Monday 14 September 1992

Building Code Act, 1992


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

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

Drainville, Dennis (Victoria-Haliburton ND)

Fawcett, Joan M. (Northumberland L)

Martin, Tony (Sault Ste Marie ND)

Mathyssen, Irene (Middlesex ND)

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

Owens, Stephen (Scarborough Centre ND)

*White, Drummond (Durham Centre ND)

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

Wilson, Jim (Simcoe West/-Ouest PC)

Witmer, Elizabeth (Waterloo North/-Nord PC)

Substitutions / Membres remplaçants:

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

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

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

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

*Mathyssen, Irene (Middlesex ND) for Mr Owens

*Perruzza, Anthony (Downsview ND) for Mr Owens

*Poole, Dianne (Eglinton L) for Mrs Fawcett

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

*In attendance / présents

Also taking part / Autres participants et participantes:

Harrington, Margaret, parliamentary assistant to the Minister of Housing

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

Wildish, George, special assistant to the director, Ontario buildings branch, Ministry of Housing

Clerk / Greffière: Mellor, Lynn

The committee met at 1319 in room 228.


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 committee open. We're looking at Bill 112, An Act to revise the Building Code Act. We will be getting into clause-by-clause today, but we will begin with a statement by the parliamentary assistant and some discussion with the critics before doing that.

Ms Margaret H. Harrington (Niagara Falls): Thank you, Mr Chair and members of the standing committee. As you recall, almost two weeks ago this committee held public hearings on Bill 112, the proposed legislation to amend the Building Code Act.

Before clause-by-clause review of this bill I would like to advise you of a number of amendments this government is proposing to Bill 112, but first I would like to thank the committee members and the presenters at the public hearings for their opinions and for the information that was provided. We heard from a range of groups with a keen interest in building regulation.

For instance, the Toronto Area Chief Building Officials Committee and the Large Municipalities Chief Building Officials group gave us the municipal perspective. The Ontario Home Builders' Association and the Urban Development Institute explained the position of the building industry. The Canadian Bar Association provided valuable input from the legal community. I'm sure you will agree with me that the time all the presenters took to prepare their briefs and appear before this committee was very worthwhile for all of us.

As I mentioned, we have prepared a number of motions that I believe will improve Bill 112. Some of these have arisen out of the debate that occurred at the hearings earlier this month, others from matters brought to our attention after the bill received first reading. I have provided copies of these proposed amendments to the committee members, with each amendment annotated to show its purpose. I want to stress that none of these amendments will in any way significantly change the intent of the bill; they will improve it.

The dozen or so amendments fall into three basic categories:

First, there are a number of technical matters addressed in these amendments which will clean up or clarify the language. These comprise the majority of the proposed amendments.

Second, we are suggesting several changes that will ensure a smooth transition from the previous legislation to the new law.

Third, during the hearings my colleague Margaret Marland expressed concerns about the scope of the building regulations, especially the proposed standards for existing buildings. This matter was also brought to our attention by the Urban Development Institute, the Ontario Home Builders' Association and the Toronto Area Chief Building Officials Committee. Thus we have clarified the purpose and scope of the building code, which is the regulation under this act.

I'll give you a few examples of the changes we propose for the committee's consideration:

We will clarify the meaning of "applicable law" in the building code regulation. Committee members will recall this issue was raised by the Toronto Area Chief Building Officials Committee as well as others.

The provision on search warrants has been altered to conform with the search warrant provision provided in the upcoming legislation concerning apartments in houses.

Third, several amendments will make wording in the proposed law more consistent. For example, the bill refers to "chief official" in some places, while elsewhere the title "chief building official" is used. These amendments will eliminate these discrepancies.

Also, my colleague Wayne Lessard will be bringing forward an additional amendment on a technical matter concerning the definition of "unsafe" in this bill, and I support that amendment.

The committee asked that our staff prepare written responses to certain issues that were brought forward at these hearings. These are, first, plan certification by private sector professionals, and second, whether to authorize entry for building inspectors to see if a building permit is required. These are issues that we did discuss. These written responses have been provided to the committee.

When we started work on this committee, I noted that Bill 112 reflected our government's commitment to update the building regulatory systems and standards. Certainly, previous governments also were interested in this. Changes in building style, complexity and design, changes in society's concern about existing buildings, changes in society's expectations for increased environmental protection and energy conservation and changes reflected by innovation in the construction of buildings are all being addressed in this bill.

Now as we move into clause-by-clause consideration of this bill, our objectives remain a more competitive building industry, safer buildings, reduced building cost, environmental protection and energy conservation. Staff from the Ministry of Housing are here to assist.

The Chair: Just one question: Where are the written responses that have been provided to the committee? Have they been given to the clerk?

Clerk of the Committee (Ms Lynn Mellor): They're coming.

The Chair: They're coming, okay. Fine. I just wanted to be clear on that.

Thank you then for your opening remarks. I now call on Ms Poole, the official opposition, for your comments prior to clause-by-clause.

Ms Dianne Poole (Eglinton): When I was listening to the parliamentary assistant's comments, I wondered where the documents were that she referred to about the use of private sector professionals and the entry for building inspectors, so I'm glad you asked that question.

Actually, those documents would have been very helpful to have prior to the commencement of clause-by-clause so that we could take that into account with our amendments, but since that was not available, we've had to go ahead and act without that information. It may necessitate some amendments to our own amendments once we've had an opportunity to peruse that material.

I don't think there's any doubt on the committee that the amendments to the Building Code Act are quite welcome and quite timely in that they have received a broad range of support from many groups in the industry. It has also become apparent that there were things that various sectors of the industry would like to see included in this bill and that there were others that were included that they would like to see eliminated from the bill.

I was somewhat disappointed on first perusal of the government amendments that most of the amendments do tend to be of a technical nature or housekeeping nature. There were several substantive issues that were brought up during the hearings which I don't believe the government motions have addressed. The Liberals have tabled a number of amendments with the committee today, and they range from some of a housekeeping technical nature to others of a more substantive nature.

We have relied on a number of presentations from our witnesses which we found extremely helpful, including the Canadian Bar Association, the Large Municipalities Chief Building Officials group, the Ontario Home Builders' Association, the Urban Development Institute, Toronto Area Chief Building Officials Committee, which is the group of municipal inspectors, the Price Club and the Fair Rental Policy Organization as far as our amendments are concerned. We express our appreciation to all those groups for their input.

I would like just to very briefly touch on some of the amendments that we will be introducing during this clause-by-clause, one I believe that the government was also concerned with and this is applicable law. This was not only by the Canadian Bar Association but by a number of other groups that felt they would like this to be defined to clear up any inconsistencies. We'll have to take a look at our motion vis-à-vis the government motion to see which one would be the most acceptable. I think I know the answer to that question, but we'll ask it anyway.

Secondly, the Large Municipalities Chief Building Officials group did bring forward an argument that it wanted the moneys from the building permits to be put towards the anticipated cost to the municipality for the administration and enforcement of this act. They wanted a direct relationship and they wanted it spelled out in the act. We have incorporated an amendment to do that.

The Ontario Home Builders' Association brought forward what I thought was a very good point in that the legislation right now requires that all structures built under part 9 of the building code be required to submit as-built drawings. It was brought to our attention that with small residential structures this would necessitate quite an additional cost, since those plans tended to change dramatically, in many cases, from the time they were first drawn up. It had suggested there be an exemption for these small residential structures, so we have an amendment for that.


The Urban Development Institute of Ontario suggested that clause 8(10)(d) was actually redundant since there was already a clause in here which dealt with issuing an incorrect building permit, so it felt this didn't need to be in there.

TACBOC went back to Bill 103. There was a section in Bill 103, which was the legislation introduced by the Liberal government in the previous session that did not receive passage before the September 1990 election. The municipalities very much liked the section that allowed an inspector to enter without a warrant to determine if a permit is required, and we heard from a number of municipal submissions that they would very much like to see that back in. So we have an amendment to that, and we actually have several related amendments which I won't go into at this time.

The Price Club had a very interesting submission where it cited a case where the requirements of the Building Code Act actually put it at a disadvantage with its competitors because its competitors were allegedly using the legislation to try to stifle competition. It seemed to me that it had made a very good case in two regards. One was that there was a section in the act where anybody who considered himself to be aggrieved could appeal -- not that there had to be any substantive issue there. There didn't have to be any proof before a judge that this person was aggrieved. All you had to do was consider yourself aggrieved and automatically you could appeal and stay the action of having the building constructed. So that was one amendment. The second related to the fact that there is an automatic stay on appeal and it shouldn't be required unless the judge, in the judge's opinion, felt this was necessary.

A number of associations -- in fact, the majority of the associations -- brought forward suggestions to reincorporate into Bill 112 the provision in Bill 103, the previous legislation, that the certified professional program be adopted. This was supported by the Urban Development Institute, the Ontario Home Builders' Association, the Canadian Bar Association, and I believe a couple of others as well. It seems to me that in this time where we are trying to make government and the arms of government more efficient and more cost-effective, this would be an extremely timely thing to do.

The final amendments have to do with the concern about bringing existing buildings under the code. This seems to have been quite a controversial move. While there is some sympathy with the government's position that we must ensure that our existing buildings are safe, there is also a problem in that the government has not spelled out, with this legislation or the regulations to date, how they are going to do this, and it has caused enormous uncertainty in the residential building market and, if I might say, it has been one more blow to a sector that is already reeling.

Until such time as the government does come up with a more concrete plan, it is our recommendation that it delete this section and then either have a separate piece of legislation, obviously a very brief piece of legislation, which would outline exactly how it's going to incorporate existing buildings into the scheme of the Building Code Act, or it could amend this specific act at a later date to do so. But to just throw that in and then to say they're going to be consulting over the next long while to ensure that existing buildings are covered and that it works well is not a sufficient guarantee to the industry right now. They are very upset with this, and they feel they need some sense of certainty from the government.

That is a brief capsule of the Liberal amendments.

We commend the government for continuing with the Liberal initiative of amending the Building Code Act. Certainly, many parts of this are quite welcome. We hope the government will be amenable to looking at some of the amendments we propose and that the Conservative Party proposes to make this a Building Code Act that the province and the industries in the province can really rely on over the coming years.

Mr David Tilson (Dufferin-Peel): Perhaps I could say a few words. Mrs Harrington has been detained for a moment, but we have discussed --

The Chair: Just for the record, it's Mrs Marland.

Ms Poole: Wrong Margaret.

Mr Tilson: Sure; wrong Margaret. My initial observations with respect to this bill and the process as to how we have arrived here is that they give me some concern. These hearings, of course, are rather expensive, with all the staff and all the expense that goes into a four-day hearing. I look at the bill and I look at the amendments that have been put forward by the government, although I have just perused them; I haven't read them in detail, but certainly I understand the substance of them. They are, as Mrs Harrington has indicated, of a rather technical nature.

I must say I would have hoped that this type of proceeding we have gone through could have gone through committee of the whole as opposed to having these formal hearings as such. Some time has been spent on the consultative process and how regulations are changed and how proposals are changed, and appeared to be consultation on a regular process, which goes back a number of years, although it appears that process needs to be improved, because on admission of the government, at least -- the regulations with respect to the ungraded lumber.

That obviously didn't work; otherwise we probably wouldn't have been here. That appears to be the major concern of this bill at the outset, that farmers were concerned with being unable to use the type of lumber they do for their outbuildings. Mrs Harrington has indicated that this is being changed by regulation, and I hope we will see those regulations. We haven't been able to obtain them. We haven't been able to see them. That was the major concern of this bill from the very outset. Our party, at least, hasn't been able to see those specific regulations. I think it would be useful if the committee were to see those, since you did refer to them in your introductory remarks.

The major concerns of our party have to do with the subject of existing buildings. We feel that the amendments dealing with existing buildings -- to repeat the submissions that were made by the Fair Rental Policy Organization of Ontario, they are going to create grave hardship to landlords, specifically when landlords have been restricted by Bill 4 and Bill 121, and this is adding to it. I'll be interested in hearing your debate on your amendments, but I don't believe they go far enough. I believe Ms Poole has adequately put forward what our position is, that this whole subject should be taken out of this legislation and if you're going to deal with it at all, you deal with it by separate legislation, because it is going to create unbelievable hardship and uncertainty in the landlord and tenant business.

With respect to certified professionals, I believe the proposals put forward in the previous bill by the previous government are satisfactory. You will see our amendments allowing for the certified professional to come into existence. It's not unusual, for example, for a municipality to retain a lawyer, notwithstanding the fact that the municipality already has a lawyer or legal staff on staff. They may have other people. They may have engineers, depending on the size of the municipality. It's not unusual for municipalities to hire outside staff. I won't get into that because we will be discussing that in clause-by-clause.

With respect to the search warrant subject, I repeat the comments made by Ms Poole that they should be for inspection purposes only and that the proposals that are being put forward in this bill for search warrants are really a repeat of Bill 121, very broad, general powers that enable searches to be made when perhaps they aren't warranted or necessary.

I won't delay the clause-by-clause debate other than to say that I am disappointed this bill has reached this forum. With a few exceptions -- the Price Club people, and I think there was one other -- I'd heard these submissions before, and I'm sure Mrs Harrington has, in her capacity as parliamentary assistant, and Ms Poole has as well, in her capacity as critic for the official opposition.

The positions that were being put forward were not new, and it's unfortunate that we couldn't be dealing with other matters in this committee, everything from the creation of jobs, the whole issue of apartments, the creation of newer apartments and single-family units to the effect of non-profit housing -- that subject is gradually becoming more and more controversial -- and dealing with other such matters as the concerns of encouraging owners of buildings, landlords, to renovate very old housing stock, because so far, with the existing legislation, if anything they are being discouraged from upgrading the quality of life for the tenants of this province. Those are my preliminary remarks, and I look forward to the clause-by-clause session.

The Chair: I'm going to call a very brief recess. The clerk has gone to put the amendments into an integrated order and she will be back momentarily. I think others may benefit from the time just to peruse the amendments they haven't seen. We'll take a short recess, and as soon as the clerk is back we'll head right into the clause-by-clause.

The committee recessed at 1344.


Section 1:

The Chair: If we could begin our deliberations then on clause-by-clause. I believe everyone has now received from the clerk a copy of all of the amendments integrated according to the various numbers and we will begin at the beginning, which seems like a sensible thing to do. So we are now with Bill 112, subsection 1(1), and I have two amendments and we'll start with Ms Poole.

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

"`applicable law' means the statutes and regulations prescribed in the regulations, agreements entered into by a municipality under the Planning Act and municipal bylaws."

