BUILDING CODE ACT, 1992 / LOI DE 1992 SUR LE CODE DU BÂTIMENT
TORONTO AREA CHIEF BUILDING OFFICIALS COMMITTEE
ONTARIO HOME BUILDERS' ASSOCIATION
URBAN DEVELOPMENT INSTITUTE OF ONTARIO,
METROPOLITAN TORONTO APARTMENT BUILDERS ASSOCIATION
FAIR RENTAL POLICY ORGANIZATION OF ONTARIO
ONTARIO NEW HOME WARRANTY PROGRAM
LARGE MUNICIPALITIES CHIEF BUILDING OFFICIALS
CANADIAN BAR ASSOCIATION -- ONTARIO
CONTENTS
Thursday 3 September 1992
Building Code Act, 1992
Toronto Area Chief Building Officials Committee
Agris Robeznieks, member
Anthony W. Chow, secretary
Ontario Home Builders' Association
Jeffrey Doll, chair, technical committee
Peter Goldthorpe, director, public affairs
Urban Development Institute of Ontario; Metropolitan Toronto Apartment Builders Association
Morley Kells, president, UDI
Fair Rental Policy Organization of Ontario
Philip Dewan, president
Ontario New Home Warranty Program
Barry Rose, president and registrar
Large Municipalities Chief Building Officials
Terry S. Dalkowski, chair, executive committee
Rocky Cerminara, member
Canadian Bar Association--Ontario
Erica James, president
M. Virginia MacLean, member, Bill 112 subcommittee, municipal law section
Irvin Schachter, member, Bill 112 subcommittee, municipal law section
Price Club Canada Inc
Joy Goodman, vice-president, legal affairs
Yvonne J. Hamlin, legal counsel
STANDING COMMITTEE ON SOCIAL DEVELOPMENT
*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:
*Carr, Gary (Oakville South/-Sud PC) for Mrs Witmer
*Hansen, Ron (Lincoln ND) for Mr Drainville
*Harrington, Margaret H. (Niagara Falls ND) for Mr Martin
*Lessard, Wayne (Windsor-Walkerville ND) for Mrs Mathyssen
*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
*Ward, Brad (Brantford ND) for Mr White
*In attendance / présents
Also taking part / Autres participants et participantes:
Arlani, Ali, manager, code development and advisory services, Ministry of Housing
Harrington, Margaret, parliamentary assistant to the Minister of Housing
Levitt, Jeffrey, legal adviser, Ministry of Housing
Wildish, George, special assistant to the director, Ontario buildings branch, Ministry of Housing
Clerk / Greffière: Mellor, Lynn
The committee met at 1005 in room 228.
BUILDING CODE ACT, 1992 / LOI DE 1992 SUR LE CODE DU BÂTIMENT
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'd like to call this session of the standing committee on social development to order. We are here considering Bill 112, An Act to revise the Building Code Act. Today we're going to be hearing from a number of witnesses who have come to present their positions on the bill.
TORONTO AREA CHIEF BUILDING OFFICIALS COMMITTEE
The Chair: First of all, I'd like to ask the representatives of the Toronto Area Chief Building Officials Committee if they would please come forward to the table. I wonder, gentlemen, if I could ask each of you to introduce yourself and, if you would, I think not only for Hansard but for some of us who are not quite as familiar with your organization, if you might just tell us what TACBOC is.
Mr Agris Robeznieks: Good morning, Mr Chairman and members of the committee. My name is Agris Robeznieks. I'm the director of the building division for the city of Mississauga and the chief building official of the city of Mississauga. Mr Tony Chow is with the city of Etobicoke and is the commissioner of buildings for the city of Etobicoke.
On behalf of the city of Mississauga, I thank you for this opportunity to comment on the proposed legislation, Bill 112, An Act to revise the Building Code Act. My comments not only represent the position that the city of Mississauga takes with respect to the proposed bill, but also are a reflection of and a position adopted by the Toronto Area Chief Building Officials Committee.
TACBOC, the acronym for the Toronto Area Chief Building Officials Committee, is a voluntary committee comprising the chief building officials from 13 municipalities in and around the Metropolitan Toronto area. The municipalities that are active participants in this committee are Brampton, East York, Etobicoke, Markham, Mississauga, North York, Oakville, Oshawa, Richmond Hill, Scarborough, Toronto, Vaughan and York.
These municipalities represent a population base of 3.5 million people and were responsible, in 1991, for an aggregate building permit value in excess of $5.5 billion, which is approximately 50% of all the construction value that's carried out in the province.
My comments are a result of a thorough discussion at TACBOC meetings over the last four years, commencing with the father of Bill 112, Bill 103, and finally with the current edition, Bill 112.
Allow me to comment that our agreed-upon position is that the Building Code Act has, since original proclamation with associated regulations in December 31, 1975, had a very positive effect on the building industry in the province, providing for uniform mandatory building regulations and standardized practices, where arbitrary diversity had previously existed in local municipal bylaws. In addition, the complementary increased emphasis on education and training in code-related matters, for building officials and builders alike, resulted in an improved product being delivered to the customer.
Over the ensuing years, a number of weaknesses in the original legislation have been identified and formally brought to the attention of the provincial authorities by groups such as the Ontario Building Officials Association, TACBOC and other concerned groups and individuals.
The proposed legislation represents the fruits of extensive consultation by staff of the buildings branch of the Ministry of Housing, building officials, architects, engineers and other representatives of the building industry.
The concerns as expressed by TACBOC have been addressed and generally incorporated in the proposed legislation. TACBOC is satisfied with the contents of Bill 112. However, we are submitting to the standing committee concerns that still exist and, in the opinion of the city of Mississauga and TACBOC, that should still be addressed. Mr Tony Chow, building commissioner of the city of Etobicoke, will address these issues in his presentation and submission to this committee.
Bill 112 represents a substantial rewrite to the current Building Code Act. Although some of the amendments are of a housekeeping nature, there are a number of significant proposals, both in terms of philosophy and implication, on the operation of a building division. The bill proposes to introduce greater flexibility, efficiency and effectiveness in the administration and enforcement of building regulations.
Although generally pleased with the overall contents of this legislation, TACBOC wishes to express its delight with respect to four specific amendments, namely:
1. Conditional permits can be issued for any stage of construction, even if the proposed construction might contravene some applicable law, if certain conditions as set out in the act are met.
2. The chief building official may allow the use of equivalent materials, techniques and systems not authorized in the Building Code Act, subject to the conditions set out in the building code.
3. The definition of "unsafe" is expanded in relation to buildings.
4. Fines for non-compliance are substantially increased.
We thank you for the opportunity to express support for this proposed legislation. We as a municipality and TACBOC as an organization have eagerly anticipated the revisions as proposed in Bill 112 and look forward to its early enactment.
Mr Tony Chow: My name is Tony Chow. I am also the secretary of TACBOC. Thank you for the opportunity to speak before your committee. As Mr Robeznieks just indicated, all 13 members of TACBOC are very excited about this bill and most of its content. We wholeheartedly support this proposed legislation. However, we ask your committee to consider the following four points of comment. They're really elaboration of the letter which our chairman sent to you on August 10, 1992. I believe you also have a copy.
The first point relates to the proposed clause 8(2)(a) which deals with applicable law. The act compels a chief building official to issue a permit unless, among other things, the proposed work contravenes the act, the code, or any other applicable law. But the term "applicable law" is not defined. If this term is defined, then the building owners and designers would have available guidance to ensure that all the plans and documentations are appropriately and expeditiously prepared, so as to save time. It would also result in less confusion among building officials and achieve much more uniform application of the act by the chief building officials.
One option we suggest is to follow this bill's predecessor, Bill 103, which was introduced in 1989, by defining "applicable law" as any of the laws described in the building code and then proceed to list these laws that would be affected or triggered by the proposed construction.
One other option is to define the term to mean "any law that places an explicit obligation on a chief building official not to issue a permit unless the law is or will be complied with."
The second point I'd like to address is inspection. Clause 12(1)(b) in the previous Bill 103 proposed to authorize entry by building inspectors for the purpose of determining if a permit would be required for the work. However, this authority is no longer found in Bill 112 and we believe this is very necessary, especially due to the fact that a subsection 10(1) is being introduced to require a permit when there's a change in use, even though there's no construction proposed.
The third point we have is on the warrant. There's no question that this current section is an improvement over the existing provision, which only permits a search warrant issued under the Provincial Offences Act. Under this act, it requires a search warrant to search and prescribe evidence to be seized. However, we find the idea of a warrant to inspect as suggested in subsection 22(1) of Bill 103 a more positive approach and we're confident that a justice of the peace would find it more comforting to issue an inspection warrant as opposed to a search warrant. The wording is certainly less threatening
The last point relates to section 34, where it lists a whole bunch of regulations that are authorized to be passed. In addition to the significant improvements mentioned earlier in Mr Robeznieks's presentation, one new provision in subsection 34(2) deserves special recognition. We are enthused about the prospect of one day having a set of established standards for existing buildings. As buildings age, they need repairs, maintenance and sometimes even upgrading. Some kind of code for existing buildings or equivalent would go a long way to ensure 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 current building code for new construction. I refer to the proposed clause (c) under this subsection 34(2). It would appear that the scope of standards for buildings has been substantially expanded or at least contemplated.
In order that further comments could be provided in the future, two basic philosophical questions must be asked. First, is the building code a set of minimum safety standards for all buildings, or is it intended to be all-encompassing and even include a social policy statement? Second, should the ultimate responsibility of a municipal building department be defined? Perhaps these two questions should be considered in assessing the resources needed by a municipality to fulfil the mandate under the Building Code Act.
In closing, I reiterate our support for Bill 112 and look forward to early proclamation of this act. Thank you very much.
The Chair: Thank you very much for your presentation and for the material you have left with us. I think you've raised a number of quite clear and specific points. We'll now open it up for questions, and I have Ms Poole.
Ms Dianne Poole (Eglinton): I'd like to thank the officials from TACBOC for their presentation today. It is extremely helpful to our committee.
We recognize that you have very strong support for the bill, which seems to be quite widespread, but you've raised a number of interesting issues. I'd particularly like to ask you about some of the sections that were in Bill 103 which you would like to see reinstated in Bill 112: for instance, the authority for inspections and also the warrants for inspections.
Would you like to give us some specific example where, as building inspectors try to do their job, the current legislation would not be as helpful in just having the search warrant as opposed to having the specific authority to enter and an inspection warrant?
Mr Chow: In the inspection area, when certain work is being done, especially in a house, in a residential building, it's not always evident that construction is going on. If the authority to enter for the purpose of inspection is limited, then there would be no opportunity or very little opportunity to find out whether or not the building code is triggered.
As I mentioned in my example, if subsection 10(1) comes into being, in other words, when the use of a building is changed to a more hazardous classification, the building inspector would not be aware of the change unless he had the authority to enter and see it for himself. This would also apply to commercial and industrial buildings. As to the protection for privacy of home owners, there is another section in the act which says that if it's a place used as a dwelling by a family, one cannot enter unless there is a warrant, unless we have enough grounds to get a warrant. We have no problem with that.
We do feel that in order to do our job properly, we should at least have the authority to go in and see whether the construction requires a permit.
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Ms Poole: Would you recommend that authority be put in the act that there be a provision regarding notice and that type of thing, or do you think it should just be the inspector's right to go into a commercial or industrial premise without any type of notice?
Mr Chow: Do you want to take that?
Mr Robeznieks: Maybe I'll take that. Just to preface the answer to your direct question, the difficulty we have with inspection of works that are believed to be taking place either illegally or in contravention of the code is that for us to gain access to the premises, we have to go to a justice of the peace and secure a search warrant. It's fairly difficult to convince the justice of the peace to issue the warrant and the requirement is that evidence be seized upon entry. If we believe the infraction to be a setback or zoning infraction, it's fairly difficult to seize evidence indicating that the building is being constructed closer to a property line than is permitted. If the ceiling height is lower than it should be, it's difficult to seize that type of evidence. You can't take a piece of drywall off the wall and show the judge that you've got some evidence here that there's work being done in contravention of the code. Typically, it's very difficult to get these types of warrants issued, and unless the owner of the property invites us in, there is no way we can verify that the work is being done in a fashion other than what is permitted under their bylaws or the Ontario Building Code. So any kind of relaxation at that end of it, or the definition of a warrant to inspect as opposed to a search warrant, would be beneficial.
In answer to your direct question, should we have the right to access, I don't believe so. I think we should follow the procedure outlined in the current act, which would require us to still secure a right to inspect, and that the right to inspect be limited to certain times of the day and so forth.
Ms Poole: If I could just ask for one point of clarification from the ministry: It's been a few weeks since I read Bill 112, but I thought there was a provision in there that would remove the seizure component for the search warrant. Is that correct?
Mr George Wildish: Yes.
Ms Poole: Would that alleviate your concerns at all, or would you still prefer to see the original wording in Bill 103 as far as the authority?
Mr Robeznieks: Our feeling was that the wording in Bill 103 was better wording than is currently in Bill 112.
Mr Chow: If I may add, I do feel that if the warrant simply states that the purpose of the visit is for inspection only and not to search -- "search" is a big word; you can search anywhere -- it limits the right of the inspector to do certain things that we may not want him to do. I feel it's less threatening.
Ms Poole: Thank you.
Ms Margaret H. Harrington (Niagara Falls): Thank you, gentlemen, for coming and for working with the ministry over several years now with regard to this bill.
You mentioned four different points: very good, clear concerns that you put forward. I thank you for your third point with regard to what we've just been discussing, the warrant to inspect. We will take your point into consideration, but we basically agree. Also, we certainly agree with the comments you made on the benefits of having some minimum standards for existing buildings.
Your follow-up points on that about the extent and philosophy of that, as well as the need for resources for the municipalities to carry that out, will certainly be part of the process that we will be going through in developing the code for existing buildings, and certainly you and everyone else will be part of that process.
On your first point regarding defining applicable law, we have our legal adviser here, Jeff Levitt, and I was going to ask him if he would be able to help me out in answering that question for you.
The Chair: Would you come forward to the microphone and be good enough just to introduce yourself for Hansard.
Mr Jeffrey Levitt: My name is Jeff Levitt. I'm with the legal services branch of the Ministry of the Attorney General. I am assigned to the client ministry of the Ministry of Housing.
There was an experience with the applicable law under Bill 103 in terms of defining what particular laws would be applicable and should be included in that type of regulation. I think the TACBOC members are familiar with that experience. It proved difficult to define it in a way which addressed everybody's concerns and the list either wasn't too long or too short. But having had it brought up again, I guess what can be said is that it will take away the continued request of TACBOC to consider the idea.
Ms Harrington: Was that helpful at all?
Mr Chow: If I may, if it's so difficult for the ministry or indeed for anybody to come up with a list, imagine how much more difficult it is for the chief building officials to enforce the law.
Mr Levitt: If I could respond.
The Chair: We are a little tight for time and I do have Mr Tilson who has a question. I'm afraid as Chair I'm going to have to keep us to our half-hour, but if you could be fairly brief, please go ahead.
Mr Levitt: In terms of the difficulty that it wasn't difficulties of legalities, it was difficulties of practicalities: While there seemed general agreement about the various lists that went back and forth, some people said, "We'd like to see it shorter," some people said, "We'd like to see it longer," and the difficulties were more of a practical nature than strictly legal.
Mr David Tilson (Dufferin-Peel): I'd just like to continue on this point. Ms Harrington has indicated that she agrees with your comments with respect to the search warrant and you're saying you agree with issues on the concerns of what this phrase "applicable law" means. You've also made comments about the lumber issue, that you're going to change that one.
When delegations are coming to this committee, I think that if the government is agreeing with statements that are being made and saying, "Yes, we're agreeing with it and we're going to do something," it would be useful if we could see the proposed amendments the government is putting forward now so that delegations such as these could comment as to whether they agree with those proposals or not. Ms Harrington, I'd like you to comment on that, number one on the topic that is now before us with applicable law, and, number two, the topic that you agree with their comments with respect to the right to the warrant-to-enter-and-inspect issue and, number three, the lumber issue.
Ms Harrington: The lumber issue we have not talked about today, but what I was pointing out --
Mr Tilson: My question is not whether you have talked about it today or tomorrow or yesterday; my question is, I think it would be useful, and I'm sure delegations such as these would find it useful, that if you've got proposals drafted, we see them now. We could probably save a lot of time and I think it would be useful in hearing experts such as these comment on whether they agree or disagree with any proposed amendments you have.
Ms Harrington: Mr Tilson, the press release with regard to the lumber issue did go out at the end of July, and that is not part of this act at all; that is a regulation and that's very clear.
With regard to the comments these gentlemen have made, and I have responded to what they have said, what I was doing was noting that they are in fact agreeing with what we have put forward in the bill.
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Mr Tilson: I don't think so. I think we've just been talking about the subject of applicable law for a starter. I find very interesting the description of your dilemma. If I were a building inspector and I saw the words "applicable law" and I looked at all these other court decisions, ministry directives, other laws, I'd be bewildered too. If you've got an amendment in mind, I know the committee would like to see it ahead of time, as would delegations such as these.
Ms Harrington: I didn't say I had an amendment in mind. I asked our legal counsel to clarify with them, since I couldn't answer that question. I'm wondering if Mr Wildish could add anything to that.
Mr Wildish: You've raised three points here: lumber; inspection warrants or administrative warrants, as we called them; and the third, applicable law. I just want to clarify something. I don't believe Mrs Harrington gave support to the idea of putting the administrative warrant back in. I just want to clear that.
Mr Tilson: I'm sorry, I didn't hear you, sir.
Mr Wildish: I don't believe Mrs Harrington gave support to reinstating the administrative or inspection warrant. I don't think that's what you had in mind.
Ms Harrington: No.
Mr Tilson: You're not agreeing with that.
Mr Wildish: No.
Mr Tilson: That's fine.
Mr Wildish: I think that's what you said. I just wanted to make sure.
Mr Tilson: That's not fine, but I understand your position.
Mr Wildish: Yes.
Applicable law: I don't know that much more can be said on this point except that it has been a problem for many years, as you have heard. It is one we are committed to try to solve in whatever way we possibly can. The various options have been talked about, listing them all and so on.
We have indicated to our client groups, our stakeholder groups, that we're going to tackle this in the future for them, because it is important in some way. Whether it's a detailed list in the regulations, at the back as an appendix or as a definition remains to be seen as we try to address this problem.
We certainly recognize they're difficult, there's no question about that, and the ministry has certainly committed itself from time to time to deal with this. It's certainly on our agenda right now.
The Chair: Excuse me, I'm going to have to interrupt you in the interest of time. I think the issue has been set forward. I want to thank you both for coming before the committee. I'm afraid you were out of the room and we have to keep to our schedule. I'll certainly make sure you get on later, but I'm afraid we're out of time. Thank you again for coming.
ONTARIO HOME BUILDERS' ASSOCIATION
The Chair: I now call the Ontario Home Builders' Association. Gentlemen, welcome. I wonder if you would introduce yourselves, and please go ahead with your presentation. Do we have a document that's been distributed?
Mr Jeffrey Doll: Thank you for allowing us to attend and make our presentation. I'll introduce everyone. I'm Jeff Doll. I'm with Coscan Development Corp, a builder in the Ottawa and Toronto areas. I work with the Ontario Home Builders' Association and chair the technical committee. With me is Peter Goldthorpe. Peter is with the Ontario Home Builders' Association as the director of public affairs. He works very closely with the buildings branch of the ministry and is here to support what I have to say.
The Ontario Home Builders' Association represents home builders and renovating contractors throughout Ontario. Our member companies build approximately 80% of the housing stock in Ontario, and as an association we take a very keen interest in technical and policy issues that affect housing.
