FNX Mining Company Inc., a Subsidiary of KGHM International Ltd. v. City of Greater Sudbury

[Indexed as: FNX Mining Company Inc. v. Greater Sudbury (City)]

Ontario Reports Ontario Superior Court of Justice Kurke J. August 16, 2018 143 O.R. (3d) 225 | 2018 ONSC 4912

Case Summary

Municipal law — Building permits — Generator which supplied emergency power to mine not designed for human occupancy but service staff entering generator structure periodically to perform maintenance while generator was not operating — Generator not being "building" within meaning of Building Code Act — Trailers which provided facilities for mine workers such as lunchroom and office space being moveable throughout mine site but being secured for periods of time with wooden structures and steel tripods — Building inspector reasonably requiring building permit for trailers — Building Code Act, 1992, S.O. 1992, c. 23.

A building inspector found that a generator which supplied standby power to the appellant's mine was a "building" as defined in the Building Code Act, 1992 ("BCA") and issued an order to comply that required the appellant to obtain a building permit for the generator. The generator was remotely operated. It was not designed for human occupancy and the interior space was defined as inhospitable to human life under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, but service personnel entered from time to time, while the generator was not operating, in order to perform maintenance. The building inspector also issued an order to comply with respect to trailers erected at the mine site without a building permit. The trailers contained facilities such as office space, lunchrooms and first aid stations. They were moveable throughout the mine site but were ordinarily secured in place with wooden structures and steel tripods. The appellant appealed both orders.

Held, the appeal should be allowed in part.

The generator structure was not "occupied" for the purposes of the BCA. Mere transient occupancy by service or operations personnel should not attract the strictures of the BCA. The essential goals of the BCA relating to safe use of and access to the generator were provided for by regulations more aligned to the context of the generator as a piece of industrial equipment. The building inspector erred in determining that the generator was a "building" within the meaning of the BCA. The order to comply with respect to the generator was unreasonable.

The trailers were required to sit on a property year-round, and the appellant used them on a property year-round. They were secured in a particular location for periods at a time. Electrical and plumbing services were attached to the trailers. Mobility within the site did not alter the nature of their use. It was reasonable for the building inspector to require a building permit for the trailers.

Cases referred to

Statutes referred to

Building Code Act, 1992, S.O. 1992, c. 23, ss. 1(1) [as am.], (2), 8(1) [as am.], 25 [as am.]
Environmental Protection Act, R.S.O. 1990, c. E.19
Occupational Health and Safety Act, R.S.O. 1990, c. O.1

Rules and regulations referred to

APPEAL from the orders to comply issued by the building inspector.

C. Seaborn, for appellant. G. Marcuccio, for respondent.

KURKE J.: —

Overview

[1] The appellant, FNX Mining Company Inc., a subsidiary of KGHM International Ltd. ("FNX"), appeals to this court against the August 3, 2017 order to comply issued against it by Inspector Bill Yourth, pursuant to s. 25 of the Building Code Act, 1992, S.O. 1992, c. 23 (the "BCA"). This order requires the appellant to obtain building permits for a "generator building" as well as several trailers located at the entrance to a mine site.

[2] For the following reasons, I grant the appeal in part, and rescind that part of the order of August 3, 2017 that requires a building permit for the generator, but affirm that part relating to the trailers.

Facts

[3] The appellant operates the Victoria mine project under development at 94 Fairbank East Road, Walden, Ontario, within the City of Greater Sudbury (the "Victoria Mine").

[4] Bill Yourth is a building inspector employed by the City of Greater Sudbury (the "city") and oversees building compliance issues with respect to the Victoria Mine.

[5] The appellant purchased a generator in 2015 to supply standby power to the Victoria Mine in the event of utility failure. The generator structure contains the generator and its housing that serves as large, industrial-grade ductwork for cooling the generator and as a sound attenuator. The generator sits atop its fuel tank. It serves as a means of powering a shift conveyance that has stopped inadvertently. The Victoria Mine requires the generator to legally operate. The entire structure is 720 square feet in area. Entrance to the interior is gained by an entrance door, accessed by external stairs and a landing. The structure is equipped with a fire suppression system.

[6] Maintenance personnel enter from time to time, but the generator is not regularly occupied, and was not designed for human occupancy. People who enter the structure must follow certain safety procedures and can only enter to maintain and service the equipment. They must be specially trained and/or wearing personal protective equipment and clothing. Noise and exhaust prevent human occupancy when the generator is operational, and the interior space is defined as inhospitable to human life under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1. Not surprisingly, the generator is remotely programmable.

