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Memorandum of Understanding

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MEMORANDUM OF UNDERSTANDING 

BETWEEN  

THE MINISTER OF MUNICIPAL AFFAIRS AND HOUSING

- and -

THE BUILDING MATERIALS EVALUATION COMMISSION

 

1.00 INTRODUCTION

1.01 Definitions

In this MOU:

  1. “Act” means the Building Code Act, 1992;
  2. “AEAD” means the TB/MBC Agency Establishment and Accountability Directive;
  3. “BMEC” means the Building Materials Evaluation Commission;
  4. “Chair” means the Chair of the BMEC;
  5. “Deputy Minister” means the Deputy Minister of Municipal Affairs and Housing;
  6. “FIPPA” means the Freedom of Information and Protection of Privacy Act;
  7. “MBC” means Management Board of Cabinet;
  8. “Minister” means the Minister of Municipal Affairs and Housing;
  9. “Ministry” means the Ministry of Municipal Affairs and Housing;
  10. “MOU” means this Memorandum of Understanding;
  11. “PSOA” means Public Service of Ontario Act, 2006; and
  12. “TB” means Treasury Board.

1.02 Purpose of Memorandum of Understanding

  1. The purpose of this MOU is to clarify the mandate of the Building Materials Evaluation Commission and the accountability relationship between the Minister and the BMEC, with respect to:
    1. The respective roles of the Minister, the Deputy Minister, the BMEC and the Chair of the BMEC; 
    2. Operational, financial, staffing and administrative arrangements;
    3. Business and financial planning, and associated reporting requirements;
    4. Audit requirements and arrangements;
    5. Applicability of legislation, directives, policies and guidelines;
    6. Creation, collection, maintenance and disposal of records; and
    7. Agency status.

  2. This MOU and the legislation governing the BMEC must be used in conjunction to determine how the BMEC should govern itself.  This MOU does not affect, modify, limit or interfere with the responsibilities of any of its parties under law.  In the event of any conflict between this MOU and any law, the law prevails.

1.03 Agency’s Legislative Authority and Mandate

  1. The legislative authority of the BMEC is set out in section 28(4) of the Act.
  2. The mandate of the BMEC is to:
    1. conduct or cause to be conducted research into and examination of materials, techniques and building design for construction;
    2. upon application therefor, authorize the use, subject to any conditions that may be set out, of any innovative material, system or building design in respect of any building or part thereof; an
    3. make recommendations to the Minister respecting changes to the Act or the Building Code.

1.04 Duration, Expiry, Renewal and Affirmation of Agreement

  1. This MOU becomes effective on the date of its signature by the parties.  
  2. This MOU replaces the MOU dated December 18, 2009 and shall be in effect for five years.
  3. This MOU shall be reviewed and renewed or revised on or before the day on which it expires; however, this MOU shall continue in force beyond its expiry until a new signed MOU has been provided to the Secretary, Management Board of Cabinet, but shall in no event continue in force for more than an additional six (6) months.
  4. If a new Minister or Chair is appointed, the Minister and the Chair must affirm within six (6) months of their appointment, by letter to the Secretary of MBC, that the MOU shall continue in force without a review or alternatively they may agree to amend the MOU.
  5. A full review of this MOU will be conducted by the parties prior to its expiry not more than five years following the date it came in to effect, or immediately in the event of a significant change to the BMEC’s mandate, powers or governance structure as a result of an amendment to the Act. 

1.05 Agency Classification and Status

  1. The BMEC is classified as a Regulatory Agency under the AEAD, 2010. The BMEC was classified as a Regulatory Agency when the first AEAD was approved by TB/MBC on February 1, 2000. This classification is continued under the new AEAD which came into effect on January 26, 2010.
  2. The Board is designated as a “public body” and a “Commission public body” under the PSOA. 
  3. The BMEC is liable to pay HST. 

