Ruling No.: 19-14-1534
Application No.: B-2019-08
BUILDING CODE COMMISSION
IN THE MATTER OF Subsection 24(1) of the Building Code Act, S.O. 1992, c. 23, as amended.
AND IN THE MATTER OF Article 9.5.2.3., Section 9.3.2.5., Sentences 9.23.14.2.(1), 9.23.15.2.(1), 9.23.16.2.(1), Sections 9.25.3. and 9.27.3., Sentences 9.27.1.1.(1), 9.27.1.1.(3), 6.2.1.1.(1) and 9.32.3.4.(1) of Division B of Regulation 332/12, as amended, (the “Building Code”).
AND IN THE MATTER OF an application by Cory Savary, for the resolution of a dispute with Brian Fawcett, Chief Building Official, to determine whether the installation of the grab bar, strength of existing joists, moisture content of the lumber, sheathing, air barrier system, ventilation and cladding used in the partially constructed 2 storey, residential building, provides sufficiency of compliance with Article 9.5.2.3., Section 9.3.2.5., Sentences 9.23.14.2.(1), 9.23.15.2.(1), 9.23.16.2.(1), Sections 9.25.3. and 9.27.3., Sentences 9.27.1.1.(1), 9.27.1.1.(3), 6.2.1.1.(1) and 9.32.3.4.(1) of Division B of the Building Code, at 463C County Road 40, Douro-Dummer, Ontario.
APPLICANT Cory Savary
Homeowner
Omemee-Kawartha Lakes, Ontario
RESPONDENT Brian Fawcett
Chief Building Official,
Township of Douro-Dummer, Ontario
PANEL Stephen Wong, Chair
Alison Orr
Matthew Graham
PLACE City of Toronto, Ontario
DATE OF HEARING July 17, 2019
DATE OF RULING July 17, 2019
APPEARANCES Cory Savary
Homeowner
Omemee-Kawartha Lakes, Ontario
The Applicant
Christine Kellowan
Legal Counsel
Goldman Sloan Nash & Haber LLP
Toronto, Ontario
Agent for the Applicant
Brian Fawcett
Chief Building Official,
Township of Douro-Dummer
Warsaw, Ontario
The Respondent
Scott Seabrooke
Legal Counsel
LLF Lawyers
Peterborough, Ontario
Agent for the Respondent
RULING
1. Particulars of Dispute
The Applicant has submitted a building permit application multiple times under the Building Code Act, 1992 to construct a residential dwelling at 463C County Road 40, Douro-Dummer, Ontario.
To date, a building permit for the proposed construction has not been issued. The Applicant began construction without a building permit. When the Chief Building Official became aware of the construction an order to comply and a stop work order were issued to the Applicant in July 2017.
In late 2017, the Township commenced an Application with the Superior Court of Justice for an injunction and an order that the partially built house be demolished. On January 30, 2018, the Court granted an adjournment of the Township’s application.
On May 17, 2018, the Court ordered that Cory Savary shall have 30 days to apply for and obtain a building permit. The Court further ordered that should Cory Savary not receive a building permit, within the time periods specified in the order, that the building be demolished.
Between June 2018 and December 2018, Cory Savary made a number of attempts to submit an application for a building permit. All of these were determined by the Chief Building Official to be incomplete. To date a building permit for the proposed construction has not been issued.
In December 2018, the matter was brought back before the Superior Court of Justice. The Honourable Justice Bale adjourned the Superior Court of Justice Application and referred the matter to the Building Code Commission under subsection 25(5) of the Building Code Act, which corresponds to Ruling No. 19-13-1533.
In addition to the court reference, the Applicant chose to make an application for hearing to the Building Code Commission under subsection 24(1) of the Building Code Act, which is the subject of this ruling.
2. Provisions of the Building Code in Dispute
Article 9.5.2.3., Section 9.3.2.5., Sentences 9.23.14.2.(1), 9.23.15.2.(1), 9.23.16.2.(1), Sections 9.25.3. and 9.27.3., Sentences 9.27.1.1.(1), 9.27.1.1.(3), 6.2.1.1.(1) and 9.32.3.4.(1) of Division B of the Building Code.
3. Applicant’s Position
The Applicant maintains that because he has submitted multiple applications for a building permit, he considers himself to be an “applicant for a permit”. In support of his position, he submitted as evidence, a letter dated December 13, 2018, from the Chief Building Official, that refers to a building permit application dated December 11, 2018.
The Applicant submitted that he agrees that compliance with the above listed technical provisions of the Building Code are applicable to the subject building. The Applicant further advised that he is willing to fully comply with the outlined Building Code requirements.
However, the Applicant submitted that he is not able to demonstrate that the partially built building is in compliance with the technical provisions of the Building Code until such time as a building permit is issued by the municipality. The Applicant also submitted that there is currently a Stop Work Order issued with respect to the subject building.