[7] Reference to the generator was made in FNX's October 2015 application to the city for a building permit for the Victoria Mine. FNX relied on engineering reports and a site inspection by Inspector Yourth to confirm its understanding that no separate building permit would be required for the generator, which it deemed a piece of equipment. The city did not at that time require a building permit for the generator.

[8] On June 20, 2017, Inspector Yourth conducted a final inspection regarding the mine site building permit and observed the generator that had by that point been constructed on-site, as well as a communications tower. Following this inspection, on June 30, 2017 he issued an order to comply that required a building permit for the "[g]enerator building and communications tower" that had been erected without building permits.

[9] Also during the June 20, 2017 inspection, Inspector Yourth observed trailers set up at the entrance of the site of the Victoria Mine. The trailers were secured in place with wooden structures and steel tripods, they exceeded the area requirement for a building permit, and they had four walls, a roof and a floor. Each trailer has between 677 and 816 square feet of floor space, and they were being used to store equipment, as office space for site workers, for changing and showering, as a lunchroom and for first aid stations. Photographs in the appeal records show the trailers equipped with sinks, toileting, work stations, a gurney, refrigerator and microwave, water cooler and office equipment. Electrical and plumbing services are attached to the trailers. At other mine sites, building permits have been obtained for such trailers.

[10] However, the trailers are temporary and movable, with wheels, and are moved throughout the development of the mine site but are secured for periods in a particular location.

[11] On July 17, 2017, Inspector Yourth issued another order to comply, this time with respect to "trailers erected at Victoria Mine site without a building permit".

[12] The city had been concerned about potentially requiring building permits for other such trailers in 2014 but had apparently been satisfied by the removal of those trailers from cribbing by which the appellant made sure that the trailers were portable.

[13] Upon a re-inspection on August 2, 2017, Inspector Yourth determined that the communications tower did not require a permit. However, he remained of the view that the generator did require one. The order with respect to the communications tower was withdrawn.

[14] A new order to comply was issued on August 3, 2017, which replaced the previous orders and required the appellant to obtain a permit for the trailers and generator, in the following terms: "Generator building, two Morris Modular trailers and one ATCO trailer (trailers located at entrance) erected at Victoria Mine site". The orders to comply were issued pursuant to s. 8(1) of the BCA, involving FNX's failure to obtain required building permits.

[15] The August 3, 2017 order is the order appealed from.

Grounds of Appeal

[16] The appellant submits that the inspector erred in law

(a) by not finding that the generator fell under the statutory exclusion at s. 1(2) of the BCA, in that s. 1(2) of the BCA stipulates that "[t]his Act does not apply to structures used directly in the extraction of ore from a mine." The generator is required by law for the mine site to operate, so it is used "directly in the extraction of ore from a mine";

(b) by finding the generator fell within the meaning of "building" under s. 1(1) of the BCA. The appellant's position is that the generator is rather to be classified as "equipment"; and

(c) by finding the trailers fell within the meaning of "building" under s. 1(1) of the BCA. It is the position of the appellant that the trailers are "vehicles" that are frequently moved through the mine site and used as temporary storage and work areas.

Standard of Review

[17] Section 25 of the BCA grants the Superior Court of Justice the jurisdiction to hear an appeal of a building inspector's order. Under this section, the standard of review for administrative decision-makers applies rather than the standard of appeal of a court's decision: Ashburner v. Adjala-Tosorontio (Township), [2016] O.J. No. 2926, 2016 ONSC 2665 (Div. Ct.), at para. 40.

[18] As outlined in Ashburner and Toronto District School Board v. Toronto (City), [2014] O.J. No. 4575, 2014 ONSC 5494 (Div. Ct.), at para. 18, the standard of correctness applies to questions of law decided by a chief building official, whereas questions of fact and mixed fact and law are reviewed on the standard of reasonableness. See, also, Dysart (Municipality) v. Haliburton Forest & Wild Life Reserve Ltd., [2016] O.J. No. 636, 2016 ONSC 956 (S.C.J.), at para. 24.

[19] In Berjawi v. Ottawa (City), [2011] O.J. No. 379, 2011 ONSC 236 (S.CJ.), Hackland, R.S.J., explained as follows, at para. 12:

. . . it must be recognized that municipal planning and zoning are specialized areas which fall within the expertise of the CBO. Most of the determinations made by CBOs in the context of by-law interpretation are mixed questions of fact and law. This requires a significant degree of deference for all but purely legal questions. For most issues, the standard of review will be reasonableness . . . [t]o be upheld on a reasonableness standard, the decision must fall within a range of possible, acceptable outcomes which are defensible in respect of both the facts and the law.

