Association of Professional Engineers of Ontario v. Ontario (Minister of Municipal Affairs and Housing), 2007 ONSCDC 17629

Court File No.143/06

20070517

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

ASSOCIATION OF PROFESSIONAL ENGINEERS OF ONTARIO and

BERNARD ENNIS, P. Eng.

Applicants

• and -

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by THE MINISTER OF MUNICIPAL AFFAIRS AND HOUSING and DAVID BREZER, P. Eng. in his capacity as DIRECTOR OF THE BUILDING AND DEVELOPMENT BRANCH OF THE MINISTRY OF MUNICIPAL AFFAIRS AND HOUSING and in his capacity as a CHIEF BUILDING OFFICIAL

Respondents

HEARD: October 26-27, 2006

BEFORE: Lane, Chapnik and P. Smith, JJ.

COUNSEL: Richard Steinecke and Lisa S. Braverman, for the Applicants.

Dennis W. Brown, Q.C., and Sandra Di Ciano for the Respondents.

David C. Moore and Kenneth G. G. Jones for the Intervenor, Ontario

Association of Architects.

R E A S O N S F O R J U D G M E N T

LANE J.:

[1] This application for judicial review challenges the validity of certain amendments to the Building Code, Ont. Reg. 403/97, a regulation enacted pursuant to the Building Code Act, 1992, S.O. 1992, c. 23 (the “Building Code Act”).

[2] The applicants say that the amendments are invalid to the extent that they establish a duplicate registration or qualification scheme for Association of Professional Engineers of Ontario (“PEO”) licence holders who prepare designs or conduct general reviews of buildings. The applicants contend that this regulation is invalid and should be read down to exclude PEO licence holders.

[3] For the reasons that follow, the application is allowed.

INTRODUCTION

The Parties

[4] The applicant PEO is the statutory body that regulates the practice of professional engineering in Ontario under the Professional Engineers Act, R.S.O. 1990, c. P.28. PEO regulates persons who hold licences, temporary licences, limited licences and provisional licences and entities that offer engineering services directly to the public who must hold certificates of authorization. Collectively they are called PEO licence holders.

[5] The applicant Bernard Ennis is a professional engineer employed by PEO. He is the PEO’s Manager of Practice and Standards. He has also been designated as the professional engineer to assume responsibility for, supervise, and direct the professional engineering services performed by PEO itself (i.e. in respect of its own building space).

[6] The intervenor Ontario Association of Architects (“OAA”) is the body established under the Architects Act, R.S.O. 1990, c. A.27, which is responsible for licencing and regulating architects in Ontario. OAA supports the application.

[7] The respondent Minister of Municipal Affairs and Housing (the “Minister”) is responsible for the Building Code. The respondent David Brezer, P. Eng., is employed by the Ministry of Municipal Affairs and Housing (“MMAH”) as the Director under the Building Code Act. The Director is the official responsible for administering and enforcing the regulatory scheme under the Building Code. The Director also doubles as a chief building official where no other is available.

The Application

[8] As will be detailed below, since December 31, 2005 the Building Code has established a regulatory scheme for persons who prepare designs or conduct general reviews of buildings in Ontario.

[9] Mr. Ennis has been asked to renovate PEO’s head office. He is not registered or qualified under the Building Code to prepare building designs or to conduct general reviews and has not taken the required Building Code examinations. As such he is concerned that it would be illegal for him to prepare and submit the designs or file a general review commitment form for the renovations.

[10] The applicants say that PEO licence holders are not subject to the regulatory scheme under the Building Code, and have brought this application seeking declarations to that effect, as well as injunctive and other relief.

The Parties’ Positions

[11] The applicants’ submission is that, at least to the extent that Building Code Act and Building Code provisions establish a competing regulatory scheme for PEO licence holders who design or conduct general reviews of buildings, such provisions are invalid for the following reasons:

(a) The impugned provisions encroach upon the PEO’s exclusive regulatory jurisdiction under the Professional Engineers Act.

(b) The impugned Building Code provisions are not authorized by the Building Code Act.

(c) The impugned Building Code provisions unlawfully sub-delegate authority.

[12] The respondents submit that the provisions are valid enactments for the purpose of protecting the public by providing for the establishment and enforcement of standards relating to the construction and demolition of buildings. They are laws of general application and do not single out PEO licence holders, nor do they have as their purpose the regulation of PEO licence holders. They apply to the general class of designers and building practitioners with the purpose of ensuring public safety. They do not infringe on the jurisdiction of the PEO, nor is there conflict between the Building Code Act and the Professional Engineers Act. But if there were such a conflict, the Building Code, as the later enactment, would prevail.

[13] The respondent further submits that s. 34 (1) of the Building Code Act contains clear and unequivocal authority for the impugned Building Code provisions, and the Building Code does not constitute unauthorized sub-delegation.

[14] The intervenor OAA supports the applicants. It, like the professional engineers, lobbied the government against the imposition of regulations to impose this additional regulatory regime in respect of building permit applications. Pending the resolution of this dispute, the OAA entered into a Memorandum of Understanding (“MOU”) with the Minister, establishing a parallel regulatory regime within the OAA. Its position is that this regime will be ended if the PEO is successful in the present litigation.

[15] The OAA submits that the Building Code regime goes far beyond the establishment of standards for the content of applications for building permits or rules for their processing. Rather, it provides extensively for the training, qualifications and licensing of persons submitting applications and vests the Director with a variety of intrusive powers as to books and records and the suspension or revocation of an registrant’s status. It is the difference between regulating the application for the building permit and regulating the individuals applying that underlies the OAA’s objections to the Building Code regime.

[16] The OAA does not dispute the power of the Legislature to revise the governance of the profession of architecture by appropriate legislation, but raises the issue of whether the present legislation empowers the establishment by regulation of a parallel regulatory structure that derogates from the OAA’s exclusive jurisdiction to govern architects. It submits that the Building Code provisions at issue are invalid:

There are two simple and straightforward elements to this position: (1) under the Architects Act the OAA has exclusive jurisdiction to regulate architects and the practice of architecture in the Province of Ontario, (2) any regulation which purports to derogate from the established exclusive jurisdiction of the OAA must be clearly and unequivocally authorized by statute.[^1]

[17] The resolution of this dispute requires an examination of the regulatory schemes under both the Professional Engineers Act and the Building Code Act and Building Code.

Regulatory Scheme under the Professional Engineers Act

[18] The applicant PEO is statutorily mandated to regulate the practice of professional engineering in the public interest.

[19] The “practice of professional engineering” means “any act of designing, composing, evaluating, advising, reporting, directing or supervising, wherein the safeguarding of life, health, property or the public welfare is concerned and that requires the application of engineering principles”[^2].