Just before you begin your comments on that, I note there is a Progressive Conservative motion that is similar, albeit somewhat different, so we will deal with your amendment first.

Ms Poole: Thank you, Mr Chair. I think the intent of both the Conservative motion and our own is quite similar. It was in reaction to a number of the presenters, including the Canadian Bar Association, which suggested that "applicable law" should be defined so that there would be no mistaking what the act meant by it.

The government has decided to deal with this through amendment by looking at subsection (27) and it just expanded the right of the regulations to define anything that the government deemed needing definition, but I think the consensus of those who addressed this particular issue was that they would like it spelled out actually in the legislation, as opposed to being in the regulation where it could be changed basically at the whim of government. So I would submit that it would be certainly preferential from our viewpoint to define "applicable law" specifically in the act, as opposed to leaving it to the regulations, which I believe is the intent of the government, if I'm not mistaken.

The Chair: Mr Tilson, do you wish to comment on the Liberal amendment or do you wish to wait until your --

Mr Tilson: I will support it, although I believe the Conservative motion is somewhat clearer. Certainly, the Liberal motion and the Conservative motion take a similar type of position, although the wording is somewhat different. I would only like to repeat the concern I have of delegating too much to the regulations.

The delegations that came before us were concerned with certainty, which is why this whole issue of what "applicable law" means arose, and consistency. As I understand it, what the government is doing is saying, "Oh well, we'll see how the regulations go and we may change it from time to time." I have difficulty with that; specifically, I think it goes too far. It's one of those things that shouldn't be assigned to the regulations. I've forgotten which of the delegations made the submission that it wants certainty. They want to know what "applicable law" means and they don't know when they look at the building code. They don't know because on a given day it may mean one thing and on another day it may mean something else.

I can only reiterate as to the confusion that can be caused by regulations by mentioning the ungraded lumber regulation. As I understand it, that still hasn't been passed and won't be until after this bill has been passed. We still cannot tell the farmers of this province what that change will be, and I tie it into this the assigning of the definition of "applicable law" to the regulations. I believe we should have more certainty for this type of expression so, in short, I would support the Liberal amendment, although I would prefer the Conservative amendment be passed in its stead.

Ms Harrington: As both critics have pointed out, the government has addressed this concern brought forward by the presenters with regard to applicable law and it is in subsection 34(1), paragraph 4, I believe.

To respond to some of the comments made by Mr Tilson, we do want certainty; that was the concern brought forward in wanting a definition. We do want it to be clear and we don't want it to be changed from time to time, creating that kind of uncertainty you're talking about. We believe what we have addressed does answer that problem.

I would ask our legal counsel, Colleen Parrish, to explain what we are doing.

The Chair: Would you come forward and identify yourself for Hansard.

Ms Colleen Parrish: I am Colleen Parrish, director of legal services at the Ministry of Housing. My understanding is that the main difference between the amendments proposed by both the Liberals and the Progressive Conservative parties is they provide for applicable laws to be listed by statute, which has the same effect as the amendment proposed by the government, but they also refer to agreements entered into by municipalities under the Planning Act and municipal bylaws. Certainly, those things can be prescribed by regulation, and since all of the amendments have the effect of creating regulation-making powers, there's always some degree of uncertainty. It is more consistent to prescribe this by regulation, because the whole building code is prescribed by regulation.

I'd also point out that the Liberal motion deals with municipal bylaws and there is quite a bit of uncertainty as to what those could be. Municipalities can pass bylaws other than under the Planning Act, so in the Liberal motion it would be unclear as to what that would be. The Progressive Conservative motion defines it more specifically as to bylaws passed under the Planning Act.

I think my clients felt that it was more appropriate to have everything defined by regulation and you'd have one-stop shopping where everybody could say, "Here are all the applicable laws, listed in a regulation." Instead of having to go from the statute for some things to the regulations for something else, you'd have essentially a code, as you have in the building code. Most of the standards in the building code are in the same place, and the people who administer the building code are by and large not lawyers, so they tend to look to the building code to see every piece of information. From a sort of public service or consumer service viewpoint, it's better to put it all together in one place.

But I would also just comment as an aside that the issue about what municipal bylaws these are in the Liberal amendment does give me some pause, as this could be a parking bylaw or all kinds of bylaws which municipalities pass other than under the Planning Act. I hope that's not too convoluted an explanation.

Ms Harrington: To conclude, I believe that what we are doing is trying to make it very clear and answer the concerns of the presenters to us.

The Chair: Any further comments on subsection 1(1)? If not, I would put the question and ask, shall subsection 1(1) of the bill carry?

Interjection: Carried.

The Chair: Wait. Sorry, excuse me. First of all, shall the amendment by Ms Poole carry? Just again I'll repeat, shall the amendment by Ms Poole to subsection 1(1) of the bill carry? All those in favour? Opposed?

Motion negatived.

The Chair: Mr Tilson, are you withdrawing your motion?

Mr Tilson: Although it appears that the die is cast, I do feel that the Progressive Conservative motion explains in a little bit more detail what the opposition is putting forward, so I accordingly would not withdraw it.

The Chair: Mr Tilson moves that subsection 1(1) of the bill be amended by the inclusion of the following definition:

"`Applicable law' means the Building Code Act, the building code, municipal bylaws and agreements entered into by a municipality under the Planning Act where the Planning Act authorized the entering into of such agreements, and the statutes and regulations enumerated in the regulations."

Is there any discussion on this amendment?

Mr Tilson: I can only emphasize again, obviously there's a philosophy as to what we should do by regulation and what we shouldn't, and when you look at the definition section of the bill, it does talk about, generally, names of positions and there's a section dealing with "plumbing" and there's a section dealing with "construct." This is the type of definition I feel should be in the building code and not left to the regulations.

It's fine when Ms Parrish says that the builders and developers all look at the code, and I understand that, but I think I can only emphasize that the question of "certainty" is the word that should be emphasized.

When you do something by regulation, has the regulation been passed? The rumour that the ungraded lumber regulation has been passed: Well, we find out today that it hasn't been passed, that it's not as the government said, that it has not been passed and probably won't be until after this bill is passed. We don't even know what the wording is. So we hear rumours that something's going to change and maybe it will and maybe it won't.

Obviously there are certain things that need to be done by regulation; otherwise the House would come to a complete stop. But I think this is one of those definitions that needs to be defined, and I can only repeat the submissions that were made by the delegations before us. They wished certainty. Building inspectors wished certainty, but when governing by regulations there is a certain amount of uncertainty. So I would ask that the committee consider the Progressive Conservative amendment.


The Chair: Ms Poole, any further comments?

Ms Poole: Not to belabour the point, I think Mr Tilson has well made the point that the more you can have actually in the legislation as opposed to the regulations, the greater the certainty and also, quite frankly, the less the temptation by government to arbitrarily and at whim amend things by regulation. So I very much support the amendment brought forward by Mr Tilson, although I fear to tell him it is doomed to fail.

Mr Tilson: No, say it ain't so.

Ms Poole: I'm afraid it's so, Mr Tilson, but the Liberal caucus will support you in your failing endeavour.

The Chair: Ms Harrington, any comment?

Ms Harrington: No, I think we've made our position clear.

The Chair: Then I'll put the question. Shall the Progressive Conservative motion, the amendment to subsection 1(1), carry? All in favour? All opposed?

Motion negatived.

Mr Anthony Perruzza (Downsview): Mr Chairman, I'm sorry, that happened all so fast.

The Chair: Sorry.

Mr Perruzza: On a point of order, Mr Chairman: I really wasn't clear on what the motion was.

The Chair: That was the Progressive Conservative amendment to the government bill.

Mr Tilson: Do you want me to speak louder, Tony?

Mr Perruzza: Yes, please.

The Chair: The Progressive Conservative amendment was defeated.

Mr Hans Daigeler (Nepean): We could try again.

Mr Perruzza: Mr Chairman, I didn't vote either for or against.

The Chair: It was still defeated by the numbers present.

Mr Daigeler: Let's have another vote.

The Chair: Now, shall subsection 1(1) carry? Opposed? Carried.

Shall subsection 1(2) of the bill carry? Opposed? Carried.

Ms Poole: On a point of order, Mr Chair: Before we get too deeply into the bill, one of the Liberal motions to subsection 25(7) is missing from the amalgamated package. I just wanted to mention it at this time. It was in the package handed out by the clerk this morning, but I can't find it in my amalgamated package.

The Chair: There's a gremlin at work.

Ms Poole: Stealing Liberal motions.

The Chair: We will find it. As we go through, if anybody identifies another one that's been left out, please bring it to the attention of the Chair. The clerk, in her usual ubiquitous fashion, will make it appear very quickly.

We have passed subsections 1(1) and 1(2). I can't remember whether I put this, but shall section 1 of the bill carry?

Section 1 agreed to.

The Chair: I then propose to move on. The next amendment will deal with section 7, so we'll deal first with sections 2 to 6.

Sections 2 to 6, inclusive, agreed to.

Section 7:

The Chair: Now, section 7: We have several amendments: two amendments, I believe, on clause 7(c) and one on clause 7(g). I will ask Ms Poole to move her amendment, first of all, to clause 7(c).

Ms Poole moves that clause 7(c) of the bill be amended by adding at the end "which shall be designed and used to meet only the anticipated cost to the municipality for the administration and enforcement of this act, the building code and other applicable law referred to in clause 8(3)(a)."

Any comments on that amendment, please?

Ms Poole: Several of the municipal groups brought forward this particular point. I think the Large Municipalities Chief Building Officials group mentioned that it was concerned with the growing tendency of government to charge fees that bore no relationship to the actual cost of administration and enforcement.

They would very much like to see spelled out in this act that the fees that are collected shall be designed and used to meet only the anticipated cost to the municipality of the administration and of the enforcement. I think this is a very reasonable amendment and I'm very much hopeful that the government might see its way clear to supporting it.

The Chair: Mr Tilson, any comments on the Liberal motion?

Mr Tilson: I think it is as well similar to the Conservative amendment. I indicated when the delegations were making their submissions that it brings to mind the whole arguments that have been going on for the last number of years and the subject of lot levies and what applies to what. What is a lot levy for and, similarly, what is a fee for?

I would support the Liberal amendment. The point that was made by the Large Municipalities Chief Building Officials is certainly well taken, and the topic does need to be clarified. I'm disappointed the government didn't agree on this position, because certainly this is a similar position. If you could compare this debate to the debate that has gone on in the past with respect to lot levies, they are really quite similar. If I recall some of the comments that have been made by members in the New Democratic Party in the past, these things do need to be made more clear. Without an amendment such as this, they're not. So I would support the Liberal amendment.

The Chair: Any further comments? Mrs Harrington?

Ms Harrington: Yes, thank you.

The Chair: Just a moment. Mrs Marland, we're on clause 7(c), and I hope you have an integrated package of all the amendments there.

Mrs Margaret Marland (Mississauga South): Thank you, Mr Chairman. I'm apologizing for being late, but since the committee schedule was changed, I couldn't change my own to accommodate the last-minute change by the Chair, which I accepted as being necessary.

The Chair: Thank you. We're dealing with clause 7(c).

Ms Harrington: This matter of the fees and where they are used was brought up by the presenters two weeks ago. It is actually a broader issue than just the building permit fees. It is government policy at this particular time that the autonomy of moneys collected by municipalities is then to be left with municipalities as to how that money is spent. To change that, I believe, would have to be a larger issue with the Ministry of Municipal Affairs, and at this point in time we are not able to do that.

Mr Tilson: I don't know what you mean by "a larger issue." The fact is that there has been confusion that has been put forward in the delegations as to where these fees go, where they're applied to. Either the ministry -- and I say "the ministry" -- your government's philosophy agrees with that or it doesn't. If you don't agree with it, hopefully you would put forward some sort of rationale. Because it's quite clear to me that they believe there is uncertainty. These delegations do not believe that these fees are going to what they say they're going for.

Ms Harrington: What I'm pointing out is that at this time it is up to municipalities to decide where those fees go, and we, as a provincial government, are not interfering with that. If we were to, then we would have to look at a whole lot of other licensing fees and other municipal matters which would have to be dealt with through the Ministry of Municipal Affairs.


Mr Tilson: I understand that, although currently we're dealing with the building code. On this specific subject there has been a concern that fees that are being charged aren't being applied towards administrative fees. You may well be right. Maybe it's a mind-boggling thing, every fee that's charged by a municipality. That's why we pass these bills, to give direction to the municipalities as to how they're going to be charging their fees.

As I say, I can only express my disappointment that the government hasn't taken the lead in supporting this type of amendment or some similar type of amendment.

The Chair: Mr Mammoliti and then Ms Poole.

Ms Harrington : He's not here.

Mr Perruzza: Mr Perruzza. Mammoliti's the other guy.

Mr Tilson: They only look the same.

The Chair: My apologies, Mr Perruzza.

Mr Perruzza: Mr Chairman, through you to Mrs Harrington, I'm wondering how this amendment would impact on legislation that was essentially passed by the Liberals that enables municipalities to tailor a policy around zoning application and the issuance of building permits where municipalities can develop policies that would require developers to pay for infrastructure improvements. I don't know of any municipality in Ontario that has developed that policy yet, but there is legislation in place that essentially permits them to do that.

In light of that, why would you propose an amendment now saying that the moneys they raise through the issuance of permits only be applied to the administration of that particular department?

The Chair: That question is directed at Ms Poole, I sense.

Mr Perruzza: Well, I'd really like to know how this would impact on legislation that's on the books now.

Ms Poole: Perhaps I could clarify that this is a very different issue than the issue of lot levies, for instance, and developmental charges. The issue in this particular instance, which is, I think, as Mrs Harrington said, becoming a wider one among the public, is if there is a fee that is being charged for a building permit, then it should bear some fairly close resemblance to what the administrative cost is or the cost of enforcement. In other words, you're paying for what you get. There has been a growing tendency for all levels of government, to be perfectly honest, to try to use permits as a method of revenue as opposed to a method of paying for what they're delivering at that particular juncture.

I think it is becoming a bit of a festering sore at the municipal levels and I think it's growing to the provincial level. Recently we've had a lot of anxiety because certain things that are called environmental levies, for instance, do not actually go back -- the revenues do not go back -- to the environment. That's the broader sense of the issue.

But for this very specific one, we're supporting the municipalities when they say that if a municipality is charging a fee for the permit, then surely the fee for the permit should closely resemble what that's going to deliver to that person, and what it's going to deliver is administration and enforcement. I can certainly understand the municipal officials' desire to have it really spelled out quite closely what this is.

