SEE YOU IN COURT Implications of PEO’s Building Code Legal Challenge Victory

1. SEE YOU IN COURTImplications of PEO’s Building Code Legal Challenge Victory Bruce G. Matthews, P.Eng. Deputy Registrar, Regulatory Compliance Professional Engineers Ontario CLEAR Conference September 27, 2008

2. Background • Professional Engineers Act • Establishes Professional Engineers Ontario as the regulator • Defines primary and secondary objects of PEO • Building Code Act • Establishes the framework for regulation of construction • Regulations known as the “Ontario Building Code” • Demand-side legislation re: engineers and architects • Code enforcement is the responsibility of individual municipalities

3. Building Regulatory Reform Action Group (BRRAG)Final Report (July 31, 2001) • Mandate as “to prepare a report and make recommendations to address longstanding concerns with the way in which new construction is reviewed, approved and inspected in Ontario. • BRRAG was also asked to examine the accountability that exists among key practitioners in the design, construction and approvals process and the overall framework for Building Code enforcement and administration. • The objectives cited in reviewing these issues were: • improving public safety; • streamlining delivery of building-related inspection and review services; • improving the construction liability regime; and • streamlining code administration, appeal and dispute resolution mechanisms • Foundation for Bill 124 (Building Code Statute Law Amendment Act)

4. View from the Opposition Bench . . . Ontario Hansard - 06-June2002 - Bill 124 • What happened? Why did the government reject many of the recommendations their own experts offered to them as a comprehensive package, and how did some of the other things get in the bill that were either rejected or never supported by their own experts? That's a very good question. How did that happen? Why did that happen and what can we do about it? • The government needs to have an ability for the stakeholders to come and talk about why they recommended a certain course of action, why things aren't the way it was proposed, what things have made their way into Bill 124 that were never contemplated or were out-and-out rejected, and have those amendments put and have them supported and have this bill work in a way that's going promote public safety, efficiency in the building industry and a streamlined process. David Caplan Opposition Critic

5. Building Code Statute Law Amendment Act, 2002 (Bill 124) and Regulation 305/03 • PEO publicly acknowledged that the new Act had many improvements • However, it required that all professional engineers submitting designs for building permits must meet qualifications established in the Regulation by passing examinations on their knowledge of specific sections of the Ontario Building Code related to the service they provide as of January 1, 2006.

6. PEO’s Concerns • These amendments increase bureaucracy and require licence holders to undergo additional external qualification processes in order to continue design and general review practices. • Decreased accountability. • The new regime in the Ministry of Municipal Affairs duplicated the work being done by Professional Engineers Ontario. • PEO frustrated as no data has ever been present to the building industry that support the need of the new regime. • What’s the problem? • Numerous meetings with government to express concerns

7. Now as Government . . . the position changes

8. PEO’s POSITION • The comprehensive licensing and regulatory scheme afforded by the Professional Engineers Act , under which PEO licence holders are fully governed by PEO, protects the public well. • PEO licence holders must always make responsible provision for complying with applicable statutes, regulations, standards, codes, by-laws and rules in connection with work being undertaken by or under their responsibility.

9. PEO’s POSITION • Qualifications, scopes of practice, and standards of practice for PEO licence holders are the exclusive jurisdiction of the Professional Engineers Act. • Building Code Identification Numbers (BCINs) are not needed by any holder of any licence or certificate issued under the Professional Engineers Act. • The use of BCINs by PEO licence holders is not replaced by the use of their seals. The two forms of identification are not synonymous. • The use of the seal is governed by section 53 of Regulation 941/90, made under the Professional Engineers Act.

10. PEO’s POSITION • Where work prepared or reviewed by licence holders is not sealed, they may sign their names, followed by their P.Eng. designation (if applicable), and include their PEO licence number on the work, so building officials know the work has been prepared by a PEO licence holder and does not require a BCIN. • Building officials may check a licence holder’s licence status with PEO by consulting the online directory at www.peo.on.ca, which can be searched by name, or by licence or certificate number.

11. PEO’s POSITION • PEO licence holders undertaking such work are accountable to PEO for their work. • Those responsible for professional engineering work, including building officials, must be holders of a licence to practice professional engineering, regardless of whether they have qualified and registered as specified in the Ontario Building Code, and are accountable to PEO for their work.

12. THE ISSUE OF IMPLICATIONS OF PEO’S BUILDING CODE LEGAL CHALLENGE VICTORY

13. Background • On March 20, 2006, PEO applied to the Ontario Superior Court of Justice to clarify the application of amendments to the Ontario Building Code that became effective on January 1, 2006. • The amendments purported to require licensed professional engineers to qualify and register under a housing ministry certification scheme to engage in building-related design and general review of construction activities.