[20] A significant component of the practice of professional engineering relates to design and general reviews of the construction of buildings.

[21] The word “design” and the phrase “general review” are terms of art in the building construction field and are defined in s. 12 (8) of the Professional Engineers Act.[^3] The word “design” is defined in a substantially similar manner in s. 15.11 (6) of the Building Code Act. A general review assesses the conformity of the construction of the building to the design and is not, per se, an evaluation of its conformity with the Building Code.

[22] PEO licence holders share with architects the exclusive right to design and conduct general reviews of buildings. This exclusivity is shared in a carefully negotiated arrangement with architects set out in complementary provisions of the Professional Engineers Act and the Architects Act.[^4] Both statutes were enacted in 1984. A Joint Practice Board of the two professions helps avoid confusion and conflicts between them.

[23] The Professional Engineers Act provides a comprehensive regulatory scheme for the registration of PEO licence holders (through a review of education and work experience and the examination of applicants), the investigation of concerns and complaints and the discipline of PEO licence holders, the setting of standards of practice, the carrying of professional liability insurance, and other regulatory powers.

[24] The PEO is active in the regulation of PEO licence holders who design and conduct general reviews of buildings.[^5] The PEO’s definition of professional misconduct has a number of applicable provisions, including performance standards specifically applicable to the Building Code. A significant proportion (almost half) of the PEO’s complaints and discipline activities relate to Building Code work. The PEO has published numerous relevant professional practice guidelines. Finally, all PEO licence holders offering services to the public must obtain a certificate of authorization and meet the specified professional liability insurance requirements.

Regulatory Scheme under the Building Code Act

[25] For many years Ontario has had a system to regulate building construction. Plans must be submitted in order to obtain a building permit. Buildings under construction are subject to government inspections and various enforcement orders (e.g., stop work orders). This system was updated with the Building Code Act, which was proclaimed into force in 1993, almost ten years after the Professional Engineers Act became law.

[26] In 2000 the Trow Report and the BRRAG Report were released. The major theme of both reports was to streamline the building approval process under the Building Code Act and Building Code. Neither report identified significant concerns in the conduct of PEO licence holders. The BRRAG report also dealt with increasing the competence and accountability of those involved in the building industry, including those who do the actual construction. Again, PEO licence holders were not singled out. The BRRAG report specifically recommended that new initiatives should not duplicate existing regulatory structures.

[27] In 2003 the Building Code Act was amended to authorize a regulatory scheme for, among others, those persons preparing designs and conducting general reviews of buildings. Amendments to the Building Code were made in 2003 and 2005, taking effect on December 31, 2005. (The relevant provisions of the Building Code Act and Building Code are reproduced in Schedule A at the end of these reasons).

[28] The Building Code Act says the role of “designers” is to provide designs that comply with the Act and the Building Code, to provide sufficient information for building officials to determine such compliance, to perform general reviews, and to have the necessary qualifications and insurance required by the Building Code.[^6] These are general role statements and PEO licence holders are not specifically identified in them. The Building Code Act also describes the role of chief building officials and other officials who determine whether a design or other construction work complies with the Building Code and who also enforce the legislation by issuing or withholding building permits.[^7]

[29] The Building Code Act continues to recognize the expertise and qualifications of PEO licence holders and allows the making of regulations restricting certain aspects of general reviews only to PEO licence holders and/or architects.[^8] The Act also expressly recognizes the regulatory role of the PEO and authorizes building officials to refer concerns about designs and general reviews by PEO licence holders to the PEO for regulatory action. At the request of the PEO, chief building officials must provide documents and information to PEO for regulatory action.[^9]

[30] Article 2.3 of the Building Code allocates among PEO licence holders, architects and the public the ability to design and conduct general reviews of various types of buildings. The Professional Engineers Act and the Architects Act also address these matters.

[31] The Building Code regulatory scheme applies to every person engaged in the business of providing “design activities” to the public, excluding architects.[^10] Where a design is intended to be submitted for a building permit, “design activities” include the preparation of the building design or the giving of an opinion concerning whether the building complies with the Building Code. As already mentioned above, this definition is very similar to the definition of “design” in the Professional Engineers Act.

[32] Article 2.17 of the Building Code sets out the qualifications and other requirements of designers that are subject to the regulatory scheme, including the following:

a. Successful completion of an examination program administered or authorized by the MMAH for registration / qualification;

b. A requirement to carry specified liability insurance;

c. A condition on registration restricting design and general reviews to the type of building for which one is registered;

d. A requirement to complete any new examinations that are developed;

e. The Director can reasonably require a registrant to provide any documents or information about a registrant’s activities;

f. The representatives of the Director have access to a registrant’s books and records for the purpose of confirming matters related to registration;

g. The Director can issue a notice of proposal to suspend or revoke the registration of a registrant for various reasons including the opinion that the past conduct of the registrant affords reasonable grounds for the belief that the business will not be carried on in accordance with law.

[33] It appears that Art. 2.17 duplicates many aspects of the requirements under the Professional Engineers Act. PEO licence holders must complete examinations administered by the PEO[^11], be registered with the Registrar[^12], and must carry liability insurance[^13]. They are subject to investigation and discipline for professional misconduct.[^14] And their licence can be revoked for, inter alia, professional misconduct, incompetence, and for past conduct that affords grounds for belief that he or she will not engage in the practice of professional engineering in accordance with the law and with honesty and integrity.[^15] I will return to the issue of duplication in the analysis that follows.

ANALYSIS

Issue 1: Are the impugned Building Code provisions invalid because the Building Code Act does not authorize them?

[34] The parties agreed that the standard of review on the issue of the validity or vires of the impugned Building Code provisions is correctness: Sunshine Village Corp. v. Canada (Parks Canada) (2004), 2004 FCA 166, 238 D.L.R. (4th) 647 at para. 10 (Fed. C.A.).

[35] Paragraph 34 (1) 10 of the Building Code Act grants the Lieutenant Governor in Council very broad authority to make regulations “requiring any part of the design, construction or demolition of a building to be under the general review of an architect…or a professional engineer”, which is reflected in s. 2.3 of the Building Code. Leaving aside the considerations of contextual interpretation to be addressed later, and reading the language literally, the Lieutenant Governor in Council acted within his authority by enacting s. 2.3 of the Building Code, with two exceptions.

[36] First, I accept the applicants’ submission that Art. 2.3.1.1 of the Regulation exceeds the reach of the statute by attempting to allocate between the professions the power to create particular designs (this is reflected in Table 2.3.1.1 – see Appendix A). Paragraph 34 (1) 10 of the Building Code Act only authorizes regulations requiring designs or parts of designs to be under the “general review” of one of the professions. The Lieutenant Governor in Council therefore erred in exercising his regulatory power, and Art. 2.3.1.1 is invalid to the extent that it purports to allocate the making of designs between professional engineers and architects.

