As Ontario Municipalities and homebuilders work to increase housing stock, their efforts are shaped in part by the building standards regime in Ontario\u2019s Building Code and the Building Code Act, 1992<\/em> (the \u201cBCA<\/em><\/strong>\u201d). 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).<\/p>\n\n\n\n All of this can increase pressure on BCA<\/em> 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<\/em>[1]<\/a> clarifies this tool along with BCA<\/em> enforcement in general. The decision addresses \u2013 and complicates \u2013 building standards considerations that are relevant to municipalities and owners alike.<\/p>\n\n\n\n In the Sen<\/em> case, the Court rescinded an emergency order that had led to the demolition of a vacant school building.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 \u201cOfficer<\/strong>\u201d) had selected the wrong type of emergency order, and had failed to give fair notice or consider circumstances mitigating the danger.<\/p>\n\n\n\n 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\u2019s claim for compensation, which is typically \u2013 but not always \u2013 prevented by the BCA<\/em>\u2019s immunity provisions. Municipalities face the risk of liability if an owner can show that enforcement measures exceeded the \u201creasonable\u201d exercise of emergency order powers.[2]<\/a><\/p>\n\n\n\n As described below, the Sen<\/em> case contains some lessons for both municipalities and owners dealing with BCA<\/em> orders:<\/p>\n\n\n\n The Sen<\/em> 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\u2019s brick walls had partly collapsed. The rest of the day proved eventful:<\/p>\n\n\n\n The following week, the Township\u2019s 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.<\/p>\n\n\n\n In keeping with past decisions, the Court in Sen<\/em> summarized the BCA<\/em> and Building Code regime as striking a careful balance of \u201cthe interests of society with the interests of a property owner,\u201d with the intention \u201cto promote public safety in a manner that balances the rights of all the parties involved, especially those of property owners.\u201d[3]<\/a><\/p>\n\n\n\n The BCA<\/em> contains two separate emergency order provisions, mostly identical but with key differences that proved an issue for the Township\u2019s position:[4]<\/a><\/p>\n\n\n\n Unlike most BCA<\/em> orders and decisions, which only proceed to court if appealed,[5]<\/a> every emergency order must ultimately be reviewed by a judge. The issuing officer or CBO must apply to a Superior Court judge \u201cas soon as practicable\u201d 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]<\/a><\/p>\n\n\n\n Past decisions have indicated that typical emergency order decisions need not be found to be \u201ccorrect,\u201d but only \u201creasonable.\u201d[7]<\/a> That requires only that they avoid an obvious or central error,[8]<\/a> or that they have support in some tenable explanation \u201ceven if this explanation is not one that the reviewing court finds compelling.\u201d[9]<\/a> 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.<\/p>\n\n\n\n The Sen<\/em> decision points out a notable exception to the usual standard: emergency order review can involve questions of law, and on those questions the higher \u201ccorrectness\u201d standard will apply without deference to officer or CBO expertise.[10]<\/a> 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.<\/p>\n\n\n\n In the Sen<\/em> case, the reviewing Judge accepted that the property was \u201cin unsafe condition and required timely remedial intervention.\u201d However, the Township\u2019s building department had opted for a property standards<\/strong> emergency order, and had failed to specify breaches of a property standards by-law as required by s. 15.7 of the BCA<\/em>. The Judge found this to be an \u201cerror of law going to the foundation of the Emergency Order,\u201d and also cited it as a basis for finding the order to be unreasonable.[11]<\/a> The Court rescinded the emergency order as a result.<\/p>\n\n\n\n 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<\/em>, without affording any deference to expertise. As the Judge noted in Sen<\/em>, the Township building department had had other options at its disposal.[12]<\/a> 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.<\/p>\n\n\n\n Although the Court in Sen<\/em> accepted that the building was unsafe and had required timely remedial work, the Court criticized the Officer\u2019s failure to confirm an immediate danger to health and safety before he had settled on demolition as the only remedy.[13]<\/a> This finding shows the importance of context in assessing danger under the BCA<\/em>. If one only looks at the building condition \u2013 a failing structure that could give way unpredictably \u2013 then the situation in Sen<\/em> looks very much like multiple past cases in which the court upheld<\/strong> emergency orders for demolition.[14]<\/a> Distinguishing features only emerge on looking closer at the full surroundings in Sen<\/em>, including the significant setback from the property line and a secure perimeter fence.[15]<\/a> It is these features that differ from past cases involving compromised buildings that were either abutting a main street sidewalk,[16]<\/a> or repeatedly broken into and only securable at extreme cost (as in the case of Cambridge\u2019s Preston Springs Hotel, demolished in 2020-2021).