The other thing it would do is give some sort of more even uniformity across the province, because obviously the administration costs might differ from municipality to municipality. But the way it is right now, any municipality might set whatever fee it wanted to, so you might pay 100 times in one municipality for a building permit as you do in another. I don't think that kind of thing is terribly fair, and it's obvious in that instance that the municipality has decided to use it as a source of revenue rather than to deliver what services are needed. So that is the issue.

I don't personally see that it would impact on things such as lot levies. That is a bit of a different issue, the same concept in a way, but we're talking specifically licensing fees, permits and that type of thing.

Mr Perruzza: I understand what you're talking about, but why wouldn't you let municipalities, which understand land values much better than we do sort of from a macro perspective -- they understand it from a micro. If land values are such that developers are reaping such enormous profits, and I'm talking about boom times now, why wouldn't you allow them a little more flexibility to recoup some of their administration costs and recoup some moneys for other essential services that they face, that they have to pay for sort of on a daily basis? Why would you hamper them in that way?

Ms Poole: I guess the short answer is that the municipalities should be entitled to recoup their administration costs, and in fact that is what this amendment proposes. It's going beyond that. It's when the municipality wants to pay for something else entirely different, such as putting in more police or whatever, but using revenues from the building permits to do it. I think what they're really asking for is that there be some relationship between the fee and what the fee is meant to pay for.

Mr Perruzza: Now I understand. Now I'm a little clearer on it. Thank you very much. I can't support it, Mr Chairman.

Ms Poole: After my eloquence.

The Chair: Any further discussion on the amendment?

Ms Harrington: Just one conclusion. I would like to say that we do recognize the concern of the presenters who came before us that the fee should relate to the actual service delivered. At this time we are not going to interfere with the autonomy of the municipalities, which is a broader issue.

The Chair: Shall the Liberal amendment to clause 7(c) carry? Those opposed?

Motion negatived.

The Chair: We then have a further amendment to clause 7(c) by the Progressive Conservatives.

Mr Tilson: Again I think the Liberal Party's position and our position are very similar, although I think ours is somewhat, with respect, a little bit more clear.

The Chair: Mr Tilson moves that clause 7(c) of the bill be struck out and the following substituted:

"(c) requiring the payment of fees on applications for and issuance of permits and prescribing the amounts thereof and such fees shall be designed and used to meet only the anticipated cost to the municipality for the administration and enforcement of this act and regulations, and any applicable law."

Mr Tilson: Mr Chairman, could I speak to that?

The Chair: Yes.

Mr Tilson: I think the submissions that were made with the Liberal amendment apply to this one as well, although I think it is somewhat more clear. I remind members of the committee to refer to the submission, written and oral, of the Large Municipalities Chief Building Officials group. They spoke at some length on this and pointed out the need for some uniformity and consistency across the province. They submitted, as you can recall, that:

"A number of the municipalities are setting fees based on whatever the market will bear" -- I'm reading from the written submission -- "and surplus funds collected are used for general municipal purposes. They are not put into reserve funds and earmarked for the administration and enforcement of the building code."

I'm going to read the following paragraph for my submission, because this expresses the intent of this amendment:

"It is the opinion of our group that the intent of the Legislature in 1974" -- which is when the Building Code Act was amended -- "was to provide not only for uniform building regulations, but also uniform enforcement across the province. Concern 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 act and their 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."

That is the intent: that these fees that are being charged by municipalities be used strictly for these administration costs and not be put to other purposes, which we believe, as do the building officials, people do on a daily basis. That's why we feel that this amendment should carry.


The Chair: Any further comments? In that case, I'll put the question. Shall the Progressive Conservative amendment to clause 7(c) carry? Opposed?

Motion negatived.

The Chair: We will move to the next amendment, which is a Liberal amendment to clause 7(g).

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

"(g) enabling the chief building official to require that a set of plans for a building or any class of buildings as constructed, except residential structures that are less than three storeys and six hundred square metres, be filed with the chief building official on completion of the construction under such conditions as may be prescribed in the building code;"

Any discussion, Ms Poole?

Ms Poole: Yes. I would like to give a brief explanation as to the rationale for this particular amendment. The Ontario Home Builders' Association was quite concerned that amendments to the building code should not substantially add to the cost of building new residential structures. The point they made is that the requirement for as-built drawings is quite understandable in commercial buildings or public buildings and large buildings; for safety reasons, for fire reasons, for emergencies, it was very important that they know where exits were and this type of thing.

But they saw no reason for it to be incorporated for small residential buildings, ie, the average home where there is no rationale for it to be on file in an as-built situation, where in a number of cases the drawings and the plans do vary from what was originally submitted because people who are building homes, home owners, are notoriously anxious to have the best product and quite often change their mind about where this door is or that window or whatever.

It would add, I believe, quite a cost to the construction of a new home to require as-built drawings to be submitted, particularly where there were changes made. So it would seem to be reasonable to exempt small residential structures from this particular section. If the government is not willing to consider this, perhaps it could explain why it is necessary to have the small residential structure incorporated in this particular section of the act. What purpose does it serve?

The Chair: Any further comments on the Liberal amendment to clause 7(g)?

Mrs Marland: I'm interested to hear what the government's response to this is. I'm considering the safety of firefighters. I recognize when there's a fire in a single-family dwelling that the fire department doesn't immediately punch in on the computer the plans for that building. So it's not that aspect that I'm concerned about, because if it's a non-commercial building and, as it says here, "less than three storeys and six hundred square metres," we're not concerned about major egress and access points for that building, but I am concerned down the road for an owner of that private dwelling who comes to make modifications or changes to that building.

I can give you a perfect example in our own municipality of Mississauga. We had a great fire, I think in 1968. I've forgotten actually what year it was; a little bit before I got into the political scene in Mississauga. In any case, all the plans that were on file in Mississauga were destroyed. Now people who are wanting to make modifications to these buildings can't go back to the building department and find out very easily, through a reference point, exactly how their building was built or where main connections are to municipal services, which for the most part are not destroyed by fire in the long term. If they're not on file somewhere, then when somebody comes to either make a renovation or an addition or make any changes at all to his building, he can't go back to the city and find out how his building was planned and designed.

I recognize Ms Poole's argument, repeating the argument the deputation made -- were you saying it was the Urban Development Institute, Dianne?

Ms Poole: No, it was the Ontario Home Builders' Association.

Mrs Marland: I heard that presentation and I know its argument is that very often the building permit is issued based on one set of plans and drawings and then the home owner decides he wants to make some modifications and changes. I think where that happens, the cost has to be borne by the person requesting the changes.

I agree with the Ontario Home Builders' Association that it shouldn't be asked to recirculate another 20 copies of the plans of the as-built form at its expense, but I think where a home owner applies for a building permit and gets a building permit based on a certain set of plans that talk about everything in that house -- the electrical installation, the plumbing, the heating, the air conditioning -- all the mechanical aspects, let alone the structural aspects of that home, are on record for future home owners.

If the plans are changed after the issuance of the building permit, I think it begs quite an important question here. The building permit is issued on the basis that everything in that building will work. That's why, further in this bill, we're increasing the penalty for people who build without building permits, because there is no certification for that future home owner or purchaser that anything in the building is going to work, that the heat is going to go to the far end of the building from where the furnace is or that the air flow is going to work in terms of the volume of space in different rooms and so forth.

If we're going to say that it's okay to change plans after the building permit is issued, which I think is what we're talking about, then what we're saying is that the building permit, the certificate that this building complies with the building code, perhaps doesn't stand up any more.

I don't know. Maybe Ms Harrington can tell us. If I'm having a house built and I get my building permit from the municipality based on the plans I submit, is there any limit or control on the number or kinds of changes I can request after I've had the building permit issued?

The Chair: Ms Harrington, to respond to that question.

Ms Harrington: Just to make it clear, this is an amendment put forward by the Liberal Party.

Mrs Marland: I know.

Ms Harrington: In order to exempt these residential structures from having to have the --

Mrs Marland: As-built plans.

Ms Harrington: The as-built plans. The rationale, I gather from that, is the cost the home builders brought forward to us.

Mrs Marland: Right.

Ms Harrington: I would really like our staff to address your specific question about how many changes, but I also would ask them at this point in time to address the question of the residential dwellings and the as-built plans because we recognize the problem and I believe there is some provision in the regulations. I'd ask Mr Wildish if he could answer both concerns.


Mr George Wildish: There's been a provision, as you know, in the Building Code Act for some years for as-constructed plans and it provided that they should be as laid out in the regulations. Nothing was ever put in the regulations, so we've never had this provision for as-constructed plans in operation. The current bill was to take care of that. In fact, municipalities --

Mrs Marland: We haven't had the requirement. Is that what you're saying?

Mr Wildish: The act provided for it, but no regulations put it into effect, so we've never had as-constructed plans as an operating provision.

Mrs Marland: I don't mean to interrupt you. I just want to understand you as you're going along. The practice today is that you apply for a building permit with this set of drawings, you get a building permit on that set of drawings and if you change the building totally, the city may not know about it.

Mr Wildish: On that particular point, if you wish to change your plans, you have to let the building official know and he has to approve the change. You aren't allowed to change the drawings and specs without approval of the municipality.

Mrs Marland: Okay, but I can do that all outside of the building department and the building department may never look at those plans again: Is that it?

Mr Wildish: No. Having received a permit based on a certain set of plans, you are not allowed to deviate from those plans without going back to the building official, telling him what you wish to do and getting his approval.

Mrs Marland: Okay, but he doesn't keep the modifications to the plan on file.

Mr Wildish: The filing practices vary a good deal from municipality to municipality.

Mrs Marland: Tell me.

Mr Wildish: Municipalities, with this provision, wouldn't institute the idea of getting as-constructed plans for everything. They'd be swamped with plans. They don't want them. They wouldn't want to spend their time reviewing them if they did come in. They really want as-constructed plans for those odd occasions when something has gone wrong: It looks suspicious. They weren't able to inspect. They didn't know where something went because the original plans weren't specific, like the location of a drain line across a property or something. When it's installed, they want the contractor to draw on the plans that it went in a certain area, a certain way, and then that would be filed with the municipality. They certainly do not want as-constructed plans for every building. It would be a terrible burden for them to handle.

The provision here is, then, that once a bylaw is passed by a municipality giving some strength, power, to the municipal building official, he or she may then ask for as-constructed plans for those particular cases where they want them, but not a general thing.

Mrs Marland: In the days of this wonderful computer age, with microfiche and everything, why is it such a problem? I have seen people dig up their whole front lawn, trying to find where their water line was or their sewer connection, or at the back if they've wanted to put in a pool or they've wanted to take down a tree, all kinds of things, and that information hasn't been available. I hear what you're saying and I'm sympathetic to the fact that, no, there's no way the municipality could have bins and bins and drawers and drawers of drawings. But in the computer age, is that still a problem?

Mr Wildish: I can give you my opinion of that. I can't speak for municipalities, but I could tell you what I think. Some municipalities may indeed think this was a good thing to do -- buy a microfiche or whatever way -- and might set up that provision, but they would probably be recognizing that it's a little extra cost for builders and other people. They'd be laying that on their municipality and they might think that's not such a good idea from that point of view. It's one of those things we leave to municipalities by giving them the power to strike a bylaw as they see fit to give their chief building officials such powers as they wish to and let it operate that way. But you're right that a municipality could go the full high-tech way and just start putting everything on microfiche if it chose to.

Mrs Marland: So this Liberal motion is not giving the municipality the option for small buildings.

Mr Wildish: The Liberal motion?

Mrs Marland: This Liberal motion that we're debating now applies only to large buildings.

Ms Harrington: My understanding is that it takes away the right that we are giving to municipalities to decide if they want to have these plans, and it's taking away that right for the smaller, residential buildings.

Mrs Marland: Do you agree with still having it for large buildings, then? I'm asking the Liberals.

Ms Poole: Perhaps the Conservative critic didn't hear the portion where I addressed what we were talking about. It wasn't so much large and small. It was referring to commercial buildings and industrial buildings, buildings of a different nature. What we're talking about here is residential. But we're not talking about a multiresidential apartment building; we're talking about your average home that would be exempted.

Mrs Marland: Can you excuse us, Mr Chair, exchanging back and forth? We're really going through the Chair.

The Chair: It helps to clarify and the Chair is quite pleased to let you do that.

Mrs Marland: The Chair is giving us permission to speak to each other.

The motion says "less than three storeys." There are a lot of town house, multifamily unit constructions that are less than three storeys. How much is 600 square metres?

Ms Poole: It would be about 2,000 square feet, I think.

Mrs Marland: Your concern is only commercial and industrial buildings, not residential buildings?

Ms Poole: That's right. The concern the Liberal caucus had when we tabled this particular motion was that it may place an undue burden on the single-family home. If they make changes, a municipality would have the right to automatically require, in every circumstance, that they file as-built plans, which, as you just heard from Mr Wildish, right now is not the case where they are required to file the new set of plans.

The home builders were concerned that this would add a significant amount to building new homes. One of their major premises throughout their entire brief was that the construction industry right now is not in very good shape and anything that added substantially to the cost of building those homes without any benefit on the other side should be avoided.

I don't think what we're asking for is terribly dramatic. We understood that one of the major reasons for requiring as-built plans for larger buildings would be for egress in the event of an emergency, fire or safety. We're just not convinced there is the same necessity for your average home.

The Chair: I have some further questions on the same motion. Might I go to those and then we can come back?

Ms Poole: Sure.

Mrs Marland: That's fine.

Mr Perruzza: I'm really not clear on what the new change -- the clause (g) that's in the bill -- does as opposed to what we have now, because the way I understand it and the way it operates now, if somebody is building a house and during the process of construction he's submitted plans for a conventional roof structure -- and this happens to be, quite often, a change that happens -- and during the process of construction he discovers that an engineered roof truss design is substantially cheaper in getting -- quite often it's the lumber company which supplies the engineered-truss designs, which the individual can then submit to the municipality for approval. Then the building department reviews those designs, and,if they are conformed with, they're generally allowed to happen with the building inspector.


The municipality, at that point, keeps a copy of that change and files it with the drawings that are submitted. At that point the builder can proceed and build the home according to the changes that had been approved by the building inspector, reviewed and accepted by the building department and put on file.

If I am to understand this clause (g) as is in the bill, that individual would be required at this point to go out and get his or her architect to redraw the drawings. Why would we require just an individual, a home owner -- because generally with big builders and subdivisions and things like that, that's something they do right off the bat, and they generally don't make that change. If they do make that change, they resubmit new drawings. But why would we require that one individual to go out and have to pay the architect another $2,000 or $3,000 to redraw their plans and submit a new plan when that change has been submitted to and approved and accepted by the city, when they made it, at no additional cost to them? Why would you get them to pay for it twice, and does that do that?

