Qiu v. Revell, 2023 ONBCC 5

Citation: Qiu v. Revell, 2023 ONBCC 5

Ruling No.: 23-05-1619

Application No.: P 2023-07

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 Subsections 8(2.2) and (2.3) of the Building Code Act, 1992 when considering Sentence 1.3.1.3.(1) and Table 1.3.1.3. of Division C of Regulation 332/12, as amended, (the “Building Code”).

AND IN THE MATTER OF an application by Jijie Qiu, for the resolution of a dispute with John Revell, Chief Building Official, to determine whether the Chief Building Official complied with subsections 8(2.2) and 8(2.3) of the Building Code Act, 1992 and Division C, Sentence 1.3.1.3.(1) and Table 1.3.1.3. of the Building Code regarding the prescribed time period for the issuance of the permit or the refusal to issue the permit, and in the case of a refusal to issue the permit, to provide in writing all of the reasons for the refusal at 1033 Pelissier Street, Windsor, Ontario.

APPLICANT Jijie Qiu

Ants Labor Ltd

LaSalle, Ontario

RESPONDENT John Revell

Chief Building Official

City of Windsor, Ontario

PANEL Stephen Wong, Chair

Elektra Vrachas

Michael Egberts

PLACE via video conference

DATE OF HEARING May 26, 2023

DATE OF RULING May 26, 2023

APPEARANCES Jijie Qiu

Ants Labor Ltd

LaSalle, Ontario

The Applicant

John Revell

Chief Building Official

City of Windsor, Ontario

The Respondent

David Dean

Senior Engineer

City of Windsor, Ontario

Designate for the Respondent

Marwan Al-Ezzi

Plan Examiner

City of Windsor, Ontario

Designate for the Respondent

RULING

1. Particulars of Dispute

The Applicant applied for a building permit under subsection 8(1) of the Building Code Act, 1992, to renovate an existing single family dwelling as per Order to Comply, at 1033 Pelissier Street, Windsor, Ontario

The dispute between the parties involves whether the chief building official (the Respondent) complied with subsections 8(2.2) and 8(2.3) of the Building Code Act, 1992 and Division C, Sentence 1.3.1.3.(1) and Table 1.3.1.3. of the Building Code regarding the prescribed time period to issue or refuse to issue the permit and, in the case of a refusal to issue the permit, to provide in writing all of the reasons for the refusal.

2. Provisions of the Building Code Act and Building Code in Dispute

Building Code Act: subsections 8(2.2) and (2.3) state:

Decision

(2.2) If an application for a permit meets the requirements prescribed by regulation, the chief building official shall, unless the circumstances prescribed by regulation apply, decide within the period prescribed by regulation whether to issue the permit or to refuse to issue it. 2009, c. 33, Sched. 21, s. 2 (2).

Same, reasons for refusal

(2.3) If the chief building official refuses to issue the permit, he or she shall inform the applicant of all of the reasons for the refusal of the permit and shall do so within the period prescribed by regulation. 2002, c. 9, s. 14 (2).

Building Code: Division C, Sentence 1.3.1.3. (1) states:

1.3.1.3. Period Within Which a Permit is Issued or Refused

(1) Subject to Sentences (2) and (3) and unless the circumstances set out in Sentence (6) exist, if an application for a permit under subsection 8(1) of the Act that meets the requirements of Sentence (5) is submitted to a chief building official, the chief building official shall, within the time period set out in Column 2 of Table 1.3.1.3. corresponding to the class of building described in Column 1 of Table 1.3.1.3. for which the application is made,

(a) issue the permit, or

(b) refuse to issue the permit and provide in writing all of the reasons for the refusal.

(2) If an application for a permit under subsection 8(1) of the Act proposes construction or demolition of two or more buildings of different classes described in Column 1 of Table 1.3.1.3. that have different time periods in Column 2 of Table 1.3.1.3., the longer of the time periods shall be the time period for the purposes of Sentence (1).

(3) If an application for a permit under subsection 8(1) of the Act proposes construction or demolition of a building described in Sentence (4), the time period for the purposes of Sentence (1) shall be the longer of,

(a) 10 days, and

(b) the time period corresponding to the class of the building described in Column 1 of Table 1.3.1.3. that the building described in Sentence (4) serves, if any.

(4) A building referred to in Sentence (3) is,

(a) a structure occupying an area of 10 m² or less that contains plumbing, including the plumbing appurtenant to it,

(b) plumbing not located in a structure,

(c) a sewage system, or

(d) a structure designated in Article 1.3.1.1. of Division A.

