Regulation & Administration of Construction

1. Regulation & Administration of Construction CE 402 - Jim White, P.Eng.

2. Who Regulates and Administers Construction? • Federal Government? • no real authority under constitution, except for special areas, such as navigable waters, railways, airports, etc. • NBC by NRC, but only given authority via provincial adoption, e.g. BCBC • The National Building Code evolved a model code to be implemented by being adopted by the provincial authorities. • The first NBC was published in 1941 to promote uniform standards

3. Who Regulates and Administers Construction? • Provinces? • Have the bulk of the authority under the constitution. • Delegate much of this authority to municipalities, and to other organisations. • Most Provinces and Territories adopt NBC. • HOW? by legislation, and regulations, esp. Local Government Act. and administrative bodies e.g. WCB Act, Engineers and Geoscientists Act, Architects Act, etc.

4. Who Regulates and Administers Construction? • Municipalities? • receive authority from Province within boundaries prescribed in LGA, Part 21, Building Regulations • Have prescribed authority to make law via by‑laws, but cannot conflict with provincial law, only add to it, within specific areas delegated. • LGA, s.694(1)(e) Building Permits & Inspection • These enable, don't oblige, municipalities to regulate construction by requiring BP

5. Who Regulates and Administers Construction? • If municipality doesn't, no duty • If it does, obliged to do so reasonably • Rationale? - Residents know there's a regulatory scheme in place; - Reasonably assume that the scheme imposes minimum standards on construction. • LGA, s.694(1)(d) Occupancy Permits; - Enables municipality to forbid occupancy till administrative hurdles complied with

6. Who Regulates and Administers Construction? • LGA, s.699(2) Geotechnical P.Eng. Certification may be required • LGA, s.699(6) Conditional Geotechnical Certification • Covenant, Registered at LTO, required where land is subject to geotechnical hazards: flood, landslide, etc. • LGA, s.692 B.C. Building Code • applies to all Municipalities and Regional Districts but NOT outside them

7. Who Regulates and Administers Construction? • Minister may make regulations for administration of the code and regulations. • LGA, s.700 Contravention of Bylaws ‑ Filing in LTO • (1) Where, during the course of carrying out his duties, a building inspector • (a) observes a condition, with respect to land or a building or structure, that he considers • (i) results from the contravention of, or is in contravention of a bylaw or regulation under of Part 21 or under any other enactment ...

8. Who Regulates and Administers Construction? LGA, s.1 "Municipality" excludes Vancouver • Montreal and Vancouver are the only charter cities in Canada • They write their own building codes, unlike other municipal jurisdictions, which are stuck with their provinces' codes. • Everything is just a little different in Vancouver: different building code (Vancouver Building By‑Law etc.) • Different legislation, etc. BUT everything is similar enough that it doesn't really matter for your purposes now. • Just need to know there are differences, and you have to be aware of them when working in Vancouver. • Vancouver sometimes implements new ideas which are later adopted by the other Muni's; e.g. CP program; new building envelope guidelines

9. Other Bodies • Workers Compensation Board / Worksafe • receives authority from Province to make regulations for safety, and to administer them. • System of insurance for workers. Funded by levy on payrolls. • Also provides immunity to employers from suits by injured employees.

10. Other Bodies • APEGBC and AIBC receive authority from the Province to regulate members and establish practice guidelines, entrance requirements, disciplinary matters, ethical guidelines • Other Agencies: • e.g. CSA, NRC, ASTM, ANFPA, ULC, BCCA • establish codes which have no legal validity per se, and may not even be Canadian, but are given authority where adopted by Province or Municipality.

11. Other Bodies • Homeowner Protection Act and Office • HPA requires licensing of contractors and mandatory warranties on most new residential construction. • Warranties 2 to 10 years HPO administers this plus low interest reconstruction loans.

12. BC Building Code • A regulation under the LGA; a modified NBC. • A set of minimum provisions respecting the safety of buildings. • Changes every 5 years or so; • Last revision Fall 2012, reorganized and separated into Divisions A, B and C. • Changed little for ordinary construction.

13. BC Building Code • Definitions (Application) • Applies primarily to buildings, being things meant to be occupied by people or animals.

14. BC Building Code • In many cases that end up in disputes, they arise due to misunderstandings and misinterpretations of information. • Soil or rock? • Here, they define "soil" as being readily separated by agitation in water: a reasonable concept.

15. BCBC: Administration • s.2.1 Application • s.2.1.2, Part 3, 4, 5, & 6 Apply to most buildings > 600 s.m. or > 3 storeys (commonly referred to as "Part 4" buildings) • Residential and other low hazard occupancies, except farm buildings (special code) • s.2.1.3, Part 9 applies to most buildings < 600 s.m. and 3 storeys (commonly referred to as "Part 9" buildings).

16. BCBC: Administration • 2.2 Climatic Data - for design - minimums • 2.3 Plans, Specifications and Calculations • Minimum information requirements and presentation standards, • sealing of drawings, minimum scales, references to survey control, • fire protection references, plumbing and HVAC references.

17. BCBC: Administration • 2.3.4 Structural & Foundation Drawings and Calculations • Seal of structural designer for part 4 buildings • 2.5.2 Structural Equivalents allows custom or unusual design not necessarily complying with Part 4, where carried out by "a person especially qualified" by (a) analysis based on established theory, (b) full scale load tests, (c) studies or model analogues

18. Professional Design and Review • PD&R required for (a) Part 3 and (b) Part 4 buildings, and (c) buildings with common egress systems requiring firewalls • LGA, s.695 Certification by Engineer or Architect • Letters of Assurance, where site conditions, size or complexity of development warrant. Letters of Assurance Guide • LGA, s.694(5) Reduced Permit Fee; Relying on P.Eng.

