendment is that the minister's rulings made under section 29 of Bill 112 may be too numerous and too lengthy to include in their entirety in the Ontario Gazette. Publication of notice of the rulings should sufficiently inform the public of their issuance and is more in keeping with the manner in which the Ontario Gazette is used for this type of purpose. It is also to be noted that subsection 29(4) of Bill 112 provides that the rulings are to be made available on request to members of the public.

Mrs Marland: Without a fee and without going through the freedom of information?

Ms Harrington: The answer is yes.

Motion agreed to.

Section 29, as amended, agreed to.

Section 34.

The Chair: We will then move to section 34. Now I just want to pause here. As members will see, there are a number of amendments to this particular section, and indeed the clerk is pleased to say that there are even more, so these are about to be circulated. Let us begin then with the first motion, which is a government motion.

Ms Harrington moves that subsection 34(1) of the bill be amended by striking out the words "for the purpose of establishing a building code" in the second and third lines.

Ms Harrington: As a consequence of adding to the bill the proposed subsection 34(5), the amendment to subsection 34(1) is required in order to remove the bill's current reference to the building code's purpose.

Ms Poole: I am just wondering if we could have a bit more of an explanation as to why the government is removing the bill's current reference to the building code's purpose.

Ms Harrington: Okay. What this section says is that the purpose is to establish a building code, and what we are putting in in subsection 34(5) is the purpose which you will see or have seen which establishes that it's a little more than establishing a building code.

Mrs Marland: Now I see "governing the design of buildings." Is that it?

Ms Harrington: Shall I read this into the record now?

The Chair: Sure.

Ms Harrington: It says, "The purpose of the regulations made under this section is to establish standards for public health and safety, fire protection, structural sufficiency, accessibility, conservation and environmental integrity with respect to buildings."

Mrs Marland: Where are you reading?

Ms Harrington: This is subsection 34(5).

The Chair: If you note in the government motion and the "Reason for amendment," it refers to 34(5), which is the one that Ms Harrington just read. It's further on in the booklet, or at least it ought to be.

Mrs Marland: Oh, it's another amendment. Thank you. I'm looking in the bill.

Mrs O'Neill: Sorry, Mr Chairman, do you want to guide us as to where we are?

The Chair: We are dealing with the first government amendment, 34(1). In the explanation under "Reason for amendment" it refers to the proposed 34(5).

Mrs O'Neill: That's an addition to the act?

The Chair: Yes, and it appears about 10 pages along. Mrs Marland.

Mrs Marland: Well, this is some amendment.

The Chair: Excuse me, Mrs Marland, are you speaking to 34(1) or 34(5)?

Mrs Marland: It's very difficult, isn't it, to speak about one without the other. To be completely in line, I guess I have to speak to 34(1). Oh, dear. Boy, it has --

Mr Tilson: We'll never see this for another 25 years, this subsection (5).

Mrs Marland: I think it's pedantic at best, 34(1). If you're concerned about wording that says "for the purpose of establishing a building code," while at the back of your mind you're going to come up with 34(5), which is going to define what regulations under this section are going to establish, obviously I'm going to have a lot of concerns about 34(5) and what it establishes if it pertains to existing buildings, which we haven't discussed yet.

I think that if we weren't being quite so picayune, you could leave it as a building code and still have the building code cover those areas you're going to regulate anyway, which is your wish; not my wish on existing buildings, but your wish. If you're going to cover "standards for public health and safety, fire protection, structural sufficiency, accessibility, conservation and environmental integrity with respect to buildings," what's wrong with leaving those areas defined under something known as a building code? I don't know why you're concerned about the words "for the purpose of establishing a building code."

Ms Harrington: There's still, obviously, a building code. It is just that the word "purpose" is in there, and it is confusing to have the purpose here as well as in another section. Maybe I could ask Mr Wildish to explain.

Mr Wildish: The decision was made to put an expanded statement of purpose into the bill. There were many places where it could be located, and we were advised by legislative counsel that you could not have two references to purpose, that there could only be one. One of the considerations was indeed to put it in 34(1), but structurally it seemed to be far better to put it where you see it located now, so we have one location for purpose in the expanded form and it's at 34(5). Having made that location for a purpose statement, we had to remove the other reference to purpose.


Mrs Marland: So it's all legislative counsel's fault.

Mr Wildish: We take their advice on all these matters.

Mrs Marland: It's just that we have to ask why.

Mr Tilson: Our question to Mr Wildish or the legislative counsel is difficult because we have to look at subsection (5). Ironically, this (5) is more restrictive. The building code could deal with a whole range of things, which with all due respect is probably what you intended to do, but with (5) you've made it very restrictive. I'm not speaking in favour of (5), but that's what you have done.

Ms Harrington: In my opening statement yesterday, I did refer to Mrs Marland's concerns about the broad-ranging open-endedness. As you were saying, there is some restriction here.

Ms Poole: This is the Margaret Marland memorial amendment.

Mr Tilson: So it's Margaret's fault.

Ms Poole: This is the only one you can claim credit for in this entire package, Margaret. Grab it.

The Chair: At the risk of not continuing to try to find other people who are at fault, I simply want to note that it is 3 o'clock and it seems that the arguments have been set forward. I wonder if there are any other new points to be made and whether we might vote on the first government motion. Shall the government amendment to subsection 34(1) carry?

Motion agreed to.

The Chair: Ms Harrington moves that paragraph 2 of subsection 34(1) of the bill be struck out and the following substituted:

"2. prescribing the conditions under which as-constructed plans may be required by a chief building official under clause 7(g)."

Ms Harrington: The reason for the amendment is that the specific authority to define in the building code the term "as-constructed plans" is unnecessary in view of the general authority provided in paragraph 34(1)27 to define in the building code any word or expression not defined in the act.

I think we mentioned previously that we are going to be having definitions, and this "as-constructed plans" is going to be defined clearly.

Mr White: Just a couple of very simple points, one for the parliamentary assistant: I'm wondering if it's possible, given the amount of time we have, if you could just read the amendment.

Ms Harrington: I thought you wanted to know.

Mr White: I'm sure that everyone is wanting to move through, as we have an agreement to be finished in less than an hour, and with that, I'm sure that we all want to vote hurriedly on this amendment.

Mrs O'Neill: Would you please clarify for us what you mean when you say that we're going to be getting a series of definitions? Are you talking about in the regulations or are you talking about opening up the act again?

Ms Harrington: I'd like to have staff clarify very quickly if they could, because this is something that we spoke about already. Would you feel comfortable, Colleen?

Ms Parrish: I'm sorry; I'm somewhat lost, I'm afraid.

Ms Harrington: George would like to deal with it.

Mr Wildish: I'm just looking here for which number the amendment is.

Mrs O'Neill: I think we're talking about paragraph 34(1)2 right now, but the parliamentary assistant just made a statement about definitions. She said we're going to get a series of definitions, and I just wonder what she means. I suggest the parliamentary assistant should know what she means.

The Chair: Can I ask the legislative counsel just to make a comment.

Ms Mifsud: They have another motion to paragraph 27 which allows them to define any word in the act that's not already expressly defined. That would preclude defining this term "as-constructed."

Mrs O'Neill: When or how? Does it say by regulations? I tried to get this question answered.

Ms Mifsud: It does say by regulation.

Mrs O'Neill: It's what number?

Ms Mifsud: Paragraph 34(1)27. It's later on in your motion.

Mrs O'Neill: This is another motion.

The Chair: Yes.

Ms Mifsud: Yes, it's part of the same package.

The Chair: That's the piece of paper that was just distributed.

Mrs O'Neill: Thank you.

Mrs Marland: Mr Chair, I would like to know why this bill --

The Chair: Sorry, Ms Marland, I want to finish with Mrs O'Neill's point, and then we'll come back.

Mrs O'Neill: I'm going to try to get this through my head, but it's not easy.

The Chair: Okay, but do you have a copy of 31?

Mrs O'Neill: I think I do. I thought we were dealing with something else though, as-constructed plans. I thought we were dealing with that amendment. We're going over to paragraph 27, is that right? Is that the piece of paper I'm supposed to be looking at?

The Chair: Yes, which is the reason legislative counsel has said this amendment is now before us, because if this passes, then you can't define the term.

Ms Poole: On a point of clarification, Mr Chair: I think the confusion has come about where the parliamentary assistant mentioned the fact that in paragraph 31(1)2 originally it talked about defining as-constructed plans. However, they no longer want to put that particular phrase in because they're putting in a new one in paragraph 34(1)27, where they can define a broad range of definitions. So now, for paragraph 2 all they want to do is mention the fact that the conditions under which as-constructed plans may be required will be prescribed, which I wholeheartedly concur with because it alleviates one of my concerns that a municipality might do it across the board.

Mrs Marland: Paragraph 34(1)27, as printed in the bill, is the one defining drainage, correct?

Ms Poole: They're taking that out, and they have that new amendment which has just been handed out.

Mrs Marland: Yes.

Ms Parrish: If I may assist, the old paragraph 27, which defined drainage, is being proposed to be struck out, and this more general clause, as Ms Poole referred to, defines all kinds of things: drainage, as-constructed plans and applicable law. Remember the discussion we had earlier about applicable law? This is the section that defines, by regulation, applicable law and drainage and several other things.

Mrs Marland: Again, it's difficult to speak on one amendment without referring to the one that's coming as well. How is it that the government is now proposing to substitute an amendment that includes a reference to the building code?

Mr Tilson: Thank God there's a time limit on this debate.

The Chair: Is that a question to the parliamentary assistant?

Mrs Marland: Yes, it's a question.

Ms Harrington: Okay. Are you saying that the words "building code" are directly in what I have read?

Mrs Marland: No, it's coming up in paragraph 34(1)27: "defining, for the purposes of this act and the building code." We've just passed a resolution removing the reference to the building code.

Ms Harrington: Okay. What we wanted to take out was the word "purpose," because we have a purpose clause somewhere else and legislative counsel said we cannot have two purpose clauses. Certainly the building code is referred to, I would imagine, in many places throughout the act.

