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ONTARIO UILDING OFFICIALS ASSOCIATION
Issue 95/September 2012
OBOA Strategic Plan 2012+ "...our association now has a strategic plan to guide it's decision-making and operations
CHIEF BUILDING OFFICIALS AND RENEWABLE ENERGY PROJECTS
See Chris Williams, p.5-9
AIRD & BERLIS LIP over the coming years..." This es E~~hi~hifo.....G" p . o referred to i __ n ................. _.._r, . , . _ _ t Barristers and Solicitors
P. 56
PRESIDENT'S MESSAGE
Implementing the Plan The 2012 OBOA Board of Directors and Leadership Team continue to make great progress on implementing the new OBOA Strategic Plan 2012+. The new strategic plan is ef-fectively guiding the work of the association's Board, staff and volunteers to ensure that OBOA is best positioned to achieve its full potential, and take Ontario's building official profession to the next level. Continuing with the theme of 'Implementing the Plan', I wish to highlight our progress in respect to another Strategic Priority.
Government Relations OBOA 2012+ Strategic Priority [SP4] 'Government Rela-tions'; the corresponding Strategic Goal being:
• To be an active voice for the profession on building regulatory issues by drawing on members' expertise and collaborating with other organizations
To achieve this goal, the Board developed Implementation Strategies [IS] which include:
• leveraging our relationship with the Ministry of Municipal Affairs and Housing (MMAH) to secure results that address members' concerns [IS4.1];
• developing a program to mobilize subject matter expertise within the membership [IS4.2];
• enhancing relationships/partnerships with CBOs/CBO groups [IS4.3]; and
• pursuing opportunities to collaborate with industry/professional associations [IS4.4].
Our progress on achieving this goal has involved represen-tation and participation on various MMAH, Office of the Ontario Fire Marshall, industry/professional associations, and education sector task forces, panels, committees, and boards. Examples of this involvement include:
Ministry of Municipal Affairs and Housing: - On-site Sewage System Study Project Advi-
sory Committee
- Glass Panels in Balcony Guards Expert Advi-sory Panel
- Accessible Built Environment Enforcement Stakeholder Working Group
- Next Edition of the Building Code Stakeholder Group
- Training and Qualification Discussion Group
- Building Advisory Council
Office of the Ontario Fire Marshall: - Fire Marshall's Public Fire Safety Council
- Vulnerable Occupancies Technical Advisory Committee
- Ontario Fire Code Technical Advisory Com-mittee
Industry/Professional Associations: - Ontario Association of Certified Engineer-
ing Technicians and Technologist Institute of Engineering Technologists of Ontario Board
- Engineers Architects Building Officials Joint Committee
- Ontario Municipal Administrators Association Municipal Management Accreditation Action Team
Education: - George Brown College School of Architectural
Studies Program Advisory Committee
Our progress on achieving this goal through such involve-ment not only recognizes the progressively expanding role of Ontario's Building Officials, but also demonstrates OBOA's commitment to ensuring a safer and a more sus-tainable and accessible Ontario, while advancing the Build-ing Official profession. [OBOA 2012+ vision statement: "Ensuring a safer and a more sustainable and accessible Ontario by advancing the building official profession".]
21 Ontario Building Officials Association
i P. 57
Further, our work toward achieving this goal reinforces OBOA's mission to support the profession in ensuring a safer and a more sustainable and accessible Ontario by working with industry partners and providing a voice to policymakers. [OBOA 2012+ mission statement: "OBOA supports Ontario building officials in ensuring a safer and a more sustainable and accessible Ontario by delivering training and certification, promoting uniform code applica-tion, working with industry partners, providing a voice to policymakers, and advancing the profession':]
Government Relations has long been, and will continue to be a core activity for OBOA. We intend to continue building on the close relationship we have established with the Min-istry of Municipal Affairs and Housing, and other industry stakeholders and partners to ensure we provide an even more active voice to government on building regulatory is-sues and professional and educational related matters.
Respectfully submitted, Leo J. Cusumano OBOA President
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SEPT 2012 I ISSUE 95 1
i P.58 —
NEVADA
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41 Ontario Building Officials Association
i P.59 -
LEGAL CORNER
CHIEF BUILDING OFFICIALS AND RENEWABLE ENERGY PROJECTS July 27, 2012
INTRODUCTION As evidenced by appeals to the Ontario Municipal Board, Court applications, and the enactment of prohibitory by-laws by various municipalities, there is a growing conflict between municipal governments and provincially sanc-tioned renewable energy projects. The Green Energy Act, 2009 1 , enacted in the spring 2009, has taken away tradi-tional planning authority for many types of energy projects which meet the definition of a "renewable energy project'. While certain types of energy projects were previously im-mune from municipal planning regulation, the Green En-ergy Act, 2009 graphically brought home the fact that the Province was no longer willing to permit prohibition or reg-ulation of renewable energy projects at the municipal level. Unfortunately, the Green Energy Act, 2009, the various pieces of legislation that it amended and the regulations which spun off it have led to confusion as to what consti-tutes a renewable energy project and what, if any, municipal regulatory role there is left.
As the custodians of building permits and the enforcers of the Building Code and the Building Code Act, 19922, it can be assumed that Chief Building Officials will be asked to determine whether attempts by municipalities to regu-late or prohibit renewable energy projects constitute "ap-plicable law", whether the project in question meets the definition of a "renewable energy project", whether the pro-vincially imposed conditions have been met, and whether your municipal Councils will understand the independent role that Chief Building Officials are required to take, even when dealing with highly unpopular structures in their com-munity.
This article will provide some background and context by exploring the traditional municipal regulatory role of energy projects through the Planning Aci 3, the change brought by the Green Energy Act, 2009 as regards to "renewable
1 Green Energy Act, 2009,s.0. 2009, c. 12, Sched. A. 2 Building Code Act, 1992, 5.0.1992, c. 23. 3 Planning Act, R.S.O. 1990, c. P.13. 4 Municipal Act 2001, SO. 2001, c. 25.
energy projects", what is a "renewable energy project" and whether there has been any regulatory jurisdiction left for municipalities. We shall then briefly touch on the role of the Chief Building Official, what is and now what is not ap-plicable law as it relates to renewable energy projects and how Chief Building Officials should deal with this issue.