[20] Put more generally, where the proper interpretation of a statute is dependent upon the application of the wording of the statute to a particular fact situation, the issue becomes one of mixed fact and law: Runnymede Development Corp. v. 1201262 Ontario Inc. (2000), 47 O.R. (3d) 374, [2000] O.J. No. 981 (S.C.J.), at para. 16.

[21] The issue at the heart of this case is whether particular types of structures meet a statutory definition: the court is being asked to decide whether the building inspector erred by finding that the generator enclosure and trailers are "buildings" as defined in the BCA, s. 1(1). That determination must be made on a consideration of the particular circumstances of the individual structures, and the relationship of those circumstances to the statutory definition. As such, this is a question of mixed fact and law, and the standard of review is reasonableness.

[22] A reasonableness standard requires the reviewing court to determine whether any reasons support the conclusion under review. A decision can be unreasonable if the evidentiary foundation does not support the decision or if conclusions are illogically drawn from the evidence: Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748, [1996] S.C.J. No. 116, at para. 56.

[23] While appeals ordinarily restrict themselves to the reasons of the decision maker, building inspectors are not expected to give reasons when making orders such as the one in question here. Accordingly, after-the-fact affidavits have appropriately been used on s. 25 appeals to provide the context evidence, as explained in Ashburner, at para. 57. In this case, both parties filed affidavits to which are annexed voluminous exhibits, including the various orders to comply, photographs, maps, diagrams, specifications, excerpts from written materials, reports and other items.

Law and Analysis

"Building"

[24] Are the generator or the trailers "buildings"? Any answer to this question must begin with the BCA, which defines "building" in s. 1(1):

"building" means,

(a) a structure occupying an area greater than ten square metres consisting of a wall, roof and floor or any of them or a structural system serving the function thereof including all plumbing, works, fixtures and service systems appurtenant thereto,

(b) a structure occupying an area of ten square metres or less that contains plumbing, including the plumbing appurtenant thereto,

(c) plumbing not located in a structure,

(c.1) a sewage system, or

(d) structures designated in the building code.

Principles of statutory interpretation

[25] It is apparent that the expansive definition of "building" in the BCA could potentially include within its parameters many more structures than the statute could possibly intend. Principles of statutory interpretation offer guidance.

[26] The general rule is that statutes are to be read in their plain and ordinary sense, and that the ordinary meaning "is presumed to be the intended or most appropriate meaning unless the context or the purpose and scheme of the legislation, or the consequences of adopting the ordinary meaning suggest otherwise": Macartney v. Warner (2000), 46 O.R. (3d) 641, [2000] O.J. No. 30 (C.A.), at para. 47.

[27] The modern approach to statutory interpretation was set out in Rizzo & Rizzo Shoes Ltd. (Re) (1998), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, at para. 21: "Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament."

[28] As such, "the guiding principle is the need to determine the lawmakers' intention", and "it is not enough to look at the words of the legislation": Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141, [2005] S.C.J. No. 63, 2005 SCC 62, at para. 12.

The generator

[29] Inspector Yourth decided that the BCA applied to the generator because at 720 square feet the generator's area exceeded that set out for a "building" as defined in the BCA, the generator has "four walls, a roof and a floor", and at times it would be occupied. It therefore falls within the purview of the BCA, "for the safety of those occupying the building".

[30] In his affidavit on the appeal, Guido Mazza, the director of building services for the city, similarly focuses on occupancy: the generator "is clearly meant to be occupied by people at times", at least so that it can be serviced. He further asserts that the BCA "exists to ensure that buildings meet the minimum safety standards to safeguard the well-being of those who would occupy" them. The BCA therefore deals with "fire safety, life safety and structural adequacy of buildings".

[31] But Director Mazza's viewpoint leaves out a significant part of the equation. Like Director Mazza, jurisprudence has held that the purpose of the BCA is to provide a "set of minimum provisions respecting the safety of buildings with reference to public health, fire protection and structural sufficiency": Kritz v. Guelph (City), [2016] O.J. No. 7094, 2016 ONSC 6877 (S.C.J.), at para. 57. However, it has properly been noted that the legislation "must also protect the rights of the public in dealing with the legislative requirements, by virtue of being reasonable and fair": ibid.