[37] Second, I agree that the Lieutenant Governor in Council erred by purporting to direct the use of a professional engineer’s seal in Art. 2.3.1.1 (4). There is no regulatory authority to make such a direction in s. 34 of the Building Code Act. The proper use of a seal is addressed in the Professional Engineers Act. Although counsel for the respondents conceded that Art. 2.3.1.1 (4) did not require anything more with regard to seals than what is already provided for under the Professional Engineers Act, that fact cannot support the over-broad Regulation.

[38] Paragraphs 34 (1) 33 to 35 and 35.3 of the Act grant the Lieutenant Governor in Council very broad authority to make regulations prescribing the qualifications of “designers” (including competency examinations, insurance and fees) and their registration with the Director. These matters are set out in great detail in Art. 2.17 of the Building Code, and I am not persuaded that the Lieutenant Governor in Council has exceeded his authority in simply creating such a regime for those dealing with the Code. The issue of whether the regime applies to architects and engineers raises different issues.

[39] In my view, the word “designers”, as used in the Building Code Act, taken literally, is broad enough to include professional engineers. The applicants conceded that professional engineers both create designs and conduct general reviews. The Legislature can be taken to have known that professional engineers routinely perform these functions. While the Legislature has not expressly excluded professional engineers from the Act, there are provisions (dealt with below) suggesting a legislative intention to differentiate among classes of persons and to respect the existing position and statutory authority of the PEO to licence its members. I agree with the respondents’ submission, citing Sunshine, supra at para. 18, that this court “must take the statute as it finds it”, but it is the entire statute in its context that we consider. The Rizzo case illustrates that the literal meaning does not always prevail. I have no doubt that the Lieutenant Governor in Council had the authority under the Act to enact the regulation, but the issue of whether the Legislature intended to grant the Ministry the authority to exercise such a broad control over professional engineers is a contextual one and will be dealt with in the analysis later in these reasons regarding the principles of interpretation.

Issue 2: Are the impugned Building Code provisions invalid because they unlawfully sub-delegate authority?

[40] Subparagraph 34 (1) 33 (ii) of the Building Code Act authorizes the Lieutenant Governor in Council to make regulations “prescribing qualifications for…designers…including…requiring assessments or examinations in connection with obtaining or maintaining the required qualifications.” The applicants submit that the Lieutenant Governor in Council unlawfully sub-delegated this power to MMAH in Art. 2.17.4.2 (1) (a) and (b) of the Building Code, which states that the Director “may register an applicant…if…the applicant…successfully completed the examination program administered or authorized by the [MMAH]”.

[41] The Ontario Court of Appeal in Re Peralta and The Queen (1985), 49 O.R. (2d) 705 at 717-18, aff’d (1989), 1988 28 (SCC), 66 O.R. (2d) 543 (S.C.C.), held that there is no rule against sub-delegation. Rather, the maxim delegatus non potest delegare is a rule of construction. The court must look to a number of factors to determine whether sub-delegation was intended. These factors include “administrative necessity”, the suitability of the sub-delegate, and “the language of the whole enactment and of its purposes and objects”.

[42] In my view, applying the aforementioned factors in this case indicates that the Legislature intended the Lieutenant Governor in Council to sub-delegate the administration of the examinations.

[43] Administrative necessity weighs heavily in favour of sub-delegation. It is not reasonable to expect the Lieutenant Governor in Council to prescribe in the Building Code the actual assessments and examinations required as part of the qualifications of designers. The Legislature has made MMAH responsible for the Building Code Act and Building Code. This makes MMAH the ideal sub-delegate. There can be no dispute that MMAH is a suitable sub-delegate for the administration of examinations that assess an applicant’s knowledge of the Building Code regime. Indeed, it seems to me that sub-delegating the administration of examinations to the body that actually is responsible for the Building Code Act and Building Code is consistent with the overarching legislative purpose of protecting the public.

[44] Furthermore, the language used in s. 34 (1) 33 ii of the Building Code Act is consistent with sub-delegation. Strictly speaking, the Lieutenant Governor in Council need only “prescribe” that examinations be “required”. The language of the provision does not go so far as to oblige the Lieutenant Governor in Council to “prescribe” the actual content of the assessments and examinations of designers.

[45] The applicants relied on this Court’s decision in Re Norman and Registration Committee of the Royal College of Dental Surgeons of Ontario (1985), 1985 2154 (ON SC), 50 O.R. (2d) 443 (Div. Ct.) [Norman] in support of their unlawful sub-delegation argument. That case is distinguishable from the case at bar. In Norman the Council of the College of Dentistry was given authority under s. 11 (7) (c) of the Health Disciplines Act, R.S.O. 1980, c. 196 to make regulations “governing the requirements and qualifications for the issuing of licenses”. The Council passed a regulation giving itself the power to set or approve examinations that must be completed in order to obtain a license. The Divisional Court held that this aspect of the regulation was unlawful. Setting or approving examinations was a “requirement” in s. 11 (7) (c) of the Health Disciplines Act. The only way the Council could set or approve a “requirement” was by regulation. In other words, the Council could not sub-delegate to itself the power to set or approve the examinations; it had to set the examinations by regulation. In this case there is no self sub-delegation. For the reasons given above, the Lieutenant Governor in Council has properly sub-delegated authority over the administration of the examinations and assessments to the MMAH.

Issue 3: Does the Building Code Act and the Building Code encroach upon the exclusive regulatory jurisdiction of PEO under the Professional Engineers Act?

[46] The respondents concede that the purposes of the Professional Engineers Act and of the Architects Act are to regulate the practice and membership of their respective professions in accordance with the public interest. The respondents submit that the new Building Code regime does not encroach on the regulatory jurisdiction of either of the professional associations. It is implicit in these submissions that the respondents recognize the exclusive authority of PEO and OAA to regulate their respective professions.

[47] The applicants and intervenor made extensive submissions on the exclusive nature of their responsibility and authority over the members of their respective professions. I conclude that the purpose of the two professional Acts is to regulate the conduct and good character of their members as well as their professional training and competence and this purpose is intended to be exclusive. This exclusivity is demonstrated by the comprehensive nature of the schemes, each of which addresses all the essential issues such as qualifications by education and experience to be registered, conduct and character, complaints and disciplinary functions, and punishment up to the level of de-certification. See Regina Police Ass’n Inc. v. Regina (City) Board of Police Commissioners (2000), 2000 SCC 14, 183 D.L.R. (4th) 14 at paras. 31-2 (S.C.C.) and Abbott v. Collins (2003), 2003 46127 (ON CA), 64 O.R. (3d) 789 at paras. 4, 27-33 (Ont. C.A.).