FORMER MUNICIPAL ROLE IN THE REGULA-TION OF ENERGY PROJECTS Many energy projects would meet the definition of "build-ing" in the Building Code Act, 1992 and would also be considered "development" or a "use of land" as contem-plated by the Planning Act (e.g. hydro-electric generating stations, gas-fired generating stations, ethanol plants, wind turbines, etc.). These projects would therefore require con-formance to municipal planning and other regulatory by-laws and enactments, as well as a building permit in con-formance with the Ontario Building Code and the Building Code Act, 1992. For example, under the Planning Act energy projects would have to conform to Official Plans, zoning by-laws and related by-laws enacted under Part V of the Planning Act; receive site plan approval pursuant to section 41 of the Planning Act; if required, obtain a minor variance under section 45 of the Planning Act; and con-form to whatever conditions are attached pursuant to the subdivision and consent authorities as set out in Part VI of the Planning Act.
In addition, municipalities, through the Municipal Act, 2001, have some other authorities of a regulatory nature which could be applied to energy projects. The authority set out in subsection 10(2) of the Municipal Act, 2001, which could be of interest if regulating energy projects in-clude:
"... 5. Economic, social and environmental well-being of the municipality.
6. Health, safety and well-being of persons.
8. Protection of persons and property, including consumer protection. ..."
There are also a few specific powers that could theoreti-cally apply to regulate energy developments. These in-clude: section 28 relating to the regulation or prohibition of public nuisances, and section 129 relating to the ability to regulate noise and vibration by by-law and section 129 permits a municipality to regulate or prohibit odour, dust and outdoor illumination.
SEPT 2012 IISSUE 95 1 5
LEGAL CORNER CONT'D
.1
Therefore, energy projects of many sorts were subject to comprehensive municipal regulation and control set out in both the Planning Act and the Municipal Act, 2001. Some energy projects, however, had been treated a little differently, even before the Green Energy Act, 2009 came into effect. For example, subsection 62(1) of the Plan-ning Act exempted all Hydro One projects approved under the Environmental Assessment Act. These would involve most, if not all, Ontario hydro power generation facilities. In addition, section 62.0.1 of the Planning Act exempted all energy undertakings approved under Part II of the Environ-ment Assessment Acts or exempted under that Act if a regulation under subsection 70(h) of the Planning Act was in effect. This broad exemption authority could apply to any energy project of any sort in the province whether public or private. Only one project however, a gas-fired electrical generating facility in the Township of King, has been desig-nated by regulation. Restrictions or exemptions for energy projects from Planning Act control are also (confusingly to say the least) found in other pieces of legislation. For ex-ample, section 46.1 of the Electricity Act, 19986 provides permanent grandfathering for all electrical generating and transmission distribution facilities that existed in 1999 from the Planning Act (query why this was not simply put into the Planning Act). The Ontario Energy Board Act, 19987 in section 128.1 provides that that Act and regula-tion supersedes all municipal by-laws and other Acts. The Court in Union Gas Ltd. v. Dawn (Township)8 in 1977 determined that such a provision meant that there was absolutely no municipal planning control over gas pipeline and transmission facilities subject to the Ontario Energy Board Act°.
Therefore, prior to the Green Energy Act, 2009 with sev-eral important exemptions, there was typical municipal planning and regulatory control over energy generation projects. The current controversy flows not from these exemptions but from the changes effected by the Green Energy Act, 2009.
THE GREEN ENERGY ACT, 2009 The Green Energy and Green Economy Act, 2009 was introduced for first reading in February of 2009 and fol-lowing a fast-tracked legislative process, received Royal Assent on May 14, 2009. It had a number of objectives, including the creation of more than 50,000 "green collar" jobs, encouraging energy conservation and positioning On-tario to be a leading nation in the generation of renew-able energy. It also sought to streamline and facilitate the regulatory approval process for renewable energy projects
5 Environmental Assessment Act, R.S.O. 1990, c. E.18. 6 Electricity Act, 1998, S.O. 1998, c. 15, Sched. A. 7 Ontario Energy Board Act, 1998, S.O. 1998, c 15, Sched. B. 8 Union Gas Ltd. v. Dawn (Township) (1977), 15 O.R. (2d) 722, 2
M.P..LR 23,76 D.LR. (3d) 613 (Div. Ct).
6 1 Ontario Building Officials Association
which was then divided between the Ontario government through several ministries and municipalities. The Green Energy Act, 2009 carves out a new class of land use, a "renewable energy project". The definition put forward by the Green Energy Act, 2009 which found its way into vari-ous other pieces of legislation, including the Planning Act, defines a renewable energy project as:
"... the construction, installation, use, op-eration, changing or retiring of a renewable energy generation facility; " 70
A renewable energy generation facility is defined as:
"... a generation facility that generates electricity from a renewable energy source and that meets such criteria as may be prescribed by regulation and includes as-sociated or ancillary equipment, systems and technologies as may be prescribed by regulation, but does not include an associ- ated waste disposal site, unless the site is prescribed by regulation for the purposes of this definition;'t 1
A renewable energy source is then defined as:
"... an energy source that is renewed by natural processes and includes wind, water, biomass, biogas, biofuel, solar energy, geothermal energy, tidal forces and such other energy sources as may be prescribed by the regulations, but only if the energy source satisfies such criteria as may be prescribed by the regulations for that en-ergy source; "12
Regard, therefore, must also be had to regulations.
The Green Energy Act, 2009 establishes an entirely new land use regulatory scheme for such renewable energy projects. Firstly, the Planning Act is amended to remove its application to renewable energy projects.
As well, the City of Toronto site plan authority no longer ap-plies and neither do orders made under the Ontario Plan-ning and Development Act, 199413 regarding ministerial zoning and minor variance orders previously applied to re-newable energy generating facilities or renewable energy projects.
Concurrently, a new part is added to the Environmental
9 Ontario Energy Board Act, R.S.O. 1970, c. 312. 10 Green Energy Act, 2009, s. 1(1). 11 Ibid.; Electricity Act, 1998, S.O. 1998, c. 15, Sched. A, s. 2(1). 12 Green Energy Act, 2009, s. 1(1). 13 Ontario Planning and Development Act, 1994, SO. 1994, c. 23, Sched. A.
