Ingles v. Tutkaluk Construction Ltd.

Ingles v. Tutkaluk Construction Ltd.
Collection
Supreme Court Judgments
Date
2000-03-02
Neutral citation
2000 SCC 12
Report
[2000] 1 SCR 298
Case number
26634
Judges
L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
Ontario
Subjects
Municipal law
Torts
Notes
SCC Case Information: 26634
Decision Content
Ingles v. Tutkaluk Construction Ltd., [2000] 1 S.C.R. 298
James Ingles Appellant
v.
The Corporation of the City of Toronto Respondent
Indexed as: Ingles v. Tutkaluk Construction Ltd.
Neutral citation: 2000 SCC 12.
File No.: 26634.
1999: October 8; 2000: March 2.
Present: L’Heureux‑Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the court of appeal for ontario
Negligence -- Duty of care -- Municipalities -- Building inspection -- Homeowner engaging contractor to renovate house -- Owner aware that building permit required in order to obtain inspection of work -- Owner accepting contractor’s advice to commence construction prior to obtaining building permit -- Construction partially completed when permit obtained -- Building inspectors unable to inspect critical aspect of construction and relying on contractor’s assurances that it conformed to building code -- Work proving defective -- Owner paying for extensive repairs and suing municipality for negligent inspection -- Whether municipality owed duty of care to owner in conducting inspection -- Whether owner’s conduct absolved municipality of all or part of its liability.
Municipal law -- Building inspection -- Negligence -- Municipal liability -- Duty of care -- Homeowner engaging contractor to renovate house -- Owner aware that building permit required in order to obtain inspection of work -- Owner accepting contractor’s advice to commence construction prior to obtaining building permit -- Construction partially completed when permit obtained -- Building inspectors unable to inspect critical aspect of construction and relying on contractor’s assurances that it conformed to building code -- Work proving defective -- Owner paying for extensive repairs and suing municipality for negligent inspection -- Whether municipality owed duty of care to owner in conducting inspection -- Whether owner’s conduct absolved municipality of all or part of its liability.
The appellant hired a contractor to renovate his basement. This project required the installation of underpinnings under the existing foundation to prevent the walls from cracking and the home from collapsing. Although the contract specified that the contractor would obtain a building permit prior to commencing construction, and the appellant wanted the permit obtained and inspection made, the contractor convinced him that construction should commence before the building permit was obtained. By the time the permit was issued, the underpinnings had been completed, but were concealed by subsequent construction. It was impossible to determine with a visual inspection whether the underpinnings conformed to the building code. Because it was raining the day of the first inspection, the inspector could not dig a hole next to the underpinnings to determine their depth. He relied instead upon the contractor’s assurances that the underpinnings were properly constructed, without verifying this information, except for an examination of the concrete. The appellant began to experience flooding in the basement shortly after the construction had been completed. He hired another contractor, who determined that the underpinnings were completely inadequate and failed to meet the standard prescribed in the Building Code Act, and who made the repairs. The appellant sued the first contractor in contract and the respondent city for negligence. The trial judge allowed the action and, after deducting an amount to reflect the appellant’s contributory negligence, held the contractor and the city jointly and severally liable, and apportioned damages of $49,368.80 between them. The Court of Appeal set aside the decision, holding that by allowing the construction to proceed without a permit, the appellant had removed himself from the class of persons to whom the city owed a duty of care.
Held: The appeal should be allowed.
