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BCC Ruling No. 14-07-1370

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Ruling No.: 14-07-1370
Application No.: P 2014-06

 

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 350/06, as amended, (the “Building Code”).

AND IN THE MATTER OF an application by Joan Barriault, for the resolution of a dispute with Guido Mazza, Chief Building Official, regarding the October 31, 2013 application for a permit for alteration/repair work in the basement of the dwelling unit located at 66 Patterson Street, City of Greater Sudbury (Sudbury), Ontario.

APPLICANT

Joan Barriault
Owner
City of Greater Sudbury, Ontario

RESPONDENT

Guido Mazza
Chief Building Official
City of Greater Sudbury, Ontario

PANEL

Tony Chow

PLACE

City of Toronto, Ontario

DATE OF HEARING

March 7, 2014

DATE OF RULING

March 7, 2014

APPEARANCES

Joan Barriault
Owner
City of Greater Sudbury, Ontario
Applicant

Guido Mazza
Chief Building Official
City of Greater Sudbury, Ontario
Respondent

Jamie Canapini
City Solicitor
City of Greater Sudbury, Ontario
Counsel for the Respondent 

RULING

 

1. Particulars of Dispute

The Applicant has applied for a permit under the Building Code Act, 1992, for alteration/repair work in the basement of the dwelling unit located at 66 Patterson Street, City of Greater Sudbury (Sudbury), 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 Act and Division C, Sentence 1.3.1.3.(1) of the Building Code. Specifically, whether the Chief Building Official issued or refused 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, within the time period prescribed in Table 1.3.1.3. of Division C of the Building Code.

2. Provisions of the Act and Building Code in Dispute

Act: subsections 8(2.2) and (2.3)

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, Sentences 1.3.1.3. (1), (5) and (6)

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 on or after the day subsection 2 (2) of Schedule 21 to the Good Government Act, 2009 comes into force, the chief building official shall, within the time period set out in Column 3 of Table 1.3.1.3. corresponding to the class of building described in Column 2 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.
(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,
(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

Table 1.3.1.3.
Period Within Which Permit Shall be Issued or Refused
Forming Part of Article 1.3.1.3.

Column 1

 

Column 2

 

Column 3

 
Row Number

 
Class of Building

Time Period
 

1

 

(a) A detached house, semi-detached house, townhouse, or row house where no dwelling unit is located above another dwelling unit.

 

10 days

 

3. Applicant’s Position

On October 30, 2013, prior to submitting the building permit, the Applicant indicated that she went to her City’s building department and inquired about making an application for permit to insulate the basement of her home. She was told that she should include framing the basement walls with the insulation permit application and then was given the forms she needed and a set of TACBOC drawings she could use when she prepared the application for permit.

The Applicant explained that on October 31, 2013, she went back to her City’s building department to submit the permit application and supporting documents and drawings. However, after she did that, she was asked by City Staff to sign a waiver to acknowledge that the required fees were not included with the application. City Staff explained that the total fees are calculated based on the cost of the proposed construction, and because that is determined when the application has been reviewed, the required fees would be paid when the permit is ready to be issued.

The Applicant said that seven working days after October 31, 2013, she made her first of several attempts to get information about her permit application. She was given no information by the City whether her permit would be issued or denied with reasons.

The Applicant gave an account to the Commission of making phone calls, sending emails to the building department over a period of months and forwarding them to other City departments and City Council. Then on February 11, 2014, she went to the building department and asked City Staff if she was going to receive her permit and, if not, she wanted written reasons. City Staff asked her to put that in writing and she did, however, like her previous request, she indicated she has not received a reply.

The Applicant summarized her position, by indicating that she understands according to the Building Code Act the City do not have to issue the permit, but they need to explain all the reasons why they will not issue the permit within a certain timeframe.

4. Respondent’s Position

The Respondent began by providing background information about two permits issued to the Applicant on August 23, 2013. He noted that the permits were for weeping tile installation and for plumbing fixtures and a backwater valve. He described the work the Applicant started in the basement and how an active 18 in. municipal storm drain just below the basement floor slab was damaged while they were breaking the concrete floor. He added, that until the damage is repaired, there is a risk that basement could be flooded.

