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Proposed Amendments to the Building Code Act Much Narrower than Recommended By The Elliot Lake Inquiry

On June 23, 2012, a steel beam at the Algo Mall in Elliot Lake, Ontario, gave way.  Tonnes of concrete, steel and glass fell into the Mall below.  Two people were killed and 19 others were injured.  The collapse of the Algo Mall set in motion a process that is leading towards amendments to the Building Code Act

 

Six days after the collapse, Premier McGinty announced a government inquiry.  Justice Paul R. Belanger released his report on October 14, 2014.  In his report, Justice Belanger recommended the government enact mandatory province wide minimum maintenance standards for "large mercantile"  buildings in Ontario.  Furthermore, he recommended that all such buildings be inspected by properly qualified structural engineers whenever the building is sold and, at a minimum, "at a frequency that is commensurate with the risk of harm from a failure to meet the standard".  Although Mr. Belanger recommended these standards apply to all buildings with "mercantile occupancies", as defined in the Building Code, he urged the government to extend the minimum standards to all publically accessible buildings and multi-residential occupancies.  Mr. Belanger wrote the following: 

 

 

"The Building Code provides that buildings exceeding 600 square metres or three storeys in height used for major occupancies classified as mercantile occupancy must comply with Division B of Part 4 of the Code, which sets out structural design requirements common to a wide variety of large structures in Ontario. 

 

Since the Algo Mall would come within this definition, which is already recognized by the law of Ontario relating to standards designed to ensure safe construction of buildings, it is appropriate that I draft my recommendations to apply to all such buildings.  …  I believe, however, that these recommendations ought to apply to all publically accessible buildings in Ontario, including workplaces and multi-unit residential condominium and tenant-occupied buildings."

 

Therefore, Justice Belanger recommended that the province enact standards for the maintenance and inspection of all publically accessible and multi-residential buildings in Ontario. 

 

The day the Belanger Report was released, the provincial government announced the appointment of the Building Safety and Technical Advisory Panel (the "BSTAP") to make further recommendations regarding the screening and inspection of buildings.  The BSTAP released its report on January 27, 2016.  The BSTAP recommended that buildings with rooftop parking structures constructed before 1988 be subject to a Risk Screening Evaluation within 3 years.  Furthermore, it recommended that a Risk Screening Evaluation be performed on all other buildings constructed before 1976 within 6 years and all other buildings within 10 years.  

 

On November 14, 2017, the provincial government issued a consultation paper regarding proposed amendments to the Building Code Act arising out of the recommendations of Justice Belanger and the BSTAP.  The paper describes a Building Condition Evaluation that will apply to "prescribed structures".  Significantly, the class of "prescribed structures" that will require Building Condition Evaluation is limited to buildings with rooftop parking structures.  The consultation paper describes the buildings to which the new legislation will apply: 

 

 

All buildings, regardless of the date of construction, that contain parking on the roof or part of the roof of the structure and that also have levels beneath the parking occupied with non-parking uses. This would include retail/commercial uses (e.g., shopping malls), industrial and residential uses, and also parking structures with car rental kiosks or car wash/auto detailing stands.

 

So, whereas Justice Belanger and the BSTAP recommended a process of risk evaluation that applies to all major occupancies, the proposed changes to the Building Code Act only apply to the buildings with rooftop parking.

 

Presumably, the underlying premise of the proposed amendments is that Justice Belanger and the BSTAP overreached in their recommendations.  An important link in the chain of events that led to the collapse of the Algo Mall was that the water that leaked through the roof of the Algo Mall was full of dissolved salts that had been spread on the rooftop parking structure and which accelerated the corrosion of the steel structure that eventually collapsed.  It is not apparent to a layman that the risk factors that led to the collapse of the Algo Mall are present in all other building types.  The risk that other types of buildings may collapse may not justify the cost of periodic risk evaluation. 

 

The consultation period regarding the proposed changes to the Building Code Act ends on January 4, 2018.  If you have any comments on the proposed changes you can send them to the Minister of Municipal Affairs at buildingcodeconsultation@ontario.ca

 

Ted Dreyer is a construction and insurance lawyer at Madorin, Snyder LLP.  Madorin, Snyder LLP is a full service law firm serving Kitchener, Waterloo, Cambridge, Guelph and the surrounding area.  

   

The information contained in this article is provided for general information purposes only and does not constitute legal or other professional advice. Readers are advised to seek specific legal advice in relation to any decision or course of action contemplated.

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