Note: This article was originally published on the Glaholt Bowles website on Sept. 15, 2020. It is reproduced with permission from the authors. It has been edited slightly for style.
Investment in residential construction for Canada is on a steep rise, according to Statistics Canada. BuildForce Canada reports that overall, total residential construction employment is expected to increase by over 17,000 workers over the next decade. Even during the COVID-19 pandemic, the residential construction industry and the professional renovations industry have shown that they are major contributors to economic activity, notes The Canadian and Ontario Home Builders’ Associations and the Building Industry and Land Development Association.
Against this backdrop, between 2015 and 2018, Statistics Canada shows that architects have been increasing the percentage of their services when it comes to multi-family residential projects, yet decreasing services related to single family dwellings.
In Canada, most statutes governing the practice of architecture have a requirement that for any residential building over a certain area and/or number of storeys, an architect must be engaged. However, if a project is of a lesser size or otherwise exempt from the relevant legislation, then a person who is not a licensed member of the profession may be permitted to take on such a project.
This leads to the question: Who decides when an architect is required for a project? If a developer chooses to proceed without one, contrary to relevant legislation pertaining to architects, should that developer be granted a building permit by a municipality?
In the recent British Columbia decision, The Architectural Institute of British Columbia v Langford, 2020 BCSC 801, the City of Langford was of the view that it could permit a project which clearly required an architect to be constructed without one, as its role was not to enforce the Architects Act. The Architectural Institute of British Columbia disagreed and brought the matter before the Supreme Court. The court sided with the AIBC, holding that Langford’s decision to issue the permit without considering the Architects Act was unreasonable, and that the court’s intervention was required to safeguard legality and rationality.
Background
The British Columbia Architects Act provides that only a person or architectural firm registered with the AIBC may practise architecture. Under the Act, a person is deemed to practise architecture if the person is engaged in the planning or supervision of the erection or alteration of buildings for the use or occupancy of persons other than himself or herself. There are exceptions for buildings with a gross area of less than 470 m2.
In 2016, the City’s Chief Building Inspector issued a building permit for the construction of a residential/commercial strata complex. The project was comprised of a five-unit townhouse complex with commercial space. It was clear from the application that the project did not involve an architect. The project was designed, and drawings were completed, by a designer. The building’s gross area exceeded 470 m2, in which case the Architects Act required the involvement of an architect.
After the construction of the building had been completed, and after occupancy permits were issued, an individual living in the complex contacted the AIBC, expressing concern that the complex had not been designed by, and constructed under, the supervision of an architect. The AIBC investigated and met with the designer, who acknowledged that he was in violation of the Act because he provided design services. The AIBC wrote to the City, expressing its view that the decision to issue a building permit without having determined that the drawings for the building complied with the Act was unreasonable. The AIBC requested a written commitment from the City that it would confirm compliance with the Act in its permitting process in the future.
The City acknowledged that the Act was arguably an “enactment respecting health or safety,” and that the Building Bylaw permitted it to refuse to issue a building permit where the proposed work did not comply with an enactment respecting health or safety. The City argued, however, that this power was discretionary, and that building officials were not required under the bylaw to take the Act into account when considering building permit applications. According to the City, all it had to do was to review applications for compliance with the British Columbia Building Code.
AIBC also pointed to s. 2.3.6.1 of the bylaw, which provided that “where in the opinion of the Chief Building Inspector the site conditions, the size or complexity of the building, part of a building or building component warrant, the Chief Building Inspector may require design and field review by a registered professional,” and refuse to issue a permit without such prior review.
There was evidence before the court that the approach of municipalities throughout British Columbia was not uniform on this issue. Cities like Vancouver and Surrey decline to issue permits where architects are required but have not been involved, while other cities, like Langford and Kamloops, have issued permits in the same circumstances.
The regulatory power of municipalities
As the Supreme Court of Canada has set out in cases like Kamloops (City) v Nielsen, [1984] 2 S.C.R. 2 and Ingles v Tutkaluk Construction Ltd., 2000 SCC 12, while municipalities have a statutory power to regulate construction by bylaw, whether they do or not is a policy decision. However, once municipalities make a policy decision in favour of regulating construction by bylaw, they acquire an operational duty to enforce the provisions of the bylaw. Once a municipality makes the policy decision to inspect building construction, it places itself in such proximity to persons who ought reasonably to rely on such inspections that it owes them a duty of care not only to perform such inspections, but to perform them with a reasonable degree of competence.
On the standard of review of administrative decisions, the court distilled the following principles from the recent Supreme Court of Canada decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65:
Where a decision maker has made a decision without providing reasons and based on a disputed interpretation of their empowering legislation, a reviewing court should follow these principles:
- Examine the decision as a whole and the outcome that was reached;
- Consider whether a decision maker's interpretation of a statutory provision is consistent with the text, context and purpose of the provision at issue;
- Consider whether the interplay of text, context and purpose leaves room for more than one reasonable interpretation of the statutory provision, or aspect of the statutory provision, that is at issue;
- Examine the decision in light of the relevant constraints on the decision maker, focusing the analysis on the outcome rather than on the decision maker's reasoning process; and
- Consider whether the outcome of the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
Based on those principles, the court was tasked with answering the following questions:
- Did the Chief Building Inspector act unreasonably in issuing the building permit given his discretionary authority to refuse the permit pursuant to s. 2.3.9?