P. 61
Protection Act74 being V.0.1 (Renewable Energy) creat-ing a new one stop approval regime for renewable energy projects exclusively through the Ministry of the Environ-ment. It exempts renewable energy projects from all oth-er areas of the Environmental Protection Act and other legislation such as the Ontario Water Resources Act15 so that only one single approval is required being pursuant to section 47.3 of the Environmental Protection Act. The criteria and requirements for such approvals are set out in 0. Reg. 521/10. Under the regulation, municipalities are to be consulted (as are other people) and there is a formal public consultation process set up. The normal ap-peal process under the Environmental Protection Act and the Environmental Bill of Rights is limited for renewable energy projects so that a third party disputing a renewable energy project can have a hearing before the Environmen-tal Appeal Tribunal only if the party is able to establish that the undertaking would cause either serious harm to human health or serious irreversible harm to plant life, animal life and natural environment.
In short, rather than being the primary regulator through the land use planning process for renewable energy un-dertakings, municipalities have been relegated to the role of commenting agencies with very limited ability to require any sort of review of a decision by a Director regarding the issuance of a permit for the renewable energy project. This truncated role for municipalities has not gone down well in communities where controversial and unwanted projects (often wind farms) are proposed and approved through the Environmental Protection Act.
IS THERE ANY MUNICIPAL ROLE LEFT? As noted above, there are some specific and some general municipal regulatory powers available which could apply to renewable energy projects under the Municipal Act, 2001. While section 14 provides that municipal by-laws are of no effect if they conflict with Provincial legislation, regulations, licences or approvals, the concept of conflict has to date been narrowly applied by the Courts where the Courts be-lieved that the municipalities were attempting to regulate or prohibit, in the interest of public health and safety and environmental protection. 16 Prohibiting what other levels of government had permitted did not, in the Court's mind, necessarily amount to a conflict.
It should be noted, that subsection 5(1) of the Green En-ergy Act, 2009 allows the Lieutenant Governor in Coun-cil, by regulation, to designate renewable energy projects which are not subject to any municipal regulation under use
14 Environmental Protection Act, R.S.O. 1990, c. E.19. 15 Ontario Water Resources Act, R.S.O. 1990, c. 0.40. 16 See Croplife Canada v. Toronto (City) (2005), 75 O.R. (3d) 357;
and 114957 Canada Ltee (Spraytech, Societ€ d'arrosage) V.
Hudson frown), 2001 SCC 40,1200112 SCR 241.
or operation. The regulation that was enacted pursuant to this section, designates solar and geothermal generation facilities but not wind.
There is an argument that there remains some municipal role, relying on the above-referenced authorities, to deal with certain types of renewable energy projects, in particu-lar wind power. These of course have generally become the most controversial of renewable energy projects. An important issue, however, remains that depending upon the extent of regulation (e.g. a de facto prohibition), whether they would in fact fall under section 14 of the Municipal Act, 2001 as being in conflict with the Environmental Pro-tection Act regime for renewable energy approvals. Re-cently, some municipalities have decided to test the limits and have enacted by-laws which regulate or in some cases de facto prohibit wind farms.
APPLICABLE LAW, RENEWABLE ENERGY PROJECTS AND THE ROLE OF THE CHIEF BUILDING OFFICIAL As noted, most renewable energy projects would require a building permit to be issued by the Chief Building Official pursuant to section 8 of the Building Code Act, 1992. As is well known, subsection 8(2) sets out the prerequisites (6) for a building permit and if they are met, there is no dis-cretion on the part of the Chief Building Official to not issue the permit. Of interest in this discussion is section 8(2)(a) which states that the proposed renewable energy project, building or structure must not contravene any other appli-cable law. The controversy over what constituted "other applicable law" was ended with the enactment of article 1.4.1.3 of the 1997 Ontario Building Code which specifi-cally enumerated the list of "applicable law" now found in article 1.4.1.3 of the Building Code. While not altogether certain, it appears that the definition set out in article 1.4.1.3 is exhaustive. Applicable law includes, amongst many other things, development plans under the Ontario Planning and Development Act, 1994, zoning and related by-laws made under the Planning Act, site plan approval under section 41 of the Planning Act, by-laws and other enactments pur-suant to the development permit regulation under the Plan-ning Act, and site plan approval provisions set out in the City of Toronto Act, 20061 7 Notably, all of these planning authorities have been removed from the regulation of re-newable energy projects. Significantly, article 1.4.1.3 was amended to add section 47.3 of the Environmental Pro-tection Act, with respect to the requirement for renewable energy approvals. It appears therefore that with respect to a renewable energy project, if a permit has been issued
17 City of Toronto Act, 2006, 5.0, 2006, c. 11, Sched. A
SEPT 2012 ISSUE 95 7
P.62 I -
LEGAL CORNER CONT'D
by a director pursuant to section 47.3 of the Environmen-tal Protection Act then the only "applicable law" that the Chief Building Official needs to consider is section 47.3. The situation is of course different for conditional permits as their "applicable law" means any general special Act and all regulations and by-laws enacted thereto that prohibit the proposed use building.
Controversy could arise for Chief Building Officials in a couple of ways. Firstly, a municipality may enact a by-law regulating or prohibiting a wind farm development on the basis of its general Municipal Act, 2001 authority, as set out above. For a normal building permit, that would not ap-pear to be applicable law. However, if a conditional permit were sought, it could be. It is possible as well, that a mu-nicipal Council may advance the proposition that the scope of applicable law as it applies to full permits is not entirely exhaustive and that a permit should not be issued. This is tried from time to time. For example, see Simcoe (County) District School Board v. Oro-Medonte (Township). 18
Another area of controversy which could be advanced by a municipal Council that was opposed to an energy project is that it did not meet the precise definition of a "renewable energy project". Given the rather complex and convoluted definitions (often requiring you to look at different Acts and regulations) could create some confusion. Another inter-esting question is, can a Chief Building Official go behind a permission or approval issued by a director under section 47.3 of the Environmental Protection Act to see that in fact all prerequisites were complied with leading up to the ap-proval? As well, there could be conditions attached to such approval. Is it then up to the Chief Building Official to en-sure that such conditions are properly fulfilled before issu-ing a building permit? What if ongoing conditions or terms of the renewable energy permit, such as noise monitoring, were violated? Could the building permit be revoked?