The Applicant believes that the municipality should have issued a building permit first and then upon inspection could verify compliance with the technical requirements of the building code. In this case, the Applicant argued that demonstration of compliance before a building permit is issued would not be possible.
The Applicant requested that the Commission determine the appropriate timing for when a Chief Building Official may request demonstration of compliance with the outlined Building Code requirements.
In summary, the Applicant advised that it was his position that he did not have a dispute concerning the technical requirements of the Building Code, as he was aware that the provisions of the Building Code are applicable to the construction of the subject building and is willing to comply with the requirements.
4. Respondent’s Position
The Respondent submitted that to date the Applicant had not submitted a complete building permit application. The Respondent advised that the reasons for refusal of a building permit were related to insufficient documentation to determine compliance with the Building Code as well as, matters related to applicable law and municipal administrative requirements. Therefore, the Respondent maintained that Mr. Savary is not considered an “applicant for a permit”.
The Respondent submitted that he was of the position that there was no technical dispute for the Commission to determine compliance with the Building Code. He advised that in the absence of a complete permit application, confirmation of compliance with the Building Code cannot be determined.
In summary, the Respondent submitted it was his position a complete building permit application had not been submitted to the municipality to date and as such, compliance with the technical requirements of the Building Code cannot be determined.
5. Commission Ruling
It is the decision of the Building Code Commission that the Applicant, Mr. Savary, is “an applicant for a permit” as per subsection 24(1) of the Building Code Act, 1992.
It is also the decision of the Building Code Commission that it does not have the jurisdiction to determine whether the installation of the grab bar, strength of existing joists, moisture content of the lumber, sheathing, air barrier system, ventilation and cladding used in the partially constructed 2 storey, residential building, provides sufficiency of compliance with Article 9.5.2.3., Section 9.3.2.5., Sentences 9.23.14.2.(1), 9.23.15.2.(1), 9.23.16.2.(1), Sections 9.25.3. and 9.27.3., Sentences 9.27.1.1.(1), 9.27.1.1.(3), 6.2.1.1.(1) and 9.32.3.4.(1) of Division B of the Building Code, at 463C County Road 40, Douro-Dummer, Ontario.
6. Reasons
i) The Building Code Commission’s mandate is set out in subsection 24(1) of the Building Code Act, 1992; it states in part:
- (1) This section applies if there is a dispute,
(a) between an applicant for a permit, a holder of a permit or a person to whom an order is given and the chief building official, a registered code agency or an inspector concerning the sufficiency of compliance with the technical requirements of the building code; (emphasis added)
The Commission heard that Mr. Savary considered himself to be an “applicant for a permit” as he has made multiple attempts to submit a building permit application.
The Commission also heard that the Respondent does not consider Mr. Savary an “applicant for a permit” as they have not deemed any of Mr. Savary’s applications to be complete.
After hearing the positions of both parties and considering the letter of December 13, 2018 to Mr. Savary from the Chief Building Official, the Commission determined that Mr. Savary, for the purpose of this hearing being held under Subsection 24.(1) of the Building Code Act, was considered to be an “applicant for a permit”. This determination gave the Applicant standing to appear before the Commission and the Commission could continue with the hearing proceedings.
ii) With respect to sufficiency of compliance with the technical requirements of the Building Code, the Commission heard that the Applicant is in agreement that compliance with the above listed provisions of the Code are applicable to the subject building. The Commission also heard that the Applicant agreed that he would comply with these requirements and therefore, there are no technical requirements of the Building Code in dispute.
The Commission also heard that the Respondent does not believe there are any technical requirements of the Building Code in dispute because the municipality is currently not in receipt of a complete building permit application for this building.
It is the Commission’s opinion that as both parties agree that there is no outstanding dispute related to sufficiency of compliance with the technical requirements of the Building Code, there is no dispute within the Commission’s jurisdiction to make a determination in this matter.
iii) As per Subsection 24(1) of the Building Code Act, the Commission’s jurisdiction does not extend to resolving disputes pertaining to provisions of the Building Code Act, municipal by-laws, or the role and responsibilities of municipal building officials in implementing those legislative provisions. Further, under the Building Code Act, the Commission does not have the authority to order a Chief Building Official to issue or not issue a building permit. Disputes of this nature may be appealed to the Superior Court under s. 25(1) of the Building Code Act, 1992. This provision in the Act allows individuals who consider themselves aggrieved by a decision of a Chief Building Official to appeal that decision to the Superior Court of Justice.
Dated at the City of Toronto this 18th day in the month of July in the year 2019 for application number B 2019-08.
Stephen Wong, Chair
Alison Orr
Matthew Graham