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Municipal - Building Code. The Corporation of the Township of Perry v. MacKay
In The Corporation of the Township of Perry v. MacKay (Div Court, 2024) the Divisional Court allowed an appeal of a lower court finding that a municipal "inspection of ... property was an illegal warrantless search and excluded evidence obtained pursuant to that search." The statutory authority under which the CBO ('Chief Building Official') (Wilmon) acted was the Building Code, and the underlying dispute was that of a dwelling unit being built in an otherwise authorized storage unit.
Charter s.8 search and seizure issues were not seriously argued:[2] I would allow the appeal. The Appellant Wilmon was authorized by statute to enter onto the property for purposes of inspection. He acted within the scope of that statutory authority when he approached the storage unit and looked inside it through a window and the application judge erred in concluding otherwise.
[3] The evidence below, including the information obtained by the Appellant Wilmon looking through the window of the storage unit, establishes that the Respondents constructed a dwelling unit in the storage unit. It is not contested that they lacked the required permits to do this work.
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[16] The Appellants then applied to the Superior Court of Justice for orders resulting from the Respondents’ non-compliance with the Building Code and Wilmon’s three orders to comply.
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The Application Judge’s Decision
[19] The application judge correctly found that the Appellants were entitled to come on to the property to inspect in aid of enforcement of the Building Code Act. The application judge found that the two new buildings (the chicken coop and the schoolroom building) were built without required permits and that Wilmon’s orders to comply in respect to these buildings were lawful and should be enforced. On this basis the application judge granted the Appellants’ application in respect to these two buildings, an order that has not been appealed.
[20] The application judge found that Wilmon’s first inspection of the storage building was authorized by the Building Code Act. Thus, on the basis of this authorized inspection, Wilmon had information from a third party that a dwelling unit had been constructed inside the storage building, and he had seen artwork in the windows, children’s toys stacked by the door, and a hot tub to the rear of the storage building, which tended to confirm that the storage building was being used as a dwelling unit. He also had information that the Respondents had recently built two other structures without permits.
[21] The application judge found, correctly, that the Building Code Act distinguishes between entry onto land and inspection and entry into a dwelling unit: the former does not, and the latter does, require a warrant.
[22] The application judge found that looking in the window of the storage building, and taking photographs of the interior through a window, as Wilmon did on April 8, 2023, was an unauthorized warrantless search of a dwelling unit, contrary to the Respondents’ right to be free from unreasonable search and seizure under the Canadian Charter of Rights and Freedoms. She excluded the evidence obtained through what she determined was an unlawful search and then dismissed the Appellant’s application in respect to the third compliance order issued by the Appellant Wilmon (in respect to the storage unit).
Issue on Appeal
[23] The Appellants argue that looking through a window of a building that is not permitted to be a dwelling unit, for the purpose of ascertaining whether it is being used unlawfully as a dwelling unit, is not an “entry into a dwelling unit” within the meaning of the Building Code Act and is thus authorized by the general power in the Act to enter and inspect property. In the alternative, the Appellants argue that, even without the evidence obtained by the impugned search, the admissible evidence before the Application judge established a basis for the order to comply, and the requested order should have been granted.
[24] I agree with both of the Appellants’ arguments.
[25] The Building Code Act is not a criminal law. It is a regulatory law, intended to ensure that buildings are constructed in accordance with applicable planning, environmental, safety, fire and construction standards. The orders issued by the Appellant Wilmon were orders to comply with the Act, once he had determined that structures on the property were not in compliance with the Act. The non-compliance is a continuing state of affairs: if nothing has yet been done to bring the buildings into compliance, then there is a continuing basis for Wilmon to inspect and order compliance with the Act.
[26] There are two ways in which to view the circumstances of this case. The first is that, prior to the second visit to the property, Wilmon had enough information to conclude, on a balance of probabilities, that the storage building had been converted to the use of a dwelling unit. In this event, Wilmon could have issued an order to comply without the subsequent visit to the property, and the inspection he conducted on that subsequent visit was immaterial to the Application below. In this event, even if the subsequent search was unlawful, the application judge should have granted the Application, there being sufficient admissible evidence to ground it.
[27] Alternatively, if Wilmon did not have enough information to conclude that the storage building was being used as a dwelling unit, he was entitled to assume that it was not. The Respondents never asserted that the building was a dwelling unit, and Wilmon was entitled to presume that the building was not an illegal use until his investigation established otherwise.