[48] Mr. Brown, for the respondents, submits that the purpose of the Building Code Act and Building Code is not to regulate the practice of architecture or of professional engineering, but to ensure the safety of the public. He says the Legislature has chosen to enact a further layer of protection for the public relating to the construction of buildings and the new legislation must be read in the light of this purpose. I accept that the protection of the public is the purpose of the impugned legislation. However, as indicated above, parts of the Building Code Act and Building Code appear to duplicate the requirements of the professional Acts. One must ask, therefore, to what extent, if any, the protection of the public may be advanced by duplicating the professional regulatory Acts? This raises the question of whether this duplication was actually intended by the Legislature. Should those parts of the Building Code Act be read to include PEO license holders or not?

[49] The applicants say that the heart of the issue before the Court is that the Building Code usurps the authority of the professional bodies to govern their members as to the qualifications necessary to practice an important part of their profession. Architects and engineers come into contact with the Building Code on a frequent basis. The engineers are specifically licenced to practice professional engineering, which includes the art of designing, evaluating, reporting on, directing and supervising the design and construction of buildings in the light of engineering principles. Knowledge of the Building Code is a necessity for those practicing in the design of buildings, and education in the Building Code is a part of their professional responsibility. But the applicants submit that the revised Building Code goes much farther than regulating a professional’s knowledge of its content. They say it also purports to regulate character and conduct. In these respects the applicants submit the Building Code directly duplicates and conflicts with PEO’s exclusive regulatory authority.

[50] The applicants point to a number of instances of duplication. There are the rules in Art. 2.3 of the Building Code as to the application of the professional engineer’s seal to plans. Art. 2.3 of the Building Code also allocates among PEO licence holders, architects and the public the ability to design and conduct general reviews of various types of buildings. The Professional Engineers Act and the Architects Act already address these issues (and I have already held above that the Lieutenant Governor in Council exceeded his statutory authority by regulating these matters).

[51] An even more problematic field is that of professional misconduct. Here, the Building Code by section 2.17 gives the Director the power to suspend a registrant for various reasons, including the opinion that the conduct of the registrant affords reasonable grounds for the belief that the registrant will not carry on business in accordance with law. This duplicates the powers of the Registrar of the PEO to suspend or revoke an engineer’s licence. Mr. Brown submitted that there was no duplication because the Director would only revoke for conduct related to the Building Code. When pressed by the court that the Director could act in relation to whether the business was likely to be carried on in accordance with “law”, he conceded that the Director could not ignore past conduct as evidence of character, but submitted that the Director’s interest in the character of the registrant had nothing to do with engineering principles. This submission is not persuasive. The PEO’s interest in the character of the licensees is not defined by engineering principles either, but by their character. It is clear that there is a duplication involved here.

[52] Mr. Brown further submitted that the present case was in parallel with the case of Wilder v Ontario Securities Commission, 2000 29062 (ON SCDC), [2000] O.J. No. 758 (Div. Ct.), aff’d 2001 24072 (ON CA), [2001] O.J. No. 1017 (C.A.), which I will address in greater detail below, where this court held that the Commission could regulate the conduct of a lawyer actually appearing before it, despite the fact that the lawyer was also subject to conduct regulation by the Law Society.

i. The Wilder case

[53] The issue in the Wilder case arose out of a letter written by Mr. Wilder, a lawyer acting in his professional capacity, to the Ontario Securities Commission in the course of a prospectus review. The Commission staff alleged that the letter contained a misleading statement of material fact and a Notice of Hearing was issued that the Commission would consider whether it was in the public interest to reprimand him for this act. Mr. Wilder brought a judicial review application seeking to prohibit the hearing and to quash the Notice on the grounds that only the Law Society had jurisdiction over him as a lawyer acting in a professional capacity.

[54] This court held that there was no inconsistency between the role of the Law Society in regulating the legal profession and the role of the Commission in regulating the capital markets – they both protect the public interest but the aspect of that interest is not the same. The Commission did not seek to discipline the lawyer for professional misconduct, but to protect its own process from abuse. Further, the Commission did not seek to control the right of access to practice before it, but only to reprimand an individual for alleged misconduct before it. Therefore, the court refused to quash the Notice of Hearing. In the Court of Appeal the argument turned largely on other issues, but the Court at para. 29 specifically adopted the analysis of Swinton J., for this court, in dealing with the issue now before us.

[55] The principle enunciated in Wilder has meaning for this case. I take it to mean that not every requirement of an entity with which a registered professional interacts impinges on the exclusive authority of the professional regulator. Such entities are entitled to protect the integrity of proceedings before them.

[56] It is important to note that the Commission in Wilder did not purport to go beyond the actual act that Mr. Wilder allegedly committed in dealing with the Commission. Nor, in my view, could the Commission have done so without invading the exclusive jurisdiction of the Law Society over issues of professional competence, character and conduct. For example, an inquiry by the Commission into Mr. Wilder’s past conduct in general in order to determine fitness on character grounds would be extremely suspect.

[57] The applicants and intervenor submit that the limit of Wilder is reached when the entity moves from regulating a particular interaction between itself and a professional, to the establishment of a competing regulatory scheme regulating the general conduct, character and competency of the registered professional. In their submission the Building Code regulatory scheme is the latter. The applicants draw attention to these features in their factum, at para. 36:

It is submitted that in the present case, section 2.17 of the Building Code regulation establishes a competing regulatory scheme for the registration and discipline of PEO licence holders. For example, under both schemes:

a. The scope of building designs and general reviews are virtually identical.

b. There purports to be an allocation of what must be done by a PEO licence holder, what must be done by an architect and what can be done by anyone.

c. The practitioner cannot practise without registration, qualification or authorization.

d. A jurisprudence-type examination is required for registration / qualification.

e. A practitioner seals / imprints his or her Building Code Identification Number (BCIN) on a document to take responsibility for it.

f. A practitioner is subject to administrative investigation powers including the requirement to provide access to client files and information.

g. A practitioner is subject to disciplinary action for failing to comply with the Building Code Act, 1992 or the Building Code regulation.

h. In addition a practitioner is also subject to a notice of proposal to suspend or revoke his or her registration or authorization for creating the belief that the practitioner will not carry on business in accordance with any law (not just Building Code law).

i. In addition to the registration and disciplinary tools, a practitioner who fails to comply with the legislation is subject to a provincial offences prosecution before the courts and injunctive relief.

j. There are liability insurance requirements for those offering services to the public.

[58] In addition, the applicant submits at para. 37 that:

…the concept of assuming professional responsibility for one’s work is more extensive under the Professional Engineers Act than it is under the Building Code Regulation. The PEO practitioner is expected to have either performed or to have closely supervised work he or she seals. Under the Building Code regulation the practitioner is encouraged to simply review and stamp the work of others.

[59] The Building Code certainly bears the distinctive characteristics of a professional regulatory statute. It regulates the requirements for admission to practice in the field of submitting building plans to the various building officials for approval. There are educational and insurance requirements; allocations of responsibility for various kinds of work; rules as to the stamping of work product; administrative obligations such as giving access to client files and information; disciplinary sanctions; and revocation powers on character grounds. In scope and function, it is indistinguishable from professional regulatory acts. If truth be told, the Building Code is a professional regulatory act in search of a profession.

[60] The profession of engineering often requires engineers to deal with compliance with the Building Code and to deal with building officials to obtain approval for their clients. Misconduct, negligence, dishonesty or the like in such dealings are professional failings and fall under the jurisdiction of the PEO. On its face, the Building Code gives power to the Director to examine into matters within the exclusive jurisdiction of the Professional Engineers Act. That conclusion does not at once lead to the further conclusion that it is invalid. It is necessary to consider the Building Code Act and in particular the power which it grants to make regulations. Does the Building Code Act authorize the making of regulations impinging on the exclusive authority of the applicant to govern its members? As I will explain below, I conclude that it does not.

ii. The Building Code Act does not authorize regulations that impinge on PEO’s exclusive authority to regulate professional engineers

[61] The modern rule of statutory interpretation was formulated by Elmer Driedger[^16] and was accepted as the preferred approach by the Supreme Court in Re Rizzo and Rizzo Shoes Ltd., 1998 837 (SCC), [1998] 1 S.C.R. 27 at 41. In Ontario (Attorney General) v. Big Canoe (2002), 2002 18055 (ON CA), 62 O.R. (3d) 167 (C.A.), leave to appeal to the S.C.C. ref’d [2003] S.C.C.A. No. 31, the Court of Appeal discussed the modern rule at p. 173:

Finally, the “modern” interpretation method was reformulated in Canada by Professor R. Sullivan: Driedger on the Construction of Statutes (3rd ed. 1994) at p. 131:

There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning. After taking these into account, the court must then adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy in its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome is reasonable and just.

[62] The first consideration is the purpose of the Professional Engineers Act. It is clear that the purpose of the Act is the regulation of the conduct of professional engineers, including their character (e.g. whether there is reason to believe, based on past conduct, that the licensee will not carry on the profession in accordance with law). The purpose of the Building Code Act is primarily to regulate the construction of buildings by establishing the standards of construction set out in the Building Code. As recently amended, the Building Code has the purpose of ensuring that those who deal with the Building Code and with Building Officials have certain qualifications and be registered.

[63] The respondents submit that there is no actual conflict between the two statutes. The Building Code is geared to testing designers’ knowledge of the Building Code Act and Building Code. It does not touch upon the heart of PEO’s mandate, “such as membership in the organization, professional ethics, competency as a professional engineer or architect, or any other sphere not directly relevant to building construction and demolition.” If there is no real conflict, the two regimes can co-exist.

[64] The respondents submit that the case at bar is analogous to the case of Law Society of Upper Canada v. Barrie (City) (2000), 2000 22319 (ON SC), 46 O.R. (3d) 620 (S.C. J.), where the City passed a by-law to require all businesses in the City to obtain a business licence. It was held that lawyers governed by the Law Society Act were not exempt. Compliance with the by-law did not conflict with the Law Society’s jurisdiction over the professional aspects of the lawyer’s business.

[65] In my view, the analogy is not apt. The business licence was really a tax. The City did not purport to legislate that the lawyer could not practice her profession without submitting to further professional testing or submitting to inquiries as to her fitness to practice. The situation before us is quite different. The Building Code prevents the professional engineer from performing some significant professional tasks for which he is already licensed by the PEO under the Professional Engineers Act unless he complies with these new profession-related requirements and exposes himself to a duplicative disciplinary scheme not confined to his actual interaction with building officials. Therefore it cannot be said that there is no real conflict between the two regimes.

[66] While the Building Code refers to “every person”, it does not expressly include engineers among the persons required to obtain “qualifications”. Certain provisions of the Building Code, such as Art. 2.3.1.1 discussed above, tend to support a legislative intention to respect the special rights and obligations of the professional engineer. This point is reinforced by the language of s. 34 (1) 33 of the Building Code Act (see Schedule A), which permits the making of regulations prescribing qualifications for designers and others, including “different qualifications for different classes of…designers”. This signals a legislative intention to differentiate between classes of designers, presumably by reason of differences in training, education and experience. Thus it cannot be said that the purpose of the Building Code Act and Building Code support the proposition that the regulatory scheme implemented by this legislation is meant to impinge on the PEO’s exclusive regulatory jurisdiction over its members.

[67] The second Driedger consideration is the consequences of opposing interpretations. In my view the inclusion of professional engineers within the Building Code regulatory scheme leads to incongruous results. As noted, they are already licenced through the Professional Engineers Act to perform the very acts now regulated by the Building Code. They are already under a scheme of discipline which can see them lose their licence on grounds of lack of competence or, in effect, bad character, through a complaints and discipline system. To involve professional engineers in a second such system over essentially the same professional competence is a form of double jeopardy, which is, as indicated by the various deponents giving affidavit evidence on behalf of the applicants and intervenor, unfair and unnecessary to accomplish the ends of the legislation.

[68] The Wilder case illustrates the problem and the solution. If a professional engineer interacts with an entity, such as a chief building official, in a dishonest or unprofessional manner, he or she may be exposed to some punishment under the rules of that entity, as was Mr. Wilder. But the bringing of charges of professional misconduct on character grounds (such as reason to believe from past conduct that the professional engineer will not act honestly), or the evaluation of a professional engineer’s competency (through assessments and examinations) are exclusive functions of the PEO. To the extent that the Building Code imposes these and similar conditions on “persons”, it should be read as excluding those members of professions already subject to a statutory professional regulatory regime.

[69] Under the third Driedger consideration the courts look to the aids to interpretation and the presumptions and special rules of interpretation. The respondents submit that one test of legislative intent is the presence of an exemption for architects, but none for engineers. This would be a potent argument but for the special circumstances described above that the exemption came about as a temporary measure to await the resolution of the issues being canvassed in these reasons. In those circumstances it is not appropriate to draw the conclusion urged on us by counsel for the respondents.