Mrs Marland: So we just don't want to refer to the purpose of the building code anywhere else but in one amendment. Is that correct?

Ms Harrington: That's right.

The Chair: Shall the government motion, the amendment, paragraph 34(1)2, carry?

Motion agreed to.


The Chair: The next item is a Liberal motion; however, it is related to a defeated Liberal motion to subsection 1(1) and it is therefore out of order. So we will move on to paragraph 34(1)6, government motion.

Ms Harrington moves that paragraph 6 of subsection 34(1) of the bill be amended by striking out "techniques and systems" in the second and third lines and substituting "systems and building designs."

Any comments? Again, another amendment with respect to wording. Shall the government amendment, paragraph 34(1)6, carry?

Motion agreed to.

The Chair: The next one, again a government motion, paragraph 34(1)6.1.

Ms Harrington moves that subsection 34(1) of the bill be amended by adding the following paragraph:


"6.1 Setting out rules and policies to be observed in the interpretation of the building code by any person exercising a power or discretion conferred under the act or the building code."

Ms Harrington: I hope you find this interesting.


Ms Harrington: You will find it interesting, all right?

"Given the increasing size and complexity of the building code, the fact that it provides no guidance for those persons who are required to apply discretion in making regulatory decisions has proved problematic. As we continue to encourage the industry (designers, manufacturers, builders) to be more innovative, there is a concomitant increase in responsibility placed on those charged with making decisions which require interpretation of the intent of the building code, including the acceptability or sufficiency of compliance regarding proposed `equivalents' or new materials, products, systems or designs.

"Whether a regulator or one of the regulated industry participants, it is important that the regulatory system have an appropriate degree of transparency and hence predictability. The ability for the province to prescribe in the building code criteria for its interpretation will help to achieve this goal and lead to more uniform application of the building code by municipalities."

Mrs Marland: Mr Chairman, honestly, I think somebody's having this committee on.

Mr Tilson: Is this a joke?

Ms Harrington: This is very important.

Mrs Marland: The one thing I will say for this Bob Rae socialist government is that if they're going to put the lawyers out of business with one piece of legislation -- perhaps the automobile insurance -- they're certainly going to keep them busy with this stuff. There's no way the poor little soul trying to put an addition on his house, or a little builder building one house at a time and who doesn't have the money to hire somebody, is ever going to understand what this act is saying.

Mr Tilson: They won't even understand the reasons for the amendments.

Mrs Marland: Wow, that's about the best stuff I've ever read for being convoluted, the explanation for this amendment.

Ms Poole: Actually, I was quite clear on what the amendment said until I heard the reason for it. Now I'm totally confused.

The Chair: In that spirit of confusion, shall I move the government motion? Shall the amendment to subsection 34(1), paragraph 6.1 carry?

Mrs Marland: No. I think Mr Tilson has a really valid point. If people want to understand this amendment, I suppose, unless they go to Hansard, they won't have access to this printed reason of the government for this amendment. That's probably the good news; the good news is it will be buried in Hansard. But should they be of a profession that wishes to do their homework and they get to this paragraph that says, "it is important that the regulatory system have an appropriate degree of" -- what? -- "of transparency and hence predictability."

Mr Tilson: It's all a mirage.

Mrs Marland: I would like an explanation of that.

Mr Tilson: I realize we're pressed for time, but I must confess I'm simply not going to throw up my arms in horror and say, "Well, I give up; I don't understand what's going on," which is what this amendment appears to say. It appears we've lost control of the building code and so we're going to put in this section which simply assigns everything: definitions, rules, every sole thing.

I would like someone to answer Mrs Marland's question, because that's what it all gets down to: What is the purpose of this? We have two volumes over here; are we all going to get rid of the volumes and get a gigantic machine and press the word processors? Is it completely out of control?

Ms Harrington: What we're saying here is that the building code has an increased complexity as innovation comes in, that there's more responsibility on the building officials and what we're setting out are rules and policies that will guide them. It's not just going to be their individual opinion, but there are rules and policies they will be following.

Mr Wildish, would you like to comment?

Mr Wildish: Following on that point, as people have been commenting the last few days, the code is getting more and more broad in the scope of what it covers and it's putting more onus on building officials and other commission officials to make decisions that of course have to take account of that broadened scope. It's not as simple as perhaps in the old days where a thing just had to be structurally sound and not burn up. There are more things to be taken into account these days, whether it's the environment, pollution or accessibility and so on. For a person who has a responsibility under the code to make decisions, there are many more things to be taken into account.

With this increased burden placed on the official, one of the reactions could be for him or her to simply say: "This is too much for me. I'm not going to make a decision in this area and stick my neck out and get into trouble. Never mind, I won't grant an equivalent. Why should I take the trouble?" Of course, that would defeat the purpose of many of the code and bill amendments, which are intended to facilitate the whole process.

So by putting a purpose statement in the bill, which, as you've already referred to, has several components, these components will of course come to the attention of those charged with the power of discretion and they'll have to make decisions by referring to those. They'll need some guidance to do that, as to what they should consider. This particular section, paragraph 6.1, provides that the regulations can set out rules and policies for making these decisions. This will provide a little guidance for these people, to let them know how to do things, and also for those who are making designs and drawings, such as architects and engineers. They will know that there is a purpose which has been outlined already and that there is a way that purpose will be interpreted which will be covered in the regs. They'll have some idea what to expect when they put in plans and drawings, so it's a two-way street.

Mr White: I would like to support this amendment. However, I want to hinge my support upon the parliamentary assistant's commitment to read no further the reasons for the amendments, which only serves to goad all three parties into outrage and indignity at the sado-masochistic intent of these amendments, or at least the rationales therefor. So I would certainly encourage the parliamentary assistant to proceed forthwith with no further reading of the reasons for the amendments.

Mrs Marland: I want to tell you, Mr Chairman, what I'm going to do with this amendment: I'm going to enlarge it, frame it and put it up in my office as an example of a government out of control. As the Housing critic for our caucus, I am going to send a copy of this to every chief building official in this province, because what this says is, if all else fails, you're on your own. You can interpret it as long as there's a "degree of transparency and hence predictability."

This is absolute garbage. I don't blame Mr Wildish. I don't know who has written it, but I think the ministry officials themselves just don't know where to go with this building code any more.


I think it's an absurdity to the degree of infinity to say, under paragraph 34(1)6.1: "Interpretation: Setting out rules and policies to be observed in the interpretation of the building code by any person exercising a power or discretion conferred under the act or the building code," and then to read the explanation of that simply means that for all the money that we spend reviewing the code and all the money and time and energy that have been spent in bringing Bill 112 to us, when it comes right down to it, it's too complex, it's too convoluted and it doesn't make a lot of sense to that little guy who's trying to do some building in this province. The big conglomerate developers and builders and the home builder associations, all they have to do is get somebody who's very good at arguing, and they will pay consultants to go to the chief building official and use this reason for the amendment as an argument to permit whatever it is they want to do. That's surely what I would do.

I just don't know why it has to be so complicated. I'm talking about the building code and this bill, as we are revising the building code. In my seven years of reading anything in this Legislature, that's got to be the prize.

That's exactly what I'm going to do with this. It's unfortunate that we have so little time, but this page says it all. I'm not blaming anybody in this room, but it's a confirmation that as far as the Building Code Act for this province is concerned, it's totally out of control.

I know what they're trying to do: recognize innovation and progress and improvement in materials and so forth. But at the same time, this government is coming along with another section further on which is going to include a whole lot of new things. We're in this much of a mess with what exists, and we're going to include all these new things, these new requirements for new buildings, some of which I support wholly -- energy conservation and so forth -- things that I've already commented on this week and last week.

But the great news is that it's going to be on every building in this province -- not just the new buildings; the existing buildings. What we're creating here is the biggest monster you could possibly visualize. Everybody who's going to be working in that field is either going to get wealthy as consultants and lawyers doing the interpretation, or the poor souls who are trying to get building permits are going to go out of their minds trying to understand for themselves what the Ontario Building Code is all about.

If we're really concerned about the cost of building in this province, and we certainly should be, the little example about what it's going to cost to have as-constructed plans on file is peanuts compared to what it's going to cost for them to interpret the whole act -- maybe $100 for an extra 20 sets of plans. That's just going to be nothing compared to the interpretation of this bill itself. This amendment to paragraph 34(1)6.1 confirms that.

I'm sorry to take that much time to express what I think is terribly important, because it's a total disaster when you come to read something like this, which in fact really sums it all up. Where do we think the bureaucracies of municipalities are ever going to begin with the enforcement of this act, with the changes in it that this government wants on buildings that exist today?

The Chair: Shall the government amendment to paragraph 34(1)6.1 carry?

Mrs Marland: I'd like a recorded vote. Let's just step the vote down for a minute till our people come back.

Mr White: Can we stack the vote until we have the members here?

Mrs Marland: Rather than stop, though, let's just step the vote down until we get back our two people who are out of the room at the moment.

The Chair: All right. Let's move on then to government motion, paragraph 34(1)9.

If those who are going to vote would please get here, it would be appreciated.

Ms Harrington: Before I read that, I do want to say that I think you have certainly made comments which are out of proportion here. Building officials across this province do want the building code revised and they are interpreting the act. They always have. All we're saying in paragraph 6.1 is that we are setting out rules and policies for interpreting that. Certainly, I thought you might find this wording interesting. Obviously, it went a little bit further than that, and convoluted. I hope if you send it out to them, they will appreciate what we go through here on their behalf.

Mrs Marland: I'll send you copies of their responses.

Ms Harrington: Okay, that's fine.

The Chair: We are dealing with paragraph 34(1)9.

Ms Harrington moves that subsection 34(1) of the bill be amended by striking out paragraph 9.

Any thoughts or comments?

Ms Poole: Just read the last sentence back, that's all.

Ms Harrington: Because we're moving the Ontario Water Resources Act into the Building Code Act, this section is redundant and therefore should be deleted.

