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Member Accountability Framework Code of Conduct

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BUILDING CODE COMMISSION
MEMBER ACCOUNTABILITY FRAMEWORK

Code of Conduct

Required under clause 7 (2) (c) of the
Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009

5. Purpose:

5.1 The objective of this Code of Conduct (“the Code”) is to provide guidance to members of the Building Code Commission (“the Commission”) on appropriate standards of conduct. The Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 requires the Commission to create a Code and to make the Code publicly available.

6. Application:

6.1 The rules in this Code (except where specified) apply to all members of the Commission, including the Chair, Vice-Chairs and members. For simplicity, the term "member" is used to include all adjudicative positions.

6.2 The Code governs the conduct of members from the commencement of their term of appointment, including their continuing responsibilities as members after completion of their term.

7. General Intent:

7.1 The Code recognizes the fundamental and overriding responsibility of all members to maintain the integrity, competence and effectiveness of the Commission as a whole.

7.2 The expectation is that the member’s conduct, both in public and in private, should always be consistent with the office held by a member of a quasi-judicial adjudicative agency of the government, and should be able to withstand the closest public scrutiny.

7.3 The rules in this Code are intended to assist members by establishing appropriate standards of conduct in typical circumstances. However, the Code cannot anticipate all possible circumstances in which members may be called upon to exercise judgment as to the appropriate standard of conduct. Some circumstances will require that the rules be adjusted to reflect a standard of conduct which is more or less onerous. In each case, it remains the responsibility of the member to consider the appropriate standard and to conduct themself in an ethical and professional manner. A member who wishes to discuss a particular circumstance may do so with the Chair.

8. Review and Amendment:

8.1 The Code may be amended from time to time to reflect the developing experience of the Commission. The Commission will review the Code at least every three years.

9. Relationship to Other Legislation:

9.1 This Code is to be read together with the provisions of the Public Service of Ontario Act, 2006 S.O.2006, c.35, Sched. A (PSOA) and Ontario Regulation 381/07 on Conflict of Interest rules. Members of the Commission are subject to the provisions of the PSOA and some of the regulations made under that Act. In the event of a conflict between this Code and the PSOA, the provisions of the PSOA take precedence.

10. Principles:

10.1 Fairness: Members have an obligation to act fairly when conducting hearings and rendering decisions.

10.2 Transparency: Members should ensure that hearings are conducted in a manner that is transparent and seen to be fair.

10.3 Ease of Understanding of Proceedings: Members should make all reasonable efforts to ensure that the hearings are accessible to all parties. Members should make all reasonable efforts to conduct hearings in a manner that is understood by all parties to the hearing.

10.4 Quality and Consistency: Members should be fully prepared for a hearing. Members should maintain the integrity of the hearing process.

10.5 Courtesy: Members should treat each person who appears before them with respect.

10.6 Integrity: Members should act with honesty and integrity, and conduct themselves in a manner consistent with the nature of their responsibilities and the maintenance of public confidence in the administration of justice. Members should foster a collegial working environment and conduct themselves in a manner that reinforces the integrity and professionalism of the Commission. Members should maintain a level of competence and knowledge required to discharge their obligations and duties. Members should have due regard to maintaining the integrity of the Commission after ceasing to be a member of the Commission.

10.7 Impartiality: Members should approach every hearing and every issue arising at a hearing with an open mind. During the deliberative process following a hearing, the Commission’s decisions should be based on the submissions and evidence presented during the hearing process and on the members’ experience and technical knowledge of the Building Code. Members must avoid conflicts of interest.

11. Conduct of the Hearing

11.1 Members shall act with honesty, integrity, and high ethical standards.

11.2 A member shall approach every hearing with an open mind with respect to the issue.

11.3 A member shall listen carefully and respectfully to the views and submissions of the parties and their representatives.

11.4 A member shall show respect for the parties, representatives, witnesses, and for the hearing process itself, through their demeanour, timeliness, dress and conduct throughout the proceeding.

11.5 A member shall demonstrate a high degree of sensitivity to issues of gender, ability, race, language, culture and religion, which may affect the conduct of a hearing.

11.6 Members shall conduct hearings in a firm but courteous manner and should likewise require courteous behaviour from hearing participants. Mutual respect among hearing participants should be fostered. Unprofessional, sexist, racist, ethnocentric or inappropriate religious comment or contemptuous conduct will not be tolerated.

11.7 A member shall endeavour to conduct hearings expeditiously, preventing unnecessary delay while ensuring that the parties have a fair opportunity to present their case.

11.8 Members shall conduct hearings such that those who appear before the Commission understand procedures and practices and can participate equally, whether or not they are professionally represented.