I understand from Peter that we're allotted a half-hour, and I'll try to keep my comments as brief as possible so we have some time for questions and answers.
There are three points I wish to cover. One has to do with the decision not to go ahead with a certified professional program. The second concerns the provision for as-constructed plans, more commonly referred to as as-built drawings. The third is about the building code. More specifically, we have concerns about the scope of the code and how it is reviewed. I'll go into each of those points in a little more detail.
With respect to the first, the certified professional program, I want to say that we feel it is unfortunate that this program was dropped. Our support for this program goes back several years. In December 1989, at the request of the buildings branch, we made a deputation before a committee of Toronto city council. Our presentation was in support of a pilot project -- and I emphasize pilot project -- that would have tested the certified professional program.
You probably know council eventually rejected this pilot project and the program is now out of favour. We think this program can be an important part of a solution to a very real and pressing problem. The problem is that the construction industry is cyclic. During peaks, municipal officials are hard pressed to process approvals and backlogs quickly mount.
A program of the certified professional program could provide an efficient means to increase resources on a temporary basis and prevent such backlogs. This becomes much more critical as we get busier, and we all hope in this housing industry that'll be soon.
The second point I want to raise has to do with the provision for as-constructed or as-built drawings. Section 7 of Bill 112 enables the chief building official to require that a set of plans of a building as constructed be filed with the chief building official on completion of the construction.
This is a legitimate requirement for public buildings that may need to be evacuated in an emergency. It's also a legitimate requirement for large structures that firefighters and other emergency personnel may have to enter. But in the housing industry, we see no justification for this requirement for residential structures built under part 9 of the building code. In housing, plans are frequently modified at the request of the purchaser, and this requirement could place an onerous burden on the residential construction industry and add substantially to the cost of housing, and we're all working to produce affordable housing.
The Ontario Home Builders' Association asks that part 9 structures, residential housing, be explicitly exempted in this permissive provision of the act. We're very worried about this.
The last point or points I want to raise have to do with the building code. As you know, the building code is a regulation made under section 19 of the Building Code Act. As a regulation, amendments are reviewed by the regulations committee of cabinet. There is no debate in the Legislature and no discussion in public hearings such as this one.
The user's guide at the front of the 1990 Ontario Building Code has this to say about the code:
"The code is essentially a set of minimum provisions respecting the safety of buildings with reference to public health, fire protection and structural sufficiency. Its primary purpose is the promotion of public safety through the application of appropriate uniform building standards."
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If this is all the code is, and it is all the code was for a number of years, cabinet review of amendments would be fine. But the scope of the code is expanding. As an example of the scope expansion, water conservation measures are being proposed in the current round of amendments. Energy efficiency has been around for a number of years, but the levels of insulation now being proposed go far beyond health and safety and offer the home owner no cost-effective payback. Other proposed changes would arbitrarily convert what used to be storage space into living space; I'm talking about the basement. Those are only three examples of scope expansion.
All these changes happen at a great cost to the home buyer. Our industry has estimated that changes in the 1990 building code added $2,500 to the price of a house. The proposed changes for basement insulation alone in the current round of amendments will add at least $3,000 on an average home.
As the scope of the code expands, two things happen. First, the consequences of change become more far-reaching and difficult to predict. Second, it becomes more likely that various policies or interests will come in conflict.
How do we reconcile a 5% or 6% increase in the cost of a starter home with a housing policy that sets affordability guidelines? We're very concerned about this scope of the code. The Ontario Home Builders' Association believes the government should pursue one of two options.
One possibility would be to explicitly limit the scope of the building code to requirements affecting health and safety. Given the importance of these concerns, it would then be appropriate to retain the regulatory status of the code and have amendments reviewed by cabinet.
Secondly, if the government wishes to pursue the current course of using the code to implement a variety of policies, we do not believe it is appropriate to keep the code as a regulation in the Building Code Act. Since the broader mandate means that amendments can have much more profound consequences, any proposed changes should be subject to full legislative and public scrutiny.
Thank you for your attention. If you have any questions, Peter and I will try and help you.
The Chair: Thanks very much for your presentation. We'll move right to questions.
Mrs Margaret Marland (Mississauga South): First of all, I'd like to thank you very much for the informative presentation. It's one I was looking forward to because my position has been -- and I actually put it on the record yesterday -- that I have supported, as the Housing critic for our party, the expansion of requirements that cover energy conservation, whether through plumbing or heating amendments, windows and so forth. I wanted to hear the argument because I knew there was a counterargument to it and I wanted to hear what it was. As I said yesterday, I'm here to listen and, if necessary, change my opinion.
I want to ask you a couple of questions, though. At the beginning of your presentation this morning you talked about these areas that I've just referred to being legitimate requirements for public buildings that need to be evacuated in an emergency. You also said it's a legitimate requirement for large structures that firefighters and other emergency personnel may have to enter.
It blows me away that you have actually made that statement, because you and I both know that firefighters and other emergency personnel have to enter every building. Some of the worst accidents, especially in recent months in my city of Mississauga, have been where the firefighter has been at extreme risk in the basement of a single-family home. I've forgotten what the term is when there's a combustion blowout, but one very severe injury involved that individual.
My concern is for public buildings to be evacuated in an emergency, yes, but I also have a very grave concern for individual, private homes that also have to be vacated in a situation of emergency. So I'd like you to comment further on that part for one thing, because a fire is a fire no matter what size the structure -- if it's one person in a single-family home or 500 people in an office building, the risk is still to human life -- and also to ask you a little bit more about the certified professional program. I'd like you to comment on the fact that you're looking for that to be in place during peak periods of construction.
I did say yesterday that it's very difficult for municipalities, from May to October, to process the demand for building permits. I'd like to know, with a certified professional program, whom you would see paying the fees of these paramunicipal employees -- I can't think of another term. Obviously, the municipality can't staff up for six months of a construction period. It's just not affordable for municipalities to do that. If the certified professional program were there to supplement the staff in the approval process during those peak periods, how would the fees be handled?
Today the public have tremendous protection because they can sue the municipality. Right now, they can sue the chief building official. I agree very much with that change in the code, where it goes from the staff to the municipality as a whole. Would the certified professionals have the same liability as a municipality has? That would be the second question.
Also, you were talking about the 5% or 6% increase in the cost of starter homes because of some of the areas going as part of the building code, which I personally support, particularly basement insulation and so forth. I don't know anything about construction, but you're professionals and you do.
Is it not true that if there were a 5% additional cost to that home because of insulation and other energy conservation requirements, down the road, the home owner -- if not that home owner, subsequent home owners -- would benefit from that, because he's got a more energy-efficient home, plus we're protecting the environment?
Mr Doll: Peter would like to answer the first one with regard to the fire concerns.
Mr Peter Goldthorpe: Mrs Marland, you're absolutely right, a fire is a fire. Firefighters lose their lives fighting fires in low-rise residential structures, they lose their lives fighting fires in high-rise apartment buildings and other large public buildings, and every life lost is a tragedy.
Our point is simply this: There is a considerable difference between a low-rise residential structure and high-rise structures and other public buildings that are not built under part 9 of the building code. At a certain point, we have to look at limited resources in society and we have to look at tradeoffs.
We feel it is legitimate to look at a tradeoff in this area for low-rise residential structures. If you started requiring as-built plans for every single low-rise residential house built in Ontario, you would add considerably to the cost of housing in the province, and I don't think it's a cost the people of Ontario can bear.
Mrs Marland : Just very quickly --
The Chair: I'm sorry. With the time we have, I want to make sure that someone from each party is able to address a question -- regrettably, we don't have more than half an hour -- and in fairness to the other witnesses. I believe you wanted to just respond to one other point and then I would need to move to Ms Poole and then to Mr Hansen.
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Mr Doll: There were two points Ms Marland brought up. One was the certified professional program. With regard to the cost that would be incurred during the implementation of a program, obviously the builder would be responsible for this and the builder would be hiring the professional to have his plan certified before submission to the municipality.
Under the new revisions, the chief building official is held liable. However, under the professional certified program, that liability would have to be passed on to the professional person who certified the drawings for submission. It becomes either a professional engineer or a professional architect, whoever would be implementing the program.
I'll be very quick and brief about the 5% and 6% cost of the home. Our market right now is very soft. We're building housing in the Ottawa area, and I know they're building it also in the Toronto area. To get a new home buyer in there, for $100,000 to $120,000 on a starter home, if we add 5% to 6% to that, we're defeating the whole purpose of a 5% down payment. You amortize the cost of a 5% or 6% increase on the cost of a home over 25 years. All I can say is that there are a lot of people who are buying homes and the difference in putting a down payment of $5,000 or $5,500 is going to make a difference as to whether they buy or don't buy. We have a real hard time with any increased cost in this market. We've really got our margins down, too.
The Chair: Thank you. Ms Poole and Mr Hansen, I'm afraid that's all the time we'll have on this part.
Ms Poole: I'll try to be brief because I know Mrs O'Neill has a question about the regulations.
The Chair: I'm sorry, just Ms Poole and Mr Hansen.
Ms Poole: Oh, I thought I could share my time.
The Chair: Perhaps if everyone could recognize it, usually we only have about 10 to 15 minutes for questions. I'm going to have to just have one person per party, I think, respond. If there's more time, fine, but we just don't --
Ms Poole: Mrs O'Neill will go then.
Mrs Yvonne O'Neill (Ottawa-Rideau): Thank you for coming, gentlemen. I find very interesting what you're saying here about the code and the development of the regulations and the process, because we asked this question yesterday when we were being briefed by the parliamentary assistant and the ministry officials and they indicated that there's a very -- if I remember correctly, and that was just yesterday -- strong, consultative process that goes on regarding the development of regulations.
We've had complaints about regulations in the Ministry of Housing before on other bills we've worked on, so I find this very strange that an organization as large as yours, operating in two of the major cities of the province, would have this complaint. Could you explain your input into the development of regulations and whether you're on those mailing lists that we heard about yesterday and whether you're on the consultative process end?
Mr Doll: Yes, I can. Our concern is that we, the Ontario Home Builders' Association, are a very large organization. We are very active in consultation with the ministry. We deal with the ministry. We have a technical committee which is made up of builders throughout the province, and we invite the public companies -- Consumers' Gas, Ontario Hydro -- and there are consulting engineers and builders on this committee. The purpose of the committee is to address concerns that we have with the buildings branch and the Ministry of Housing.
As the code is being amended for 1993, we have been involved in reviewing the draft proposals for code revision. We are submitting them to the ministry and the code committee is meeting again this fall. Our concern is that we are very interested in being involved and hope that we could be involved in an earlier process so that as the amendments are being prepared, you can use the expertise we can provide from our industry to the Ministry of Housing. We are the people who are out in the field. We are the people who have the experience. If we were involved at the amendment-development process time, then I think we could abbreviate our processing and come up with better codes. I hope that answers your question.
Mr Goldthorpe: If I could just add very briefly to that, what Jeff forgot to mention is that in the technical committee we have a member from the buildings branch who attends each of the technical committee meetings. Certainly, Mr Arlani is here and he has gone out of his way, over the years, to make sure that the OHBA understands the decisions and the process that are going through in the buildings branch. We don't have concerns specifically with those aspects.
Being part of the consultation process, where we have concern is that we think it would be more productive, given the increasing likelihood that you will be getting competing policy interests in the future, to be involved in exploratory discussions at an earlier stage. Let's face it: Once you have a proposal which is publicly circulated for comment, there's some investment in that proposal. It's inefficient and it's sometimes not expedient to reconsider the proposal at that stage. It can be reconsidered, or it can be examined and other alternatives can be looked at a lot more effectively if the interested parties are looking at it sooner rather than later.
Mrs O'Neill: Thank you for your very helpful answer.
Mr Ron Hansen (Lincoln): On page 2, down near the bottom, the second to last paragraph says: "Water conservation measures are being proposed in the current round of amendments. Energy efficiency has been around for a number of years. But the levels of insulation that are now being proposed go far beyond health and safety and offer home owners no cost-effective payback."
I cannot completely agree with that particular statement. One thing is that if we don't get into using the low-flow toilets and showerheads, the cost will will be borne by the house owner back through the municipal taxes in order to supply these services. It's actually a cost saving in the end. Not only that: Instead of putting in 10 homes in the area that would be serviced by the sewers and water, developers can wind up possibly putting in 20 homes. So the servicing has gone down a lot for the municipality, which will actually, in a sense, maintain the cost of the lots at a lower level because of the services.
The other thing too is that I built a home in 1972. I had taken the specifications at Hydro at that time, what it was doing for home insulation. I went the full extent. What I did in 1974 is paying off today. The one big area where there was a problem when they did a check on my house was in the basement. I was losing 25% of the heat out of the basement. By cutting back, that puts the house out there, but the home owner will have to come along after and pay an insulator and a contractor to come in to insulate his basement in order to save maybe 25% of his heating cost.
I know there are some regulations in there, like where a cold-air duct has to come down to the furnace and they have an electric heater just right next to it. The home owner moves in, stuffs a rag in the four-inch pipe coming down and it's no purpose at all. It's been put in by the contractor and paid for, but the home owner doesn't like to leave the electric rad on, so he plugs it so there's no fresh air coming in the basement. Some of these things have to be looked at in those areas. Could you comment on some of the areas where I don't agree with what you stated in here? Maybe you've got a better reply back to me.
Mr Goldthorpe: We didn't come here today specifically to discuss the building code. We mentioned the insulation as an illustration of the kinds of concerns we have with respect to scope. I can speak specifically to the full-height basement insulation proposed, but I can't speak specifically to the other proposals today.
In the case of basement insulation, we estimate that the incremental cost of going from two feet below grade -- I'll try to speak quickly -- to full height would be at least $3,000. The $3,000 amortized over 25 years at about 9% interest: You're looking at carrying costs in the range of $300 a year. Your energy savings from going two feet below grade to full height are approximately 17%. If you take 17% energy savings on an average heating bill of about $1,000 a year, you're looking at $170 of energy savings against a $300 cost. It's simply not a cost-effective upgrade.
Mr Doll: If I can just comment on that, Mr Hansen, since you built in 1972 codes have been revised many times. Our insulation is far superior now to what it was in 1972, so the 25% saving may have been effective in 1972, versus what we're now saving in basement insulation in comparison to what we're doing. We now have to put R12 in our basements two feet below grade, we've now got to put R20 in our walls and R32, I think it is, in our attics.
Our codes have progressively gone up, brought on by public demand. The consumer and the builder are coming to us and saying, "We do want conservation," but there is a point where the builder is saying to the consumer, "Yes, we'll provide you the conservation to a point where there's still a good payback." It's a diminishing return. The more insulation you get, you're not getting the same proportion of savings.
The Chair: Thank you very much. I know there are other questions and I regret we can't pursue them.
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Mr Anthony Perruzza (Downsview): On a point of order, Mr Chairman --
The Chair: May I just perhaps thank them and then we'll get to your point of order?
Mr Perruzza: Before you do that, my point is this: I know you're trying your darndest to be fair to all three parties, but I've been watching the clock and the allocation of time that you designated and allowed in questions and comments and speeches from both the Liberal and Conservative caucuses has spanned about 25 minutes. The time allocation to us as a caucus didn't exceed four both in questions and in comments.
The Chair: With respect, Mr Perruzza, we began the questions at a quarter to 11 and I allowed roughly, within a few seconds, five minutes for each party. I'm trying to keep it close to that. That will mean roughly one person from each party will be able to comment and/or question. I'm not keeping it right to the second, but close to that. Again, I just say with respect, we began the questioning at a quarter to 11.
Thank you very much, gentlemen, for coming. I know that representatives from the ministry are here as well, so there may be other questions they'll want to follow up with you.
Mr Gary Wilson (Kingston and The Islands): Just as a suggestion, maybe at the end of the presentation you could look at your watch and see how much time there is and then publicly say and divide it, how much each, and then we can use it. If people want to make speeches --
The Chair: I can do that and that's why I have this here. This is why I kept every caucus to roughly five minutes in that last exchange.
Mr Perruzza: Mr Chairman, I know you're trying to be fair and I appreciate that.
URBAN DEVELOPMENT INSTITUTE OF
ONTARIO,
METROPOLITAN TORONTO APARTMENT BUILDERS ASSOCIATION
The Chair: If the members from the Urban Development Institute of Ontario would be good enough to present themselves, we can then begin with your presentation. I know, Mr Kells, you've sat on both sides of this committee room, so I can also add, welcome back.
Mr Morley Kells: Thank you kindly. It appears to have been a long time ago. My thanks for the opportunity to be here today. With me I have Chris Fillingham of Dunlop Farrow, architects. Chris is a member of the executive committee of UDI and, as I will mention in a few minutes, he's also the chairman of the Joint Construction Council, which is a combination of UDI and the Metropolitan Toronto Apartment Builders Association.
Just to get it on the record, if I may, UDI is a professional, non-profit organization comprising firms engaged in the development of lands in the province of Ontario. The institute's activities focus on promoting wise, efficient and productive urban growth and is an effective voice of industry at all levels of government. It also serves the industry as a forum for the exchange of knowledge, experience and research on land-use planning and development.
The Metropolitan Toronto Apartment Builders Association represents the interests of multiple-unit residential developer-builders in the greater Toronto area. Its role is to regulate regulations between employers and employees, promote industrial development, safety and efficiency and liaise with organizations and government.
Also, the MTABA administers the Joint Construction Council, a joint creation of the association and the Urban Development Institute, which is composed of industry building standards experts. The council reviews and recommends changes to building and fire codes and other related technical standards issues. Representatives from the Ontario New Home Warranty Program and the buildings branch of the Ministry of Housing are ex officio participants in the JCC. As you may appreciate, then, our organizations share a vital interest in Bill 112 and its detailed proposals to revise the building code.
Our submission has been written with the assistance of our membership, and in particular Karl Jaffary of Gowling, Strathy and Henderson. It is presented today with the confidence that it represents the collective interests of the land and building industry. If I may, to get it on the record, Mr Chairman, bear with me as I read through it. Joining me is Richard Lyall, the executive director of the Metropolitan Toronto Apartment Builders Association.
Major omission: Under the previous bill, provision was made for something called a certified professional program. While the details had not been spelled out, the idea was that private sector professionals, architects and engineers, might be specially qualified as being capable of certifying that plans complied with the OBC. That concept is now being dropped.
While there were problems to be worked out in the concept, it had some very appealing features. Municipalities will never be able to staff building departments to meet high-volume rush periods, and they shouldn't try. Certified professionals would have shifted some of the functions on some permits to the private sector, permitted faster permit service in boom periods and saved the taxpayers from employing redundant employees in slow periods. This should be reconsidered.
Plumbing responsibilities: The responsibility for plumbing is being transferred into the code. There are a number of provisions permitting the government that is dealing with building permits, whether county or local municipality, to delegate plumbing inspection functions to a health unit, so approval of septic systems will probably remain where it now is for practical purposes.
Section 7 gives municipalities quite wide powers to regulate a number of things: classes of permits, forms of application, fees, times for notices, conditions for as-built plans and so forth. There may be some scope for local autonomy in some areas, but most of the matters should be subject to consistent, province-wide regulation. It makes no sense that foundation permits be available in only some municipalities or that the criteria as to when as-built drawings should be filed differ from place to place. Some chief building official will tell his council to require such drawings in all cases, adding perhaps $500 to the cost of every home, while another council will never require them except in special circumstances.
There is no reason whatsoever why the times for giving notice cannot be uniform province-wide. Section 7 really means that for a builder to operate in the Metropolitan Toronto census area, he will have to acquire 20 or 30 local bylaws, keep them updated and keep them all on the shelf with the OBC.
