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BCC Ruling No. 11-07-1280

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Ruling No. 11-07-1280
Application No. I 2011-12

 

BUILDING CODE COMMISSION

IN THE MATTER OF Clause 24(1)(b) of the Building Code Act, S.O. 1992, c. 23 (“Act”).

AND IN THE MATTER OF Subsection 10.2(2) of the Act and Division C, Article 1.3.5.3. of Ontario Regulation 350/06, as amended (“Building Code”).

AND IN THE MATTER OF an application by Gus Nasr, Beverley Homes Inc., for the resolution of a dispute with Leo Grellette, Chief Building Official, City of Vaughan, to determine whether the City of has complied with subsection 10.2(2) of the Building Code Act, 1992 when considering the provisions of Division C, Article 1.3.5.3. of the Building Code regarding, 545, 547, and 549 Beverley Glen Blvd., Vaughan, Ontario.

APPLICANT

Gus Nasr
Vice President
Beverly Homes Inc
Mississauga, ON

RESPONDENT

Leo Grellette
Chief Building Official
Vaughan, ON

PANEL

Yaman Uzumeri, Chair Designate

PLACE

Toronto, Ontario

DATE OF HEARING

May 10, 2011

DATE OF RULING

May 10, 2011

APPEARANCES

Gus Nasr
Vice President
Beverly Homes Inc.
The Applicant

Larry Ptashynski
Manager of Inspection Services
City of Vaughan
Designate for the Respondent

Peter Jung
Building Inspector
City of Vaughan
Designate for the Respondent

RULING

1. Particulars of Dispute

The Applicant has received three permits under the Building Code Act, 1992, to construct three new single family dwellings at 545, 547, and 549 Beverley Glen Blvd., Vaughan, Ontario.

The dispute between the parties involves whether the Chief Building Official (the Respondent) complied with subsection 10.2(2) of the Building Code Act, 1992 and Division C, Article 1.3.5.3. of the Building Code.

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

Building Code Act, 1992:

10.2 (1))  Notice of Readiness for Inspection.
At each stage of construction specified in the building code, the prescribed person shall notify the chief building official or the registered code agency, if any, that the construction is ready to be inspected. 2002, c. 9, s. 17.
Inspection

 (2)  Inspections.  After the notice is received, an inspector or the registered code agency, as the case may be, shall carry out the inspection required by the building code within the prescribed period. 2002, c. 9, s. 17.

2006 Building Code:

Division C

Article 1.3.5.3.  Prescribed Inspections

 

  1. (1) Except as provided in Sentence (2), an inspector or registered code agency, as the case may be, shall, not later than two days after receipt of a notice given under Sentence 1.3.5.1.(2), undertake a site inspection of the building to which the notice relates.

  2. (2) Where a notice given under Sentence 1.3.5.1.(2) relates to matters described in Clause 1.3.5.1.(2)(k) or (l) , an inspector or registered code agency, as the case may be, shall, not later than five days after receipt of the notice, undertake a site inspection of the sewage system to which the notice relates.

  3. (3) When undertaking an inspection required under Sentence (1) or (2), the inspector or registered code agency, as the case may be, may consider reports concerning whether the building or a part of the building complies with the Act or this Code.

  4. (4) The time periods referred to in Sentences (1) and (2) shall begin on the day following the day on which the notice is given.

  5. (5) The time periods referred to in Sentences (1) and (2) 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.

3. Applicant’s Position

The Applicant submitted that as per subsection 10.2(1) of the Building Code Act, 1992, on April 8, 2011 he notified the City of Vaughan that the heating, ventilation and air conditioning (HVAC) system in each of the three houses under construction was ready to be inspected.

The Applicant informed the Commission that on April 11, 2011, the Building Inspector, and Mechanical Plans Examiner, both of the Building Standards Department of the City of Vaughan, attended the building site and conducted an inspection of the HVAC system at each of the properties.

