Rec #		Recommendation	Management Response	Est Comp Date	Status Updates (In Progress; Pending; Complete; Requires Resolution)
1	That the Building Code Services Branch (BCSB) ensure the documentation received with the Application For a Permit to Construct or Demolish is complete in all cases, as we found in this case the documentation provided with the application for demolition was not complete.		Management does not agree with the recommendation. Management does not agree that there were procedural omissions with regard to the applications for demolition and construction at 215 Preston Street. Building Code Services (BCS) did receive sufficiently detailed documentation to ensure that the proposed demolition and construction was reasonable and could be carried out in accordance with the Building Code. It is the role of the Chief Building Official (CBO) to determine the sufficiency of information supporting an application based on the unique set of circumstances and conditions of each project and the CBO’s interpretation of the requirements and standards as they apply to the application. In this instance, the submissions were deemed sufficient for the purpose of issuing the permits.		December 2009: Requires Resolution.
2 2	That the BCSB advise property owners that the Branch reserves the right to verify the actual construction cost and to adjust the fees accordingly. If this cannot be done, that the BCSB implements a database of cost per unit area to permit it to verify the budget estimates provided with the application.		Management does not agree with the recommendation. In the absence of legislative authority, there is no basis for verifying the actual construction costs and adjusting the fees after the permit has been issued and the construction completed. The process of verification of estimated value of construction and adjusting undervalued fees prior to the issuance of the permit is already in place. This is a standard practice of municipalities that assess fees based on the value of construction. While the branch maintains a database of cost per unit area for new construction, it is too difficult to obtain a cost per unit area for renovations due to the nature of this construction activity (too many variables and unknowns). The building permit fee is based on “assessed valuation of the work”, which is not the same as the “actual construction costs”. An “Architect’s estimate of costs” may include many elements, which do not form part of the “assessed valuation of the work”, and which may vary greatly from the “actual construction costs”, due to many unquantifiable factors. Finally, the Building Code Act and Building Code prevent the permit fees collected from exceeding the cost of providing the service, along with reasonable reserves to offset liability and construction fluctuations. The Chief Building Official is legislatively required to provide an annual report on these matters, and any request for increases are subject to consultation with the industry and public.		December 2009: Requires Resolution.
3	That the BCSB ensure all files are properly documented and complete, including a complete record of telephone conversations, for future reference and possible litigation.		Management does not agree with the recommendation. It is the current practice for staff to document observations and key discussions, particularly where conflict and/or litigation is anticipated. However, it is not possible, from a time-management perspective, to document all communications. Each Building Official must make a subjective assessment of the relevance of the communication and the degree of recording based on the circumstances at the time of the communication. Further, a requirement that all files include a record of all telephone conversations would require significant additional resources and investment in technology, for the few occasions where conflict arises.		December 2009: Requires Resolution.
4 4	That Occupancy Permits be issued only when all the construction review reports by all professionals have been received to the satisfaction of the City.		Management does not agree with the recommendation. In 2002, the branch established an operational policy that requires all required construction review reports to be submitted prior to the issuance of the “partial occupancy permit”; although the OBC only requires this threshold to be met prior to the “final occupancy permit” being issued. As a best practice, BCS moved this threshold to an earlier stage because once a building is occupied it becomes more difficult to address outstanding deficiencies. In this instance, based on the Architect’s assurance that the reports would be submitted in short order and relying on the professional integrity accorded an Architect and their legal responsibilities under the Architect Act, the Inspector issued the partial occupancy permit. The Architect subsequently notified the City that he and the Structural Engineer of Record would not produce the reports due to a dispute with their client, which has yet to be resolved. The Architect alleged there were welding deficiencies, and on this basis, an occupancy permit should not have been issued. As they are lawfully entitled to, the owners engaged the services of two other engineering firms, one specialized in welding, to carry out the reviews and provide the required reports. These reports confirmed the structural adequacy of the welds and the structure; therefore, the partial occupancy permit was allowed to stand as the requirements for partial occupancy had been met. Finally, it is noted that there are no areas of the building being used that are prohibited from use and occupancy, although the final occupancy permit has not been issued (only the partial) and the permit file remains open.		December 2009: Requires Resolution.
5 5	That Inspectors be instructed to actively monitor sites for which an application for building permit has been submitted, including access to the site if necessary.		Management does not agree with the recommendation. Such inspections would serve only to document the fact that illegal construction or demolition is continuing. As well, caution must be taken to ensure that any inspections, prior to the issuance of a permit, not be for the purpose of reviewing the illegal construction for Code compliance, nor appear to do so, as this would encourage illegal construction to continue. The implementation of this recommendation will require additional resources to integrate these inspections in addition to the mandatory inspections, which form the basis of the City’s existing program and service delivery levels. This recommendation will be explored when the branch’s Strategic Branch Review is undertaken in Q2 2009, as this review will be an appropriate forum to consider higher service delivery levels. In this instance, the Inspector was well aware of the on-going illegal construction activities, had issued the requisite Orders and a court action had commenced. Any additional inspections after the Stop Work Order was issued and prior to the completion of the construction (a 7 week period) would have confirmed only that illegal construction was continuing, which was already known to staff and sufficiently documented for purposes of the court case. Additional resources would have been required to monitor the site more frequently.		December 2009: Requires Resolution.
