POWERS AND DUTIES OF CHIEF
BUILDING OFFICIALS AND
BUILDING INSPECTORS

By Charles M.K. Loopstra, Q.C.

1. The statutory scheme under the Building Code Act, 1992 ("BCA")1

The BCA is a safety statute primarily designed to:

1. create a provincial scheme with minimum standards respecting the safety of buildings with reference to public health, fire protection and structural sufficiency;
2. impose a mandatory scheme for the issuance of permits;
3. impose a statutory scheme for inspections and enforcements.

The Ontario Building Code ("OBC") is a series of Regulations encompassed into a consolidated OBC.2 It is the provincial regulation that sets the uniform and minimum standards required to be adhered to in the construction of buildings. The OBC is the bible of the building industry. The BCA, however, is the bible to the legal profession and municipal officials when dealing with disputes involving the OBC or the building permit process. I do not intend to deal with the OBC, except in passing. I leave the OBC to construction experts. Any attempt on my part to interpret this document has usually resulted in disagreement with chief building officials ("CBOs"), engineers and architects. Nevertheless, lawyers should not ignore the OBC. I will briefly outline how it should be interpreted later in this paper.

Any practitioner involved in construction matters should become familiar with the BCA. I have attached a copy to this paper for your convenience. It is a well-organized piece of legislation and is easy to read. One of the most important things that becomes apparent from the reading of the BCA is that the Province has devolved the responsibility for the enforcement of the BCA and OBC to the local municipality (s.3 BCA), but to be exercised through designated officials.

At the time of the writing of this article, Bill 96 the Tenant Protection Act, 1996 had received first reading. As the name suggests, this Bill primarily deals with landlord and tenant matters. However, the Bill also transfers property standards powers from the Planning Act 3 to the BCA.

2. Municipal By-laws

Municipalities still have the power to enact by-laws, generally referred to as building permit by-laws. The municipality’s powers, however, are solely derived from statute. Accordingly, such by-laws are limited to the matters enumerated in s. 7 of the BCA. In some cases, municipalities enact omnibus by-laws covering other matters outside of the scope of the BCA. In such cases, the authority for those sections in the building permit by-law must be derived from other legislation, such as the Municipal Act.4 Some municipalities are very detailed in the minimum requirements for the purpose of processing a building permit application. Other municipalities are more relaxed. Regardless of the municipal process adopted by the local municipality in granting permits, no construction shall take place unless a permit has been issued (s.8(1) BCA) and the CBO is required to issue a permit, except in situations which fall under the four enumerated exceptions under s.8(2) of the BCA.

3. Municipal Appointments

The municipality must appoint a CBO and "such inspectors as are necessary for the enforcement of this Act" (s.3(2) BCA). Since the CBO and inspectors are given distinct duties and powers under the Act, if you wish to challenge a municipal employee with respect to the exercise of such powers, you should first determine who he or she is. The Act requires the CBO and inspectors to carry certificates of appointment and produce them upon request (s.6 BCA). However, municipal by-laws are not always up-to-date and it is conceivable that a person who purports to exercise a power under the BCA, in fact has no such power. This does not mean that the CBO and a building inspector cannot be aided and assisted by other municipal staff. In many cases, the plans review function is undertaken by municipal staff who are not appointed as officers under the BCA. The important thing to remember is that the decision of such a staff member has no effect, unless exercised by the CBO, where the powers are specifically given to a CBO, or by inspectors, where the powers are given specifically to an inspector.

Some municipal by-laws appointing municipal officers deal with the appointment of alternates or deputies. Sub-section 27(n) and (o) of the Interpretation Act 5 make it clear that any power granted to a statutory officer extends to his deputy.

4. Powers of the CBO

The powers of the CBO are not specifically enumerated in the BCA. Accordingly, you have to read through the Act to determine what powers the CBO has. By virtue of s.22(2) of the BCA, the CBO has all the powers of an inspector.

The following is a brief summary of the powers granted to a CBO by the BCA:

1. issue building permits (ss.8(1) and (2));
2. issue conditional permits (ss.8(3));
3. cause removal of a building if conditions for a conditional permit are not complied with (ss.8(6));
4. refer plans to Association of Professional Engineers of Ontario ("PEO") or Ontario Association of Architects ("OAA") (ss.8(9));
5. revoke permits (ss.8(10));
6. allow the use of equivalent materials, techniques and systems not authorized in the OBC (s.9);
7. issue change of use permits (s.10).
8. enter lands and buildings (ss.8(6), 12(1), 15(1), 15(6), s.16);
9. issue orders (s.12, 13, 14, 15, 17, ss.22(1));
10. refer disputes to Building Code Commission (ss.24(1));
11. prosecute in the Provincial Offences Court (s.36);
12. obtain mandatory orders (s.38).

5. The powers of inspectors

Inspectors do not have the same extensive powers as the CBO, unless an inspector is acting in the capacity of a CBO in his absence. As the name suggests, an inspector is given broad powers to inspect buildings or sites in respect of which a permit is issued or an application for permit is made (ss.12(1) BCA). Inspectors also have the power to issue orders with respect to contraventions of the BCA or the OBC requiring compliance and stipulating the time for compliance. Inspectors may also make orders prohibiting the covering or enclosing of any part of a building until it has been properly inspected (ss.13(1) BCA) or requiring part of a building that has been covered or enclosed to be uncovered (ss.13(6) BCA).

