1. Professional Design and the Building Code ACT, 1992
Ontario Building Officials Association
2014 AMTS – Niagara Falls
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, about the matters discussed herein. Persons requiring legal advice about the matters discussed herein should consult a solicitor.

2. Overview Professional Design Introduction
Recent Building Code Act, 1992 amendments
Schedule 3 to the Building Opportunity and Securing Our Future Act (Budget Measures), 2014 (Bill 14)
Recent Building Code amendments
Ontario Regulation 191/14

3. Introduction Professional design of buildings
addressed in the Architects Act and Professional Engineers Act
Acts establish parameters for which types of buildings must be designed by an architect or a professional engineer or both
PEO and OAA govern practice of PEO licensees and architects
Prior to 2007, professional design also addressed in Building Code regulation
table - allocation of design between architects and professional engineers
Requirements for other building components

4. Introduction – Pre-2007
2006 Building Code – O. Reg. 350/06 – Division C
Section 1.2.  Design and General Review
1.2.1.  Design
  Design by Architect or Professional Engineer
(1)  Except as permitted in Sentences (2) and (3), the construction, including, for greater certainty, enlargement or alteration, of every building or part of it described in Table and this Article shall be designed and reviewed by an architect, professional engineer or both.

6. Introduction – Pre-2007 (cont.)
Notes To Table :
Architects shall provide services within practice of architecture
Professional engineers shall provide services within the practice of professional engineering
Requirements for design and general review by a professional are set out in the Architects Act and Professional Engineers Act
Sentence (2)  
Professional may provide services within practice of the other profession where it does not constitute a substantial part of the services provided by the other profession and is necessary for coordination purposes and incidental to the other services provided

7. Introduction – Pre-2007 (cont.)
Sentence (3)  
Exception from requirement for an architect where design is of interior space of a building that is not likely to affect certain building safety elements (e.g. structural integrity, fire safety system or fire separation, main entrance or public corridor, exterior walls, etc.)
Sentence (4)  
Signature and seal must be affixed to all plans, sketches, drawings, graphic representations, specifications and other documents that are prepared by an architect, professional engineer or both and that form the basis for the issuance of a building permit

8. Introduction – Pre-2007 (cont.)
(5) Where the foundations of a building are to be constructed below the level of the footings of an adjacent building and within the angle of repose of the soil, as drawn from the bottom of the footings, the foundations shall be designed by a professional engineer. (6) The thermal design of a building in accordance with Subsection of Division B shall be prepared and provided by an architect or professional engineer or a combination of both. (7) A sprinkler protected glazed wall assembly described in Article of Division B shall be designed and reviewed by a professional engineer. (8) A shelf and rack storage system described in Section of Division B shall be designed and reviewed by a professional engineer. (9) The time-based egress analysis for a shelf and rack storage system described in Sentence (7) of Division B shall be prepared and provided by an architect or professional engineer or a combination of both. (10) The supporting framing structure and anchorage system for a tent occupying an area greater than 225 m2 shall be designed and reviewed by a professional engineer. (11) A sign structure shall be designed by an architect or professional engineer where it is, (a) a ground sign that exceeds 7.5 m in height above the adjacent finished ground, (b) a projecting sign that weighs more than 115 kg, or (c) a roof sign that has any face that is more than 10 m2. (12) A projecting sign attached or fastened in any manner to a parapet wall shall be designed by an architect or professional engineer.

9. Introduction – 2007 Court Decision
Association of Professional Engineers of Ontario v. Ontario (Municipal Affairs and Housing)
On May 17, 2007 the Ontario Divisional Court released its decision in the judicial review application, finding:
Professional design Article of the Building Code was not authorized by the BCA and was invalid to the extent that it purported to allocate responsibility for designs between professional engineers and architects.
Requirement that signature and seal of professional engineer was not authorized by the BCA and was invalid.
Provisions of the BCA and Building Code that required qualifications for designers do not apply to any holder of any licence or certificate issued under the Professional Engineers Act.
The analysis applied equally to the intervenor architects.

