A structure that was constructed under a building permit and has passed inspections by the municipality is expected to be a healthy and safe building. This expectation seems to stem from the awareness of the role building permits and construction inspections play in ensuring that the health and safety requirements of building codes are met. Yet the reality is that a passing grade on a municipal inspection is not a certification or assurance by the municipality of the soundness of the design or the quality of construction. For that, municipalities rely upon the design professionals involved. The sign-off by a municipality only signifies that construction was completed in general conformity with the approved plans and the minimum requirements of the applicable building code.
In recent years, municipalities have increasingly been named as defendants or co-defendants in disputes arising from issues such as inadequate thermal resistance of exterior doors and windows, water leakage into below-grade levels, building permits that remained open for years, and latent defects attributable to deficient or non-code compliant construction that was either not inspected or not detected during inspections. This article presents an overview of the powers and duties of municipalities under the Building Code Act1 and the Ontario Building Code2, provides examples of where municipalities can be vulnerable to liability, and discusses the view of the Canadian Courts on municipal liability.
The Powers and Duties of Municipalities
Under the Building Code Act (BCA) and the Ontario Building Code (OBC), building officials have the duty to review design plans, inspect construction, and, where warranted, issue orders to owners and permit holders to have construction comply with the BCA and OBC. Building inspectors are expected to identify any deviations or changes from the issued permit plans and require that a revised building permit be obtained for any material change. However, building inspectors are not required to continuously monitor construction. Rather, they have a duty to detect defects that are apparent by visual inspection during the inspection stages and to order those defects to be remedied. In exercising their powers, building inspectors are required to perform their duties in an independent manner and only in relation to matters for which they are qualified.
The BCA allows a municipality to revoke a building permit for several reasons including: where a permit was issued on the basis of false information, construction has not been commenced six months after the permit was issued, construction has been suspended or discontinued for over a year, or the permit was issued in error.[i] The Courts have held that where an owner obtains a building permit but commences construction of something substantially different to that which has been allowed by the permit, the municipality is entitled to revoke the permit.3
Inspection Stages
Inspections required under the OBC have evolved significantly since 1975 when the first edition of the Code was introduced.
The 1975 edition of the OBC required that municipalities be notified at the following stages of construction: commencement of construction; completion of excavation; readiness to construct the foundation; completion of foundations before backfilling; completion of the structural framing; readiness to apply interior finishes; and the completion of as-built drawings. The 1983 edition of the OBC introduced notifications at the following additional stages: insulation, duct work, fire separations; and exterior cladding. Inspecting masonry and factory-built fireplaces and their chimneys was added in the 1986 edition.
The 1997 edition of the OBC introduced occupancy permits and occupancy inspections. An occupancy permit is a permission by the municipality for a building to be occupied prior to the completion of construction. An inspection by the municipality of all components necessary for occupancy is required before an occupancy permit can be issued. An occupancy permit is not required where construction has been completed and the building permit has been closed by the municipality.
The 2006 edition of the OBC marked the introduction of optional “additional inspections”, which gave the municipality the discretion to conduct certain inspections such as interior finishes, and site grading. The inspection of fireplaces, which was previously mandatory, became optional in this revision.
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