[32] The BCA is not intended to apply to all structures, even though the definition of "building" is broadly defined. There are administrative and court decisions that remove various structures from the BCA's broad definition of "building". Thus, such things as a boathouse have been held not to be subject to the BCA, which applies only to things out of water: Galway and Cavendish (United Townships) v. Windover, [1995] O.J. No. 3932, 130 D.L.R. (4th) 710 (Gen. Div.), at para. 56. A bridge, whose specifications fell to be developed under the Ontario Bridge Code, was not subject to the Ontario Building Code: Ellis-Don Ltd., [1999] O.L.R.D. No. 1086, [1999] OLRB Rep. March/April 193, at para. 7.

[33] To Inspector Yourth and Director Mazza, the notion of "occupancy" informs the BCA. The question remains: if safe "occupancy" accounts for the broad definition of "building", is it reasonable and fair to define the generator as a "building", given the kind of occupancy that is intended for it? Evidence on the appeal does indicate that persons may be inside the enclosure surrounding the generator proper in order to perform maintenance or operations work. Are these persons "occupying" the generator? When mechanics enter the enclosure to service the generator, is it appropriate to say that the generator is "occupied" by the mechanics? In terms of statutory interpretation, what is the object of the BCA, and the legislature's intention in promulgating it? What kind of occupancy is implied?

Equipment in buildings and outside of buildings

[34] In one of his affidavits on this appeal, Director Mazza refers to the "2012 Building Code Compendium" (the "compendium"), apparently an official interpretative document produced by the Province of Ontario with respect to the BCA. The respondent relies heavily on an extract from this document to argue that even structures like the generator, which only see transient occupation by people for the purpose of maintenance, are nevertheless captured by the terms of the BCA. The compendium, at Appendix A, Vol. 2, p. 15, speaks about industrial buildings under the BCA as follows:

The definition of "building" as it applies to this Code is general and encompasses most structures, including those which would not normally be considered as buildings in the layman's sense. This occurs more often in industrial uses, particularly those involving manufacturing facilities and equipment that require specialized design that may make it impracticable to follow the specific requirements of this Part. Steel mills, aluminum plants, refining, power generation and liquid storage facilities are examples. A water tank or an oil refinery, for example, has no floor area, so it is obvious that requirements for exits from floor areas would not apply.

Requirements for structural fire protection in large steel mills and pulp and paper mills, particularly in certain portions, may not be practicable to achieve in terms of the construction normally used and the operations for which the space is to be used. In other portions of the same building, however, it may be quite reasonable to require the provisions of this Part be applied (e.g., the office portions). Similarly, areas of industrial occupancy which may be occupied only periodically by service staff, such as equipment penthouses, normally would not need to have the same type of exit facility as floor areas occupied on a continuing basis.

(Emphasis added)

[35] My reading of this extract draws me to a different conclusion. In my view, the annotation presumes the application of the BCA to industrial buildings which are regularly "occupied" but acknowledges that Building Code requirements may be reduced in specific areas within these buildings in which compliance is "impracticable". For this reason, the compendium makes reference to "areas of industrial occupancy which may be occupied only periodically by service staff" [emphasis added]. The context spells out that while the BCA applies, because such areas are in other portions of a building that is otherwise subject to the BCA, it applies with necessary modifications. More importantly, the level of occupancy can affect the applicability of the BCA.

[36] In fact, in my view, as the extract indicates that even certain areas within industrial buildings proper may enjoy reduced compliance with various aspects of the BCA, there is all the more reason to consider that self-contained structures that themselves are equipment may not reasonably be subject to the BCA regime at all.

[37] Evidence on the appeal indicates that the generator housing, which is not contained within another building, is only occasionally entered by maintenance staff and is incapable of being occupied when it is operational. In my respectful view, the generator cannot therefore be said to be "occupied" in any way meaningful to the context of the BCA. If any structure that has parts vaguely resembling four walls, a roof and a floor, and that is occasionally entered, is deemed "occupied" so as to justify the application of the BCA, absurd results would ensue. Surely, the legislature did not intend for industrial equipment consisting of a generator, ductwork for cooling it and a sound attenuator to be conflated with a house or a corporate headquarters.

[38] The purpose of the BCA is to establish a "set of minimum provisions respecting the safety of buildings with reference to public health, fire protection and structural sufficiency", but the application of those provisions must be reasonable and fair, taking into account "the rights of the public" (which includes FNX) "in dealing with the legislative requirements": Kritz v. Guelph (City), supra, at para. 57. The BCA, according to Director Mazza, "exists to ensure that buildings meet the minimum safety standards to safeguard the well-being of those who would occupy" them.