Ms Harrington: I'd briefly like Mr Wildish to clarify for Mr Perruzza. The question is, if the municipality requires this, which they don't have to do now, does the home owner then have to redraw the total plan or submit only the change to that plan?

Mr Wildish: Maybe I should clarify something. At the present time, under the inspection powers in the present act, an inspector could ask for any drawings or information he wishes. So if he's uncertain of something, if something is not clear, he could ask for that information.

Under the present act, it provides for as-constructed plans. It says in the act "requiring that a set of plans of buildings as constructed be filed with the chief official on completion of the construction of buildings of such class or classes as prescribed by the regulations."

The point I made before is that nothing is prescribed in the regulations, and hence that as-constructed plan provision was inoperative. The new proposal corrects that and makes it not just the class of building; it could be even a single building.

To answer your question, then, as the project is going along, some change has occurred, or wishes to occur. The builder submits the change, as you were saying. The building official approves the change. That's fine. They may never ask for an as-constructed plan. But if something has happened -- the building official is uncomfortable with what's going on. He arrives there and finds things have progressed further than he wished to see them progress. Maybe he didn't feel he was getting proper notification. Perhaps they've had a lot of trouble with this building. Perhaps things have been installed that weren't shown on the drawings in the first place; that is, as I mentioned earlier, location of some piping or something like that.

He could then ask the builder, the owner to provide a drawing showing those things. It would not have to be the whole set of drawings all redrawn again. If it was, say, just a line of ductwork, for example, he would just take his drawings and mark on the ductwork, "Satisfactory to the building official," and that will be sufficient. If the building official wanted more detail, he could ask for more detail.

Mr Perruzza: That basically leaves it very open-ended. In the amendment, what would the amendment do to that section? How would you interpret it? That's the amendment that has been proposed.

Mr Wildish: The building official would, by his council, have a bylaw passed giving him some general powers. The municipality, to follow up what was being said earlier, might restrict those powers so that he couldn't ask for small residential homes. On the other hand, they may say that he can ask for it for that purpose. But whatever powers they give him, that's what he would have. When he found a situation where he wanted as-constructed plans for some particular building, then he would ask for them and of course receive them.

Mr Perruzza: So what the amendment essentially does is leave it up to the municipality to structure a rule around the issue in terms of that.

Mr Wildish: Yes, that's right, and having structured the general provision, the building official would enforce that when he wanted it. He would very rarely want that in a blanket sense for all buildings, because as I mentioned earlier, he would be swamped with plans he didn't want to review. Once he has asked for them, he's more or less obliged to review them once they arrive, and he doesn't want that in general.

Mr Tilson: As I understand it, from what you've just said, Mr Wildish, the proposed amendment, clause 7(g), gives the municipality power to pass bylaws -- that's in their discretion -- for all buildings. As I understand it, the Liberal amendment is saying: "No, that's going too far. For the single-family dwelling, it's unreasonable."

I don't mean to put words into Ms Poole's mouth -- I do it generally anyway -- but it would seem to me that someone who is building a home changes his or her mind periodically, whether it's a roof, an enlargement to a room, or just making things bigger or smaller. That could happen periodically, and it happens very frequently. I'm not talking about the standard subdivision, but someone who has retained someone to build a home for them anywhere.

As I understand it, if a municipality were to pass a type of general bylaw -- and I understand what you're saying, that they may or may not -- the fact is you could have an overzealous building department that could say, "We must have plans for every building."

That is the intent, as I understand it, of the Liberal amendment, that that's going too far, that it means, number one, that every time there's a change -- which could happen on the first week, in the second week, in the third week -- you could have a whole series of changes in which the plans will have to be continually changed, although your words in your section say "as constructed," and I do understand that.

Maybe I'm looking for some input from Ms Poole. As I understand it, what she's saying is that this is going to add an undue cost to the residential private home builder. I would go one step further with a question to you: Would that therefore result in more bureaucracy to the municipality? Would that therefore mean there are yet more requirements that are going to be put forward on the individual building departments, whether they be large or small? My question, Mr Chairman, is to Ms Poole and to Mr Wildish.

The Chair: Okay. Mr Wildish, you may wish to respond and then Ms Poole can respond.

Mr Wildish: Contrary perhaps to popular belief, building officials are likeable people, and they do try to make the system work well. When it comes to residential properties going up, they're not interested in a lot of paperwork, I can assure you.

When private dwellings are going up like you were just talking about, we can all imagine situations where the owner says, "Gee, I wish I had put that partition two feet further over. It will fit my piano better. Let's do that. I'd like to move it over," or, "Let's move that window." I think that's what you're referring to, buildings going up like that.

In those situations what should happen is that the owner or the builder should phone the building officials and say, "I want to check something with you." Then he marks on the drawing -- and I'm thinking here of something quite simple. He takes a red pencil, marks on the drawing to move the partition over two feet, gets the building official to initial it and so on -- approve it, in other words -- and that's the end of that.

As was said here earlier by Anthony Perruzza, this is the kind of thing that happens all the time. The building official agrees to that change and it's built that way. When the building is all finished, there's no need for a set of additional plans. He's already got the plans. They're already marked up and initialled, and everybody is happy. So there shouldn't be any extra bureaucracy at work in what you're talking about.


Ms Poole: I guess what I would say in response to both Mr Tilson's question and Mr Wildish's answer is that when we are looking at legislation we not only have to consider the intent of the legislation but also have to examine where it can go wrong. How can it be misused, abused? If they take the letter of the law, what is it going to mean?

The concern I have with the way this has given the chief building official the authority to require an as-constructed set of plans after the completion of the building, even for the average home, is that you may well have municipalities or chief building officials that make the decision that in every case they are going to require it. In that event, it is going to add significantly to the cost of many homes being built and add significantly to the bureaucracy.

Obviously, a municipality again could decide this was a wonderful way to raise money, to raise its revenues, to have a special fee for filing these as-constructed plans. Those are the types of instances that may not happen but that you have to guard against happening. That is the concern I have, not with the chief building official who in one particular instance feels that it's necessary to have the as-constructed plans, but with the other scenario, where the chief building official decides in all cases that he or she is going to require all residential structures to file as-constructed plans.

I guess that's where it is. I always like to ensure that when we are trying to look at legislation we look at all scenarios and make sure that the legislation doesn't create a problem instead of solving a problem. Did Mr Wildish want to comment on that?

Mr Rosario Marchese (Fort York): Ms Poole raises some good concerns, makes some good points. I thought what we could do is to stand this item down for tomorrow to allow the parliamentary assistant and the minister to review that and see whether we can come up with some wording that we can agree on tomorrow.

The Chair: Is that agreeable to everyone? If so, then we will stand it down.

Mrs Marland: I'm happy to set it down, but I just think while we're on a roll with getting the information out I'd like to finish that part and then set it down, so that I'm very clear about what goes on here.

The Chair: All right. Is that fine for you, Mr Marchese?

Mr Marchese: That's fine.

Mrs Marland: I've had it confirmed for me that the Liberal motion that refers to "residential structures less than three storeys and six hundred square metres" is actually 6,000 square feet. That 600 square metres isn't 2,000 square feet, it's 6,000 square feet. I want to tell you that a two-storey house that's 6,000 square feet is a huge house and therefore would be an enormous investment on the part of that home owner. If that home owner decides down the road that he wants to make modifications and changes, looking at the protection of the consumer, I think it would be great to know that as-built or as-constructed plans were on file.

I think the pivotal point here in clause 7(g), without Ms Poole's amendment, is the fact that, as it's printed in the bill, it says "as constructed be filed with the chief building official on completion." I don't see a whole lot of plans here. I know Ms Poole understands this, that you can't build 100 square feet without a building permit -- I think that's correct -- which is 10 by 10 feet. Anything that anyone is going to construct, other than a garden shed less than 10 by 10, is going to require drawings. It's not a new requirement that we're talking about here. As you've explained very well, you require plans to get a building permit. Am I also correct that those plans have to have an architect's and an engineer's stamp? No, okay.

Mr Wildish: Certain buildings, big buildings.

Mrs Marland: Okay. So the municipality uses its judgement in what plans it accepts to issue the building permit. Any modifications as they go along can be red-circled, red-lined, on that original set of plans. At the end of it, it doesn't mean a new set of plans being filed, it just means that those plans submitted for the building permit originally, with any amendments, are filed with the municipality.

I wish I had known a bit more about that when the Ontario Home Builders' Association was here. I would have asked them to tell us exactly what their argument was based on adding cost to a house because the initial cost is there anyway. If they have to have plans in any case to get a building permit, and I did hear -- didn't they make one of those wonderful sexist comments about how women come along and want something changed in the kitchen or whatever? I know somehow we were blamed. Or maybe I've heard that argument before elsewhere and I wouldn't --

Ms Poole: I think I would've noticed that.

Mrs Marland: I don't want to blame them, but it's always women who get blamed for changes in house design as they're being built, generally. I think that because 7(g), as in the bill, leaves the option to the local municipality -- correct? Then I think we're not putting a burden on the local municipality that it doesn't want, if it doesn't want it or if it can't afford it, and I don't see where the additional cost to it is. Can you see an additional cost to the municipality?

The head-shaking doesn't come on Hansard, Mr Wildish.

Mr Wildish: If the municipality decides to go into this in a big way, it will have filing problems and reviewing problems, but if it doesn't go into it, of course, it doesn't have any costs.

The other point is that if they decided to ask for as-constructed plans for all subdivisions, all tract building of homes, which would lay an extra cost on the developer, the developer will be scared away to other municipalities. It's like all regulations. There's a competition going on here and municipalities and councils in general won't vote for something that lays on cost unnecessarily, I wouldn't think. We don't expect them to do this at all.

The other thing I should mention is that you note that the bill provides for a regulation here. The regulation sets down and governs how this will work.

The Chair: Could I just note that Ms Poole wanted to make a comment? It was suggested that we stand this down and work out wording, but we can continue this.

Mrs Marland: No. I'm happy to stand it down, Mr Chairman. I just wanted to make sure we all understood that we weren't asking for something that doesn't exist today in order to get that building permit at the beginning.

The Chair: Understood. Ms Poole, since it's your amendment, a last word.

Ms Poole: Yes. Just before we stand it down, there is some additional information I want to share with you, further to Mrs Marland's comments.

First of all, about the 600 square metres being so large, the logistical problem we had here is that legislative counsel did not want to reference part 9 of the act in this particular amendment, so we had to work backwards and look at what part 9 referred to. It referred to buildings either larger than 600 square metres or smaller than 600 square metres, so that was what we used.

Obviously, the intention is to cover the single-family home. I don't know -- in the city of Toronto where I happen to live, there aren't too many 6,000-square-foot homes but I suppose out in Thornhill and Richmond Hill --

Interjection: No.

Ms Poole: No? We don't get that big. We don't have that particular scenario, but that was the reason for the cutoff, just to bring it in sync with part 9.


The second concern that Mrs Marland had was that she said it's not a new requirement. Well, it is a new requirement in that it hasn't been enforced in previous years. In fact, it isn't a matter of the home owner just having to file changes to the plan, because that is required now. What this would require, if the chief building official decides it's necessary, is that there would be a new set of plans as constructed filed. This would entail costs. It would entail the cost of having an architect draw up new plans, as Mr Perruzza pointed out. This is the type of thing that we're trying to avoid.

Our concern wasn't so much additional cost to the municipality, because it's within the municipality's prerogative to control that cost. They're the ones who make the decision. It was more the individual home owner's cost of having to provide a completely new set of plans. I don't want to belabour that, but I did want to put those few things on the record before we stood it down.

The Chair: We have agreed, then, to postpone our consideration of clause 7(g). What I propose to do, if the committee is agreeable, is that we begin again with section 7 when we come back and deal with this specific item. We have of course already dealt with the two previous amendments to section 7. We will stand down section 7 and come back to it first thing when we begin again in the morning.

Just before moving on to section 8, could I note that the questions that were referred to at the outset in Ms Harrington's statement have now been circulated. I just want to make sure that everyone has them and to note for the record that they have been circulated.

Ms Harrington: Briefly, I want to apologize for not having it to you earlier. Hopefully, you will get a chance to look them over in detail, before tomorrow anyway. It will be of some help. Thank you.

Section 8:

The Chair: We now move on to section 8. There are two amendments to clause 8(10)(d) and there's an amendment to subsection 8(11) and subsection 8(13). The two to clause 8(10)(d) are the same, so we will deal with the Liberal amendment, and that will in effect deal with the two. Both the Conservative motion and the Liberal motion are the same, so we'll deal with them at the same time. We'll begin with Ms Poole.

Ms Poole moves that clause 8(10)(d) of the bill be struck out.

Ms Poole: Right now, clause 8(10)(d) states that "the chief building official may revoke a permit issued under this act if it was issued in error," but clause 8(10)(a) states that "the chief building official may revoke a permit issued under this act if it was issued on mistaken, false or incorrect information." It was a submission, I believe, of the Urban Development Institute that clause 8(10)(a) already provided for revocation of a permit if it was issued on an incorrect basis. They felt that clause 8(10)(d) was actually redundant. Just in the interest of making this a little more compact, it was felt that we could eliminate clause 8(10)(d) and still completely cover the cases. If indeed the parliamentary assistant has instances where clause (a) would not cover situations in clause (d), I'd be pleased if she could bring those to our attention.

The Chair: Okay, and just before we do that, because the two amendments are the same, any comments at this point from Ms Marland or Mr Tilson?

Mr Tilson: The Progressive Conservative proposal is the same as the Liberal proposal, and I think we are agreeing with the comments made by the Urban Development Institute. I don't know whether my question is to Mr Wildish or to Ms Harrington, but clause 8(10)(d) says that the chief building official may revoke a permit "if it was issued in error." I must confess that gives me grave concerns.

People do make mistakes. You rely on building permits. For example, there may be a permit where something has been overlooked by the building inspector. You may have an innocent owner who's building something, someone who necessarily is inexperienced. You rely on the building department, the building inspectors, to make regular inspections. I don't profess to be that knowledgeable on the subject, but certainly inspections are made at different stages. You could conceivably have the third or fourth inspection, and then you could have an inspection when the foundation is laid and then when the walls are put in and the roof put on. I don't know how many there are, but I know there are quite a few, and then you have the final inspection. Conceivably, you could have an inspection that something is wrong with the foundation, and this is an error that was made by the building inspector in all innocence.

This section says that if you find that an error was made with respect to the foundation but the walls are up or indeed the house is even finished, technically the building inspector could say: "Well, sorry, I made a mistake, just overlooked something. Maybe I didn't read it correctly or whatever. You're going to have to tear the building down."