[17]<\/a><\/p>\n\n\n\n As a further reason to rescind the emergency order, the Court in Sen<\/em> noted the lack of clarity around remedial measures: the order required demolition of all areas \u201cdeemed to be unsafe,\u201d without specifying which areas were covered. Since the Township likely intended (and ultimately directed) demolition of the entire building, the Sen<\/em> decision is a reminder that it can be risky to re-use general or template language instead of tailoring it to each situation.<\/p>\n\n\n\n On the topic of procedure, Sen<\/em> goes beyond the findings of previous case law in two areas:<\/p>\n\n\n\n The Court\u2019s findings on notice requirements may prove difficult to reconcile with the express language of the BCA<\/em>. 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<\/em>, \u201cnot complied with within the time specified\u201d or else \u201cwithin a reasonable time.\u201d[23]<\/a> 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 \u201cimmediate danger,\u201d the officer or CBO may, \u201ceither before or after the order is served<\/strong>, take any measures necessary to terminate the danger.\u201d[24]<\/a><\/p>\n\n\n\n In contrast to Sen<\/em>, past case law has upheld emergency order measures without prior notice, albeit in modest circumstances.[25]<\/a> This flexibility is arguably part of the BCA<\/em>\u2019s balanced scheme. For while emergency orders will often arise after previous orders (as in the cases cited in Sen<\/em>), this will not always be the case. Some contraventions may go undetected until they are bona fide<\/em>, immediate dangers, and in those rare cases the BCA<\/em> emergency provisions arguably allow for immediate, proportionate action to terminate the danger. The Sen<\/em> decision\u2019s impact in this area remains to be seen.<\/p>\n\n\n\n Should you have any questions, please do not hesitate to reach out to a member of Miller Thomson’s Municipal, Planning & Land Development<\/a> group.<\/p>\n\n\n\n [1]<\/a> Township of Dawn-Euphemia v Sen, <\/em>2024 ONSC 2738<\/a> (\u201cSen<\/em>\u201d).<\/p>\n\n\n\n [2]<\/a> Building Code Act, 1992<\/em>, S.O. 1992, c. 23, ss. 15.7(4) and 15.10(4).<\/p>\n\n\n\n [3]<\/a> Sen<\/em> at paras. 23-24; citing Gordon v. North Grenville (Municipality)<\/em>, 2011 ONSC 2222<\/a> at paras. 36-37.<\/p>\n\n\n\n [4]<\/a> Sen<\/em> at para. 26.<\/p>\n\n\n\n [5]<\/a> BCA<\/em>, s. 25.<\/p>\n\n\n\n [6]<\/a> BCA<\/em>, ss. 15.7(7)-(8) and 15.10(7)-(8).<\/p>\n\n\n\n [7]<\/a> Chief Building Official of the Corporation of the City of Cambridge v. Haastown Holdings (Preston) Inc.<\/em>, 2023 ONSC 6699<\/a> at paras. 24-26.<\/p>\n\n\n\n [8]<\/a> Sen<\/em> at paras. 27-28.<\/p>\n\n\n\n [9]<\/a> Georgina (Chief Building Official) v. Anagnostopoulos<\/em>, [2007] O.J. No. 3263<\/a> (Sup. Ct) at para. 47; citing Law Society of New Brunswick v. <\/em>Ryan, 2003 SCC 20<\/a> at paras. 55-56.<\/p>\n\n\n\n [10]<\/a> Sen<\/em> at para. 27.<\/p>\n\n\n\n [11]<\/a> Sen<\/em> at paras. 31, 33.<\/p>\n\n\n\n [12]<\/a> Sen<\/em> at para. 32.<\/p>\n\n\n\n [13]<\/a> Sen<\/em> at para. 30(b).<\/p>\n\n\n\n [14]<\/a> Haastown Holdings<\/em>, supra<\/em> note 7, at para. 130; Sutherland Lofts Inc. v. Peck<\/em>, 2017 ONSC 3927<\/a> at para. 51.<\/p>\n\n\n\n [15]<\/a> Sen<\/em> at para. 42.<\/p>\n\n\n\n [16]<\/a> Sutherland Lofts Inc.<\/em>, supra <\/em>note 14, at para. 51.<\/p>\n\n\n\n [17]<\/a> Haastown Holdings<\/em>, supra<\/em> note 7, at paras. 49, 83 and 128.<\/p>\n\n\n\n [18]<\/a> Sen<\/em> at para. 37.<\/p>\n\n\n\n [19]<\/a> Canada (Minister of Citizenship and Immigration) v. Vavilov<\/em>, 2019 SCC 65<\/a> at para. 77.<\/p>\n\n\n\n [20]<\/a> Sen<\/em> at para. 37.<\/p>\n\n\n\n [21]<\/a> Sen<\/em> at para. 39.<\/p>\n\n\n\n [22]<\/a> Sen<\/em> at paras. 40-41.<\/p>\n\n\n\n [23]<\/a> BCA<\/em>, s. 15.9(6).<\/p>\n\n\n\n [24]<\/a> BCA<\/em>, ss. 15.7(3) and 15.10(3).<\/p>\n\n\n\n [25]<\/a> Midland (Town) v. 881229 Ontario Inc.<\/em>, 2014 ONSC 3772<\/a> at para. 10, which involved the cleaning of an apartment unit whose condition so severely violated property standards as to pose an immediate danger.<\/p>\n","protected":false},"excerpt":{"rendered":" As Ontario Municipalities and homebuilders work to increase housing stock, their efforts are shaped in part by the building standards regime in Ontario\u2019s Building Code and the Building Code Act, 1992 (the \u201cBCA\u201d). Amid changes in construction costs and new methods and materials, the 2024 Building Code will aim to update and streamline standards when […]<\/p>\n","protected":false},"author":1,"featured_media":14383,"parent":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[566],"insight-format":[416],"class_list":["post-18048","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-real-estate"],"acf":[],"yoast_head":"\nI. Lessons from the Sen<\/em> decision<\/h2>\n\n\n\n
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II. Facts of the Sen<\/em> case<\/h2>\n\n\n\n
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III. Two types of emergency order <\/h2>\n\n\n\n
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V. Where decisions must be correct, or only reasonable<\/h2>\n\n\n\n
IV. The Court\u2019s findings<\/h2>\n\n\n\n
\u00a0i. Picking the right statutory tool<\/h3>\n\n\n\n
ii. Assessing and describing the danger<\/h3>\n\n\n\n
iii. Issues of fairness and notice to the owner<\/h3>\n\n\n\n
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