The Anns/Kamloops test should be applied to determine whether a public body owes a duty of care toward individuals. Under the first branch of the test, a prima facie duty of care will be established if it can be shown that a relationship of proximity existed between the parties such that it was reasonably foreseeable that carelessness on the part of the public actor would result in injury to the individual. Under the second branch of the test, the court must examine the legislation which governs the public authority to determine whether a private law duty should be imposed in the circumstances. Such legislation includes statutes which confer a power but leave the scale on which it is to be exercised to the discretion of the public authority, so that where the authority elects to perform the authorized act, and does so negligently, there is a duty at the operational level to use due care. Inspection schemes fall within this category of legislation, and in order to subject the local authority to a private law duty of care, it must be determined whether the inspection scheme represents a policy decision reached by the local authority which is exempt from civil liability, or whether that policy has been implemented at the operational level. Once the policy decision is made to inspect, in certain circumstances, the authority owes a duty of care to all who may be injured by the negligent implementation of that policy. Municipalities are created by statute and have clear responsibility for health and safety. Any policy decision as to whether or not to inspect must accord with this statutory purpose. Once it is determined that an inspection has occurred and that a duty of care is owed by the public actor to all who might be injured by a negligent inspection, a traditional negligence analysis will be applied. To avoid liability, the government agency must exercise the standard of care in its inspection that would be expected of an ordinary, reasonable and prudent person in the circumstances.
The first step in the Anns/Kamloops test is met. A prima facie duty of care arose by virtue of the sufficient relationship of proximity between the appellant and the city, such that it was foreseeable that a deficient inspection of the construction could result in damage to the property or injury to the owners. Under the second arm of the test, the Building Code Act was enacted to ensure the imposition of uniform standards of construction safety. In this case, a policy decision was made to inspect construction even if it had commenced prior to the issuance of a building permit. Once the city chose to implement this decision, and exercised its power to enter upon the premises to inspect the renovations at the appellant’s home, it owed a duty of care to all who it is reasonable to conclude might be injured by the negligent exercise of that power.
The Court of Appeal erred in concluding that the appellant, through his own negligence, removed himself from the class of persons to whom a duty of care was owed. The negligent conduct of an owner-builder does not absolve a municipality of its duty to take reasonable care in exercising its power of inspection. A municipality will only be absolved completely of the liability which flows from an inspection which does not meet the standard of reasonable care in rare circumstances, when the conduct of the owner-builder is such as to make it impossible for the inspector to do anything to avoid the danger.
To avoid liability, a municipality must show that its inspectors exercised the standard of care that would be expected of an ordinary, reasonable and prudent inspector in the same circumstances. The measure of what constitutes a reasonable inspection will vary, depending on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. Municipalities will not be held to the standard of insurers for the work; nor are they required to discover every latent defect. A reasonable inspection in light of the circumstances is required. The Building Code Act delineates that a city can only be held liable for those defects which the municipal inspector could reasonably be expected to have detected and had the power to have remedied. Whether an inspection has met the standard of care is a question of fact, and once it is determined that a trial judge has applied the correct standard, an appeal court can only reverse the finding of whether the standard has been met if it can be established that a palpable or overriding error was made which affected the assessment of the facts. Here, the trial judge concluded that in light of the contractor’s failure to apply for the permit until after the underpinnings were put in, his failure to post the permit as required, and his failure to notify the inspector that the underpinnings were being installed, it would have been reasonable to conduct a more thorough inspection. The legislation authorized a more vigilant inspection as was required in the circumstances. By failing to exercise those powers to ensure that the underpinnings were compliant with the Code, the inspector failed to meet the standard of care that would have been expected of a reasonable and prudent inspector in the circumstances, and was therefore negligent.
While it is clear that the appellant was negligent in relying on the contractor’s advice that it was appropriate to proceed with construction before the permit was obtained, in order to avail itself of the defence set out in Rothfield, the city must show that the appellant’s conduct was such as to make him the sole source of his loss. His conduct must amount to a flouting of the inspection scheme. Here, the Court of Appeal erred in concluding that the appellant had flouted the inspection regulations, and in absolving the city of all liability. The concept of “flouting” denotes conduct which extends far beyond mere negligence on the part of the owner-builder.
The apportionment of liability is primarily a matter within the province of the trial judge and appellate courts should not interfere with a trial judge’s apportionment unless there is demonstrable error in his appreciation of the facts or applicable legal principles. No such demonstrable error was shown in this case and the trial judge’s apportionment of fault should be restored. Further, prejudgment interest at the rate prescribed by the trial judge is also restored, there being no reason to interfere with his discretion under the Courts of Justice Act.