2. GUIDING PRINCIPLES

2.01 General

The parties agree to the following principles:

  1. The Minister acknowledges that the BMEC is a statutory entity which exercises powers and performs duties in accordance with its mandate under the Act.  The BMEC’s decisions must be made, and be seen by the public to be made, independently and impartially.
  2. The Minister acknowledges that the BMEC operates at “arm’s length” from the Government of Ontario.
  3. The Chair and the BMEC acknowledge that accountability is a fundamental principle to be observed in the management, administration and operations of the BMEC.
  4. The Chair and the BMEC acknowledge that they are accountable to the government through the Minister.  The BMEC acknowledges that accountability to the government means accountability to the Minister through the Chair. 
  5. As an agency of government, the BMEC conducts itself according to the management principles of the Government of Ontario.  These principles include ethical behaviour, prudent, efficient and lawful use of public resources, fairness and high quality services to the public, and openness and transparency to the extent allowed under the law.
  6. The BMEC and the Ministry agree to avoid duplication of services wherever possible.

2.02 Consultation & Communications

The parties recognize that the timely exchange of information and consultation on the operations and administration of the BMEC is essential to success for the Minister to meet his or her responsibilities for reporting and responding to the Legislative Assembly on the affairs of the BMEC.  The parties also recognize that is essential for the Chair to be kept informed of the government initiatives and broad policy directions that may affect the BMEC’s mandate and functions. The parties therefore agree as follows:

  1. The Chair will keep the Minister advised of planned events and issues that concern, or can reasonably be expected to concern, the Minister in the exercise of his or her responsibilities;
  2. The Minister will consult with the Chair, as appropriate on broad government policy initiatives or legislation being considered by the government that may impact on the BMEC’s mandate or functions;
  3. The Minister and the Chair will meet on an as needed basis to discuss issues relating to the fulfillment of the BMEC=s mandate; and
  4. The Deputy Minister and the Chair will meet on an as needed basis to discuss issues relating to the efficient operations of the BMEC and the provision of services by the Ministry to the BMEC.

3. THE ACCOUNTABILITY RELATIONSHIP

3.01 General

The accountability of the parties is as follows: 

  1. The Minister is accountable to the Legislature for the BMEC’s fulfilment of its mandate, its compliance with government policies and for reporting to the Legislature on the BMEC’s affairs.
  2. The Minister is accountable to the Cabinet for the performance of the BMEC and its compliance with government’s operational policies and broad policy directions.
  3. The Minister is responsible for representing the BMEC in the Cabinet and its committees, the Legislative Assembly and before committees of the Legislature.
  4. The Chair is accountable to the Minister for the performance of the BMEC in fulfilling its mandate and for carrying out the roles and responsibilities assigned to the Chair by the BCA, this MOU, applicable TB/MBC and Ministry of Finance directives, policies and guidelines listed in Schedule “3” to this MOU.
  5. The Deputy Minister is accountable to the Minister for the performance of the Ministry in providing administrative support (including staffing and funding) to the BMEC and for carrying out the roles and responsibilities assigned to him or her by the Minister, by TB/MBC directives, the applicable legislation and this MOU.

4. ROLES AND RESPONSIBILITIES

4.01 Role of the Minister

The Minister shall, as applicable:

  1. monitor the activities of the BMEC to ensure that its mandate is being fulfilled and that it is in compliance with government policies; 
  2. review, approve and present the estimates/recommended annual allocation for the BMEC as part of the Ministry’s Business Plan;
  3. maintain communications with the BMEC with respect to both relevant government policies and expectations of BMEC members;
  4. ensure that proposed changes to the governing legislation/regulation are accompanied by a recommendation on the continued need for the BMEC’s services and the appropriateness of its mandate;
  5. recommend appointments and reappointments in a timely manner and with due regard to transitional matters pursuant to the process for agency appointments established by legislation or by MBC;
  6. receive the BMEC’s annual report and table it in the Legislative Assembly;
  7. review and approve the BMEC’s business plan;
  8. submit the BMEC’s business plan to TB/MBC for review, if and when required;
  9. report and respond to the Legislature and Committees of the Legislature on the affairs of the BMEC;
  10. report and respond to Cabinet on the BMEC’s performance and compliance with the government’s operational policies and broad policy directions;
  11. develop, sign and maintain a current MOU between the Minister and the BMEC;
  12. recommend the BMEC’s MOU to TB/MBC for approval before it is signed by the parties;
  13. direct that a periodic review of the BMEC be conducted and make subsequent recommendations to TB/MBC; and
  14. sign and submit to the Secretary of MBC an annual attestation indicating that the BMEC is in compliance with the AEAD, and provide documentation demonstrating compliance. 
  15. The Minister is the institution head of BMEC for the purposes of FIPPA.

