Responding to Unsafe Building Conditions: Recent Decisions on Municipal Powers and Liability Ontario Building Officials Association Annual Meeting and Training Session – Leadership in Building Regulation October 7, 2015 Toronto Stephen Lockwood Counsel Legal Services Branch – Ministry of Municipal Affairs and Housing The views expressed herein are the views of the author and do not necessarily represent the views of the Ministry of Municipal Affairs and Housing or the government of Ontario, and are intended to convey general information, rather than legal advice. Persons requiring legal advice about these matters should consult a solicitor.

Overview Municipal powers to address unsafe buildings sections 15.9 and 15.10 of the Building Code Act, 1992 Unsafe condition (s. 15.9) as opposed to an immediate danger (s. 15.10) Municipal duties and liability Independence of building officials

Municipal powers to address unsafe buildings Unsafe buildings (s. 15.9) powers of entry to determine whether: a building is unsafe an order to remedy unsafe building has been complied with (s. 15.9(1)) unsafe building defined:  ”A building is unsafe if the building is, (a) structurally inadequate or faulty for the purpose for which it is used; or (b) in a condition that could be hazardous to the health or safety of persons in the normal use of the building, persons outside the building or persons whose access to the building has not been reasonably prevented” (s. 15.9(2))   order making power where building unsafe: set out the reasons why building is unsafe and remedial steps required to render building safe specify time in which order required to be carried out (s. 15.9(4)) if order to remedy not complied with, chief building official can: prohibit use or occupancy of building, or cause building to be renovated, repaired or demolished to remove the unsafe condition or take such other action as considered necessary to protect public (s. 15.9(6)) municipality has priority lien on the land for amount spent if it remedies unsafe situation (s. 15.9(10))

Municipal powers to address unsafe buildings Immediate danger (s. 15.10) emergency order where there is an immediate danger to the health or safety of any person set out particulars of dangerous condition can require work be carried out immediately to terminate danger (s. 15.10(1)) after making order, chief building official may take any measures necessary to terminate the danger (s. 15.10(3)) municipality not liable to compensate for anything done by or on behalf of chief building official in reasonable exercise of power to terminate danger (s. 15.10(4)) order can be served either before or after remedial measures are taken (s. 15.10(2)) chief building official must provide statement of measures taken as soon as practicable after measures are taken (ss. 15.10(5) and (6))   chief building official must apply to Superior Court for an order confirming the emergency order and determining whether amount spent on measures to terminate danger may be recovered (ss. 15.10(7)-(9)) municipality has priority lien on the land for amount determined by court to be recoverable (s. 15.10(10))

Unsafe condition Unsafe condition test to determine whether building is unsafe Definition in s. 15(2) of BCA: building is structurally inadequate or faulty for the purpose for which it is used; or building is in a condition that could be hazardous to the health or safety of persons in the normal use of the building, persons outside the building or persons whose access to the building has not been reasonably prevented.

Unsafe condition (cont.) courts will consider: expert evidence (e.g. engineering evidence about structural capacity) risk to public (e.g. person or property in vicinity that could be affected if collapse) relevant Building Code standards (e.g. is load capacity reduced to below that required by Building Code) however, a building is not necessarily unsafe just because it does not meet Building Code standards building not safe simply because it has not yet collapsed apply a conservative, objective, thorough, and prospective analysis, rather than a retrospective analysis R. v. Williams Engineering, [2014] AJ 1234 (Prov Ct) and 2014 ABQB 462 (Queen’s Bench) Hull v. Greater Napanee (Township), [2014] OJ 212 (SCJ) Georgina (Town) v. Anagnostopoulos, [2007] OJ 3263 (SCJ)

Immediate danger Immediate danger to health or safety of persons what types of evidence can be used to demonstrate that a building poses an immediate danger to the health or safety of persons: expert engineering advice (on behalf of owner and/or municipality) that building is unsafe; nature of the unsafe condition (e.g. voids under foundation) building previously suffered a collapse or partial collapse inability to explain cause of collapse or unsafe situation lack of compliance with orders issued by municipality under s. 15.9 passage of time without evidence of building being stabilized impending weather conditions (e.g. snow) Ministry of Labour considers building unsafe and does not allow access building can pose immediate danger even if: danger partially addressed by closing off the property, adjacent property or the surrounding streets does not necessarily require: building be in such danger demolition work needs to be carried out immediately engineer calling for immediate demolition of the building agreement among experts Ottawa (City) v. TKS Holdings Inc., [2011] OJ 6135 (SCJ) Sutherland Lofts Inc. v. St. Thomas (City), [2008] OJ 2840 (SCJ)