Mrs Marland: You're saying that the control of pipes, fittings, fixtures and materials is going to be under another act, not the Building Code Act?

Ms Harrington: Would you like to comment?

Mrs Marland: If 34(1)9 reads "providing for the testing and marking of pipes," is this the right one?

Ms Harrington: Yes.

Mrs Marland: So you're putting that out. You're removing that, rather.

Mr Wildish: Paragraph 9 in the bill was taken directly from the Ontario Water Resources Act and moved into this bill. It was observed later on that an existing paragraph 8 indeed covered everything that was in 9 and there was no need then to move in 9. So it's suggested here to be deleted.

Mrs O'Neill: I want to go back, but this may not be the moment. I want to ask for something in writing from the officials, if they could help us. When we finish with this one, could I go back?

The Chair: To the previous one?

Mrs O'Neill: Yes.

The Chair: Yes. In fact, are there any further comments on 34(1)9?

Mrs Marland: So the explanation is that 9 is addressed in 34(1)8?

The Chair: Yes.

Mrs Marland: As long as that is the answer. I don't want to hear that the answer's in another act, because we have to pay another $250 an hour to have the other act interpreted.

The Chair: I want to go back to Ms O'Neill's question, but can we move government amendment 34(1)9? Shall that amendment carry?

Motion agreed to.

The Chair: Ms O'Neill, we'll go back to your question.

Mrs O'Neill: I think I'm struggling almost as much as Mrs Marland with the 6.1 addition. I'm trying to figure out what or why this would be here. It would be very helpful if the staff in the Ministry of Housing were able to give us some idea of why this is necessary; what are the parts of the act that will have to be dealt with through these kinds of regulations, what are the interpretations that are causing the most trouble. If we could have three to five of those where they're going to obviously put a few people on to this task, that may help me understand this, because, really, the reason for the amendment is extremely hard to accept without any idea of what you're talking about. So that may be helpful, if somebody could do that for us.


Ms Poole: You're talking about that in writing?

Mrs O'Neill: Yes, I would like to have in writing some examples of what you're trying to get at here. There has to be a reason for this, but certainly the reason is next to impossible for me, anyway, to accept.

The Chair: Is that, given that today is the last day, just that something be provided --

Mrs O'Neill: Yes, because this bill has not passed the Legislature yet and we're the ones who have to interpret these things.

The Chair: Right. So if that could be provided by ministry staff, then, is the question.

Mrs O'Neill: And examples. Is that possible?

Ms Harrington: Would you like to comment at this point, very briefly, as well as provide in writing later?

Mr Wildish: Yes. Essentially, it boils down to this: if you were a building official faced with a problem, for example, of approving an equivalent material that some potential builder has brought to you and said, "May I use this?" As the act grows in scope, as we've been talking about here, taking into account many more features, you, as the building official, will be more and more hard-pressed to decide: "Should I accept this material or not? What factors should I take into account? For example, should I be worried about pollution? Should I be worried about environmental impacts? Or I just might want to report that this thing is structurally sound, for example. How should I make some of these decisions?"

To help these building officials and those interpreting the act in general, to let them know how to interpret things, how broadly to look at things, we're going to have to give them some guidance. That kind of guidance can be spelled out in the regulations in very straightforward terms, as would be appreciated by Mrs Marland, so that building officials indeed will know how to do their jobs. I'm including with building officials members of commissions and boards who have to make decisions of this type as well.

Mrs O'Neill: So the criteria for making a judgement about materials would be one thing.

Mr Wildish: Yes, materials would be one thing.

Mrs O'Neill: Is that what you just expressed?

Mr Wildish: Yes, or any other decision that has to be taken in the act.

Mrs O'Neill: Okay. Could you give us two or three examples, because this is one I think people are going to ask us about because it's definitely new and obviously you're having problems -- people must be calling or something -- to have made you put this in.

Mr Wildish: It's directly related to the purpose clause, which you saw, which Mr Tilson commented on about having several components listed. If that is taken as the purpose of the code and the act, then that of course should be consulted when making a decision. So the building official would have to examine those and come to a decision he or she can live with, and is going to need some guidance in doing that, hence the purpose of the interpretation clause.

The Chair: We're going to be coming back to that for a recorded vote, but could we move now to Ms Poole's Liberal motion, paragraph 34(1)10.1.

Ms Poole moves that subsection 34(1) of the bill be amended by adding the following paragraph:

"10.1 Allowing the review of plans and the inspection of buildings and related powers of the chief building official and inspectors to be delegated, and prescribing the requirements to be met by persons to whom these powers are delegated and the conditions under which the delegations may occur."

Please go ahead with your comments.

Ms Poole: This amendment addresses concerns raised by, I'd say, virtually every presenter, certainly a large number of them, including the Canadian Bar Association, the Ontario Home Builders' Association, the Urban Development Institute of Ontario, and I believe several others raised the issue of the certified professionals.

It was their view that it would be extremely helpful to municipalities in peak times to be able to delegate certain of the chief building official's duties to certified professionals. This obviously would not be every certified professional. It wouldn't be all architects or all engineers. It would be specifically ones in the field who had the confidence of the chief building official and who could carry on these duties when the municipalities were in overload at peak times.

As I said, this did have a broad range of support. It was in the previous Liberal draft legislation, Bill 103. It seemed to be an area that was not without questions to be asked and answered, but there was a great deal of interest in pursuing it. So I would very much hope that the ministry would reconsider its removal of this provision from Bill 112 and that it would consider reinstating it.

The Chair: We'll have consideration of this, then. I just note that when that is completed, we will also have the recorded vote on the item we haven't dealt with as yet. Any comments on the Liberal amendment?

Ms Harrington: There is a Conservative amendment, I believe, which is similar. I wonder if the Conservatives would like to --

The Chair: Is there a Conservative amendment? I'm sorry, I don't have that before me.

Mrs Marland: No, I don't think so.

The Chair: Wait a minute. Can we just pause for a second?

Ms Harrington: Paragraph 34(1)29 is similar.

The Chair: Where is that? I'm not quite sure why it is where it is, but it's exactly the same, I'm told.

Mrs Marland: I don't see it.

The Chair: It is an amendment. I guess it is to add paragraph 29, is it? Yes, you were doing it by way of adding a paragraph, but it is the same as the --

Mrs Marland: Where is it?

The Chair: It is about three pages farther along, the second one that's marked "PC motion."

Ms Harrington: Before I comment, I thought the PCs would like to comment, since their amendment is the same.

Ms Poole: Do they have an amendment that's the same?

The Chair: Yes, but what they have done is to add paragraph 29. What you have done is to change 10.1, but the content is the same. I think it was just done this way to see if we were all still sharp on our toes.

Ms Harrington: I saw it, though.

Mrs Marland: We are very sharp on our toes. In the interests of time, obviously, since we're moving the same amendment, we support the Liberal amendment.

Ms Harrington: I would like to comment. We distributed to you yesterday some pages with answers to the questions that were asked a couple of weeks ago. What it explains are several ideas. "It was decided to delete the enabling legislation for the plans review and inspection by designated architects and professional engineers program, or PRIDAPE, proposed in Bill 103, pending resolution of some of the basic regulatory issues." The last line is, "The ministry continues to closely monitor regulatory developments both here and abroad, including those concerning the certified professional concept."

I wanted to quote from September 3 because I think what Ms Marland said is an important idea. I think we've got a potential for a conflict of interest here where we have private certified professionals who are overlooking and certifying the plans that, say, their own company has made. It's a potential that this might happen. The public today has so much confidence in the chief building officials of Ontario, of the municipalities, that we are not ready at this point to delegate that authority.


Ms Poole: I don't want to belabour it, but I don't think it was shown during the committee hearings that this conflict of interest was actually substantiated. While there's always potential conflict of interest, it was felt that the chief building official would only be delegating cases to a certified professional with whom he or she did not have a personal connection. I'm not sure I accept that as an argument and I think it's a shame we're going to have to wait probably another nine or 10 years before incorporating this very worthwhile idea.

Mrs Marland: I think it'll be a revelation to the committee to know that I am a good listener. When I raised at the beginning of the hearings -- before, in fact, we'd heard the deputations -- the concerns that I had about certifying other parties to act on behalf of the municipalities, in other words, certifying other professionals, I was concerned about the potential for a conflict, as Ms Harrington just referred to. But I want to be fair and tell you that the reason I was concerned about a possible conflict of interest was that I had not had it explained to me who the certified professionals might be, that they might at one point be acting as consultants to a developer, builder or builder's association and then, on the next case, they may be in this category of certified professional acting on behalf of the municipality through the chief building official's power.

Actually, I must tell you I was given a very excellent example by the former Housing critic for our party, who is far more knowledgeable than I am, the member for Dufferin-Peel, Mr Tilson. He said to me, what is the difference between where a municipality commissions a legal firm for outside advice -- it commissions an environmental planner if it doesn't have an environmental planner on staff. In other words, professional services are often, and in some municipalities quite frequently contracted out, as it were, by municipalities. To have certified professionals under the commission of a municipality to look at building plans really isn't any different than to ask them to comment on legal matters, planning matters or any other matter.

As long as the municipality has the final say as to who the certified professionals would be and the parameters under which they would operate, I now think it would be a very good solution to expediting the whole process of building permit applications in those seasons of heavy construction, without loading down the municipality with additional staff it doesn't need in the off season.

That is the reason we have the amendment and that's the reason I support the amendment now. As long as it's within the control of the municipality whether or not it has certified professionals, who they are and how they would work, then I think it is as equally good an option as any other professional consultants the city hired to interpret other provincial statutes and municipal bylaws.

The Chair: Any further comments? We will then move to vote on the Liberal amendment, paragraph 34(1)10.1. All those in favour?

Ms Harrington: Could we have five minutes?

The Chair: Sorry?

Mr Gary Wilson: We're going to delay the votes until --

The Chair: No. We are now at --

Mr Gary Wilson: Can we have a recess, then, for three minutes?