One of the most important powers is the power to issue a Stop Work Order (ss.14(1) BCA). A Stop Work Order cannot be issued unless an Order to Comply, an Order Not to Cover, or an Order to Uncover has been issued and has not been complied with within the time specified in it, or where no time is specified, within a reasonable time. Only a CBO can issue a Stop Work Order, whereas the other orders can be issued by a CBO or an inspector. Since an Order to Comply can require immediate compliance, it is not unusual for a Stop Work Order to be issued immediately following an Order to Comply, or at the same time.

Most orders involve construction which is not proceeding in accordance with approved permit plans, or with some technical requirement of the OBC. In such cases, an Order to Comply is appropriate requiring the applicant to take the steps necessary to bring the work into conformity with the plans, or apply for approval of revised permit plans, or make necessary alterations to the work to bring it into compliance with the OBC. However, there are cases where the builder persists in proceeding with illegal or improper work. If public safety is an issue, the Order to Comply should require immediate compliance and a Stop Work Order should follow. In cases where an Order to Comply has not been complied with, the CBO may also issue a further order prohibiting the use or occupancy of a building, and in the case of an unsafe condition, cause the building to be renovated, repaired or demolished (ss.15(5) BCA). In appropriate cases, the inspector should exercise his powers pursuant to s.18(1) of the BCA to ensure that improper work was not being covered up.6

6. Discretion

The BCA poses mandatory obligations on a municipality and its statutory officers appointed pursuant to the BCA. Generally, where the word "shall" is used, there is a statutory duty on the part of the municipality, CBO or the inspector, as the case may be, to perform the obligation. In most cases, the obligation is an administrative function, such as the granting of a permit. A building official has no discretion to refuse the issuance of a permit when all statutory requirements have been fulfilled.7 Moreover, where the administrative function is a mandatory obligation under the BCA, it cannot be interfered with by senior officials of the municipality, or by council.8 Since the decision to issue a building permit is purely administrative in nature, the Statutory Powers Procedures Act 9 does not apply and the CBO is not required to offer a hearing prior to reaching a decision.10

Notwithstanding the relatively straightforward requirements of the BCA and OBC with respect to the issuance of permits, it is clear that the statute has conferred discretion on the CBO. The obvious cases of discretion involve the use of the word "may" throughout the BCA. For example, in the granting of a conditional permit, the CBO is clearly given discretion as to whether or not it is appropriate to grant such a permit, and could refuse to do so. In addition, the CBO is given discretion to impose conditions, in addition to those enumerated in ss.8(3), if the CBO considers the same necessary. Similarly, the CBO is given discretion to revoke permits (ss.8(10) BCA), or allow the use of substitute materials, systems and building designs not authorized by the OBC (s. 9 BCA). The power to grant orders is discretionary, as well as the power to make inspections.

The exercise of discretion is, of course, subject to such limitations as are imposed by statute and by common law. Even in cases where the municipality is not under a private law duty to act, where the municipality is exercising its discretion, such discretion is not completely unfettered. In Roncarelli v. Duplessis 11 at 140, Rand J. said:

In public regulation of this sort, there is no such thing as absolute and untrammelled ‘discretion’, that is that action can be taken on any ground and for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute. Fraud and corruption in the Commission may not be mentioned in such statutes, but they are always implied as exceptions. ‘Discretion’ necessarily implies good faith in discharging a public duty; there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption.

Dussault and Borgeat in Administrative Law - A Treatise 12 at p. 337 state:

...where a legislative provision prescribes that a public officer may in his discretion decide a specific matter or perform a certain action, the courts have refused to admit ‘that the discretion which it gave to the [officer] was to be one to empower [him] to simply do as he likes because he is minded to do so’.13 Their stance is that when a legislative provision prescribes that something must be done at an officer’s discretion, the intended meaning is that ‘something is to be done according to the rules of reason and justice, and not according to private opinion’.14 The exercise of a discretionary power therefore is not entirely above the scrutiny by the courts.

 

What must be determined is the extent to which the lawmaker, in conferring such powers on an authority, intended it to exercise discretion. Each case must be considered in the light of the particular enabling legislation. For example, a statute may require that the officer act in accordance with a given set of rules, that he pursue precisely defined objectives, or that on the contrary, he refrain from pursuing certain objectives or from basing his actions on certain factors. The above examples reflect only a few possibilities, but they clearly show how important the drafting of a statute or regulation investing discretionary power is in determining whether the courts may or may not review its exercise.

Generally, Courts will not interfere with public authorities exercising a discretionary power,15 unless the discretion was exercised:

1. for improper purposes not authorized by statute;
2. in bad faith;
3. on the basis of wrong principles, or for irrelevant considerations; or
4. in a discriminatory, unfair, capricious or unreasonable manner.

7. Applicable Law

The CBO can refuse to issue a permit where it contravenes applicable law (ss.8(2) BCA). The OBC has defined applicable law as follows:

Applicable law means, for the purposes of s.8 of the Act, any general or special Act, and all regulations and by-laws enacted thereunder, which prohibit the proposed construction or demolition of the building unless the Act, regulation or by-law is complied with.

 

Applicable law means, for the purposes of Clause 10(2)(a) of the Act, any general or special Act, and all regulations and by-laws enacted thereunder, which prohibit the proposed use of the building unless the Act, regulation or by-law is complied with.