(5) The requirements that an application for a permit under subsection 8(1) of the Act must meet for the purposes of Sentence (1) are,

(a) that the application is made in the form described in Sentence 1.3.1.2.(2),

(b) that the applicant for the permit is a person described in Clause 1.3.1.2.(1)(a) or (b),

(c) that all applicable fields on the application form and required schedules are completed,

(d) that all required schedules are submitted with the application,

(e) that payment is made of all fees that are required, under the applicable by-law, resolution or regulation made under clause 7(1)(c) of the Act, to be paid when the application is made, and

(f) that the applicant has declared in writing that,

(i) the application meets all the requirements set out in Clauses (a) to (e),

(ii) the application is accompanied by the plans and specifications prescribed by the applicable by-law, resolution or regulation made under clause 7(1)(b) of the Act,

(iii) the application is accompanied by the information and documents prescribed by the applicable by-law, resolution or regulation made under clause 7(1)(b) of the Act which enable the chief building official to determine whether the proposed building, construction or demolition will contravene any applicable law, and

(iv) the proposed building, construction or demolition will not contravene any applicable law.

(6) The chief building official is not required to make a decision within the time period required by Sentence (1) with respect to an application that meets the requirements of Sentence (5) if the chief building official,

(a) determines that,

(i) the application is not accompanied by the plans, specifications, information and documents referred to in Subclauses (5)(f)(ii) and (iii), or

(ii) the proposed building, construction or demolition will contravene any applicable law, and

(b) advises the applicant of his or her determination and provides in writing the reasons for the determination within two days.

(7) Subject to Sentences (9) and (10), the time period described in Sentences (1) to (3) and in Clause (6)(b) shall begin on the day following the day on which an application that meets the requirements of Sentence (5) is submitted to the chief building official

(8) The time periods described in Column 2 of Table 1.3.1.3. and in Clause (6)(b) shall not include Saturdays, holidays and all other days when the offices of the principal authority are not open for the transaction of business with the public.

(8.1) Despite Sentence (8), the time periods described in Column 2 of Table 1.3.1.3. and in Clause (6)(b) include days when the offices of the principal authority are not open for the transaction of business with the public if the reason given by the principal authority for the offices not being open is related to corona virus (COVID-19).

(9) The time period in Sentence (10) applies where,

(a) an application is made for the construction of a building that is served by a sewage system,

(b) construction is proposed in respect of the sewage system that serves the building, and

(c) a board of health, conservation authority, planning board or the council of an upper-tier municipality is responsible for the enforcement of the provisions of the Act and this Code related to the sewage system under section 3.1 of the Act or pursuant to an agreement under section 6.2 of the Act.

(10) The time period described in Sentences (1) to (3) and in Clause (6)(b) for an application referred to in Clause (9)(a) shall begin on the day following the later of,

(a) the day on which an application that meets the requirements of Sentence (5) is submitted to the chief building official, and

(b) the day on which a permit for the construction of the sewage system referred to in Clause (9)(b) is issued.

Table 1.3.1.3. Period Within Which Permit Shall be Issued or Refused

Forming Part of Article 1.3.1.3.

Item

Column 1

Class of Building

Column 2

Time Period

(a) Except for a retirement home, a house where no dwelling unit is located above another dwelling unit.

10 days

(b) A detached structure that serves a building described in Clause (a) and does not exceed 55 m² in building area.

(c) A tent to which Section 3.14. of Division B applies.

(d) A sign to which Section 3.15. of Division B applies.

(e) A demountable stage or demountable support structure to which Section 3.16A. of Division B applies.

(a) Buildings described in Clause 1.1.2.4.(1)(a), (b) or (c) of Division A, other than buildings described in Column 1 of any of Items 1 and 4 of this Table.

15 days

(b) Farm buildings that do not exceed 600 m² in building area.

(a) Buildings described in Clause 1.1.2.2.(1)(a) or (b) of Division A, other than buildings described in Column 1 of any of Items 1 and 4 of this Table.

20 days

(b) Farm buildings exceeding 600 m² in building area.

(c) Retirement homes.

(a) Post-disaster buildings.

30 days

(b) Buildings to which Subsection 3.2.6. of Division B or any provision in Articles 3.2.8.3. to 3.2.8.11. of Division B applies.

3. Applicant’s Position

The Applicant stated that his building permit application was submitted to the City of Windsor using the building department’s online Cloudpermit system, on January 1, 2023, for renovations to the existing single family dwelling as per an Order to Comply for work without a permit.

The Applicant submitted that on January 18, 2023, he received a message from a Customer Service Representative (CSR), through Cloudpermit, advising that there were outstanding drawing requirements, and that the Applicant uploaded the required drawings on the same day.

The Applicant reported that the Zoning review was completed on February 9, 2023. The Applicant further advised that March 21, 2023, was the date when the CSR advised that the application was in the queue for plans review and would be processed in order of the date received. The Applicant submitted that he received his first communication from the Plans Examiner on March 29, 2023, regarding outstanding drawing requirements.