4.02 Role of the Chair

The Chair shall, as applicable: 

  1. keep the Minister advised of issues or events that concern, or can reasonably be expected, to concern the Ministry in the exercise of the Minister’s responsibilities;
  2. provide leadership to the BMEC;
  3. direct the affairs of the BMEC within its mandate as defined by the Act and the approved business plan;
  4. develop and maintain a current MOU between the Minister and the BMEC, and sign on behalf of the BMEC;
  5. review and approve the BMEC’s business plan and annual report and submit them to the Minister with content and within timelines established in the AEAD;
  6. ensure that the BMEC carries out the responsibilities assigned to it or its Chair under the Act;
  7. ensure that the members of the BMEC are informed of their responsibilities under the rules of ethical conduct, including political activity, that govern the BMEC;
  8. perform the duties of ethics executive for the BMEC, ensure that any conflict of interests matters are dealt with in accordance with the PSOA;
  9. ensure that members of the BMEC are informed of the conflict of interest rules and are aware that they must declare any conflict of interest as the earliest opportunity; and record a declaration of conflict of interest, and, where appropriate, notify the Minister of the nature of the conflict;
  10. ensure that a process is in place for responding to and resolving complaints from the public and BMEC clients;
  11. ensure that BMEC members are aware of and comply with applicable TB/ MBC and Ministry of Finance directives, as listed in Schedule “3” to this MOU;
  12. keep the Minister informed of upcoming appointment vacancies and provide recommendations for appointments and/or reappointments to the BMEC;
  13. ensure that public funds are used for their intended purpose and in accordance with applicable legislation, regulations, directives and principles of integrity and honesty, and ensuring value for money;
  14. attend and/or make presentations before Cabinet or committees of Cabinet or the Legislature on matters concerning the affairs of the BMEC, when requested to do so; and
  15. ensure the development of an effective performance measurement and management system for assessing the BMEC=s performance;

4.03 Role of the Deputy Minister

The Deputy Minister shall, as applicable:

  1. advise the Minister and the BMEC on the requirements of TB/MBC and Ministry of Finance directives affecting BMEC;
  2. advise the Minister on the operation of the BMEC or its transfer, consolidation or elimination;
  3. advise the Minister on meeting assigned ministerial responsibility with respect to the BMEC;
  4. undertake and cooperate with any review of the BMEC directed by the Minister or TB/MBC;
  5. monitor BMEC, on behalf of the Minister, to assess whether or not the BMEC is fulfilling its legislative mandate in concert with approved government policies and identify any need for corrective action and recommend ways to resolve any issues that are identified;
  6. provide a framework for assessing whether the BMEC is fulfilling its mandate and whether its business planning and goals are developed in concert with approved government policies; 
  7. assist in the development and maintenance of a current MOU between the Minister and the BMEC, as directed by the Minister;
  8. ensure that the Ministry is providing the administrative support, financial and other services as set out in this MOU and in Schedule “1” appended thereto;
  9. meet with the Chair, as needed or as directed by the Minister;
  10. consult with the Chair, as required, on matters of mutual importance to the BMEC and the Ministry, such as the services provided by the Ministry to the BMEC, Ministry policies and TB/MBC directives; 
  11. inform the BMEC of the policies of the Ministry and government that apply to the BMEC, including financial and administrative, human resources and Ministry policies, including policies in respect of French language services, freedom of information, workplace harassment and equal opportunity; and
  12. Attesting to the TB or MBC as required to the BMEC’s compliance with the mandatory accountability requirements set out in the AEAD.

4.04 Delegation

  1. The Deputy Minister may, in accordance with the PSOA and applicable government directives, delegate any of the powers and duties assigned to him or her by law.