These definitions appear to be relatively straightforward. However, a considerable amount of jurisprudence has developed around the meaning of "applicable law". Although CBOs are generally not involved in the planning process, the CBO could exercise a discretion to refuse to grant a permit where site plan approval has not been granted, or where an interim control by-law preventing the use has been passed before or after the application for the permit was made.16

Building officials should create an internal check list with respect to what constitutes, for their purpose, applicable law. This check list should include a list of environmental approvals that may be required.17 However, such approvals only constitute applicable law if the legislation pursuant to which the approval is required specifically prohibits the proposed construction or demolition unless such approval is obtained. This is a significant change from the law that existed before the OBC was amended in 1993.

Building officials are occasionally faced with building permit applications for work which requires access to adjoining property, whether it is for the construction or underpinning of a party wall, or for the purpose of providing temporary support structures during the construction of the building. Most property owners seek the consent of the adjoining property owner in advance and provide written evidence of this to the CBO. Some CBOs require such evidence before they will issue a permit, citing applicable law. Prior to the 1993 amendment to the OBC, which effectively eliminated common law requirements from the definition of applicable law, there may have been an argument that the CBO could refuse to issue a permit in these circumstances. The reason for such refusal would be the fact that unlawful entry is an offence under s.2 of the Trespass to Property Act.18 After the 1993 amendments to the OBC, the CBO can only refuse to grant a permit on these grounds if the building permit by-law specifically requires such written consent from the adjoining property owner. If the building permit by-law does require such consent, in my submission it would be applicable law by virtue of the fact that such a requirement could be imposed pursuant to s.7 of the BCA. Municipalities also have the power to pass by-laws granting an owner the right to enter adjoining lands "for the purpose of making repairs, alterations or improvements to [a] building, fence or other structure but only to the extent necessary to effect such repairs, alterations or improvements".19

One issue which was not resolved until recently is how a CBO should deal with a building permit application that would result in compliance on the property for which the permit is being issued, but would create a contravention of the OBC or applicable law on the adjacent property. Most municipal solicitors exercised a cautious approach, and counselled their CBO not to issue the permit, citing applicable law. In Alaimo v. North York, the court held that a CBO has no authority to refuse the issuance of a building permit due to the possible impact that the new construction may have on the operation of the chimney on an adjacent property, regardless of the seriousness of that potential hazard. This raises a new issue with respect to potential civil liability. I would submit that the municipality, in order to protect itself against a suit from an adjoining owner affected by the permit, has a duty to warn the adjacent owner of the potential hazard. The adjacent owner could then seek his or her own civil remedy (either by way of an injunction or an action for damages) against the property owner creating the potential hazard or nuisance. I think this is an unsatisfactory result and cries out for legislative intervention. After all, the BCA was enacted as a safety statute and, by necessity, should therefore not be given such narrow application.

8. Retrofit Powers

Section 34(2) of the BCA allows the Lieutenant Governor-in-Council to make regulations to establish standards that existing buildings must meet, even though no construction is proposed. This is generally referred to as the retrofit powers under the OBC. At the present time, the retrofit regulations are not in effect. However, the retrofit regulations proclaimed under the Fire Marshals Act (Fire Code)20 are in effect.

9. Statutory Duties

As already discussed, the BCA imposes mandatory duties on the CBO and inspectors, but in many cases the discretionary powers given under the BCA do not lead to a statutory obligation to exercise that discretion. There are, however, exceptions, but these exceptions clearly are as a result of the breach of common law duties, generally referred to as private law duties. These will be discussed separately in this article.

Dealing only with the statutory duties imposed under the BCA, it is clear that the most fundamental of duties relates to the issuance of permits. The CBO has a statutory duty to issue permits in compliance with the BCA, and in my opinion, has a statutory duty not to issue a permit that is not in compliance with the BCA. If a building official breaches a statutory duty (as opposed to a private law duty), there is no cause of action for damages, in the absence of negligence. The Supreme Court of Canada has held that there is no nominate tort of breach of statute.21 However, the exercise of a statutory duty may require a private law duty of care, which, if breached, may lead to a finding of negligence. Accordingly, the CBO cannot simply process the application and then ignore the material supplied. He must exercise his statutory responsibility to properly review the application and the supporting documents. The CBO must therefore have a working knowledge of the OBC. This does not mean that the CBO is held to a standard of perfection in the exercise of his statutory duties to review an application. It does mean that he must undertake some form of review, rather than simply rubber-stamping the application.

In many smaller municipalities, CBOs routinely rubber-stamp drawings prepared by a professional engineer or architect, without conducting a detailed review of these drawings. Since architects and engineers, by virtue of their professional responsibilities, are required to produce plans in accordance with the OBC, it is not unreasonable for CBOs to conduct a less stringent review of such plans. However, in my opinion, a review should nevertheless be conducted at all times, to ensure that the application and plans are not so inadequate so as to permit construction in contravention of the OBC, or which contain details which clearly depart from the standards set out in the OBC.

A statement by Mr. Justice La Forest in Rothfield v. Manolakos 22 at page 1269, is helpful in reviewing the duty imposed on the municipality in its review of plans on a building permit application:

As Cory J. has noted, the building inspector exercised his discretion in this case not to require plans by a professional engineer, and in such cases it was the practice to rely on on-site inspections to ensure compliance with the standards of the by-law. I am prepared to accept that as a general proposition this is not an unreasonable thing to do. The many small projects that come to the city must be processed with a reasonable measure of flexibility and efficiency, and undoubtedly many of the rudimentary specifications and sketches that are submitted to the inspector do not contain all the information necessary to enable the city to fully assess whether a project is up to standard. It would be unrealistic for the city to insist that owners submit fully adequate plans for such projects. By the same token, however, it would be unreasonable to impose on the city the burden of perfecting all such plans.