[39] In this case, the structure at issue will not be "occupied" as would an office building, a warehouse, or an industrial plant. After all, the generator will be remotely operated, and will only occasionally be entered by trained personnel for equipment maintenance and servicing. It does not appear reasonable or fair that mere transient occupancy by service or operations personnel should attract the strictures of the BCA.

Industry standards distinguish the generator from the BCA context

[40] Useful to the interpretation of the BCA in this area are guidelines prepared by the Canadian Standards Association (the "CSA"). The CSA is a Crown corporation that promotes efficient standardization in Canada, through development of standards that are arrived at by consensus and that reflect industry practice. CSA standards are repeatedly cited in the BCA regulations. While CSA standards are obviously not binding on the provincial legislature, the guidance that the CSA offers, which has been accepted for several purposes within the BCA regime and within other Ontario statutes, should be considered an important metric to help determine the purpose of the BCA in this area: see, for example, Oriole Park Resort Inc. v. Middlesex Centre (Municipality), [2008] O.J. No. 4668, 52 M.P.L.R. (4th) 98 (S.C.J.), at para. 18, concerning "park model trailers" and the BCA.

[41] CSA standard B139-15 is part of the Installation Code for Oil-Burning Equipment. It applies to equipment for power generation and would define the generator at Victoria Mine as involving a "walk-in engine enclosure", which personnel may enter to perform maintenance or operations work. Other sections within standard B139 explain that a generator such as that at the Victoria Mine sits atop a "sub-base tank" of fuel, and not a "floor", to support the weight of the engine. The use of the term "enclosure", and the distinction between a "sub-base tank" and a "floor", clarify the actual situation and draw the generator away from the definition of "building" in the BCA. CSA standards such as B139 also make extensive reference to ensuring the safety of personnel who might deal with oil-burning equipment by proper installation and setup.

[42] And indeed, s. 3.2.7.5 of O. Reg. 332/12 (Building Code) refers specifically to CSA standard C282, Emergency Electrical Power Supply for Buildings, which defines a generator "enclosure". Significant here is the CSA distinction between a "service room", which is an area inside a building, and an "enclosure", which stands outside a building. The generator at the Victoria Mine, which is not set up within a building, has an enclosure that occasionally can be entered for maintenance and operations. A service room, as it is contained within a building, would be subject to BCA regulation.

[43] The respondent submits that CSA standards are not themselves law, and that in the case of conflict, the law must govern. In my view, however, CSA distinctions inform the law and here work harmoniously with the compendium, itself an interpretative tool for the BCA. In the excerpt that has been presented, the compendium implies a distinction between equipment in buildings and equipment outside of buildings. According to the compendium, though buildings in which equipment is located are subject to the BCA, the BCA may not strictly apply to those areas within the buildings in which equipment is located. It is logical and reasonable that different rules should apply to industrial equipment that stands outside of buildings, so long as occupancy is transient and public safety is not thereby compromised.

Other regulations govern the generator

[44] It is therefore also necessary to consider that the BCA does not uniquely occupy the field of ensuring the safety of the public. Rather, it exists amid an interconnected nexus of federal, provincial, and municipal statutes, regulations and by-laws whose objects are focused on public safety in a variety of contexts: Burns v. Perth South (Township) Acting Alternate Chief Building Official (2001), 54 O.R. (3d) 266, [2001] O.J. No. 2117 (S.C.J.), at para. 19. The Victoria Mine generator is subject to regulatory regimes administered by the Ministries of Northern Development and Mines, Environment and Climate Change, and Labour. Several regulations exist that provide a safety regime for structures like the generator, including at least

[45] It is evident that the essential goals of the BCA, relating to safe use of and access to the generator, are provided for by regulations more aligned to the context of this generator as a piece of industrial equipment.

Conclusion about the generator

[46] In all of the circumstances of this case, in terms of the object of the BCA, the kind of occupancy the generator would see, the nature of the generator and its enclosure, and the regulations that govern safety issues surrounding the generator's use and access to it, the building inspector erred in his determination that the generator was a "building" within the meaning of the BCA, and the August 3, 2017 order to comply with respect to the generator was unreasonable.

[47] Accordingly, it is unnecessary to decide whether the BCA ore extraction exclusion applies to the generator.

The trailers

[48] As I have considered above, the purpose of the BCA is to provide a "set of minimum provisions respecting the safety of buildings with reference to public health, fire protection and structural sufficiency": Kritz v. Guelph (City), supra, at para. 57.