The Chair: No. There was a request for a recorded vote on paragraph 34(1)6.1, which will happen. This is not a recorded vote. There's been no request for a recorded vote on the Liberal motion on paragraph 34(1)10.1. All those in favour of the Liberal motion? Opposed?

Motion negatived.

The Chair: I will then call a recorded vote on paragraph 34(1)6.1. This is a government motion. There is a request for a recorded vote.

Ms Poole: Mr Chairman, Mrs O'Neill has asked for further information. I understand our deadline is today, so although we appreciate some of the intent, until we receive that information, we cannot support the amendment.

The committee divided on Ms Harrington's motion, which was agreed to on the following vote:


Harrington, Lessard, Mammoliti, Perruzza, White, Wilson (Kingston and The Islands).


Daigeler, Marland, O'Neill (Ottawa-Rideau), Poole, Tilson.

The Chair: We then go to the Conservative motion on paragraph 34(1)20. Who would like to place that before us? It now is a quarter to 4, if I might note that for committee members.

Mrs Marland moves that paragraph 20 of subsection 34(1) of the bill be amended by inserting the following:

"20. prescribing the form of a warrant for inspection and the form in which the information upon oath will be taken under section 21;"

Ms Poole: Just a question of clarification: Because the amendments by the Liberals and Conservatives previously referring to a warrant of inspection were not passed, I wonder if this is actually in order. Can you prescribe something when you don't have it in the body of the act?

The Chair: We will just have a brief --

Mr Tilson: Pause.

Ms Poole: I didn't think it'd be a hard question.

The Chair: A stimulating question. Ms Poole, I'm told that indeed this would be, given the previous action, out of order.

Ms Harrington: Thank you for your acumen.

The Chair: We will then move to paragraph 34(1)27, government motion, and the one before us is the single sheet that was handed out.

Ms Harrington moves that subsection 34(1) of the bill be amended by striking out paragraph 27 and substituting the following:

"27. defining, for the purpose of this act and the building code, any word or expression not defined in this act, and in so doing may define a word or expression differently for different provisions."

This is the one we were referring to earlier.

Mrs Marland: Now this reason I want you to read.

Ms Harrington: I don't know whether I want to. I'm going to frame that other one too.

Mr Tilson: The definition changes from time to time.

Mrs Marland: Let her read it, the "Reason for amendment."

Mr White: We only have 12 minutes. Last time it took half an hour for her to read it.

Ms Harrington: It's up to the committee if you want me to read it.

The Chair: Order, please. Ms Marland has requested it.


Ms Harrington: "This amendment will permit certain words used in Bill 112 to be defined in the building code, eg, `applicable law.' This provision may also be necessary in the context of certain regulations to be enacted pursuant to Bill 112, eg, conditional permits -- subsection 8(3); equivalents -- section 9; change of use -- section 10." We already have discussed most of these.

"The reason for being able to define a word differently for different provisions is to cover situations such as the difference in the components of 'applicable law' when referring to construction or demolition (see section 8) compared with the components of applicable law when referring to use of a building (see section 10)."

Mr Tilson: I have difficulty. I can understand your saying that in a particular section the definition may vary, but why wouldn't you say in that specific section, "For the purposes of this section, such-and-such means the following"? Why wouldn't you do that? I guess it carries on with that terrible amendment we just went through. Is the uncertainty going to become unbelievable with this sort of definition? Because how will a building inspector know? Are you going to have a page defining what "applicable law" means? Is that what you're going to have?

Ms Harrington: I'm wondering if Ms Parrish could clarify this, or would you rather have me ask Mr Wildish? I'm not sure you heard the question: Why would we have two different definitions from different sections?

Ms Parrish: It's possible that there might be some term that you would use, a term of art that you would use, for example, when referring to plumbing but you might not use exactly the same word in some other place. It simply, I guess, allows you to use the definition in the way that people who operate in the trade use it and to define it slightly differently. The main purpose, I think, is to deal with some of the more problematic areas, such as the definition of "drainage," the definition of "applicable law," the definition of several other things that people want defined by law. That's my understanding of it. George may be able to give a more technical answer than that.

Mr Wildish: The best example to use is the one that's given here. As you know, we talked about the definition of "applicable law" earlier on. It will be a complicated definition, for certain, when it is done. It refers to applicable law when you're issuing a permit for new construction and it says the things that a building official has to take account of and assure compliance with before he issues a building permit. Later on in the act it refers to applicable law when talking about change-of-use permits. The listings of applicable law in both situations will probably be different; hence "applicable law" could have different definitions for the two locations.

Let me elaborate one more bit: You can imagine change of use. You're interested in standards that govern the use of existing buildings, and the listing of laws may well be different from those that govern new construction. So in the list, looking at the definitions for applicable law, you would look for the one that deals with change of use if you're dealing with that, or you'd look for the one that deals with new construction if you're dealing with that.

The Chair: Mr Tilson, for one further comment, and then we'll vote.

Mr Tilson: I think we're going to be weighted down with definitions that are just going to be insurmountable. You're going to have to have a PhD to qualify to be a building inspector in the province of Ontario. It's just becoming so complicated, so difficult to understand. We've run amok.

Ms Harrington: It was very clear that the building officials were asking us for a clear definition of "applicable law." They wanted the laws listed. In fact, I believe your own party and the other opposition party were both asking for this to be clarified as well.

Mr Tilson: That isn't what we said. We said, "If you're going to define it, define it." What this says is, "We'll make up definitions as we go along." It's like changing the rules of the game as we proceed, a most uncertain way to proceed with the building construction in the province of Ontario. We're trying to develop certainty and, if anything, what we're doing is creating uncertainty.

The Chair: Shall the government motion for paragraph 34(1)27 carry? Opposed?

Motion agreed to.

The Chair: We will move along. The next one, which was withdrawn earlier, the Conservative motion, was the one that was the same as the earlier one. We then have a slight order problem. With the clerk's help here, the next one should be the Liberal motion to subsections 34(2) and (3), which would then be followed by the Conservative motion to subsection 34(2), but the Liberal motion needs to come first because of the content.

Mrs Marland: I don't have the Liberal motion.

The Chair: It is two down in your package. It got into the wrong place. It is a very brief one. I'm sure Mrs O'Neill and Ms Poole would be able to assist.

Ms Poole moves that subsections 34(2) and (3) of the bill be struck out.

Ms Poole: The explanation may take just a tad longer than the actual amendment. Subsections 34(2) and (3) give the authority in the legislation that regulations could establish standards for existing buildings in the building code. This has raised quite a bit of controversy. The building code has traditionally not dealt with the standards for existing buildings except, I believe, and Mr Wildish may correct me, in health and safety matters, where the existing buildings were included in current legislation. So is it Bill 103, then? I understood that in previous legislation, whether it be Bill 103 or the old building code, there was one provision in there regarding existing buildings, health and safety. Is that not correct?

Mr Wildish: The old, current act and the new bill both have regulation-making power under subsection 34, and those existing regulations do apply to existing buildings, because you could have renovation or repair and such things going on in existing buildings. So, indeed, regulations 1 up to 28 do apply to existing buildings as well as to new construction. Has that addressed your problem?

Ms Poole: My understanding was that the change for this particular piece of legislation, Bill 112, was that all existing buildings could have to meet standards through the building code for not only construction but also maintenance, occupancy, repair, health, safety, everything, and that previously, existing buildings did not have to, under the building code, meet all those requirements.

Mr Wildish: Yes.

Ms Poole: Okay, thank you. I am not terribly confused, then, although I may have confused everybody else by now. What the Liberal amendment does is completely strike out the references to existing buildings in subsections 34(2) and (3) because we believe that if you're going to make such a major change, it should be dealt with either by separate legislation or by bringing back an amendment to the Building Code Act at a later date, when all the ducks are in a row.

Our concern is that the parliamentary assistant told us they are sensitive to the concerns of trying to incorporate the existing buildings into the framework and they know it's going to cause problems and therefore they were going to have a very substantial consultation; they were going to ensure that this was all done in a very orderly and comprehensive fashion. But meanwhile what has happened by putting existing buildings into the code in such a comprehensive way, in subsections 34(2) and (3), is that this has led to even more uncertainty in the residential apartment industry.

We had a presentation from the Fair Rental Policy Organization of Ontario, which represents many landlords both large and small in the province, and they were extremely concerned that this would be one more blow to an industry that's already reeling, that in fact many people are thinking of leaving the multiresidential apartment sector, and if they find out that they're going to have to bring everything up to code in their existing buildings, which may be 30, 40, 50 or 60 years old and which may be an astronomically expensive proposition, this adds one more blow.

If it's going to be done, it has to be done properly, and I think it has to be well thought out. To put this in and leave that air of uncertainty for what could be well a year or longer does not seem to me to be a very good idea.

It is our proposal that there be separate legislation or a future amendment to the Building Code Act to deal with this, but that it should be all done at the same time and done when the government is ready to move on it, not just thrown in a piecemeal fashion right now and have to deal with the ramifications at a later date.


Mrs Marland: Just on a procedural point, Mr Chair, I don't think it's procedurally correct to accept an amendment that moves that two subsections at a time be struck out.

The Chair: My understanding is that you can't move two sections but you can move subsections, which (2) and (3) are, of section 34.

Mrs Marland: I respectfully suggest when we're moving through this bill, admittedly we move section by section, but if there is a question on subsections within the section, that we take them numerically. The reason I'm suggesting that is that I wanted to speak to 34(2) and I also wanted to speak to 34(3), and it is possible to request an individual vote on both of those, because they are numerically individual. I'm suggesting that the Liberal motion, although it encompasses two subsections, might be out of order and it should be worded one subsection at a time.

The Chair: I appreciate your comments. I understand that this is in order and that indeed you can speak to both of those and, furthermore, that you have an amendment yourself to 34(2).

Mrs Marland: What is the option?

Ms Poole: I suggest we vote separately on 34(2) and 34(3), if that is acceptable.