Cases Cited
Applied: Anns v. Merton London Borough Council, [1977] 2 All E.R. 492; Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2; Ryan v. Victoria (City), [1999] 1 S.C.R. 201; Stein v. The Ship “Kathy K”, [1976] 2 S.C.R. 802; Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210; considered: Rothfield v. Manolakos, [1989] 2 S.C.R. 1259; distinguished: McCrea v. White Rock, [1975] 2 W.W.R. 593; Leischner v. West Kootenay Power & Light Co. (1986), 24 D.L.R. (4th) 641; Hospitality Investments Ltd. v. Everett Lord Building Construction Ltd., [1996] 3 S.C.R. 605; referred to: Just v. British Columbia, [1989] 2 S.C.R. 1228; Acrecrest Ltd. v. Hattrell & Partners, [1983] 1 All E.R. 17; Hall v. Hebert, [1993] 2 S.C.R. 159; Fitzgerald v. Lane, [1988] 2 All E.R. 961; Colonial Coach Lines Ltd. v. Bennett, [1968] 1 O.R. 333; Menow v. Honsberger Ltd., [1970] 1 O.R. 54, aff’d [1971] 1 O.R. 129, aff’d [1974] S.C.R. 239 (sub nom. Jordan House Ltd. v. Menow); Hospitality Investments Ltd. v. Lord (Everett) Building Construction Ltd. (1993), 143 N.B.R. (2d) 258.
Statutes and Regulations Cited
Building Code Act, R.S.O. 1980, c. 51.
Building Code Act, R.S.O. 1990, c. B.13, ss. 3, 5(1), 6, 8, 9, 10, 11.
Building Code Act, 1992, S.O. 1992, c. 23, s. 13(6).
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 130.
Negligence Act, R.S.B.C. 1979, c. 298, s. 2(c).
Negligence Act, R.S.O. 1990, c. N.1, ss. 1, 3.
Rules of the Supreme Court of Canada, SOR/83-74, Rule 29 [rep. & sub. SOR/93-488; am. SOR/95-325].
APPEAL from a judgment of the Ontario Court of Appeal (1998), 38 O.R. (3d) 384, 158 D.L.R. (4th) 147, 107 O.A.C. 310, 37 C.L.R. (2d) 192, 46 M.P.L.R. (2d) 1, [1998] O.J. No. 1126 (QL), setting aside a judgment of the Ontario Court, General Division (1994), 18 C.L.R. (2d) 67 and 82, 24 M.P.L.R. (2d) 293 and 308, [1994] O.J. No. 1714 (QL) and [1995] O.J. No. 231 (QL), allowing in part the plaintiff’s claim for damages for negligence. Appeal allowed.
Philip Anisman and Barbara J. Murchie, for the appellant.
Diana W. Dimmer and Naomi Brown, for the respondent.
The judgment of the Court was delivered by
Bastarache J. --
I. Introduction
1 The issue to be resolved in this appeal is the liability of a public authority for breach of its duty of care in the exercise of a function that it has undertaken pursuant to a policy decision to that effect.
II. Factual Background
2 The appellant Mr. Ingles and his wife own an 80-year-old home in Toronto. In 1990, they decided to renovate the basement of the home, lowering it by18 inches, and to build a patio at the rear of the house. Lowering the basement would necessitate installing underpinnings under the existing foundations of the house to keep the walls from cracking and the house from falling down. They hired a contractor, Tutkaluk Construction Limited (“Tutkaluk”) to do the work. The contract specified that the contractor would apply for and obtain a building permit and offered him an extra $500 for doing so. Mr. Ingles knew that a building permit was required to ensure that an inspection of the renovations would take place. He wanted such an inspection to ensure that the construction was being done properly.