7	That the City require that structural review letters be reviewed by the City’s Structural Review Engineer in cases similar to the subject project.		Management does not agree with the recommendation. Building Officials (Plans Examiners and Building Inspectors) are qualified by the Province of Ontario to review structural review letters. In addition, the branch provides Building Officials valuable in-house training to sufficiently equip them to review the reports and render a decision as to adequacy. The Building Officials do consult with the branch’s Building Code Engineers in cases where they do not feel that the review letters are adequate or where the issues are of such complexity as to require additional review. In this case, the reports submitted by the engineering consultant were considered sufficient for purposes of determining compliance.		December 2009: Requires resolution.
9	That in future similar situations where an architect, engineer, or other professional regulated by a professional regulatory body, appears to have engaged in conduct unbecoming the standards expected by such a professional and/or where the public interest demands, the City pursue complaints to the OAA, or other such professional body as the case may be.		Management agrees with the recommendation. However, in order to effectively implement this recommendation, additional specialized resources (1 FTE, vehicle, equipment, training and qualification and work space – minimum $125K) would be required to investigate, document and refer complaints to the governing bodies where the actions or omissions of the professionals have undermined the Building Code Act and the OBC or the CBO’s ability to enforce the legislations. This will be explored when the branch’s Strategic Branch Review is undertaken in Q2 2009, as this review will consider changes to program and service delivery levels.		December 2009: Pending. The Strategic Branch Review program has been discontinued. When a new program is implemented in its place, the branch will include this higher standard for consideration.
10	That the City develop a policy by which the BCSB can request an injunction or restraining order to ensure that the Owner complies in cases of disregard for the rules, such as this example.		Management does not agree with the recommendation. Each case must be evaluated on its own merits and the option to seek an injunction is already available in the Building Code Act and has been resorted to in the past, as circumstances have warranted. In addition, the seeking of injunctions requires considerable resource allocation, on the part of both BCS and Legal Services. Additional resources would be required to implement a more aggressive enforcement strategy. Whether injunctions are obtained is a determination of the Court and they are only granted in extraordinary circumstances. In this instance, BCS did undertake the necessary inspections, did issue the required Orders and did successfully prosecute the owners of 215 Preston Street. Once the owners obtained the requisite planning approvals, a permit was issued, construction was inspected and it was determined to meet the minimum OBC standards.		December 2009: Requires Resolution.
11 11 11	That the BCSB ensure compliance with the Building Code Act and not try to balance the BCSB enforcement obligations and requirements with the business objectives of the Owner.		Management does not agree with the recommendation. BCS did escalate enforcement action when the owners failed to comply with the Orders and successfully prosecuted the owners. Once the owners had obtained the requisite planning approvals, a permit was issued, construction was inspected and it was determined to meet the minimum OBC standards. The Act is written in terms of imperative “shall” and permissive “may” statements. While the CBO and Building Inspectors “shall” enforce the Code, they “may” issue Orders, and “may” prosecute. The reason for this disparity, in language, is that the legislators recognize that enforcement is achieved when there is compliance. This is usually arrived at without the necessity of either Orders or prosecutions and is usually in response to an incremental escalation of enforcement options. In addition, the CBO is a persona designata deriving authority from the Building Code Act, with responsibilities defined by, not only the Act and the OBC, but also by the Building By-law, Ministry rulings, the Building Code Commission and the Building Materials Evaluation Commission rulings or decisions, and more importantly, by the judicial system (court decisions and common law principles). How the Act and Code are interpreted and implemented is very much couched or formulated from best practices, legal principles and actual court case precedents. In fact, there are only three entities that can determine Code compliance: the Chief Building Official, the Building Code Commission (for sufficiency only) and the Courts. The Courts have held that the Act is “a complex piece of legislation which is, in general terms, aimed at setting and enforcing standards for all manner of construction and building projects in Ontario.” In this regard, the complexity and technical nature of the Act require flexibility and balancing of various factors. There is an expected degree of reasonableness and flexibility to account for other variables, including business and practical realities of the property owner and the building industry. Thus, the branch mandate refers to the regulation of construction of buildings, first through leadership, education and collaboration. If these approaches fail in obtaining compliance, then through enforcement, including prosecution, etc. This was the approach adopted for this particular case and although orders, court prosecution, etc., were required, the construction was made compliant and the occupancy permit was eventually issued. If the CBO does not have discretion or flexibility in the administration or enforcement of the OBC, this could lead to unintended and undesirable results of increased Code non-compliance and may force aspects of the building industry “underground”. Diversion of this nature would defeat the objectives of the Act which seeks to ensure minimum standards for building construction in Ontario. Finally, there is misapprehension as to what BCS is attempting to balance. It is not the needs of an individual business owner. Rather, it is recognition of the realities of a fast-paced development construction industry and the benefits to the broader public. The objective is to ensure that the construction will achieve Code compliance and that there is a sufficient discipline within the industry to enable this to occur.		December 2009: Requires Resolution. .