A Chief Building Official may find itself in the unpopular position of issuing a building permit which conforms to ap- plicable law in the face of very express and clear municipal
18 Simcoe (County) District School Board v. Oro-Medonte (town-ship) (2007), 2007 CarswellOnt 6799,56 M.P.LR. (4th) 231.
opposition, including by-laws which would not be included with "applicable law" prohibiting same. The roles and con-flict between municipal Council and Chief Building Officials has been explored at length in a series of articles in this magazine by Mr. Longo and myself in 2008 and 2009. A Chief Building Official must operate independently of the will or desires of Council and is to be guided only by the Building Code and the Building Code Act, 1992 in issuing permits or otherwise enforcing the provisions of the Build-ing Code Act, 1992 and the Building Code. The Courts have come down very hard on Chief Building Officials, mu-nicipal staff and Councils where it appears that the Chief Building Official was influenced into taking a position that was at odds with the requirements of the Building Code Act, 1992 or the Building Code.
WHAT TO DO? It appears possible that some municipal Councils and their Chief Building Officials will be on collision courses regard-ing the issuance of permits for which certificate or approval has been issued under section 47.3 of the Environmental Protection Act for-a renewable energy project. There may be situations where such a project, particularly if it is a wind farm, could be on its face prohibited by-laws enacted by a municipality pursuant to the Municipal Act, 2001. The role of the Chief Building Official, however, is to be guided by what is set out in the Building Code Act, 1992 and the Building Code. It appears clear that if the certificate of approval is issued by the Director under section 47.3 of the Environmental Protection Act, there should be no room for any other municipal regulatory by-law to be considered applicable law and so a building permit should be issued. That may not make your municipal Council happy but it ap-pears to be the law.
Mr. Christopher Williams and his colleagues, Leo Longo and John Mascarin welcome your input regarding future articles. They can be reached at cwilliams@airdberlis. com; [email protected] and jascarin@airdberlis. com.
"You have the most importantrofession ~ that public safety relates to ublic safet in the world.
There is the appropriate statement that summarizes this statement:
We are the Ontario Building Officials Association.
8 i Ontario Building Officials Association
i P. 63
MMAH AWARDS
AWARDS AND RECOGNITION MMAH Building & Development Branch wins Partnership/Commu-
nity Building Award ; Energy Implementation Project Team
From right to left: Deputy Minister William Forward, Heather Black, Honourable Minister of Municipal Af- fairs and Housing Kathleen Wynne, Stephanie Costantino, Cengiz Kahramanoglu, James Douglas, No-
elle Richardson (selection committee), Ben Pucci. Ralph Digaetano on the team is absent.
The award recognizes the team responsible for delivering new energy requirements of the Building Code which sup-port public policy goals around energy conservation and the needs of the building sector. Energy Implementation Project Team members worked in close partnership with the sector to identify and respond to implementation is-sues, and prepare materials that have helped ensure that builders, designers and enforcement officials have the ca-pacity to apply the new requirements. Team members have gone above and beyond the call of duty to provide a supe-rior level of customer service and ensure the success of an important government initiative.
The implementation of new energy conservation code re-quirements included the creation of an industry stake hold-er group. The industry group included membership of four stake holders; Ontario Building Officials Association, Large Municipality Chief Building Officials Association, Ontario Home Builders Association and MMAH Building & Devel-
opment Branch staff. The stake holder group was formed to assist with the transition of the substantial energy con-servation changes (SB 12). The stake holder group started to meet in-advance of the January 1, 2012 effective date. In fact, the stake holder group continues to monitor the in-dustry issues that arise with these changes and has revised and created new documents to assist with the implementa-tion.
For all the up to date documents and releases on energy conservation, members are encouraged to continue visiting the OBOA website @ www.oboa.on.ca .
OBOA PROVINCIAL OFFICE 200 Marycroft Ave. Unit 8,
Woodbridge, Ontario L4L 5X4 (905) 264-1662 www.oboa.on.ca
SEPT 2012 1 ISSUE 95 ~ 9
P. 64
CHAPTER STUDENT SPONSOR
Conestoga College, 2012 Awards Banquet
From left to right: Sean Cook; Peter Finn Building Code Excellence Award (3rd year), Glen Good, Justin Massecar (1st year), Jim McCabe, Jarris Jantzi (2nd year). Absent Nathan Heyer (2nd year)
The OBOA Strategic Plan 2012+ includes a number of Strategic Priorities including Government Relations and Public Awareness. In support of these two directives, I at-tended the Architecture Construction Engineering Technol-ogy 2012 Awards Banquet in April. The main purpose of attending the banquet was to present building code awards on behalf of local building officials and the OBOA and to promote awareness. Four awards were presented to stu-dents that demonstrated a high proficiency in building code excellence.
Conestoga College is one post-secondary institution that offers a 3 year diploma program for students and supports graduates securing full-time employment with design pro-fessionals, construction companies and a building official career.
One of the benefits of participating in events such as the awards banquet is supporting learning and development of code knowledge and increased awareness of Building Officials. Four students were recognized and rewarded for excelling in Building Code knowledge while the remaining students gained an appreciation in code knowledge. The learning and application of the Building Code is a good
investment as this awareness will benefit the student down the road; applying for building permits and/or working on a job site. The second benefit relates to the awareness and recruitment of students to the opportunity of a full-time municipal building official. The OBOA continues to invest time and money to raise awareness of this career oppor-tunity as other construction sectors attempt to attract the same student.
Mike Selling
Region D (Halton, Grand Erie, Niagara & Wellington Waterloo Chapters)
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UPDATE
Ted Allen Supervising Prosecutor Region of York tedallen@yorkca
Update on Two Matters; Davis v. City of Guelph - Appeal to the Supreme Court of Canada.
York v. Martin Grove Properties - Appeal to the Supreme Court of Canada
Update on Davis v. City of Guelph — Appeal to the Supreme Court of Canada
Just when you think it is over, it isn't over. The Davis matter was the issue where the Superior Court of Justice determined that there was bias regarding the city official who was dealing with a standing water bylaw and a property standards bylaw, that the city entered the property illegally to complete an inspection, that a swim-ming pool is a "dwelling", and that costs were to be shared by the homeowner and the municipality regarding the dam-age found concerning the pool.
The City of Guelph appealed the Judges decision and the Court of Appeal for Ontario reversed the lower courts rul-ings, which meant there was no bias regarding the city em-ployee, the city did not enter the property illegally, a swim-ming pool is not a "dwelling" and that the Building Code Act does not give the Judge authority to require the municipal-ity to share costs.
