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Municipal - Building Code. Paisley & Whitelaw v. The Chief Building Official of the City of Guelph [meaning of 'order or decision']
In Paisley & Whitelaw v. The Chief Building Official of the City of Guelph (Div Ct, 2026) the Divisional Court dismissed a condo developer's second appeal, this brought against the dismissal of "an appeal to the Superior Court pursuant to s. 25 of the Building Code Act, 1992 ... to overturn an “order or decision” of the respondent .... Chief Building Official (the “respondent” or the “CBO”), respecting the sufficiency of parking at the project."
Here the court considers BCA s.25 ['Appeal to court'], in particular whether an appealable "order or decision" was made. While these reasons are directly applicable to this Building Code context, IMHO the meaning of 'decision' has broader application to all of: appellate, judicial review and statutory interpretation law:[18] As I have said, Fowler Byrne J. dismissed the appeal, which was brought pursuant to s. 25 of the Act, which I quote in part here (emphasis added):25(1) A person who considers themself aggrieved by an order or decision made by the chief building official, a registered code agency or an inspector under this Act (except a decision under subsection 8(3) not to issue a conditional permit) may appeal the order or decision to the Superior Court of Justice within 20 days after the order or decision is made. ....
5.2.1 Did the appeal judge fail to apply the correct legal principles?
[32] The appeal judge carefully considered the applicable law, reviewing in detail the judgment of Leach J. in Pigozzo, wherein the court undertook a full analysis of s. 25 of the Act and the meaning of “order or decision”. In coming to her conclusion that the CBO’s emails of December 4, 2023, and September 6, 2024, did not constitute orders or decisions, the appeal judge (at para. 29 of her reasons) quoted the following passage from Pigozzo (at para. 13; emphasis in the original):... the rights of appeal provided in s.25(1) of the [Act] are expressly limited to a decision “made” by a CBO, registered code agency or an inspector; i.e., an extant decision, relating to an established set of facts, in respect of which an official actually was called upon to make a determination pursuant to the BCA and did so. In that regard:. No rights of appeal are granted in relation to possible or prospective future decisions, even when a CBO, registered code agency or an inspector goes so far as to indicate, in writing, his or her intentions as to how he or she is likely to decide if and when formally called upon to make such a decision. [33] The appeal judge then continued by noting Leach J.’s reference to the judgment of Gauthier J. in Caisse Populaire Nolin de Sudbury Inc. v. Greater Sudbury (City), [2007] O.J. No. 778 (S.C.J.). In that case, the City’s solicitor had advised a landowner that the demolition of a staircase would not be approved unless another staircase was in place. Although neither Fowler Byrne J. nor Leach J. quoted Greater Sudbury, it is apt to quote the following passage here (para. 24 – 26; emphasis added):The removal of the steel stair case would be the demolition of a material part of the building located at 176 Larch Street. A demolition permit would be required to effect such removal.
The Applicant has not made any application for a permit, in the prescribed form, as required by Subsection 8(1.1) of the [Act].
Consequently, there has been no decision by the chief building official which could be subject to appeal, in accordance with Section 25 of the [Act], ... [34] In the present case, drawing on both Greater Sudbury and Pigozzo, the appeal judge agreed with Leach J.’s conclusions, which she summarized as follows (at para. 28):... the right of appeal conferred by s. 25(1) of the [Act] does not permit appeals in relation to decisions that may or may not be made by a CBO in the future, even if the CBO provides an indication of what he or she may contemplate doing in that regard. [35] The appeal judge concluded that in the present case, where the appellant had not applied for occupancy permits, the CBO had not made any decision respecting the related building permit as required by s. 25. Instead, as the CBO argued, his emails were nothing more than “pre-emptive emails, written in the hope of avoiding a refusal of their building permit, but in no way constitute an order or decision within the meaning of s. 25(1) of the [Act].”
[36] The appellant does not take issue with the correctness of the reasoning in either Pigozzo or Greater Sudbury. Instead, both in this court and before Fowler Byrne J., the appellant submits that those cases are distinguishable from the present case and that the failure to recognize as much led the appeal judge to err in law by failing to apply the correct legal principles. In this respect, the appellant says that the emails from the CBO admit of no ambiguity, clearly express exactly what he would do in certain circumstances, and came directly from the CBO, not mediated by the CBO’s counsel, as in both Pigozzo and Greater Sudbury.
