COURT FILE NO.: 612/06
DATE: 20080110
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: CRAFT-BILT MATERIALS LIMITED
Applicant
(Respondent in Appeal)
- and -
CITY OF TORONTO AND ANN BORROAH,
CHIEF BUILDING OFICIAL FOR THE CITY OF TORONTO
Respondent
(Appellants in Appeal)
- and -
MINISTER OF MUNICIPAL AFFAIRS AND HOUSING
Intervener
BEFORE: CUNNINGHAM ACJSC, JENNINGS and SWINTON JJ.
COUNSEL: Julian Heller and Diana W. Dimmer and
Kathleen Jukes Kirsten Franz
for the Applicant for the Respondents
(Respondent in Appeal) (Appellants in Appeal)
Darrell L. Kloeze
For the Intervener
HEARD AT TORONTO: DECEMBER 11, 2007
E N D O R S E M E N T
JENNINGS J.:
[1] This is an appeal from a decision of Madam Justice Pierce ordering the Chief Building Officer of the City of Toronto (“CBO”) to issue building permits for 3 residences in accordance with the Building Code Act, 1992, S.O. 1992, c.23 (“BCA”), and ordered that load test data submitted in support of building permit applications by the respondent Craft-Bilt be considered on their merits with regard to the load bearing requirements of the Building Code.
[2] The appellant City of Toronto seeks an order overturning the decision and as well seeks leave to appeal the costs award made by Justice Pierce.
[3] Section 8(2) of the BCA provides that the CBO must issue a permit where the application complies with the Building Code. The Building Code is a regulation made under s.34(1) of the BCA and establishes uniform standards for the construction of buildings in Ontario.
[4] The mandate of the CBO under s.8 of the BCA includes the review of plans and specifications to evaluate whether the proposed construction conforms with the Building Code.
[5] The respondent Craft-Bilt applied for permits to build sun rooms at 3 private residences using a particular sandwich panel consisting of a honeycombed core material with an exterior skin made of aluminium bonded to the core. Craft-Bilt submitted load testing data to the CBO, including load tests resulting from what the motions judge held to be a recognized and credible testing standard. The design for the sun rooms had affixed the seal of a professional engineer confirming that the design complied with the Building Code.
[6] Part 4 of the Building Code applies to the respondent’s sandwich panels. Section 4.1.1.4(1) provides as follows:
Design Basis
(1) buildings and their structural members shall be designed by one of the following methods:
(a) standard design procedures and practices provided by this Part and any standards and specifications referred to therein, except in cases of conflict the provisions of the building code shall govern, or
(b) one of the following three bases of design,
(i) analysis based on generally established theory,
(ii) evaluation of a given full-scale structure or a prototype by a loading test, or
(iii) studies of model analogues,
provided the design is carried out by a person qualified in the specific method applied and provided the design ensures a level of safety and performance at least equivalent to that provided for or implicit in design carried out by the methods referred to in Clause (a).
[7] The respondent relied on s.4.1.1.4(1)(b)(ii).
[8] The motions judge found in paragraph 32 of her reasons:
(32) In this case, the City refuses to examine the applicant’s load test results, or the supporting data. No issue is taken with the qualifications of the professional engineer who supplied and sealed the design; nor is it suggested there are errors in the load chart. It is not even argued that the panels will not sustain the loads. Rather the City maintains it does not have the manpower to review the load test data and refuses to do so.
[9] No issue is taken on this appeal with those findings.
[10] Before the motions judge and in this court, the City took the position that s.9(1) of the BCA gave the CBO a discretion to refuse to evaluate test results and test data if the method of conducting load testing is not specified in the Building Code. The section reads:
9(1) The Chief Building Official or registered code agency may allow the use of materials, systems and building designs that are not authorized in the building code, if, in the opinion of the chief building official or registered code agency, the proposed materials, systems and the building designs will achieve the level of performance required by the building code.
[11] The City submitted that the performance standards in s.4.1.1.4(1)(b) are not “authorized” within s.9(1) of the Act.
[12] The motions judge held that the City’s position was simply incorrect in law. She held that s.9(1) gave a discretion to the CBO to accept materials, systems and designs that are not authorized in the Building Code, but it did not grant a discretion to defeat applications for evaluations under s.4.1.1.4(1) of the Code, such as had been submitted in this case by Craft-Bilt.
[13] In our opinion the motions judge was correct in that finding. We agree with the submission of the intervener in paragraph 30 of his factum, that s.9 of the BCA should be interpreted in a manner which does not affect the duty of chief building officials to evaluate building permit applications for compliance with the Building Code where the application relies on the use of building designs that are authorized in the Building Code, such as design methods based on load testing pursuant to subclause 4.1.1.4(1)(b)(ii). Both prescriptive and performance based requirements are “authorized” in the Code.
[14] The City also relied on a bulletin, B8 which was developed within its building department deeming the panels to be used by Craft-Bilt to be not in compliance with the Code. Applying Minto Construction Limited v. Gloucester (Township) (1979), 1979 1829 (ON SC), 23 O.R.(2d) 634, a decision of this Court, Pierce J. concluded that the Bulletin cannot substitute for the provisions of the Code and may not be used to circumvent the provisions of the Code. She was correct in that finding.
[15] In this Court, but apparently not before Pierce J., the City argued that the data submitted by the respondent in support of its application was inadequate. Pierce J. found as a fact on the only evidence before her that the data and test results were satisfactory. Even if that finding of fact could be the subject of an appeal to this court, given s.26(3) which does not authorize an appeal on a question of fact, in our opinion there was ample evidence before Pierce J. to support her conclusion and her conclusion was reasonable.
[16] The appeal is therefore dismissed.
costs appeal
[17] Counsel were content that we determine this appeal based upon the written material filed. Apparently draft bills and supporting material were placed before Pierce J. That material is not before us. The appellants’ position in their factum is simply that the amount ordered by Pierce J. was beyond what the appellants might reasonably have expected.
[18] In awarding costs Pierce J. held in part:
The applicant has the greater burden of educating the Court as well as the civil burden of proof; it can be expected that it will require more hours to establish its case. Here, voluminous materials were filed for what was an issue of some complexity in fact and law. Expert evidence was filed and cross-examinations of witnesses were necessary.
[19] In our opinion, it is clear that Madam Justice Pierce exercised her discretion on the basis of proper principles in awarding partial indemnity costs in the amount that she did.
[20] Leave to appeal from the costs order is granted and the costs appeal is dismissed.
costs of this appeal
[21] If counsel are unable to agree on costs, written submissions not to exceed 3 pages in length may be submitted within 14 days of the release of this endorsement.
RELEASED:
JENNINGS J.
CUNNINGHAM ACJSC
SWINTON J.