10. Introduction – 2012 Building Code
2012 Building Code - O. Reg. 332/12 – Division C
Table revoked with respect to professional design
Signature and seal requirement revoked
“Suitably qualified and experienced person”
  Design
(1)  Where the foundations of a building are to be constructed below the level of the footings of an adjacent building and within the angle of repose of the soil, as drawn from the bottom of the footings, the foundations shall be designed by a suitably qualified and experienced person. …

11. Recent BCA Amendments
Building Code Act, 1992 was amended through the spring 2014 Budget Bill
Building Opportunity and Securing Our Future Act (Budget Measures), 2014, S.O C.7 (Bill 14)
BCA amendments are Schedule 3 to the Bill
Amendments effective as of July 24, 2014

12. BCA Amendments (cont.) Amendments consist of four changes:
to refer in s. 8(2) of the BCA to the professional design requirements in the Professional Engineers Act and Architects Act
to codify that BCA qualification requirements for designers do not apply to the holder of any licence or certificate issued under the Architects Act or the Professional Engineers Act
provide authority to require professional design in relation to certain small buildings
ensure consistency in references to professional engineers and architects in the BCA

13. BCA Amendments (cont.)
SCHEDULE 3 - BUILDING CODE ACT, Subsection 8 (2) of the Building Code Act, 1992 is amended by adding the following clause: (b.1) the Architects Act or the Professional Engineers Act requires that the proposed construction of the building be designed by an architect or a professional engineer or a combination of both and the proposed construction is not so designed; 2. Section of the Act is amended by adding the following subsection: Non application (8) Subsection (5) does not apply to a holder of any licence or certificate issued under the Architects Act or the Professional Engineers Act. 3. (1) Subsection 34 (1) of the Act is amended by adding the following paragraph: 9.1 requiring any part of the construction of a building described in clauses 11 (3) (a) and (b) of the Architects Actor subsection 12 (4) and clause 12 (5) (a) of the Professional Engineers Act to be designed by an architect or a professional engineer or a combination of both; (2) Paragraph 10 of subsection 34 (1) of the Act is amended, (a) by striking out “as defined in the Architects Act”; and (b) by striking out “as defined in the Professional Engineers Act” and substituting “or a combination of both”. Commencement 4. This Schedule comes into force on the day the Building Opportunity and Securing Our Future Act (Budget Measures), 2014 receives Royal Assent.

14. BCA Amendments (cont.) Professional Design
1.  Subsection 8 (2) of the Building Code Act, 1992 is amended by adding the following clause:
(b.1) the Architects Act or the Professional Engineers Act requires that the proposed construction of the building be designed by an architect or a professional engineer or a combination of both and the proposed construction is not so designed;

15. BCA Amendments (cont.) Professional Design (cont.)
As a result, s. 8(2) of the BCA now provides (in part):
The CBO shall issue a building permit unless:
(a) the proposed building, construction or demolition will contravene this Act, the building code or any applicable law; …
(b.1) the Architects Act or the Professional Engineers Act requires that the proposed construction of the building be designed by an architect or a professional engineer or a combination of both and the proposed construction is not so designed;

16. BCA Amendments (cont.) Professional Design (cont.)
Intended to enable CBOs to refuse to issue permit where the Professional Engineers Act or Architects Act requires a building to be designed by professional and it is not so designed
Not intended to encroach on jurisdiction of PEO and OAA to govern the practice of their members
Not intended to allocate design activities between PEO licensees and architects
New clause refers specifically to the design requirements set out in the Professional Engineers Act and Architects Act

17. BCA Amendments (cont.) Professional Design (cont.)
Generally, when design of building involves practice of architecture or professional engineering
Certain exclusions:
Interior designers
Residential, not more than 3 storeys, with one dwelling unit or two attached dwelling units each of which is constructed directly on grade
Residential, not more than 3 storeys, not more than 600 square metres in building area, with three or more dwelling units each of which is constructed directly on grade
Not more than 3 storeys, not more than 600 square metres in gross area, intended for residential, business, personal service, mercantile or industrial occupancy [does not house apparatus, process, facility or works within the practice of professional engineering]

18. BCA Amendments (cont.) Professional Design (cont.)
OAA and PEO Joint Bulletin on Design and General Review
Questions regarding whether a particular building is required to be designed by a PEO licensee or architect would be referred to PEO or OAA
Professional Engineers Act and Architects Act establish a Joint Practice Board
Deals with questions of whether a specific design requires the services of an architect, PEO licensee or both

19. BCA Amendments (cont.) Qualifications
2.  Section of the Act is amended by adding the following subsection:
Non application
(8)  Subsection (5) does not apply to a holder of any licence or certificate issued under the Architects Act or the Professional Engineers Act.

