The Association of Professional Engineers of Ontario (PEO) applied to the Divisional Court for a judicial review of the application to professional engineers of certain Building Code qualification and registration requirements.  What did the Court decide?

On March 20, 2006, PEO applied to the Divisional Court for judicial review of the Building Code’s qualification and registration requirements for professional engineers and of certain Building Code requirements for professional design of buildings.

On May 17, 2007 the Divisional Court released its decision in the PEO’s judicial review application.  In that decision the Court made the following declarations:

1.  Article 2.3.1.1 of the Building Code is not authorized by s. 34 (1)10 of the Building Code Act and is invalid to the extent that it purports to allocate responsibility for designs between professional engineers and architects.

2.  Article 2.3.1.1 (4) of the Building Code is not authorized by s. 34 of the Building Code Act and is invalid.

3.  Clause 1.1 (1)(c), subsection 1.1 (2), clause 8 (2)(c), and subsections 15.11 (5) to (7) of the Building Code Act conflict with the exclusive regulatory jurisdiction of the Association of Professional Engineers of Ontario and do not apply to any holder of any licence or certificate issued under the Professional Engineers Act.

4.  Article 2.17 of the Building Code conflicts with the exclusive regulatory jurisdiction of the Association of Professional Engineers of Ontario and does not apply to any holder of any licence or certificate issued under the Professional Engineers Act.

Note:  Certain renumbering took place with the introduction of the 2006 Building Code: 

·         Article 2.3.1.1. of the former Building Code was renumbered as Article 1.2.1.1. of Division C of the 2006 Building Code.

·         Sentence 2.3.1.1. (4) of the former Building Code was renumbered as Sentence 1.2.1.1.(4) of Division C of the 2006 Building Code.

·         Section 2.17. of the former Building Code was renumbered as Section 3.2. of Division C of the 2006 Building Code.

The Ontario Association of Architects intervened as an added party in the PEO’s judicial review application.  In addition to making the above declarations, the Court stated that “the analysis in these reasons for judgment applies equally to the intervenor architects”.

Has the province appealed the Court’s decision?

The government did not seek leave to appeal the decision of the Divisional Court.

The Ministry intends to work with stakeholders including engineers, architects and building officials to monitor the implications of the court’s decision on the administration and enforcement of the Building Code Act, 1992 and the Building Code.

The Decision of the Court took effect when it was released, May 17, 2007.

Examinations, Qualification and Registration

As a result of the Court’s decision, are professional engineers and engineering firms subject to qualification/ registration under the Building Code Act and Building Code?

No.  The Divisional Court in a decision of May 17, 2007 declared that subsections 15.11(5) to (7) of the Building Code Act, 1992 and former Section 2.17 (now Section 3.2 of Division C of the 2006 Building Code) do not apply to any holder of any licence or certificate issued under the Professional Engineers Act.

Are architects and architectural practices subject to qualification and registration under the Building Code Act, 1992 and Building Code?

No.   The Building Code has, since April 2005, provided that the designer qualification requirements do not apply to architects and architectural practices (see Articles 3.2.2.1.and 3.2.2.2. of Division C).

As well, the Divisional Court in its decision of May 17, 2007 in PEO’s judicial review application declared that subsections 15.11(5) to (7) of the Building Code Act, 1992 and former Section 2.17 (now Section 3.2 of Division C of the 2006 Building Code) do not apply to any holder of any license or certificate issued under the Professional Engineers Act, and further stated that “the analysis in these reasons for judgment applies equally to the intervenor architects”.

Are professional engineers and architects required to carry liability insurance?

A holder of a certificate of authorization is required under the Professional Engineers Act and a Regulation under that Act to carry professional liability insurance, subject to certain exceptions set out in the Regulation.  

The Architects Act and a Regulation under that Act require members of the Association and holders of a certificate of practice or of a temporary licence to carry professional liability insurance. 

Inquiries regarding insurance cover and practices for professional engineers and architects should be made to Professional Engineers Ontario and the Ontario Association of Architects, respectively.

The Divisional Court in its decision of May 17, 2007 made declarations about the application to professional engineers of the qualification requirements of the Building Code Act and Building Code for designers. 

Did the Court, in that decision, consider the qualification requirements of the Building Code Act and Building Code for building officials, on-site sewage systems installers, or registered code agencies?

No.  The declarations of the Court in the May 17, 2007 decision on the judicial review application were limited to the application of the designer qualifications of the Building Code Act, 1992 and Building Code to professional engineers.