11.9 A member shall not communicate directly or indirectly with any party, witness or representative in respect of a proceeding, except in the presence of all parties and their representatives. This does not prevent members from displaying courtesy when they encounter parties or their representatives in or outside of the hearing room, as long as members behave in a manner that ensures parties view them as impartial toward all participants and representatives.

12. Decision-Making Responsibilities

12.1 A member shall make each decision on the true merits of the case, based on the law, the evidence, and the principles of natural justice. A member shall apply the law to the evidence. The prospect of disapproval from any person, institution, or community must not deter a member from making the decision which he or she believes is correct based on the law and the evidence.

12.2 A member is responsible for ensuring that decisions are rendered promptly. Written reasons should be prepared in accordance with Commission established guidelines. A member shall endeavour to use clear and plain language in decision writing.

12.3 Members should recognize the importance of having a consistent and predictable process in the exercise of their independent decision-making authority.

13. Explanation of Principles

13.1 Fairness

13.1.1 The Commission has a duty to act fairly. At a minimum, fairness refers to a person's right to proper notification, the right to respond and the right to an unbiased opportunity to present information to the Commission.

13.1.2 Members have an obligation to comply with procedural fairness and natural justice requirements and to act impartially in the conduct of proceedings, including in matters of law and member attitude and demeanour.

13.1.3 The obligation to act fairly also requires that members conduct themselves in accordance with the principles and standards set out in this Code.

13.1.4 Members should treat each person with dignity and respect and in a manner that builds trust.

13.2 Ease of Understanding of Proceedings

13.2.1 The public has a right to information about the services of the Commission in a format that is understandable. Applicants before the Commission, whether or not they have representation, are often unfamiliar with the process. Applicants who are not represented must not be unduly disadvantaged when participating in the Commission’s proceedings.

13.2.2 The Commission’s processes should be informal as possible, however, due regard must be given to the procedural rules contained in the Building Code Act, 1992 and the Statutory Powers Procedure Act.

13.2.3 Members should consider the atmosphere of the room and general comfort, and minimize use of legal or technical language which might be considered beyond the scope of the matter in front of the Commission.

13.3 Quality and Consistency

13.3.1 Members shall be fully prepared for a hearing and ensure that hearings are conducted in an orderly manner.

13.3.2 Members shall maintain the integrity of the hearing process.

13.4 Transparency

13.4.1 The transparency of Commission processes inspires public confidence in the system and strengthens the confidence of an applicant for a hearing and in the outcome of that hearing. It is not enough that the member act in a manner that is fair; the applicant must be able to see for themself that the process is fair. Meetings conducted in a transparent and open manner will provide assurance that the entire decision making process is impartial and fair.

13.5 Courtesy

13.5.1 Respect for the applicant, representatives, and observers and for the Commission process itself is demonstrated through demeanour, timeliness, dress and conduct throughout the hearings. Members should demonstrate a high degree of sensitivity to issues of gender, age, ability, race, sexual orientation, marital status, language, culture and religion.

13.6 Integrity

13.6.1 Public confidence in the system depends on the integrity, objectivity and impartiality of members. Members are therefore expected to conduct themselves in accordance with the highest ethical standards both within and outside the meetings. The norms of behaviour to which members are expected to conform are exemplified in the following elements of appropriate conduct.
To Other Members

13.6.2 A member shall, through their conduct, endeavour to promote collegiality among Commission members and with Commission staff and with Ministry of Municipal Affairs and Housing staff.

13.6.3 In discussions and consultations with other members, a member will conduct themself in a manner which demonstrates respect for the views and opinions of colleagues.

13.6.4 A member will not comment publicly on a decision of a colleague, or on the manner in which another member has conducted themself during a hearing.

When Sitting as a Hearing Panel

13.6.5 When sitting as a hearing panel, members will comply with the Policies and Procedures of the Building Code Commission governing the respective roles of the presiding members and the other members in the conduct of a hearing.

13.6.6 Members of a hearing panel must make themselves available on a timely basis for discussions with their panel colleagues on the conduct of the proceeding and on the substance of the determinations to be made. When a draft decision is provided to a hearing panel member for comments, he or she should respond at the earliest opportunity.

13.6.7 In circumstances where a member of a hearing panel is unable, after discussion and careful consideration, to agree with the proposed decision of a majority of the panel, he or she shall prepare, in a timely fashion, a reasoned dissent.

To Commission Chair

13.6.8 A member will make themself available to meet with the Chair on a timely basis when requested to do so.

13.6.9 When a member becomes aware of conduct of a colleague that may threaten the integrity of the Commission or its processes, it is the duty
of the member to advise the Chair of the circumstances as soon as practicable.

13.6.10 In the absence of the Chair, members should approach one of the Vice-Chairs.

To Commission

13.6.11 Commission members have been appointed for their specialized skills, breadth of technical knowledge, understanding of legislative objectives and awareness of the implications of their decisions. In addition, Commission members should have the ability to use discretion and their own judgment, rather than merely adhere to rigid rules.