[37] In my view, the emails from the CBO in the present case were expressly contingent and forward-looking (“if” inspections and occupancy permits are requested without adequate parking having been constructed, “then” the building permit will be revoked). As the appellant never requested occupancy permits in the absence of adequate parking, the CBO never revoked the building permit. At the time of the argument of this appeal, it was still the case that no such requests had been made. The fact that the CBO said that a decision would be made in the future is not the same as making a decision or issuing an order. The requisite pre-conditions for the making of such a decision never crystallized so no decision was ever made. To paraphrase Pigozzo, there was no extant decision relating to an established set of facts in respect of which the CBO was required to make a determination and did so. There was, therefore, no decision or order from which the appellant could appeal. The fact that the emails were sent by the CBO himself does not alter their contingent nature and is, in my view, a distinction between the cases which is not meaningful.
[38] I note that there are good policy reasons to approach this jurisdictional question as the trial judge did. As Leach J. said in Pigozzo (at para. 13), a CBO may offer its opinion on a legal question and even put that opinion in writing without having made an order or decision. Where no decision has been made, such an opinion might be revisited. Leach J. put the point as follows:Whatever course of action an official may be contemplating in relation to a formal determination to be made in the future, he or she accordingly has and should have the ability to revisit his or her initial thoughts when making a formal determination based on the precise facts prevailing at the time a formal decision needs to be made. Were it otherwise, the ability of such officials to take changing circumstances and all information relevant to their decisions into account would be constrained, and frustrate the purpose of the Act to make decisions appropriate to evolving circumstances. [39] I add to these observations that a CBO’s expression of opinion allows the builder to know that opinion, to engage with the CBO about it, to challenge it in discussion, and to formulate solutions to the issue or issues identified by the CBO, including by working with the CBO to find those solutions. In part, that is what happened here in connection with towers A and B. If every expression of a position by a CBO opened a right of appeal, CBO’s would be reticent to express them and all these benefits would be lost.
[40] In any case, the appellant also submits that the application judge erred by distinguishing and failing to apply the decisions on which the appellant relies: Wolfond v. North York (City) Building Commissioner (1990), 1990 CanLII 6682 (ON HCJ), 74 O.R. (2d) 466 (Dist. Ct.) and Woodglen & Co. v. North York (City), [1984] O.J. No. 3320 (Div. Ct.). In these cases, the courts confirmed that a communication need not be in any particular form to qualify as a decision, as long as the communication expresses a final determination of the rights of the person to whom it applies. The appellant adds, relying on Waxman v. Ontario (2006), 2006 CanLII 35617 (ON SCDC), 216 O.A.C. 353 (Div. Ct.), that the court may find that a decision has been made when in informal communications the decision-maker reveals that it has already made up its mind and the result of any formal proceeding is preordained.
[41] I agree with the appeal judge and with the respondent that Wolfond does not assist the appellant. There was no issue in Wolfond about whether a decision had been made, because the municipality had plainly refused the builder a building permit. Wolfond is relevant only in that the court relied on an earlier informal communication by the municipality confirming that a permit would be issued given that the proposed building complied with all applicable laws at that time. Before the permit could be issued, however, a new municipal by-law was passed, and the proposed building was no longer compliant. In those circumstances, the court held that the builder ought to have had his permit.
[42] As Fowler Byrne J. concluded (at para. 41), the facts in the present case are “quite different.” The appellant was never advised by the CBO that it would have its occupancy permits, and although the building inspector did not raise parking issues with the appellant, the appellant at all relevant times knew that compliance with the zoning by-law was required for the purposes of the building permit. The appellant was further aware, as the application judge found, that the CBO insisted on compliance with the zoning by-law by providing adequate parking to residents of the project. As the respondent points out, the CBO has a statutory duty under the Act to ensure that no building permit is issued unless compliance with the Act, the Code and all “applicable law” is demonstrated: the Act, s. 8(2)(a). The definition of “applicable law” for the purposes of s. 8(2) of the Act is set out in the Code and includes by-laws: the Code, s. 1.4.1.3(1)(f).
[43] Moreover, unlike Wolfond, there was no intervening change in the law, nor did the appellant make any application for a permit. In short, Wolfond is distinguishable from the present case, and the appeal judge made no error in so concluding.
[44] Similarly, in Woodglen (to which the application judge did not refer), there was no debate that a decision had been made as a permit had been refused. The real issue was whether the municipality’s official plan was included in the definition of “applicable law.” The court held that it was not. Since the proposed building complied with by-laws in force at the time of the application for the permit, the permit ought to have been granted. These facts and conclusions have no bearing on this case.