Over yet? Not quite. The defence (Davis) appealed this decision to the Supreme Court of Canada. This means Davis had to "Seek leave to appeal" which means the Judge must review the particu-lar circumstances of the case and determine if it is in the public interest, or for the due administration of justice, that leave be granted to proceed to the Supreme Court of Can-ada so as to have the appeal heard.
On May 24, 2012 The Supreme Court of Canada refused Leave to appeal the Davis v. City of Guelph decision (Case # 34637), which means the Court of Appeal decision stands.
Now it's over. Update on York v. Martin Grove Properties
Same thing, just when you think it is over, it isn't over. This was the matter where the Ontario Court of Justice at the Justice of the Peace level and the Ontario Court of Justice at the Judge level, ruled that the limitation period in the Building Code Act (BCA) applied to orders to comply.
On November 10, 2011 the Ontario Court of Appeal heard the Regional Municipality of York v. Martin Grove Properties Ltd. appeal matter, and reversed the decision of the two lower courts.
The decision says orders are irrelevant to the determina-tion of the limitation period, and once an order to comply has been issued, the municipality has one year from the date that the order has not been complied with, to lay the charge, even if it has been greater than one year since the actual offence.
Over yet? Not quite. Martin Grove Properties appealed the decision to the Su-preme Court of Canada. On Thursday May 12, 2012, The Supreme Court of Canada dismissed Martin Grove's Leave to Appeal application. That means The Ontario Court of Ap-peal decision stands.
Now its over.
Ted Allen Supervising Prosecutor Region of York [email protected]
This article does not constitute legal advice, is the opinion of the author, and does not reflect those of the Region of York.
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SEPT 2012 ISSUE 95 13
i P. 68
OAA
The 2030 Challenge and 2030 Challenge Education Program
In an effort to transform the global building sector from the major consumer of fossil fuels and contributor to green-house gas (GHG) emissions to a central part of the so-lution to the energy and climate change crisis, the 2030 Challenge has been endorsed by the Ontario Association of Architects (OAA) and Architecture Canada/RAIC as part of its commitment to promote sustainable design as a recognizable skill of its members and other Canadian orga-nizations within the design and construction sector, such as the Ontario Building Officials Association (OBOA).
It was in 2009 that the OAAs Council approved a motion to adopt and advocate the 2030 Challenge, which now coincides with the first item of the mandate of the OAAs Sustainable Built Environment Committee (SBEC) — to advance the principles and goals of sustainable built envi-ronments by expanding and developing the membership's knowledge, skills and understanding of sustainable design matters.
The 2030 Challenge was created in the U.S. by Architec-ture 2030, an independent, non-profit, non-partisan re-search organization, and was established in response to the energy and global-warming crisis in 2002. Its mission is to transform the global building sector from the major consumer of fossil fuels and contributor to GHG emissions to a central part of the solution to the energy and climate change crisis.
Specifically, the 2030 Challenge calls on the global archi-tecture and building community to adopt specific targets: All new buildings, developments and major renovations shall be designed to meet a fossil fuel, GHG-emitting, en-ergy consumption performance standard of 60% below the regional average (or country average) for that building type. At a minimum, an equal amount of existing building area shall be renovated annually to meet the same performance standards.
In 2006, Architecture 2030 issued the American Institute of Architects (AIA) 2030 Challenge Education Program, a measured and achievable strategy to dramatically reduce global building sector energy consumption and GHG emis-sions by the year 2030.
These targets may be accomplished by implementing in-novative sustainable design strategies, generating on-site renewable power and/or purchasing (20% maximum) re-newable energy and/or certified renewable energy credits.
The AIA 2030 Challenge Education Program helps pro-fessionals create buildings that meet the energy efficiency goals of the 2030 Challenge. Ten 4-hour sessions offer strategies to reach 60% reduction in fossil fuel GHG emis-sions, giving design professionals the knowledge and le-verage to create next-generation, super-efficient buildings — and providing firms and individuals with the skills that will set them apart in the marketplace. The program also includes the AIA's 50to50 program: Techniques for carbon and energy reduction in buildings; 50 strategies toward 50 percent fossil fuel reduction in buildings.
Consequently, the OAA is currently negotiating a contract with Architecture 2030 to adopt and adapt the 2030 Chal-lenge Education Program to offer it as one of the Con-tinuing Education options. The OAA also intends to offer the program to other organizations within the design and construction sector, including the OBOA
The AIA 2030 Challenge Education Program is a compre-hensive curriculum developed by expert architects and en-gineers. While the OAA is adopting and adapting the pro-gram, and although the outlines of the sessions, the core of the curriculum package (created in the U.S.) already exist, the information and organization of the program will largely stay the same. Smaller nuances in Canadian and Ontario's cultures, codes, measurement systems and technical sys-tems, will need to be accounted for.
Notably, the program will firstly offer the opportunity for fa-miliarizing the design and construction industry with con-temporary information on sustainability, and its assump-tions and methods toward its attainment. Secondly, it will also offer the opportunity for lively interchange — question-ing and debating those assumptions and methods and what they accomplish.
After all, the concept of sustainability, its adherents and practitioners are — as well they should be — no less vulner-able to challenges to their assumptions and methods of im-plementation. The rapid morphing of sustainability from rel-
141 Ontario Building Officials Association
alive obscurity to a populist notion, whether due to climate change or natural or artificially-created resource shortages, e.g. OPEC's 1973 oil embargo — in itself, calls for alert, rational and (shall we say?) positive balanced skepticism.
In his fascinating book, Thinking, Fast and Slow, Daniel Kahneman cautions us: "Frequently mentioned topics pop-ulate the mind even as others slip away from awareness. People tend to assess the relative importance of issues by the ease with which they are retrieved from memory — and this is largely determined by the extent of coverage in the media (including the Design and Construction media). In turn, what the media choose to report corresponds to their
view of what is currently on the public's mind."
By adopting and promoting a unified program to address climate change and resource shortage, the design and construction industry can better position itself as a national leader on climate and energy issues. Offering the program helps the members of the OAA and related organizations to avoid, as much as possible, groping blindly through the common — and populist — concepts, assumptions and methods of implementation of sustainability, and leverage reliable and effective policy changes and opportunities for influence.