Ontario went to a province-wide code for a number of reasons, but one of them was to ensure that builders and their professionals could operate in the same way everywhere. Section 7 is an unwarranted retreat from that principle. There should only be local bylaws if there is some good reason for them not being province-wide.
Subsection 8(3): The concept of conditional permits in subsection 8(3) was much discussed at the time of the previous bill. If such permits became the rule rather than the exception, they could cause chaos. If not overused, they will probably do little harm.
Clause 8(10)(d): This clause provides for the cancellation of a permit if it was issued in error. A permit can be cancelled if issued on "mistaken, false or incorrect information." Surely that covers the field. A building permit is a vital document relied on by builders, owners and mortgagees. If all the information filed on all the plans was correct, and people rely on that permit, where do they stand if the CBO decides he made an error that somehow goes beyond mistaken information?
Take the case of a permit issued contrary to the zoning bylaw because of an honest mistake in the building department, without any attempt to mislead by the applicant. It is clear that at present an innocent party who relies on a permit issued in the case of such an error has a claim for damages against the municipality, even though the municipality can stop the construction. This provision might call that damage claim into question and should be removed from the bill.
Section 9: This section permits the CBO to allow equivalents. This is similar to the power the commission has had in the past, and it was like having one committee of adjustment for the whole province. The change is desirable.
If an applicant does not like a ruling he gets, he can apply to the commission under section 24 or appeal under section 25 and let the judge refer it to the commission under subsection 25(4). It might be desirable to make all appeals from section 9 rulings go to the commission, with a further appeal to a judge after the technicalities have been ruled upon by the commission.
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Section 10: This section provides for permits upon a change of use that would result in an increase in hazard as defined -- really a change in major occupancy to a more hazardous one -- even where no construction is proposed. That will create more paperwork and generally be a pain in the neck, but it is hard to argue against it. Someone using warehouse space as, say, a theatre should have to apply so that exiting and fire safety requirements for an assembly occupancy can be checked. Gosh, I don't know what that means, but I read it anyway.
Section 17: This section expands the concept of unsafe buildings and specifies the emergency powers of the CBO. The clarification is generally an improvement. Building officials have exercised these powers in the past and it is helpful to specify how this is to be done.
Section 25: This section echoes the present section 15, providing for appeals to the Ontario court. While the substance of the section is unchanged, the 20-day period for an appeal is almost impossible to comply with, particularly if the property owner enters into a negotiation with the department. A much-expanded time for appeal would be desirable.
Subsection 34(2): This section provides for regulations establishing standards of maintenance, occupancy and repair of existing buildings; if you will, an occupancy code. That is a fine idea. The problem is that such standards will exist side by side with all the existing occupancy standards municipalities pass under the Planning Act or, in the case of a number of cities including Toronto and Ottawa, under special legislation.
Section 35 provides that the act and the OBC supersede all municipal bylaws respecting the construction or the demolition of buildings. A parallel provision is to be found in the fire code. It is of prime importance that this legislation provide that upon adoption of an occupancy code, all municipal bylaws concerning maintenance, occupancy and repair be equally superseded. Otherwise, the uniform code will achieve nothing and two sets of standards, probably conflicting, will be in place.
Finally, section 36 greatly increases fines, which hardly seems necessary. Most code enforcement is done by way of orders, and when they are ignored, by court injunctions. The most frequent offenders are small builders, often simple home owners with language problems. Building officials seem to have all the power they need to enforce the code. Any contravention of the code is an offence. A fine of $25,000 for a first offence, $50,000 for a second offence and double those figures for a corporation seem unnecessary and excessive.
Thank you for your indulgence, and with my two experts along by my side, we'll be happy to answer any questions.
The Chair: Thanks very much. We have about 15 minutes and we'll divide that time among the three parties. The rotation will begin with Mr Perruzza.
Mr Perruzza: I just want you to expand a little bit on the major omission and the certified professional program. I agree with you it's something that obviously has considerable merit and perhaps we should have a second look at it. I'd like to hear some of your comments with respect to that.
Mr Kells: Mr Member, it's a government bill, and I guess my question is, why has it been changed? We see it as a major omission because we saw in the past the discussion that was leading to consideration of this program had merit. We're simply here to point out that merit. In my mind, it's for the minister who is putting this bill through the House to answer why it has been removed. We just think it should be reconsidered, that's all.
Mr Perruzza: How can that be reintegrated in the bill, yet connecting the approval process to the municipality and ensuring -- and I'd like to take off again on what Mrs Marland said yesterday -- this role the chief building official has traditionally had as being sort of the overseer, the security for ratepayers and for residents, in his ability to ensure that everything is all applicable and laws are being conformed with?
Mr Kells: I think, as we mentioned here, we're suggesting that many municipalities at high-period times -- and of course I don't think that's the case today -- aren't able to keep up to the rush, and as a result you have a backlog. We're suggesting, as we always take the private, free enterprise side of things, that there are other people out there who could do these chores. I suspect that possibly the people who do those chores now at the municipality may have a different point of view.
I don't know the reasoning for the ruling party taking it out. We just thought it was an alternative that should be considered. We don't think it would jeopardize the work to be done in any way. It's no different than any kind of third-party attestation. If you're using experts, you're using experts and they can be challenged. I suspect it's just a way of sharing the load at peak times. But I can't speak for the municipalities or for the ruling party on why it's been removed.
Mr Perruzza: My second question relates to another section in the bill which offers chief building officials the ability to issue conditional permits, provided they conform to all applicable law and sections 34 and 38 of the Planning Act. Could you expand on that a little bit for me. What does "applicable law" mean and what are sections 34 and 38 of the Planning Act?
Mr Kells: That's a good point. I make my living arguing about the merits of the Planning Act, but without having it in front of me, I certainly couldn't tell you what sections 34 and 38 are -- I can tell you what section 3 is -- so it's very difficult for me to comment. I hear you. If you really want me to take the question under advisement, we'd be happy to make a comment at a later time.
Mr Perruzza: I just thought maybe you'd have an opinion on that as well, because that's an area that concerns me substantially. In fact, we had another brief prepared and presented to us today by the chief building officials, and they have some concerns with that specific part of the act as well. I think they want some clarification on what "applicable law" means.
I can understand some of the liabilities that one would be subjugating oneself to if in fact that particular section wasn't as clear as perhaps it otherwise should be. I can understand the nervousness on behalf of chief building officials to simply assume that and to be given that kind of authority without clear enough guidance on how to proceed. Thank you for your comments.
Mr Kells: My only comment on that is that you have your experts in both the ministry and the Attorney General's office, so I assume that could be looked after to your satisfaction.
The Chair: We have just a minute or so. Mrs Harrington wanted to ask you a question.
Ms Harrington: Thank you very much, Mr Kells, for coming forward. Certainly your institute is very much involved with our ministry on this issue. Your comments were very thoughtful. Your direct suggestions here are very helpful as well, and we will be listening. My staff are here. They are hearing this, and I'm sure they're appreciating it.
I did want to comment about the plans review and inspection by designated architects and professional engineers program, or PRIDAPE, the certified professionals. Yes, it does have some merit. We've looked at the advantages and disadvantages of it and have decided that we do not want to proceed with it at this time. But that is not to say it never will be done. The public is concerned about the safeguard features of the person who is certifying.
I want to very quickly comment that you're concerned about the fine structure. Those are maximum fines; there is no minimum, so there can be much lower fines set down.
Mr Kells: I think if you want to make a point, you never mention the minimum; you try to always mention the maximum.
Ms Harrington: Yes, that's right. Our whole point of this, as you know, working with us, is to streamline, to help the industry get away from some of the red tape that always has been there. As you know, Dale Martin has been appointed to try to help in that process. Would you comment on whether there are other ways this government could be helping out?
Mr Kells: I'm pleased that you alluded to Dale Martin, because the industry, and I can only speak for UDI, finds Dale to be most helpful, if you will, a delightful surprise. We don't want to damn him with too much praise, because we might affect his efficiency, but we certainly do feel that the government is on the right track with the appointment of a facilitator and we do feel that Dale is the right person for the job.
As far as streamlining goes, the building code is something that obviously our industry will live with, and in this case we're not unhappy with the proposed bill at all. We simply have had our people, in particular Karl Jaffary, who has spent a great deal of his professional career in the development area, look at it. These suggestions that I've had the pleasure of reading into the record today are really mostly Karl Jaffary's, although I did circulate them to all of our members for comment. Although we can't speak for the architects, as Chris will tell you, not everybody totally agrees with the thrust. But by and large, our members agree with the suggestions we've put forth.
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Ms Harrington: Thank you. I'd like to pass on to the other party.
Ms Poole: Thank you very much for your helpful comments today. I'd like to explore the certified professional program, which both you and the Ontario Home Builders' Association have suggested. It does have a number of very appealing factors to it. Quite frankly, I'm quite surprised that the parliamentary assistant would say, before we've even finished hearing from the witnesses, that the government's made up its mind and, "It's too bad; it's not going to change."
One of the concerns the Conservative critic talked about yesterday which I don't share is that she felt it was a conflict of interest to have certified professionals take on this job and that architects and engineers might be involved in preparing a project and then decertifying it.
Mrs Marland: I said it could be.
Ms Poole: It could be. Anyway, she did raise this issue. I don't see this as a problem, because I assume the way this would be set out is that only a limited number of architects and engineers would be chosen for the program by the chief building official. It wouldn't be every architect or every engineer, and there would be very stringent guidelines set up to protect against conflict of interest. Is that the way you would see the program working?
Mr Kells: Yes, Ms Poole. We see it that way -- again, I'm speaking for UDI -- and we don't share that concern about conflict of interest, basically because these people are professionals. It's no different from lawyers arguing on two sides of a case, depending who their client is, so it calls for a professional to do a professional job. We have faith in the professions involved in the building areas and we feel that, if called upon, given the rules that would be built into the program, it would more than safeguard the interests of the public.
Ms Poole: Thank you. I appreciate that answer.
The second matter you raised -- which hasn't been raised today, but we've only heard three presentations -- is regarding the appeals to the Ontario Court, that you felt the 20-day limitation was unrealistic. When I raised this point with the ministry yesterday, it didn't seem to think it was a concern. Would you like to elaborate on why you think it would be problematic to have this limit of 20 days?
Mr Kells: As I mentioned, our brief was written by Karl, who's a lawyer, and lawyers always opt for more time. I would suspect that, given his knowledge of the court system or given his knowledge of any kind of appeal process, 20 days is a very short period of time. I only have to remind you of how government works for you to understand the impact of a 20-day period. So, naturally, when you see 20 days, you're always asking for more. Even in the streamlining of development applications suggested by the government, the shortest period of time is 30 days, and that's just for an application to be processed; so I think 20 is probably cutting it fairly fine.
Ms Poole: Thank you. I think I have two minutes left. Mr Daigeler?
Mr Hans Daigeler (Nepean): You were here when the previous presenters gave their presentation. They made the point that one should not use the building code regulations process to try to implement major economic, social and environmental policies and goals. I'm just wondering whether you could comment on that from your perspective and how strongly you feel about changes to the building requirements happening through legislation rather than through the regulations.
Mr Kells: I always have a general concern, which I think people outside government do, about regulations or orders in council, that kind of government decision, but naturally, regulations are required to implement the details in any bill.
I'm afraid I don't necessarily share the concern of the Ontario Home Builders' Association. We have a concern always under things like the rent review act, where the regulations were more complicated and larger than the act itself and tended to blunt some of the impact of the act. Regulations quite often can be used to do any number of things that aren't necessarily debated before the passing of a bill. If that was the point the home builders were making, then I probably think it has merit.
But in general terms, our industry isn't particularly upset with the use of regulations. How on earth are we supposed to make a complicated bill work if you don't have regulations that spell out how it's to be implemented?
The Chair: Mrs Marland.
Mrs Marland: I think Mr Tilson would like to go first. We're going to share the time.
Mr Tilson: My question to you has to do with the competency of builders and protecting the public from builders, from disreputable work that's done, shoddy work. I'm not saying -- don't start --
Mr Kells: No, I know. I'm certainly not taking it personally.
Mr Tilson: Every occupation has that, and the question is, how do we protect the public? I guess I'm specifically concerned with the remarks that you made about section 36 with the fines. I'd like to just emphasize to you that the quantum of those fines may or may not be too high, but you also have to look at the words that are tied in with those figures that your paper deletes, and that is that the words in the act refer to "the maximum penalty shall be" and "there shall be a fine of not more than."
Those words are traditional, I'm sure you are aware, in most provincial acts or any acts where penalties are set forward. The courts rarely impose those maximum fines unless there has been some blatant disregard for the process. A building official comes along and says, "You've got to do this," and the builder says, "To heck with you," and that comes out at a hearing.
You may want to comment on that, but my main question to you is a question that hasn't been dealt with either in the bill or in your remarks. I'm asking you because you're in the building game. It has to do with whether or not builders should be licensed in the same way that electricians and plumbers are licensed. Shoddy work is done in many cases, and who understands the mechanics of the lien act? Does the average guy understand it, unless he's working hand-in-hand with some lawyer? They don't know what it means, and holdbacks and all those funny things.
So money is paid for whatever reason. They may or may not have a holdback, and they go in and the work either isn't done or shoddy work is done. How can the public be protected? I guess my question is twofold, acknowledging those very restrictive words in the act. Second, do you have any thoughts as to whether or not builders should be licensed, as many other tradesmen are?
Mr Kells: I'll answer the licensing question first. I'm not necessarily a person who is looking for government direction or coddling on any number of areas. I don't know how you would go about licensing a builder unless, much like in a real estate business, you have to send him off to some kind of course so he fully understands, maybe, all the implications of being a builder.
Actually, a builder takes many forms. Some builders are really people who buy the land, develop it and hire a whole bunch of subcontractors. The quality of the work is subject to all these checks and balances, and that's why we're here today.
I doubt that we would have gotten the GTA built if you had to license builders. The good Italian tradespeople, the Portuguese who have been here for years and have done so much to build our area, probably would never have been able to get a licence if there was anything in place at that time.
You must remember that the home warranty program was brought on for the very reason that you've just mentioned: to protect the public against shoddy builders. This is the building code. You can apply the building code --
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Mr Tilson: That's not quite true, though. The home warranty program protects owners from substantial construction defects. If there's shoddy workmanship or if they paint a wall pink and it should be white, they don't protect them against that sort of shoddy workmanship.
Mr Kells: I guess it's not my job to get into how many incidences of that take place; I can only maybe use a personal comment. My son just bought a home, and the home warranty program protected him admirably when it came to drainage and the kind of major things that happen in a house. Whether they put the fireplace in the right place or not, I'm not just too sure where that comes down.
To answer your questions, I'm against licensing of builders. If the government of the day wants to take that one on, I think it has more important things to do.
Secondly, when it comes to fines, I guess the court has to be the judge how high to place a fine. I have a cottage up at Wasaga Beach and I wish maybe we had had a stronger building code 20 years ago. Then some of that stuff up there wouldn't have gotten built the way it is.
I'm not here to argue against legislation. If you want my opinion, I do not believe that government should interfere in the lives of our citizens any more than necessary. I think there are enough laws in the books to do that right now.
Mrs Marland: I want to support a concern for builders, not necessarily licensing. What is really critical, and I say this to the parliamentary assistant, is that a builder can be decertified in one municipality and continue to build in another. When I was on council in Mississauga we had a blatant example. I'm not going to bother mentioning the name of the firm, Morley, but that firm was building in Thornhill. My residents from Mississauga were out placarding and picketing in Thornhill because of what their experience had been in Mississauga. We had no control against them building in another municipality under the existing provincial statutes.
Just to get back to this business of the certified professionals, I don't really like it when somebody else on the committee speaks for me, so I'm going to put on the record and ask you a question on my own behalf.
Yesterday I said that I was here to hear the arguments for and against certified professionals. Yesterday I said there may be a conflict of interest for those individuals, and I'd like to know how it would work. I think you heard the Ontario Home Builders' Association this morning say that the cost for bringing on certified professionals could be borne by the applicant: the builder or the developer or the individual home owner. Is that how you see that cost being borne?
I notice in your presentation this morning you talk about some of the functions on some permits, so you obviously don't see it as a global solution across the board. Are you suggesting that we would have to have specified which functions, what category of permits in the private sector, and do you agree that it would be borne by the applicant? Do you also agree that there would have to be the same kind of protection through assumption of liability if it went through a certified professional outside of the municipal staff, again the question of the protection of the public?
Mr Kells: It depends on whether or not the applicant has an option of using a certified professional or he must use the staff. I don't know if it's going to be a Russian roulette game if it ever got to that. I don't think that would ever be the case. I would suspect that the certified professional program would probably click in at busy times or some municipalities might opt for that, as opposed to having their own staff, depending on the size of the municipality.
As to costs, some way or other it'll be passed on to the applicant, and it's built into the cost of doing business. Whether it's increased the amount of building permits, all costs end up somewhere. Invariably, it's going to be on the backs of the applicants, because it's certainly not going to be absorbed by the municipality. As I mentioned to you, if it's passed on to the applicant, it's going to be passed on to the purchaser. That's just the way things are. There's no way to dodge that any more than our industry can dodge the fees that the Ministry of the Environment has already dropped on us lately, which are going to cost us thousands and thousands of dollars at a bad period of time.
Mrs Marland: What about liability?
Mr Kells: Liability probably could be built into the legislation so it is covered in some form. I'd leave that to the legal fraternity, but certainly it is a factor.
I suspect that I'd be just as happy with a certified professional as I would be with a building inspector who had possibly not been kept up to date as an outside professional. Liability is exactly what it means. The liability will eventually come back on municipalities if they issue a building permit, so they will have to protect themselves. No municipality will opt for some other form if it has any doubt that its liability is going to be impaired in any way or it's going to be making itself open to further liability.
The Chair: Thank you very much, gentlemen, for your presentation. I'm sure we'll have an opportunity to reflect on both your presentation and your answers to our questions. Thank you very much.
Mr Kells: It's been a pleasure.
FAIR RENTAL POLICY ORGANIZATION OF ONTARIO
The Chair: I'd now like to call upon Mr Philip Dewan, the president of the Fair Rental Policy Organization of Ontario, to come forward. Welcome to the committee. Please proceed.
Mr Philip Dewan: Thank you, Mr Chairman. I guess my presentation's going to be a little more limited than some of what you have heard beforehand.
As a lot of you know, the Fair Rental Policy Organization of Ontario is an organization representing landlords and owners and managers of residential rental accommodation. We do not represent builders. A lot of the sections of the building code, I think, are not relevant to our particular organization, or at least we don't have the expertise to comment on them, and some of the previous groups you've heard from cover those points off.
I'd like to restrict my focus to a single issue, and that is the particular provision in subsection 34(2) to allow the Lieutenant Governor in Council to "make regulations establishing standards that existing buildings must meet even though no construction is proposed." Even within the ambit of that section, obviously people who build commercial buildings and single-family homes and so on may have different comments. I'm speaking simply from the residential apartment perspective.
From our point of view, the provisions in subsection 34(2) have a number of major problems. First, it duplicates existing standards at the municipal and provincial levels; second, it adds greater uncertainly in the operating environment for rental buildings at a time when things are already particularly difficult; third, it is being proposed at the worst possible time financially in terms of the ability of landlords to do any additional work given the retroactive application of Bill 4, which we're still trying to deal with, and the proclamation of the Rent Control Act last month. I want to deal very briefly with each of these items and then leave the majority of time for questions.