4.05 Periodic Reviews

  1. The BMEC may be subject to periodic reviews at the discretion and direction of TB/MBC or the Minister.  The reviews may cover such agency matters as are determined by TB/MBC or the Minister, and may include the mandate, powers, governance structure and/or operations of the Board. 
  2. The Minister will consult the Chair as appropriate during such review. 
  3. The Chair and BMEC will co-operate in any review. 
     

5. BUSINESS PLAN AND PERFORMANCE MEASUREMENT

5.01 Business Plans and Annual Reports

  1. The Chair shall prepare a business plan including a risk management plan, as well as an annual report, with content as specified in the AEAD, and provide these plans to the Minister within established timelines, for the Minister’s submission to TB/MBC.
  2. The Deputy Minister will ensure that the BMEC is furnished with the Ministry=s annual report and business and strategic plans. 
  3. The Chair of the BMEC shall ensure that the BMEC implements a system of performance measures and reporting and that the system includes commitments to attaining specific performance goals through specific steps within specified time frames.
  4. The Deputy Minister shall assist the BMEC in the development and implementation of its system of performance measures as needed.
  5. Results from the BMEC’s Performance Measures Plan will be reported and reviewed by all of the parties annually and the BMEC shall, by June 30 during the second and subsequent years of the term of this Agreement, provide to the Minister a Performance Measures Report which reports on the performance measures achieved by the Agency during the previous year, and explains significant variances between actual and planned results or performance targets.

6. ADMINISTRATIVE SUPPORT

6.01 General

  1. The BMEC receives all of its services from Ministry employees as set out in Schedule “1” to this MOU.
  2. The Deputy Minister is responsible for providing the BMEC with the administrative support services listed in Schedule A1" to this MOU.
  3. Schedule “1” may be reviewed at any time at the request of either party. 
  4. The Deputy Minister shall ensure that the support or services provided to the BMEC are of the same quality as those provided to the Ministry’s own divisions and branches.
  5. The Chair will ensure that the BMEC operates in accordance with all applicable TB/ MBC and Ministry of Finance directives (including the AEAD and the Procurement Directive), unless specifically exempted, as well as applicable Ministry financial and administrative policies and procedures.

7. FINANCIAL ARRANGEMENTS

7.01 Financial Arrangements

  1. The BMEC is funded out of the Consolidated Revenue Fund pursuant to an appropriation authorized by the Legislature, unless otherwise provided.
  2. Recovered costs and other revenues, if any, are paid, as received, to the Consolidated Revenue Fund and may not be applied to administrative expenditures of the BMEC unless otherwise provided by law.
  3. Financial arrangements are subject to amendment by such revenue policy directives as TB/MBC may issue, and financial arrangements may also be changed by amendment to the BMEC’s constituting instrument.
  4. Financial procedures of the BMEC will comply with relevant TB/MBC and Ministry of Finance directives and guidelines, and the government’s financial and administrative policies and procedures. 
  5. Responsibility for the maintenance of documentation and information to support expenditures is assigned to the Secretary of the BMEC as outlined in the Ministry’s accounting policies and procedures.

8. AUDIT ARRANGEMENTS

 8.01 Audit Arrangements

  1. The BMEC is subject to periodic review and value-for-the-money audit by the Auditor General of Ontario under the Auditor General Act or by the Ontario Internal Audit Division.
  2. The Ontario Internal Audit Division may also carry out an internal audit, if approved to do so by the Ministry’s Audit Committee or by the Corporate Audit Committee.
  3. Regardless of any annual external audit, the Minister may direct that the BMEC be audited.
  4. The BMEC will promptly provide a copy of every report from an audit to the Minister and the Minister of Finance.  The BMEC will also provide a copy of its response to the audit report and any recommendations therein.  The agency will advise the Minister annually on any outstanding audit recommendations.
  5. The Chair may request an external audit of the financial transactions or management controls of the BMEC at the BMEC’s expense.