OBOA PROVINCIAL OFFICE 200 Marycroft Ave. Unit 8, Woodbridge, Ontario L4L 5X4
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SEPT 2012 IISSUE95I 15
P. 70
SUDBURY
(it1 ni ;r''u:1 lhnrt
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MESSAGE FROM THE MAYOR
As Mayor of the City of Greater Sudbury, I am pleased to welcome delegates from across
` ;! the province to the Ontario Building Officials CO,RoS ;,,o,;SIN'V , Association from Sept. 9 to Sept. 12. 10411 RtI1'SfRI[l `. ~ #f. Sll l711(IRY ON I'3A 519
(:I' silo Sll(:(: A /
I would like to extend the warmest of welcomes to all of our visitors to our beautiful 201)11(11. 111&111' ,
SLIL1RU111' ON 1'3A I community.
7i15.67d.4 155 t Building officials play a crucial role in every 7113 173.30%6
municipality. Greater Sudbury is in the midst of 4°"'"`},"'1l1° 1:u"",' a remarkable development boom right now trtvetgra idsndm in.ta
and local building officials are on the front lines. We are indebted to these dedicated men and women for the incredible work they do.
This week❑ s sessions will be an excellent opportunity for you to network with officials from across the province, attend informative seminars and continue to build on the professionalism for which the OBOA is known.
Conference organizers have also put together an exciting list of activities in the community for you to enjoy. If your busy schedule allows, please take some time to sign up for them and get to know our community better.
On behalf of City Council and the City of Greater Sudbury, I hope your stay in our community is safe and productive.
Yours sincerely,
Marianne Matichuk Mayor
16 1 Ontario Building Officials Association
i P. 71 —
Rick Bartolucci, M.P.P. Sudbur:'
Ontario
A personal message from Rick Bartolucci M.P.P. Sudbury.
Dear Members of the Ontario Building Officials Association:
First of all, welcome to Sudbury. While you're here please enjoy the incredible experience Sudbury holds in store for you and your colleagues.
Your Association is highly respected for its vital role in the professional development of building officials across Ontario. But more than that, you provide the confidence and support the building industry needs to meet their goals and the goals of the communities where they work.
Having first hand experience, being a former worker in the construction field, as a municipal councilor and as a provincial representative, I know how dependent we all are on your decision making skills and your professionalism. Thank you for both.
I hope this Conference meets your expectations as you network and learn from best practices on how to meet the needs of the population you serve.
Have a great time in Sudbury and good luck in your deliberations!
Yours truly,
Rick Bartolucci, MPP Sudbury
SEPT 2012 IISSUE95I 17
i P. 72
2012 AMTS
The 56th Annual Meeting and Training Sessions in the
City of Greater Sudbury have finally arrived. All Commit-tee Chairs have displayed amazing organization skills com-
bined with some unique and imaginative initiatives that will ensure your experience will be "Worth Every Nickel': We cannot wait to show you this great northern City and the unique lifestyle it provides to us who live here and those
visiting.
The City of Greater Sudbury not only boasts the largest land area of any municipality in the Province of Ontario, but
also contains over 330 fresh water lakes, more lakes than
any other municipality in Canada.
The Sponsorship Committee would like to thank all the or-
ganizations and municipalities who have generously pro-vided assistance to us in helping finance our event so as to provide you with a unique northern experience. At the writ-
ing of this article, Committee Members continue to canvas for the Chapter Chair Challenge to offer Cambrian College Students the opportunity to attend our great conference, a
unique opportunity for us as an organization to help moti-vate a new generation of Building Officials to our profes-
sion.
The Golf Committee, led by Chair Ed Picco, has crafted
an event around the magnificent Timberwolf Golf Course which was professionally designed by world renowned golf
course architect, Thomas McBroom, and has hosted many prestigious events including the 2003 Canadian PGA's Se-niors' Championship. Further, Ed's group has worked with our Breast Cancer Chair, Corrie-Jo Delwo, to create some
unique opportunities to assist us in the Breast Cancer fun-draiser and allow you to snag some great prizes.
Speaking of the Breast Cancer Committee, Corrie-Jo and her group have again continued the calendar initiative of the London Conference with the generous assistance of Barbara Rusan-Cronmiller. Further, the Committee has
been working hard to provide some unique northern flavor
to the Silent Auction items and of course the prizes for the Games of Skill Contest Fundraiser.
However, the AMTS is not all about having fun, golfing and socializing. The Technical Program Committee Chair, Jason
Radley, has produced an interesting and impactful set of topics and industry leading presenters sure to provide you with a wealth of information to assist us in our professional
growth. Further, Jason's group, thanks to Ron Kolbe and the Ministry, are providing some new and unique learning opportunities for the OBOA Membership at this AMTS, as
part of a new Technical Sessions format.
Now returning to the "Fun" aspect, Entertainment Com-
mittee Chair, Angela Lanteigne, with her "Camp Northern Lights" Theme Night is ready to provide you fun, laughter and northern music, not just that night but all through the event ably assisted by Markku Makitalo, our "Hospitality"
Chair with Andre Guillot, our Transportation Chair, ensuring shuttle buses get you safe and sound between the hotels
to the conference site; check the OBOA website for details.
Angela just wants to remind you that camp attire should be as comfortable as possible. Jeans, flip-flops, best fishing hat (mosquito netting is a definite plus), hiking boots, plaid
hunting jacket (a.k.a. Sudbury dinner jacket), water wings, sunglasses, Bermuda shorts, etc., however remember you
will be photographed and pictures are forever) Also don't forget Angela's theme nite mantra "What happens at Camp
usually ends up on facebook 'cause this sure ain't Vegas Babyl':
Last but not least, our Companion Program Chair, Meredith Armstrong, from our Sudbury Tourism group is promising a unique northern experience such as on the Science North "Cortina" cruise boat around one of Sudbury's landmark
natural jewels, Ramsey Lake situated in the heart of our City. New to this year's program we will be providing a sep-arate companion wine and cheese Ice Breaker from 7:00 p.m. to 8:00 p.m. on Sunday Night, with games and prizes to
assist us in getting to know you and each other.
Finally, I would like to express my appreciation and heartfelt thanks to all the volunteers that have worked tirelessly over the last year to strive to make your experience with us a memorable one. A special thanks to my Co-Chair for this event, Sherri Budgell, for her amazing organizational skills
18 I Ontario Building Officials Association
P. 73
and support, especially on the B.Ps on my To Do List". If you see them during the course of your stay with their host committee paraphernalia, please give them a well deserved
thank you because we could not have done it without them.