In terms of duplication, I think you're all aware that in more than 430 municipalities around the province, including essentially all of those of any significant size and covering well over 90% of all the rental stock, there are property standards bylaws which have been passed pursuant to the Planning Act or the individual municipal acts. Where municipalities do not have their own standard, the provincial minimum standard applies.
As an organization, we've heard no particular complaint that there are widespread deficiencies in these standards that need addressing by the implementation of a code for existing buildings. The Residential Rent Standards Board, before it was killed with the passage of Bill 121, went through a review of the provincial minimum standard, and although there were a variety of individual changes proposed, there was certainly no widespread disagreement with the overall level of the standard in place. So from our point of view there doesn't seem to be a particular clamour for a code for existing buildings, and we're not sure why there's any urgency in proceeding on this front at the moment.
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This ties into the second concern in terms of the uncertainty that would be added to the environment by the passage of subsection 34(2), and that has to do with what the subsection does not say. Essentially, it's just a regulation-making power which gives no indication of what the standards are that are to be prescribed.
Obviously, the building code itself is just a regulation under the Building Code Act. It's one thing to propose changes in specific aspects of the existing building code regulation; it's quite another to propose a whole new set of regulations which for the first time would apply to existing buildings, particularly without any requirement that the Legislature or the public be consulted on the particular regulations that are to be brought forward.
When Bill 112 is passed in its current form, there's going to be this constant threat hanging over landlords that there will be a new code for existing buildings brought forward with who knows what requirements and costs attached to it. That sort of uncertainty has to complicate the environment further.
The whole situation is exacerbated because of the limitations of Bill 121, the Rent Control Act. When the landlord has only a 3% allowance above the annual rent increase guideline to fund any required capital improvements, he's going to face a real dilemma when he has an unknown threat looming down the line.
For instance, if a landlord makes a decision to do a garage concrete repair for safety reasons, because of deterioration, that's likely going to use up the full 3% allowance for the next three years. What happens if one year later the code for existing buildings comes in with additional requirements which he then has no capacity to finance? They may be phased in, they may not. We have no way of knowing at this point. What we need is some certainty in the environment for landlords to be able to plan investments.
That ties in with the third point on timing. There could be no worse possible time for looking at any changes which will impose further costs on the rental housing sector. The industry is already reeling from the combined effects of the recession and the draconian provisions of Bill 121.
Over the next couple of years, owners of buildings are going to be faced with the necessity of trying to absorb huge losses as a result of capital expenditures that were caught in the Bill 4 freeze and will never fully be recovered; financial losses, which they had been allowed under Bill 51, that have now been wiped out completely; the threat of tenant applications to reduce rent on the ground of inadequate maintenance, a term which has never been defined and against which therefore there can be no assured defence in advance; forthcoming changes to the fire code, which I understand the government intends to bring out this fall, that will require retrofits costing an average of $500 to $600 per unit; mandatory recycling, which the Ministry of the Environment is proposing, that will have a real impact in municipalities where there's no municipal garbage collection and landlords have to contract privately for that service. I could go on. There's a host of other cost factors. Adding the further threat of an unknown code for existing buildings at this time, we think, is both unreasonable and unnecessary.
There's an inherent contradiction, which I think has been pointed out in some of the debates in the House, between Bill 112 and Bill 121 in that the former is seeking to encourage or rather require landlords to bring buildings up to a modern standard and Bill 121 effectively discourages landlords from investing money in capital expenditures. That's not just the view of the landlords.
The Ontario Association of Property Standards Officers, which represents the municipal inspectors who go out and actually look at the buildings and see what needs to be done, has described Bill 121 as "A monstrous piece of legislation which will cause both tenants and landlords alike additional costs, additional frustrations, without achieving the desired goals."
When we look at the Ontario housing stock today, we all know that over 65% of the apartments are 20 years old or more. They are essentially of a generation -- at least one generation, in some cases more -- removed from the standards of today's building code. Certainly studies like the conservation bylaw study for the city of Toronto have shown that bringing these buildings up to the current code requirements, in effect retroactively imposing today's standards on old buildings, would cost massive amounts of money. Quite simply, that cannot be financed under the terms of Bill 121. We can't deal with Bill 112 in isolation. The two have to be looked at together, otherwise one bill negates the other.
Obviously, the government can go ahead and implement such a code if it chooses. This is not a new thing; the idea of an existing building code has been discussed for some time. There might even be some advantages in consolidating the various requirements among different municipal bylaws, although you can make the argument that there are sufficient differences between regions that variations are justified. However, we would suggest that providing blanket authorization for the cabinet to do whatever it wants in the future by way of regulation would be an abdication of your responsibility as legislators. Such a major reform deserves full consideration and debate.
Therefore, the Fair Rental Policy Organization of Ontario would propose that subsection 34(2) be deleted from the bill at this time. If the government wants to proceed in the direction of a code for existing buildings, which we're certainly willing to look at, a separate amending bill should be brought forward with the accompanying code in the form of draft regulations. That's the only way that all the parties are going to be able to evaluate what the costs and benefits will be, how it's going to impact on builders, over what period of time it can be phased in, all of the decisions and considerations that need to be looked at to be able to make a reasonable decision on the code.
Our bottom line is that if this is to be discussed, we would like to have it discussed as a separate issue, with the actual proposals before the House and the public, and not simply have a power put in whereby the government can by its own prerogative at some time come out with a code without that requirement for consultation.
Thank you for your attention. I'd be glad to answer any questions.
The Chair: Thank you very much, Mr Dewan. We'll begin with Mr Daigeler.
Mr Daigeler: Thank you for your presentation. I must say I sympathize greatly with the main point you're making. That's why I'd be rather interested to know your response as to why there seems to be such a contradiction between the position of your organization and that of the Urban Development Institute. I think you were here when the previous presenter spoke. I must say I was surprised to hear the reaction of the Urban Development Institute and I'd like to hear your comment in that regard.
Mr Dewan: Obviously, I can't speak for UDI, but there is a difference in who we represent. They represent builders and developers who are looking at starting from today, knowing what the requirements are. They may have disagreements with proposals regarding the provision for changes to the building code, but at least they'll know when they put the shovel in the ground what the requirements are.
Representing owners and managers of existing buildings that have been in place for 10, 20, 30 or 60 years, we're in a very different situation, facing the prospect of a code which may require us to come up to contemporary standards in some way. We don't have the luxury of making a decision as to whether or not to proceed with the project based on changes to the code or what changes to make in our architecture to try to bring costs down to accommodate that, all of the things that a new developer can do. We have an existing building and we're stuck with whatever comes out at that point in time, so it is a different situation.
Mrs O'Neill: I appreciate what you're saying. This is one of the greatest weaknesses in this particular bill. Mr Dewan, could you tell us your involvement in the development of regulations? Are you a participant in that at all at this point?
Mr Dewan: We have not been involved, and I can't honestly say we've gone forward trying to seek it out. This is not an issue that we've spent a lot of time on in the last two years, as you can imagine. There've been other things occupying our attention.
I'd like to stress that it's not necessarily something we object to; it's hard to know, without knowing what the standards are going to be. Obviously, there is a level of distrust with this government, but that's not even the point. With any government, with a change of this magnitude, where you're bringing in a new code in essence -- not just an amendment to the existing code but a new code for buildings that have never been covered -- that should be the subject of debate, not just one clause that gives you the power to go out and set that at some date.
The government may well say its intention is to circulate the draft code and have consultations and do whatever; that's fine. If that's their intention, then they should have no objection to putting it in a separate bill to make sure that's absolutely clear and guaranteed.
Mrs Marland: Mr Dewan, perhaps you're aware that yesterday I served notice to this committee that unless we could have a satisfactory commitment from the parliamentary assistant on behalf of the minister, I would be tabling an amendment on behalf of our caucus to meet the concerns you've brought to us this morning in your brief.
We think it's totally illogical to apply new requirements through regulation on existing buildings. Of course, we're familiar with and very sympathetic about the history of Bill 4 and Bill 121 in terms of rental property in this province. Also, we don't have such a short memory that we don't remember that it was the Liberal government that imposed rent controls on buildings built after 1976.
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The whole issue of privately owned rental stock in this province is either going to make or break the solution for affordable housing for the 10 million people who live here. We are very concerned about this bill in its present wording, and I just want to assure you that we will fight to the best of our ability to try to have the government at least exempt or eliminate existing buildings from requirements and changes in the building code other than those that pertain to health and safety, which I know you support as well.
Mr Dewan: I appreciate that. I wasn't aware that you tabled an amendment yesterday or indicated you would be tabling, but that's certainly appreciated.
I would hope personally that it would not be a fight with the government. It's not that there's a great moral issue at dispute here. If people want to talk about a code for existing buildings, I think everyone is quite willing to do that. It's just the matter that we want to make sure that the whole thing comes forward as a package for debate and not just leave it open for the possibility of it being dropped in some unknown fashion in the future.
Mrs Marland: We're not happy that it might be dealt with by regulation by the cabinet and not come to the public forum through the Legislature.
Mr Tilson: Just a brief question on that same point, and I certainly wouldn't get your hopes up. We all recall Mr Cooke's famous words as to how he hates landlords, and Ms Gigantes is probably worse than he is. We will try, certainly on this side, to pursue that issue.
I raised a question yesterday with the ministry staff on the whole process of consultation during amendments to regulations or introduction of new regulations. Obviously, in your business, if you haven't been involved in that process, you're going to have to start getting involved in that process, and I'd like to hear what knowledge you have as to the process. As I understand, there's a continuous process that proceeds. I don't know whether you're aware of what that is. As I understand it, there are committees and they're continually comparing it to the national building code and staff go out and hold seminars and there are different committees that are ongoing all the time.
My point yesterday was that notwithstanding that, the whole subject of why we're probably here is to enable the government to back up its position on graded lumber. They could have done it in committee of the whole, but we're going through a whole hearing process at tremendous expense to the taxpayer. But that's an example of how the consultation process of regulations has failed -- the system, as I believe it, has failed.
I'd like to hear your comments on not only existing buildings but old buildings and the potential problems of their regulatory process, handing the whole system over to the bureaucrats and taking it out of the hands of the politicians.
Mr Dewan: It's obviously always been the case that the building code itself was amended by regulation, but this, as I say, is quite a different order of magnitude. There have been consultations going on with members of the industry. We as an organization have not been consulting on that issue, but I can't deny that there are members of the industry out there who have been speaking with the Ministry of Housing officials in terms of looking at proposals on standards, and that's as it should be.
Our view, though, is that once they come up with some set of draft standards -- and I gather they're reasonably far along in that -- that should be what comes forward for a much broader public discussion. In our industry alone there are something in the order of 130,000 individual landlords, counting all those small people out there who have a duplex or a triplex. Obviously, their views are not necessarily the views that are being represented by the technical experts from a few firms who may have been talking with the government, and we'd like to make sure that there is the opportunity for everyone to hear about this before it becomes law, get their views in, speak to you as members representing their constituencies and have it all brought forward for a full debate.
Just by way of example, we went through a process with the Solicitor General's office on the fire code changes. In fairness to the government, not every ministry acts the same way. The Solicitor General, at least the ministry officials, were very cooperative in ensuring that all the industry views were heard. They did make changes which took it into account. They looked at the time lines. They considered the effect of Bill 121.
Although that was not a public consultation process in the same way, it was certainly something that took more reasonable account of some of the factors out there. We want to make sure there's the same opportunity for that kind of debate on these changes, which will be far more dramatically affecting landlords and at far greater cost than the changes being proposed under the fire code act.
Ms Harrington: Your basic concern, I believe, is that the standards for existing buildings are going to come about in some unknown fashion. That's your quote. I am going to ask Mr Wildish to elaborate a little bit and discuss that process for developing a code for existing buildings because it is important that it not, as you say, dropped upon you.
But first I wanted to ask you this question. Over the last while -- many years, go back 10 years or so -- the majority of landlords have not gone for above-guideline increases to maintain their buildings. Even when landlords in the past could pass through any costs associated with maintaining their building, many did not. In fact some, the very few, have very run-down buildings, and no matter what opportunity we gave them, say, in the past to pass through those costs, they did not.
I'm sure that your organization is concerned with keeping all rental housing stock in a good state and therefore would be trying to eliminate these poor buildings and poor managers of those buildings. Would you not think that a minimum code -- this is not the same as the code for new buildings -- for existing buildings would be of help to your organization?
Mr Dewan: I think in terms of those few bad landlords that you're talking about, if we look at some of the highly publicized cases in the west part of Toronto in the last while, every one of the deficiencies there is already in violation of the existing municipal standard. You're not proposing anything, as I understand it, that would clean up a problem that can't be cleaned up today. Those landlords are already in breach of the law and have numerous work orders outstanding. It's, in effect, the problem of the municipality deciding how to track down and what turns to take. They have the power to go in and do the work and put it on the municipal tax rolls.
Ms Harrington: There is some desire for a common minimum standard that would be easily understood across the province.
Mr Dewan: Certainly I'm not saying we're opposed to a minimum standard. We may well be in total agreement when we see what finally comes out of the process. It's hard to say. We just want to know what we're getting into before you grant the authority to go ahead and do that.
Ms Harrington: Can I ask George to briefly comment on that process.
Mr Wildish: This follows from a point raised earlier this morning, and you may have been here, by the OHBA. They were talking about the need to be involved early, especially as the code takes on broader and broader scope, as we talked about it, for environment or pollution control or social matters of one kind or another, and you're raising the same thing here. You want to be involved early to make sure that nothing amiss comes into these things.
This is certainly a concept we recognized when we started broadening the whole regulatory process. We knew there would be far more interested groups wanting to have a share, and we're doing this more and more all the time. In fact, we're very proud, of course, of how we've done this, expanded the whole code development process.
In your particular case the same thing applies. Any development would be preceded by full consultation with all the groups, so policy papers of course would have to made, distributed for discussion and groups set up to investigate them all thoroughly before anything would happen. I cannot tell you, because government has not decided in detail yet, what that process would be except to assure you that we, as staff people, have had to assure the government that we would build in processes of this kind that took account of interest groups and allow them to have full input into the procedure.
Mr Dewan: I guess I'd have two quick responses to that. First of all, it's very nice to have that consultation process, and we want to make sure as many groups as possible can participate. The vast majority of people in our industry, and I suspect it may apply in some others as well, are not represented by any group. We have about 1,000 members. Probably among all the landlord organizations, you might get up to 5,000 out of 130,000-odd landlords around the province. There are a lot of individual small people out there who are not going to hear about this or have any chance to have a say unless there's a much broader public debate about it and let the MPPs and everyone involved go back to their constituents and make sure they're aware of this.
Secondly, as a civil servant you can have a nice consultation plan out there and in place now. There's absolutely nothing to say the minister may not decide to cut that off at any time and say, "We're bringing in the code, we've decided we need it and here it is." The plan may never materialize. We just want some assurance there, and if that is the plan, then I don't know what would be lost on the government's part to give the assurance that it will come forward with a separate piece of legislation so the whole thing can be debated at once.
If everyone in all of our industry groups and so on has been consulted and is in agreement, then there's not going to be any problem. No one will disagree and the legislation will sail through. It's there really just as protection and maybe it's seen as an unnecessary protection by some people, but you can understand there's a pretty fair degree of scepticism in the industry out there and we'd like as much assurance as possible.
The Chair: A brief last question. Mr Wilson.
Mr Gary Wilson: I see it's been referred to in questions, but I want to say how pleased I am to hear Mr Dewan's agreement that there are some good grounds for a code for existing buildings. I want to say, too, that I agree with him completely that the more discussion there is before something goes into effect, to make sure everybody is aware of what's going on, the more assurance there will be in the future that the regulations will be the proper ones.
Even with Bill 121 we had a lot of discussion. I heard from both tenants and landlords and there seemed to be agreement that what everybody wanted was a decent place to live, but how that's arranged or reached is where some disagreement arises. I'm hearing from tenants that Bill 121 appears to allow very generous arrangements for the upkeep of buildings and generally, as the parliamentary assistant mentioned, most increases in the past, under the guideline, haven't gone to the rent control agency, but there have been some very flagrant cases where there has been disagreement, that the increases have been too high.
Again, tenants are well aware, the ones who approached me, that buildings have to be maintained and that landlords have a fair claim on making sure that the increases are there. But when they're abused the problems arise, and that's what we're having to deal with.
Mr Dewan: I suggest again that you're going to get abuses under any law. You have standards in place in almost all those places now which could well deal with it. It's an enforcement issue, not a standards issue.
In terms of the ability of landlords, obviously there is a disagreement among landlords and tenants about the impact of Bill 121. I think the building code provisions are probably a much less politically controversial issue, but you have to look at it in tandem with the ability of owners to pay for the work.
I'd go back to the statements from the property standards office. These are not landlords speaking. In fact, in many cases landlords would think of them as their opponents in the sense that these are the guys who come in and force them to do work on their buildings, and they are saying that Bill 121 is unfair and monstrous, in their words. It's not just the biased view of landlords of that.
The Chair: Thank you very much for your presentation.
Mr Dewan: Thank you, Mr Chairman.
The Chair: This concludes the morning session of the committee. I remind members that we begin at 2 o'clock sharp with Mr Barry Rose, the president of the Ontario New Home Warranty Program.
The committee recessed at 1204.
AFTERNOON SITTING
The committee resumed at 1401.
ONTARIO NEW HOME WARRANTY PROGRAM
The Chair: I'd like to call this meeting of the standing committee on social development to order. We are discussing Bill 112, An Act to revise the Building Code Act. Our first presenter this afternoon is Mr Barry Rose, who's the president and registrar of the Ontario New Home Warranty Program. Mr Rose, welcome to the committee. We have half an hour. I know you've distributed some material to us. Please go ahead.
Mr Barry Rose: Thank you very much, Mr Chairman. The binder we've left with you is to give you some background on the warranty program. I suggest you might find it something useful to leave in your constituency office if you have any calls from frustrated home buyers or builders, because they both complain.
The Chair: As soon as I saw this, I knew the constituency people would be happy.
Mr Rose: Good. We're very thankful for the opportunity to appear before the committee to comment on Bill 112, An Act to revise the Ontario Building Code. I would like to commend the government of Ontario for its initiative and commitment in including legislation of this nature on a busy agenda which, especially in times like these, is filled with a host of high-priority issues.
From the Ontario New Home Warranty Program's perspective, the amendments addressing the administration and enforcement of the existing Building Code Act included in Bill 112 will improve both the calibre of building regulation and, we hope, the quality of housing in Ontario. Bill 112 is an important piece of legislation for the Ontario New Home Warranty Program as it has a direct impact on our business. To set the context for today's discussion, I'd like to begin by giving a quick overview of the warranty program.
The program was established in 1976 to protect consumers by administering and enforcing the Ontario New Home Warranties Plan Act to ensure that builders complied with the act's requirements. It's interesting that the first building code came out in 1974, and when the warranty program legislation came out at the end of 1976, the legislation in our act guaranteed that new home purchase in Ontario would conform with the Ontario Building Code. We have that statutory requirement to see that a home is built in accordance with the code.
Our mission, in general terms, is to ensure the quality of treatment throughout the process of purchasing a new home in Ontario and to encourage improvements in the quality of new residential housing in the province. Our goals are basically two-pronged. Consumer protection is the first and primary reason that the program was established and the second is builder education. We want to ensure that every new home purchaser in Ontario receives a high-quality product.
The Ontario New Home Warranty Program is the only mandatory warranty program in Canada. In fact there are only two others that we know of in the world, one in the state of New Jersey and one in the state of Victoria, in Australia.
We are a private, non-profit organization. We are funded solely by builder registration, renewal and enrolment fees that are paid prior to the start of construction of a new house. We fund both our warranty claims and operating budgets from these fees. We don't cost the provincial taxpayer one cent.