3 Tutkaluk informed Mr. Ingles and his wife that the work would be delayed if it had to obtain a building permit before starting the renovations. Mr. Ingles reluctantly agreed that the work should begin as soon as possible, without the permit. Both Mr. Ingles and his wife asked the contractor several times in the following weeks to apply for the permit. The respondent, City of Toronto, received and approved the application for the permit two weeks after construction had begun. At this point, the underpinning work had already been completed, but the concrete for the new basement floor had not yet been poured.
4 The respondent added the following conditions to the permit before approving the application: first, that the underpinning be carried out to the satisfaction of the building inspector; second, that the building inspector be notified before proceeding with the underpinning and pouring of the concrete; and third, that the underpinning be at least as wide as the existing footings.
5 The morning after the permit was issued, Mr. Tecson, a building inspector with the city, noticed that there was construction under way at the Ingles’ residence, and that the permit was not posted. After asking to see the permit, Mr. Tecson began to inspect the construction. He conducted a 30-minute inspection of the visible portions of the work. Because the underpinning had already been installed, it was not possible to determine visually whether the underpinning continued for the full width of the footing as required by the building permit. It was also not possible to determine visually the depth of the underpinning. Therefore, the inspector looked at the colour of the concrete and struck it with a hammer to see if it had set. It was raining the day of the inspection, and hence it was not possible to dig a hole next to the underpinning to determine its depth. With respect to the width of the underpinning, Mr. Tecson relied on Tutkaluk’s assurances that everything was done in accordance with the drawings attached to the building plan. Mr. Tecson noted on his building card that the underpinning had been done prior to his inspection. This was contrary to the specifications on the permit, which required that an inspector be notified before starting the underpinning work.
6 Approximately two weeks later, Mr. Grimaldi, the regular building inspector for the area, also visited the site. By this time, the basement floor had been laid and visual inspection of the underpinning as a whole was even less possible than it had been at the time of Mr. Tecson’s inspection. Mr. Grimaldi carried out the same inspection as had Mr. Tecson. In addition he noticed that the concrete was smooth and without voids, an indication that it had been packed down adequately. On the job card he wrote that the underpinning appeared to be complete.
7 Within weeks of the completion of the project, the appellant began to experience flooding in his basement. He hired another contracting company to remedy the drainage problems. In the course of their work, the contractors discovered that the initial underpinning construction was completely inadequate. The underpinning was only 6 inches wide, instead of the 24 inches specified in the permit. In several places, the underpinning had not been installed to the depth stated in the plans. In fact, neither the width, nor the depth of the underpinning was in accordance with the specifications, and neither met the requirements of the Building Code Act, R.S.O. 1980, c. 51.
III. Judicial History
8 Conant J. of the Ontario Court (General Division) examined the basic duties and responsibilities for the regulation and inspection of construction in Ontario as set out in the Building Code Act ((1994), 24 M.P.L.R. (2d) 293). He found that it was clear from the statutory provisions that municipalities have a duty to appoint inspectors as are necessary to enforce the Act. The purpose of conducting inspections before issuing building permits was to ensure that permits were issued only for those plans that would conform with the building code. The purpose of conducting inspections after the permits were issued was to ensure that all construction was carried out in conformity with the plans. Conant J. concluded that the province had made a policy decision that cities inspect building plans and construction, and, as a result, that cities owe a duty of care to all who it is reasonable to conclude might be injured by the negligent exercise of those powers.
9 Having found that the city owed a duty of care to Mr. Ingles, Conant J. proceeded to determine the appropriate standard of care for a municipal inspector. Following the decision of La Forest J. in Rothfield v. Manolakos, [1989] 2 S.C.R. 1259, he found that the city must show reasonable care in the exercise of its powers of inspection. The standard would not hold the city to the standard of an insurer, bound to discover every latent defect in the project and every derogation from the building code requirements. Instead, the city would be liable for those defects which it could reasonably be expected to have detected and to have ordered remedied.