 

It seems to me, however, that it is incumbent on the city to at least examine the specifications and sketches. If an examination of these reveals that they may reasonably serve in the construction of a project, it would appear sensible to issue a permit. The inspector is functioning within the parameters of a legislative scheme in which it is normal to ensure that a project fully meets the standards of the by-law at the on-site inspection stage. It would tend to defeat the discretion not to require professional plans if a more exacting standard were imposed on the city inspector. The city’s duty, after all, is only to exercise reasonable care.

 

Inadequacy in the sense of insufficiency is one thing, however; inadequacy in the sense of an obvious departure from the standards required by the by-law is another.

Interestingly enough there is no statutory duty to revoke a permit, or issue an order even with respect to unsafe buildings or in the case of emergencies. However, through the imposition of private law duties, the courts have effectively imposed an obligation on building officials to act as a result of obvious contraventions of the BCA and OBC. The type of action required however, is subject to extensive debate when dealing with the private law duties imposed on municipalities and building officials.

10. Review of Decisions by a Building Official

All decisions under the BCA or OBC made by a CBO or inspector are reviewable. The review is not by way of judicial review, but rather by way of a statutory appeal under s. 25 of the BCA. The right of appeal is not limited to persons directly involved in the process.23

The powers of the judge hearing an application under s. 25 are the same as those possessed by the CBO. The judge has no discretion to defer taking decisive action, if that discretion was not enjoyed by the CBO.24 However, the court is not limited to simply confirming or reversing a building official’s decision to issue a building permit. The court may make other orders to take such action as it considers the CBO ought to have taken.25

There are numerous cases dealing with s. 25 appeals involving all kinds of issues. In my opinion, the main thrust of these cases is that:

1. Where there is no discretion, the court must have regard to the same statutory provisions, regulations, by-laws and other applicable law, that govern the CBO’s decision. Although the court may interpret those provisions differently, thereby leading to a different result, the court has no right to ignore such provisions.
2. Where the CBO or inspector is given discretion under the BCA, the court can review the exercise of such discretion and substitute its own decision.

11. Building Code Commission

Section 24 of the BCA provides for a dispute resolution mechanism in the event there is disagreement between the building permit applicant and the CBO with respect to the interpretation of the OBC. This is an effective way of dealing with technical disputes relating to the interpretation of requirements under the OBC. The Building Code Commission does not interpret the OBC in accordance with the rules of statutory interpretation, but rather looks to the intent of the provision. This allows professional consultants to argue that their plans and specifications comply with the intent of the section, rather than be caught by some ambiguous technical requirement of the section.

I do not believe that s. 25 appeals to judges were ever intended to deal with these kinds of technical interpretations. Accordingly, s. 25(5) allows the judge to order a reference to the Building Code Commission with a report back to the judge. If you are bringing a s.25 appeal, which inter alia also requires a technical interpretation under the OBC, you may wish to include a request for a referral to the Commission in your prayer for relief.

12. Municipal Enforcement

The BCA provides many tools for the enforcement of the BCA and the OBC. In fact, some of these tools can be used in conjunction with other enforcement remedies available to the municipality under other statutes such as the Municipal Act and the Planning Act. For example, where an owner builds a structure contrary to the approved plans and specifications, or without a permit, often he is not only contravening the BCA but also the Planning Act (zoning contraventions) or other applicable legislation. In such cases, the municipality may wish to resort to seeking mandatory orders under s. 38 of the BCA and s.328 of the Municipal Act. There is also a practical advantage to having these issues dealt with comprehensively. It avoids multiplicity of proceedings and requires the defendant to properly plead all available defences.26

Many municipalities do not proceed with civil enforcement procedures under s.38 until they have conducted prosecutions under s.36 of the BCA. These prosecutions are brought under the Provincial Offences Act 27 and can lead to substantial fines. The Provincial Offences Court also has the power to issue a restraining order, but only to prevent the continuation or repetition of the offence. Accordingly, the court does not have the power to issue a mandatory order. The scope of a prohibition order is limited.28 This distinction is important if the municipality wishes to compel the owner to do something, as opposed to prevent him from doing something.

13. Estoppel

It is occasionally argued that an owner who is acquitted in Provincial Offences Court, is no longer subject to further enforcement procedures resulting from the same incident. Similarly, it has been argued that where the municipality is negligent, the wronged person is not subject to the enforcement remedies under the BCA.29 In my opinion, in both cases, the defence of issue estoppel is not available.

Although a conviction in a criminal or quasi-criminal proceeding is relevant and admissible evidence of the facts underlying the criminal charge in a subsequent civil proceeding, this rationale does not apply to a situation where a party to a civil proceeding wishes to tender his prior criminal acquittal as evidence that he did not commit the acts which underlie the charge in the prior criminal proceeding. The fact that such a person was acquitted does not necessarily imply that the criminal court was satisfied that he did not commit the acts in question. It only implies that the criminal court entertained a reasonable doubt as to whether the accused committed the act on the date named in the charge.30 In fact, it has been held that the reasons for judgment of a judge delivered at the conclusion of a criminal appeal have no evidentiary value whatever in subsequent civil proceedings.31

For the doctrine of issue estoppel to apply, the following conditions must be met:

1. it must be shown that the same question has been decided;
2. that the judicial decision which is said to create the estoppel was final;
3. that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.32

In fact, the municipality can use the argument of issue estoppel in its favour. For example, where the Ontario Municipal Board ("OMB") has determined a height contravention, the applicant is estopped from arguing in subsequent enforcement proceedings in the court that the height interpretation by the OMB was incorrect. In such a case, the owner should have brought an appeal from the decision of the OMB and his or her failure to do so, results in the municipality being able to raise the plea of issue estoppel.