The composition of our 14-member board of directors guarantees representation from our key stakeholders. Eight representatives come from the Ontario Home Builders' Association, two from the Consumers' Association of Canada and one each from the Ministry of Consumer and Commercial Relations, municipalities, mortgage lenders and mortgage insurers.
The warranty program offers new home buyers substantial warranty protection. In fact we provide the highest protection of any warranty program in Canada. Since our coverage was enhanced in 1990, consumers receive a total maximum warranty coverage of $100,000 on each home enrolled in the program. The coverage is explained in detail in our 1992 Home Buyer's Guide to After Sales Service, which is included in your information package.
In addition to the warranty, we offer conciliation services between the builders and home buyers and the enforcement of work orders against the builder. We also produce a range of booklets and brochures for the new home buyer.
The warranty program offers builders a fair complaint handling process, conciliation services, technical training and joint-venture opportunities to improve construction methods.
In essence, the warranty program underwrites the Ontario Building Code Act and any revisions to it, as I mentioned earlier. A quick review of our claims experience demonstrates clearly what this means to our business.
The Ontario New Home Warranty Program has paid out over $90 million in claims since 1976. From 1989 to 1991, claims paid totalled over $53 million. That's over 50% of the total claims paid since the program's inception. While not all these claims can be attributed directly to building code infractions, claims relating to deposits, poor workmanship, improper materials and major structural defects are also included in these results; 25%, or over $13 million, are code-related claims.
Taking the analysis one step further, the picture darkens when we see that the 1991 total claims paid out has escalated to over six times the amount paid out in 1986. Faced with these results, we have embarked on a strategy of prevention and partnership which, we believe, will both uphold the best interests of the consumer and effectively control and reduce our claims costs.
Municipalities and building officials are vital partners for four reasons:
Firstly, inspection is the early warning system which should identify many defects, particularly violations of the Ontario Building Code, and ensure that they are rectified before they become warrantable claims.
Secondly, the responsibility for the enforcement of the Ontario Building Code rests solely with the municipalities.
Thirdly, our analysis of warranty program claims experienced by municipality indicates an uneven administration of the code across the province.
Fourthly, there are approximately 4,000 building officials across Ontario, compared with a total warranty program field staff complement of approximately 80.
Poor administration of the code hurts us, since the warranty program is liable for the claims which will inevitably arise. These claims can be substantial. For example, we have paid claims, some up to $1 million, on condominium and freehold housing where there had been no municipal inspection completed whatsoever.
The Ontario Building Code was established to protect the consumer. The failure to deliver the Ontario Building Code at a high-quality level, however, severely threatens its prime objective, which we all share, of ensuring high-quality housing for Ontarians.
The Ontario New Home Warranty Program strongly supports Bill 112. As I said earlier, the powers and responsibilities outlined in the act will, I'm sure, increase the calibre of building regulation across Ontario. However, I question how effectively the administration of the Ontario Building Code can be improved without the establishment of a formal accountability and control framework which will monitor the effectiveness of every municipality in carrying out its inspection mandate.
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The program has worked closely with the Ministry of Housing in developing these amendments to the code. I'm proud of the lead role the warranty program has taken in developing a partnership with the Ministry of Housing, the Ontario Building Officials Association, Ontario Hydro and the Ontario Home Builders' Association to produce a series of one-day workshops across Ontario to train building officials and other members of the residential building industry on the amendments to the Ontario Building Code. Entitled "Speaking In Code -- Part 2," the series will build on the success of a similar series that we held two years ago.
In addition, we have undertaken an initiative to ensure that the residential building industry can deliver on the proposed changes to the code. If they are to be implemented, revisions must be practicable and affordable. Failure to meet these criteria will directly affect our claims costs. We have taken the lead in forming a partnership with eight stakeholders to develop a ventilation field demonstration to gather data on some of the proposed ventilation systems. Information gathered from these pilot projects is being sent to the Ministry of Housing for analysis.
We will continue to pursue aggressively partnerships which bring members of the residential building industry together. Mr Chairman, we are not a very big organization and we don't have very much money but we hope that by levering and working with partners between the group of us we can provide the residents of Ontario with good-quality homes.
I thank you very much.
The Chair: Thank you for your presentation and again for all of the informational material which, as you noted, our constituency assistants will be delighted to have. We'll move to questions.
Ms Harrington: Thank you very much for coming, Mr Rose. You talked about how your organization is not that big, but I think it's certainly an important organization. I understand that you have one of our former employees with you, Mr Aubrey Leblanc?
Mr Rose: Yes, the chief operating officer is Aubrey Leblanc. He would be here today, except he's scuba diving in the Cayman Islands.
Ms Harrington: Well, he was head of our buildings branch. Please say hello to him for me.
Mr Rose: I will indeed.
The Chair: Is he doing building code violations there?
Mr Rose: Right. He's a great addition to the program.
Ms Harrington: I had a couple of questions. On page 4 near the bottom you made a statement, "The failure to deliver the Ontario Building Code at a high-quality level...." I just didn't understand what you were meaning there.
Mr Rose: The building code of course is minimum standard. We're talking, I guess, not about the standard of the building code but the quality of the inspection and the competency of the people who are doing the inspecting, which is key to us in the discharge of the inspection. There are a number of cases where municipalities have not got the qualified people to do the work, and that unfortunately results in claims for us.
Ms Harrington: I see. Would this be a very small number of cases?
Mr Rose: Yes. To put it in perspective, most of our claims, as you can see, were paid during the boom years of 1987-88. Of course we paid those two or three years after, so our heavy claims come a year or two after.
There was a lot of building in communities that hadn't experienced large subdivisions; they hadn't experienced high-rise condominiums before. It was just that that's where the industry was moving. In the well-established municipalities in Ontario, basically the building inspection quality is absolutely supreme. It's when you start to move into rural areas with sophisticated high-rise buildings that you find the building inspectors just haven't been used to that type of building. They've never had it in their community. That's why we try and work with these people to improve their skills, as does the Ministry of Housing of course.
Ms Harrington: Certainly the Ministry of Housing, I imagine, would be working with you. I know we do put on courses, and probably courses together.
Mr Rose: Yes, we do. We joint-venture. In fact we've worked with the Ministry of Housing on the new construction code guide which took the building code and put it into a format where you started in the basement and finished up on the roof. We've sold over 10,000 copies of that publication. In fact I think it would rate as one of the bestsellers in Canada. That was a joint venture between ourselves and the Ministry of Housing.
Ms Harrington: The act we're talking about right now is the first change in about 18 years. Do you feel it will improve the quality of new homes in Ontario?
Mr Rose: I think quality is one of those things that's rather difficult to perceive. We warrant quality. The building code meets standards. But I think what's happening with the code is that together with ourselves, it's helped to raise awareness of the need for quality.
Ventilation is a good example. The code provides for ventilation, yet what we have to ensure, with the Ministry of Housing, the industry itself and building officials, is that builders and their subtrades know how to put that ventilation system in and do it so it works properly.
We have the argument as to whether a job is quality or not, rather than the building official. Any improvement in materials and everything like that, which is part of this hearing, is going to have to improve quality in the long run, I would hope.
Ms Harrington: As you know -- you've been involved with us on this for some time -- the whole idea is for innovation in building materials, working ahead towards the future, making changes and being able to accommodate that in a quality manner.
I just wondered if there were any further questions from my colleagues.
The Chair: Mr Daigeler.
Mr Daigeler: In your presentation you mentioned that the claims paid out have escalated since 1986 sixfold. What are the reasons for that?
Mr Rose: The claims break down into three general areas. The first claim area is the deposit area, where the home owner puts up to $20,000 down on a new home, and if the builder goes bankrupt or disappears, he can get that money refunded. Approximately a third of the claims we've paid out have been deposits. This represented somewhat of a problem for us, so in a number of cases now we will demand surety bonds or letters of credit from a builder who we feel may not be as financially secure.
Mr Daigeler: Is that an effect of the recession, or is that a general structure?
Mr Rose: That's just the way the business seems to go. In fact, some of our biggest claims don't seem to happen during a recession; they just seem to happen randomly. The deposit claims tend to be random. We can have them in a recession and we can have them in a boom time. The major structural claims we have, generally speaking, are very small. They're only $8 million of $90 million, so they don't represent a large amount.
The large body of claims is warranty. You can follow the building cycle, you can follow the boom-bust cycle and you can follow the warranty claims and track it. The enormous building of the 1986-1987-1988 period resulted in something like over $22 million in warranty claims in that two-year period, which we paid in 1990 and 1991, because there's a two- to three-year lag.
Mr Daigeler: Sorry to rush it a little bit, but we have a limited time to ask questions.
Mr Rose: That's okay.
Mr Daigeler: So the increase in claims really has nothing to do with people not following the building code properly; it's a reflection of boom times.
Mr Rose: Well, no. The trouble is that in boom times, municipalities don't get enough building inspectors. They've got subdivisions going on all over the place, so they can't get enough people hired. It's hard to get good people because they're out working in the industry. I think bricklaying has been the classic example, where you just couldn't get bricklayers. There's a shortage of materials, a shortage of qualified labour and a shortage of building officials.
In our program we ourselves were caught totally flat-footed. We had 80 people in 1986 at the start of the boom and it took us three years to catch up. Unfortunately, in our industry you staff up when you have the boom, when it's over you lay everybody off, and then it starts again and you're caught in the same bind.
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Mr Daigeler: One final question before I pass it on to my colleagues: If I understand you right, you're requesting the ministry to set up some sort of section that would help the municipalities enforce the building code. In other words, you're asking for more provincial civil servants.
Mr Rose: What we're suggesting is that there should be some accountability at the municipal level for the enforcement of the code, and the appropriate body to do that, I think, is the buildings branch of the Ministry of Housing. As I mentioned here, we have paid claims where there has been no municipal inspection. I mentioned a million dollar one. We had another one in eastern Ontario where we paid $2.5 million and unfortunately each of the home owners had to pay another $10,000 on top of it because our $2.5 million was the maximum coverage we provide, and again, here it was lack of inspection.
To me, there should be some auditing and accountability. We are responsible for the Ontario New Home Warranties Plan Act and we're responsible to the Minister of Consumer and Commercial Relations to see that we enforce that act appropriately. I don't want to get into municipal and provincial politics.
Mr Tilson: I appreciate your comments with respect to your last thoughts on the uneven administration around the province. On the very issue of purchasers moving into new residences, some municipalities have things called occupancy permits and other municipalities have other things and they say, "You're not supposed to move in," but you know, they're out of their apartment or they're out of their house and they've got to move in.
Then they're having their little inspections with the builders to fill out the necessary forms to qualify for your warranty, and half the time they don't know what they're talking about because they're not clear as to what HUDAC covers and what it doesn't cover. I find the whole process of individuals, innocent purchasers, moving into new homes very confusing because of the very point that you're raising. I'd like you to elaborate on that somewhat, perhaps following along with Mr Daigeler's questions, as to how that can be resolved.
Mr Rose: This is the process of when the new home buyer moves into the house and is asked to fill in a certificate of completion and possession, which they send in to the program.
Mr Tilson: At the same time they're doing that, there is the issue of dealing with municipalities. It goes along with the issue of quality of the inspections. Some are lax, some you have to have the i's dotted and the t's crossed, and some say, "Oh, well, you know, we'll deal with it down the line, and we're not going to issue an occupancy permit until we're satisfied," that something literally impossible is ready. Meanwhile, they have to move in.
Mr Rose: I know, and especially in an overheated building market where often the delivery is delayed, the consumer is even more nervous, the new home purchaser.
Our process that we're trying to do is to educate the consumer, and we also educate other people. You used the expression HUDAC. I don't know whether you were called to the bar prior to 1983 or not or whether you're a lawyer, but most lawyers who were called to the bar before 1983 call it HUDAC; those after 1983, when it was amended to the Ontario New Home Warranties Plan Act, call it new home warranty plan.
We try to educate not only consumers, but the legal profession, particularly the real estate bar. In most communities, we will go and speak to them and try to explain to them the protocols in closing, because they're the people who are acting, in most cases, on behalf of a new home purchaser. We're trying to make our forms a little simpler, a little easier to understand, and we're putting a lot of money into trying to educate the builder on how he should act during a closing. It's an educative process.
The interesting thing is that most builders registered with the program last three years and are gone. It's a highly volatile industry. We've only got, I suppose, of the 5,000 or 6,000 registered builders, maybe 1,500 who have been around over four years. You know, they sort of stay, and builders come, builders go, so you lose those people. We're spending more and more time on the legal profession, trying to get, as I mentioned, the real estate bar up to understanding the process, but it's a very difficult one.
Mr Tilson: One other question I have is that one of the questions that was raised this morning by, I believe, the Fair Rental Policy Organization of Ontario, but it applies, I guess, throughout all types of new construction, or old construction, renovations, is the broadening of the regulations section; in other words, regulations, we now look at two binders. I look at the generality of section 34 of the bill, which to me enables the provincial government to expand the regulations really quite widely. Instead of two binders now, we could be looking down the line at four or five binders. How do you feel that will affect you in the administration of your organization?
Mr Rose: I think we have a very good relationship with the Ministry of Housing and its officials and also with other people, like the home builders, everybody involved, because the consultative process has been very good. I'm quite sure they wouldn't zing a regulation in that they hadn't thoroughly consulted with everybody on. For example, we probably have the best data in Ontario in the residential housing industry on defects and problems, just because of our claims database.
We've become a very important partner with them in saying: "If you're going to do this, here is our experience. We'd suggest maybe you modify it." There are a number of areas that we work and consult with and I think this is the process. Quite frankly, I don't the Ministry of Housing ever would, but if they just zinged out a regulation that the rest of the industry thought was impossible, they'd hear about it. But they haven't; they've been very prudent and careful.
Mr Tilson: I believe the regulations will be increased substantially, and obviously I'm making a political statement. That's my privilege. But I am concerned that I understand your organization. You've got me afraid even to say it any more. Your organization deals strictly with major structural defects. Because of the broadening of the regulations, will you perhaps be forced to broaden what you will cover?
Mr Rose: We cover major structural defects but we also cover what we call warranty, and warranty is quality of workmanship.
Mr Tilson: Only on major structural defects.
Mr Rose: No, any warranty item. The first year of the warranty covers any item with respect to a bad paint job, poor carpet laying, squeaky floors, a whole range of things that I'm sure you know go wrong with a new home. Those are all covered under the first-year warranty.
The second-year warranty covers any penetration of water into the basement or anything in the envelope of the building that allows the weather or the elements to get in.
The major structural defect, which lasts for seven years, is if the building basically becomes uninhabitable or unsafe. We've paid out far more money on warranty than we have on any other of our major structural defects or our deposit claims.
Mr Tilson: So you don't feel this will result in added cost to your administration.
Mr Rose: One would hope not. One hopes that these changes are made to improve housing. I guess ventilation improves the quality of housing because you've got better air in the house, for example. Usually, we will argue the cost implications of a regulation when we're talking with the ministry, with the home builders and with the other stakeholders, and hydro as well. There is a classic example of full basement insulation. We took the position with respect to full basement insulation that it really wasn't on and it would be costly because we haven't perfected the problem of avoiding leaky basements. If we lick the problem of leaky basements, full basement insulation will be great, but until that day it's going to be very expensive for everyone.
The Chair: Mr White, we have time for one short question.
Mr Drummond White (Durham Centre): I just had a couple of questions which unfortunately are not related to the entire building code but rather to your program. I notice in your booklet entitled the Home Buyer's Guide to After-Sales Service, you have ratings for a number of the builders. You have a disclaimer, I'm sure, in that saying that these ratings aren't updated to the week or the month or whatever.
Mr Rose: They're good to the date of publication. They end December 31 of the year the guide is produced. You could have somebody who would be rated as excellent December 31, 1991, and on January 2, I could issue a notice of proposal to revoke the builder's licence for something that may have happened.
That's why in our instructions and in our guidance to new home buyers who are using this book is to not only check with the warranty program, but I think even more important if you're buying a new home, check with somebody who's already bought a house from that person. They're better than we are, they're better than anybody, because they can really tell you how it is.
This, as we say, is a guide, and it's an initiative that we took at a great deal of risk. People thought we were crazy, quite frankly. Other warranty programs throughout the world have never had the nerve to do this, but we did it and we think it's part our consumer education. The other thing it's done is it has disciplined the builders.
Mr White: It certainly should. I'm sure the advice you just mentioned is something you relay to buyers, simply that they should check with other present owners of homes that have been constructed by that company.
In my area in Whitby there were quite a number of complaints about one particular builder or one particular subdivision. Would one be able to get updated information on that? Would that sort of anecdotal information be available from the local Whitby office?
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Mr Rose: If you have a builder as a member in Whitby, you should talk to the regional manager. What I've done with many local members is I've gone out to lunch with them and talked about the particular problem. I don't know whether it's your riding, but we had a major structural defect in a number of heat exchangers in furnaces, something like 400 or 500 of them. It was a faulty heat exchanger in the furnaces and we gave everybody a cash allowance to replace not only the heat exchanger but the furnace. That's the sort of protection the consumer gets.
If you have a concern with a particular building and it's in your constituency, I think the person to talk to is our regional manager for Whitby, Mr Mark Lecasse, who would be more than willing to meet with you.
Mr White: Thank you very much, Mr Rose.
The Chair: Thank you very much for your presentation. I think all of us who were around here in 1987 still have the trauma of the housing boom of that time. It is certainly where I came to learn about the Ontario New Home Warranty Program when meeting with people from your operation. All I can say is that while I hope the housing market gets stronger, I hope we never have to go through that again. We spent a lot of our time out in subdivisions getting to know about basements and paint jobs and all that good stuff. But we thank you very much for your presentation and for the material.
Mr Rose: Thank you very much for the opportunity.
LARGE MUNICIPALITIES CHIEF BUILDING OFFICIALS
The Chair: I'd now like to call the representatives of the Large Municipalities Chief Building Officials group, LMCBO, if they would take their seats and please introduce themselves to us and for Hansard.
Ms Terry Dalkowski: Good afternoon, Mr Chairman and members of the committee. My name is Terry Dalkowski. I'm the director of building development and chief building official for the city of Nepean. I'm also the chairman of the executive committee of LMCBO.
On behalf of the LMCBO, the Large Municipalities Chief Building Officials group, we thank the committee for the opportunity to express our views on Bill 112. The LMCBO group represents 38 municipalities in Ontario with populations in excess of 50,000 people. Our chief building officials oversee building code enforcement of more than 85% of all building construction in Ontario.
Our group is generally in support of Bill 112, which is very similar to Bill 103, which was introduced for first reading by the previous government. In 1990, the majority of our municipalities passed council resolutions supporting Bill 103 and sent them along to the then Minister of Housing.
Within the last few years, the issue of building permit fees and their relationship to the level of service provided has been discussed at workshops of the LMCBO group. These discussions led to a resolution at the last workshop in May 1992, which requested the Ministry of Housing to amend the Building Code Act to make it clear that building permit fees are to be used for the administration and enforcement of the building code and applicable laws in a manner similar to section 69 of the Planning Act for processing applications under the said act.
In light of the recent second reading of Bill 112, we felt it most appropriate to bring this matter before the committee. It is an issue that the LMCBO group feels quite strongly about. We are prepared today to present our recommendations to this committee for your consideration and, hopefully, concurrence.
Attending with me today is Mr Rocky Cerminara, P Eng, chief building official for the city of London, who will speak on the issue in more detail.