- Did the Chief Building Inspector act unreasonably in issuing the building permit given his discretionary authority to require "design and field review by a registered professional" pursuant s. 2.3.6.1?
Both questions were answered in the affirmative.
The Architects Act as an ‘enactment respecting health and safety’
Since s. 2.3.9 of the bylaw provided the Chief Building Inspector with authority to refuse to issue any permit where the proposed work does not comply with any enactment respecting health or safety, the first issue before the court was whether the Architects Act was such an enactment. The City argued that it was not:
The Architects Act is not ‘an enactment respecting health and safety’ as that term is used in the Building Bylaw. While it may be true that the object of the Legislature in enacting the Architects Act was to safeguard the public, the Architects Act does this through a professional regulatory scheme. The Architects Act regulates people. It does not establish standards for health and safety. It does not regulate design or construction, per se.
The references in the Building Bylaw to ‘enactments respecting health and safety’ are to be interpreted as being references to enactments that regulate health and safety matters (e.g., enactments that regulate design or construction, per se). An example of such an enactment is the sewerage system regulation under the Public Health Act.
The court disagreed. It cited precedent in British Columbia that the courts in that province have always considered the Architects Act to be an enactment concerning health and safety: Architectural Institute (British Columbia) v Lee's Design & Engineering Ltd., 1979 CarswellBC 837 (S.C.); Architectural Institute (British Columbia) v Francour, 1962 CarswellBC 191 (S.C.); aff’d 1963 CarswellBC 87 (C.A.); aff’d 1964 CarswellBC 29 (S.C.C.). As early as 1939, the British Columbia Supreme Court, in Rex. v Dominion Construction Company Limited (1939), 1 W.W.R. 653, held as follows (emphasis added):
In my view the paramount object of the Legislature was to safeguard the public who resort to public buildings, such as theatres, churches, hotels, etc. If the erections are to be used exclusively by the corporation in question or where the structures do not cost more than $10,000 or where they are for storage of produce of agricultural associations then corporations are excepted, thus protecting the public against the exploitation of contractors and builders by the erection of unsafe structures – an additional security to those already existing by way of government or municipal inspection. The good old maxim 'salus populi est suprema lex' still survives.
The court in Langford held that considering the textual, contextual and purposive constraints on any interpretation of the Building Bylaw, the only reasonable interpretation is that the Act is an "enactment respecting health or safety." Given that conclusion, the court held the City’s conduct was unreasonable:
It is not a rational or acceptable outcome that a municipal building permit could be issued for a building which has clearly been designed in contravention of a relevant provincial statute respecting health and safety, that is, the Act.
The Chief Building Inspector had the discretionary authority under Building Bylaw, s. 2.3.9 to refuse the building permit for non-compliance with the Act. His or his staff's decision to issue the building permit without considering an enactment respecting health or safety is inconsistent with the legal constraints imposed on him by the governing statutory scheme and other statutory law. For these reasons, I conclude that the Chief Building Inspector's decision to issue the building permit was unreasonable.
Municipality’s authority to require the involvement of an architect
Section 2.3.6.1 of the bylaw provided that the Chief Building Inspector could require design and field review by an architect, where in the opinion of the Chief Building Inspector the site conditions, the size or complexity of the building, part of a building or building component warranted it.
The City again argued that while that section gave the City the authority to require design by a registered professional, including an architect, in circumstances where the Building Code did not otherwise require it, it did not mean that the City could not issue a building permit in this case. Again, the court disagreed, finding that ignoring the Architects Act could not be reasonable:
It is fundamental to the concept of reasonableness that relevant factors be taken into account in the exercise of the discretion. If relevant factors are not taken into account, a discretionary decision can be said to be unreasonable
The City’s final argument was that when issuing building permits, it proceeded in accordance with the requirements of the bylaw and, in turn, the Building Code. In this case, the Building Code did not require an architect. The court’s simple answer was that the Building Code is a regulation under the Building Act, and the Architects Act is a statute. As such, the Building Code could not take precedence over the Architects Act.
In the end, intervention by the court was required to safeguard legality and rationality. The court declared that the decision of the Chief Building Inspector of the City of Langford to issue a building permit for the property in these circumstances was unreasonable.
The AIBC issued a statement noting that the BC Supreme Court’s decision was a positive outcome which clarified the interplay of the Architects Act and the municipal building permitting process in British Columbia. The AIBC highlighted that the Act is clearly a law relating to the health and safety of the public and that architects’ involvement in projects minimizes public risk through their training, professional regulation, insurance coverage and required continuing education.
This decision will likely serve as a precedent in other jurisdictions, particularly as the residential industry continues to expand at a rapid pace and issues such as affordable housing, the “missing middle” and densification of urban areas have the attention of municipal governments across Canada.
Andrea Lee is a partner and Markus Rotterdam is the Director of Research at Glaholt Bowles LLP. Andrea Lee is also the branch chair of the OBA Construction & Infrastructure Law Section.