14. Powers of Entry

The common law principle that "an Englishman’s house is his castle"33 which originated from the Magna Carta is always subject to the words "except by the law of the land". There are many statutes which give the state the right of entry. However, such a right of entry is now subject to the scrutiny of s.8 of the Canadian Charter of Rights and Freedoms.

Even though the BCA provides for rights of entry, if such right is improperly exercised by the building official, he commits a trespass and therefore commits an offence under the Trespass to Property Act, as well as the tort of trespass, which is subject to an action for damages. For this reason, the right of entry should be exercised by the building official with some care and attention.

Sections 12 and 15 of the BCA give building officials the power to enter private property without a warrant, if the property is not actually being used as a dwelling. Section 16 of the BCA sets out the circumstances under which a building official can enter a dwelling. These include:

1. consent of the occupier;
2. a warrant pursuant to s.21 of the BCA;
3. delay which would result in immediate danger to the health or safety of any person;
4. the entry is necessary to terminate a danger under ss.17(3) of the BCA;
5. the entry is for the purpose of removing a building or restoring a site subject to a conditional use agreement, or to remove an unsafe condition and the occupier has been given reasonable notice, in writing, of the building official’s intention to enter the premises.

If the consent of the occupier is obtained, it should be an informed consent. If entry is obtained for any of the purposes, and subject to any of the conditions set out in the BCA, the entry must be justifiable for the purpose set out in the section. Obtaining entry for a collateral purpose may result in a finding of trespass.

With respect to obtaining a search warrant, the courts have applied the policy of strict construction of statutory search warrant provisions. Section 21 of the BCA sets out the statutory requirements. The Justice of the Peace must be satisfied by sworn evidence that there are reasonable grounds that:

a. an offence under the BCA has been committed, and

b. the entry into and search to look for evidence is relevant to the commission of the offence.

As a result, the following minimum requirements must be met:

a. a specific offence under the BCA must be identified;

b. reasonable grounds for believing that an offence has been committed must be specified;

c. the relevance of the search or seizure must be justified;

d. the things to be seized (if any) must be actually described;

e. a warrant cannot be used for extraneous or collateral purposes;

f. the warrant can only be executed between 6:00 a.m. and 9:00 p.m., unless the warrant specifically provides otherwise;

g. a warrant expires within 15 days after issuance, or sooner if the warrant has an earlier expiry date.

15. Private Law Duties

The leading decisions on the imposition of private law duties imposed against municipalities and building officials involving building regulations are Kamloops v. Nielsen,34 Rothfield v. Manolakos 35 and Mortimer v. Cameron.36 Only Mortimer v. Cameron involved the BCA of Ontario.

Section 3(1) of the BCA states that:

The council of each municipality is responsible for the enforcement of this Act in the municipality.

The section, on its face, is not clear as to whether or not it imposes on the municipality a statutory power of enforcement, or a statutory duty of enforcement. If it was to be interpreted as a statutory duty, the distinction between policy and operational decisions as described in Kamloops v. Nielsen becomes moot. The issue is laid to rest by the Court of Appeal in Mortimer v. Cameron, where the court stated:

A distinction is to be made between statutory powers granted to municipalities and the execution of operational functions carried out pursuant to those powers. The distinction, in short, is this:

 

While a municipality’s decision to exercise its statutory power, through, for instance, the passage of a by-law is discretionary and thus not subject to civil suit, once this power has been exercised, there is a duty at the operational level to use due care in giving effect to it...

 

In 1971, the city enacted a by-law designed, as its preamble states, ‘to safeguard life and limb, health, property and public welfare with respect to the design, construction and alteration of buildings by the provision of appropriate minimum standards’. This involved a policy decision to inspect building plans and construction in accordance with the provisions of the by-law. The city’s operational activities under a by-law of this nature are subject to the ordinary principles of tort law. Having made a policy decision to inspect building plans and construction, the city owed a duty of care to those who could reasonably foresee might be injured should it negligently perform the inspection duties it had assumed under the by-law.

Since the Court of Appeal in Mortimer v. Cameron was considering the Ontario legislation, unlike Kamloops v. Nielsen and Rothfield v. Manolakos, it appears to have accepted the fact that s.3(1) is a statutory power, and not a statutory duty. However, once exercised, it imposes a private law duty on the municipality and building officials to exercise this power without negligence.