The Applicant advised that at the time of inspection he was verbally informed that the HVAC systems were not built according to the approved building permit drawings. The Applicant further explained that the inspector then proceeded to issue three field inspection reports, one for each house, which specified the following: “submit revised calculations, submit revised plans and do not cover”.

The Applicant submitted that on April 13, 2011, he met with the Chief Building Official and City staff in an attempt to gain clarity with respect to the field inspection reports and further, to determine whether any provisions of the Building Code had been contravened. The Applicant reported that as a result of this meeting, he was asked to submit revised plans and calculations for the as-built HVAC systems, along with a letter stating that the changes to the HVAC systems will not affect the performance of the systems.

The Applicant advised that on April 26, 2011, he submitted drawings of the as-built HVAC systems and a letter regarding the heat loss calculations to the municipality, as requested. The Applicant reported that the municipality was not satisfied with the submitted documentation and he was then asked to submit revised building permits.

The Applicant submitted that on April 27, 2011, as per Subsection 10.2(1) of the Act, he again notified the municipality, requesting a re-inspection of the HVAC system. The Applicant advised that around 4:30 pm of the same day, he received a voice message from City staff informing him that an additional site inspection would not be undertaken until revised building permits had been submitted.

The Applicant explained that on April 29, 2011, he received a letter from the municipality dated April 26, 2011, which asked that the Applicant apply for a revised building permit for each of the subject buildings. The Applicant asserted that he was unable to find the appropriate forms or the requirement for revised building permit applications. The Applicant further submitted that later that day on April 29, 2011, the building inspector posted Orders not to Cover and Orders to Comply at the building site.

The Applicant argued that the inspection that took place on April 11, 2011, was not carried out as per Subsection 10.2(2) of the Building Code Act, 1992 within the two day timeframe stipulated by Division C, Article 1.3.5.3. of the Building Code. The Applicant explained that, in his opinion, the inspection that began on April 11, 2011 was not carried out or considered complete until April 29, 2011, when the Orders were issued.

Further, the Applicant argued that the Respondent did not meet the timeframe for conducting a site inspection as per Subsection 10.2(2) of the Building Code Act, 1992 and Division C, Article 1.3.5.3. with respect to his subsequent request for a re-inspection of the HVAC system made on April 27, 2011, as the Respondent refused to attend the site and conduct the requested inspection.

The Applicant surmised that there were two issues at dispute, one related to the initial request for a site inspection of the HVAC systems made on April 11, 2011, which in his opinion were not carried out or completed within the appropriate two day time frame outlined in the Code, as it took the Respondent until April 29, 2011 to issue Orders related to the as-built HVAC systems that were inspected on April 11th. The second issue, the Applicant maintained, was the refusal by the Respondent to conduct a re-inspection of the HVAC system following the notification for inspection made on April 27, 2011. The Applicant concluded that the Respondent had not met the time frame as per Subsection 10.2(2) of the Building Code Act, 1992 and Division C, Article 1.3.5.3. for conducting a site inspection in either of the two described cases.

4. Respondent’s Position

The Designate for the Respondent submitted that the Building Standards Department of the City of Vaughan was notified on Friday, April 8, 2011 regarding readiness for inspection of the HVAC systems for each of the three homes under construction.

The Designate reported that on the morning of Monday, April 11, 2011 an inspection of the subject HVAC systems commenced and lasted approximately three hours. The Designate submitted that the Applicant was verbally advised at that time that the construction of the HVAC systems was not in accordance with the approved permit drawings and was also advised of the numerous areas of non-compliance. The Designate submitted that three field reports, one for each building lot, were issued to the Applicant, which advised the Applicant to submit revised calculations, submit revised plans, and further directed the Applicant not to cover.

As per the Applicant’s submission, the Designate confirmed that a meeting was held on April 13, 2011 at the City of Vaughan with the Chief Building Official and other municipal staff. The Designate submitted that, at this meeting, the Applicant was advised that the construction of the three homes must either proceed in accordance with the approved permit documents or if not, then the Applicant must submit a revised permit application that reflects the actual construction of the HVAC systems. The Designate submitted that in lieu of submitting revised building permit applications, the City of Vaughan would accept certification letters from a Building Code qualified HVAC designer, certifying that the existing construction meets the requirements of the Building Code.