The Chair: We can do that if you withdraw this motion and resubmit, in moving subsection 34(2) and, separately, subsection 34(3).

Ms Poole: I'd be happy to do that if it helps debate this in an orderly way. I will withdraw this motion, then, and I will instead move that subsection 34(2) of the bill be struck out.

The Chair: All right. We would then, Ms Marland, deal with subsection 34(2) and subsequently with 34(3). Would that meet your concern?

Mrs Marland: Yes, because that's my experience, that that's how we go through --

The Chair: Fine. Then you would still move your motion to 34(2) prior to our getting to 34(3). Okay? Understood? So then on 34(2), Ms Marland.

Mrs Marland: The other question I have is, if the Liberal motion 34(2) fails, asking that 34(2) be struck out, my motion would still be in order because I'm making a substitution.

The Chair: It would be. Yes, it would.

Mrs Marland: That's fine.

The Chair: Would you care to comment on the Liberal motion?

Mrs Marland: Yes, I'd be happy to, because I'm happy that the Liberals made the motion. I'm sorry they didn't give us a solution that might help in asking that it be struck out. I think it's possible to be constructive as well as disagreeing with the intent of the ministry, and that's the purpose of our motion. I'm also glad they picked up on the notice I gave, as the first person for the opposition who said we would be placing a motion addressing the concerns of the public as this bill pertains to existing buildings.

In answer to the concerns I raised with the parliamentary assistant about existing buildings, I appreciate the fact that I did receive a printed response. The printed response actually gives me more concern than I had originally, because in the printed response the ministry is saying, through Ms Harrington:

"The scope of the existing building standard will be determined only after extensive consultation with all parties affected by the standard such as representatives of the following stakeholders: building owners; tenants; building inspectors; municipalities; building renovation contractors, and design professionals.

"In establishing the scope of the existing building standard and in particular, whether to include requirements for energy and water efficiency, we will examine a wide range of issues and impacts. These include: experiences in other jurisdictions; cost recovery; the impact on landlords and tenants; enforcement implications, and the effectiveness of other methods, other than code requirements, to achieve our goals. Also, in developing the regulations for the existing building standard we will be careful to ensure that they are in harmony with rent control provisions in Bill 121."

If I was concerned before, I am even more concerned now. It is obvious that if you were even going to consider including existing buildings in the requirements of Bill 112, you could have done your homework, quite frankly. I have stated all along that I have no difficulty with those provisions that are in the area of health and safety; obviously, that goes without saying. But if you're going to bring in an amending bill to the Ontario Building Code that might affect existing buildings, why wouldn't you have done your homework first? Why wouldn't you already have consulted with these people before you pass a bill which includes existing buildings, before you pass a bill that says the Lieutenant Governor in Council may make regulations to establish standards that existing buildings must meet even though no construction is proposed, including regulations etc?

I think it's appalling that you put at risk property owners and people who have to live in those properties in this province by even considering that some of the far-reaching ramifications of this bill might apply to existing buildings, whether or not they're affordable, whether or not they're realistic.

When you talk about finding out experiences in other jurisdictions, I mean, surely to goodness this could have been done. It's like so many things this government is doing: It steps forward with its big feet in an ideological direction, and it's so bent on it that it doesn't take the time to do the homework first.

When you talk about cost recovery and then you go on to say, "We will be careful to ensure that they are in harmony with rent control provisions in Bill 121," well, I want to tell you, there's no harmony in Bill 121. There's no harmony of rights for tenants or property owners. So when this answer is tied into a reference to Bill 121, it gives me even greater concern.

I don't like handing off the responsibility. I realize I'm in opposition and that I'm powerless, as an opposition member with a majority government, to really do anything substantive in stopping this steamroller that's going down the track, but I am gravely concerned about the fact that the kinds of implications that are in this section are so serious and so severe and yet no homework's been done on it. It is totally unacceptable on behalf of the public of this province and it's totally inexcusable.

I'm not happy because I'm also powerless to have anything to do with regulations. The public doesn't understand this, nor has it needed to in the past; but by Jove, they're going to be understanding a lot more when we get through with this session of this government in the next two years.


The public doesn't understand that government brings in legislation for public debate, even public hearings, through the committee process, but after that the government can go away with its new bills, its new direction through legislation, and pass all kinds of regulations that never come back into the public forum for discussion or debate again. So whatever these regulations are that are to be developed by the Housing ministry under Bob Rae's socialist government today, I have no opportunity to debate those regulations. When I see the answers that have come out during our hearings and our clause-by-clause on Bill 112, the concerns I had before we got into this process are even greater.

Let me give you one example. We asked the question, and interestingly enough -- I don't think I'm wrong in interpreting this -- I think Mr Ron Hansen, the member for Lincoln, raised a question about plumbing; if you build a new bathroom or a new kitchen as an addition to your house, even though your existing house had an existing plumbing standard, would that new addition have to meet the new plumbing standard? I felt that Mr Hansen, in asking the question, was asking from an experiential base he had that I don't have. We have not experienced that, personally.

In any case, the parliamentary assistant took the question and has printed an answer. The question here is, "How does the plumbing code address renovation of the plumbing systems and what are impacts of Bill 112?" The answer is: "The present plumbing code regulation made under the Ontario Water Resources Act will require that all fixture replacements comply with the plumbing code of the day. Also, where the location of a washroom is changed" -- and that's the example Mr Hansen was giving -- "and new piping is installed, or the old piping is extended, the new provisions of the plumbing code would apply. In both cases water-efficient fixture" -- I guess it should be plural; it's a typo -- "in both cases water-efficient fixtures would be required."

I've said before that I'm in favour of anything that conserves energy. I'm in favour of water-efficient fixtures, but I'm not in favour of changing the rules in midstream. If you've got an old house and somebody's building an addition or doing a renovation, if the requirements of the new plumbing code have such an impact that all the intake and out-take plumbing from that whole building are affected, then I think it's unrealistic and I think it's unfair. Maybe people, through necessity, have had to expand their existing home. Maybe they can't afford to buy a new one and their family's expanded or their family's coming home -- all the examples that we know our constituents are experiencing on a daily basis. Maybe they've decided that, based on a certain cost, they can go ahead with the project to expand their dwelling units. But, my goodness, if as a condition of that expansion they have to meet the plumbing code of the day for all fixture replacements, which is what this answer says, then I think we're being unfair and unrealistic to the people of this province.

We also talked about ceiling heights with Mr Hansen, and there was another member of the government who was asking about ceiling heights. It may have been Mr Perruzza, but I don't recall. It was somebody who knew something about the significance of ceiling heights. The answer here is similar. I'm not going to take the time to read into the record six paragraphs about what this answer is. But the thing is that it's a significant answer, because this is the same government that is pushing for the development of additional units within an existing building, namely, basement apartments or accessory apartments.

Madam Parliamentary Assistant, you want to solve the housing problems of this province by putting people into basement apartments, accessory buildings and accessory apartments -- not my solution, by the way, nor that of the Progressive Conservative caucus. Our view as the future solution to the shortage of housing in this province is not a view from a basement window. We have a greater vision for the provision of housing in this province. But having said that, you're the people who are going to encourage people to make renovations to accommodate additional units in their existing buildings, and at the same time you're passing a building code which will have new requirements in it for those people, which means additional costs.

That's bad enough in itself, I think, in terms of single-family homes. But when you start looking at the 150,000 property owners in this province who have invested in property in order to give a home to someone else, then I think the whole thing becomes unbearably onerous and unbearably expensive.

The fact that you are looking at something being in harmony with the rent control provisions of Bill 121 says to me that there is no security that existing buildings will not be exempt. You're obviously going to make the decisions for those 150,000 property owners in this province. They might as well accept that, down the road, they will be asked to comply with some of the conditions we can see that are covered in this bill, let alone those regulations that we have not yet seen. They're going to have to comply with them.

I must say too that I did acknowledge that Alexandra Samuel very kindly faxed me a response from Hansard that was given by the parliamentary assistant at the point when I was not in the room on September 3. In this response, Ms Harrington is replying to my question where I did request an amendment guaranteeing the exemption of existing buildings. In this response, Ms Harrington said:

"Our commitment to full public consultation on the development of all regulations means that we would not wish to make any final decisions on what will and won't be part of the code for existing buildings until all concerned groups have had a chance to contribute. As Ms Marland pointed out herself, certain additional areas, like energy efficiency, could possibly prove to be broadly accepted by the public and all interested groups for inclusion in an existing building code. It's impossible to say at this time what kind of measures would be included."

That's the sentence that gives me the most concern. I guess from a practical standpoint I'm very disappointed, because I don't think you can bring in new standards into a building code and then say, "It's impossible to say at this time what kind of measures would be included." You have no right to bring in new requirements in a building code "that may affect existing buildings." You have no right in a democracy, I would suggest, to change the rules in the middle of the game, and if you don't know what kind of measures would be included at the time you're bringing in this bill, 112, then I would suggest that the bill is premature to include existing buildings at all. If you want to include existing buildings at a future date, then do it after you've done your homework. But I think what's happening here is not in the public interest of this province.


The Chair: Thank you. Ms Harrington, and we are on 34(2). It has been split.

Ms Harrington: Right.

I think you've expressed how you're seeing this, but I believe that you're viewing it a little bit from a different perspective and I'd like to try to explain that to you. I have, I think, explained before what enabling legislation is.

But let me start by saying that there is support for having a code for existing buildings from various groups, as you may remember from two weeks ago; and one is from the Toronto Area Chief Building Officials Committee. What they said in their second page is:

"We are enthused about the prospect of...having a set of established standards for existing buildings. As buildings age, they need repairs, maintenance and even upgrading. Some kind of a code for existing buildings" -- and they said "some kind of a code," which is to be developed, obviously -- "would go a long way in ensuring our buildings are safe and continue to be fit for occupancy. It can be argued from the public safety point of view that a code for existing buildings is just as important as the building code for new construction."

I would put that last sentence to anyone in this province and I think they would agree, if they stopped to think about it, that a code for existing buildings is just as important as the code for new buildings.