There may be pressures put on them by neighbours. You may have a building going up that's very contentious among neighbours in a particular development, for example. I'm just trying to think of a hypothetical situation. I can tell you I have known of some in my community, where neighbours are very upset with a new building or a substantial addition that's being put on a residential house.

This means, "Sorry, you don't have a building permit; you've got to tear that down." What in the world is the owner going to do? What in the world is the builder going to do? Someone goofed. You relied on a government official for issuing a permit in the first place that was issued in error. Normally, today if that hypothetical situation were to happen, the municipality could be liable if an error was made. This means that the whole issue of damages is going to be affected if litigation was instituted as a result of an error that was made by the building inspector.

Mr Wildish, I assume there's been some rationale that has gone through in this section. I'd like to hear a little bit more from you, or perhaps it would be more appropriate from Ms Harrington, but if either one of you could comment on the rationale.

Ms Harrington: I'm still very impressed, Mr Tilson. You're a good lawyer to find that fine print and those hypothetical situations. It's just what we need.

Mr Tilson: Flattery will get you nowhere, Ms Harrington.

Ms Harrington: I'm also impressed Ms Poole would like to shorten this bill by at least one line. Over the past week, we have had our lawyers look at this exact situation: Is this line redundant or not? I think that's what we're talking about, bottom line. I would like to have Colleen Parrish comment with regard to whether it is redundant, and I also would like to have Mr Wildish address Mr Tilson's question, in that order.

The Chair: Ms Parrish, if again you'd be good enough just to identify yourself.


Ms Parrish: I'm Colleen Parrish. I'm the director of legal services at Housing.

I think that from a strictly technical viewpoint there is a difference between clause (a) and clause (d). I think Mr Tilson has talked about that difference.

Clause (a) says "if it was issued on mistaken, false or incorrect information," so that's the situation where the proponent -- the builder, the owner or somebody -- says, "I give you X information," and I issue my building permit based on your incorrect information.

Clause (d) really deals with the situation where nobody gave me any incorrect information. I, as the building official, made a mistake. I simply made an error. I issued it to 56 Maple Street instead of 55 Maple Street. I just made a mistake, and that allows it to be withdrawn. So I think from a strictly speaking technical viewpoint, there is a difference between what happens in (a) and (d).

I think the next question is whether that is a good policy result, because I've sort of addressed the strictly technical issue about whether there's a difference. One point I might want to say is that where a building permit has been issued in error, I guess there is an issue about whether or not people should be able to benefit from that error. Bear in mind that if they actually suffer damages, they can always sue, and people do sue municipalities for making errors.

The other thing is that this is a discretionary remedy. It's not like you are entitled to a building permit if you meet certain criteria. Here it says you may revoke the permit. But, after all, you don't want to have a permit out there when everybody agrees that it was issued in error -- the owner may even agree it's issued in error -- and you've got no way of getting it back. You just got it out there. So there has to be a way of bringing back things that are, to be blunt, mistakes made by the officials. My understanding is that this is a deliberate attempt to deal with those kinds of situations.

It may be that George wants to address some of the policy issues.

Mr Tilson: Mr Chairman, could I stop right on that point? Could I ask a question?

Mr Daigeler: Go right ahead.

Mr Tilson: I understand that there are situations such as mistaken municipal address or legal description, some technical mistake -- I'm sitting here trying to think of an example, whether a building is too close to the lot line or something along that line --

Ms Parrish: Zoning is an example.

Mr Tilson: Yes. And the building inspector says: "Well, sorry, I made a mistake. Unless you go to a committee of adjustment or a land division committee and apply for a minor variance, I'm going to revoke your permit." Then you get into the interesting thing: What happens if the minor variance isn't granted? I'm trying to think of examples that will create a major problem with the owner of the building because of a mistake that was made by the building official. That's why I think the UDI raised the concern.

Your rationale is quite correct. It was a technical goof, just on the face of it -- a typing error. I understand that. But what happens when you get past that point of no return where you start building something improperly that contravenes the zoning or setbacks or something like that? What do you do? The permit's revoked, and what is the owner going to do?

Ms Parrish: The person can always reapply for another permit, but again, this is a discretionary remedy. I think the building officials would probably not revoke a permit where there was a minor problem. This is really just designed to deal with other kinds of issues.

Mr Tilson: Mr Chairman, I guess the question was -- and this is the issue that was raised by the Urban Development Institute. The final sentences of its submission on this are: "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."

It's those two sentences that I would like you to address your comments to, as to whether this is going to create major difficulties with respect to the owner of a property.

Ms Parrish: Clearly there's always a damage claim that's possible, and there are cases in Ontario where people have been successful in suing municipalities because they have erroneously allowed them to build when they should not have done so. So that has occurred and the most famous case is a case called the Grand Restaurant case, where somebody got a permit to build a restaurant and it turned out that they shouldn't have been given a permit to build a restaurant. These cases do occur.

I don't see anything in this bill that would change the liability. All it's saying is that you can revoke the permit and you may be able to revoke the permit so early on that you've minimized the damage that might be incurred.

Mr Tilson: Or later on; that's the problem.

Ms Parrish: Well, the later it goes, the more likely you are to have damages. The earlier you revoke the permit, then the more likely it is that everybody can sort out the problem. The question really is -- and, believe me, I'm sure people don't commit these errors a lot -- when they commit an error they really agonize over it.

On the other hand, should people be able to build, for example, completely outside the zoning bylaws of the municipality or should they be able to build an unsafe building because someone made an error? At some level you have to ask, what is the cost-benefit analysis? This is a discretionary thing. It's "may." They "may" do this.

I think you have to look at the individual circumstances where an error has been done, but it's not in the public interest to allow an unsafe building to be built, or something that is completely beyond any bylaw or expectation that anyone had in a municipality, merely because there's an error. My understanding is you have to look at the circumstances. My understanding is that is the background of this policy amendment, but George may be able to assist you more, having greater familiarity with the policy background.

The Chair: I have several people, and perhaps we might just get all the concerns out and then we can deal with comments from members of the ministry who are here. I have Ms Poole, Mr Marchese and Mr Lessard.

Ms Poole: Just following up on Ms Parrish's comments, perhaps I could ask Mr Wildish, in the event that a building official issued a permit in error and the building was unsafe in some capacity, are there other sections of the building code that would prevent the continuation of that construction?

The Chair: Do you want to get an answer to that one right now?

Ms Poole: Yes, please.

Mr Wildish: The way things have worked in the past is that when a building official noticed, as a building was going up, that something did not comply with the code, he or she was obliged to immediately issue an order that work should be changed or work should stop to take care of that safety matter, because the building code and act, of course, are safety and health type documents. I think that answers your question. Yes, if an error is discovered as the building is going up, then they must take action.

Further, if the building actually conformed to the plans and in fact it was the plans that were in error and the plans were approved, if you will, by the municipality, the chief building official is still obliged to point out: "Yes, there's an error here. It's our fault, but you must stop nevertheless." As already explained by Colleen Parrish, municipalities are sued, municipalities do pay and municipalities do send crews out to correct situations, sometimes at their own expense. The long and the short of it is that it's a health and safety code and act. Everyone is interested in health and safety and that comes first, and following up afterwards to see who is going to pay for what comes second.

Ms Poole: Thank you. That actually has been quite helpful. I guess we have a scenario here where many of the cases, but not all, of clause (a) would be covered in clause (d). For instance, a number of building permits that are revoked might well be done so because of the fact it was mistaken faults or incorrect information which led the permit to be issued in error. But to be issued in error is so open-ended that it does give one pause. If there are other remedies for something being issued in error, such as the incorrect plans were approved and there was a safety element missing, it appears that there is a way to remedy that in that the chief building official can stop construction right in its tracks if that occurs.

But one of the submissions made by UDI was that a building permit is a vital document and it's relied upon by builders, by owners, by mortgagees, and if the information filed is correct, then people have a right to rely on the result, which is the fact that the building permit is issued. So where do they stand if the chief building official in fact decides he made an error that somehow goes beyond mistaken information?


I guess it does lead to a question. If people cannot rely on a building permit that is issued, if they have in good faith filed their information correctly and all the information given to the building official is correct, then what kind of stability is there with the system?

I'm sure most, if not all, chief building officials are fine, upstanding people who never have petulant moods or get angry against a particular individual or builder, or that type. I'm sure it never happens, but what if in that unlikely event it did happen, and then they just say, "Well, it's issued in error; I'm revoking it," without any backup, without any evidence showing that it was in error, unless you tell me that in the regulations there would be something that would describe what "issued in error" means? As it stands, "issued in error" could mean any number of things. Can people really rely on a building permit if it can be revoked for something that nebulous? I guess that's the question I would ask to any of Mr Wildish, Ms Parrish or Mrs Harrington.

Mr Wildish: It's true that a building official could find an error and revoke a permit. The options for the owner then would be to go to the building commission with a grievance, saying: "I have a disagreement with the building official. Here are my reasons why he or she should not have revoked my permit," and get it settled there.

The other one, of course, is they can sue the municipality for damages because of this error, but that can happen, of course, not just here but in other parts of the building. As it's going along, the building official might make a slip, an error in his judgement on the building, and again it could go to the Building Code Commission or it could go to the civil courts. It can and does happen.

Ms Poole: So you're saying that if, God forbid, there was a petulant CBO out there, there is a remedy to it, either through the courts or through the commission.

Mr Wildish: Yes.

Ms Poole: So that will keep them from being petulant.

Ms Harrington: This government would like to correct everything in this province and make perfect people, but we can't.

The Chair: Mr Marchese.

Mr Marchese: I think some of my concerns were answered somewhat. I did have concerns about it, however.

The Chair: But you're relieved now?

Mr Marchese: To some extent relieved.

The Chair: To some extent. Mr Lessard.

Mr Wayne Lessard (Windsor-Walkerville): I had one question with respect to Ms Parrish. I would like to know whether it's your legal opinion that there's anything in that provision that would call a damage claim into question in the event a building permit were revoked because it had been issued in error, because that, I think, is what we're concerned with. That's the statement that was made by the Urban Development Institute, that this provision might call a damage claim into question. I think that's a concern of everyone here.

Ms Parrish: Without having seen what the basis of their opinion is, it's very difficult for me to say. I can't see anything that has significantly changed the law here. There's always been the ability in the past to deal with certain kinds of errors and revocation, and people sue.

The one thing this might do, which I think is probably advantageous, is that it probably limits the period of time in which damages are accruing, because the municipality finds the error quickly and revokes the permit quickly, so you have a shorter period of time and you have fewer people who are able to rely upon goofs by municipalities. Maybe there are some people who've been advantaged by mistakes made and they don't want that to stop, but unless I would see an opinion to the contrary, I don't see that the law is changed. There is an ability to act more quickly than in the past and that seems to me advantageous, since you don't want things to happen simply by fortuitous errors.

On the other hand, this is a discretionary remedy and the building official might very well want to look at all of the factors before he would act. If you're dealing, for example, with a minor variance or some other minor issue, he might not want to act.

Without seeing the actual opinion UDI is relying upon, I'm not sure what is the basis of its argument except sort of an undefined concern that this might somehow change the law, but I see nothing in this act that changes that.

Mr Lessard: Thanks.

Mrs Marland: I share the concerns that are being expressed here. I think that, in fairness, it's not really very good for the government to pass a bill with a section as important as this and then have "if it was issued in error." I guess we don't have to say by whom because only one person issues the building permit, but I just feel there's no protection for the public with a statement like that in there, and I hope that government, whoever it is, and legislation from any of our ministries, is in the best interests of the public. I think this particular clause, 8(10)(d), with that kind of wording, unless it can be expanded upon, simply is not in the interests of the public and goes counter to what our responsibility as legislators is.

I just find it totally unsatisfactory to leave it in in that wording. If you're looking to protect the chief building officials, then come up with the wording that is necessary to do that, but I think it's far too wide open the way it is.

Mr Tilson: I guess I'd just like to echo the concerns of Mr Lessard that what the legal ramifications of this are -- really, you have to rely on something. Maybe Mrs Harrington is correct that if an error has been made, the solution is just to revoke the permit. Maybe there's another alternative, because who are we trying to protect? We're trying to protect the consumer. We're not trying to protect the building inspector. If the building inspector isn't doing his or her job, he or she will be canned. It's as simple as that. That's who we're trying to protect, the consumer, and this does not protect the consumer. If anything, it takes away rights from the consumer.

Mr Lessard is correct. We don't know, because there have been no decisions on this, but it certainly will make the whole issue of liability very dubious. There is no answer at this stage because we don't know, but I think that as we're voting on this subsection, we must keep in mind who we're trying to protect, the building inspector or the consumer.

Ms Harrington: To conclude, we are in fact trying to protect the consumer and Ms Parrish has outlined why this particular drafting is necessary, that it is not redundant and that this is a part of the bill that should be there.


The Chair: I would ask then that we put the motion and remind everyone, as we've had some discussion, that we will be dealing with the Liberal motion. The Conservative and Liberal motions are the same so we will just deal with the motion once. Shall the Liberal amendment to clause 8(10(d) carry?

Mrs Marland: I think we should have a recorded vote on this because I think it's a very significant --

The Chair: We have a request for a recorded vote. I'll put the question again. Shall the amendment to clause 8(10)(d) carry?

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


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


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

The Chair: The amendment is defeated. We will then move on to the Progressive Conservative motion, which is an amendment to subsection 8(11).

Mrs Marland moves that subsection 8(11) of the bill be struck out and the following substituted:

"(11) No person shall construct or demolish a building or cause a building to be constructed or demolished except in accordance with the plans, specifications, documents and any other information on the basis of which a permit was issued or any changes to them authorized by the chief building official or in accordance with this act and the building code."

Do you have some comments you wish to make, Mrs Marland?

Mrs Marland: Yes. This amendment is at the request of the Canadian Bar Association. It suggested that subsections 8(11) and 8(13) be incorporated into a single section, and that is what I have done with this motion.

The Chair: Any further comments on Mrs Marland's amendment?

Ms Poole: Just that this is a very eminently reasonable amendment. It makes the language clear and we'd be pleased to support it.

The Chair: Thank you. Any further comments?

Ms Harrington: Could I ask Ms Marland which two subsections you are putting together?

Mrs Marland: Subsections 8(11) and 8(13).

Ms Harrington: I think I'd like to refer this again to Ms Colleen Parrish with regard to merging these two offences or situations into one.

The Chair: I note for the record that there is a further amendment by the Progressive Conservatives that would remove subsection 8(13), hence bringing the two together.