[70] The respondents submit that in the event (which they deny) that there is some inconsistency between the Professional Engineers Act and the Building Code Act and Building Code, the latter should prevail because they were enacted later and are deemed to have impliedly repealed the former to the extent of the inconsistency. They rely on Winnipeg School Division No. 1 v. Craton, 1985 48 (SCC), [1985] 2 S.C.R. 150, where the issue was whether the school board’s mandatory retirement policy, set out in s. 39 (2) of its Act, prevailed over the Human Rights Act. McIntyre J. for the Supreme Court observed, at para. 7, that:

Section 6(1) of The Human Rights Act, enacted in 1974, was clearly a subsequent enactment and an express prohibition against discrimination in employment on the basis of age, and even setting aside the notion of any primacy for human rights legislation, it would have prevailed and repealed section 39(2) by implication.

[71] Certainly the relative timing of the passage of the two statutes was a factor in the Supreme Court’s decision, but it is important to observe that the later enactment was an express prohibition of what was called for by the earlier, which is decidedly not so in the case before us.

[72] The scope of the concept of implied repeal is somewhat more limited than the respondents submit. Where the later statute is general and the earlier specific, it appears that the general may be construed as allowing an exception for the existing specific Act.[^17] Such a principle would be applicable in the case at bar where the earlier Professional Engineers Act establishes a regime for a particular profession, whereas the later Building Code applies generally to everyone doing business with the chief building official about building permits. As well, cases show a significant respect for rights already granted and the need for very clear language to over-ride them.

[73] In Re British Columbia Teachers’ Federation and A.G. for British Columbia (1985), 1985 281 (BC CA), 23 D.L.R. (4th) 161, the British Columbia Court of Appeal dealt with whether a directive from the B. C. Treasury Board establishing a formula limiting school expenditures prevailed over provisions of the School Act placing management, including teacher salaries and lay-offs, in the hands of the School Trustees. At pp. 173-4, Anderson J.A., for the majority, said:

The Legislature, by enacting the School Act, conferred important statutory rights on school boards, teachers and the residents in each school district. …

In the absence of express language, it will not be presumed that the Legislature intended to abrogate existing statutory rights of the nature described above.

The law is summarized in Maxwell on The Interpretation of Statutes, 12th ed. (1969), at p. 196, as follows:

"Now if anything be certain it is this" said the Earl of Selborne L.C. in The Vera Cruz"that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so." In a later case, Viscount Haldane said: "We are bound ... to apply a rule of construction which has been repeatedly laid down and is firmly established. It is that wherever Parliament in an earlier statute has directed its attention to an individual case and has made provision for it unambiguously, there arises a presumption that if in a subsequent statute the Legislature lays down a general principle, that general principle is not to be taken as meant to rip up what the Legislature had before provided for individually, unless an intention to do so is specially declared. A merely general rule is not enough, even though by its terms it is stated so widely that it would, taken by itself, cover special cases of the kind I have referred to. [Footnotes omitted] [Emphasis added]

[74] To a similar effect is the judgment of the Supreme Court in Morguard Properties Ltd. v. City of Winnipeg, 1983 33 (SCC), [1983] 2 S.C.R. 493. Estey J., who delivered the judgment of the court, stressed that existing statutory rights will not be deemed abrogated in the absence of express language indicating a clear legislative intention so to do. At p. 509 he said:

In more modern terminology the courts require that, in order to adversely affect a citizen's right, whether as a taxpayer or otherwise, the Legislature must do so expressly. Truncation of such rights may be legislatively unintended or even accidental, but the courts must look for express language in the statute before concluding that these rights have been reduced.

[75] The cases show that before we could agree with the respondent that professional engineers are subject to the full panoply of control established by the Building Code, we should be able to point to statutory language which clearly indicates that the existing right of the professional engineers to practice in accordance with the Professional Engineers Act was intended to be abrogated. In my view, no such clear statutory language exists.

[76] The final Driedger consideration is the plausibility of the interpretation in the light of the actual language, its efficacy in promoting the purpose of the statute, and the fairness of the result. It is significant that there is no provision in the Building Code Act or in the Building Code establishing any form of primacy of those enactments over the professional regulatory Acts. By contrast, s. 35 (1) expressly provides that the Building Code Act and the Building Code supersede all municipal by-laws. Certainly the words “every person” are broad and are intended to capture those who deal with the Code by presenting plans to building officials for permits. But there are, as noted, other provisions suggesting a legislative intention to differentiate among classes of persons and to respect the existing position and statutory authority of the PEO to licence its members. To do so in a rational way must result in the exclusion of professional engineers from the duplicative competence and character control scheme under the Building Code as they are already subject to such a statutory regime.

DISPOSITION

[77] I agree with the submissions of the respondents that this is not a case for injunctive relief or for the exercise of the court’s prerogative powers. I would grant the following declarations:

1. Article 2.3.1.1 of the Building Code is not authorized by s. 34 (1) 10 of the Building Code Act and is invalid to the extent that it purports to allocate responsibility for designs between professional engineers and architects.

2. Article 2.3.1.1 (4) of the Building Code is not authorized by s. 34 of the Building Code Act and is invalid.

3. Clause 1.1 (1) (c), subsection 1.1 (2), clause 8 (2) (c), and subsections 15 (5) to (7) of the Building Code Act conflict with the exclusive regulatory jurisdiction of the PEO and do not apply to any holder of any licence or certificate issued under the Professional Engineers Act.

4. Article 2.17 of the Building Code conflicts with the exlusive regulatory jurisdiction of the PEO and does not apply to any holder of any licence or certificate issued under the Professional Engineers Act.

[78] Order to follow accordingly.

[79] While relief is only available to the applicant professional engineers in this case, in my opinion the analysis in these reasons for judgment applies equally to the intervenor architects.

COSTS

[80] Any party wishing to make submissions as to costs may do so by way of brief written submissions to the Court within 30 days of the release of these reasons for judgment.

[81] Before parting with this case, I wish to express my gratitude to my colleagues for their significant contributions to the preparation of these reasons.

Lane J.

I agree. ___________________________

Chapnik J.

I agree. ___________________________

Smith J.

DATE: May 2007

SCHEDULE A

Building Code Act, 1992, S.O. 1992, c. 23

Role of various persons

1.1 (1) It is the role of every person who causes a building to be constructed,

(a) to cause the building to be constructed in accordance with this Act and the building code and with any permit issued under this Act for the building;

(b) to ensure that construction does not proceed unless any permit required under this Act has been issued by the chief building official; and

(c) to ensure that construction is carried out only by persons with the qualifications and insurance, if any, required by this Act and the building code.