10 Conant J. found that the city failed to meet the standard of care in its inspection of the construction at Mr. Ingles’ home for two reasons. First, he found that it was not reasonable for Mr. Tecson to rely on Tutkaluk’s assurance that the construction met the specifications. Mr. Tecson should have been wary of the contractor’s assurances for the following reasons: the contractor did not apply for the permit until after the underpinning had been put in; the contractor did not give notice as to the status of the project, despite the requirements on the building permit; the permit was not posted outside the home; and Mr. Tecson did not know the contractor or his work. Second, he found that a more thorough inspection was reasonable because the underpinning was a major structural element. A defect in that element could lead to a collapse of the entire house. Conant J. concluded that the inspector could have used his investigatory powers to determine the width and depth of the underpinnings and was negligent in failing to do so.
11 As for the appellant’s negligence, Conant J. found that he knew, or should have known, what he was doing in agreeing to a delay in obtaining a building permit. As such, he was required to bear some of the responsibility for the damage. However, Conant J. also found that the appellant and his wife did not participate in a conscious effort to prevent the building inspector from examining the underpinnings. They were not disentitled from recovering against the city, which failed to discharge its obligations. Tutkaluk was found 80 percent liable for the damage and the city was found to be 20 percent liable. The city’s liability was reduced by a further 30 percent to account for the appellant’s contributory negligence.
12 In a subsequent addendum to the original judgment ((1995), 24 M.P.L.R. (2d) 308), Conant J. clarified the apportionment of liability as between the co-defendants, and the effect of the reduction on the award against the respondent city. He found that the respondent and the contractor were jointly and severally liable for the damages. The net effect of this finding was that the $52,520 in damages was apportioned 6 percent to the appellant, 14 percent to the city and 80 percent to Tutkaluk, with a judgment against both the city and Tutkaluk for $49,368.80 representing 94 percent of the damages. In a second addendum, he also awarded prejudgment interest fixed at the statutory rate of 12.9 percent.
13 Sharpe J. (ad hoc), writing for the Ontario Court of Appeal, allowed the appeal, solely on the ground that the trial judge erred in failing to address whether the appellant had removed himself from the scope of the city’s duty of care: (1998), 38 O.R. (3d) 384.
14 Sharpe J. applied the test set out in Kamloops (City of ) v. Nielsen, [1984] 2 S.C.R. 2, and agreed with the trial judge that the city had made a policy decision to inspect building plans and construction, and thus that it owed a duty of care to any person reasonably within its contemplation as someone to be injured by a breach of its duty. Sharpe J. then proceeded to apply the two-step analysis of the duty of care as set out in Kamloops v. Nielsen. Namely, he asked whether the city was in a relationship of proximity with the appellant such that it could contemplate that carelessness in its inspection would harm the appellant. Second, he asked whether there were any policy considerations which would negate the duty in these circumstances.
15 Sharpe J. answered both questions in the affirmative. Although there was a relationship of proximity between the city and the appellant, the Court of Appeal also found that there were considerations that removed the appellant from the class of persons to whom the city owed a duty of care. Sharpe J. based this finding on the remarks of La Forest J. in Rothfield v. Manolakos, supra, followed in Hospitality Investments Ltd. v. Lord (Everett) Building Construction Ltd. (1993), 143 N.B.R. (2d) 258 (Q.B.), to the effect that an owner-builder could exclude himself from the municipality’s duty of care when he knowingly flouted the applicable building regulations. In his view, the appellant “[went] along with Tutkaluk’s scheme” to proceed with the underpinning work without a permit. The appellant knew that this would preclude inspections while the underpinning work was being done and that it would make the inspection much more difficult afterwards. In the opinion of the Court of Appeal, this course of action was simply incompatible with the appellant attempting to recover from the city.