The 56th AMTS is shaping up to be a great one. We hope
to show you a unique northern city with its world-renowned attractions, urban comforts, natural beauty and four season
outdoor adventure possibilities that will whet your appetite
to return again. We know that once we meet you in Sud-
bury, our northern hospitality as well as all the hard work invested by our volunteers on the various events will prove it to be "Worth Every Nickel".
Look forward to seeing you! 2012 Host Committee Chair, Guido Mazza
OBOA AMTS 2012 City of Greater Sudbury
Greetings and Best Wishes from the President
On behalf of the OBOA Board of Directors and Leader-ship Team, I am delighted to offer greetings and best wishes to all delegates, companions, special guests, exhibitors and sponsors attending this year's Annual Meeting & Training Sessions in the City of Greater Sudbury.
This year's AMTS should prove to be another great suc-cess. The efforts of the host committee, lead by Chair Guido Mazza, OBOA CAO Ron Kolbe, and other vol-unteers are to be commended. I would also like to ac-knowledge MMAH Building and Development Branch Director Brenda Lewis and her staff for their participa-tion and valuable contribution to this year's technical programs.
The AMTS is an excellent opportunity to exchange ideas and information. The technical programs will no
doubt further our knowledge and expertise, while the social activities are certain to foster relationships.
City of Greater Sudbury Mayor Marianne Matichuk, Members of Council, and the City's Leadership Team are to be commended for supporting the OBOA 2012 AMTS. On behalf of all those attending, we greatly look forward to the opportunity of visiting and learning more about Greater Sudbury.
On behalf of the OBOA Leadership Team, please ac-cept our best wishes for a memorable and successful conference - we look forward to seeing you all!
Yours sincerely, Leo J. Cusumano OBOA President
2012 AMTS THEME NIGHT
Derek Edwards is proof positive that you can take the boy out of the country, but you
can't take the country out of the boy. His award-winning rural humor has made him the
hottest comedy property in Canada Identifying himself with the ordinary working guy,
Derek Edward's comedic gift is making the ordinary extraordinary. As well as performing
live to audiences from coast to coast, including the International Just for Laughs Festival
in Montreal and the Just for Laughs Canadian Comedy Tour, Derek is currently developing
a movie script based on a Vegas-inspired melange of absurdity (Magnum Opus).
SEPT 2012 1 ISSUE 951 19
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,amvic GREGG PURINTON ' I N2i 470 IION1.I6IJ
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SEPT 2012 1 ISSUE 95 123
Next conundrum — what is the correct live load to use for Part 9 floors? Well, there certainly is a variety to choose from:
1.4KPa (30psf) for bedrooms (Table 4.1.5.3)
1.9KPa (40psf) for stairs and other areas (Table 4.1.5.3)
2.4KPa (50psf) maximum, as noted for:
Structural Design Requirements and Applica-tion Limitations (9.4.1.1.(2))
Footings (9.15.3.3.(1)(c))
Columns (9.17.1.1 .(1 )(a)(ii))
According to A-Table 9.23.4.3, the correct live load for single storey homes is 1.9KPa. Well, alrighty then, let's go with that
I like simple. Let's start with simple
Example 1: The drawing below is a plan examiner's dream -- the per-fect Part 9 one storey house.
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MARK BOYD
Footings and Columns and Beams, Oh my! By Mark Boyd, P.Eng.
Top 4 Reasons You Should Read This Article: is that the 1.5KPa (31 psf) in A-Table 9.23.4.3 is a typo — it
1. The steel beam spans in Table 9.23.4.3 are should be 0.5KPa (1 Opsf). 1.5KPa (31 psf) just seems ri-
part of a long-standing conspiracy diculous to me. More on this later.
2. The column footing sizes in Table 9.15.3.4 are fraught with danger
3. Standard adjustable steel columns sold by virtually every lumberyard are basically use-less
4. A bit of controversy can be very educational
Follow the Yellow Brick Road Sometimes as a structural engineer using Part 9, I feel like Dorothy in the Wizard of Oz; torn away from Kansas and dropped in a strange world where things don't make sense. Although some things seem familiar, and we appear to be speaking the same language, I become confused and dis-oriented. I just want to get back home where the laws of physics and engineering actually apply.
Recently, I had occasion to double check a steel floor beam in Table 9.23.4.3. OK, so the first thing the engineer has to do is determine the loads on the beam; dead loads, live loads, etc. Now here's a challenge: I dare you to show me one spot in the OBC where it clearly states without contra-diction, what the dead load is supposed to be on a conven-tional Part 9 floor. I double dare you. I can't find it anywhere in Volume 1. Volume 2 states the following:
A-9.15.2.4.(1) Preserved Wood Foundations — Design Assumptions: Dead Load = 0.47KPa (1 Opsf)
A-Table 9.23.4.3 Spans for Steel Beams: Dead Load = 1.5KPa (31 psf)
A-Table 9.23.4.4 Concrete Topping: Dead Load = 0.5KPa (1 Opsf) without concrete but 1.3KPa (27psf) with concrete topping
Apparently floors with concrete topping (A-9.23.4.4) weigh less than floors without (A-Table 9.23.4.3)? Who knew? I love Ozl
So what's a poor engineer to do? Well, the I joist industry favours a 1 Opsf dead load (let's say 0.5KPa), so I decided to run with that. My theory (yet to be confirmed, I must add)
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24 I Ontario Building Officials Association
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Table 9.23.4.3 - One Storey Supported
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The floor joists and the beams are all simple spans. That means they bend into "smiley faces" under the applied loads. See the two smiles for the floor joists and the other two for the beams?
So in order to double check the one storey, steel floor beams in Table 9.23.4.3, I used the following design as-sumptions (see Appendix A-Table 9.23.4.3):
Simply supported beam spans (and simple span floor joists as per Mark Boyd) Laterally supported top flange Yield strength = 350MPa Deflection limit= L/360 Live load =1.9KPa (40psf) (one storey only) Dead load = 0.5KPa (1 Opsf) (as per Mark Boyd since 1.5KPa seems just plain wrong!)
Drum Roll, please As suspected, I found that some of the one storey beams in Table 9.23.4.3 failed. How many you ask? Well, let's see — 1,2,3,......63. Wow, all of them! That's correct, all of the beams failed. And remember, they failed with my 0.5KPa (1 Opsf) dead load. If I had used the 1.5KPa (31 psf) dead load as in A-Table 9.23.4.3, they would have crashed harder than Dorothy's house!