20. BCA Amendments (cont.) Qualifications (cont.)
Codifies Ontario Divisional Court decision.
New subsection 15.11(8) provides that subsection (5) does not apply to a holder of any licence or certificate issued under the Architects Act or the Professional Engineers Act.
Subsection 15.11(5) provides qualification requirements for designers.

21. BCA Amendments (cont.) Regulation Making Authority
3. (1)  Subsection 34 (1) of the Act is amended by adding the following paragraph:
9.1  requiring any part of the construction of a building described in clauses 11 (3) (a) and (b) of the Architects Act or subsection 12 (4) and clause 12 (5) (a) of the Professional Engineers Act to be designed by an architect or a professional engineer or a combination of both;

22. BCA Amendments (cont.) Regulation Making Authority (cont.)
Clauses 11 (3) (a) and (b) of the Architects Act or subsection 12 (4) and clause 12 (5) (a) of the Professional Engineers Act 
Residential, not more than 3 storeys, with one dwelling unit or two attached dwelling units each of which is constructed directly on grade
Residential, not more than 3 storeys, not more than 600 square metres in building area, with three or more attached dwelling units each of which is constructed directly on grade
Not more than 3 storeys, not more than 600 square metres in gross area, intended for residential, business, personal service, mercantile or industrial occupancy [does not house apparatus, process, facility or works within the practice of professional engineering]

23. BCA Amendments (cont.)
 3. (2)  Paragraph 10 of subsection 34 (1) of the Act is amended, 
  (a)  by striking out “as defined in the Architects Act”; and
  (b)  by striking out “as defined in the Professional Engineers Act” and substituting “or a combination of both”.

24. BCA Amendments (cont.) Commencement
4.  This Schedule comes into force on the day the Building Opportunity and Securing Our Future Act (Budget Measures), 2014 receives Royal Assent.
Royal Assent - July 24, 2014
BCA amendments effective as of that date

25. Recent Building Code Amendments
Amendments also made to the 2012 Building Code regulation (Ontario Regulation 332/12)
Made under new para. 9.1 of s. 34(2) of the BCA
Made through amending regulation O. Reg. 191/14
Filed September 23, 2014
Reintroduce previous requirements for certain small buildings

26. Building Code Amendments (cont.)
Ontario Regulation 191/14 amended the 2012 Building Code by revoking and replacing Subsection of Division C Application (1) Article applies with respect to a building described in clause 11 (3) (a) or (b) of the Architects Act or subsection 12 (4) or clause 12 (5) (a) of the Professional Engineers Act.

27. Building Code Amendments (cont.)
Design by Architect or Professional Engineer (1) Where the foundations of a building are to be constructed below the level of the footings of an adjacent building and within the angle of repose of the soil, as drawn from the bottom of the footings, the foundations shall be designed by a professional engineer. (2) A sprinkler protected glazed wall assembly described in Article of Division B shall be designed by a professional engineer. …

28. Building Code Amendments (cont.)
  Design by Architect or Professional Engineer …
(3)  A shelf and rack storage system described in Section of Division B shall be designed by a professional engineer.
(4)  The time-based egress analysis for a shelf and rack storage system described in Sentence (7) of Division B shall be prepared or provided by an architect or a professional engineer or a combination of both.

29. Building Code Amendments (cont.)
  Design by Architect or Professional Engineer …
(5)  The supporting framing structure and anchorage system for a tent occupying an area greater than 225 m2 shall be designed by a professional engineer.
(6)  A sign structure attached in any manner to a building shall be designed by an architect or a professional engineer or a combination of both where it is,
(a) a projecting sign that weighs more than 115 kg, or
(b) a roof sign that has any face that is more than 10 m2.
(7)  A projecting sign attached in any manner to a parapet wall shall be designed by an architect or a professional engineer or a combination of both.

30. Building Code Amendments (cont.)
General Review
No changes, except to harmonize language
“an architect or a professional engineer or a combination of both”

31. Questions
Stephen Lockwood Counsel Ministry of Municipal Affairs and Housing Tel: