What Constitutes an Appealable “Decision” Under the Building Code Act?

In a rare decision on the topic, the Ontario Superior Court has specified criteria for determining what exactly constitutes a “decision” of a Chief Building Official (CBO) under the Ontario Building Code Act (BCA). The Court found that BCA appeals must relate to a decision on an established (rather than potential) set of facts, which the official was called upon to make, was empowered by the BCA to make, and did make.

Factual Background

The case of 1353837 Ontario Inc. v. Pigozzo forms part of ongoing litigation over the “Cooper Site” in Stratford, Ontario, which the Grand Trunk railway operated as a repair facility for steam locomotives from the 1870s until the 1960s. The corporate Applicant took ownership in 2001 with plans to redevelop the abandoned site but became involved in litigation with the City of Stratford (which expropriated the lands eight years later). That litigation continues to this day.

In April 2015, the City of Stratford’s independent CBO issued an Unsafe Order requiring the City to address unsafe conditions at the Cooper Site. The City conducted remedial work and a successor CBO later rescinded the Unsafe Order, but not before the Applicant brought proceedings asserting that the Unsafe Order had been an attempt to interfere with its rights to the Cooper Site.

The alleged “decision” in this case occurred in early 2018. A new CBO had been appointed, and the Applicant contacted him to request confirmation that the Applicant would be considered an “aggrieved party”.  (“Aggrieved” is a term that appears in the BCA in relation to whether a person has the right to challenge a CBO’s order or decision.) The CBO directed the Applicant to his lawyers, who responded to the Applicant’s lawyers as follows:

[W]e can advise that it is [the CBO’s] position that [the Applicant] is not an aggrieved person in respect of the Unsafe Order.

The Applicant claimed that this response was a new CBO’s decision. It brought a motion to amend its 2015 Notice of Application (appealing the Unsafe Order) by adding an appeal of the new “decision”.

Decision

Appeals under the BCA are governed by Subsection 25(1), which reads as follows:

25. (1)   A person who considers themselves aggrieved by an order or decision made by the chief building official, a registered code agency or an inspector under this Act (except a decision under subsection 8(3) not to issue a conditional permit) may appeal the order or decision to the Superior Court of Justice within 20 days after the order or decision is made.

In dismissing the Applicant’s motion, the Court held that while the CBO’s statement of position might be a “decision” in the everyday sense of the word, it was clearly not a “decision” within the meaning of s. 25(1) of the BCA.

The Court began by observing the longstanding principle that statutory language must be read in its grammatical and ordinary sense and in its entire context, including the object of the Act and intention of the Legislature. In drafting the BCA, the Legislature intended to create a complete code dictating the “regulation of construction, maintenance and demolition of buildings, or any material part thereof”.

The Court found three distinct reasons to conclude that the statement of position was not a “decision” appealable under the BCA:

  • First, only a Court determines whether someone is an “aggrieved person” for BCA purposes – i.e., whether someone has the legal right to bring a BCA appeal. If that decision were left to building officials, they could use it to shield their decisions from appeal and thwart the appeal process that the Legislature intended to create. Accordingly, while the CBO may form and express a view regarding “aggrieved person” status, that is not a decision of the CBO under the BCA and so is not capable of appeal.
  • As a separate matter, subsection 25(1) of the BCA is expressly limited to decisions “made” by the CBO, which the Court interpreted to mean an extant decision that the CBO was called to and did make in relation to an established set of facts. The Court concluded that the subsection does not grant appeal rights in relation to possible or future decisions, even if a CBO expresses intentions regarding future decisions.
  • Finally, subsection 25(1) appeal rights are limited to decisions made “under the Act”, which the Court explained as “an order or decision [a BCA official] is empowered and directed to make pursuant to the provisions of the legislation”. The Court found no BCA provision empowering or directing the CBO to make the statement that the Applicant sought to appeal.

This case may help parties in future municipal disputes to determine when to use the BCA appeal route over other strategies.

Kitchener Waterloo Lawyers for Municipal and Planning Matters

The municipal lawyers at Duncan Linton LLP act regularly on behalf of municipalities, public sector actors, landowners, developers, builders, and individual actors. If you have a potential municipal law matter, speaking to an experienced municipal lawyer can help you make well-informed decisions.  Contact us online or call 519-886-3340 to make an appointment with one of our lawyers.