IV. Analysis
A. Duty of Care
16 This Court recently affirmed in Ryan v. Victoria (City), [1999] 1 S.C.R. 201, that the test set in Anns v. Merton London Borough Council, [1977] 2 All E.R. 492 (H.L.), adopted by this Court in Kamloops v. Nielsen (the “Anns/Kamloops” test) is the appropriate test for determining whether a private or public actor owes a duty of care. These cases provide the basis for determining whether the law can impose on a public authority a private law duty towards individuals, enabling individuals to sue the authority in a civil suit, and for determining whether a duty of care is owed by a public authority in particular circumstances. To determine whether a private law duty of care exists, two questions must be asked. These questions are set out by Wilson J. at pp. 10-11 of the decision in Kamloops v. Nielsen as follows:
(1) is there a sufficiently close relationship between the parties (the local authority and the person who has suffered the damage) so that, in the reasonable contemplation of the authority, carelessness on its part might cause damage to that person? If so,
(2) are there any considerations which ought to negative or limit (a) the scope of the duty and (b) the class of persons to whom it is owed or (c) the damages to which a breach of it may give rise?
17 The first step of the Anns/Kamloops test presents a relatively low threshold. A prima facie duty of care will be established if it can be shown that a relationship of proximity existed between the parties such that it was reasonably foreseeable that carelessness on the part of the public actor would result in injury to the other party; see, for example, Ryan v. Victoria, supra, at para. 22. However, as Lord Wilberforce recognized in Anns, only in certain circumstances will a public authority owe a private law duty of care towards individuals. Thus, under the second step of the test, the court must examine the legislation which governs the public authority to determine whether a private law duty should be imposed in the circumstances. Wilson J. summarized the types of legislation identified by Lord Wilberforce, at p. 11 of Kamloops v. Nielsen, supra, as follows:
(1) statutes conferring powers to interfere with the rights of individuals in which case an action in respect of damage caused by the exercise of such powers will generally not lie except in the case where the local authority has done what the legislature authorized but has done it negligently;
(2) statutes conferring powers but leaving the scale on which they are to be exercised to the discretion of the local authority. Here there will be an option to the local authority whether or not to do the thing authorized but, if it elects to do it and does it negligently, then the policy decision having been made, there is a duty at the operational level to use due care in giving effect to it.
18 Inspection schemes fall within the second type of legislation identified by Lord Wilberforce. To determine whether an inspection scheme by a local authority will be subject to a private law duty of care, the court must determine whether the scheme represents a policy decision on the part of the authority, or whether it represents the implementation of a policy decision, at the operational level. True policy decisions are exempt from civil liability to ensure that governments are not restricted in making decisions based upon political or economic factors. It is clear, however, that once a government agency makes a policy decision to inspect, in certain circumstances, it owes a duty of care to all who may be injured by the negligent implementation of that policy; see, for example, Just v. British Columbia, [1989] 2 S.C.R. 1228, at p. 1243, per Cory J.; Rothfield v. Manolakos, supra, at p. 1266, per La Forest J.
19 While I have stated above that a government agency will not be liable for those decisions made at the policy level, I must emphasize that, where inspection is provided for by statute, a government agency cannot immunize itself from liability by simply making a policy decision never to inspect. The decisions in Anns v. Merton London Borough Council, supra, and Kamloops v. Nielsen, supra, establish that in reaching a policy decision pertaining to inspection, the government agency must act in a reasonable manner which constitutes a bona fide exercise of discretion. In the context of a municipal inspection scheme, we must bear in mind that municipalities are creatures of statute which have clear responsibilities for health and safety in their area. A policy decision as to whether or not to inspect must accord with this statutory purpose; see, for example, Kamloops v. Nielsen, at p. 10.
