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As Ontario Municipalities and homebuilders work to increase housing stock, their efforts are shaped in part by the building standards regime in Ontario’s Building Code and the Building Code Act, 1992 (the “BCA”). Amid changes in construction costs and new methods and materials, the 2024 Building Code will aim to update and streamline standards when it comes into effect on January 1, 2025 (as a future article will explore).
All of this can increase pressure on BCA enforcement as well, up to and including the rare and drastic tool of last resort: the emergency order. The recent Superior Court decision in Township of Dawn-Euphemia v Sen[1] clarifies this tool along with BCA enforcement in general. The decision addresses – and complicates – building standards considerations that are relevant to municipalities and owners alike.
I. LESSONS FROM THE SEN DECISION
In the Sen case, the Court rescinded an emergency order that had led to the demolition of a vacant school building. The Court concluded the issuing property standards officer (the “Officer”) had selected the wrong type of emergency order, and had failed to give fair notice or consider circumstances mitigating the danger.
The decision came too late to save the subject building, which had been demolished within a day of the order. The Court did not deal with an owner’s claim for compensation, which is typically – but not always – prevented by the BCA’s immunity provisions. Municipalities face the risk of liability if an owner can show that enforcement measures exceeded the “reasonable” exercise of emergency order powers.[2]
As described below, the Sen case contains some lessons for both municipalities and owners dealing with BCA orders:
- Picking the right emergency tool: Distinguishing between the types of emergency and other orders remains important. Municipal officers and chief building officials (“CBOs”) do not enjoy deference on the selection of legal tools, which cannot be corrected once an order is before the court.
- Assessing and describing the danger: In determining whether immediate danger exists, officers or CBOs must look not only at the building condition but all surrounding circumstances. Template language should be adapted to clearly specify where the danger is and what must be done.
- Procedural fairness and notice: In the face of immediate danger, the language of the BCA still allows a proper emergency order to be implemented before it is served. Whether or not the Sen decision is applied to heighten notice requirements, it also affirms the need for procedural fairness to owners and occupants at all times.
II. FACTS OF THE SEN CASE
The Sen case arose in Township of Dawn-Euphemia, in Lambton County, and involved a vacant, two-storey former school that had fallen into disrepair. One morning in November 2023, Township staff received word that one of the building’s brick walls had partly collapsed. The rest of the day proved eventful:
- Before 10:00 a.m., the clerk notified the property’s owners of stability concerns and plans to issue an order.
- By 11:00 a.m., the Officer inspected the property, concluding that severe structural damage would require demolition.
- By 1:30 p.m., the Township installed perimeter fencing around the building.
- By 2:15 p.m., a professional engineer inspected and verbally confirmed that the building’s wall assembly was unsafe.
- During the afternoon, the Officer told the surprised owners of his plan to demolish the building at their expense. On the basis of the safety issues he refused the owners’ request for more time to assess and possibly stabilize the structure.
- By 6:15 p.m., the Officer sent the emergency order to the respondents and posted it on the property.
- Starting at 8:00 p.m., the Township demolished the building and began clearing debris.
The following week, the Township’s engineer issued a report confirming his opinion that the compromised structure risked collapse so that some or all of it required prompt demolition. The Township ultimately claimed remediation costs of just over $30,000, and applied to the Superior Court for confirmation of the emergency order.
III. TWO TYPES OF EMERGENCY ORDER
In keeping with past decisions, the Court in Sen summarized the BCA and Building Code regime as striking a careful balance of “the interests of society with the interests of a property owner,” with the intention “to promote public safety in a manner that balances the rights of all the parties involved, especially those of property owners.”[3]
The BCA contains two separate emergency order provisions, mostly identical but with key differences that proved an issue for the Township’s position:[4]
- Under s. 15.7 (relied upon by the Township), where inspection indicates non-conformity with a property standards by-law posing an immediate danger to health or safety, a property standards officer may issue an order requiring immediate work to terminate the danger. The section also empowers the officer to carry out such work, as noted below.
- Under s. 15.10, the CBO may issue a similar order and exercise similar powers wherever inspection indicates that a building poses an immediate danger to health and safety.
V. WHERE DECISIONS MUST BE CORRECT, OR ONLY REASONABLE
Unlike most BCA orders and decisions, which only proceed to court if appealed,[5] every emergency order must ultimately be reviewed by a judge. The issuing officer or CBO must apply to a Superior Court judge “as soon as practicable” after serving the order, whether or not all work has already been carried out. The judge hearing the matter will confirm, modify or rescind the order, and will determine to what extent the department can recover its costs of terminating the danger (in the form of a lien on the property).[6]
Past decisions have indicated that typical emergency order decisions need not be found to be “correct,” but only “reasonable.”[7] That requires only that they avoid an obvious or central error,[8] or that they have support in some tenable explanation “even if this explanation is not one that the reviewing court finds compelling.”[9] This standard gives much deference to the officer or CBO, on the basis that they are best-positioned to make the factual assessment of immediate danger.
The Sen decision points out a notable exception to the usual standard: emergency order review can involve questions of law, and on those questions the higher “correctness” standard will apply without deference to officer or CBO expertise.[10] As described in the next section, legal oversights in an emergency order can render it and emergency measures unlawful, even if there are real safety issues to be addressed.
IV. THE COURT’S FINDINGS
i. PICKING THE RIGHT STATUTORY TOOL
In the Sen case, the reviewing Judge accepted that the property was “in unsafe condition and required timely remedial intervention.” However, the Township’s building department had opted for a property standards emergency order, and had failed to specify breaches of a property standards by-law as required by s. 15.7 of the BCA. The Judge found this to be an “error of law going to the foundation of the Emergency Order,” and also cited it as a basis for finding the order to be unreasonable.[11] The Court rescinded the emergency order as a result.
