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Regulatory Notices

R.9

General Review Where Contractor Proceeds Without a Building Permit

VERSION: Version 1.0

18 September 2008

  • Summary

    Architects who provide general review services where construction proceeds without a building permit do so in violation of the Building Code Act and in contravention of the Regulation under the Architects Act.

  • Background

    From time to time the Association receives inquiries pertaining to performing general review services during construction in the absence of a building permit.

    Under the laws of the Province of Ontario, it is required that during construction, general review will be provided (except where exempted by the Architects Act) both by an architect (acting pursuant to a client/architect contract) and by a building official (acting pursuant to the Building Code Act). In combination, the two professionals provide two sets of eyes acting independently of each other in reviewing construction for general conformity with plans and specifications that formed the basis for issuance of a building permit.
          
    This basic principle is undermined in circumstances where a building permit is not in place. The factual circumstances may break down into three sorts of situations:
        
    1. No application has been made for a building permit, and no permit has been issued. The municipality in effect is not on notice of the construction.
        
    2. An application has been made for the building permit and the building official is aware of the pending application, and his staff attends the site to conduct inspections.
                 
    3. An application is pending, but the building official declines to become involved in the inspection process pending issuance of the permit.
               
    In situations 1 and 3 above, an architect who proceeds to provide general review services may reasonably be considered to have breached the Regulation under the Architects Act by acquiescing in a contravention of a provincial law, namely the Building Code Act.
        
    Even though this scenario may be perceived to be common practice in some areas, by continuing to provide services under such circumstances the architect is placing himself/herself in a situation where substantial liability may be incurred through civil action for participating in an illegal act, either directly or indirectly. It is not possible to carry out general review in accordance with the performance standards, as to do so requires a determination that the building is being constructed in general conformity with the documents that formed the basis for the issuance of the building permit and, as the permit has not been issued, there are no such documents.
                
    One municipality sent a letter to consultants who chose to ignore the absence of a building permit and who attended the site to review the work. This letter is reproduced below with the author’s permission.
                  
    “There have been several occasions recently, where it has come to our attention that on-site review of construction, for which a permit has not been issued, has been performed by a professional engineer. This is of significant concern because, as a professional with special knowledge, it appears that an engineer should ensure that there is a permit before proceeding.”
         
    The Building Code Act 1992, Section 8(1), reads as follows:

    “No person shall construct or demolish a building, or cause a building to be constructed or demolished in a municipality unless a permit has been issued therefore by the Chief Building Official.”

     

    In addition, Section 1. of the Act contains the following definition (our emphasis):

    ’construct’ means to do anything in the erection, installation, extension or material alteration or repair of a building and includes the installation of a building unit fabricated or moved from elsewhere and ‘construction’ has a corresponding meaning;

     

    Pursuant to the above, on-site review by an engineer would be deemed as ‘construction’ and therefore should not be undertaken unless a permit has been issued.

     

    In this regard, please be advised that if legal action is initiated under the Building Code Act in future, as a result of construction without a permit on a project, then charges will also be laid against any person, company or engineer, who has undertaken the on-site review of the construction on that project.

    We trust this will not be necessary and look forward to your future co-operation.”

    In providing general review in the absence of a building permit, the architect may well be motivated by his or her perception of the public interest. However, the public interest is best served by construction under the watchful eyes of both the architect and the building official in accordance with the building legislation in Ontario. The architect’s proper motivation may be no defense to the allegation that he or she is “acquiescing” in the contravention of the law.
              
    In some circumstances an architect may be subjected to coercion by a client to attend the site regardless of the absence of a building permit citing it to be the architect’s duty to fulfill the contractual obligations relative to site review.
     
    Contract law operates such that contracts neither anticipate nor require parties to participate in illegal activities. Construction without a building permit is arguably in this category.
                  
    OAA Council, the OAA Discipline Committee and legal counsel to the OAA have all reviewed this issue - of an architect providing general review services on a project without a building permit being in violation of the Regulation under the Architects Act.

  • Suggested procedure

    1. The OAA “Standard Form of Contract for Architect’s Services”, Document 600, current version contains a provision for the architect to suspend services related to general review in the event that construction proceeds in the absence of a building permit. In the event that your contract with your client does not contain such a provision, add a clause to provide for the right of the architect to suspend general review services if construction proceeds without a building permit and without the chief building official dispatching building officials to the site.

    2. Ascertain whether a building permit has been issued prior to attending the site to perform general review services.

    3. If a permit has not been issued, determine from the building official whether the official intends to dispatch inspectors to conduct inspections in the usual and customary ways. If the municipal inspector will be conducting the inspections, record your findings and commence general review, so advising the owner and building official.

    4. If the building inspectors will not be directed to attend the site, advise the owner that you will not be able to conduct general review services until a permit is issued or until the building official agrees to send the building inspectors to the site.

    5. Advise the owner and constructor of ramifications of continuing construction without a building permit.

     

© Ontario Association of Architects (OAA). OAA members in good standing may reproduce or distribute this Regulatory Notice provided this copyright notice is affixed to any reproduced or distributed copy. No rights are granted to any other person, except with express prior written consent from the OAA. The OAA reserves all other rights.