I want to point out at this time, and I've said this before, that this type of legislation is what we call enabling legislation and it's quite common -- this is not an isolated case -- where it gives the ability to proceed, not to lay it in stone in black and white as to what it will be, but it opens the ability to proceed with this; and it was also in the Liberal Bill 103. There was an enabling provision for certified professionals and also an enabling provision for a code for existing buildings. So this is nothing new or strange, and I put that to you and I'd like you to try to understand that.

The third point I want to stress is this whole procedure for setting up regulations, and that is, a code for existing buildings. I have given you on paper just yesterday some details of that procedure and how it would work, because that was the question asked of me -- I can't remember exactly who asked it -- two weeks ago, and we discussed it at length two weeks ago.

I spoke with many of the presenters who came here about being involved in that process. It is a public process. Certainly MPPs and any constituent who is interested can be part of this.

But in the past the development of regulations under the building code has mainly been done by people in the field -- the builders, the professionals, the building officials, the people with the hands-on experience -- and that's probably the way it will be done in the future. Maybe my staff might like to talk about that a little further. I haven't been directly involved in that process in the past, but it is going to be an exciting thing. As you say, the word right here from TACBOC was "enthused" about starting this process and how important it is. It's not going to be done overnight; it's going to be many years, and certainly I think you should be part of the process.

Mr Tilson: The difficulty if the government section with respect to existing buildings passes is that I believe that all of your plans for the basement apartments, the accessory apartments for which the plans are being put forward by the government, all of that's going to be scuttled. Mr Hansen was quite right. Why would anybody renovate? Why would they go to that expense? Because the restriction on existing buildings are going to be astronomical.

You've kicked the landlord with Bill 4 and Bill 121. You've literally kicked them. You've put restrictions on them. They can only do certain expenses because of the percentage increases they're allowed each year. Now, with this, you're stepping on them, you're squishing them into the ground.

Mr Dewan is perfectly correct in his submissions, and I would ask Ms Harrington and other government members of this committee to read Mr Dewan's paper before this finally comes to the House. Read it again. He's not kidding. All the sections that are being put forward -- well, there are three comments. I'm not going to read them; you can read them yourselves. I hope you will take the time to read them. He did make them. If you listen to what he's saying, none of what you're saying, with all due respect, Ms Harrington, makes any sense at all.

The Chair: Could we now move the Liberal motion? I would like to call it subsection 34(2). Shall the Liberal amendment to subsection 34(2) carry?

Mrs Marland: Recorded vote.

The committee divided on Ms Poole's motion, which was negatived on the following vote:


Daigeler, Marland, O'Neill (Ottawa-Rideau), Poole, Tilson.


Harrington, Lessard, Mammoliti, Perruzza, White, Wilson (Kingston and The Islands).

The Chair: We'll now move on to the Conservative motion to subsection 34(2) and we will come back to the Liberal motion to subsection 34(3). I simply note for the record that it is 4:30.

Mrs Marland moves that 34(2) of the bill be struck out and the following substituted:

"34(2) That before this act can be proclaimed into force the government shall introduce legislation to establish in law the standards that existing buildings must meet even though no construction is proposed, including statutory provisions,

"(a) prescribing any or all of the matters set out in subsection (1) as applicable to existing buildings;

"(b) establishing standards of maintenance, occupancy and repair; and

"(c) prescribing standards related to resource conservation and environmental protection.

"(d) providing that the act apply to buildings whether erected before or after it comes into force.

"(e) providing that any provision of that act or a regulation under it may be limited in its application territorially or to any class of building, construction or demolition.


Mrs Marland: I think I have placed my concerns on record. The only part that isn't included in this amendment, and I guess you have to understand the legalese to know why it isn't actually spelled out in this amendment, but I am on record now two or three times as I have said that I'm completely in favour of upgrading existing buildings as it pertains to personal health and safety. For example, I know that the Ontario fire marshal has full powers to apply any changes under his code to existing buildings. Anything else that pertains to personal health and safety in a building, I'm suggesting we are supportive of applying it to existing buildings. I'm simply saying that those areas I've already addressed are areas where I support them being incorporated in new buildings but not applying to existing buildings.

Just one brief comment, since we are trying to be brief. The government is talking about making energy conservation, and one of the methods of that is to revise the plumbing code. It is beyond me to understand why the government isn't looking at other energy conservation measures, such as the example I gave of the automatic shutoff of lighting systems. In reply to my question about energy-efficient technology in new buildings in Canada, and in particular in Ontario, the ministry has written me a three-paragraph response, but for the record, I only want to read you one final sentence, because this is its reason for not doing anything in that area, and I don't accept it. It says:

"It is also important to realize that European" -- I had used that as an example -- "is quite different than the North American system. Mandating a particular technology should be looked at in the context of Canadian building construction and safety standards." Of course I would want it to be looked at in the context of Canadian building construction and safety standards. The final sentence is, "The ministry continually reviews developments in other countries and foreign codes."

I ask, "So?" I don't want the ministry to continually review. In this particular example, as part of energy conservation, I'd like to see them require, therefore, down the road, conservation of our environment, something that deals with energy-efficient technology such as automatic shutoff lighting systems.

I'm sorry that was a negative answer. All the ministry is doing is continuing to look at that particular subject.

Our amendment is trying to be helpful. We were moving that subsection 34(2) be struck out, but we felt we weren't saying we wouldn't consider some areas of application of this act, and I think that's simply all this amendment is saying.

Mr Tilson: I think Mrs Marland has adequately expressed my view. I will say, in addition, that we've gone through a number of rent control hearings in the last couple of years, and there's no question that the housing stock in this province is in serious trouble. Seventy-five per cent of the housing stock is 20 years old or more. I forget what it is, but it's a substantial amount of the housing stock throughout the province. It's quite old and deteriorating.

We've heard very sad stories from around the province of tenants who are living in substandard conditions. We've heard from landlords who simply say they don't have the financial resources to remedy these things. We've heard from members of the government continually talking about how they want to promote energy conservation projects, yet there doesn't seem to be any effort to sit down with the tenants, with the landlords, with the government, to deal with these issues. We're simply getting the sledgehammer, banging the landlord on the head and saying: "This is the way it's going to be and that's that. It doesn't matter whether you've got any money or not; that's what you're going to do. We're not going to discuss it. We're not going to tell you how to do it. We're just going to pass it, and that's that."

That's opposed to putting forward proposed legislation in some sort of consultative effort among the government, the tenants and the landlords and how we're going to deal with all of these very serious issues to improve the housing stock and the quality of life of the tenants in this province. I would submit that unless you put forward such legislation, you are not doing that. So I would ask members of the committee to support the amendment as put forward by Mrs Marland.

Ms Harrington: I'd like to comment briefly. I find extremely contradictory a couple of the statements I have just heard. You're saying we're just going to pass it, when we've just been discussing for the past hour or so how we want to consult with regard to an existing building code. This will certainly be, as you heard before, with landlords and tenants and many others. I've heard the comment that we should line up our ducks first. You can't be saying one thing and then the other.

Mr Tilson: They've never heard of it.

Ms Harrington: They have been here and they have heard it. On the one hand, Ms Marland is talking about European technology and getting this involved here, and that's what we're saying we are doing over the next few years, getting innovative ways of building. Half an hour ago I heard one thing, and now I'm hearing a completely contradictory item. I think we should get together on this, because I do believe that we want to go in the same direction.

Mr Tilson: Support the amendment; that's what I'm saying. Let's get together. Let's move the motion forward.

Ms Harrington: All right.

The Chair: I wonder if we might then put the motion.

Mrs Marland: Excuse me, I can't let that comment stand. Not from this party have we heard any opposition to innovation in building design, building material or any other amendments to this code that are relative to new buildings where the public benefits. I have not changed my position, nor has Mr Tilson, in our comments of half an hour ago.

Half an hour ago we were discussing this disgusting convolution of paragraph 34(1)6.1 and the fact that it's necessary, according to the parliamentary assistant, because of the number of new materials that are coming into the building and construction marketplace. We're talking about a technology that is another way of saving electricity in the example that I just gave. We are in favour of improved technology that reduces the cost of operation of buildings in this province, be they private homes or public, commercial buildings. What we're saying is that you can't go and change the rules in the middle of the game.

Ms Harrington: With innovative standards for existing buildings.

Mrs Marland: Yes, it may be, Madam Parliamentary Assistant, that it is a benefit to put a new kind of light switch in an existing building. But I'm not going to put that burden on that building owner if it costs him more to go through and rewire and reswitch all the installation in that existing building than the amount of money he saves on the cost of electricity, although goodness knows, with our socialist board at Ontario Hydro, we probably are going to have increased costs in electricity. So it may end up being cheaper, as an example.

I'm simply saying you can't mandate it. Give the option to the property owner. If it's approved as an option under the building code to have energy-efficient technology for automatic shutoff of lighting systems, you can't mandate it. Give them the scope of applying it if it's going to save them money and it's going to save energy and the environment down the road. So we're not changing our argument.


The Chair: I now put the question.

Mr Tilson: Recorded vote.

The Chair: Recorded vote. Shall the Conservative motion, the amendment to subsection --

Ms Harrington: We need our other person here.

The Chair: I'll have to call a recess then.

Ms Harrington: I'd like to call a recess for two minutes. Who are we looking for? I can't remember.

The Chair: I don't know.

Ms Harrington: May we proceed?

The Chair: I would put the Conservative motion, the amendment to section 34(2). A recorded vote.

The committee divided on Mrs Marland's motion, which was negatived on the following vote:


Daigeler, Marland, O'Neill (Ottawa-Rideau), Poole, Tilson.


Harrington, Lessard, Mammoliti, Perruzza, White, Wilson (Kingston and The Islands).

The Chair: We now move to the Liberal motion, which has been split, on 34(3). I simply note that there's also a Conservative motion 34(3). At the risk of being repetitive, I would indicate that the time is now 20 to 5.