20 Once it is determined that an inspection has occurred at the operational level, and thus that the public actor owes a duty of care to all who might be injured by a negligent inspection, a traditional negligence analysis will be applied. To avoid liability, the government agency must exercise the standard of care in its inspection that would be expected of an ordinary, reasonable and prudent person in the same circumstances. Recently, in Ryan v. Victoria, supra, at para. 28, Major J. reaffirmed that the measure of what is reasonable in the circumstances will depend on a variety of factors, including the likelihood of a known or foreseeable harm, the gravity of that harm and the burden or cost which would be incurred to prevent the injury. The same standard of care applies to a municipality which conducts an inspection of a construction project. While the municipal inspector will not be expected to discover every latent defect in a project, or every derogation from the building code standards, it will be liable for those defects that it could reasonably be expected to have detected and to have ordered remedied; see, for example, Rothfield v. Manolakos, supra, at pp. 1268-69.
(1) Did the City Owe the Appellant a Duty of Care?
21 Both the trial judge and the Court of Appeal found that the city owed the appellant a prima facie duty of care in these circumstances. I agree with their finding in this respect. It is certainly foreseeable that a deficient inspection of the underpinnings of a home could result in damage to the property of the homeowners, or injury to the homeowners or others. As a result, I agree that there was a sufficient relationship of proximity between the appellant and the city such that the city owed the appellant a prima facie duty to conduct an inspection of the renovations of the appellant’s home and to do so with reasonable care. The first stage of the Anns/Kamloops test has been met.
22 Having found that the city owed the appellant a prima facie duty of care, I now turn to the legislative scheme which governs municipal inspections in Ontario to determine whether there is any policy reason to limit the prima facie duty of care. The relevant provisions of the Building Code Act, R.S.O. 1990, c. B.13, are as follows:
3.–(1) The council of each municipality is responsible for the enforcement of this Act in the municipality.
(2) The council of each municipality shall appoint a chief building official and such inspectors as are necessary for the purposes of the enforcement of this Act in the areas in which the municipality has jurisdiction.
5.–(1) No person shall construct or demolish or cause to be constructed or demolished a building in a municipality unless a permit has been issued therefor by the chief official.
6.–(1) The chief official shall issue a permit except where,
(a) the proposed building or the proposed construction or demolition will not comply with this Act or the building code or will contravene any other applicable law;
. . .
(3) No person shall make a material change or cause a material change to be made to a plan, specification, document or other information on the basis of which a permit was issued without notifying the chief official and filing details of such change with him or her for the purpose of obtaining his or her authorization.
. . .
(5) No person shall construct or cause to be constructed a building in a municipality except in accordance with the plans, specifications, documents and any other information on the basis of which a permit was issued or any changes thereto authorized by the chief official.
8.--(1) Subject to section 11, an inspector may, for the purpose of inspecting a building or site in respect of which a permit is issued or an application for a permit is made, enter in or upon any land or premises at any time without a warrant.
(2) Where an inspector finds that any provision of this Act or the building code is being contravened, the inspector may give to the person whom he or she believes to be the contravener an order in writing directing compliance with such provision and may require the order to be carried out forthwith or within such time as he or she specifies.
(3) Where an inspector gives an order under this section, the order shall contain sufficient information to specify the nature of the contravention and its location.
. . .
(5) Where an order of an inspector made under this section is not complied with within the time specified therein, or where no time is specified, within a reasonable time in the circumstances, the chief official may order that all or any part of the construction or demolition respecting the building cease and such order shall be served on such persons affected thereby as the chief official specifies and a copy thereof shall be posted on the site of the construction or demolition and no person except an inspector or the chief official shall remove such copy unless authorized by an inspector or the chief official.
(6) Where an order to cease construction or demolition is made under subsection (5), no person shall perform any act in the construction or demolition of the building in respect of which the order is made other than such work as is necessary to carry out the order of the inspector made under subsection (2).
9.--(1) An inspector or chief official may issue an order prohibiting the covering or enclosing of any part of a building pending inspection and where such an order is issued, an inspection shall be made within a reasonable time after notice is given by the person to whom the order is issued that the person is ready for the inspection.
(2) Where a chief official has reason to believe that any part of a building has not been constructed in compliance with this Act and such part has been covered or enclosed, contrary to an order made by an inspector or chief official under subsection (1), the chief official may order any person responsible for the construction to uncover the part at the person’s own expense for the purpose of an inspection.