[28] An argument could be made that, once Wilmon saw residential use of the premises by looking through the window, he should not have gone further and taken pictures without a warrant. This is not a case where administrative powers of inspection have been misused for the purposes of a criminal or quasi-criminal prosecution. In my view, the power to inspect and to enter premises that are not dwelling units are designed to balance the Appellants’ interests in efficient enforcement with the privacy interests of the Respondents. If the Respondents are not prepared to tell authorities that a building is a dwelling unit, it is unclear to me how they can assert a privacy interest in it as a dwelling unit. Further, the approach taken by Wilmon was actually less intrusive than the alternative approach that would result from the application judge’s decision: had Wilmon applied for a warrant, he surely would have obtained it: he had plenty of information to ground a request for a warrant. That warrant could – and likely would – have authorized Wilmon to actually enter the storage unit and inspect – a process that would have been far more intrusive for the Respondents than the process actually followed in this case. In my view, the Appellants acted reasonably in their efforts to discharge their duty to enforce the Building Code Act in the face of assertions by the Respondents that they were not bound by laws of general application, and even if it was thought that Wilmon should have obtained a warrant, this was not a case where the evidence should have been excluded for a mere error in judgment: the underlying issue of principle – whether there is an unpermitted use being made of the storage unit – will still have to be addressed, and the remedy ordered by the application judge has the effect of extending conflict rather than resolving it.
[29] Wilmon’s authority included looking in a window to try to determine if the premises were a building unit, and documenting his observations, and the application judge erred in concluding otherwise. . Breen v. Lake of Bays (Township)
In Breen v. Lake of Bays (Township) (Ont CA, 2022) the Court of Appeal considered a municipality's negligence regarding building permits and related inspections:[26] The leading case with respect to a municipality’s duty of care in enforcing building codes is Ingles v. Tutkaluk Construction, 2000 SCC 12, [2000] 1 S.C.R. 29. There, dealing with inspection of construction after it had commenced without a permit, and prior to the 2001 amendments that clarified the legislation to explicitly mandate inspections, the duty is laid out clearly at para. 67:The purpose of the building inspection scheme is clear from these provisions: to protect the health and safety of the public by enforcing safety standards for all construction projects. The province has made the policy decision that the municipalities appoint inspectors who will inspect construction projects and enforce the provisions of the Act. Therefore, municipalities owe a duty of care to all who it is reasonable to conclude might be injured by the negligent exercise of their inspection powers. [27] The parties agree that Ingles remains good law and the appeal was argued on that basis. For the purposes of the present appeal, I would agree with that approach, with the caution that in the future, a duty of care analysis should take account of the SCC developments in recent years: Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, [2017] 2 SCR 855; 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, 450 DLR (4th) 181; and Charlesfort Developments Limited v. Ottawa (City), 2021 ONCA 410, 156 O.R. (3d) 10 (leave to appeal refused, 39818 (17 February 2022)).
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[37] The trial judge rejected the municipality’s argument on this issue, finding that there was no policy reason for limiting or negating the duty of care. After reviewing Ingles and Rothfield v. Manolakos, 1989 CanLII 17 (SCC), [1989] 2 S.C.R. 1259, he specifically found that the municipality owed a duty of care to the Breens to “not negligently exercise its power to grant a building permit and in the inspection of the construction of the building which is the subject matter of the building permit pursuant to the Act and requisite regulations.” As he explained, at paras. 71, 72:The purpose of the construction scheme - the granting of the building permit and subsequent inspection of construction is the same: to protect the health and safety of the public. The legislative scheme grants powers to the [appellant] to not only inspect the construction but also to grant or reject an application for a building permit or later revoke said building permit, if the circumstances warrant.
The [respondents] are subsequent owners of a building that the [appellant] granted a building permit for construction and inspected the construction as the construction was ongoing. It is reasonable to conclude that the [appellant] would owe a duty of care to the [respondents] who might be injured by the [appellant’s] negligent exercise of their authority not only to inspect the progress of the construction but also in the process of granting a building permit, not to subsequently revoke said building permit which is the subject matter of the construction, pursuant to the provisions of the Act and requisite regulations. [38] I do not agree with the municipality that the trial judge erred in this analysis.
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[41] Specifically, I would not accept the municipality’s argument that the absence of an explicit requirement to inspect effectively rendered all inspections optional. Taken to its logical conclusion this risks undermining the purpose of the legislative scheme. As stated by the trial judge, at para. 115, “I am of the view that once a building permit is granted, the municipality has an obligation to inspect the building to comply with the Act and the requisite Building Code. Anything less would make the whole building permit and inspection process meaningless” (emphasis added). If a municipality were to decide to conduct limited or no inspections of known and permitted construction, it would be incapable of ensuring that the construction underway conformed with the permit granted, and that it met the uniform standards of the Ontario Building Code.
[42] Consequently, having made the policy decision to inspect, the municipality was bound to implement this decision with the care that would be expected of an ordinary, reasonable and prudent municipality in the same circumstances: Ingles, at para. 20. In my view, the municipality fell short of this standard when it declared the construction of the cottage closed without conducting further inspections.
[43] Second, and regardless, the municipality must make the policy decision to inspect in a manner that accords with the Act’s purpose: Ingles, at para. 19. In this case, there is no dispute that the regulatory scheme reflected in the Act was intended to ensure the health and safety of the public. It did so by providing a province-wide framework for the required enforcement of building regulations, while also providing for municipalities to operationalize this framework through its own by-laws, of which the municipality’s By-Law No. 80-19 was an example.
[44] The municipality is a creature of statute, with “clear responsibilities for health and safety in the area.” It therefore could not “immunize itself from liability by simply making a policy decision never to inspect”: Ingles, at para. 19. Rather, the decision to not inspect would leave the implementation of the universal standards in the Act to the builders, not the municipality who is charged with its enforcement.