The Designate stated that on April 26, 2011, the Applicant attended a meeting with municipal staff and submitted HVAC drawings and a letter from an HVAC contractor to the municipality. The Designate explained that, at the subject meeting, the Applicant was advised that the drawings and letter provided were not satisfactory and further, a letter of the same date was sent to the Applicant returning the submitted drawings and letter.

On Wednesday, April 27, 2011, the Designate confirmed that the Building Standards Department received notice from the Applicant that the HVAC systems were ready to be re-inspected. The Designate submitted that on the same day, the inspector telephoned the Applicant to notify him that the HVAC systems would not be re-inspected until such time that he complied with the direction of the Chief Building Official provided at the meeting of April 13, 2011.

The Designate submitted that on April 28, 2011, the inspector called the Applicant a second time to reconfirm that the HVAC systems would not be re-inspected until such time that he complied with the Chief Building Official’s direction. The Designate reported that Orders to Comply and Orders Not to Cover were then issued and posted on site on April 29, 2011.

In summation, the Designate asserted that the City of Vaughan responded to the request for an inspection received on April 8, 2011 by conducting an inspection on April 11, 2011, thereby meeting its obligation with respect to the legislated time frame for prescribed inspections. The Designate further argued that the City of Vaughan also responded to the request for re-inspection received on April 27, 2011 by responding to the Applicant by telephone on both April 27th and April 28th and explaining that the HVAC systems would not be re-inspected until such time the Applicant complied with the requests of the Chief Building Official made on April 13, 2011. The Designate surmised that in both instances the City of Vaughan had conformed to the timeframe set out in Division C, Article 1.3.5.3. of the Building Code.

5. Commission Ruling

It is the Decision of the Building Code Commission that the Respondent has complied with the requirements of subsection 10.2(2) of the Building Code Act, 1992 and Division C, Sentence 1.3.5.3. of the Building Code. Under this subsection, the Respondent is required to within no later than two days, as per Sentence 1.3.5.3.(1) of the Building Code, undertake a site inspection of the building to which the notice relates.

6. Reasons


  1. Division C, Sentences 1.3.5.3.(4) and (5) of Division C of the Building Code specifies when the time period set out in Article 1.3.5.3. commences:

    (4)  The time periods referred to in Sentences (1) and (2) shall begin on the day following the day on which the notice is given.

    (5)  The time periods referred to in Sentences (1) and (2) 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.

    Both parties submitted and agreed that notice requesting an inspection was submitted to the City of Vaughan on April 8, 2011.

    As a result, on April 11, 2011 (one day following the day on which the notice was given) the applicable time period set out in Article 1.3.5.3. commenced in this case.

  2. Sentence 1.3.5.3.(1) states, “Except as provided in Sentence (2), an inspector or registered code agency, as the case may be, shall, not later than two days after receipt of a notice given under Sentence 1.3.5.1.(2), undertake a site inspection of the building to which the notice relates”.
    In the present case, the applicable two day time period ended on April 12, 2011. The Respondent was required to carry out the site inspection by that date. The Parties agreed that a site inspection at each of the buildings to which the notice of readiness to inspect related, was undertaken on April 11, 2011.

    It is the Commission’s opinion that the inspection undertaken on April 11, 2011 meets the requirements of Subsection 10.2(2) of the Building Code Act, 1992 and Article 1.3.5.3. of Division C of the Building Code.

  3. The Commission recognizes that there may be many inspections that occur during the construction of a building. However, the two day time frame set out in Article 1.3.5.3. of Division C of the Code applies only to the prescribed inspections outlined in Article 1.3.5.1 of Division C. It is the Commission’s opinion that the two day time frame applies to the initial prescribed inspection and not subsequent requests for inspections for the same construction.

Dated at Toronto this 10th day in the month of May in the year 2011 for application number 
I 2011-12.

Yaman Uzumeri, Chair Designate