Role of the Building Official in the Case of Complex Buildings

1. Role of the Building Official in the Case of Complex Buildings Tom Barnes Jeff Locke Building Officials Association of BC – 2016 AGM

2. Background – Local Government Authority and Purpose of Building Registration • Purpose of mandatory construction regulation = promote building safety by best ensuring that construction meets the minimum requirements of the Building Code • Heart of the purpose = LGA Section 298(2)(d) - “the health, safety or protection of persons or property”

3. General Building Inspection Legal Duty and Liability Exposure • In order to address liability exposure, important to understand its legal evolution …. • Duty of care arises from decision to enter into the field of building inspections - Kamloops v. Neilsen [1984 SCC] • Duty of care is owed to owners, owner-builders, subsequent owners and occupiers

4. General Building Inspection Legal Duty and Liability Exposure • Standard of care for inspections is not “perfection” but rather to identify and address “defects as it could reasonably be expected to have detected and to have ordered remedied.” - Rothfield [1989 SCC]

5. General Building Inspection Legal Duty and Liability Exposure • The scope of building elements for which inspection is required will be based upon the scope of the adopted building bylaw - Strata Plan NW3341 (“Riverwest”) v. Canlan Ice Sports Corp [2001 BCSC]

6. Building Permit Administration Methods in the Case of Complex Buildings • Two alternatives for construction scrutiny – either through: • Building Officials; or • Registered Professionals • In both cases, the objective is to ensure Code compliance.

7. Inspection Authority Liability Analysis for Conventional Inspections • Based on an evaluation of the adequacy of plan review and inspections (including follow up) for all relevant areas of the Code and building bylaw. • Legal analysis largely based on an examination of inspection records as compared to subsequently-revealed construction deficiencies.

8. Inspection Authority Liability Analysis for Reliance on Registered Professionals • For Inspection Authorities, this is a “reliance-based” position arising from: • A “policy decision” to rely on Registered Professionals; and/or • Meeting the “standard of care” through reasonable reliance on “experts”.

9. Registered Professional “Policy Decision” • Courts recognize that governments must be free to make certain kinds of decisions – e.g. certain economic, social and politically influenced decisions. • Courts have endorsed the “policy decision” to best ensure Code compliance through Registered Professional assurances.

10. “Reasonable Reliance” on Registered Professionals • “Standard of care” met through reasonable reliance on experts. • In law, Registered Professionals are “experts” and are considered as having superior expertise to Building Officials. • Building Officials may rely on Registered Professionals to meet the “standard of care”

11. The Importance of True Reliance • The heart of the Inspecting Authority’s protection is true reliance on Registered Professionals • “True reliance” means: - Sole and exclusive reliance - Not possessing information to the contrary of assurances

12. Liability Exposure Problems in the Case of Registered Professional Building Review • Roots of two challenges: • Inspecting authorities have an interest in keeping a watch over construction progress • Inspectors are trained to inspect and want to inspect

13. Problem #1 - Registered Professional Reliance + Building Inspections • Conducting building inspections triggers the legal duty to identify and address “defects as it could reasonably be expected to have detected and to have ordered remedied”. • As such, conducting building inspections are legally incompatible with purporting to place reliance on Registered Professional assurances. • Recommendation #1 – Do one or the other, but not both.

14. Problem #2 – The Challenge of “Reasonably Observable” Construction Defects • The majority of building bylaws now contemplate building officials engaging in “monitoring” the progress of construction of complex buildings. • This is a compromise which is intended to facilitate access to construction sites without defeating “reliance” placed on Registered Professional assurances.

15. Problem #2 (cont.) – The Challenge of “Reasonably Observable” Construction Defects • Duty arising from “monitoring visits”= report and follow up on “noticed defects” • Recommendation #2 = Create a separate “Monitoring Notice” form for this purpose and do not use an “Inspection Report”

16. Problem #3 – Failure To Report or Follow Up on “Noticed Defects” • A failure to report and follow up upon “noticed defects” during a Monitoring Visit may open up liability expose • Recommendation #3 = Develop a protocol for (1) reporting such defects to the CRP / relevant Registered Professional and, preferably, to the owner / general contractor, and (2) follow up to ensure the concern has been addressed.

17. Problem #4 – Use of “Inspection” Forms for Monitoring Visits • In litigation …… Perception = Reality • If you use an “Inspection Report” for a “Monitoring Visit” you will put yourself in the position of later having to convince a lawyer that you did not “inspect”.

18. Preferred Building Office Role in the Case of Registered Professional Building Review • Preferred role in the context of Registered Professional Building Review is not as an inspector, but as a Building Permit administrator, and: • Support true reliance by following policy to its letter. • Ensure that all written assurances are obtained. • Report and follow up upon any observed deficiencies.