10.--(1) Subject to section 11, an inspector may enter in or upon any land or premises at any time without a warrant for the purpose of inspecting any building to determine whether such building is unsafe.
(2) Where an inspector finds that a building is unsafe, he or she may serve upon the assessed owner and each person apparently in possession of the building an order in writing setting out the reasons why the building is unsafe and the remedial steps that the inspector requires to be taken to render the building safe and may require the order to be carried out within such time as the inspector specifies in the order.
(3) Where an order of an inspector under subsection (2) is not complied with within the time specified therein, or where no time is specified, within a reasonable time in the circumstances, the chief official may by order prohibit the use or occupancy of the building and such order shall be served on the assessed owner and each person apparently in possession and such other persons affected thereby as the chief official specifies and a copy thereof shall be posted on the building, and no person except an inspector or the chief official shall remove such copy unless authorized by an inspector or the chief official.
(4) Where the chief official has made an order under subsection (2) and considers it necessary for the safety of the public, the chief official may cause the building to be renovated, repaired or demolished for the purpose of removing the unsafe condition or take such other action as he or she considers necessary for the protection of the public and, where the building is in a municipality, the cost of the renovation, repair, demolition or other action may be added by the clerk to the collector's roll and collected in like manner as municipal taxes.
11.--(1) For the purposes of an inspection under section 8 or 10, the inspector may,
(a) require the production of the drawings and specifications of a building or any part thereof, including any drawings prescribed by the regulations, for his or her inspection and may require information from any person concerning any matter related to a building or part thereof;
(b) be accompanied by any person who has special or expert knowledge of any matter in relation to a building or part thereof;
(c) alone or in conjunction with such other person or persons possessing special or expert knowledge, make such examinations, tests, inquiries, or, subject to subsections (2) and (3), take such samples or photographs as are necessary for the purposes of the inspection;
(d) order any person responsible for the construction to take and supply at the person's own expense such tests and samples as are specified in the order.
23 The legislative scheme is designed to ensure that uniform standards of construction safety are imposed and enforced by the municipalities. Sections 5 and 6 of the Act require that building plans and specifications be inspected before a permit is issued to ensure that they conform with the building code. Sections 8 to 11 set out the powers of the inspector to ensure that all work that is being completed conforms with the permit and, as a result, with the building code. Inspectors are given a broad range of powers to enforce the safety standards set out in the code, from ordering tests at the owners’ expense, to ordering that all work cease in general. Section 9 grants inspectors the power to order builders not to cover work pending inspection, or to uncover work when there is reason to believe that any part of the building has not been constructed in compliance with the Act. The purpose of the building inspection scheme is clear from these provisions: to protect the health and safety of the public by enforcing safety standards for all construction projects. The province has made the policy decision that the municipalities appoint inspectors who will inspect construction projects and enforce the provisions of the Act. Therefore, municipalities owe a duty of care to all who it is reasonable to conclude might be injured by the negligent exercise of their inspection powers.
24 It would appear from the use of the word “may” in ss. 8 to 11 that municipalities have the discretion under the Act to decide whether to inspect and enforce the safety standards after construction has begun. Therefore, it may be open to the municipalities to make policy decisions as to whether to inspect in certain circumstances. Of course, all such policy decisions must be made in good faith and in a way that is consistent with the overall purpose of ensuring the health and safety of the public. Such decisions can only be immune from civil action when they accord with the overall purpose of the statutory scheme. Here, the evidence is that the city had made a policy decision to inspect construction, even if the permit was issued after the construction had begun. At trial, Fred Breeze, the city’s Director of Inspections, testified as follows:
Q. Well, if the inspector is not in the position to do proper inspection because of the lateness of the building permit, can you tell me why the city doesn’t simply refuse to do such inspections and insist that the owner get an inspection from an independent engineer, for instance?
A. Well, that’s not our policy. Our policy is to inspect once a permit has been issued, a