19. Professional Design and Review • Letters of Assurance • Owner must retain a Coordinating Registered Professional. • Owner and CRP must submit schedules A and B before a Building Permit issued. • Schedule C before Occupancy Permit. • Schedule A : Confirmation of Commitment by Owner and by Coordinating Registered Professional (one only) • to coordinate the design work and field reviews of the registered professionals on the project.

21. Professional Design and Review • A‑2.6.2.1(1)(a) Coordinating Registered professional is responsible for ensuring someone signs for each relevant code‑related aspect, on B1 or B2. • 1(2) record field reviews and corrective action taken as a result, and make available to the authority.

24. Professional Design and Review • 1(3) seal plans submitted with application for BP, provide a schedule C on completion, and ensure necessary field reviews are completed. • This is an independent legal duty, not necessarily found in the engagement.

25. Professional Design and Review • Division C, 2.2.7: Duties on Termination of Registered Professional important • Often arises from a fee dispute. • 1(1) Both Owner and CRP must notify the Authority if CRP terminated. • 1(2) Any RP must notify Authority if terminated 1(3) before termination, or if impossible, ASAP upon termination • 1(4) Owner mustn't terminate any, unless immediately replaced

28. Professional Design and Review • Certified Professional (CP) Program: • Code Specialists • Under this program the owner retains a CP - an Engineer or Architect with extensive code knowledge. • The CP assures that the design complies with the code, and BP application receives much less scrutiny. • Reduced BP fee is charged and BP turnaround is faster.

29. Municipal Liability in Inspection • The original English case was first applied by the Supreme Court of Canada in Kamloops v. Nielsen in 1982. • If a municipality undertakes to regulate construction, it will be liable to those who suffer losses due to defective construction which should have been detected by municipal inspectors. • Since 1982, the cases have clarified the sorts of situations in which the courts will impose liability. • Individual building inspectors have not been held personally liable.

30. Municipal Liability in Inspection • Harnett v. Wailea [1989] B.C.J. No. 497 • Delta failed to warn of bad ground due to garbage. • Municipality knew about the garbage and the special foundation needs of the lots. • The plaintiffs visited Municipal hall and asked for anything they had for the design of a house. • Municipality said nothing about garbage on the site, etc. • Duty imposed by the fact Delta chose to regulate construction.

31. Municipal Liability in Inspection • Limits on Liability • LGA, s.285 Limitation ‑ Must Sue within 6 Months • BUT, only for limited things, not for negligence, which is the primary area in construction; Gringmuth v. North Van 2002 BCCA 61. • LGA, s.286 Must Notify within 2 Months • LGA, s.755.1 No Personal Liability for Municipal Officers • (1) for actions in the course of duties (3) unless dishonest, grossly negligent, malicious or wilful, defamation (4) this doesn't protect the body, just the individual

32. Municipal Liability in Inspection • LGA, s.290 No Liability ‑ Relied on Designer • Dha v. Ozdoba, (1990) 39 C.L.R. 248 (B.C.S.C.) • Non‑complying, but Municipality Relied on Engineer or Architect to certify compliance (note where this is the case, reduced fee available for permit, under s.734(7)).

33. Municipal Liability in Inspection • Vancouver Charter, s.294(8) No Cause of Action: Inspection and Approvals • Goes way beyond any LGA limits on liability, specifying there is no legal duty on which a cause of action can be based. • Confirmed in Kaiser v. Bufton's Flowers, City of Vancouver & others (1994) 97 BCLR (2d) 166 (BCSC) • Protect Vancouver by eliminating any duty of care.

34. Practical Law of Architecture, Engineering, and Geoscience Chapter 22 Health and Safety Law

35. Overview: WCB • Workers Compensation Board dba Worksafe BC. • legislation is designed to protect workers from injury and to compensate those that are injured • In exchange for compensation under Occupational Health & Safety legislation, workers give up their right to sue their employers for personal injury (Continued)

36. Overview (Continued) • legislation is based on three fundamental rights of workers: • the right to be informed of hazards; • the right to participate in accident prevention; and • the right to refuse to do dangerous work • regulations are enforced by site visits by government enforcement officials

37. Torts and Workers' Compensation Board (WCB) Legislation • WCB legislation provides workers with no-fault compensation for workplace injuries • Employers may still be sued by injured persons who are not employees

38. Occupational Health and Safety • legislation improves working conditions through mandatory safety requirements, enforceable by fines imposed on employers and their officers and directors • When accidents do occur, employers are required to follow strict documentary procedures

39. Contracts • Contracts may deal with specific safety issues and designate particular parties responsible for particular safety obligations • Under construction contracts, contractors often indemnify the owner against claims for personal injury on site • On a given worksite, a single party must be responsible for safety at any time, but the designated party may change as the project progresses • If there is any doubt as to who is the responsible party, responsibility reverts back to the owner

40. Ethical Considerations • Architects, engineers and geoscientists are often required to monitor safety concerns • Pressure can come from clients and contractors to take a relaxed approach. • Safety costs time and money, • Professionals must firmly adhere to the safety standards set by regulation and remember that their primary ethical obligation is to protect public safety