The appeal by a manufacturer of “sandwich panels” used in the construction of solariums or sunrooms (“Craft-Bilt”) of the refusal of the Chief Building Officer of the City of Toronto to issue building permits for three properties was allowed where the Court found that it was beyond the power of the municipality to eliminate a means of approval for materials and design that was mandated by the Legislature

Administrative law – Municipalities – Permits and licences – Building permits – Powers under legislation – Legislation – Ultra vires – review – Compliance with legislation – Standard of review – Correctness

Craft-Bilt Materials, Ltd. v. Toronto (City), [2006] O.J. No. 4710, Ontario Superior Court of Justice, November 15, 2006, H.M. Pierce J.

Craft-Bilt sought to use its sandwich panels in sunrooms at three properties. The City refused to issue building permits for the three properties on the basis that the sandwich panels did not meet the Building Code. The City indicated it could not determine whether the sandwich panels complied with the Code because it did not have the resources to do its own testing to determine compliance. The City refused to examine Craft-Bilt’s load test results or the supporting data. The City did not take issue with the qualifications of the professional engineer who supplied and sealed the design, but maintained that it did not have the manpower to review the load test data and refused to do so. Craft-Bilt appealed the refusal to issue the building permit.

The appropriate standard of review from a decision of the Chief Building Official varies depending on the nature of the question the Court is asked to review. The Supreme Court of Canada established a framework for analysing the standard of review in Law Society of New Brunswick v. Ryan, [2004] 1 S.C.R. 247. The reviewing court is directed to make analysis based on four contextual factors:

1. The presence or absence of a privative clause or statutory right of appeal.
2. Expertise of the Tribunal relative to that of the reviewing court on the issue in question.
3. The purpose of the legislation.
4. The nature of the question.

In this case, the Court noted that under the Ontario Building Code Act, a judge hearing an appeal is given full scope to substitute the Chief Building Official’s decision. There is no privative clause and the right of appeal is statutory. This signalled a lesser standard of deference to the decision-maker generally. The City submitted that the matter involved a technical decision and advocated a standard of review of reasonableness. The Court rejected this submission finding that the City’s approach to issuing a building permit involved an interpretation of the Building Code Act, which was grounded in statutory interpretation. The primary issue was a legal, not a factual or technical dispute, and the Court concluded that the standard of review was one of correctness.

It was common ground between the parties that if Craft-Bilt sandwich panels were not specified in Part 9 of the Building Code, the materials must conform to Part 4 requirements of the Code. Section 4.1.1.4(1)(b)(ii) provided an alternate means of establishing compliance with the Code through load testing of materials. Craft-Bilt submitted to the City a design for some sunrooms using its sandwich panels and supplied load test results under a testing standard promulgated by the American Society for Testing Materials. The sunroom design was sealed by a professional engineer as complying with the Building Code. The City refused to examine Craft-Bilt’s load test results or the supporting data. The City submitted that if the Code did not prescribe how load testing must be conducted, it could not evaluate the test results or the test data. The City argued that the Chief Building Official had a discretion to refuse applications for building materials that were not prescribed in the Code. The Court rejected this argument, noting that it would render meaningless the provisions of s. 4.1.1.4(1)(b)(ii), which provided an alternate means of establishing compliance with the Code. The Court stated that the City could not simply disregard the provisions of the Building Code that it disliked and enforce the ones that it did. Once the alternative criteria in s. 4.1.1.4(1) were satisfied, an Applicant, by definition, is in compliance with the Building Code.

The Court held that the Building Code was the exclusive legislation for uniform regulation of building construction throughout the province and any bylaws attempting to impose more stringent standards were ultra vires the municipality, citing Minto Construction Ltd. v. Gloucester (Township) 8 M.P.L.R. 172 (Ont. S.C. Div. Ct.). The Court stated that there was no power in the municipality to circumvent the provisions of the Building Code by administrative directive. In this case, the City attempted to eliminate a means of approval for a material and design that was mandated by the legislature and such action was beyond its power.

In the result, Craft-Bilt’s application was granted and the City was directed to issue building permits for the three properties.

To stay current with the new case law and emerging legal issues in this area, subscribe here.