14. Background • PEO had long argued the Building Code amendments duplicated, contradicted and otherwise interfered with its exclusive statutory role to licence, discipline and regulate its members and the amendments were not authorized by the Ontario Building Code Act, 1992. • On May 17, 2007, the court ruled for PEO, finding that certain articles of the Building Code are invalid. It also held that certain provisions of the Building Code Act and the Building Code conflict with the exclusive regulatory jurisdiction of PEO and do not apply to any holder of any licence or certificate issued under the Professional Engineers Act.

15. The court made four major findings: • One clause in the amendments purports to allocate responsibility for designs between professional engineers and architects and was therefore invalid; • One clause is not authorized within the regulation making powers of the Building Code Act and is invalid and therefore does not apply to PEO and its licence and certificate holders;

16. Findings continued: • Certain parts of the Building Code Act conflict with the exclusive regulatory jurisdiction of PEO and do not apply to any holder of any licence or certificate issued under the Professional Engineers Act; and • One aspect of the amended Ontario Building Code conflicts with the exclusive regulatory jurisdiction of PEO and does not apply to any holder of any licence or certificate issued under the Professional Engineers Act.

17. Following the Decision • On May 30, 2007, PEO was informed by the province’s legal counsel that the province would not be appealing the decision and advised that the ministry intended to work with stakeholders, including engineers, architects and building officials, to monitor the implications of the court’s decision on the administration and enforcement of the Building Code Act, 1992, and the Ontario Building Code.

18. Key Points • Technical legal argument based on jurisdiction • A general Act (the Building Code Act) does not supercede a specific Act (the Professional Engineers Act) unless it specifically states it does. • Regulations (Building Code) are subordinate to statute (Building Code Act) and thus everything within the regulation must be duly authorized by the Act. • Establishes precedent for all regulated professions in Canada regarding exclusive jurisdiction

19. Following the Decision • In September 2007, the Ontario Superior Court of Justice found that PEO was entitled to “substantial indemnity costs” for its defence of engineering self-regulation and awarded PEO $75,000. • Significant progress on two other “qualified persons” regimes have been made and we expected them to be completely dismantled by year-end.

20. Residual Issues • PEO members have reported that some Building Departments will not accept their work in support of a building permit application without a BCIN, if the work is not sealed. • A March 31, 2008 letter from the chair of EABO (an Engineers, Architects and Building Officials joint committee) states as a concern that Building Officials may “no longer have the tools they need to enforce the legal requirements for professional design standards”.

21. Impact on Public Interest • PEO is concerned that some Building Departments believe that as a result of the court decision they cannot enforce the legal requirements for professional design standards. • It is unclear to PEO how the court decision has had any affect on professional design standards, since it said only that holders of PEO licences no longer require BCINs and the allocation of responsibility between engineers and architects is properly within the jurisdiction of the Professional Engineers Act and the Architects Act.

22. Impact on Public Interest • Building officials are still required to ensure designs comply with all Building Code design standards for public safety protection. • PEO is troubled that Building Officials appear still to seek to include within the Building Code Act or the Building Code sections or articles establishing qualifications for PEO licence holders for the purpose of issuing a building permit and allocating responsibility to engineers and/or architects.

23. Impact on Public Interest • In striking down sections of the Building Code Act and of the Building Code, the court upheld the exclusive regulatory jurisdiction of PEO over holders of any licence or certificate issued under the Professional Engineers Act. • The decision of the three Justices was very clear that it is the responsibility of the Ontario Association of Architects (OAA) and PEO to establish and enforce standards of practice and scopes of practice for architects and PEO licence holders.

24. Impact on Public Interest • As a regulator, PEO cannot support overlapping legislative responsibility for its licence holders. Overlapping and/or conflicting legislation is confusing to practitioners and the public, and unnecessarily increases regulatory burden. • The Building Code and the Professional Engineers Act are meant to be complementary: • the Building Code deals with the public safety objectives of buildings; • the Professional Engineers Act deals with the qualifications of the professionals who interpret the Building Code safety requirements and establish public accountability mechanisms for their professional practice.

25. Impact on Public Interest • PEO Council is willing to use its regulation-making powers under the Professional Engineers Act to ensure the protection of the public, if there are identified problems with the qualifications, scopes of practice or standards of practice of the holder of any licence or certificate issued by PEO.

26. Questions and Answers • PEO updates its Questions and Answers document on the Building Code legal challenge victory with the subsequent issues arising and republishes on its website at: www.peo.on.ca/registration/Building_Regulation_Registration_Program.htm. • The website page also includes links to the legal decision (www.peo.on.ca/Legal/2007canlii.pdf) and • Ministry of Municipal Affairs and Housing’s Questions and Answers (www.obc.mah.gov.on.ca/Page2955.aspx).