Mr Rocky Cerminara: Our group is recommending that clause 7(c) of Bill 112 be amended by adding after the word "thereof":
"and such fees shall be designed and used to meet only the anticipated cost to the municipality for the administration and enforcement of the Building Code Act and regulations, including any applicable law."
Purpose of amendment: Going back to when the first building code was enacted in 1974, this section has not changed in all of those 18 years. In the existing act it's clause 5(2)(c), and in the new Bill 112 it is clause 7(c).
We believed as a group, and I'm sure most people did, that the particular section in the existing code implied that the fees paid were to be used for the administration and enforcement of the act and regulations. We feel there must be a correlation between fees collected and the level of service provided. Only in this way can the Ontario Building Code be applied with uniformity and consistency across the province.
In recent years, there has been a growing concern among the members of our group regarding the level of service provided and the building permit fees collected. A number of municipalities are setting fees based on whatever the market will bear, and surplus funds are collected and used for other general municipal purposes. They are not put into reserve funds and earmarked for the administration and enforcement of the building code.
It is the opinion of our group that the intent of the Legislature in 1974 was to provide not only for uniform building regulations but also for uniform enforcement across the province. Concern, in 1990 I believe, has also been expressed by the Ministry of Housing on the level of service and enforcement provided by some municipalities. The ministry has also stated that the fees authorized by clause 5(2)(c) of the existing act and its relationship to the cost of providing services under the act is somewhat unclear. We believe it is time that the legislation is amended to make it clear to all municipalities what building permit fees are to be used for.
We'd like to provide some background on user fees or building permit fees. Most municipalities treat building permit fees as a form of user fee. There was a report entitled The Scope and Application of User Charges in Municipal Governments, by Mark Sproule-Jones and John White. This report was printed, by the way, in the November-December 1989 issue of the Canadian Tax Journal. It states that from 1951 to 1981 user charges, as a percentage of total revenue, increased from 2% to 20% in Canadian municipalities.
The report also dealt with the results of a survey of 27 southern Ontario municipalities. Some of the findings in the report are summarized as follows:
1. User charges are an acknowledged form of public finance for municipal governments.
2. User charges can be constructed on at least three types of pricing principles: marginal cost pricing, average cost pricing and "profit" or revenue maximization.
3. All 27 municipalities in the survey indicated that they used average cost-pricing principles. Average cost pricing sets charges by dividing the total costs of providing a service or quantity of goods by the number of units of service or quantity of goods actually produced.
4. Revenue from user charges was not automatically earmarked for the program or function in question. Revenue was paid into general operating accounts. This process does not motivate public servants to adjust user charges to alter the quality and quantity of services in question and may lead citizens who pay user charges to perceive the charges as another type of consumption tax used by the municipality to raise revenue, rather than enhancing the efficiency of municipal service delivery.
5. There was considerable variation in the types of costs municipalities used in the costing methods. Of the 27 surveyed, all based their costs on general operating costs; however, 15 included overhead costs and 13 included capital costs.
The point of this background is to demonstrate that user fees have become an important source of revenue for municipalities. This point again was highlighted in 1991 in a report entitled the Report of the Advisory Committee to the Minister of Municipal Affairs on the Provincial-Municipal Financial Relationship. The advisory committee made the following recommendations:
"Municipalities should be given the authority for more flexible use of user fees to mitigate costs imposed on municipalities.
"When municipalities establish user fees, the following conditions should be borne in mind: the benefits are quantifiable and have little spillovers; charges should consider the consumer's ability to do without the service or good; and charges should be designed to maximize accountability.
"Municipalities should be given the flexibility to fully recover the cost of administration, issuance and enforcement through licence fees."
The above recommendations, in our opinion, support our position that user fees should recover only the cost of providing the service and be designed to maximize accountability, not maximize profit.
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I understand that recently the Ministry of Municipal Affairs issued a discussion paper on licence fees, based on the Brantford model. The basic statement made in this discussion paper is that licence fees should be based on the actual cost of processing the licence application, not just to generate revenue.
With respect to the building permit fee, the authority is under clause 5(2)(c), as we mentioned earlier. It clearly states that a municipality may pass bylaws "requiring the payment of fees on applications for and issuance of permits and prescribing the amounts thereof."
The Building Code Act allows a municipality to recover the cost of carrying out its mandatory responsibility, as prescribed by subsection 3(1), which states: "The council of each municipality is responsible for the enforcement of this act in the municipality." This responsibility, which can be referred to as a service, is unlike many others. The municipality provides on a voluntary basis for which it chooses to charge user fees.
The Ministry of Housing was requested in 1991 to comment on the relationship between building permit fees and the cost of enforcement of the code, ie, issuing permits, examining drawings and inspection of construction etc. Its complete reply is attached as appendix A.
Essentially, the reply can be summed up in one of their statements, which is: "The question of whether fees authorized in clause 5(2)(c) of the act need be related to the municipality's actual or perceived costs of providing services under the act is somewhat unclear."
This has come about as the result of a number of court cases. In one court case, they say there is a relationship between the fee that is collected and what it is to be used for such as must be reasonable and bear some relationship to the cost of inspecting and approving plans. The fee must not be for the purpose of raising general revenue for the municipality. On the other hand, another court case says there are no limitations and the municipality can do what it will with the money.
It is the position of our group that this question can be resolved after 18 years by amending Bill 112 to make it consistent with what the Planning Act prescribes. I would mention that the Planning Act in section 69 states:
"The council of a municipality, by bylaw, and a planning board, by resolution, may prescribe a tariff of fees for the processing of applications made in respect of planning matters, which tariff shall be designed to meet only the anticipated cost to the municipality or to a committee of adjustment or land division committee constituted by the council of the municipality or to the planning board in respect of the processing of each type of application provided for in the tariff."
If we have time I'd like to add some more on service levels, because we believe the two issues are totally related.
The Ministry of Housing in 1990 in a buildings branch newsletter -- and we have quoted three of their paragraphs. Given the time constraints, I will read only the second paragraph.
"Most municipalities carry out their responsibilities in a thorough and competent manner. Building permit fees are often directly related to the level of service and inspection provided. However, in some municipalities, building code enforcement functions including plans review and permit issuance are not as efficient as they could be. This may result in long delays in obtaining building permits and in poor inspection practices. Also, there is often a major imbalance between building permit fees collected and funds expended on code enforcement, with the surplus funds being used for other general municipal purposes."
We believe the cost of the service is directly related to the quality of the service provided. From the builder's point of view, good service is often related to quick processing of permits and timely inspections of construction. However, the municipality has a responsibility to ensure not only reasonable response times but also accurate plan examination and quality inspections so that subsequent purchasers are not left with substandard construction. It is difficult at times to find the right balance between speed and quality.
There are no current provincial standards by which municipalities may evaluate their performance of processing permits and conducting inspections. A study was funded by the Ministry of Housing, as I've mentioned in my paper. It is a first step in developing or establishing reasonable levels of service in the province, and if it were completed and distributed it would be of some assistance to our municipalities.
In conclusion, the proposed amendment to Bill 112 will not, in itself, result in an improved uniform enforcement of the building code. It will, however, provide a correlation between building permit fees and levels of service, which should motivate municipalities into delivering a more efficient and accountable service to the users and the public in general.
The Chair: Thank you very much for your presentation and for the explanation of the proposed amendment. We'll begin questioning with Mr Tilson.
Mr Tilson: I found your comments on user fees particularly interesting. It reminds me of the debate that was done in the province in the past on lot levies, as to whether user fees should be part of lot levies. I don't know, but it's a very difficult subject to cover all the angles. I appreciate your thoughts, although you've certainly confirmed a theme that seems to be developing from the delegations that have been coming to us, thus far at least. You talk about the cost being related to the level or quality of service, and that theme seems to be developing from delegations that have been coming to us thus far, that the quality of service of inspections may differ across the province, depending on the size of a municipality or for other various reasons. You might elaborate on that.
Mr Cerminara: We believe that most municipalities take their responsibilities under the Building Code Act seriously. However, there are some municipalities where our members have brought this concern to us, that when construction is booming and millions of dollars are coming in in user fees, going into general surplus, they're finding it difficult to get the staff to do the proper job. There are municipalities around the Toronto area, for instance, where you can wait six weeks to two months for a building permit because they're just jammed up and they can't get any help.
I know that in the London area if I had people waiting for more than two weeks I'd be lynched. Our standard is completely different in London. I can also add that our board of control has a policy on user fees. They clearly state that fees should not be designed to create profit. This is our official policy. However, even in the city of London sometimes we tend to forget our own policies and the money comes in handy to cover off other expenses of the municipality.
Mr Tilson: If I could ask a further question, we appear to be setting forth more and more regulations. I guess I'm getting back to your comments on the quality of service. The need to have more and more qualified building inspectors across this province is becoming more and more necessary simply to meet the increased regulations being put forward by the province. Is the province getting into areas that perhaps it shouldn't be getting into?
Mr Cerminara: Is that a question directed at me?
Mr Tilson: That is a question directed at you, sir.
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Mr Cerminara: All right. I'm not necessarily speaking for the group now, because we haven't posed that question, but speaking for myself, I think with the province getting into the enforcement of building codes in 1974 by saying, at the pleading of the construction industries and even at the pleading of building officials, that there will be one uniform code across the province, it took on a responsibility.
It's not good enough to say in an act: "Here's a uniform building code. Okay, municipalities, enforce it." I think you have to follow through and make sure they are enforcing it, given the means to do so. And they have. They said you can charge user fees and permit fees. But make sure that they're not just raking in the money and not doing the job. I think there's a responsibility. If you're going to go in it halfway, you've got to go in it all the way or don't go in it at all.
Mr Tilson: One final question has to do with your initial comments on the amendment that you're proposing for clause 7(c). Just to repeat a concern that was expressed this morning -- I don't know whether you heard it or whether you've read the presentation given by the Toronto Area Chief Building Officials Committee. They made comments on the topic of applicable law, which you've referred to. The question still seems to be up in the air from the ministry as to what in the world that means.
I will just quote the paragraph I'd like you to comment on:
"At present, the chief building officials are expected to make decisions on a case-by-case basis. These decisions are made by relying on custom, practices followed by others, court decisions, familiarity with the law, Ministry of Housing directives and other considerations. It is expected that certain current developments in environmental issues and decisions made by the courts will no doubt add to the confusion that exists."
That does not seem to be taken into consideration in your proposed amendment.
Mr Cerminara: If I can answer that this way: Right now, the building code does state, and I believe it's section 6, that we have to take into account applicable law. What we have asked the ministry to do, because there are countless acts and regulations which are considered or could be considered by a judge to be applicable law, is to provide us a list. In fact, I was provided such a list a few weeks ago from the ministry. It is only a draft list that their legal department has prepared.
When we say "applicable law" -- let's say, for instance, zoning bylaws. That's applicable law. The municipalities enforce zoning bylaws. We're worried more about the provincial laws such as laws dealing with conservation authorities or the Cemeteries Act or nursing homes. We'd like to have a complete list so that we can give it to our plan examiners and say, "Okay, when you get an application for a nursing home, make sure that the provincial authorities have reviewed it, because it's one of their babies to look at," and so forth with any of the others.
People think of it as a big millstone, but the idea is just to know what is applicable law and then direct the applicant to go get his approval by the other authority. It's more a case of that than us being familiar with every law that affects construction, because I doubt whether we would ever, in our lifetime, know it all.
Mr Tilson: Those comments are very useful. Thank you.
Ms Harrington: Thank you for coming. I was also going to say that your comments with regard to the applicable law are most helpful also for our staff who are listening.
I wanted to thank you for bringing forward this one particular concern you have with regard to the user fee increases and the resolution that you supported last May. I have asked my staff, Mr Wildish, who's with me up here, if that was brought to the attention of the ministry between May and now and, from what I understand, we are not aware of it. Certainly, I think we have to work together. If there are resolutions like that, I would like you to bring them and talk with our staff directly about that.
Just to answer you at this particular time, we will have a look at this, but you're drawing a parallel with the Planning Act as to how it would operate. Certainly that's an interesting way of looking at it and a legitimate way, but all I can say at this point is that when we get into the area of the municipalities, we would have to go through the Ministry of Municipal Affairs and speak with it first before we could comment on what direction to go with this.
But I do want to thank you for bringing this forward and urge you to also work with our staff. I'm sure that maybe some of them could go to your conferences and have direct access to what you're doing.
Ms Dalkowski: In actual fact, a representative of staff of the Ministry of Housing does sit on our executive committee of LMCBO and the Ministry of Housing has many of its staff persons at our workshops and provides all kinds of technical and administrative support for our workshops.
Ms Harrington: I'm sorry then that this item was not brought to our attention before now.
Mr Cerminara: I must apologize for that, because it was simply a matter of timing. Although your representatives were there, they were expecting us to send that resolution to the Minister of Housing, and we were intending to, and then we found out in late June it had got second reading and there were going to be public meetings, so we decided to come here, but with their knowledge.
Ms Poole: Thank you very much for your presentation today. It was an issue we haven't grappled with yet, and it was particularly helpful because you've not only brought the problem to us, you've also brought a possible solution with your suggestion.
You've mentioned in your brief the Ministry of Housing newsletter of February 1990 which touches on the issue, and also you've attached as appendix A a letter from the Ministry of Housing regarding the issue and the case law on it. What kind of response have you received from the Ministry of Housing? Is it your impression that the ministry feels this is something that should be left to municipal discretion, or has there been an indication of willingness by the Ministry of Housing to take a look at this issue and ensure uniformity of the fees from building permits and their use?
Mr Cerminara: I don't believe I can adequately speak for the Ministry of Housing. I know their representatives have been supportive of such an action. Their newsletter basically cries out for the same thing. But with respect to appointed officials we deal with, and then the political level, I don't know how one gets transferred to the other and what the government feels about it as an official position.
Ms Poole: You actually have not received an official position from the ministry as to whether it would support this amendment.
Mr Cerminara: No.
Ms Poole: I wonder if it would be in order, Mr Chair, to ask the parliamentary assistant if this is under consideration by the government.
Ms Harrington: As I just pointed out in our discussion, this is the first time it has been brought forward. The more lead time we can get, certainly the better, to pass this through all our officials.
Ms Poole: It was actually brought forward at least on September 27, 1991, when the Ministry of Housing wrote to the city of London about it, so I would be surprised if ministry officials are not aware of the issue, nor indeed a potential solution.
Ms Harrington: What I've just indicated is that it is now brought to my attention and it is under consideration, or at least we will have a look at it, is what I'm saying.
Mr Tilson: Careful, Margaret.
Ms Harrington: Thank you.
The Chair: I think the answer is that this is now being considered.
I want to thank you very much for your presentation and for the material you've presented.
Ms Dalkowski: Thank you.
CANADIAN BAR ASSOCIATION -- ONTARIO
The Chair: I would now call upon the representatives of the Canadian Bar Association, the Ontario chapter, if you would come forward, please, and perhaps I'll let each of you introduce yourself and then please proceed with your presentation. Welcome to the committee.
Ms Erica James: I'm Erica James and I'm the president of the Canadian Bar Association -- Ontario, and I have with me today Virginia MacLean and Irvin Schachter, who have authored the presentation today to you, together with their committee.
For nearly 80 years, the Canadian Bar Association has been the voice of the legal profession in Canada. The Ontario branch represents a membership of about 16,000 lawyers, judges and law students from around the province of Ontario. The objectives of the Canadian Bar Association include the promotion of improvements in the law, legal research, law reform and improvement of public and social policy. In pursuance of these objectives, our association examines the current issues, including proposed legislation and its effect on the legal systems and the public.
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Our association achieves its goals through the extraordinary efforts of volunteer members of our association. We take pride in the representative input, the thoughtful analysis and internal challenges that are given to every submission that we put forward.
We're in somewhat of a unique position because our members are people who work both to interpret and use the legislation and those whose duty it is to enforce it. We aim to achieve a balance in these perspectives in reaching the ultimate consensus that comes before you in the form of this submission. I'm pleased to tell you that the representatives who are attending with me today represent both those camps.
Ms Virginia MacLean: The committee that was struck to deal with this matter was a subcommittee of the municipal law section of the Canadian bar, and Mr Schachter and I were that subcommittee. We come from varying backgrounds. Mr Schachter works for a municipality. I'm in private practice but I formerly worked for a municipality. We're both very familiar with the Building Code Act and have had practical, hands-on experience dealing with it.
This committee had made earlier comments on Bill 103, and those comments are appended to our presentation. Rather than going through that particular document, we propose to briefly go through our comments where we have a difference of opinion.
We have stated in our latest report that we support most of the sections which have been enacted in Bill 112. We've highlighted the sections we're particularly supportive of, but we do find a number of sections which have not been changed and are in a form in which we have a difference of opinion. Those are the issues we'd like to address solely. It starts on page 3. Perhaps what we can do is that Mr Schachter will deal with certain of those sections and he will embellish on what appears before you, and I will deal with other ones. I will turn it over to Mr Schachter.
Mr Irvin Schachter: One of the areas of difficulty that we noted when we reviewed Bill 112 was the question of the "applicable law" definition. We noted in Bill 103 that a definition had been set out and it's contained at the bottom of page 3 of the submission. That was a definition contained in Bill 103. We note that definition did not carry through into Bill 112.
As you may have heard previously, there has been difficulty with the fact that "applicable" has not been defined. In large part there has been definition of it through case law. The courts have made decisions as time has gone on with regard to what they would, in various circumstances, consider applicable law.
It is our position that the definition that was set out in Bill 103 is probably a better definition than is contained in the present bill in its present format. The reason we say that is that it does give a chief building official some area to go to, something to look at in terms of trying to determine what is applicable law in any given circumstance. We suggest for that reason that the committee seriously review whether it would like to bring the definition back that was contained in the previous Bill 103.
Ms MacLean: Jumping over to non-compellability in civil suits, this provision exists in the current Building Code Act. I don't know whether it's been brought to your attention before or not, but it's a section under which no inspector is compellable in a court, and there is no reference to that section. The reason we're supportive of including that in the current bill is that it's a means of ensuring that municipal staff are not tied up as expert witnesses in civil suits.
The question of whether that means the inspector involved has to attend at court, in my experience, has been answered several times by the courts. They said, "Yes, if you are given a subpoena to attend at the court, you must attend, but you do not have to give evidence until I direct you to give that evidence." What in fact the section does is to discourage lawyers from taking building inspectors as their experts, because they don't know what kind of answer they're going to get and they don't know whether that inspector will have to give the evidence. So it's a serious omission, we would respectfully submit, from the existing building code and we'd suggest it be reinserted into Bill 112.
Mr Schachter: One of the difficulties in paraphrasing and not reading is one sometimes misses points one wishes to raise. Having said that, I'd like to go back to applicable law for a moment on a point I wish to deal with.
Subsection 8(3) of Bill 112 relates to the issuance of conditional permits. One of the difficulties we appear to have discovered was that while "applicable law" is defined as it relates to conditional permits, it isn't defined as it relates to permits that are not conditional. There does not appear to be a rational basis for that distinction and we suggest that they either both be defined or neither be defined, but we're not sure why one is defined and one isn't.
If I may I'll turn over to page 4, with reference to final emergency orders. If it is the intention oft subsection 17(8) of Bill 112, which relates to emergency orders, that a judge's disposition be final and that there be no right of appeal, we just wish to bring to your attention that there is a recent case from 1988 called Yorkville North Development and North York that defines the words "final" and "binding." You may recollect that this is the term found in the Planning Act in section 31. With reference to that particular decision, we suggest that the word "final" be amended to read "final and binding," so that it tracks the words of the Planning Act, and in light of that particular decision of the Court of Appeal, there's no question that there be no right of appeal from that particular decision.