[45] As for the decision in Waxman, this case is not about whether a decision or order was made under s. 25 of the Act. On the contrary, Waxman is a case about procedural fairness, the need for there to be meaningful production in administrative law cases, and the need to give litigants time to prepare a defence. The circumstances in Waxman and the exceptional order made in that case have no bearing on the issues in this appeal.
[46] To summarize, I am of the view that the appeal judge did not fail to advert to and apply the relevant legal test. By referring to and applying Pigozzo and Greater Sudbury she did exactly that. She made no extricable error in law. She did not err by distinguishing the cases relied upon by the appellant. . MacKenzie et al. v. Township of The Archipelago
In MacKenzie et al. v. Township of The Archipelago (Ont Div Ct, 2026) the Ontario Divisional Court considered Building Code Act (BCA) s.25 appeals:[15] Grounds for appeal under the BCA generally fall into one or more of three categories: misinterpretation of the BCA or Planning Act, R.S.O. 1990, c. P.13, errors in applicable law, or procedural unfairness or abuse of discretion. . 1940475 Ontario Inc. v. The Corporation of the Town of Ajax
In 1940475 Ontario Inc. v. The Corporation of the Town of Ajax (Ont Div Ct, 2026) the Ontario Divisional Court dismissed an appeal, this brought against "a judgment obtained on application (the “Decision”) concerning the exercise of discretion under section 38 of the Building Code Act" (BCA) which "granted the Corporation of the Town of Ajax’s (“Ajax”) application for an order to demolish above ground construction ...".
Here the court considers a BCA appeal route:[2] This Court has jurisdiction over the appeal as per s. 38(3) of the Act, which permits an appeal as of right to the Divisional Court from an order of a judge of the Superior Court of Justice under s. 38(1) of the Act.
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Issue 3. Incorrect application of the objectives of the Building Code Act.
[33] The parties agree the purpose of s. 38 of the Act is to secure compliance and not to punish. First Avenue argues the decision to demolish can only fairly be described as punishment. Ajax argues to the contrary.
[34] First Avenue made this argument before Casullo J. In paragraphs 65 and 66 of the Decision she states;[65] First Avenue further submits that an order for demolition would unfairly punish it for circumstances beyond its control.
[66] I could not disagree more. First Avenue finds itself in these circumstances solely of its own accord. It failed to comply with the terms it explicitly agreed to. First Avenue was motivated to agree to the terms of the CBPA so it could begin construction. [35] I am not persuaded by the relitigation of this point on appeal. Compliance with the Act had not been obtained for about 4 years from the date of the consent order to the date of the hearing before Casullo J. Compliance regarding the essential element of obtaining the RSC has not been obtained to date of the hearing before this panel. I agree with the submissions of Ajax that the Decision addresses why a demolition order in this case was not punitive. In the context of a regulatory regime that engages the health and safety of the public, it is not acceptable to incentivize actors to make decisions, and take risks, to not comply with their legal obligations. The Act does not give a CBO authority to order demolition of a building on the sole ground that a building permit has not been issued. That said, the Act gives that discretion to a Superior Court judge on application. In my view, there are no errors in the reasoning of Casullo J. in exercising her discretion to order demolition. The only reason to interfere with the order to demolish is to engage in an exercise of weighing the evidence differently and assessing the relevant factors in a way that would lead to a different result. That is not the job of a reviewing Court.
[36] The provisions of the Building Code must be enforced. There is no question that demolition is a significant remedy. In this case, the exercise of discretion of Casullo J. is entitled to deference. In my view she fully and adequately balanced the necessary considerations of the impact to First Avenue against the need for Ajax to comply with its obligations to ensure construction in the municipality was and is done in accordance with the Act and the Building Code. . Wasiak v. City of Kitchener
In Wasiak v. City of Kitchener (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a Building Code Act appeal [under s.15.3(4) BCA], here from "a Property Standards Order, ... by the City of Kitchener".
Here the court briefly illustrates an appeal route in this little-litigated field:[1] This is an appeal of a Property Standards Order, issued under section 15.3(4) of the Building Code Act, 1992, S.O. 1992, c. 23, by the City of Kitchener (the “City”) with respect to 120 Bedford Road, Kitchener, Ontario, N2G 3A4 (the “Property”).
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[4] The Appellant appealed the Order to Comply before the City’s Property Standards Committee, who upheld the Order in a decision dated May 3, 2023. . 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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