The Applicant explained that in accordance with Table 1.3.1.3. of Division C of the Building Code, the City of Windsor had a maximum of 10 business days to issue or refuse to issue a building permit with reasons.

The Applicant maintained that since the date he filed an application to the Commission for a hearing, he had neither received his building permit nor a refusal with reasons from the City of Windsor’s building department.

The Applicant concluded that the timeframe for the Respondent to respond to the permit application was 10 business days as per Table 1.3.1.3. of Division C of the Building Code and that the Respondent had neither issued the building permit nor refused to issue the building permit with reasons within the specified timeframe.

4. Respondent’s Position

The Respondent stated that on January 1, 2023, the City of Windsor’s building department received the Applicant’s permit application for a renovation to an existing single family dwelling, further, to receiving an Order to Comply for construction without a permit.

The Respondent provided testimony of the timelines of the communication between the Applicant and the City of Windsor’s building department. The Respondent stated that the application permit was received on January 1, 2023, via the Cloudpermit system. However, because of the holidays, the permit processing time period, as prescribed by regulation was started on January 3, 2023, when the office reopened after the holidays.

The Respondent submitted that the Applicant’s permit application was deemed incomplete, and notice was provided on the 12^th day after the submission. The Respondent advised that staff had reviewed the application and messaged the Applicant on January 18, 2023, advising that required drawings were missing from the application submission.

The Respondent stated that on March 1, 2023, the CSR advised the Applicant that the application was in queue for plans review and would be processed in order of the date received. The Respondent submitted that on March 29, 2023, the Plans Examiner began their review and communicated to the Applicant that there were outstanding drawing requirements related to missing drawing details and information.

The Respondent submitted that the City decided not to reject the permit application despite the original application being considered an incomplete submission as per the requirements of Subclauses 1.3.1.3.(5)(f)(i) and (ii) of Division C, of the Building Code.

The Respondent acknowledged that the City had failed to advise the Applicant of their rejection of the incomplete building permit application within 2 days as per Subclause 1.3.1.3.(6)(a)(i) and (6)(b) of Div. C, of the Code. Further the Respondent acknowledged that the building department did not meet the time period set out in Table 1.3.1.3. to either issue the permit or refuse to issue the permit and provide in writing all the reasons within 10 business days.

5. Commission Ruling

It is the decision of the Building Code Commission that the chief building official (the Respondent) did not comply with subsections 8(2.2) and 8(2.3) of the Building Code Act, 1992 and Division C, Sentence 1.3.1.3.(1) and Table 1.3.1.3. of the Building Code regarding the prescribed time period for the issuance of the permit or the refusal to issue the permit, and in the case of a refusal to issue the permit, to provide in writing all of the reasons for the refusal at 1033 Pelissier Street, Windsor, Ontario.

Reasons

i) Sentence 1.3.1.3.(7) of Division C of the Building Code specifies the time period set out in Table 1.3.1.3. to begin on the day following an application that meets the requirements of Sentence (5) is submitted to the chief building official.

ii) Sentence 1.3.1.3.(8) provides that the time periods described in Table 1.3.1.3. do not include Saturdays, holidays and all other days when the offices of the principal authority are not open for the transaction of business with the public.

iii) The parties agreed that a building permit application was submitted to the City of Windsor on January 1, 2023 using the City’s online permit application system, and the prescribed time period set out in Table 1.3.1.3. commenced on January 3, 2023, when the City of Windsor’s Building Department reopened following the holidays.

iv) Based on the information provided by the parties, the construction proposed in the permit application in question would have been subject to the 10-day time period set out in Table 1.3.1.3. of Division C of the Building Code, if the application were deemed complete in compliance with Sentence 1.3.1.3.(5) of Division C of the Building Code.

The parties also agreed that the prescribed 10-day time period beginning on January 3, 2023 would have ended on January 16, 2023. By this date, the Respondent was required to issue or refuse to issue a permit in respect of the Applicant’s permit application and, if the permit was refused, to provide in writing all of the reasons for the refusal.

The Commission received evidence that written communication dated January 18, 2023, was sent to the Applicant to advise that additional drawings were required.

The Commission heard the Respondent acknowledged that the time period prescribed by Sentence 1.3.1.3.(1) of Division C of the Building Code was not met to either issue the permit or refuse to issue the permit and provide in writing all of the reasons for the refusal, and that the time period in Sentence 1.3.1.3.(6)(b) was also not met to inform the Applicant in writing of additional information to complete the required documentation for the application.

Dated at the City of Toronto this 30th day in the month of May in the year 2023 for application number P 2023-07.

Stephen Wong, Chair

Elektra Vrachas

Michael Egberts