The chart below shows the allowable spans for the steel beams in Table 9.23.4.3, along with what I calculate the allowable spans should be, based upon all of the require-ments specified in the OBC.
Am I actually the Scarecrow? Should I be asking for a brain? Were the spans I calculated actually correct? How could they be so much lower than the values in the OBC? I start-ed to think maybe I was missing something. Maybe I made a stupid mistake because this Table has been around for-ever. Fearing I might just embarrass myself by mentioning this to anyone else, I sent it off to a colleague to review and he agreed with me. Hmmm. Had I unearthed a previously overlooked error in the Code? I've got to admit, I was feel-ing pretty darn proud of myself -- chest all puffed out like the Cowardly Lion with his medal!
Time to seek an audience with the Wizard
With a mixture of fear and excitement, I e-mailed the Min-istry of Municipal Affairs and Housing (MAH) with my find-ings. Within a couple of hours I received a reply (read in a deep, frightening voice for effect — flames are optional); "There are many elements in Part 9 that do not withstand the scrutiny afforded Part 4". As it turned out MAH was al-ready aware of the situation. What? The provincial and na-tional Code people already knew about it? Someone else had already laid claim to my discover. Talk about sponta-neous ego deflation.
So I asked a reasonable question: why is the Table still in the Codes if everyone knows it's wrong? The response: because of heavy lobbying by Home Builders' Associations. Many people are aware the beams in Table 9.23.4.3 are over-spanned, but no one is prepared to address it Seri-ously??? Is everyone really that afraid to stand up to the Home Builders' Associations? Does this remind anyone of the Wicked Witch of the West? Where's a pail of water when you need it?
What did I find out about the beams for two storeys? Frankly, I didn't even bother to look at them. Table 9.23.4.3 assumes the live load on the second floor is 1.4K Pa (30psf) because all the rooms upstairs are bedrooms. How realistic is that, anymore? There are second floor bathrooms, laun-dry rooms, offices, media rooms and oh yeah, stairs. Is it still reasonable to assume the second floor has less load-ing simply because there are some bedrooms? Remember waterbeds? Just like everything else from the 70's, they are attempting a comeback, too.
Call from a client: "There are point loads on the beam.............. Typical renovation scenario. Homeowner wants to open up a load-bearing wall between the first and second floor re-sulting in point loads on the basement steel beam (not over a column, of course). Designer says the original basement beam is adequate, but not over-sized, under the current Code, without considering the point loads. Without even hearing the rest of the information I can tell him with 99%
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MARK BOYD CONT'D
certainty the basement beam won't work. The designer asks how I can know that so quickly? "Easy", I reply, "the beam never met the Code requirements for load and de-flection in the first place, so adding the point loads is like throwing gas on a smouldering Scarecrow':
Let's be serious for a moment How can an engineer seal a beam which he or she knows does not meet the load and deflection requirements clear-ly printed in the Code? If a client asked me to seal Table 9.23.4.3, I would have to refuse because all of the beams are over-spanned. If a client asked me to seal a point-load-ed beam that fails, I would also have to refuse. Mr. and Ms. CBO, are you starting to wonder about the sealed, point loaded, steel floor beams you're getting from engineers?
While we're still exploring Oz, let's talk about footings and columns In Example 1, we considered simple span floor joists and simple span steel floor beams. That may happen in Oz, but rarely in the real world. Let's work out the load on the col-umn and the required footing area:
Example 2: Specified (unfactored) Live Load = 1.9KPa (40psf) (A Table 9.23.4.3) Specified (unfactored) Dead Load =
O.5KPa (1 Opsf) (as assumed by Mark Boyd) Tributary Area on Column = 14.7m2 (1 58ft2) (4.9m x 3m) Allowable Soil Bearing Pressure = 75KPa (1568psf) (9.15.1.1.(1)(a)(i))
Specified (unfactored) Load on Column = (1.9KPa + 0.5KPa)( 14.7m2) = 35.3KN (7940#) < 36KN (8093#) (9.17.3.4.(1)) Therefore an Adjustable Steel Col- umn is ACCEPTABLE Area of Column Footing = (1.9KPa + O.5KPa)( 14.7m2)/(75KPa) = 0.47m2 (5.1ft2) > 04m2 (4.3ft2) (Table 9.15.3.4) Therefore the minimum footing area in Part 9 is NOT ACCEPTABLE
Now would be a good time to discuss that whole "what's the correct dead load" question again. If the proper dead load Is 1.5KPa (31 psf) as in A-Table 9.23.4.3, then the ad-justable steel column fails like a Tinman in the rain (50KN or 11250#) and the area of the footing in Table 9.15.3.4 is as undersized as Dorothy's little dog, Toto (0.67m 2 or 7.2ft2). Further support for my contention that the 1.5KPa (31 psf) dead load in A-Table 9.23.4.3 is a typo. Just sayin'.
Example 3: Let's repeat Example 2, but this time we will use a continu-ous beam as shown below. The floor joists are still simple spans. This is a realistic scenario because almost every contractor would order a 6m long beam and throw a post under the middle.
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Take a look at the deflected shape of the continuous beam. Instead of two smiles, this time we see a smile, then a frown, then another smile. The frown is extremely important to an engineer, but the Code is silent on the whole issue. Go ahead, look up "frown" in the index — I'll wait. See? Nada.
Your grandma may have told you "a frown weighs you down" — or maybe that was just mine. In structural terms, this is very true. The frown increases the load from the beam on the interior support, i.e., the column. A structural engineer will tell you the frown in that continuous beam just increased the load on that column by 25% (trust me, my grandma is really smart). Can you find that little gem anywhere in the OBC? No, no you can't. Thanks, grandma.
Specified (unfactored) Load on Column _ (1.9KPa + 0.5KPa)( 14.7m2)(1.25) (due to the frown) = 44.1 KN (9920#) > 36KN (8093#) (9.17.3.4.(1)) Therefore an Adjustable Steel Col- umn is NOT ACCEPTABLE
Area of Column Footing _ (1.9KPa + 0.5KPa)( 14.7m 2)(1.25)/(75KPa)
0.59m2 (6.4ft2) > 0.4m 2 (4.3ft2) (Table 9.15.3.4) Therefore the minimum footing area in Part 9 is NOT ACCEPTABLE
Example 4:
Let's repeat Example 3, but this time we will use a continu- ous beam and continuous span floor joists. Unlike builders
26 I Ontario Building Officials Association