Ms Poole: In view of the fact that our amendment to subsection 34(2) has failed, I will withdraw subsection (3).

The Chair: Okay. The Liberal motion 34(3) has been withdrawn. We then turn to the Conservative motion 34(3). Is there someone to speak to the Conservative motion?

Mrs Marland: Yes, Mr Chair.

The Chair: Mrs Marland moves that subsection 34(3) of the bill be struck out and the following substituted:


"(3) Every regulation made under subsection (2) applies to buildings erected after the coming into force of this act, but only those regulations made under subsection (2) that deal with health or public safety apply to buildings erected before the coming into force of the act."


Mrs Marland: My comments are on record, and obviously my concern about exemptions for existing buildings from the building code changes is that they apply unless they are required in order to meet health or public safety regulations. I've already referred to that in earlier debate.

The Chair: Indeed.

Ms Poole: I was just going to question whether this in fact should continue to be debated since the Conservative motion to subsection 34(2) had failed. But at this stage we've debated it, so we may as well vote on it.

Mrs Marland: Recorded vote.

The Chair: Recorded vote.

The committee divided on Mrs Marland's motion, which was negatived on the following vote:


Daigeler, Marland, O'Neill (Ottawa-Rideau), Poole, Tilson.


Harrington, Lessard, Mammoliti, Perruzza, White, Wilson (Kingston and The Islands).

The Chair: We then move to government motion 34(3).

Ms Harrington moves that subsection 34(3) of the bill be amended by striking out "subsection (2)" in the first and second lines and substituting "this section."

Motion agreed to.

The Chair: We then move to government motion 34(5).

Ms Harrington moves that section 34 of the bill be amended by adding the following subsection:


"(5) The purpose of the regulations made under this section is to establish standards for public health and safety, fire protection, structural sufficiency, accessibility, conservation and environmental integrity with respect to buildings."

Members will recall some discussion on this earlier. Any discussion at this time?

Mrs Marland: I don't think we can pass this without understanding what the words mean, and we certainly know what most of the words mean. Conservation and environmental integrity are probably going to fall into that wonderful catch-all that's interpreted under paragraph 34(1)6.1. When nobody knows what conservation and environmental integrity are, they're going to be able to read this marvellous statement about "appropriate degrees" and "transparency" and "hence, predictability." I think, in fairness, maybe the parliamentary assistant should tell us what "environmental integrity" is with respect to buildings.

Ms Harrington: This is a purpose statement which generally guides the purpose of the building code, of the regulations. I think it is clear. It states six different aspects that are the purpose for which we have a building code in Ontario.

Mrs Marland: I'm sorry. If you want to read your reason for the amendment, fine --

Ms Harrington: I didn't.

Mrs Marland: -- but I still would like to know what the words "environmental integrity" mean with respect to buildings, and I think the public needs to know.

Ms Harrington: That certainly is something that is fairly broad when we say "environmental integrity." It gives a direction, and I think from some of the things you were talking about with regard to buildings, those would fall under this kind of purpose.

Mrs Marland: In fairness, you haven't heard me use the words "environmental integrity." You can't tie your answer into something I've said. I want to know your explanation of "environmental integrity."

Ms Harrington: What I was saying was that some of the concerns that you had, the directions you'd like to go in the future, and you were giving specific examples of that, would fall under this direction or this purpose.

Mrs Marland: Which ones?

Ms Harrington: The ones with regard to, say, having light switches that go off automatically, some of your other concerns with regard to buildings.

Mrs Marland: That comes under conservation.

Ms Harrington: Yes. It's conservation and environmental integrity.

Mrs Marland: I know what conservation is. That's one of the things I was referring to about controlled light switches. I'd like your answer about what environmental integrity is.

Ms Harrington: Very frankly, I can't give you a one-sentence answer.

Mrs Marland: Can you give it to me in two sentences?

Mr Tilson: Or three.

Mrs Marland: I'm asking the parliamentary assistant what environmental integrity is so the public of Ontario knows.

Ms Harrington: I think most people generally understand the concept of environmental integrity. What it is, and I haven't thought of each word, is that what we pass on to our children is going to have the same kind of wholeness that we inherit and we cannot deteriorate what we have; the concept that we cannot do anything we wish, that we have to think about the wholeness, the integrity of where we live, which in fact is this planet.

Now I don't want to go on and on and get too idealistic or broad about it, but I think when you say the words "environmental integrity" to people, even with school children, there is some understanding that "integrity" means a wholeness, that is, this planet, and we have to have that. Most people understand this more and more, that we have to think in those terms.

The Chair: Further comment on this section? I would then move the government motion, the amendment to subsection 34(5). Shall the amendment carry?

Motion agreed to.

Section 34, as amended, agreed to.

Section 35:

The Chair: Ms Poole moves that section 35 of the bill be amended by inserting after "construction" in the second and third lines "maintenance, occupancy, repair."


Ms Poole: This was actually an amendment that I hoped would not have to be moved because it was only to have been moved in the event our previous ones failed.

This amendment was suggested by the Urban Development Institute, which felt that if you are making a provision for a code for existing buildings, then this section, which refers to bylaws respecting construction or demolition being superseded, must be expanded. Basically, they were saying that they wanted consistency throughout and that it should be very clear the building code would supersede local bylaws regarding maintenance, occupancy and repair.

The Chair: Any discussion? I will put the question. Shall the Liberal motion --

Mr Anthony Perruzza (Downsview): Mr Chairman, I'm not quite understanding what it is Mrs Poole is trying to achieve.

Ms Harrington: Could I ask my staff to clarify?

The Chair: Mr Perruzza, you were asking a question of Ms Poole?

Mr Perruzza: Yes. She's introduced an amendment to section 35 and in listening to her explain, I'm not understanding what it is she's trying to achieve through the introduction of her amendment. I'm just asking if she could expand on that a little bit because this section concerns me as well.

I sat on a municipal council which proceeded to do all kinds of things with its bylaws that didn't necessarily -- I wouldn't say conform to the building code, but rather supplemented the code in many areas. In fact they tried to pass a motion and a planning resolution which essentially allows for different type houses in different sections of the city with different coverage. So quite frankly, municipalities have an awful lot of jurisdiction when it comes to construction and to planning and so on and so forth.

When I read what it says here in the act and then I listen to Mrs Poole, I'm not understanding clearly what she's trying to attempt. I'm not trying to extend the meeting hour because I know we're reaching that hour where people's stomachs begin to grumble, but I think this is important, so if she could explain briefly.

Ms Poole: Just very briefly, perhaps it would help if I mentioned to committee members that section 35 as it stands right now, the building code, which is the regulations, and this piece of legislation, 112, supersede all municipal bylaws respecting construction or demolition of buildings.

However, what it doesn't refer to is maintenance, occupancy and repair of existing buildings. Since that is now under this piece of legislation being brought into the code, then to be consistent it should say that the building code would supersede those municipal bylaws as well, that if the building code is going to supersede, then it supersedes across the board any of the municipal bylaws that relate to building code matters.

Mr Perruzza: If I understand this section correctly, and maybe we can get a staff person to expand on this a little bit, that's precisely what this does. It says that the code supersedes all of those bylaws and would cover all of those areas that are incorporated by the code.

Ms Poole: But only relating to construction or demolition. Now this legislation has expanded what the building code covers to also include maintenance, occupancy and repair, and section 35 is silent on those three things. What UDI argued is that if you're going to be consistent, if you are going to have a code for existing buildings, then surely all of those municipal bylaws should be superseded by the building code or the Building Code Act.

Ms Harrington: I'll ask our staff to clarify why it's not.

Mr Wildish: As has been mentioned earlier, making up the code for existing buildings is going to involve a great deal of consideration of legislation, consultation and so on and it certainly would involve a look at property standards and other municipal bylaws. Some of these bylaws may well be things the code for existing buildings does not wish to regulate and they should stay in effect in municipalities.

Until it's determined exactly what would go into a code for existing buildings, we would not want to supersede them all. Those ones that become a part of a code for existing buildings eventually, of course, would supersede anything dealing with that left to the municipality, but those that stay with the municipality we wouldn't want to supersede. So putting a blanket clause at this time might cause difficulties.

Ms Poole: So the problem again is with the timing. The plans for dealing with existing buildings aren't far enough along that you know what exactly you want to supersede and what you don't.

Mr Wildish: We await the consultation process and development approval of the contents of the code for existing buildings.


Mr Perruzza: I asked the question, Mr Chairman.

The Vice-Chair (Mr Hans Daigeler): Mrs Marland raised her hand first, but if she agrees that Mr Perruzza continue with his question --

Ms Poole: He still actually had the floor, I think. He was asking me a question.

The Vice-Chair: Okay. Mr Perruzza, please.

Mr Perruzza: I listened to the explanation and I'd just like to make an observation. I think we all would like to see a code that is as simple and unobtrusive as possible in allowing, I think, primarily small builders, small contractors, individual home owners to be able to construct a home or to make additions and renovations to their homes as expediently as possible, without burying them in red tape and without forcing them to have to undergo undue costs, because we all know how expensive the entire process is. I for one believe in a simplified process that is cost-effective, especially in a time when we're buried in the middle of a recession and we desperately need people, individuals out there, who have money to do and undergo these kinds of additions, renovations, construction, so that we can get our economy back moving again.

Allowing a little flexibility in both the code and the act and allowing municipalities a little flexibility I think is fundamentally a good thing, so that they can adequately respond to local needs. So I have no problem in supporting section 35 as is, after having listened to both explanations.

Mrs Marland: I don't understand the Liberal critic moving this amendment, and maybe she would like to answer my question, because section 35 reads, "This act and the building code supersede all municipal bylaws respecting the construction or demolition of buildings." You want to add the words to include "maintenance, occupancy and repair."

You supported exempting existing buildings from this act and now you're putting something in that obviously covers existing buildings because you're referring to maintenance, occupancy and repair. At least if you're going to maintain something, occupy it or repair it, it has to be existing.