Permanent or movable?

[49] With respect to trailers, jurisprudence has focused on whether the "structure" is permanent and fixed in place, or temporary and movable. If temporary and movable, then the trailers may be better defined as vehicles, and not "structures". No issue is taken that they occupy an area greater than ten square metres, and consist of four walls, a roof and a floor. Certainly, no issue appears to be taken about the fact that the trailers in this case are intended to be occupied by people as work spaces, rest areas, changing and showering facilities and first aid stations.

[50] Trailers that are "designed to sit on the property . . . year-round" or to be used as a year-round residence, as opposed to simply "parking" temporarily on a property, have been held to require permits: see Havelock-Belmont-Methuen (Township) v. McGinn, [2011] O.J. No. 71, 2011 ONSC 160 (S.C.J.), at para. 5; Oriole Park Resort Inc. v. Middlesex Centre (Municipality), supra. So also, a structure comprised of stacked building containers, and fitted with a door and windows and electricity, set in place for several years, was found to fall under the purview of the BCA: Mississauga (City) v. 1545356 Ontario Ltd., [2011] O.J. No. 3694 (C.J.).

[51] Counsel for the appellant argued that the units are mobile, having replaced previous permanent trailers. The appellant submits that City of Greater Sudbury Zoning By-Law 2010-100Z should govern. This by-law, in Part 3, ss. 337 and 344, defines a "trailer" as a "vehicle that is at any time drawn upon a highway by a motor vehicle", and defines a "vehicle" as including a "trailer". The appellant argues that because the trailers are moved about the Victoria Mine site regularly, they remain trailers rather than "buildings", and the BCA does not apply to them.

[52] In addressing this issue, however, it is important to note, with the respondent, that the BCA no longer distinguishes between temporary structures and buildings, as it did prior to 1997.

Use matters

[53] Further guidance comes from the Supreme Court's decision in Moore (Township) v. Farr, [1978] 2 S.C.R. 504, [1978] S.C.J. No. 16. In that case, the issue arose whether mobile homes that had been set up on cement pillars and outfitted with utilities could be considered to be "trailers" or even "vehicles", so as to require their dismantling because of a by-law that prohibited people from living in "trailers". Justice Spence, at para. 11, considered that the issue fell to be determined by the use of the structure at the point that issue was taken about its nature, and whether it fell afoul of a governing law. Mobile homes that were rendered immobile by their attachment to utilities or foundation could not at that point be said to be mobile so as to be readily "drawn" by a motor vehicle. Accordingly, they were not being used as vehicles or trailers at that point in time.

[54] Based on the reasoning in Moore, even trailers that are intended to be moved regularly from place to place on a given site, if they are established at some point as immovable in one location and equipped with one or another kind of utilities, are thereby rendered sufficiently permanent and fixed in place to require compliance with the BCA.

[55] The trailers at the Victoria Mine are designed to sit on a property year-round, and the appellant uses them on the property year-round. The trailers are secured in a particular location for periods at a time using wooden structures and steel tripods, before they are then moved elsewhere and secured in place. Electrical and plumbing services have even been attached to the trailers, which are outfitted and used as offices, break rooms and first aid stations. Mobility within the same site does not alter the nature of their use.

Conclusion about the trailers

[56] Considering the broad definition of "building" in the BCA, the use to which the trailers have been put and their obvious regular occupancy, and the absence of any exemption in the BCA for portable structures such as these are, it was reasonable for Inspector Yourth to require a building permit for the trailers.

Order and Costs

[57] Accordingly, for the above reasons, I rescind that part of the August 3, 2017 order of Inspector Yourth that applies to the generator but affirm that order as it relates to the trailers.

[58] If the parties are unable to agree on the costs of the appeal, they may provide written submissions of no more than five pages within 30 days.

Appeal allowed in part.

FNX Mining Company Inc. v. City of Greater Sudbury, 2018 ONSC 4912

Case Summary

FNX Mining Company Inc., a Subsidiary of KGHM International Ltd. v. City of Greater Sudbury

Case Summary

Cases referred to

Statutes referred to

Rules and regulations referred to

Overview

Facts

Grounds of Appeal

Standard of Review

Law and Analysis

"Building"

Principles of statutory interpretation

The generator

Equipment in buildings and outside of buildings

Industry standards distinguish the generator from the BCA context

Other regulations govern the generator

Conclusion about the generator

The trailers

Permanent or movable?

Use matters

Conclusion about the trailers

Order and Costs

End of Document

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