The Respondent argued that this background information is relevant to the matters in dispute and that it concerns the October 31, 2013 permit application and subsequent correspondence. He said the City made an offer to purchase the property from the Applicant and that solicitors for both parties have been exchanging written correspondence since September 11, 2013. He added that the City would like to demolish the house so they can improve the City’s drainage system in this area.

The Counsel for the Respondent added that he was receiving mixed signal about the Applicant’s intent regarding the City’s offer to purchase the property. He said that the City was puzzled when they received the October 31, 2013 permit application because they thought the property was to be sold and the building demolished and, if not sold, it seemed premature to start framing the basement while there was a still a flooding risk.

The Counsel for the Respondent stated that a meeting occurred between the parties and their solicitors on November 7, 2013. At that meeting the idea arose that the City may purchase the house from the Applicant. In solicitor to solicitor correspondence sent by the City on November 15, 2013 the matter of the City purchasing the property was raised again. On November 18, 2013 the Applicant’s solicitor replied saying the Applicant was willing to negotiate the sale of 66 Patterson Street to the City. He added the Applicant’s February 11, 2014 letter asked about issuing the permit but then at the end of that month there was new solicitor to solicitor correspondence about negotiating the selling price.

The Respondent confirmed the City’s building department correspondence to the Applicant, beginning last September, was sent to the Applicant’s solicitor by the City’s solicitor and that copies were not sent to the Applicant.

He also confirmed that the time period to issue October 31, 2013 permit application for this property would have been 10 days.

The Counsel for the Respondent also argued that, in the case of the October 31, 2013 permit application, the time period requirements in the Building Code for issuing a permit or providing the written reasons for the refusal do not apply because the Applicant signed a waiver saying the fee was not paid.

The Counsel for the Respondent confirmed that the use of a waiver is standard practice for the City. He explained that the incomplete application waiver is about providing good customer service because the waiver allows City Staff to begin the approval process instead of waiting until the application is complete to start. He also confirmed that an application would not be considered incomplete if payment of the minimum permit fee is included. When asked, he said he didn’t know if City Staff told the Applicant that she could pay the minimum permit fee, but he added that there are no requirements for City Staff tell someone what is in the Building Code. It is not their practice to advise applicants about the option of paying the minimum fee to allow the application to be considered complete, he added.

In summary, the Respondent stated that he and the Applicant were asked to use their solicitors to communicate. He argued that since the storm drain was damaged, the parties have attended several meetings and there had been solicitor to solicitor correspondence in September, November and again in February. He said the situation is confusing because the Applicant appears to alternate between an interest in renovating the property or selling it to the City. The Counsel for the Respondent added that the Applicant did sign a waiver saying the permit application she was making was incomplete and therefore the City was not required to issue a permit or give in writing all the reasons for the refusal within the time period required.

5. Commission Ruling

It is the decision of the Building Code Commission that the Respondent did not comply with the requirements of Subsections 8(2.2) and 8(2.3) of the Building Code Act, 1992 and Division C, Sentence 1.3.1.3.(1) of the Building Code regarding a permit application at 66 Patterson Street, City of Greater Sudbury (Sudbury), Ontario. Under these subsections, the Respondent is required 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, within the applicable time period set out in Table 1.3.1.3. of Division C of the Building Code.

6. Reasons

  1. Sentence 1.3.1.3.(7) of Division C of the Building Code specifies when the time periods set out in Table 1.3.1.3. commence. It states:
    Subject to Sentence (8) and (9), the time period described in Sentences (1) to (3) and Clause 6(b) shall begin on the day following on which an application that meets the requirements of Sentence (5) is submitted to the chief building official.
    The requirements in Sentence (5) include the payment of all fees that are required.
  2. The Commission heard that the building permit application was received by the municipality on October 31, 2013 without the payment of the required fees and that the Applicant signed a waiver that said, in part, that “the permit application did not meet the requirements of 2.4.1.1.B.(5) of the building code” and the Applicant “hereby waives any rights to the permit being issued or refused within the time periods prescribed in the building code” because the payment of fees was not included.

    The Commission also heard that it is the standard practice for this municipality to accept incomplete applications. The purpose of this practice is to allow them to get “a head start” on resolving the issues, although they require the applicant to waive any rights to receiving a decision within the time periods prescribed by the Building Code. Finally, the Commission heard that the Respondent would have accepted the $108 minimum fee as the payment of the required fees for this permit application. Nevertheless, the Commission heard testimony from the Respondent that they make it their practice to not advise applicants of this option.