9. ADMINISTRATIVE ARRANGEMENTS

9.01 General

  1. The Chair and the BMEC will develop procedures and will operate the BMEC in accordance with all administrative policies established and specified in TB/MBC directives as referred to in Schedule “3” to this MOU.
  2. The full range of financial and administrative support services to be provided by the Ministry to the BMEC is outlined in Schedule “1” to this MOU. 
  3. The Chair will, at the request of the Minister or the Deputy Minister, supply specific data and other information which may be required from time to time for the purposes of Ministry administration.

9.02 Legal Services

  1. Legal services to the BMEC are provided by the Ministry of the Attorney General, in accordance with Schedule “1” to this MOU.
  2. The legal services required by the BMEC are to be provided in accordance with the Ministry of the Attorney General’s Corporate Operating Policy on Acquiring and Using Legal Services.

10. STAFFING AND APPOINTMENTS

10.01 General

The BMEC is also governed by:

  1. the policies of the Public Service Commission;
  2. the human resources policies and procedures of the Ministry;
  3. the corporate financial and administrative policies and procedures of the Ministry;
  4. applicable collective agreement provisions; and
  5. any other applicable legislation or regulations.

10.02 Appointments

  1. The Chair is designated as chair of the BMEC by the Lieutenant Governor in Council pursuant to section 28(2) of the Act, and under this section one member of the BMEC may also be designated Vice-Chair of the Agency.
  2. Where the Act expressly permits the delegation of particular functions or responsibilities, the Chair may delegate such functions or responsibilities to members of the BMEC as he or she considers appropriate.
  3. The members of the BMEC are appointed by the Lieutenant Governor in Council pursuant to section 28(1) of the Act.

11.IMMUNITY AND INSURANCE

11.01 Immunity

  1. Section 31 of the Act provides that no proceeding shall be commenced against the members of the BMEC for any act done in good faith in the execution or intended execution of any power or duty under the Act or for any alleged neglect or default in the execution in good faith of that power or duty.

11.02 Insurance

  1. The BMEC and the members of the BMEC are covered under the Province’s Protection Program for coverage associated with third party bodily injury, property damage, personal damage, personal injury (libel, slander) and advertising injury.

 

SIGNED AT TORONTO this ____ day of _____________, 2011:

 

__________________________________
The Honourable Rick Bartolucci
Minister of Municipal Affairs and Housing

 

 

SIGNED AT___________this______day of_____________, 2011:

 

__________________________________
Edward J. Link, Chair
Building Materials Evaluation Commission

 

Schedule “1”

Administrative and Other Support Services Provided to
the Building Materials Evaluation Commission
by the Deputy Minister of Municipal Affairs and Housing

PART ONE

The Deputy Minister shall ensure that the Ministry provides the following administrative and other support services to the BMEC in accordance with Ministry policies and procedures:

1. Financial Services 

  1. Maintain budgetary control over the BMEC’s appropriation ensuring the availability of funds for payment of expenditures.
  2. Maintain the expenditure record of the BMEC.
  3. Validate, pay and record all BMEC expenditures (vendor invoices, travel and expense claims, inter-ministry transfers).
  4. Provide all necessary information regarding the BMEC to complete each fiscal year=s Public Accounts.

2. Facilities and Office Services

  1. Provide central purchasing function, in-house printing, mail and messenger, records and forms management, accommodation and telecommunication services in a manner and to the standard of service now provided to the Ministry.

3. Information Technology Services 

  1. Provide information technology services in a manner and to the standard of service now provided to the Ministry.

4. Technical Advice

  1. Provide technical background information as may be agreed upon from time to time between the BMEC and the Ministry.
  2. Conduct operations reviews, at the request of the BMEC, to evaluate the adequacy of management practices and control with due regard to economy, efficiency and effectiveness of operations.
  3. Provide other professional advice and services as required.

5. Operations Review and Audit Services

  1. Conduct financial audits in order to report on:
    1. adequacy of financial and administrative controls;
    2. compliance with Acts, policies and procedures; and
    3. adequacy of controls over purchases, procurement and accounts payable system.
  2. Conduct operations reviews, at the request of the BMEC, to evaluate the adequacy of management practices and control with due regard to economy, efficiency and effectiveness of operations.
  3. Provide other professional advice and services as required.