[45] However, this obligation does not go nearly as far as to make an insurer of the municipality. In implementing the inspection regime, as in negligence generally, the municipality’s obligation and, accordingly, its liability is limited by what is reasonable: Allen M. Linden et al, Canadian Tort Law, 12th ed. (Markham, Ont.: LexisNexis, 2022) at pp. 176-77.
[46] The trial judge did not impose tortious liability for failing “to attend every building site daily to determine if it is an opportune time to carry out an inspection,” as the municipality argues. Rather, he found fault where the municipality carried out its statutory mandate unreasonably. Choosing not to inspect everyday was reasonable, but failing to conduct any inspection after June 1991 was not. . Cavan Monaghan (Township) v. Kings Custom Homes Incorporated
In Cavan Monaghan (Township) v. Kings Custom Homes Incorporated (Div Ct, 2022) the Divisional Court considered a successful appeal from a chief building officer (CBO):[1] This is an appeal by the chief building official under s.38(3) of the Building Code Act (“the Act”) from the order of Casullo J. under s.38(1) of the Act (Township of Cavan Monaghan v. King’s Custom Homes Incorporated, 2021 ONSC 369). The appellant also seeks leave to appeal from the application judge’s order that the parties bear their own costs, and if leave is given, appeals it as well.
[2] The Act provides:38 (1) Where it appears to a chief building official that a person does not comply with this Act, the regulations or an order made under this Act, despite the imposition of any penalty in respect of the non-compliance and in addition to any other rights he or she may have, the chief building official may apply to the Superior Court of Justice for an order directing that person to comply with the provision.
(2) Upon the application under subsection (1), the judge may make the order or such other order as the judge thinks fit.
(3) An appeal lies to the Divisional Court from an order made under subsection (1). ....
[12] In an application for an injunction under s.38 of the Act, the chief building official is empowered to ask for an order directing the respondent to comply with the Act, the regulations or an order made under the Act. The court is entitled to make such order as it thinks fit.
[13] A number of provisions of the Act provide for a chief building official to order demolition of a building: sections 8(2), 8(3), 15.3, 15.9, 15.10 and 15.10.2. The Act does not give the chief building official authority to order demolition of a building on the sole ground that a building permit has not been issued under s. 8(1). The Superior Court, however, has the power in an application under s.38 to order demolition. In comparable circumstances to the present case, the Superior Court has often made such orders. See, for instance, Gravenhurst (Town) v. Brunton, 2011 ONSC 1799 and Smith-Ennismore-Lakefield (Township) v Tarala, 2016 ONSC 7109. . Tokarz v. Selwyn (Township)
In Tokarz v. Selwyn (Township) (Ont CA, 2022) the Court of Appeal considered breach of statute (here the Building Code) as evidence of negligence breach of duty:The First Issue: Scope of Duty and The Standard of Care
[22] The trial judge found that the Township breached its duty of care by failing to inspect the work done, signed off on the work, and abrogated its role under the Building Code. The Township submits that its duty is narrow when inspecting a building: it has a duty to ensure that there are no deviations from the Building Code that could affect public health and safety.
[23] The Township relies on Ingles v. Tutkaluk Construction Ltd., 2000 SCC 12, [2000] 1 S.C.R. 298, at para. 23, wherein Bastarache J. for the court discussed the purpose of the Building Code:The legislative scheme is designed to ensure that uniform standards of construction safety are imposed and enforced by the municipalities. …The purpose of the building inspection scheme is clear from these provisions: to protect the health and safety of the public by enforcing safety standards for all construction projects. The province has made the policy decision that the municipalities appoint inspectors who will inspect construction projects and enforce the provisions of the Act. Therefore, municipalities owe a duty of care to all who it is reasonable to conclude might be injured by the negligent exercise of their inspection powers. [Emphasis added] [24] In White v. The Corporation of the Town of Bracebridge, 2020 ONSC 3060, 4 M.P.L.R. (6th) 271, at para. 48, DiTomaso J. explained The Ontario Building Code provides minimum standards for construction so that owners of houses will be safe from poor construction. The standard of care is, at a minimum, the Ontario Building Code’s requirements. At trial, Mr. Koerth testified that the minimum standards in Part IX of the OBC could not be ignored without risking the safety of the building’s occupants. [Emphasis added] [25] Contrary to the Township’s assertion, the trial judge did not suggest that the mere existence of defects was sufficient to hold the Township liable. Rather, the Township was held liable for failing to perform the inspection it was required to conduct under the Building Code, resulting in the failure to identify and order the deficiencies to be remedied.
[26] In any event, the trial judge was clearly alive to the purpose of the Building Code, and held that, “Water and panels that are not installed properly are anathema to safety in this paradigm”. He found as a fact that, “This barn is not a safe haven with these defects.” In addition, the respondents’ expert, Mr. Koerth, testified that he had concerns about the risk of fire.
[27] For these reasons, I do not agree that the trial judge misapprehended the scope of the appellant’s duty of care.
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