Ms Harrington: Would you be able to comment as to whether this would be appropriate?

The Chair: Ms Parrish, I think we now know who you are and you needn't repeat. Please go ahead.

Ms Parrish: It's me again. Right now, you have essentially three charging sections in a row. The first one says you will not construct or tear down a building except under the code, the second one says that you won't make a material change without getting the sanction of the chief building official, and the third one, subsection 8(13), says that you won't deviate from your plans and so on. Those could be plans that you filed in subsection (12) or in subsection (11).

Strictly speaking, you've created three different kinds of charges. Just from a simplicity viewpoint, you have to imagine that you're a building inspector in a municipality and you're charging people with offences under this act. It's easier for them to say, "You demolished contrary to subsection (11)," or "You changed your plan contrary to subsection (12)," or "You deviated from your plans or specification contrary to subsection (13)." So it's just that when you're issuing the charges, it's easier to go through it as a little laundry list. You did one, two or three.

I have to say, from reading the drafting, there's nothing wrong with merging it; it's just that you increase the likelihood that people will make errors when they're charging people with offences. As you know, if you make little mistakes of this nature when you're charging people with offences, you're likely to end up with your offences being thrown out. So for the ease for those people who charge people with offences, you try to make it very simple. You say, "This is the first thing you've done that we don't want you to do."

There are subtle differences. For example, subsection (13) really deals with the fact that you deviated from your plan and your plan may have been this thing that you were supposed to file but didn't file under subsection (12). So you're trying to create a sort of order, "Don't do those things under (11), then do this under (12), then under (13)." I don't think, strictly speaking, that putting (11) and (13) is wrong; I'm just telling you that from an on-the-ground viewpoint, you're going to increase the likelihood that you'll get charges which are wrong, and therefore you're going to increase the likelihood that charges will get thrown out, because maybe there's confusion between whether they did this thing under (11) or (13) or they did this under (12).

For an orderly administration of offence provisions, it's easier to have it set out, although I admit it's repetitive from a straight drafting viewpoint. It's repetitive because it's easier to make sure you've got the correct charge.

Mrs Marland: Thank you for that answer, Ms Parrish. It's interesting that the suggestion for this amendment came from the very people who are dealing with the process of charges: the Canadian Bar Association. Obviously, if it gets into court, the flexibility in the wording is something they're working with. I'm simply moving it because the suggestion came from them, and obviously they know much more about the process of provincial statutes in the courts than I do. I just think it's interesting that the answer you've given is counter to what they have suggested. Anyway, who am I to comment on that?

Ms Parrish: If I could just comment, we all know that if you have five lawyers together, you will get eight opinions.

Mrs Marland: Yes, that's right.

Ms Parrish: As I said before, there's nothing wrong with merging them together. My answer is more pragmatic. It's based on my experience as a provincial civil servant in dealing with people who are not lawyers, who lay information. It's simply pragmatic. It's not wrong or right from a legal drafting viewpoint.

It's really just that when you train paralegals or inspectors, you train them that this wrong thing is this, this wrong thing is this and this wrong thing is that. It's just a style thing. It's not a right and wrong thing.

Mrs Marland: You've got me convinced.

The Chair: Now we really know how the practice of law is done.


Mrs Marland: Mr Chairman, I know in this room, with the air conditioning on, we all have difficulty hearing, but I wonder if we could try the air conditioning for a while.

The Chair: Ms Marland, I was discussing that with the clerk earlier, in fact our first week. The problem is Hansard. What happens is not so much that we have difficulty; the sound isn't picked up.

Mrs Marland: What are our chances of another room tomorrow?

The Chair: I can certainly talk with the clerk, although they may not be better than one in three. But we'll see what we can do. We could perhaps open a window. I know sometimes people have concerns then about the traffic, but let's try that. Mr Daigeler is now moving to the window. He is going to open it. There we are. Okay?

Shall subsection 8(11), the amendment, carry? Those opposed?

Motion negatived.

The Chair: I would therefore move that the following amendment would be out of order, given the defeat of subsection 8(11). That concludes amendments to section 8.

Shall section 8 carry? Opposed?

Section 8 agreed to.

Section 9:

The Chair: I believe there is a government motion.

Ms Harrington: Wait till I find it here.

Mrs Marland: I don't think this government is interested in saving trees, because we've got all these amendments on the longest form of paper available in the Legislative Assembly. I think we could do with at least a third less.

Ms Harrington: Thank you very much for your comments with regard to conservation.

Mrs Marland: We could use the shorter pages next time.

Ms Harrington: I guess it's something to do with legal minds like long paper. I'm not sure.

The Chair: Ms Harrington moves that section 9 of the bill be amended by striking out "techniques and systems" in the fourth line and in the sixth and seventh lines and substituting "systems and building designs" in each case.

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

The Chair: Discussion?

Mrs Marland: I'm very happy to support anything that clarifies this bill and makes eminent good sense, and it sounds to me as though this does. Is the reason that the problem exists because we have a whole group of little people in the ministry that all get one section of the bill to do and that's why you get a variance of words that are selected for use and application in different sections?

Ms Harrington: I think this has been in the bill historically, and we're trying to clarify it now.

Mrs Marland: Oh, you're cleaning up those old bills.

Ms Harrington: Yes.

Mrs Marland: Oh, I understand.

The Chair: Further discussion? Shall the government amendment to section 9 carry?

Motion agreed to.

Section 9, as amended, agreed to.

Sections 10 and 11 agreed to.

Section 12:

The Chair: On this one, I have two amendments to subsection 12(1) that are similar in intent if not, as I read quickly, word for word. Are they exactly the same? They seem to be exactly the same. This brings us back to that old phrase about great minds, and I'll just stop there.

Ms Poole: There actually is a difference.

The Chair: Ah, there is a difference.

Ms Poole: The Conservative motion 12(1) just talks about land, and ours talks about "may enter upon land and into buildings." It was a fairly significant change.

The Chair: Perhaps if we begin with Ms Poole and the Liberal amendment, and if there is a meeting of minds as the discussion goes on, it will be so noted. Otherwise, we will deal with two separate amendments. Ms Poole, would you move your amendment, please?

Ms Poole: Yes, Mr Chair. There are only so many times in one day that Liberals and Conservatives can agree without it starting to grate on the nerves, so it's good that we're finding differences.

The Chair: Ms Poole moves that subsection 12(1) of the bill be struck out and the following substituted:


"(1) An inspector may enter upon land and into buildings at any reasonable time without a warrant for the purpose of,

"(a) inspecting the building or site in respect of which a permit is issued or an application for a permit is made; or

"(b) determining if a permit is required to be issued."

Ms Poole: If I might give a brief explanation, this amendment is very similar, in fact I think identical, to what was in Bill 103, the previous Liberal bill that didn't quite make it through before the September 1990 election. It has been quite a very popular one with the municipalities. They have told us, both through some of the groups such as TACBOC and also through municipal representatives on council, that they would like to have the ability for the inspector to be able to determine whether a permit is required to be issued and they see it as a real shortcoming that this particular section was removed from Bill 112.

Perhaps for members' clarification, I would let you know that clause 12(1)(a) is in Bill 112 and the addition we're talking about is clause (b). That line, "determining if a permit is required to be issued," is no longer in Bill 112, although it was in Bill 103. With respect to the fact that Mrs Harrington said earlier that she really doesn't want to step on municipalities' toes and wants to give them discretion, I think this is an ideal opportunity for allowing the municipality to have that discretion to enter to determine whether indeed a permit is ever required. Why make people go through hoops and loops and a whole set of bureaucracy if in the opinion of the building inspector the permit is not even required to be issued?

Mrs Marland: First of all, let me say on behalf of the PC caucus that we agree entirely that the wording of the Liberal amendment is far more correct in that first line than our own because obviously it makes sense that you have to enter upon land and into buildings if those buildings exist, so we certainly concede that.

Ms Poole: So we're agreeing again?

Mrs Marland: We're only agreeing on that line.

The Chair: There's a generosity of spirit here that overwhelms.

Mrs Marland: Winning at the Olympics gives you such a different perspective on life.

Mr Daigeler: That was your son, Margaret.

Mrs Marland: That's true.

We know when a permit is required, so I'm not quite clear what it is that is really at question here. I know it's TACBOC's requirement to add "determining if a permit is required to be issued" from the previous legislation, but frankly I'm interested that this was in the previous legislation. We must be looking at a situation where some construction is going on onsite or to an existing building that is so minor in nature that it may not require a permit. Is that what we're looking at? The possibility is that they have to obviously be on the land, in the building, to make that decision about whether a permit is required, but as I said earlier, it's such a small area and minor in nature that a permit isn't required.


Ms Poole: Just before Mrs Harrington responds, I want to make one clarification for Mrs Marland, that clause 12(1)(b) was in the draft legislation, like Bill 103 that the Liberals had introduced, but it isn't in the current legislation.

Mrs Marland: I understand that.

Ms Poole: We're basically dealing with three pieces, the existing legislation, the proposed legislation for Bill 103 that did not pass before the change in government and then Bill 112. Clause 12(1)(b), just for the information of all members, was in Bill 103, but it wasn't in the previous legislation and it isn't in Bill 112. That makes things as clear as mud.

Mrs Marland: There must be a very good reason for that and I'm looking forward to hearing the reason, because I don't have the Liberal Bill 103 memorized.

The Chair: Neither does the Chair. Ms Harrington, and then I have Mr Lessard.

Ms Harrington: I'd like to respond briefly, and I probably --

Mr Lessard: Could I ask a couple of questions that Mrs Harrington might include in her response?

The Chair: All right.

Mr Lessard: One is that I'd like to know whether any of the submissions that were made requested that this provision be added. You said it was in the Liberal bill, but I don't recall anybody referring to this. The other thing I wonder is whether this amendment may be contrary to any provisions of the Charter of Rights and whether this might be covered by the changes we've made to ease the ability of building inspectors to obtain warrants from justices of the peace in cases where they think there might be a contravention of the building code.

Ms Harrington: I'd like to make a few points and then I would also like to refer to our legal counsel again, just to make sure that I'm exactly right.

First of all, the change from Bill 103 to Bill 112 in deleting (b) has several legal surrounding points. One of them is that with the proposed legislation with regard to apartments in houses, we want to have the same ability to enter, and what we are doing is having the exact same ability in both of these pieces of legislation.

I'd also like to point out -- and I'd also like to hear from legal counsel on this -- that there is some difficulty with trying to prosecute under this clause (b) and that there is a problem with regard to having this contrary to the charter. These were some of the issues around the decision to take out (b). Could I ask Ms Parrish to clarify.

The Chair: While Ms Parrish is coming up to the table, Mrs Marland.

Mrs Marland: I'm just thinking as I listen to your reply that this probably -- let me give you an example, and tell me if this would be a remedy to that problem. Where you have the conversion of single-family homes into boarding houses, and you have, as I mentioned earlier last week, as in my own riding, a single-family home where we think the basement has been divided into four rooms or the living and dining rooms have been divided into three rooms -- we actually have examples of that, where 21 people live in a single-family home in an area in my riding. Part of the problem for the municipality has been that it hasn't -- I know the other section that addresses the right of entry. I've forgotten which section it is right now, but it's the one where you made the changes that we requested. Would this amendment to section 12 not give us the authority we need for inspection to see if a permit is required? Would that not help the concern those municipalities --

Ms Harrington: That's the intent, I believe, of clause (b) of this amendment.

Mrs Marland: Of our amendment, but what I'm saying is, in the other part of the bill you did address some of the concerns of our municipality, as an example, which will become more and more a concern as more and more apartments, basement apartments and so forth, accessory apartments, are built around the province. It may well be that if we're going to have accessory apartments and basement apartments built, the government may want this option of inspection to determine whether a permit is required, because you wouldn't know until you got inside the building the extent of the work that was being done.

Ms Harrington: I'd like our legal counsel to address whether or not that can in fact be done.

Ms Parrish: The Charter of Rights and Freedoms requires a search warrant in two kinds of cases. The first case is where you are dealing with a dwelling unit and the charter provides a higher protection to dwelling units. In general, if you're going to enter a dwelling unit for any purpose, to inspect or to lay a charge, you need a search warrant, unless the residents consent, and in the vast majority of cases where you're dealing with inadequate conditions and the individuals involved are not afraid of being thrown out for zoning reasons, they'll simply consent.

The other situation the charter will protect is a situation where there is an offence. Finding that you should have had a building permit and did not is an offence, and that's why you cannot have warrantless entry. You have to have a search warrant because not having a permit is an offence and the reason you're going there is because there's an offence.

There are other ways of dealing with the issue. The building official can issue an order that a permit should be issued and then the person in the building can simply respond. People can consent for you to go on the property, and in many cases they do consent, especially if the inspector comes and explains what he or she is looking for.

But the Charter of Rights and Freedom says that you must have a search warrant. The effect of the case law under the charter is that if you are going to do this, where you're dealing with a dwelling unit or you're dealing with an offence, you need a search warrant and you cannot give people warrantless entry.

They can have warrantless entry under (a) because they're not inspecting for an offence. I should point out that they can't use (a) if they have reasonable and probable grounds to believe that there's an offence; they'd better get a search warrant. But if all they're doing is inspecting for something else and there's no offence, they can use (a). They can use 12(1)(a), which is inspecting to see, where somebody has already had a permit issued and there's an application for a permit made and you're trying to find out what conditions you might be applying to that permit. But because (b) is an offence, you need a search warrant, unless there's consent to entry.

If a municipality attempted to use this warrant, it would probably just have its offences all struck down anyway. The question is whether we should be authorizing what the charter will not support. The view of the ministry is that we should not be authorizing in our legislation intrusions which the Charter of Rights and Freedoms would not justify.

Mrs Marland: This is very interesting, because I'm listening to Ms Parrish's response as though 12(1)(a) exists, and 12(1)(a) doesn't exist unless we pass this amendment. Aren't we getting into a chicken and egg situation here, because we're talking about when warrantless entry would be permitted, but to get a search warrant, you have to go before a justice of the peace, I think. Is that correct?

Ms Parrish: Yes, it's correct.


Mrs Marland: You have to have enough evidence to convince the justice of the peace that you are entitled to a warrant. How do you get the evidence if you can't go in? The kinds of situations that we have had in this particular subdivision in my riding are horrendous. They are totally unjust to the people who are living in those buildings. The people are at risk.

The problem is that we have not had the power of the warrantless inspection. You go to the JP and say, "We think there's a fire code violation here; we know there's probably a building code violation," and it's not always easy to get that warrant. In the meantime, the people are actually at peril in those buildings, but if you don't have the evidence to prove it -- I mean, there are times when I think the Charter of Rights and Freedoms has really made a big botch of protecting all of us in the long run.