The Court did not consider the qualifications requirements of the Building Code Act, 1992 and Building Code relating to building officials, on-site sewage system installers and registered code agencies.

Sealing of Plans:

The Divisional Court in its decision of May 17, 2007 declared that the Building Code’s requirement that architects and professional engineers seal plans that form the basis for permit applications is invalid.  

Will architects and engineers still be required to seal plans they prepare that form the basis for permit applications?

Yes.    The provision of the Building Code that was declared to be invalid by the Divisional Court is former Sentence 2.3.1.1.(4) (now Sentence 1.2.1.1. (4) of Division C of the 2006 Building Code). This Sentence required that where a building or part of it was required to be designed by an architect and/or a professional engineer, all plans and other documents that form the basis for the issuance of a permit must bear the signature and seal of the architect, professional engineer or both, as applicable.

Both the Professional Engineers Act and the Architects Act and their supporting Regulations include requirements for professional engineers and architects to sign and seal plans produced under their supervision.  It is reasonable to expect that documents accompanying permit applications will be signed and sealed in accordance with PEO and OAA’s practice standards.

For information on the use of professional seals, contact the Ontario Association of Architects and Professional Engineers Ontario.

Design and General Review:

The Divisional Court in its decision of May 17, 2007 declared that former Article 2.3.1.1. of the Code is invalid to the extent that it purports to allocate responsibility for designs between professional engineers and architects.  As a result, what legislation will apply to the allocation between professional engineers and architects of responsibility for designs?

Certain provisions of former Article 2.3.1.1. (now Article 1.2.1.1. of Division C of the 2006 Building Code) allocated responsibility for designs between professional engineers and architects (for example, Column 3 of former Table 2.3.1.1. (now Table 1.2.1.1. of Division C)).  Former Article 2.3.1.1., to the extent that it allocated responsibility for design between professional architects and professional engineers, has been declared to be invalid by the Divisional Court.

The Professional Engineers Act and Architect Acts define the scope of practice for professional engineers and architects undertaking design of buildings.  A Joint Practice Board of the two professions could help avoid confusion and conflict concerning the scope of practice of professional engineers and architects.

For information on the scope of practice of professional engineers and architects, contact Professional Engineers Ontario and the Ontario Association of Architects, respectively. 

Did the Divisional Court in its decision of May 17, 2007 make a declaration that the Building Code’s requirements for general review are invalid?

No.  The Divisional Court did not make any declarations concerning former Subsection 2.3.2. (now Subsection 1.2.2. of Division C of the 2006 Building Code).

What can building officials do if they believe that building plans have been prepared in contravention of the Professional Engineers Act or the Architect’s Act?

Subsection 8 (9) of the Building Code Act, 1992 authorize chief building officials, upon reasonable grounds, to refer drawings, plans or specifications accompanying applications for permits or the reports arising out of the general review of the construction of a building to PEO or OAA for the purpose of determining if the Professional Engineers Act or the Architects Act is being contravened.  Further, Subsection 8 (9.1) of the BCA requires chief building officials to refer this information to PEO and OAA upon their request.

Other Matters:

Is a professional engineer required to complete Schedule 1 of the common Permit Application Form?

No.  Professional engineers are not required to complete Schedule 1: Designer Information on the Province’s common Application for a Permit to Construct or Demolish.

The Divisional Court in a decision of May 17, 2007 declared that subsections 15.11(5) to (7) of the Building Code Act, 1992 and former Section 2.17 (now Section 3.2 of Division C of the 2006 Building Code) do not apply to any holder of any licence or certificate issued under the Professional Engineers Act.

The Ministry is currently reviewing the common Permit Application Form in light of recommendations from the Building Advisory Council, recent Code reference renumbering arising from the 2006 Building Code, and the Court’s decision.

Is a professional engineer required to provide a BCIN with permit applications or general review reports?

No.  The Divisional Court in a decision of May 17, 2007 declared that subsections 15.11(5) to (7) of the Building Code Act, 1992 and former Section 2.17 (now Section 3.2 of Division C of the 2006 Building Code) do not apply to any holder of any licence or certificate issued under the Professional Engineers Act.

Are architects and architectural practices required to have a BCDS number?

No.  It should be noted that Regulation 27 made under the Architects Act was amended to eliminate the Building Code qualification and registration system for architects, including the Building Code Designation System (BCDS).  This change took effect on August 24, 2007.  For more information on this regulation, contact the Ontario Association of Architects.

August 24, 2007