In describing the duty of care required to be exercised by the municipality, Mr. Justice La Forest in Rothfield v. Manolakos stated:

It must be borne in mind that a municipality, once it has made the policy decision to inspect construction, is not bound to discover every latent defect in the given project, nor every derogation from applicable standards. That would be to hold the municipality to an impossible standard. Rather, a municipality is only called upon to show reasonable care in the exercise of its powers of inspection. Accordingly, a municipality, whether the duty of care is owed to an owner, builder, or a third party, will only incur a liability for such defects as it could reasonably be expected to have detected and to have ordered remedied. This is implicit in the decision of this court in City of Kamloops v. Nielsen.37

The Court of Appeal in Mortimer v. Cameron in upholding the decision of the trial judge, appeared to adopt this standard to hold the municipality liable. The court stated:

In this case, the city was found, on ample evidence, to have breached its duty of care in 1972, when the building permit was issued and the structure was built. The application for the building permit was not accompanied by drawings or specifications, as required by the by-law, and the permit was issued with insufficient information as to Building Code compliance. Moreover, and most importantly, the city negligently failed to detect obvious deficiencies in the construction of the enclosed exterior stairway - deficiencies which could readily have been detected had there been a proper inspection of the plans or of the work done pursuant to the plans. In particular, the trial judge found that the condition of the wall through which the plaintiff fell did not conform with good building practice. It was not built in accordance with the standards set by the National Building Code or the city’s by-law and could not be justified on the basis of the city’s past practice.38

Some concern has been expressed by commentators on the fact that there is a reference to "good building practice" as a standard to be achieved in exercising the duty of care imposed on municipalities. For example, should a municipality question suitability of a design where there are no specific standards set by the OBC pertaining to the particular design. I would suggest that municipalities are not responsible for critiquing designs or methods of construction. Accordingly, if they are required to approve drawings prepared by a professional engineer or architect, which appear to comply with the requirements of the OBC and they also appear to be sufficient for the purpose for which they are being presented, then a subsequent design flaw will not lead to civil liability. However, this does not allow the municipality to simply rely on an architect’s or engineer’s stamp. For example, in the construction of a large retaining wall, where the design requires tie-backs for its support, but the plans do not specify the number and location of the tie-backs, the resulting collapse of the wall can lead to civil liability on the part of the municipality. In that case, I would argue the city negligently failed to detect obvious deficiencies in the design drawings, which may have led to the improper construction of the wall. On the other hand, if the wall is structurally designed in such a fashion as to appear to be in compliance with the OBC and with sufficient detail specified, but it is subsequently determined that on a structural evaluation of the design, the wall was structurally inadequate, which could not have been reasonably known to the CBO, there may be no liability.

Will the courts apply a different standard of care to the sophisticated municipality, which employs professional engineers on staff, than it will to a rural municipality with a part-time building inspector, who has little technical knowledge. In Lyons v. Grainger 39 the court accepted a lower standard of care on the basis that the municipality in question had made an effective policy decision to employ less qualified staff. In fact, in the Lyons case the court was prepared to infer a policy decision based on circumstances:

I think it must also be said that the level of resources devoted to building inspection in 1983 by Rideau Township was also a policy matter. It was a policy-related circumstance that in 1983, all residential and commercial building inspecting was done by a part-time inspector and chief official in respect of whom no technical or professional qualifications, other than some practical experience and a nominal, governmental course was required. This I think I must take into account in determining what standard of care and level of scrutiny would be reasonably expected from Rideau Township when the Grainger house was being erected.

Certainly in the case of the larger municipality, with professional engineers on staff, it would be difficult to argue for a reduced standard of care, especially if the defect was clearly evident from a review of the drawings. The standard of care appears to be as a minimum that it be in conformity with "good building practice". In Mortimer v. Cameron the city was held to have fallen below a reasonable standard of care on "the basis of the city’s past practice". In Lyons v. Grainger the township’s past practices and lack of sophistication led to a finding of no liability:

There was no evidence led to establish what a reasonable level of care in such circumstances would be on the part of a building inspector, but in my view, given Mr. Eastman’s working conditions and his expertise, I do not think he should reasonably be expected to have found the engineering errors in the professionally drawn plans Mr. Grainger had purchased. The Township is not to be put in the position of insuring the engineering quality of such plans and in all the circumstances, I do not think the Township acted unreasonably in its inspection of the plans and construction in failing to detect the under-design mentioned.

In the final analysis, however, I believe that what constitutes a reasonable standard of care depends on the facts and circumstances of each individual case, and the decisions of Kamloops, Rothfield and Mortimer should only be used as guidelines.

 

The nature of the work being carried out will also determine the standard of care required and the appropriateness of the inspections carried out. In Ingles v. Tutkaluk the court found the municipality liable, even though the plaintiff commenced work without a permit, and covered up the offensive work (insufficient underpinning) before a permit was issued and any inspection took place. The court held that this conduct should have made the inspector wary, and thereby imposed on him a greater duty to make the proper inquiries. Moreover, it was the nature of the work that required a more thorough inspection:

The work consisted of the installation of a major structural element, a serious defect in which might lead to a collapse of the entire house. Tort law has long held that the greater the risk of harm, the higher is the requisite standard of care demanded. Although the various inspections and tests carried out...were reasonable as far as they went, a reasonable standard of inspection of construction on which the safety of the entire building depends demands verification that the work has been done properly according to the plan.40

16. Policy vs. Operational Decisions

The Supreme Court of Canada has attempted to simplify the process of making distinctions between true policy decisions and what is considered to be an operational decision or, to put it another way, the implementation of the policy decision. In Just v. The Queen in the Right of British Columbia,41 Mr. Justice Cory wrote:

The duty of care should apply to a public authority unless there is a valid basis for its exclusion. A true policy decision undertaken by a government agency constitutes such a valid basis for exclusion. What constitutes a policy decision may vary infinitely and may be made at different levels, although usually at a high level...As a general rule, decisions concerning budgetary allotments for departments or government agencies will be classified as policy decisions.