6. Communications and Information Services 

  1. Provide staff services on an Aas needed@ basis.

7. French Language Services 

  1. Provide advice and management concerning Ministry and Government policies and procedures regarding the implementation of French language services.
  2. Provide other professional advice and services as required.

8. General Administrative Services 

  1. Provide general administrative and corporate services including:
    1. preparation of BMEC agendas;
    2. distribution of BMEC material;
    3. making meeting arrangements including booking of boardrooms, catering, etc;
    4. taking of minutes and other recording requirements, and the distribution thereof;
    5. making arrangements for special attendances and/or conferences;
    6. establishing and maintaining a system for the retention of BMEC documents and for 
      making such documents available to the public as required by FIPPA and the 
      Archives and Recordkeeping Act, 2006; 
    7. administration of expense claims; and
    8. administration of per diem compensation.
  2. Forward BMEC decisions to the appropriate parties.
  3. Advise the Chair and the BMEC with respect to administration policies and procedures of the Ministry, TB or the MBC.
  4. Advise the Chair, TB and the BMEC as to appropriate BMEC or Committee structure or strategic plans as may be appropriate.
  5. Advise the BMEC on the conduct of meetings, appropriate resolution form, and parliamentary procedure.
  6. Advise the Chair and the BMEC on issues arising out of the administration of agencies, including advising on such items as memoranda of understanding, sunset reviews and other constituting documentation.

9. Legal Services

  1. Monitor, on behalf of the BMEC, legal issues and trends as they affect the BMEC, and provide advice accordingly.
  2. Draft and review legal documents as required.
  3. Provide general legal services as required.

10. Freedom of Information Services

  1. Provide advice, consultation and information to the BMEC concerning Ministry and Government policies and procedures regarding FIPPA. 
  2. Provide training, workshops and seminars to the BMEC relating to access and privacy as requested.
  3. Provide advice, consultation and co-ordination to the BMEC regarding access requests, including approvals by the Deputy Minister and appeals, and drafting and sending out of all notices to all parties.
  4. Coordinate internal privacy audits for the BMEC.
  5. Compile statistics on access requests and write quarterly and annual statistical reports required by TB/ MBC or the Information and Privacy Commissioner.
  6. Co-ordinate, compile, write and distribute Directory of General and Directory of Personal Information entries as required by FIPPA.

PART TWO

MMAH Divisions providing the above services are:

Municipal Services Division

  • Building and Development Branch

Business Management Division

  • Controllership and Financial Planning Branch
  • Audit Services Branch
  • Human Resources Strategies Branch
  • Legal Services Branch
  • Corporate Policy and Programs Branch
  • Technology and Business Solutions Branch

Communications Branch

 

SCHEDULE “2”

STATUTES OF PARTICULAR APPLICATION

The following statutes of particular application apply to the BMEC:

  • The Building Code Act, 1992
  • Accessibility for Ontarians with Disabilities Act, 2005
  • Archives and Recordkeeping Act, 2006
  • Freedom of Information and Protection of Privacy Act
  • French Language Services Act
  • Public Service of Ontario Act, 2006

SCHEDULE “3”

APPLICABLE DIRECTIVES, POLICIES AND GUIDELINES

All legally applicable TB/MBC and Ministry of Finance directives, guidelines and policies apply to the BMEC, including, but not limited to, the following:

General

  • Accountability Directive
  • Advertising Content Directive
  • Agency Establishment and Accountability Directive
  • Government Appointees Directive
  • Information and Information Technology (I&IT) Directive 
  • OPS Service Directive

Financial

  • Business Planning & Allocations Directive
  • Capital Expenditure Evaluation Directive
  • Cash Management Directive
  • Compensation Directive
  • Delegation of Authority Directive
  • Establishment and Use of Central Common Services Directive 
  • Expenditure Management Directive
  • General Expenses Directive
  • Indemnification Directive
  • Internal Audit Directive  
  • Non-Tax Revenue Directive 
  • Procurement Directive
  • Procurement Directive for Information Technology 
  • Procurement Directive on Advertising, Public and Media Relations, and Creative Communications Services
  • Transfer Payment Accountability Directive  
  • Travel, Meal and Hospitality Expenses Directive