13.6.12 A member shall maintain a high level of expertise in adjudication and procedural issues, as well as in the relevant law in the area of specialty of the Commission.

13.6.13 Members should have knowledge of procedural issues, technical issues specific to the Commission, and the Policies and Procedures of the Building Code Commission. Members should take steps to maintain currency in emerging issues, trends, and regulations pertaining to the work of the Commission. This may be achieved by attending training on adjudication skills, participating in Commission-sponsored training sessions, and participating in appropriate subject matter-related training.

13.6.14 Members should work together with the Chair to identify areas for the member's professional development.

13.6.15 A member will make themself available to participate, as assigned, in non-hearing related functions and activities, such as training new members and participating in committees.

13.6.16 A member shall not engage in conduct that exploits their position of authority and trust.

13.6.17 A member shall not communicate with the media regarding a decision of the Commission.

13.6.18 As part-time members who engage in other professions, occupations or businesses, members shall make every effort to not allow those activities to undermine the discharge of their responsibilities as a Commission member. If the member has committed to participate in a hearing, they shall make every reasonable effort to fulfil the commitment.
Appearance Before the Commission

13.6.19 A member shall not appear before the Commission as an expert witness or as a representative for a party while he or she is appointed as a member to the Commission. Members may also not provide evidence directly to the Commission.
Post Service Conduct

13.6.20 A member should continue to observe norms of conduct established by the Commission in the interests of preserving the integrity of the Commission even after the expiry of the member’s term.

13.6.21 After ceasing to be a member of the Commission, a former member should abide by the Commission’s rules governing post-service conduct; should not take improper advantage of past office; and should continue to observe his or her obligations of confidentiality after leaving office, subject to any requirements under law.

13.6.22 It is recognized that members are appointed for limited terms. Where a former member engages in post-appointment activity that may involve appearances before the Commission, caution must be exercised in ensuring that such activity does not compromise the integrity of the Commission or raise an apprehension of bias.

13.6.23 A member shall comply with the procedures established for the Commission and consult with the Chair for guidance on appropriate conduct after the expiry of the member's term. A former member should not normally be permitted to appear before the Commission as a representative or consultant, until a minimum of three months after ceasing to be a member.

13.7 Impartiality

13.7.1 Fairness requires that members must be impartial and independent of any improper influences. During the term of appointment, a member should strive to conduct themself in a manner that would be perceived as impartial, in the eyes of an objective third party reasonably informed of the facts.

13.7.2 The concepts of bias and of conflict of interest, although obviously related, are treated as separate principles. Conflict of interest is limited to financial conflicts, and non-financial conflict of interest situations are treated under the heading of bias.

Conflict of Interest

13.7.3 A conflict of interest arises when a member's private or personal interests take precedence over, or compete with, the member's responsibilities as an appointee.

13.7.4 Members must adhere to the Conflict of Interest rules published in Ontario Regulation 381/07 established under the Public Service of Ontario Act, 2006.

13.7.5 Members should notify the Chair of any conflict of interest or potential conflict of interest at the earliest opportunity.

13.7.6 The Chair, as ethics executive, will ensure that any conflict of interest matters are dealt with in accordance with the Public Service of Ontario Act, 2006.

Bias and Apprehension of Bias

13.7.8 Bias is a lack of neutrality or impartiality on the part of a decision-maker regarding an issue to be decided. A biased decision-maker is one who is predisposed to making a decision on the basis of considerations extraneous to the information provided. A party's claim of bias on the part of a decision-maker may form the grounds for an application for judicial review on the basis that the party's rights to natural justice have been infringed.

13.7.9 An apprehension of bias by a reasonable observer is as detrimental to the process as actual bias. Members should therefore not only be unbiased, but appear to be so.

13.7.10 In any question of bias, members should notify the Chair at the earliest opportunity.

13.7.11 It is the responsibility of the Chair or his or her delegate to advise how best to address the situation. The Chair will provide the member with a recommendation based on the facts and information related to the situation on how to proceed, i.e. on whether the member should or should not participate in the hearing.

14. Acknowledgement

14.1 Each member must adhere to this Code of Conduct and commit to supporting standards set out in applicable legislation, policies or guidelines. The interpretation and enforcement of the rules are matters within the authority of the Chair. It is recognized that failure to comply may result in the Chair recommending against reappointment or revocation of appointment.

14.2 Members shall review and affirm their commitment to and compliance with the Commission’s Code of Conduct upon initial appointment and at every amendment of the Code of Conduct.14.3 Members will sign the Undertaking for Members of the Building Code Commission, which indicates that they have read and that they understand the Code of Conduct and agree to conduct themselves accordingly.