If the court comes to the conclusion that a private law duty exists that is clearly not exempted either by a statutory provision or because it was a true policy decision, then the court must still define that duty in light of the surrounding circumstances. Where inspections are required the court stated:

In each case, the frequency and method must be reasonable in light of all the surrounding circumstances. The governmental agency should be entitled to demonstrate that balanced against the nature and quantity of the risk involved, its system of inspection was reasonable in light of all the circumstances, including budgetary limits, personnel and equipment available to it and it had met the standard duty of care imposed upon it.

Unfortunately Just v. British Columbia did not do the job in making the rules sufficiently clear for interpretation by the lower courts. As a result, the Supreme Court of Canada took another stab at it in two additional cases: Brown v. British Columbia (Minister of Transportation & Highways)42 and Swinamer v. Nova Scotia (Attorney General).43 Interestingly enough, the court found no liability in both those cases. In Brown, the plaintiff sued the government for failing to properly maintain an icy road. While the court agreed there was a duty to maintain the road, in this case the government was exempt from ordinary negligence principles because of its policy decision to adopt a summer schedule of reduced service. The court held that such a policy decision could not be reviewed on the private law standard of reasonableness and that it did not need to consider whether the policy decision was made bona fide or was rational based upon the exercise of discretion, since the plaintiff had not attacked the policy on those grounds. There was no evidence of negligence in the operational aspect of the policy decision, and therefore no liability was found.

In Swinamer, the plaintiff was injured by a falling tree on the highway. Although there was a tree inspection policy in effect, there was no proof of irrationality of bad faith, nor of negligence in relation to the operational aspects of the policy decision, and therefore no liability was found.

17. Statutory Immunity.

Sections 17(4) and 31(1) of the BCA provide for statutory immunity in certain cases. A natural reading of these sections indicates that a building official will not be liable for a negligent act committed as long as the official has acted in good faith.44 However, the immunity does not appear to extend to municipal corporations. Section 31(2) of the BCA states that a municipal corporation will be liable for the tortious acts of the officials appointed under the BCA despite the statutory immunity enjoyed by those officials.

This interpretation of s.31 is contradicted by Nadia Koltun in an article entitled The Enforcement of the Ontario Building Code Act.45 Koltun suggests that, despite the wording of s.21(3) (now s.31(2)), a municipality is not liable for the negligent acts of its CBO because the CBO can be classified as a persona designata. Koltun defines persona designata as a statutory officer or "a person appointed by the municipality in obedience to a provincial statute to perform a public service which may have no special or particular benefit to the municipality". She argues that the legal implications of the CBO being a persona designata is that the CBO is not an agent of the municipality and, therefore, the municipality cannot be held liable for the negligent acts of the CBO.

As authority for her position, Koltun cites the cases of Cummings v. York,46 Mead v. Marquis,47 and Delbridge v. Brantford.48 These cases all stand for the proposition that a municipality is not liable for the negligent acts of an officer that it has appointed in accordance with a provincial statute. The case of Cummings involved an action based upon the failure of the Treasurer of the Township of York to give the notice required by the Assessment Act (1916). The Ontario Court decided that the municipality was not liable because the Treasurer is a persona designata and that, therefore, his actions were not performed as a servant or agent of the municipality.

The persona designata argument in general, and the Cummings case in particular, were considered by the Supreme Court of Canada in the case of Langdon v. Holytrex Gold Mines Limited.49 This case also involved a tax sale and a consideration of whether a municipal corporation will be liable for the negligent acts of its Treasurer. The Supreme Court stated that it did not read the Cummings case as deciding that the Treasurer is not an officer of the municipality and it went further to state that if those decisions intended to lay down such a principle, it cannot be accepted. The Court stated that:

While the Treasurer in selling the land acted in pursuance of a statutory power vested in him, and in that sense may be regarded as a persona designata, he did not cease to be, in any proper sense of the word "agent or officer" within the contemplation of s. 181, an officer of the municipality.

The authority of municipalities to utilize the persona designata argument appears to be eliminated by this decision of the Supreme Court of Canada.

Even if this case can somehow be distinguished, the recent Supreme Court decisions in Kamloops v. Nielsen and Rothfield v. Manolakos, and the Ontario Court of Appeal decision in Mortimer v. Cameron indicate that the courts will not hesitate to find a municipal corporation liable for the negligent acts of its building inspectors. In none of these cases, the persona designata argument was even mentioned, and the court did not hesitate in assigning the liability for the negligent acts of building inspectors to the municipal corporation.

The case of Toronto Dominion Bank v. Alfred 50 is also of interest. In this case the CBO of Alfred Township was constructing a senior citizens' home. Because the CBO himself was the general contractor, the Township had to appoint an acting CBO. A building permit was negligently issued and the east wing of the building subsequently collapsed due to the settlement of the soil underneath. The court decided that the municipality, the CBO and the acting CBO would each be liable for one third of the damages. This case appears to be an anomaly because it makes no mention of the BCA or the immunity provided for CBOs in section 31(1) and it does not provide any alternative legal basis for the decision. Nevertheless, the municipality in this case was still found partially liable for the negligent actions of its CBO.