The next matter I'd like to address is item 3 contained at the top of page 5 relating to certified professional programs. We noted that Bill 103 did permit the Lieutenant Governor by regulation to enact a program of certified professionals and in that way speed up issuance of building permits which, as you may have heard, may be taking some length of time in some areas. We noted that Bill 112 has deleted that particular authority. It is our suggestion that it be included in Bill 112 once again. Why? It would then give the Lieutenant Governor the ability to set up a program at some time in the future should, for example, the conditional permit system not reduce the backlog. But we suggest it is a matter that could be addressed in the future in this particular bill.
The last item I'd like to deal with is item 4. Again, it's a minor matter. Subsections (11) and (13) of section 8 of Bill 112 both prohibit a person from constructing or demolishing a building or structure. Subsection (11) refers to the Building Code Act and regulations; subsection (13) refers to plan specifications or documents. It was our opinion that those two subsections could more properly be joined together and the words, "in accordance with the Building Code Act and regulations," could be appended to (13) or the other words appended to (11), so you don't have to have those two separate subsections.
Those are our submissions.
The Chair: Thank you very much for the presentation and the specific nature of your suggestions. I'm going to ask Ms Harrington to make a few comments about where the ministry is with respect to those and then we can get into the questions. I think that will perhaps help in that way.
Ms Harrington: Thank you for bringing forward your very careful look at what we are doing. First of all, our legal counsel, Mr Levitt, is here and I'm sure listening very carefully. I want to respond to a couple of the questions. The applicable law: We discussed some of that this morning and we understand what the situation is, that you would like it as clear as possible. We are looking at that and how to do that in the best way. I would like to ask Mr Wildish to comment on the non-compellability in a civil suit, because that is something we have discussed.
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Mr Wildish: Yes, this is an issue that has been around, as everyone here knows, for some time. It's of particular interest to the building officials as well, because they're the ones who have to go to court. It was put in in Bill 103, of course, because the idea was that we would like to have people in a litigation of a civil matter have as full access as possible to all the information which might be helpful in the case.
It was our view at the time, and remains our view now, that there was some potential for a building official to spend a little more time in court, but we did not think that would be serious and that there would be any serious increase in this matter. I think that still remains our view, that the gains to be made by having more information available in civil suits outweigh any possible increase in the attendance at court by building officials.
The changes in the Freedom of Information and Protection of Privacy Act recently seem to us to make a lot of information available to people in cases at court. They won't have to rely as much on bringing a building official to court but can perhaps get that information directly from municipalities under the freedom of information legislation. I think up to now we haven't felt it compelling to reinstate that idea.
Mr Wayne Lessard (Windsor-Walkerville): I want to thank you for your presentation as well. I found it very helpful. As a former member of the bar association, I always appreciate the work you do to help us out in our job.
Something was mentioned in a presentation earlier today with respect to the time for appeal for persons who feel themselves aggrieved by an order of a chief building official. This is in section 25. The person who made this submission said that they really didn't know why they were making it. Their submission was written by a lawyer and they felt that lawyers always ask for more time. In this section the appeal period is limited to 20 days and the submission was that it was too short a period of time. I wondered if you had any comments with respect to that.
Ms MacLean: Yes, I can comment on that from experience. There is discretion in the court to extend the time, as you know, and that's still there under subsection 25(2). From a realistic standpoint, I think there has to be some certainty in the system and I quite frankly think 20 days has worked. There are a multitude of cases that have gone before the courts under what is now section 15, and it's my understanding this is exactly the same, is it not? There's no change and I don't know why they'd want to change it. It is working.
Mrs O'Neill: Thank you very much. It's helpful to have a presentation from people who are working with this in the formal way in which you work with a piece of legislation and to have your responses. The "applicable law" definition and certainly the certified professional program -- I should say both of those are not components of the bill -- really have caused quite a bit of discussion by many of the presenters. I'm very happy that you put in your comments on the former bill, Bill 103. It's helpful to put it into the context of the way things develop. Could you tell us about the meeting or submission you had on February 20? Was that a meeting or a consultation process? You say this was submitted in another context. At least that's what your cover says.
Ms MacLean: It was my understanding that it was just submitted by the bar. We did not meet. There was no meeting involved.
Mrs O'Neill: In other words, to this moment you haven't had response to any of these issues.
Mr Schachter: That's correct.
Ms MacLean: The response, I guess, has been reflected in the fact that there were changes in 112, so we assumed that in part it may have had some input. We have consulted with staff. At least, I personally have and I believe Mr Schachter has.
Ms Poole: Thank you for your comments today. They've been quite helpful. I notice that in addition to the Urban Development Institute and the Ontario Home Builders' Association, the Canadian Bar Association -- Ontario is also supporting the certified professional program. I gather the primary reason for this is to reduce the backlog at peak times. Are there other reasons why you find this particular proposal attractive?
Mr Schachter: In my opinion, that would be the main reason for having a CPP, in order to streamline the system. I think one further comment, though, now that you've raised it, and it is contained in the appendix to our submission's earlier comments on Bill 103, is that while we do support the proposition of the CPP, it is a matter that will have to be looked at fairly carefully, because there are a number of pitfalls relating to that in terms of conflict of interest, what a permit issued under that program would actually constitute, the validity and other matters such as that.
I think it's within the context that we do support the principle on the basis that it would speed up matters, but if we should ever get to the point of actually looking at the nuts and bolts of what the program would look like, I would suggest we should probably take a fairly close look at it.
Ms Poole: In other words, the principle is very good but you are a little concerned about how it would be implemented, which I think would probably primarily be through the regulations.
Mr Schachter: Yes.
Ms Poole: Has the Canadian Bar Association been approached by the ministry as far as a consultation on the regulations is concerned, or has your group been involved at all?
Ms MacLean: Speaking from the standpoint of our section, no, I'm not aware of any consultation. Perhaps Erica can speak to that.
Ms James: No, we haven't had any consultation.
Ms Poole: Perhaps I could suggest to the ministry, given its expertise and its familiarity both with the law and the technicalities of the act, that it might be very helpful to have it involved and I would certainly urge you to invite it to do so.
Ms Harrington: Thank you for that suggestion. Just from the fact that you're on the list today, I presume that you have certainly interacted with our officials in the ministry, and that is certainly a good idea. I wasn't sure what Ms Poole was suggesting. Is it just in the one particular regulation you were thinking about --
Ms Poole: No.
Ms Harrington: -- or was it in all of the regulations? I would certainly think on a broad base, yes.
The Chair: Mr Tilson?
Mr Tilson: I don't really have any questions, other than perhaps a comment and a question to Ms Harrington. I'm sure my Liberal friends are just delighted by your comments, because certainly you seem to be supporting Bill 103.
Ms Poole: As have most of the presentations, Mr Tilson.
Mr Tilson: And that leads to my question to Ms Harrington, because there have been a number of comments that you've really echoed, whether the certification process or a number of other areas. I wonder, Ms Harrington, if you can provide the rationale as to why there have been the changes that there have been from Bill 103 to Bill 112, if you are aware of those.
Ms Harrington: Okay, how many changes would you like to be discussing?
Mr Tilson: Whatever you wish to comment on really. Just take this delegation. We could go through and comment on how they would prefer certain things that were in Bill 103 and that aren't here in Bill 112. You could take any number of them, your choice, the applicable law definition, the certification professional program.
Ms Harrington: Certainly, Mr Tilson, we have, during the course of today and yesterday, gone over various items that are in or out and presented the bill as we see it. I think you're aware that over the last two years what we have done is looked at Bill 103 and brought in some other ideas and made it into our bill. I think that's a very legitimate process and I certainly don't think I have to justify everything that has gone on during that time.
Mr Tilson: Sure we've got time. We've got lots of time. It's quite serious, when we have delegation after delegation come to us with suggestions as to why the provisions in Bill 103 would be preferable to Bill 112.
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Ms Harrington: On the other hand, we also have many, many delegations saying that, "Yes, you have included other things which are very worthwhile and the direction we should be going in."
We are discussing the bill as it is presented now. Certainly I'd be willing to answer your questions about some of the things left out, but I can't go through everything. I think it's been pointed out very clearly, for instance, with the certified professionals provision that had been included there that there are some reasons for it and reasons against it, and just right now we've said it certainly would speed up the process in times of high demand for service.
On the con side, there could be conflicts of interest, it's difficult to implement, there would be a long process of development with it. I have indicated to you before that we have looked at the pros and cons with our staff over the past while, and we have, as you said, excluded it. The reasons we felt against it outweighed those for it.
Mr Tilson: Ms Harrington, all I can perhaps say is that when you make your next presentation in several weeks' time, I'd be interested, generally, in hearing the rationale as to why you've changed specific sections. I think other members of the committee would appreciate that as well, particularly when delegation after delegation is coming forward saying they would prefer those other sections. I think the delegations and members of the committee are entitled to know your rationale, whether you're doing that in your presentation or in your clause-by-clause discussion. I might as well tell you we're putting you on notice that we would expect that.
The only other comment I have, Mr Chairman, is that this delegation is just typical. I fear that the consultation process that is being set forward by the government is inadequate and that expert groups such as this aren't being offered an opportunity to come forward and put forward their positions, particularly when they've indicated that they are willing to do that so that hopefully the ministry officials will perhaps improve that consultation process, if that's the direction we're going in.
I have no further questions and I thank you for your thoughts.
Ms Harrington: I would like to comment. With respect, I don't think that's exactly what this group said, that it has not been included. Maybe they would like to clarify that a little further.
I would just like to finish off by saying -- certainly my staff is listening here -- that I am asking them to look into and report back to us about various things that we have talked about, for instance, the applicable law definition. At the end of today they will be answering our questions from yesterday, and certainly at our next meeting they will also be answering some questions. We will do our very best to do that for you.
Mr Tilson: I'll be looking forward to hearing your rationale.
The Chair: Thank you very much for your presentation. I have a suspicion that you will be involved in this issue for some time to come.
Ms James: Thank you. We're always very happy to do so.
PRICE CLUB CANADA INC
The Chair: I would now like to call upon the next presenter from the Price Club Canada Inc, Ms Joy Goodman, vice-president, legal affairs, and I believe there may be one other person. Perhaps, Ms Goodman, you'd be good enough to introduce your colleague.
Could I, for members of the committee, make just one comment at the outset before this presentation begins. I understand, Ms Goodman, that there is currently a legal case before the courts and I simply remind you that this is of course a public hearing and obviously anything that is said within this room is a matter of public record.
Ms Joy Goodman: Yes, that's correct. Thank you, Mr Chairman.
The Chair: If you would introduce your colleague and then please go ahead.
Ms Goodman: I wish to thank you for taking the time to hear me today. I know my request for a hearing was somewhat last-minute, so I really appreciate your flexibility. My name is Joy Goodman. I'm vice-president, legal affairs, of Price Club Canada, and here with me today is Yvonne Hamlin, who's a partner with the law firm of Goodman and Carr.
My submissions will address two very specific points dealing with appeals by third parties from the issue of building permits: standing to appeal and whether an appeal automatically stays the operation of a building permit.
This matter is dealt with in section 15 of the present Building Code Act and in section 25 of Bill 112. I understand that appeals by third parties from the issue of building permits are very rare. Certainly there are few reported decisions in Ontario dealing with this subject. However, the rarity of such appeals is hardly a comfort to those who find themselves in this situation, and that's the very experience that Price Club Canada is going through now, so I speak to you out of personal experience.
Price Club Canada Inc is in the business of operating warehouse membership clubs selling food and general merchandise to members only. Our membership is drawn from two main groups: businesses of all kinds, which are our target customers, and members of the public and what we call the parapublic sector. From our beginnings in Montreal in 1986, we now have 12 warehouse clubs operating in Canada, five of which are in Quebec, five in Ontario and two in British Columbia. We're also in the process of building five new units to open this fall, one of which is in Ontario.
Each warehouse club employs approximately 200 to 250 people at opening. Depending on sales volume, employment will generally increase to about 400, even 500, when the warehouse reaches maturity, which takes about a year. The purpose of Price Club is to serve the needs of businesses, particularly small businesses, by providing them the goods that they need to operate their business at wholesale prices and by allowing them to buy any quantity of goods, large or small. Our markups average 8% and our aim is to provide day-in, day-out prices which are better than those of wholesalers with whom we compete.
For the past year in Ontario, we have found ourselves targeted by various supermarket chains which have tried through various means to delay or to block the opening of new warehouse clubs. Typically, these tactics take the form of objecting to rezoning applications, both at the municipal level and by systematically appealing favourable decisions to the Ontario Municipal Board. Simply appealing the appeal adds over a year to the typically rather lengthy rezoning process.
As a response to these tactics, Price Club has started looking for sites where no rezoning is required. Ancaster, which is near Hamilton, is such a site. In Ancaster we started negotiations about nine months ago. In that case our lawyers looked at the zoning and the official plan and told us that in their opinion our use was a permitted use for that site. As well, through our vendor, we obtained a letter from the town of Ancaster confirming that our use fit within the zoning bylaw. Finally, our lawyers wrote to the Hamilton-Wentworth region and obtained its written confirmation that our use falls within the official plan. Based upon all this, we decided to go ahead with our project.
There were certain things that had to be attended to. First, there was a road that had to be partially closed, and a new subdivision had to be registered. Those things were done by our vendor and the town of Ancaster. As soon as the subdivision was registered, we purchased the property, and the very next day we obtained our building permit. On the 20th day following issue of the building permit, which is the last possible day for doing so without leave, an appeal was filed from our building permit. That appeal was by Loblaws. We later learned that Oshawa Group had also appealed, but this procedure was not served until much later.
The Loblaws application was based upon interpretation of the zoning bylaw and also on the Environmental Assessment Act. This had to do with the road closing. No affidavits or other materials were filed at the time the application was served. I should tell you that much later, in fact very recently, the environmental assessment grounds were dropped, so the case will be proceeding solely on interpretation of the zoning bylaw.
As soon as the application was filed -- I think it was a day later -- we met with representatives of the town of Ancaster and their lawyer, and the town told us that their lawyers were of the opinion that the appeal automatically stayed operation of our building permit. This opinion was based upon the one and only reported decision directly on point, the Famous Players case, which is referred to in my written submissions.
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The town also informed us that a stop-work order would issue if we did not stop construction immediately. We were flabbergasted. At that point, we had spent $8.5 million on the land. We had actually paid about $1.5 million in construction costs, with an additional $3.5 million which we were committed to spend under our construction contract. We had ordered substantial equipment and fixtures. We had hired some employees and, of course, we had made arrangements with our suppliers for stocking the warehouse. In addition, the foundation work was at a critical period; we had encountered a problem with water infiltration and it was very important to us to complete the building foundations in order to remedy this problem.
Finally, and this is very important, stopping work was absolutely disastrous for our general contractor and the various subcontractors. I don't have to tell you what things are like in the building industry these days. Our general contractor informed us that he had already laid off all of the workforce on the site, while the structural steel supplier told us that unless we took delivery of the steel which he had already manufactured for us, not only did his company face substantial layoffs but possible bankruptcy.
At this point, our lawyers brought a motion for a declaration (a) that there is no automatic stay of the building permit and (b) that if there is an automatic stay the court allow us to continue building until the hearing. We also asked that the hearing date be brought forward to the first available date. On the day the motion was scheduled to be heard, Loblaws agreed to allow us to continue building, subject to our undertaking not to open the warehouse before the hearing, and the hearing date was moved forward to September 8.
Consequently, as you can see, these events are not only fresh in my mind but are very much ongoing. So with these events in mind, I'd like to turn to the two particular issues that I have mentioned.
The question of standing is dealt with in section 15 of the present Building Code Act and section 25 of Bill 112. Section 15 of the 1980 Revised Statutes of Ontario allowed a person who considers himself aggrieved to appeal orders or decisions of inspectors or chief building officials. In the course of the 1990 revisions, the words "person who considers himself aggrieved" were dropped, most likely inadvertently. Thus, the present act, on the face of it, allows any person to appeal.
Section 25 of Bill 112 goes back essentially to the earlier wording in, I guess, a non-sexist form. The wording in Bill 112 is "any person who considers themself aggrieved." My concern is that these words, on their face, appear to contain a subjective element. I suggest that the test should be clearly objective and that this could be achieved by using the words "person aggrieved" alone. In fact, the leading decision on the subject, Friends of Toronto Parkland, which is cited in my written submissions, does say that "person who considers himself aggrieved" is wider than "person aggrieved." However, these words are not open-ended; at the very least, the court held that there had to be reasonable grounds for believing oneself aggrieved.
The court in the Toronto Parkland case appeared very concerned that the recourse not be restricted to people with a direct economic interest and that public interest litigation be permitted. This is a very serious concern, particularly in these days of great awareness of environmental issues, for example. However, I feel that an objective test would leave the door open to persons with a serious objective interest which is other than economic.
I should tell you that an earlier Ontario county court decision in the Riverview Heights case had assimilated the test of "person who considers himself aggrieved" and "person aggrieved." That case, which is in my written submission, cites with approval an earlier Nova Scotia Court of Appeal decision in re Halifax Atlantic Investment. This case held that a competitor was not a person aggrieved and thus did not have status to appeal a decision of the municipal council.
Obviously, this is my particular axe to grind. I do not believe it is proper for competitors or perceived competitors to attack the issue of building permits in the guise of increased competition. If they're allowed to do so, I submit, this will lead to uncertainty by municipal officials, who will be constantly exposed to having their decisions second-guessed, an unacceptable risk for all businesses that wish to start operations, and consequently, increased unemployment and loss of competitiveness.
To resume, we therefore submit the section should read, "a person aggrieved."
My next point deals with the issue of automatic stay. I explained to you that one of the things I found most difficult to deal with in the Ancaster situation was the idea that someone could, by merely filing a short application, not even backed up by affidavits or any other documentation, bring a $13-million construction project to a halt without ever going before a court or giving the other side the opportunity to be heard.
One of the things I said to the town officials, when they told me this was their interpretation and a stop-work order would be issued if we didn't stop, was that, by the same reasoning, we could appeal the stop-work order, which would presumably amount to an automatic stay of the stop-work order. I told them that I could not believe that the law of Ontario was to that effect and I can tell you now that I still don't believe it.
Neither the present Building Code Act nor Bill 112 specifically provides that an appeal does or does not automatically stay the operation of a building permit or any other decision of the inspector, or the chief building official for that matter. However, subsections 15(6) of the present act and 25(7) of Bill 112 do allow a judge, in certain circumstances, to order that an order or decision not be stayed pending the appeal. In the case of Famous Players and the city of Toronto, which is referred to in my written submission, the court held that an appeal by a third party does automatically stay the operation of a building permit. There is, however, Divisional Court authority, which I also refer to, namely the Revenue Properties case, which says that at one stage higher up in the process -- that is, on the appeal from what is now the Ontario Court to the Divisional Court -- there is no automatic stay.
I believe, as I said, that appeal from the issue of a building permit should not automatically stay the building permit. If the appellant wishes to bring a motion for such a stay prior to final judgement on the merits, the appellant should have to meet the tests which are usually provided for in an injunction proceeding: to show a strong prima facie case and that the balance of convenience favours the appellant.
As well, I believe that, unless the judge dispenses him from doing so, security for damages should be filed. In fact, if you look at the Famous Players case, you'll see that, in order to do justice in that case, the judge was obliged to give an extremely wide interpretation to subsection 15(6), which is now 25(7).
I think we should turn there for a minute. That subsection reads, "Upon application without notice, a judge may order that the order or decision appealed from be not stayed pending the appeal but shall take effect immediately on such terms as are just if, in his or her opinion, such action is necessary for public safety and would not make the appeal meaningless."