Role of designers

(2) It is the role of a designer,

(a) if the designers designs are to be submitted in support of an application for a permit under this Act, to provide designs which are in accordance with this Act and the building code and to provide documentation that is sufficiently detailed to permit the design to be assessed for compliance with this Act and the building code and to allow a builder to carry out the work in accordance with the design, this Act and the building code;

(b) to perform the role described in clause (a) in respect of only those matters for which the designer has the qualifications, if any, required by this Act and the building code; and

(c) if the building code requires that all or part of the design or construction of a building be under general review, to perform the general review in respect of only those matters for which the designer has the qualifications, if any, required by this Act and the building code.

Issuance of permits

8. (2) The chief building official shall issue a permit [to construct or demolish a building] unless,

(c) a person who prepared drawings, plans, specifications or other documents or gave an opinion concerning the compliance of the proposed building or construction with the Building Code does not have the applicable qualifications, if any, set out in the Building Code or does not have the insurance, if any, required by the Building Code.

Referral of plans, etc.

(9) Upon reasonable grounds, the chief building official or registered code agency may refer drawings, plans or specifications accompanying applications for permits or the reports arising out of the general review of the construction of a building to the Association of Professional Engineers of Ontario or the Ontario Association of Architects for the purpose of determining if the Professional Engineers Act or the Architects Act is being contravened.

Same

(9.1) At the request of the Association of Professional Engineers of Ontario or the Ontario Association of Architects, the chief building official shall refer documents and information described in subsection (9) to those associations for the purpose of determining if the Professional Engineers Act or the Architects Act is being contravened.

Qualifications for designers

15.11 (5) A person is not eligible to engage in any of the following activities unless he, she or it has the qualifications and meets the requirements set out in the Building Code to be a designer:

1. Prepare a design or give other information or opinion concerning whether a building or part of a building complies with the building code, if the design, information or opinion is to be submitted to a chief building official in connection with (i) an application for a permit, (ii) [omitted] or (iii) a report described in paragraph 2.

2. If a general review of the construction of a building is required by the Building Code, prepare a written report based on the general review.

Same

(6) In subsection 5, “design” includes a plan, specification, sketch, drawing or graphic representation respecting the construction of a building.

Prohibition

(7) No person shall represent, directly or indirectly, that he, she or it has the qualifications or meets the requirements established under this section if the person does not have those qualifications or does not meet those requirements.

Regulations

34. (1) The Lieutenant Governor in council may make regulations governing standards for the construction and demolition of buildings, including,

35. requiring any part of the design, construction or demolition of a building to be under the general review of an architect as defined in the Architects Act or a professional engineer as defined in the Professional Engineers Act and that copies of reports arising from the general review be provided to the chief building official or to a registered code agency;

36. prescribing qualifications for chief building officials, inspectors, registered code agencies, designers and other persons referred to in section 15.12 and related matters including,

(i) requiring different qualifications for different classes of officials, inspectors, designers and other persons,

(ii) requiring assessments or examinations in connection with obtaining or maintaining the required qualifications,

(iii) [establishment of register of qualified persons];

(iv) [fees];

Building Code, O. Reg. 403/97

Section 2.3. Design and General Review

2.3.1. Design

2.3.1.1. Design by Architect or Professional Engineer

(1) Except as permitted in Sentences (2) and (3), the construction, including, for greater certainty, enlargement or alteration, of every building or part thereof described in Table 2.3.1.1. and this Article shall be designed and reviewed by an architect, professional engineer or both.

(2) An architect may provide the services within the practice of professional engineering in any building described in Table 2.3.1.1., or a professional engineer may provide the services within the practice of architecture in any building described in Table 2.3.1.1. where to do so does not constitute a substantial part of the services provided by the other profession related to the construction of the building and is necessary

(a) for the construction of the building and is incidental to the other services provided by the architect or professional engineer, or

(b) for coordination purposes.

Table 2.3.1.1.⁽⁴⁾

Design and General Review

Forming Part of Sentence 2.3.1.1.(1)

Building Classification by Major Occupancy

Building Description

Design and General Review by:

Assembly occupancy only

Every building

Architect and professional engineer⁽¹⁾

Assembly occupancy and any other major occupancy except industrial

Every building

Architect and professional engineer⁽¹⁾

Care or detention occupancy only

Every building

Architect and professional engineer⁽¹⁾

Care or detention occupancy and any other major occupancy except industrial

Every building

Architect and professional engineer⁽¹⁾

Residential occupancy only

Every building that exceeds 3 storeys in building height

Architect and professional engineer⁽¹⁾

Every building that exceeds 600 m² in gross area and that contains a residential occupancy other than a dwelling unit or dwelling units

Architect⁽²⁾

Residential occupancy only

Every building that exceeds 600 m² in gross area and contains a dwelling unit above another dwelling unit

Architect⁽²⁾

Every building that exceeds 600 m² in building area contains 3 or more dwelling units and has no dwelling unit above another dwelling unit

Architect⁽²⁾

Residential occupancy and any other major occupancy except industrial, assembly or care or detention occupancy

Every building that exceeds 600 m² in gross area or 3 storeys in building height

Architect and professional engineer⁽¹⁾

Business and personal services occupancy only

Every building that exceeds 600 m² in gross area or 3 storeys in building height

Architect and professional engineer⁽¹⁾

Business and personal services occupancy and any other major occupancy except industrial, assembly or care or detention occupancy

Every building that exceeds 600 m² in gross area or 3 storeys in building height

Architect and professional engineer⁽¹⁾

Mercantile occupancy only

Every building that exceeds 600 m² in gross area or 3 storeys in building height

Architect and professional engineer⁽¹⁾

Mercantile occupancy and any other major occupancy except industrial, assembly or care or detention occupancy

Every building that exceeds 600 m² in gross area or 3 storeys in building height

Architect and professional engineer⁽¹⁾

Industrial occupancy only and where there are no subsidiary occupancies

Every building that exceeds 600 m² in gross area or 3 storeys in building height

Architect or professional engineer⁽³⁾

Industrial occupancy and one or more other major occupancies where the portion of the area occupied by one of the other major or subsidiary occupancies exceeds 600 m²

The non-industrial portion of every building

Architect and professional engineer⁽¹⁾

The industrial portion of every building

Architect or professional engineer⁽³⁾

Industrial occupancy and one or more other major occupancies where no portion of the area occupied by one of the other major or subsidiary occupancies exceeds 600 m²

Every building that exceeds 600 m² in gross area or 3 storeys in building height

Architect or professional engineer⁽³⁾

Column 1

2

3

Notes To Table 2.3.1.1.

⁽¹⁾ An architect shall provide services within the practice of architecture and a professional engineer shall provide the services within the practice of professional engineering.

⁽²⁾ An architect may engage a professional engineer to provide services within the practices of professional engineering.

⁽³⁾ Only a professional engineer may provide services within the practice of professional engineering.