The Vice-Chair: I'm sure Mrs Poole would like to answer that.

Ms Poole: Yes.

Mrs Marland: My concern is that I can't support this amendment because I think it's a direct reference to something that exists, if you're talking about maintenance, occupancy and repairing.

Ms Poole: Obviously I wasn't quite as eloquent as I thought I was in my opening comments on this section, because I did mention that I was hoping that this amendment would not be necessary to pass because we were hoping that our one on subsection 34(2) would pass, which would mean existing buildings would not be included in this particular legislation.

But the fact is that if they are to be included, then we would support UDI's submission that it should be consistent with the rest of the act and it should be very clear in each section of the act what is covered. I did allude to the fact -- in fact I thought I spelled it out fairly clearly -- at the beginning that this does refer to existing buildings. We had hoped it would not be necessary.

The Vice-Chair: Are we ready to vote now on the Liberal amendment?

Mrs Marland: I have UDI's comments here and it doesn't have anything on section 35.


The Vice-Chair: Seeing that we have nothing further, can we take the vote? Are we ready to vote on the amendment? All in favour of the Liberal amendment? Opposed?

Motion negatived.

The Vice-Chair: I understand there's a government motion with regard to section 35.

Ms Harrington moves that section 35 of the bill be amended by adding the following subsection:

"(2) In the event that this act or the building code and a municipal bylaw treat the same subject matter in different ways in respect to standards for the use of a building described in section 10, this act or the building code prevails and the bylaw is inoperative to the extent that it differs from this act or the building code."

Would you like to provide any explanation or are you ready for comments?

Ms Harrington: I think that was fairly clear.

Mrs O'Neill: It seems strange that about two minutes ago another member of the committee said that the municipalities do exactly what this act seems to be saying. Is this act then to stop these practices, because the reason I've got here says, "A municipal bylaw may not set a higher or lower performance level for any standard for the use of a building described in section 10." Is this the kind of thing we're trying to get away from that Mr Perruzza was bringing to our attention?

This is what's so difficult. The reasons for these amendments are so -- you have to take such a --


The Vice-Chair: Just a moment, Mr Perruzza. I think Ms Harrington wanted to clarify this.

Ms Harrington: I believe we put this in simply to clarify that where municipal bylaws overlap in some way with the building code, this is the one that supersedes. Further to that, I'd like to ask staff to make sure that is clear.

Mr Wildish: Further to Mrs Poole's question just a while ago about not having maintenance and occupancy included because we were not at this time ready to say specifically which piece of legislation would be excluded, there's one part of the new bill that is to come into force immediately, and that is the change of use, section 10. So we have to avoid conflict at that point.

Ms Harrington: That's what section 10 is.

Mr Wildish: Section 10 is referred to there. So if, as the amendment says, there is a different treatment by municipal bylaws, then the building code and the act must supersede. The point about this is that it's not conflict in the usual sense. You'll notice that it's a difference in -- I'm going to read you the right words here -- "municipal bylaws treat the same subject matter in different ways."

What's significant about that is that we're not wanting municipal bylaws to raise a standard or lower a standard. This is to restrict any change. You wouldn't want a municipality, for example, to set standards that were so high that by setting them so high it prevents change of use. On the other hand, of course, there are standards that set a bottom limit. You don't want them to drop below as well. So this is any change here, up or down, as the case may be, and this takes care of that eventuality for a change of use, which would come into effect immediately.

Mr Perruzza: Now I'm confused as well, because what I tried to say earlier, and I don't think I made my point, is that often municipalities will top up the minimum requirements in the code. What I mean by that is if in the code, for example, an exterior balcony railing height has to be 42 inches -- I believe that's the minimum requirement; I believe that's what's in the code now -- a municipality can, for safety's sake, come in and say, "We'd like ours to be 50 inches."

Obviously someone can challenge that, and if it imposes and adds unnecessary costs to the construction of a building, they can do it to the 42 inches and then fight the municipal inspectors and fight the chief building official and end up in the courts and at the end of the day eventually win the case. However, municipalities try to do those kinds of things through the structure of their bylaws, and quite often they succeed.

Our factor requirement in exterior walls is R-12. I think that's what's in the building code. Many municipalities have topped up that requirement for heat retention and cold air retention in the summertime, to take those seasonal adjustments to an R-20 factor. More often than not, they get away with it, because you're not going to find your small contractor, the builder or the owner who is making a renovation fighting the municipality and saying, "No, I can get away with building to an R-12 standard in my exterior wall and not go to an R-20 standard that's going to cost me $2,000 extra." Quite often, in order to issue those building permits, the municipalities will have those kinds of rules in place and more often than not get away with it.

I don't believe the R-12 requirement has been changed in the code, but if you check Scarborough or North York, nobody can build to that standard, because they won't get the permit for that standard. However, they can infringe on the minimum requirements that are in the code, and that happens quite often.

With what you've just said, I do not understand how that impacts on section 35 and how that limits the municipalities' ability to be able to make those modifications based on their own local needs and what they can get away with locally. Maybe you can explain that again.

The Vice-Chair: Perhaps I could just remind members of the committee that seeing we had agreed to finish at 4, perhaps they could keep their interventions as brief as possible.

Ms Poole: Mr Chair, on a point of order: I wish to correct a statement that was made earlier by the Conservative critic when we were talking about section 35. She said she didn't see any reference to it in the Urban Development Institute's brief. It may have been somewhat confusing, because they actually had it as part of their submission under subsection 34(2).

Mr Tilson: That is not a point of order.

Ms Poole: It is a correction when something incorrect is on the record.

The Vice-Chair: As the Speaker would say, it's a point of information but it's not a point of order.

Mrs Marland: I was speaking on the same point.

Mrs O'Neill: Would the staff be able to respond to Mr Perruzza? I'm interested in this. Is that what is happening here? I understand he's giving an interpretation that you can have higher but not lower standards in a municipality.


The Vice-Chair: Could we just have one conversation here, please.

Mrs O'Neill: Could somebody respond? We heard his statement, and I'd like to know whether his statement is a correct interpretation of what's possible under the act.

The Vice-Chair: Would you want to comment on the request by Mrs O'Neill?

Ms Harrington: I would like to ask staff to clarify that.

Mr Wildish: Section 35 says the act and the building code supersede all municipal bylaws. That statement is broad and it indicates that the act and the code occupy the field of regulations, and municipalities should not do anything in that field. They should not regulate buildings where the code does it. They may attempt to do so, that's another problem, but the legislation does say that the code and the act occupy the field and others should not be in it.

The new one is different. As you notice, the write-up takes a different approach. It deals with the same area, " different ways in respect to standards for the use of a building described in section 10, this act or the building code prevails and the bylaw is inoperative to the extent that it differs from this act or the building code." So the rest of the bylaw stays. This feature that differs, that's inoperative.


Mr Perruzza: So they'll not be able to top up; not break the law as stipulated in the code, but they would not be able to top up, because than they would be breaking the law as well.

Mr Wildish: That's the feature of this one. It's not just conflict, because with conflict it can sometimes be said: "We're doing the right thing. We're putting a railing" -- to use your example -- "a bit higher. That's even better, so we're not in conflict." This one does not take that approach. This says, "No, you don't go higher or lower."

The Vice-Chair: Are we now ready to vote on the government amendment to section 35? All in favour? Opposed.

Motion agreed to.

Section 35, as amended, agreed to.

The Vice-Chair: Sections 37 and 38 have been carried.

Section 39:

The Vice-Chair: Ms Harrington moves that section 39 of the bill be amended by adding the following subsection:


"(10) Despite the repeal of sections 76 to 79 of the Ontario Water Resources Act,

"(a) a permit issued under a bylaw made under subsection 77(1) of that act is continued as a permit issued under subsection 8(1) of this act;

"(b) a notice of non-compliance issued under the plumbing code made under that act and a notice requiring conformance issued under section 78 of that act are continued as orders issued under section 12 of this act;

"(c) an agreement made under section 76 of that act is continued as an agreement made under section 32 of this act."

Ms Harrington: This is just a transition from one to the other.

Motion agreed to.

Section 39, as amended, agreed to.

Section 42:

The Vice-Chair: Ms Harrington moves that section 42 of the bill be amended by adding the following subsection:


"(2) Despite the repeal of the Building Code Act,

"(a) a permit issued under subsection 5(1) of that act is continued as a permit issued under subsection 8(1) of this act;

"(b) an order made under that act is continued as an order made under the corresponding provision of this act;

"(c) an agreement under section 3 of that act is continued as an agreement under section 3 of this act."

Ms Harrington: This also is a transition from the previous act to this act.

Motion agreed to.

Section 42, as amended, agreed to.

Title agreed to.

The Vice-Chair: Shall the Chair report Bill 112, An Act to revise the Building Code Act, as amended, to the House?

Mrs Marland: I suppose, but we're not voting in favour of it going to the House.

The Vice-Chair: Shall the motion carry?

Bill, as amended, ordered to be reported.

Ms Poole: I have one final comment. We have had Colleen Parrish with us on two pieces of legislation, the Rent Control Act and the Building Code Act and the government has had her both times, so next time it's our turn, in the interests of fair play, to get Colleen Parrish on our side, for accessory apartments. How about that one?

The Vice-Chair: I'll leave it up to Ms Parrish to decide.

Mrs Marland: In fairness, the parliamentary assistant asked me earlier this week if our caucus would be willing to go to third reading on this bill. At that time, I said it depended on what happened with section 34 as it pertains to existing buildings. I want to state publicly that we are looking forward to the opportunity in committee of the whole House to try to at least remedy that glaring problem with the bill of exempting existing buildings, which has not been remedied through the committee process. So we will be dealing with that in committee of the whole.

The Vice-Chair: I'm sure the House leaders will have further discussions on this matter. Seeing no further discussion, it just behooves me to thank everyone involved, especially the staff, and the members of the committee for a lively and interesting debate and for good work.

Ms Harrington: I'd like to thank the committee as well.

The committee adjourned at 1716.