It's not as though the municipalities are looking for work, Madam Parliamentary Assistant. I can assure you that in the city of Mississauga, the building inspectors are not looking to go poking around in somebody's private dwelling unit for something to do. We don't have enough staff to enforce the bylaws and building code that exist today without looking for extra work, but where we've had these situations, I think clause 12(1)(b) is very important. I don't see that we have that option under subsection 12(1).

The Chair: Ms Parrish.

Mrs Marland: Ms Parrish is mouthing the answer to somebody.

Ms Parrish: I apologize. I wasn't sure if you were going to call on me.

I'd start out by saying that when I referred to the part in clause 12(1)(a), that is the same language that is currently in subsection 12(1). That's why I said the (a) part was okay, because that's what's already there. That's just a brief explanation.

I would point out that there are provisions in both the fire code and the building code to deal with emergency situations. Where you think people are at peril of their lives, there are special provisions, and that's very consistent with the charter, because the case law in the charter says you intrude to the extent that it's necessary. Obviously, if you're dealing with people who might die, there's a higher intrusion that's justified under the law, and there are provisions both here and in the fire code that deal with situations of imminent danger.

In this section, we're not dealing with imminent danger; we're simply dealing with a situation, for example, where somebody is building a dormer window on his house and somebody says, "Oh gosh, maybe that person should have had a building permit." That's certainly an issue. The question is, should a municipal official have the right to enter your house to find that information out without a warrant?

What this act is saying is that if you want to enter people's dwelling units and they will not consent, you must get a warrant, and if you want to charge people with offences and enter their property, you must get a warrant. That's because the case law in this area attempts to protect privacy and people's rights when faced with offences. It's a balance. I agree that people might disagree as to where the balance is. This is where the balance is in this bill.

Ms Poole: I have several points. First, Mr Lessard said he didn't recall any presenters bringing this up. It was actually a fairly major part of the Toronto Area Chief Building Officials Committee's presentation. I might also add that I have met with a number of municipal officials from various municipalities concerning accessory apartments and, without exception, all of them have brought up this particular issue of the municipality feeling its hands are tied because it can't go in to see if there is a problem.

As Mrs Marland said, it's a catch-22 situation, where they don't know whether a permit is required to be issued because they can't go in to see it and they can't get a search warrant to go in to see it unless they have evidence that indeed it's necessary, so it puts the municipalities into a particular dilemma. I think probably you'd find quite a few of them would like this kind of protection.

Might I ask if we do indeed have a legal opinion stating that subsection 1(b) would be in contravention of the charter? I understand your comment, Ms Parrish, about the dwelling unit and about the offence, but I don't know whether subsection (b) relates to an offence unless they go in and find out that indeed a building permit is required to be issued and at that stage the party refuses to make application.

Is there an actual legal opinion within the ministry that cites that this type of provision should've been removed from Bill 103 and the Liberal amendment to Bill 112 should not be accepted because it is contravening the charter?

Ms Parrish: I think you can appreciate, Ms Poole, that I'm not in a position to breach a solicitor-client relationship between myself and the Ministry of Housing as to what legal advice has been given to the Ministry of Housing. I would just comment, and I realize I'm going to make a comment which is probably dangerous to my life, but these issues --

The Chair: Not before this committee.

Ms Poole: I don't feel that strongly about it.

Ms Parrish: These issues were canvassed very heavily during the Rent Control Act, the same issues that arose in the Rent Control Act about the powers to enter for the purposes of enforcing the Rent Control Act. It's the same issue, the issue around dwelling units and offences being committed, and there were extensive changes made as a result. These are very similar.

I can only say that much in terms of -- as you know, I'm not the lawyer assigned to this act so I'd have to go back and look at the files. In any event, I can't breach that solicitor-client privilege.

I would say that, in general, warrantless entry is not permitted under any statute and I don't see it. It's not under the Rent Control Act. It's not under any of the apartments and housing legislation, because recent cases have shown that those provisions will not stand up, in particular as they are related to dwelling units, and there are quite a few cases that deal with dwelling units.

The Chair: I have Ms Harrington, Mr Tilson and Ms Marland.

Ms Harrington: Very briefly, Mr Wildish would like to point out section 16 and how that applies to what we are discussing right now.

Mr Wildish: I'd just like to clarify something, if I may. Under the old or current act, you always had to have a warrant to enter a dwelling, as Ms Parrish has outlined. Under the proposed Bill 112, you still have to have a warrant to get into a dwelling so that the additional entry here is very limited. It applies mostly to industrial or commercial buildings, or a building like this.

What it does is to prevent an inspector from wandering into this room, for example, saying he'd like to look around here and see if a permit's required, or going into some building where he may even see some rubble coming out or some lumber going in. Perhaps it's a development lab or some secret kind of place where they wouldn't want someone wandering around, so they've tried to put some protection here to protect the occupant's rights.

Mr Tilson: My question is to Mr Wildish, Ms Parrish or Ms Harrington. Without this amendment that's before us, how will subsection 10(1) be enforced? How will you know?

Subsection 10(1), if none of you has your bill present, says, "Even though no construction is proposed, no person shall change the use of a building or part of a building which would result in an increase in hazard as determined under the building code unless a permit has been issued by the chief building official."

This is of course what TACBOC says. They are concerned that --

Ms Harrington: I will ask Mr Wildish to respond.


Mr Wildish: Under subsection 10(1), which is the change-of-use permit section, an owner is obliged to apply for a permit. When he or she applies for a permit, then he or she has opened the door to inspection so that a building official can get all the information that's required to issue the permit.

It's just the same as with new construction; when you apply for a permit for new construction, you invite the permit process and inspection process to start. So for someone who wants a permit, the change of use would be inviting that inspection to take place. If they refused that, of course, the building official would refuse to issue a permit.

Mr Tilson: Except that the proposed amendment to clause 12(1)(b) talks about determining if a permit is required to be issued; that's the distinction between subsection 12(1) and the amendment. Subsection 12(1) in the bill doesn't have that, so therefore if I'm a building inspector, how do I know whether or not a permit is to be issued to comply with subsection 10(1)? I don't have any authority. That's the reason for the amendment. Perhaps it's a political question. Maybe I should direct it to Ms Harrington.

Mr Wildish: To get a warrant, you'd need some grounds for suspecting that some offence has been committed there. You would have to have some kind of evidence that a different kind of use is going on. Maybe the whole building is shaking because of the machinery operating or there's something in there that's giving you an indication that, yes, a change of use has taken place and you want a warrant to get in.

Mr Tilson: Mr Wildish, we're talking about inspection; that's what section 12 does. I appreciate what you're saying about warrants, but section 12 deals with inspections. Section 12 says that an inspector may enter without a warrant. The Liberal amendment to section 12 says that you can enter without a warrant for the purpose of determining if a permit is required to be issued. There's no section in the bill that says that and that's why the amendment is there. If subsection 10(1) is going to have any teeth at all, then don't you have to have some sort of provision that allows an inspector to go in to determine if a permit is required to be issued?

Mr Wildish: That's what I was saying. You'd have to have some grounds to obtain a warrant to get in, as with new construction. If you suspect new construction is taking place, your grounds might very well be that you see construction material going in, rubble coming out, your jackhammer is running and those are the reasons for your belief that construction is taking place.

Mr Tilson: Under section 10, there's no construction taking place.

Mr Wildish: That's right. Under section 10, you would not have the same kinds of indications of a breach; you'd be looking for something else. It might be, though, for example, that you see printing equipment or printing papers going in; you suspect the fellow is running a printing operation in a building that used to be an ordinary office. You'd have to have some grounds to obtain your warrant to get in.

Mr Tilson: I can't add to my comments, Mr Chairman.

Mrs Marland: It is becoming far more evident what an important amendment this is now that I see it when it's being applied and cross-referenced to other sections in this bill before us today.

Clause 16(1)(b) of Bill 112 says, "the delay necessary to obtain a warrant or the consent of the occupier would result in an immediate danger to the health or safety of any person." That would be a reason that the inspector may enter without a warrant.

It also says, under clause 16(1)(d), "the requirements of subsection (2) are met and the entry is necessary either to remove a building or restore a site under subsection 8(6) or to remove an unsafe condition under clause 15(5)(b)."

I've just read clause 15(5)(b) and I know now why lawyers make so much money interpreting provincial statutes, because when you go back and forth between sections, it really does get to be a little confusing. But to refer to 15(5)(b) as "to remove an unsafe condition under clause 15(5)(b)," 15(5)(b) says, "may cause the building to be renovated, repaired or demolished to remove the unsafe condition." But that's all after the fact.

What I'm saying to you is that's after you know that certain conditions exist. What we are saying is that based on the experience of municipalities around this province, and that's before the legislation that's going to be tabled this fall to permit accessory apartments within and without a single-family unit, we have an existing problem today.

Now that I recall -- and I say this to the Liberal members of this committee -- we were happy that Bill 103 was drafted in such a way as to address the concerns of a municipality like ours, which, believe it or not, had it confirmed over and over again to it that it's a chicken-and-egg or catch-22, or whatever colloquialism we want to use here, situation.

It's even more ironical that the one particular subdivision that has had the most court cases rendered against buildings in that subdivision is right in my riding, so I know at first hand what it is that was trying to be achieved here on behalf of municipalities. Nobody is stronger in defending property rights and privacy than I am. That's one of the reasons we had a lot of concerns with Bill 121. Isn't it ironical that when we come to rent control legislation it's okay to go and seize all the information from the property owner or any other evidence that's needed without a warrant? We've got a double standard here.

We've got examples where, whatever the legal term is, to go in and seize evidence is okay but in the circumstance of "immediate danger to the health or safety of any person." How do you know that the person may be in immediate danger to his or her health or safety unless you can get inside the building?

I want to tell you that in these examples of which I have firsthand experience, Mississauga went to court so many times because the individual, and it was one particular individual for a number of houses, was getting away with murder, converting these homes and claiming that the municipality had no right to send its inspectors in.

When we say, "What evidence do you have on the outside that you should have a warrant issued?" we don't have any noise, I say, Mr Wildish, with respect, we don't have the noise of equipment shaking a building. We just know that maybe a tenant who has left has described to the municipality what horrific situation exists in that building.

Maybe you've got a tenant who's willing to go before the justice of the peace and say, "Look, there are 21 people living in this single-family house." I'm talking about a single-family house that's about 1,800 square feet. It exists today in my riding. We can quote the Charter of Rights and Freedoms. As far as I'm concerned, the right to protection of human beings is not available to those poor people who are paying $50 to $100 a week for a third of a living room/dining room that's divided into a cubicle for them. We're saying without this amendment to 12(1), with the wording in clause 12(1)(b), they can't even determine whether a permit should be issued because they can't get in without a warrant.

I hear very clearly Ms Parrish's argument about warrantless entry, but I say to you again we do not have 200 building inspectors looking to make warrantless entries. The city of Mississauga, which is a city of 500,000 people, has the firsthand example and experience that I'm giving you, which I now recall very clearly was being addressed by Bill 103. When I realize that's the amendment that's before us now, I see very clearly why we were asking for it.


If you choose to ignore the reality of warrantless entries, if you're concerned about a warrantless entry, you'd be better to have a definition in the bill as to who can make a warrantless entry. The wording here says "an inspector." Maybe you want to have somebody higher up in terms of a building official representative of a municipality.

If you're worried about who it is who is going to make those warrantless entries or that they may be done indiscriminately, then lay a very fine line down about who is entitled on behalf of a municipality to make a warrantless entry, but at least give the option of the municipality to make a warrantless entry for the protection of the public.

I would love to take this entire committee out to see the kind of building I'm talking about, which is a total violation of the rights of individual human beings who have to live there. I don't think we're asking too much to say to you come and see where people live and where we cannot get warrants for inspection, even though we suspect fire code violations and building code violations. I would have thought the ministry must know of these examples where the charges have gone completely through court based on the concerns of the municipality.

Tell me this. Is it more or less the same ministry staff who drafted 103 who have drafted 112, or does the Ministry of Housing have a whole lot of new staff? I'm not talking about the minister's staff.

Ms Harrington: The buildings department is separate.

Mrs Marland: The buildings department is separate. Bill 103 was drafted probably three years ago?

Ms Poole: I think it was December 1989.

Mrs Marland: Surely we don't have the whole buildings staff in the ministry changed. Mr Wildish, can you tell us why the change in thinking? Why was it in 103 and not in 112? Who has made that decision?

Ms Harrington: I think we have had a very good discussion about some of the various concerns and options and certainly the problems in Mississauga, but I think what I tried to point out at the beginning and had Ms Parrish explain in a little more technical and legal detail is that it would be difficult to prosecute and it would also be contrary to the charter. I'm wondering --

Mrs Marland: No, you're not answering my question, with respect. My question is very clear. Somebody on the ministry staff drafted Bill 103 and included this provision that we're asking for now. Somebody has drafted Bill 112 without the provision. I want to know where we changed boats in midstream.

Mr Tilson: Where did that person go?

Mrs Marland: Why was it in 103 and not in 112? Did we get a different legal opinion along the way? While we're on that question, different legal opinions, maybe this committee needs its own lawyer to give us a legal opinion --

Interjection: No more lawyers.

The Chair: Order, please.

Ms Harrington: I don't want to go into more detail, but Mr Wildish has explained to me that what you're explaining as what you think was in Bill 103 is not. He has a copy of it here. But I don't want to go back into that. I think we have to deal with what's before us, please.

Mrs Marland: That's fair enough. If he can tell us that it wasn't in 103, then I think we need to know that.

Ms Harrington: You did have another question that I wanted to --

Mrs Marland: Why can't we answer that question?

Ms Harrington: If you would like to go into that kind of detail, yes.

Mrs Marland: I just want to know. If it wasn't in 103, what was in 103?

Ms Harrington: Would you care to explain?

Mr Wildish: Yes.

Mrs Marland: Thank you.

Mr Wildish: The particular line you're referring to, "Determining if a permit is required to be issued," that sort of line was in 103, but you have to read that in conjunction with a section that comes later. In 103, that was section 16.

Mrs Marland: Right.

Mr Wildish: It's only the one sentence. I'll just read it to you. "Despite section 12" -- which is the one you're concerned with -- "an inspector shall not enter or remain in any room or place actually being used as a dwelling unit except with consent of the occupier or under authority of a warrant issued under this act." So under 103 an inspector couldn't get into a dwelling unit without a warrant. This one is the same; you can't get into a dwelling unit without a warrant. That remains.