Unsafe condition or immediate danger Differences between unsafe and emergency powers Section 15.9 two stages to order making order to remedy unsafe condition if order to remedy not complied with, can then prohibit occupancy or take remediation action need to provide owner/occupant with notice and time to remedy condition do not need to go to court for confirmation of order or to determine what amount of costs are recoverable Section 15.10 can take action prior to serving emergency order do not need to provide owner/occupant with time to terminate danger no liability for municipality in respect of reasonable exercise of power after taking action, need to serve owner with statement of action taken and costs after serving statement, need to apply to Superior Court of Justice for confirmation of emergency order and determination of amount that may be recovered Georgian Bluffs (Township) v. Chiaramonte, [2012] OJ 6070 (SCJ) Gordon v. North Grenville (Municipality) (2011), 83 MPLR (4th) 26 (Ont SCJ)

Municipal duties and liability No duty to carry out repairs municipalities have powers under s. 15.9 and 15.10 to take action to remove an unsafe condition or terminate a danger, including causing a building to be repaired or demolished however, not obligated to exercise these powers political discretion not a matter for intervention by the courts Hull v Greater Napanee (Township), [2014] OJ 212 (SCJ) Foley v. Shamess, 2008 ONCA 588 (CA)

Municipal duties and liability (cont.) Statutory limitation of liability for building officials Immunity of action for CBOs and inspectors (s. 31(1)): No action or other proceeding for damages shall be instituted against…a chief building official, an inspector or an officer for any act done in good faith in the execution or intended execution of any power or duty under this Act or the regulations or for any alleged neglect or default in the execution in good faith of that power or duty Does not relieve municipality of liability for tort committed by CBO or inspectors (s. 31(2)) Some additional, specific statutory limitations of liability For example, s. 15.10(4) provides: Despite subsection 31(2),…a municipality…or a person acting on behalf of [a municipality] is not liable to compensate the owner, occupant or any other person by reason of anything done by or on behalf of the chief building official or an inspector in the reasonable exercise of his or her powers under subsection (3) [which provides the chief building official with the power to take any measures necessary to terminate an immediate danger to health or safety of any person]

Municipal duties and liability (cont.) Liability for inspecting existing buildings Municipalities can limit their liability associated with enforcing certain aspects of the BCA through appointing a registered code agency (RCA) reviewing designs to determine if proposed construction complies with Building Code inspecting construction for which a permit has been issued and exercising powers of inspector (ss. 4.1 and 15.14 to 15.22) municipality not liable for damage resulting from act or omission of RCA or if municipal building official relied on a certificate issued by RCA (ss. 31(3) and (4)) RCAs cannot be appointed to inspect unsafe buildings or exercise municipality’s power with respect to such buildings municipalities therefore still have potential liability with respect to exercising such powers potential liability could arise based on action or inaction prior to involvement of RCA 1606533 Ontario Inc. v Rapaso (c.o.b. Eurotouch Renovations), [2015] OJ 400 (SCJ)

Independence of building officials Generally, council of municipality responsible for enforcement of BCA (s. 3(1)) Council must appoint chief building official and as many inspectors as are necessary for enforcement (s. 3(2)) Some powers and duties assigned directly to CBOs and inspectors Issuing building permits (s. 8(2)); Issuing orders (ss. 12, 13, 14, 15.9, 15.10, 18) Role of CBOs and inspectors described (ss. 1.1(6) and (7))

Independence of building officials (cont.) Courts have recognized CBOs and inspectors have some measure of independence when performing duties and exercising powers assigned directly by the BCA: It is plain from the provisions of the BCA that a municipality has no authority to issue a building permit, no authority to direct that a building permit issue, and no authority to recommend that it be issued. It is the chief building official who by virtue of s. 8 of the 1992 BCA, has the sole statutory authority to issue a building permit. Notwithstanding ss. 3 and 7 of the BCA, the chief building official is entirely independent of the municipality, and he is bound in law to perform his duties entirely independent of any direction or recommendation the municipality may seek to give. Peter Kiewit Sons Co. v. Tillsonburg (Town), [2002] OJ 1497 (SCJ) It is imperative that municipal officials not interfere with the chief building official in the performance of the duties imposed upon him pursuant to s. 6 of the 1990 BCA [now s. 8 of the 1992 BCA]. Once a chief building official has been appointed he should be left alone to perform the functions entrusted to him. Pedwell v. Pelham (Town), [1998] OJ 3461 (Gen Div), affirmed [2003] OJ 1774 (CA)

Independence of building officials (cont.) Recognition of independence by courts (cont.): Although a chief building official has an independent function under the BCA, he is nonetheless an employee of the municipality for which council is ultimately accountable. Ross v. Muskoka Lakes (Township), [2004] OJ 24 (SCJ) Recommendation of Elliot Lake Commission of Inquiry: The Building Code Act should be amended to provide that building officials and inspectors are public office holders who are independent of the municipal council, but that it is entirely appropriate for the council or the chief administrative officer of the municipality to direct a concern to the attention of the building official to be dealt with as he or she sees fit. Report of the Elliot Lake Commission of Inquiry, Part I – Recommendation 1.18, p. 654

Stephen Lockwood Counsel Ministry of Municipal Affairs and Housing Tel: 416-585-6770 Email: stephen.lockwood@ontario.ca