    It is the opinion of the Commission that the Applicant did not “waive any rights” when she signed the waiver, because it references the 1997 edition of the Building Code and not the 2006 edition that was in force when the waiver was signed. By referencing a provision from an earlier version of the Building Code on their waiver form (a revised version of Sentence 2.4.1.1.B.(5) is cited within Article 1.3.1.3. of Division C in the 2006 version of the Building Code), the municipality has made it difficult for the Applicant to know what, in fact, they were waiving.

    It is also the opinion of the Commission that the municipality, by accepting a permit application, when the only prerequisite that is missing is the payment of the required fees, is not “getting a head start” on resolving issues, unless the amount of the required fees was in dispute.
    Furthermore, it is the opinion of the Commission that the practice of accepting applications without the required fees can often circumvent an applicant’s right to a decision within the required time period in the Building Code.

    The Commission notes that the municipal building department has created a permit application system that makes it extremely challenging for an applicant, especially one that may be unfamiliar with such processes, to assemble and submit a complete application as required for the timeframes to commence. In the case at hand, the applicant, a homeowner inexperienced with applying for a building permit, was informed by the municipality that her application had to be considered incomplete as it was not accompanied by the required fees. She was requested to sign a waiver form to that effect.

    At the same time, however, she was also advised that the full fees would be payable when her permit was issued, and that this practice allows the municipality to calculate the total permit fees based on the time spent reviewing the application. Never during the process of applying for her permit was the applicant advised that she had the option of paying the minimum fee thereby allowing her application to be complete and enter a stream of plan review that would be subject to the legislative timeframes.

    Put simply, when applying for a building permit in Sudbury a permit application is not complete until the applicant pays their fees, but in many cases you cannot pay your fees until the permit is issued. And apparently the only way to break this quandary is to have enough prior expert knowledge or experience with the process to pay for the minimum fee at the outset, which is information the municipality specifically withholds.

    The Commission is of the opinion that this practice is contrary to the intent of the timeframe provisions set out in the Building Code Act, 1992 and Building Code. These provisions were established to expedite the permit application process. It should be noted that the subject provisions require a municipality to reach a decision, not necessarily issue a permit, within specified timeframes. Under the Act, municipalities have full authority to review permit applications and issue permits or refuse them, however the legislation requires that when undertaking this activity they must render a decision within a prescribed timeframe. The permit application process in Sudbury does not seem to support this outcome.

    In this case, the Commission believes that the Applicant, if she were given a choice between paying the minimum fee and receiving a decision within the required time period or paying the full fee when the permit is issued at some unknown date, would have chosen to include payment of the minimum fee with the permit application and therefore have had her application reviewed under the required timeframe.

    As a result, the Commission notes that it is November 1, 2013, that the applicable time period set out in Table 1.3.1.3. commenced in this case.

  3. Sentence 1.3.1.3.(3) of Division C of the Building Code states:
    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 periods for the purposes of Sentence (1) shall be the longer of

(a) 10 days, and
(b) the time period corresponding to the class of building described in Column 2 of Table 1.3.1.3. that the building in Sentence (4) serves, if any.
iv) The Commission determined that the permit application involves alteration/repair work in the basement of a detached house as described in Article 1.1.2.4. of Division

A and therefore subject to a 10 day time period set out in Column 2 of Row 1 of Table 1.3.1.3 of Division C.
Sentence 1.3.1.3.(7.1) provides that the time periods described in Column 3 of Table 1.3.1.3. do not include Saturdays, holidays and all other days when the offices of a principal authority are not open for the transaction of business with the public. In the present case, the applicable 10 day time period ended on November 15, 2013 because the offices were not open on Monday, November 11, 2013.

The Commission heard that lawyers representing the Applicant and the municipality did exchange written correspondence in what would have been the 10 day timeframe to make a decision about this permit application. However, it is the opinion of the Commission that this correspondence was not a written decision from the Respondent to the Applicant that included all the reasons for refusing to issue the permit.

The Commission also heard that the Applicant gave the Respondent a written request on February 12, 2014 asking him for a written response about his reasons not to issue the permit, however, the Respondent has not provided a written response nor has he issued the permit.

 

Dated at the City of Toronto this 7th day in the month of March in the year 2014 for application number P 2014-06.

Tony Chow, Chair