⁽⁴⁾ Requirements for design and general review by an architect or professional engineer or a combination of both for the construction, enlargement or alteration of a building are set out in the Architects Act and the Professional Engineers Act.

(3) The requirement for an architect does not apply to the preparation or provision of a design for interior space for a building, including finishes, fixed or loose furnishings, equipment, fixtures and partitioning of space, and related exterior elements such as signs, finishes and glazed openings used for display purposes, that does not affect or is not likely to affect

(a) the structural integrity,

(b) a fire safety system or fire separation,

(c) a main entrance or public corridor on a floor,

(d) an exit to a public thoroughfare or to the exterior,

(e) the construction or location of an exterior wall, or

(f) the usable floor space through the addition of a mezzanine, infill or other similar element, of the building.

(4) Where a building or part of it described in Table 2.3.1.1. is designed by an architect or a professional engineer or a combination of both as required by this Article, all plans, sketches, drawings, graphic representations, specifications and other documents that are prepared by an architect, professional engineer or both and that form the basis for the issuance of a permit under Section 8 of the Act or any changes to it authorized by the chief building official shall bear the signature and seal of the architect, professional engineer or both, as applicable.

(5) Where the foundations of a building are to be constructed below the level of the footings of an adjacent building and within the angle of repose of the soil, as drawn from the bottom of the footings, the foundations shall be designed by a professional engineer.

(6) The thermal design of a building in accordance with Section 9.38. shall be prepared and provided by an architect or professional engineer or a combination of both.

2.3.2. General Review

2.3.2.1. General Review by Architect or Professional Engineer

(1) Except as permitted in Sentence (2), a person who intends to construct or have constructed a building required to be designed by an architect, professional engineer or both, shall ensure that an architect, professional engineer or both are retained to undertake the general review of the construction of the building in accordance with the performance standards of the Ontario Association of Architects or the Association of Professional Engineers of Ontario, as applicable, to determine whether the construction is in general conformity with the plans, sketches, drawings, graphic representations, specifications and other documents that are prepared by an architect, professional engineer or both and that form the basis for the issuance of a permit under Section 8 of the Act or any changes to it authorized by the chief building official, copies of written reports arising out of the general review shall be forwarded to the chief building official or registered code agency, as the case may be, by the architect, professional engineer or both who have been retained to undertake the general review of the construction of the building.

(2) An architect or a professional engineer need not be retained to undertake the general review of construction of a building where the building is designed in accordance with Section 9.38.

2.3.2.2. Restriction for General Review

(1) Only an architect may carry out or provide the general review of the construction of a building

(a) that is constructed in accordance with a design prepared or provided by an architect, or

(b) in relation to services that are provided by an architect in connection with the design in accordance with which the building is constructed.

(2) Only a professional engineer may carry out or provide the general review of the construction of a building

(a) that is constructed in accordance with a design prepared or provided by a professional engineer, or

(b) in relation to services that are provided by a professional engineer in connection with the design in accordance with which the building is constructed.

2.3.2.3. Demolition of a Building

(1) The applicant for a permit respecting the demolition of a building shall retain a professional engineer to undertake the general review of the project during demolition, where

(a) the building exceeds 3 storeys in building height or 600 m² in building area,

(b) the building structure includes pre-tensioned or post-tensioned members,

(c) it is proposed that the demolition will extend below the level of the footings of any adjacent building and occur within the angle of repose of the soil, drawn from the bottom of such footings, or

(d) explosives or a laser are to be used during the course of demolition.

Section 2.17. Qualifications for Designers

2.17.1.1. Scope

(1) This Section prescribes, for the purposes of Clause 8 (2) (c) and Subsection 15.11 (5) of the Act, the qualifications for a person who carries out design activities after December 31, 2005.

2.17.4. Qualifications — Persons Engaged in the Business of Providing Design Activities to the Public

2.17.4.1. General

(1) Except as provided in sentences 3 and 4, every person engaged in the business of providing design services to the public after December 31, 2005, must have the following qualification:

(a) The person must be registered with the director.

2.17.4.2. Registration and Renewal of a Registration

(1) [The Director may register an applicant if]

(a) the applicant…has successfully completed the [Minster’s] examination program relating to the person’s knowledge of this Act and this Code;

(b) all persons who will review and take responsibility for design activities provided to the public…have successfully completed the examination program administered or authorized by the [MMAH]…relating to the person’s knowledge of this Act and of this Code.

(c) the applicant…is covered by the insurance required under Subsection 2.21.2. during the term of the registration applied for, …

2.17.4.9. Suspension, Revocation, Refusal to Register or Renew a Registration

(1) The Director may in the circumstances set out in sentence (2):

(a) refuse to register an applicant or to renew a registration, or

(b) suspend or revoke a registration.

(2) The circumstances referred to in sentence (1) are:

(a) the registered person is in contravention of the Act or this Code;

(b) the registered person is in breach of a condition of the registration…

(d) the director is of the opinion that the past conduct of the applicant or registered person…affords reasonable grounds for belief that the business …authorized by the registration will not be carried on in accordance with law.

[^1]: Intervenor’s Factum at para. 20 (emphasis in original).

[^2]: Professional Engineers Act, s. 1.

[^3]: “design” means a plan, sketch, drawing, graphic representation or specification intended to govern the construction, enlargement or alteration of a building or a part of a building.

[^4]: Professional Engineers Act, s. 12 (6); Architects Act, s. 11.

[^5]: Professional Engineers Act, R.R.O. 1990, Reg. 941, ss. 47-49, 72, 74 and 78.

[^6]: Building Code Act, ss. 1.1 and 15.11 (5).

[^7]: Building Code Act, s. 8 (2) (c).

[^8]: Building Code Act, s. 34 (1) 10.

[^9]: Building Code Act, ss. 8 (9) and (9.1).

[^10]: Due to a negotiated agreement with MMAH architects are exempt from these Building Code provisions. Regulations under the Architects Act establish a similar regulatory scheme.

[^11]: Professional Engineers Act, R.R.O. 1990, Reg. 941, ss. 1, 33.

[^12]: Professional Engineers Act, ss. 12 (1) and (2).

[^13]: Professional Engineers Act, R.R.O. 1990, Reg. 941, s. 74.

[^14]: Professional Engineers Act, ss. 33, 72, 77.

[^15]: Professional Engineers Act, ss. 14 (2), 15 (8) (a), 18 (2) (a), 28 (4) (a) and (b).

[^16]: E. A. Driedger The Construction of Statutes (Toronto: Butterworths, 1974) at 67.

[^17]: Peter W. Hogg, Constitutional Law of Canada, 4th ed. (Scarborough: Carswell, 1997) at 16-1 fn 2.