Mrs Marland: So we didn't have it in 103 then, Dianne.

Mr Wildish: As Ms Parrish was outlining, it's always been a protection we've had for home occupiers.

The Chair: I wonder if the Chair might just note that we are dealing with Bill 112, and perhaps we could keep our focus on that, whatever may or may not have been in Bill 103. I don't want to limit the comments here, but we have had a fairly extensive discussion. I think the points are on the table.

Are there any further comments on 12? Otherwise, I think I would like to move the amendment. Could we put the amendment then?

Mrs Marland: If we're going to vote on this amendment, then we have to have another recorded vote.

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


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


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

The Chair: I would then note that the Conservative motion would be out of order.

Mrs Marland: It was another good motion.

The Chair: Thank you for that explanation and clarification.

Sections 12 to 14, inclusive, agreed to.

Section 15:

The Chair: I have then a government motion on section 15.

Ms Harrington moves that subsection 15(2) of the bill be amended by adding "or" at the end of clause (a) and by striking out clause (c).

Ms Harrington: The reason for this amendment: Clause 15(2)(c) would extend the scope of the Building Code Act to include -- I'm just wondering if this is the one Mr Lessard wanted to move.

Mr Lessard: The cat's out of the bag now.

Ms Harrington: Oh, dear. I'm sorry.

It would extend the scope of the Building Code Act to include damage to neighbouring property. The act has traditionally been silent on this issue and has focused on hazards to persons. This is an important issue that has broad implications for regulation of buildings in general, and rather than introduce this concept in a limited way in this section, it is proposed to withdraw it at this time in favour of subsequent broader treatment in a future act amendment.

The other proposed extensions to the definitions of "unsafe" will cover almost all situations that are likely to arise in practice regarding the effects of a deteriorating building on any neighbouring property.


The Chair: Are there any other comments on this? Mrs Marland.

Mrs Marland: I wonder how long we'll have to wait for the next go through the building code. What you're saying is that you really want more time to look at how to address the concern of neighbouring buildings or land and that's why you're withdrawing clause 15(2)(c).

Ms Harrington: Would you like to comment a little bit further on that?

Mr Wildish: Yes, the original amendment was drawn up, as you know, dealing with neighbouring persons and with neighbouring property. Somebody who's going to damage a neighbouring person, someone walking by, a passerby, will of course also affect neighbouring properties. So the amendment that covers damage to a passerby, a neighbouring person, will deal with 99% of the cases we can think of.

The idea of damage to property, though, is also included, as you know, and that's the one that's being removed, because the act has been particularly silent about the effect of new construction on existing buildings.

It's a large issue that has to be dealt with in the act. It should be dealt with. It's getting more important all the time and this particular one deals with only a small part of that. Hence, the explanation given there was, as you know, that rather than deal piecemeal with this, we should deal with it in a full way.

I'll give you an idea of what's involved here so you can understand this. It might be this: You could have a brand-new building built under the building code, perfectly valid in every respect. It goes up and when it's built -- it's a high-rise building, let us say -- it establishes wind patterns or reflections from the sun or other kinds of effects on a neighbouring building which also meets all code requirements.

You might have the brand-new building declared unsafe because it's harming the neighbouring property. You might have the neighbouring property that exists -- let's say it was a small building on which the snow was swirling off the top of the big building and landing on the little building, making it unsafe. You might have that one declared unsafe as well. There are a lot of implications here that might arise, a lot of grief that might come for extremely little gain at this time.

So the suggestion was, remove this particular one at this time. We'll pick up 99% of what we're after with the damage to persons and we can address the idea of the whole concept of one building's effect on neighbouring buildings in a much more rigorous review of the act in this respect.

Mrs Marland: What is it, seven years since we reviewed this act, or nine years?

Ms Harrington: It's been 17.

Mr Wildish: It was in 1975.

Mrs Marland: I think that clause 15(2)(c) is actually probably a very important part to recognize not only the examples that you've just given, but I think as long as it's in there, perhaps the Building Code Act is making progress.

It's not too comforting to think that we might have to wait another 17 years to look at a condition that could result in damage to neighbouring buildings or land. I mean, it's "an important issue that has broad implications for regulation of buildings in general." Yes, it does. "Rather than introduce this concept in a limited way in this section," you'd rather withdraw it. The fact that it has broad implications on regulations of buildings in general is probably a good thing. So are you a little chicken-hearted or what?

Interjection: I'm sorry I brought it up.

Ms Harrington: What we are saying is that we recognize this, which has not been recognized in the bill in the past, and we do want to deal with it. I think what you're saying is that it's going to be a long time if you leave it till another piece of legislation. I think that's your main concern.

Mrs Marland: Well, if it's 17 years since we've done it.

Ms Harrington: I recall on second reading in the House, my statement to the House was that there are going to be -- in other words, it's not going to be another 17 years. This is an area where things are changing rapidly. In the decade ahead, there are going to be many changes with regard to buildings. We have to keep up with them, encourage innovation and make sure these buildings are safe and built in ways that correspond to what the public demands, which means conservation and environmental concerns as well.

If that's your concern, then I think I did address it at second reading. There are going to be more changes, but you can't get that guarantee until it happens certainly.

Mrs Marland: What you're saying is if you leave 15(2)(c) in, it opens up a big can of worms that you're not prepared or ready to address yet through regulations. Is that what you're saying, that you're just not ready to deal with what this could evolve into?

Ms Harrington: It was our legal adviser who said that it would be better to look at the broader picture than to deal with it piecemeal.

Mrs Marland: Which legal adviser is that?

Ms Harrington: Mr Jeffrey Levitt.

Mrs Marland: Is he on the ministry staff?

Ms Harrington: Yes.

Mrs Marland: So we could get his opinion on some other things in here if we wanted to?

Ms Harrington: Well, he was here.

Mrs Marland: Oh, I see. Okay. Thanks. I'm sorry you've got cold feet, Madam Parliamentary Assistant.

Ms Harrington: That's not like us, is it?

The Chair: This room has been quite warm.

Mrs Marland: I wish I could say it's not like you, but you've had cold feet all the way, since you've been backpedalling from the Agenda for People which you campaigned on.

Mr Tilson: Well said. You woke those people up over there.

The Chair: Let the Chair intervene immediately and move to Mrs O'Neill.

Mr Tilson: They are listening to what you're saying.


The Chair: There are a number of metaphors roaming around there, but we'll turn now to Mrs O'Neill.

Mrs Yvonne O'Neill (Ottawa-Rideau): I feel quite strongly about this. I find it's very strange. We have something the act's been silent on. Anybody who has been around this Legislature for even a short time knows how difficult it is, first of all, to get a piece of legislation on the agenda, let alone to reopen a piece of legislation that has been passed within any given term. So I think it's pie in the sky to say we're going to go back at this. I really don't believe it.

In any case, we've got inspectors out there in all different sizes of communities in this province and they're getting all different kinds of representations coming before their different councils, which they're responsible for. Many of them have to do with land now, with all the new environmental concerns.

Second, I'm not convinced that the condition of a building that's damaging or damaged is not also having a spinoff effect about being unsafe for other people who happen to be using that building. I'm not convinced that extends into the neighbouring building. The people in the neighbouring building would be under clause (b), but I may be able to be convinced of that.

I'd like to have an answer on the proposed extensions to the definition of "unsafe," because I've obviously missed something. Could you review my mind with what that last paragraph is talking about?


Mr Wildish: The last paragraph of the definition?

Mrs O'Neill: No, of the reasons that you are removing --

The Chair: The government motion, the reason for amendment. The third paragraph.

Mrs O'Neill: Yes. What does that mean?

Mr Wildish: The one that says "The other proposed extensions to the definition of `unsafe' will cover...."?

Mrs O'Neill: Yes.

Mr Wildish: It's very difficult. In fact I can't think of a situation where a building is in bad shape for whatever reason -- let's say it's got very poor mortar at the top of the parapet wall, a brick's liable to fall off and hit someone or fly off and hit someone in the neighbourhood, or it's got a loose sign that's waving in the breeze and might fly off and hit someone in the street -- there are examples of damage to people, but I'm hard-pressed to think of an example where that condition under which it could be declared unsafe wouldn't deal with damage to property. In other words, the building is in such bad shape that a sign could fly off and hit somebody; it could also damage the property, but you'll catch it under damaging a person. Do you understand what I'm getting at?

Mrs O'Neill: I'm having a lot of difficulty. I guess I have not made myself clear. Are you trying to allay my fears that the safety of persons in (b) would cover what would have been in (c)? Is that what you're trying to do right now?

Mr Wildish: Yes.

Mrs O'Neill: Okay. As I said, I may be convinced on that. Would you please tell me what you're saying in the third paragraph and then I have one further question.

The Chair: Under the reason for omitting it?

Mrs O'Neill: Yes, the proposed extension to the definition of "unsafe." Is that a regulation where the definition's going to be, or an amendment in this act?

Mr Wildish: That sentence is referring to what I just talked about, that if a building is in bad enough shape to hurt a passerby because of a brick or a beam falling off, whatever, that includes all the other.

Mrs O'Neill: Are you saying that's in (b), the proposed extension of the definition of "unsafe"? Where is this proposed extension to the definition of "unsafe"?

Mr Wildish: Yes, it's in (b). It's the second half of (b) that says "persons outside the building or persons whose access to the building has not been reasonably prevented." It's those persons outside the building. That's the addition.

Mrs O'Neill: I say I have difficulty with this legal opinion, but I've had difficulty with legal opinions before. Is there any chance of getting this through in regulations which, I understand, are not yet complete, or does this have to be in the act? You're the only people who know how broad-ranging (c) was or how broad-ranging it could become in interpretation. There has to be a reason because it has a new profile, particularly, as I've said, neighbouring land, which is a new profile in the 1980s and 1990s.

So I want to go to whether it be handled in regulations first. I've heard the explanation of why you don't want to do it and I guess you're not going to give us any more information than that. I have to be satisfied with it, but it's very, very difficult to say you can't tell us what would happen. You're trying to tell me that it's already covered.

You had it in here, but legal opinion tells you that it's too broad, so you've got to take it out. It's very difficult for me to see that it can be concluded in (a) and (b), but (c) is too broad. Try to put that through your head. It's very difficult to take that explanation at face value, but that's the legal explanation legal experts have given you.

Could you make the regulations for (a) and (b) include this? That is what I'm asking. I'm thinking about the municipal officials out there who have all kinds of advocates now for different things, particularly if there's a multiple-use building going up, a multiple housing unit going up or even, in some cases, a single-family home.

Mr Wildish: Yes. Certainly (c) was added in the first place because it was thought it definitely adds a little bit more. It wasn't put in for nothing. We definitely thought it adds a little bit more in terms of damage to neighbouring buildings or land as opposed to people.

As I explained, though, it didn't add very much and I'm hard-pressed to think of an example to give you where it would not be picked up under clause 15(2)(b). However, since it was put into the first draft of Bill 112, these other problems have been identified, which I mentioned, where we might find we get far more grief from this by trying to define these situations than we do gain.

It would be much better perhaps to address this and take a proper look at the whole problem of new buildings affecting existing buildings, which, as I mentioned, the act is silent on. We haven't addressed that. The act has not addressed that in the past. It should be addressed, no doubt. As Ms Harrington indicated, we'll have to do that and come forward as soon as possible with some --

Mrs O'Neill: So it can't be done in regulations. Is that the answer?

Mr Wildish: Yes. We don't have a provision for this. It's defined here in the act.

Mrs O'Neill: It could not be included under the regulations for (a) and (b)?

Mr Wildish: There's no regulation for that defined in the act itself.

Mrs O'Neill: So it's a lack of definition. I think you're going to find that the municipalities are going to be very disappointed that you pulled this out.

Mr Wildish: If there is a portion of this that is not defined here, of course it could be defined under one of our motions in the regulations. Does that help you at all? The term "unsafe" is defined here, as of course that's what it's all about. But if some part of this "unsafe" uses a word that's not defined here, it could be defined under one of our motions in the regulations.

Mrs O'Neill: I guess it's the land part that is my main concern, although I have others about the buildings. Land has a new emphasis and the way in which things happen regarding the relationship of buildings on pieces of land seems to have a whole lot of new profile. I'll leave it, because I think you've done the best you can in answering my questions.

The Chair: I have Mr Lessard and Ms Poole. I'll simply note that prior to beginning today we agreed we would complete our hearings today at 5 o'clock, but I would like us to complete our discussion of this item. We'll move to Mr Lessard.

Mr Lessard: I'll be brief and just indicate that I'm going to be supporting this motion.

Ms Poole: I too will be brief. I wish to make two points. The first is just kind of an aside. Mrs Harrington has referred several times to the act not being amended for 17 years. It is my understanding, and I certainly stand to be corrected, that this legislation was amended in 1983, so indeed it's only been a mere nine years since it was last amended. That's just for your information.

The other point is that in an effort to be helpful to the committee, I would like to give an example that recently occurred in our neighbourhood that might explain why clause (c) could be interpreted too liberally and do things you don't intend to do.

We had a big fire on Banff Road. A brand-new building, a town house, was gutted. My neighbour's house was right next to this building. Her house was slightly lower than the neighbouring building, so every time it rained, all the soot from the fire would run from the higher roof on to her house and it would cause damage to the neighbouring building in that her white siding was all covered with soot. One could say yes, that was damage, but it really doesn't render the building beside it unsafe. It could be rendered unsafe for other reasons. You could have instances like that, where it would create damage but not to such an extent that it's unsafe.

I'm not thinking it's all that bad an idea to take a second look at that and put it in more specific terms, because damage has a very wide connotation and you could have a lot of very frivolous claims under this unless it is made more specific.


Ms Poole: That's right. I just had to tell my little story.

The Chair: Okay. Could I then put the government motion and ask, shall the government motion to subsection 15(2) carry? Opposed?

Motion agreed to.

Section 15, as amended, agreed to.

The Chair: Just because we're on a bit of roll and there are no amendments to 16, shall section 16 carry?

Section 16 agreed to.

The Chair: Okay. Now, just a couple of notes. We'll be meeting in committee room 1 tomorrow.

Mrs Marland: Is it air-conditioned?

The Chair: It is our hope that we will be somewhat cooler there. So that'll committee room 1 at 10 o'clock.

Could I also note for the committee that we have now completed 16 sections. There are 44 that we need to deal with. The House leaders have allocated us today and tomorrow. I simply note that and indicate that we are trying to complete our hearings on this bill.

If there are no further questions before us, the committee stands adjourned until 10 o'clock tomorrow morning in committee room 1. Thank you.

The committee adjourned at 1702.