Aside from the above-mentioned jurisprudence, the general judicial approach to municipal liability today does not appear to promote the successful advancement of the persona designata argument. The decisions relied on by Koltun range from the year 1917 to 1928. At the time these cases were decided, the courts were much more willing to preserve the immunity of municipalities from liability in tort.51 The recent expansions of municipal liability in tort by the Supreme Court in cases such as Kamloops and Tock v. St. John’s Metropolitan Area Board,52 indicate that the judiciary is seeking to shrink government immunity rather than expand it.

Although the persona designata argument is attractive, there are many reasons why it would be highly unlikely that this argument would be successful. First of all, the persona designata argument would appear to defeat the apparent legislative intention of s.31(2), which is to hold a municipal corporation liable for torts committed by their CBO or inspectors. In addition, the principle of persona designata has been overruled by the Supreme Court of Canada in Langdon. Finally, the recent decisions of the Supreme Court of Canada and the Ontario Court of Appeal have all held municipal corporations liable for the negligent acts of its building inspectors.

Conceivably, there could be situations where a municipality is not found liable for the actions of its building officials. A majority of decisions involving municipal liability make no distinction between the liability of the official and the municipality. Presumably, in these cases it is assumed that where the building official is liable, the municipality is vicariously liable. In addition, in some cases, the municipality may be directly liable since it has taken official actions through its council or otherwise, which results in a finding of direct liability.

Assuming there is no direct liability on the part of the municipality (such as a finding that it has made a decision not to enforce certain Code provisions), does it then escape liability by virtue of the immunity given to its building officials. In my submission, that would depend on whether or not the building official is found to breach his private law duty on the basis of the standard of care suggested by Kamloops v. Nielsen, Rothfield v. Manolakos, and Mortimer v. Cameron. If he has, the municipality remains vicariously liable.

Another possible scenario is a situation where the building official has acted outside the scope of his authority in such a manner where vicarious liability will not attach to the municipality. It will still be necessary for the court to then find that the municipality is not directly liable as a result of its own breach of duty. In the final result, in such cases, there would have to be a collateral finding by the court that the building official has also not acted in good faith, which would result in no immunity.

There appears to be no Ontario jurisprudence on what constitutes "acts done in good faith" under s.31 of the BCA. Presumably, this is because in most cases, the courts are not concerned about statutory immunity since the municipality is either a co-defendant or the only defendant, and the building officials are presumed to have acted within the scope of their authority. In most cases, the municipality and the building official are covered by the same policy of insurance, and maintain a joint defence.53

Nevertheless, it may be interesting to know under what circumstances the actions of a building official would attract liability, for which no immunity is available. In my opinion, the conduct would have to be of such a nature that constitutes an abuse of authority on the lines of the test established by Roncarelli v. Duplessis. His conduct would have to be deliberate, reckless or defiant. He would have to have acted either in excess of his authority, acted for a collateral purpose, or acted in bad faith. Conceivably, in such cases, the building official could also be seen to have acted outside the scope of his authority (assuming his employers had no knowledge of his actions and did not condone them in any way), in which event, vicarious liability would not attach to the municipality. In such cases, policies of insurance may also not protect the building official.

18. Negligent Misrepresentation

CONCLUSION

BIBLIOGRAPHY

Arblaster, Richard R. Guide to Ontario Building Legislation, Carswell, 1996.

Boghosian, David G. Municipal Liability for Negligent Building Inspection: Is the Deck Stacked?, The Canadian Institute, April, 1995.

Drinkwalter, Douglas W. and Ewart, Douglas J. Ontario Provincial Offences Procedure, Carswell, 1980.

Dussault, R. and Borgeat, L. Administrative Law - A Treatise, Carswell, 1990.

Elder, P.S. Kamloops v. Nielsen - Good Result, Unclear Law, Alberta Law Review, Vol. XXIV, No. 3.

Engell, Bruce H. Building Permit Issuance (1995) 3 D.M.P.L. Vol. 3, No. 1.

Haley, Brian W. Chimney Down Draughts, Snow Loads and Building Permits (1995) 3 D.M.P.L. Vol. 3, No. 10.

Koltun, Nadia The Enforcement of the Ontario Building Code (1983) 20 M.P.L.R. 18.

Loopstra, Charles M. Municipal Liability in a Risk Management Context, Municipal Attorney, NIMLO 1995, Vol. 36, No. 5.

MacLean, M. Virginia Bill 103 - The New Ontario Building Code Act, Law Society of Upper Canada, Municipal Law Update, October, 1990.

Mascarin, John Building Permit Issuance and Compliance with ‘Other Applicable Law’ (1994) 18 M.P.L.R. (2d) 86.

Mascarin, John Deep Pocket Liability for Ontario Municipalities (1992) 1 D.M.P.L. Vol. 1, No. 22.

Matera, Josephine A. Mortimer v. Cameron - The Apportionment of Liability on Appeal (1994) 2 D.M.P.L. Vol. 2, No. 17.

Shillington, Terrence R. and Jager, E.H. Recent Developments in the Liability of Municipalities for Negligence, (1996) Canadian Bar Association - Ontario, 1996 Institute of Continuing Legal Education, City Smarts: Current Issues in Municipal Law.

Smither, Michael J. Entry Upon Private Property, Municipal World, September, 1994.

Watson, Sylvia N. Sources of Potential Municipal Liability and Suggestions for Risk Management, (1996) Canadian Bar Association - Ontario, 1996 Institute of Continuing Legal Education, City Smarts: Current Issues in Municipal Law.

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