A key lesson from this result is that building departments must carefully select the right statutory tool for each situation, since this choice will be held to the strict requirements of the BCA, without affording any deference to expertise. As the Judge noted in Sen, the Township building department had had other options at its disposal.[12] An emergency order under s. 15.10 may well have been supported by the dangerous building conditions accepted by the Judge, but the selection of an ill-fitting order type could not be corrected after the fact.
ii. ASSESSING AND DESCRIBING THE DANGER
Although the Court in Sen accepted that the building was unsafe and had required timely remedial work, the Court criticized the Officer’s failure to confirm an immediate danger to health and safety before he had settled on demolition as the only remedy.[13] This finding shows the importance of context in assessing danger under the BCA. If one only looks at the building condition – a failing structure that could give way unpredictably – then the situation in Sen looks very much like multiple past cases in which the court upheld emergency orders for demolition.[14] Distinguishing features only emerge on looking closer at the full surroundings in Sen, including the significant setback from the property line and a secure perimeter fence.[15] It is these features that differ from past cases involving compromised buildings that were either abutting a main street sidewalk,[16] or repeatedly broken into and only securable at extreme cost (as in the case of Cambridge’s Preston Springs Hotel, demolished in 2020-2021).[17]
As a further reason to rescind the emergency order, the Court in Sen noted the lack of clarity around remedial measures: the order required demolition of all areas “deemed to be unsafe,” without specifying which areas were covered. Since the Township likely intended (and ultimately directed) demolition of the entire building, the Sen decision is a reminder that it can be risky to re-use general or template language instead of tailoring it to each situation.
iii. ISSUES OF FAIRNESS AND NOTICE TO THE OWNER
On the topic of procedure, Sen goes beyond the findings of previous case law in two areas:
- The Court was explicit that emergency orders must abide not only by the letter of the BCA but also by the doctrine of procedural fairness, as with other reviewable administrative decisions.[18] The requirements of procedural fairness will depend on the facts of a given case.[19] The Sen decision also confirms that this compliance is a legal issue, allowing the reviewing court to impose its own view without deference to the issuing officer or CBO.[20]
- The Court held that “… s. 15.7(1) of the [BCA], when correctly interpreted, required the Municipality to provide notice to the respondents and afford them an opportunity to respond and remediate, even if the requirement was for immediate action to address a dangerous condition.”[21] This indicates a requirement of advance notice of emergency measures, which the Court clarified might be satisfied where earlier, non-emergency orders have already alerted the owners or occupants to the issue.[22]
The Court’s findings on notice requirements may prove difficult to reconcile with the express language of the BCA. The conclusion cites case law dealing with the separate tool of Unsafe Orders, which allow the CBO to restrict occupancy or undertake remedial work after an Unsafe Order is, in the language of s. 15.9 of the BCA, “not complied with within the time specified” or else “within a reasonable time.”[23] By contrast, applying the same rule to an emergency order under ss. 15.7 and 15.10 would undermine a key difference in wording: those sections expressly provide that once an inspection discloses an “immediate danger,” the officer or CBO may, “either before or after the order is served, take any measures necessary to terminate the danger.”[24]
In contrast to Sen, past case law has upheld emergency order measures without prior notice, albeit in modest circumstances.[25] This flexibility is arguably part of the BCA’s balanced scheme. For while emergency orders will often arise after previous orders (as in the cases cited in Sen), this will not always be the case. Some contraventions may go undetected until they are bona fide, immediate dangers, and in those rare cases the BCA emergency provisions arguably allow for immediate, proportionate action to terminate the danger. The Sen decision’s impact in this area remains to be seen.
Should you have any questions, please do not hesitate to reach out to a member of Miller Thomson’s Municipal, Planning & Land Development group.
[1] Township of Dawn-Euphemia v Sen, 2024 ONSC 2738 (“Sen”).
[2] Building Code Act, 1992, S.O. 1992, c. 23, ss. 15.7(4) and 15.10(4).
[3] Sen at paras. 23-24; citing Gordon v. North Grenville (Municipality), 2011 ONSC 2222 at paras. 36-37.
[4] Sen at para. 26.
[5] BCA, s. 25.
[6] BCA, ss. 15.7(7)-(8) and 15.10(7)-(8).
[7] Chief Building Official of the Corporation of the City of Cambridge v. Haastown Holdings (Preston) Inc., 2023 ONSC 6699 at paras. 24-26.
[8] Sen at paras. 27-28.
[9] Georgina (Chief Building Official) v. Anagnostopoulos, [2007] O.J. No. 3263 (Sup. Ct) at para. 47; citing Law Society of New Brunswick v. Ryan, 2003 SCC 20 at paras. 55-56.
[10] Sen at para. 27.
[11] Sen at paras. 31, 33.
[12] Sen at para. 32.
[13] Sen at para. 30(b).
[14] Haastown Holdings, supra note 7, at para. 130; Sutherland Lofts Inc. v. Peck, 2017 ONSC 3927 at para. 51.
[15] Sen at para. 42.
[16] Sutherland Lofts Inc., supra note 14, at para. 51.
[17] Haastown Holdings, supra note 7, at paras. 49, 83 and 128.
[18] Sen at para. 37.
[19] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 77.
[20] Sen at para. 37.
[21] Sen at para. 39.
[22] Sen at paras. 40-41.
[23] BCA, s. 15.9(6).
[24] BCA, ss. 15.7(3) and 15.10(3).
[25] Midland (Town) v. 881229 Ontario Inc., 2014 ONSC 3772 at para. 10, which involved the cleaning of an apartment unit whose condition so severely violated property standards as to pose an immediate danger.
