Building inspections and COVID-19 emergency regulations: Some legal guidelines

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Ontario Construction News staff writer

The Ontario Building Officials Association (OBAO), representing municipal building inspectors and officials, has sought out insights from its legal counsel about COVID-19 emergency provisions.

Here are some answers to building officials’ questions provided by Leo F. Longo of Aird & Berlis LLP in a memo to OBAO’s chief administrative officer Aubrey LeBlanc on April 13.

What clarification and guidance can be provided for: a. Conducting inspections; b. Determining which inspections/permits take priority within the Province’s designated essential workplaces; and c. Ontario Regulations that are passed due to the emergency situation?

Part I of this opinion provides an explanation of the scope and effect of the Orders and Regulations that have been published to date. Sections 27-31 of Schedule 2 of O.Reg. 82/20, as amended, provide a list of “essential” construction projects and implicitly provides guidance as to the priority of same over non-essential construction. Undertaking site inspections during this pandemic is fraught with some significant uncertainties. How is physical distancing to be arranged and achieved? If physical distancing cannot be achieved, is no inspection to be undertaken under any circumstance? What public safety goal is more important and is to prevail…the adherence to pandemic health orders…or the response of inspectors and workers or building safety requirements? This requires the Province’s clarification and guidance.

When an emergency is declared (municipal, regional, provincial), should the Province ensure that mutual aid agreements automatically kick in?

We are not aware of anything yet from the Province that addresses whether any mutual aid agreements would automatically “kick in” due to the provincial Covid-19 declaration of emergency.

Once an emergency is declared, should the CBO have the ability to appoint building officials as they deem necessary?

As the enforcement of the Act is a municipal responsibility, this is likely a matter better addressed under any Municipal Emergency Plan. If the Province thinks that CBOs should have this power during a provincially-declared emergency, it can issue the necessary Regulation to achieve that outcome.

Has any clarification and guidance be provided on the issue of joint and several liability when an emergency is declared?

The emergency declaration and regulations do not address the issue of joint and several liability. Section 11(1) of the Emergency Management and Civil Protection Act protects many persons, including municipal employees, from lawsuits for any act done in good faith under that Act and/or orders made under that Act.

Should the municipality be allowed to designate the temporary use of a facility in an emergency (both municipal and privately owned)?

Yes. I suspect that a Municipal Emergency Plan would be the best means to provide for this. In addition, the Planning Act, s. 39 allows municipalities to pass temporary use by-laws, but before enacting same, these require adhering to the full public notice and public meeting process that zoning by-laws must follow…which all takes time. Furthermore, the Province could also use its powers under the Emergency Management and Civil Protection Act to allow for the temporary use of certain facilities for emergency response purposes.

Should there be a temporary pause to zoning bylaws during in an emergency?

I suspect that a Municipal Emergency Plan would be the best means to provide for this. In addition, the Planning Act, s. 47 allows the Minister to issue a zoning order [MZO] expeditiously, without prior notice, to allow for the use of a property…and the MZO prevails over any municipal zoning by-law. Furthermore, the Province could also use its powers under the Emergency Management and Civil Protection Act to allow for the temporary use of certain facilities for emergency response purposes.

Should there be a temporarily pause to the definition and/or application of “applicable law” during in an emergency?

If the Province thinks that the “applicable law” definition in the Code should be paused during a provincially-declared emergency, it can issue the necessary Regulation to achieve that outcome.

The “Essential Business” Orders outline certain types of “Essential” Construction under O.Reg. 82/20 as amended: a. s. 30.i. “Residential construction projects where a footing permit has been granted for single family, semi-detached and townhomes”. Does “has” mean prior to the Order or can these permits continue to be issued and construction commenced? b. s. 30.ii “Above grade structural permits…”. Can a CBO continue to issue these permits and construction commence?

Clauses (i) and (ii) are not specifically tied to the April 4, 2020 date as is (iii). However, the intent and purpose of this regulation is to close all but essential businesses. If the exempting language was intended to allow on-going permits to be issued, it would have said so. We believe clauses (i) and (ii) speak to and allow only such projects where a footing permit/above grade structural permit had been issued on or before April 4, 2020. New projects are not allowed. c. s. 30ii

Clarify what is meant by the term “other building”? As this is still under the heading of Residential construction projects, what is an “other building”?

This clearly refers to “other residential buildings”. Examples would include a rental apartment building; a co-op building; etc. The term is tied to a “residential construction project” but does not attempt to list every type or form of residential development. d. s. 30iii

What is considered a renovation? Is an addition a renovation? Only interior renovations? Would Residential Change of Use permits with no construction be considered? How is it confirmed that construction started before April 4, 2020?

As “renovation” is not defined in the Regulation or Act, we would rely on what the Code provides respecting renovations. See particularly Division A, s. 1.1.2.6 respecting the application of Division B, Part 11; and Division B, Part 11, especially s. 11.1.2.1 and 11.3.3. We believe a renovation includes an extension, material alteration, and repair to an existing building. If a “change of use” required a permit under s. 10(1) of the BCA,1992 but no building alterations, we do not believe that would be a “renovation”. Fixing the “start date” could be based upon a number of factors, including the date a permit was issued; first site inspection notes; other relevant evidence in the CBO’s possession; etc.

Respecting s. 26, can a CBO continue to issue farm building permits and permit construction of same?

Yes. A farm operation is an essential business and building permits can be issued for farm buildings. Also note that O.Reg. 136/20 has just added the following to the list of essential businesses: “29.1 Construction projects that are due to be completed before October 4, 2020 and that would provide additional capacity in the production, processing, manufacturing or distribution of food, beverages or agricultural products.”

Respecting s. 34vii mentioning government services including… licences and permits; does this mean building officials are considered essential and can continue to issue permits for projects, even if construction is not permitted to commence under the Orders?

Yes. See Part I discussion above under the heading “Essential Businesses”.

Can permits and construction Under Part 8 of the Code continue to be issued and commenced in conjunction with residential only?

Permits for and the construction of sewage systems under Division B, Part 8 may be issued and proceed only if associated with what has been defined as an “essential” business or construction project under O.Reg. 82/20, as amended. For all non-essential businesses and construction projects, permits may be issued but no construction may be commenced.

Do the Emergency Orders affect in any way a CBO’s duties respecting “unsafe conditions”?

The CBO’s duties and powers under the BCA, 1992 respecting unsafe conditions remain in place and are not altered by the emergency declaration and orders/regulations.

Can municipalities proceed with permitting and construction of new municipal facilities (recreational facilities and libraries)?

While permits can be issued for such facilities, as construction of same has not been defined as being “essential” under O.Reg. 82/20, no construction is allowed to commence.

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