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Now, in that case, in the Famous Players decision, the judge says this:
"Therefore, the overwhelming balance of convenience is to order that the building permit be not stayed. However, I must pay attention to the wording of section 15(6) of the act. It is not necessary in the interest of public safety that the building permit be not stayed. On the other hand, it is not contrary to the interest of public safety that the building permit be not stayed. In my opinion, the section should not be narrowly and restrictively interpreted so as to unreasonably limit my discretion in a situation where the overwhelming balance of convenience is in favour of the exercise of such discretion."
As you can see, he was forced almost to turn this subsection on its end in order to give justice in that case.
To resume, the ordinary rule should be that the respondent should be allowed to continue construction until final judgement. However, I do believe that the judge, on motion by the appellant, should have discretion to stay operation of the building permit in an appropriate case.
I would suggest to you that unless the judge orders otherwise, in order to obtain such a stay before final judgement, the appellant should file security for damages. So we submit that section 25, and particularly subsection 25(7), should be drafted to expressly provide this.
This approach is also in line with recent changes to the rules of practice in civil matters, which have recently been revised to provide that, with the exception of monetary damage awards, appeals do not automatically stay the operation of judgements. This is now found in rule 6301, and I would like to quote from the comments contained in the Carthy Miller Cowan edition of the 1992-93 rules:
"The major amendment to this rule in 1989 reverses the earlier approach. Formerly, everything was stayed except enumerated items. Now nothing is stayed except a money recovery which is unrelated to support. The intent appears to be to eliminate confusion as to the meaning of `mandatory order' and `injunction' as exceptions in the former rule. On a motion to stay, the applicant should be prepared to provide a measure of security to the respondent."
So we would urge the committee to take this opportunity to update the stay on appeal proceedings in the building code to make them in line with the rules of civil procedure. I thank you for taking the time to listen to me, and Ms Hamlin and I will try to answer any questions you might have.
The Chair: Thank you very much for your submission, which, as you say, is on several very specific points. As a non-lawyer, I'm always reminded, when one gets into some of these issues, that I take cover in thinking of Alice in Wonderland and how this just gets curiouser and curiouser as one tries to find one's way through all of it. But I think you've raised some very interesting points, and there may be some free advice here as to where we're going to go, but I'll start with Miss Harrington.
Ms Harrington: Thank you very much, Ms Goodman. I'm surprised that you have the time to be here today. Obviously, you're very busy, and I note that next week you will, I believe, have an answer. I hope that will be a decision then next week. I was also going to mention, since I represent Niagara Falls, that we were hoping we would have a Price Club in the city of Niagara Falls some time soon.
I appreciate your suggestions to us. This is the first time we've had a direct problem like this in that particular section of the act, and I thank you for your suggestions with regard to the change of wording as "person aggrieved." What I can tell you is that we are going to take this under consideration over the next week before we come back to clause-by-clause, and that this is certainly an indication that the ministry is flexible and that you've brought to us a direct concern and we are going to look at it.
Ms Goodman: Thank you so much.
Ms Poole: Thank you for your presentation today. Hello, Yvonne, how are you?
Ms Yvonne Hamlin: Fine, thank you.
Ms Poole: Yvonne and I go back a number of years where we worked on the same premises.
I would just like to thank you for bringing these issues forward. They're obviously not your standard issues. Nevertheless it appears there is some sort of injustice here that should be corrected.
With reference to the "person who considers themself aggrieved," it just seems to make common sense that this would cover any person on this earth, if they so wished. It seems to me it is much more objective to deal with any person aggrieved, so I'm glad to hear that the ministry's going to consider that.
About the second issue, that is, to update the stay on appeal provisions so that different rules do not apply at different levels of appeal, could I ask a question of the ministry legal counsel, who I believe is here today, whether in fact they have considered the new rules of practice and whether they have considered whether Bill 112 is moving in tandem with the new rules of practice, if that would be permissible, Mr Chair? Could I ask for an answer from legal counsel?
The Chair: Yes. Please come forward and, again just for Hansard, identify yourself.
Mr Levitt: My name is Jeff Levitt. I am the legal counsel with the Ministry of Housing.
In terms of the stay on appeal, from the ministry's point of view, it is a recent submission, and I think in some ways, although very important, the few cases which have been reported on this may reflect the fact that it hasn't come to court very often in the sense of being a practical problem.
But in terms of the rules of practice applying to the appeals from one court level to another, in some ways, considering that the actual appeal decision that's under consideration here is from an administrative decision to a court and the general rule in those situations seems to be contained in the Statutory Powers Procedure Act, which provides that as a general rule an appeal of an administrative decision constitutes a stay, there may be a little bit of comparing apples and oranges.
The other aspect I'd like to mention about the stay is that it has to be considered that the permits we're dealing with here are not only construction permits but demolition permits as well. In terms of the balance of convenience, if someone is allowed to proceed on the basis of his or her permit pending the appeal, the wording in the Building Code Act that's carried forward now refers to the fact that the stay can't make the appeal meaningless.
I guess that has to do with the fact that in building construction and demolition, if things get too far, if things are allowed to proceed too far either in construction or in demolition, in fact the appeal can be meaningless. That might be one of the reasons that's included in the statute currently and continued.
Ms Poole: I gather from that you don't buy the argument that the person who is appealing should have to make a prima facie case with strong arguments that there is indeed a case to be made.
Mr Levitt: What I'd have to say from the ministry point of view is that it's a fairly recent submission and has to be looked into. I just want to make the point that whereas the general rule of appeal from one level of court to another, according to the rule change in 1989, is that there is to be no stay, in the Statutory Powers Procedure Act, which deals with one level lower, the level with which we're concerned, an appeal from administrative tribunal to anywhere else, including a court, generally is presumed to constitute an appeal. But in view of the fact the submission was received several days or a week ago, it's hard to give a decisive answer.
One other thing I'd like to add is the fact that there are relatively few cases. It's hard to know why this happens and what it's indicative of, or in view of the 20-day appeal period, perhaps people commence construction on day 21 instead of day one, because, the appeal period being there, there's the possibility of the appeal happening. I guess that's about all I can say in answer to your question.
Ms Poole: Since we do have 10 days before we commence clause-by-clause, if you and other legal counsel could take a second look at this particular issue, it might be very helpful to our committee. Thank you again for bringing these issues forward.
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The Chair: Did you have any comment you wanted to make just on this exchange?
Ms Goodman: I would say to Mr Levitt that we do have a different interpretation of the application of the Statutory Powers Procedure Act and we believe that under subsection 3(1) it's clear that the automatic stay provision does not apply to issue of a building permit, which is a purely administrative matter and does not involve a hearing.
The Chair: We'll recognize there's a difference of opinion and we'll move on to Mr Carr.
Ms Hamlin: Could I also just briefly address two other things that were raised?
The Chair: Yes.
Ms Hamlin: I think we will take the opportunity to meet with Mr Levitt afterwards because, given that there's a real need for an answer, I'm sure the legalities of it could be worked out.
Secondly, with respect to if this was to also apply to demolition permits -- and that may be a very good point -- there's no reason, for example, it couldn't be that the legislation could be drafted for slightly different rules where there's a question of a demolition permit.
Lastly, I think you made a good point about whether people should not be allowed to appeal or build until 20 days after the permit's issued, but I believe there are other provisions in the Building Code Act that specifically allow an appellant to come back after the 20-day period and ask for extra time to appeal. I think that would really have to be totally looked at, but we'd be glad to sit down with Mr Levitt.
Mr Gary Carr (Oakville South): I think that's an excellent suggestion. I assume the minister will want to do that. I think, as Dianne said, we have about 10 days till the clause-by-clause. I think the only commitment this committee will be looking for is that there will be some type of answer, given the fact that there may be some give and take and some interesting discussions.
Certainly by the time of clause-by-clause is plenty enough time for the legal people to have some type of answers so that the people at the Price Club will at least know where they stand by the time of clause-by-clause. I want to thank you for coming forward with these opinions.
Just with regard to the court case, you mentioned a little bit some of the circumstances and some of the dates. Where are we at with the court case now?
Ms Goodman: Our hearing is scheduled for September 8, next week. That's where we are right now. I want to tell you that obviously I realize that nothing I say and that no amendments put forward here will have any effect whatsoever on that case, but I'm looking to other possible battles in the future and I also would very much like to do my bit to prevent other people from being put in the same situation as we are in Ancaster, because it is an agonizing situation.
Mr Carr: I appreciate this might not change it. Would you like to comment too on what this will lead into? I assume you're talking of large costs, depending on what happens in the court case. What do you anticipate happening if, for example, you were to lose the court case, in terms of damages and so on? Would you care to comment on what that would lead to? The reason I'm asking that is that this committee, I think, should be aware that what it's doing here could affect organizations and companies down the road.
I can appreciate you might not want to comment because you're assuming that you may win but, if not, do you see this leading to a lot of legal challenges in the future?
Ms Goodman: I can't really comment on the outcome of our particular case. Obviously, we don't expect to lose; otherwise we would never have made the decision to continue construction. Even then, as I said, it's an agonizing decision because you always wonder "what if." However, I do feel that if Price Club loses, this will most likely lead to other challenges by third parties of building permits.
As Mr Levitt said today, these are fairly rare. My feeling is that in the future they may become more common. I feel that the results to the economy, to employment, to certainty of municipal building officials, will be really devastating.
Mr Carr: I think you're right. Depending upon the outcome, it will certainly twig the interest of other organizations and what they might want to do. If it does, I think the only ones who would benefit would probably be the lawyers, notwithstanding the fact that you're both lawyers.
I appreciate, on page 7, you've introduced some conclusions that are very simple and very concise. If in fact this bill was to incorporate some of the conclusions you put in there on Bills 7 and 8 from a legal standpoint, do you believe it will eliminate some of the problems you're encountering? If not, is there anything else the committee should be looking at?
Ms Goodman: I believe it will tend to limit the class of persons who will be entitled to launch appeals from building permits. It will also restore a measure of what I believe to be fairness into the question of automatic stay or not automatic stay. I do not believe it is fair that construction projects should be halted without the builder, without the party involved having an opportunity to be heard. That's really where I'm coming from.
Mr Carr: The only other question I had was to the legal counsel, to Jeff. I don't know if he wants some time to think about it. The change they're proposing is basically one word, I think, in their presentation on pages 4 and 5. It's basically taking one word out "who considers themself aggrieved." One thing I've learnt about lawyers: When they talk, you say, "Boy, that sounds reasonable," and then you hear the other side and you say, "Boy, that sounds reasonable too." From your standpoint, would you be able to comment now how those changes would affect it?
Mr Levitt: I'd probably not be able to comment at too preliminary a level other than that at an initial look through there doesn't seem much more agreement about who a person aggrieved is than who a person not aggrieved is. Secondly, I guess under the current system, the cases seem to have held that, at the very least, neighbouring land owners can have right to appeal. Whether or not those people would continue to have a right to appeal is something to be looked at, but I think it would take quite a detailed and in-depth legal look to be able to comment on that.
Mr Carr: One last question. I assume, though, that circumstances being what they are, it should be left up to a judge to make the determination. In other words, the way you would like to see it written is that a judge can look at two different cases and say, "This is the one that should be allowed and this the one that should not." I assume you think it can be written so this can happen.
Mr Levitt: I'd have to consider that because the question is, you can write to have what you want happen. It's first deciding exactly who you want to be able to appeal and you kind of work backwards from there.
Mr Carr: Knowing that there may be other considerations because, as you know, it isn't just something that financially would be involved, but there are quite a few third-party interventions and a lot of things happening these days.
In closing, I'd like to again thank the presenters. You've added an interesting angle to this and we've appreciated your coming forward. I think you've got a commitment that the government is going to look at.
The Chair: On behalf of the committee, thank you again for coming before us this afternoon.
A few administrative matters, if I might, for the committee. We are scheduled to sit again on the 14th and 15th of this month. The committee --
Ms Poole: I'm sorry, I didn't mean to interrupt, Mr Chair. I just had a point on the next time we meet. Normally, committees meet a little bit later on Monday morning to allow time --
The Chair: That's just the point I was about to raise.
Ms Poole: I've pre-empted you.
The Chair: It was just when we would meet. We had made a decision as a committee that we would meet on Mondays at 2 o'clock. On the schedule, it had 10. I'm in the committee's hands. We have two days from the House leaders to sit: Monday the 14th and Tuesday the 15th. If the committee believes it can do the clause-by-clause Monday afternoon and Tuesday, then we can begin at 2 on Monday. If members feel they would like to have the two full days, then obviously we'll start at 10 o'clock. I just wanted to raise that and get some direction from members of the committee.
Ms Poole: I guess great minds think alike, because I was wondering about the same thing.
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The Chair: I think it's because we're Liberals.
Ms Poole: Yes, maybe that's got something to do with it. Mrs O'Neill has suggested, as a compromise, that perhaps we meet at 1 for the ministry's presentation and then begin the clause-by-clause at 2.
The Chair: Is that agreeable, Mr Tilson? Okay. So we would begin at 1 o'clock and go forward, and I guess we could plan to sit, then, until 6? Or 5. Five; all right. And then Tuesday we'd start at 10 and continue with the schedule as set out.
The other thing was that yesterday Ms Poole asked for some information which was going to be provided. I just want to remind the ministry officials if that could be sent to Ms Mellor as early as possible next week so that she could then circulate it to everyone prior to clause-by-clause. I wish I could remember what each of those questions was. I remember those were noted yesterday and I see some nodding heads, so I assume that is all in hand.
Was there any other question? Okay, Ms Harrington and then Ms Poole.
Ms Harrington: Thank you. It was my understanding from yesterday that we had agreed that the staff would try to answer some of the questions orally today as well as provide the written questions for you on the 14th.
The Chair: There was in particular the question that Mr Hansen had raised, if I recall, and it was indicated that there would be somebody here today.
Ms Harrington: Mr Arlani's here.
The Chair: Okay, can we just hold that for a second? I'll just take Ms Poole's question and then we can proceed to deal with Mr Hansen's specific issue.
Ms Poole: The question actually was in reference to Ms Harrington's comments. I think what we did was to ask for written material. However, if they did have verbal information ready, that would be fine.
Ms Harrington: Some questions were very short.
Ms Poole: On some questions, if they were short, that would be fine. The second question I have is about Hansard: when Hansard would be available from yesterday and today so that we could use it for preparation for clause-by-clause.
The Chair: Okay, I direct that to the clerk.
Clerk of the Committee (Ms Lynn Mellor): They're pretty well up to date. They should be ready Tuesday.
The Chair: So Tuesday.
Ms Poole: Tuesday; that's excellent if that could be arranged.
The Chair: All right, then, if we could move to the question Mr Hansen asked and perhaps begin. Again, if you would just identify yourself for Hansard, please.
Mr Ali Arlani: My name is Ali Arlani. I'm manager of code development and advisory services. Our basic job in our unit is to write the code and advise on the interpretation of the code.
The Chair: Just reiterate the questions so that those who may not get a chance to read yesterday's Hansard will have the full, unabridged story today.
Mr Arlani: There were a few questions which we took down. One of them was on the issue of energy efficiency and European technology on automatic shut-off lighting systems. What I want to raise with respect to that particular question is that the building code already addresses the issues of energy efficiency. We have been doing that since the early 1980s, mainly for residential buildings. In the proposed amendments we are moving to other large buildings, commercial and industrial, as well as large residential such as condominiums. What we are doing is setting a performance standard that your building should have so much energy consumption per square foot. So that would clear the bit about the performance of buildings.
With respect to the particular technology which was mentioned, that system has been in place in Europe for almost the past decade. I have seen it myself. I will caution a bit when we are looking at just a single component of a building and saying, "Let's mandate it." We have to look at that in light of what other things we're asking for under, let's say, our electrical safety code, the fire code and the building code. Our building technology is quite different from Europe's. We don't build the same way. We don't use the same materials, and our firefighting and evacuation process is quite different.
Looking at all those things, last year we recommended approval of two systems which are sensor-based systems for, let's say, public stairways and so on, which fundamentally will work like remote lighting which, on some of the residential buildings, are installed on top of the garage or the driveway. We are looking at that. As systems become available in the Canadian market, we evaluate them. If it's appropriate, we will, in consultation with the fire marshal's office and Hydro, recommend approval and installation of them. I can just go so far with respect to that particular issue.
There was a question with respect to the plumbing and what will happen if there are renovations or retrofits. I want to address the issue with respect to what will happen if today somebody wants to install a fixture based on the Ontario Water Resources Act and the plumbing code. Effective January 1993, if you wanted to install a fixture under the plumbing code and if you kept the present system, you would be required to install with new standards. If you move location, again that's subject that you have to install new. There's no leniency. There's no change if we go on the water resources act.
Under Bill 112, if it comes under part 7 of the building code, that may change in the sense that we have the flexibility on the renovation requirements in the code to decide whether we want to mandate that every single time there is any change to a building we have to replace the old fixtures with new fixtures; alternatively, we have that flexibility to say, like other building systems, that as long as the performance level of that particular fixture is not reduced, that's acceptable. We have that leniency under Bill 112. We don't have that leniency under the present Ontario Water Resources Act, so it's a step forward in terms of flexibility.
The issue of ceiling heights was mentioned yesterday. I want to address that because it's an issue which a lot of people debate, this issue of safety and why we are talking about ceiling heights.
Ceiling heights have traditionally been addressed under the building code. There are three reasons that we look at. One is the fire safety issue. What I mean by fire safety is, if there is a fire, who is going to evacuate and, if you have a lower ceiling height, whether that's going to cause a problem for firefighters.
The second issue is personal hazard. We have quite a number of cases where you have lower heights, either in garages or ceiling heights, or where you have beams which come into the main area of the ceiling, and those cause personal injuries. We look at that.
The third issue we look at is the issue of air quality. If you look at other legislation, for example, under Community and Social Services, you see that they talk about bedrooms and that the volume should be, I don't know, seven cubic feet per person. The reason for that is that if you are sleeping in that room, you require a certain amount of air in order to be healthy. Under the building code, we translated that to a size, a square footage, with the assumption of a certain height.
When we talk about ceiling heights, we look at those three issues. That does not mean that we will set a standard which will be so prohibitive that if you go to existing buildings, across the board you are going to have a problem with converting them to, let's say, accessory units. However, we consider those three issues and we look at the practice. We see what is existing there, what problems they had, how many fires we had in those basements and what happened to them. In discussions with the fire marshal's office and ourselves with clientele, we will come up with a figure which will accommodate all of those concerns.
I guess those were three basic issues. I tried to answer them as shortly as possible.
The Chair: Thank you very much. Were there any comments?
Ms Harrington has a response that was requested by Ms Marland. While she isn't here, so that it is on Hansard and she'll be able to read it prior to clause-by-clause, I think it's important that we get this response as requested. Therefore, I'd like to ask Ms Harrington to do that.
Ms Harrington: I'd like to respond to Mrs Marland's request for an amendment guaranteeing the exemption of existing buildings from all regulations except those regarding safety.
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 a chance to contribute. As Mrs 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.
Obviously, full consultation means that we will not introduce unreasonable regulations which are not broadly accepted, but it also means that we won't decide on the nature of those regulations before the consultations take place. I hope that clarifies it for Mrs Marland.
The Chair: That, then, is on the record, and I'm sure Mr Tilson and Mr Carr in particular will bring that to her attention.
If there's no further business before the committee, we stand adjourned until 1 pm on Monday, September 14. I'm almost certain we'll be in this room, but in her usual efficient fashion Ms Mellor will inform us. Thank you. We are adjourned.
The committee adjourned at 1611.