On March 18, 2013, the Regulation to improve building safety1 came into force in Quebec. This Regulation introduces amendments to the Safety Code,2 a regulation adopted in virtue of the Building Act,3 which lays down minimum requirements for the development and maintenance of various facilities and structures in order to ensure public safety.
Highly publicized accidents resulting from structural failures prompted the Quebec legislature to develop new rules for the maintenance, inspection and safety of buildings, particularly with respect to structural damage. By adopting the amendments to the Code, the Régie du Bâtiment provides a response to requests from fire prevention stakeholders, which had urged the provincial government to enact stricter rules regarding fire safety, the whole without affecting the power of municipalities to adopt more stringent requirements. In addition, rules with respect to the maintenance of water cooling towers will come into force in May 2013, in direct response to the outbreak of legionnaires' disease which occurred in Quebec city during the summer of 2012.
In principle, these new requirements are applicable to all buildings designed for public use, excluding, single-family dwellings and residential buildings of less than 3 floors or less than 9 units.
While every building must comply with the rules applicable at the time of its year of construction or transformation, that is to say the general rules set out in various building codes (provincial or federal) in effect at the time of the construction or alteration of the building, these new amendments now impose a general obligation to maintain all buildings and equipment meant for public use in good condition. In our view, this provision alone does not change the scope of the building owner's liability, as the Civil Code of Quebec already provides that the owner is liable for injury caused by the ruin of its building. The innovative aspect of the new provisions is the addition of specific maintenance obligations for certain building elements.
The new, specific obligations of owners are threefold:
- More stringent rules for buildings employed for residential or care and treatment uses, including obligations regarding fire alarm and detection systems, smoke alarms, carbon monoxide alarms, fire separation, emergency lighting, flame-spread rating and means of egress;
- Rules for the maintenance of façades and multistorey garages;
- Rules for the maintenance of water cooling towers.
Some of these new provisions will be implemented on a phased basis. For example, the provisions related to fire safety in residential buildings or care and treatment facilities will start coming into force in 2014. Conversely, obligations regarding the maintenance of façades and multistorey garages have been in effect since March 18.
It appears that no other Canadian province has adopted rules for the maintenance of façades and parking garages as detailed and stringent as those recently adopted by the Government of Quebec in the Safety Code. However, their application is limited. Indeed, they do not apply to buildings exempt from the application of Buildings chapter, including agricultural buildings, industrial buildings and any building vacant for construction, renovation or demolition works.
As a general proposition, the Building chapter provides that a building subject to its application and with aboveground façades of 5 or more floors must now be maintained "to ensure safety and prevent the development of a dangerous condition".4
The owner must establish and maintain a register or logbook of the maintenance, inspection and repair of façades for consultation by the Régie du Bâtiment, containing, inter alia, a description of all repair work performed on the façades, as well as the inspection reports.
An inspection of façades must also be performed every 5 years by an engineer or architect to certify that the façades show no "dangerous condition", namely "when, at any time, an element of the façade may detach itself from the building or collapse and cause personal injury".5 Where appropriate, the report shall include recommendations to correct the defects which may contribute to the development of dangerous conditions.
An initial inspection report of the façades of a building must be obtained no later than 10 years old following the date of its construction. However, owners of buildings more than 10 years old as of March 18, 2013 must submit their first report within shorter delays. For buildings of more than 45 years old, the first report must be obtained within the first 24 months of the entry into force of the amendments, for those from 25 to 45 years old, within the first 36 months, for those from 15 to 25 years old, within the first 48 months and for those between 10 and 15 years old, within the first 60 months. Thereafter, a new report will be required every 5 years.
Provisions relating to parking garages are applicable only to "underground and aboveground multistorey garages with a concrete slab whose driveable portion is not laid directly on the ground".6 As it is the case for façades, the owner of a multistorey garage falling within the application of the Code must establish a register of repairs and inspections. However, the owner is subject to stricter requirements regarding the verification of the structure.
Additionally, the owners of such multistorey garages must perform an annual inspection with dated photographs, which are to be compiled in the register. Likewise, the owner must have an engineer perform a thorough safety inspection of its garage every 5 years attesting the absence of any dangerous condition or, where appropriate, providing recommendations to correct the defects. In addition, an in depth inspection must also be carried out following an event that may have an effect on the structural behavior of the parking garage.
For garages built less than five years but more than one year prior to March 18, 2013, the first in-depth inspection report must be obtained before March 18, 2014. For those built more than five years prior to March 18, 2013, the report must be obtained by March 18, 2016. Thereafter, in-depth inspections must be carried out every 5 years.
Finally, by May 12, 2013, all water cooling tower owners will be required to complete and submit an information form containing their coordinates, address of the tower's location, names of members of a professional order who developed its maintenance program and a brief description of the facility type. For every new water cooling tower, this form must be sent within 30 days of its construction and the Régie du Bâtiment must be notified of any changes regarding the information contained therein.
It must be noted that unlike façades and parking garages, the rules regarding water cooling towers are applicable to all buildings, without exception.
A maintenance program for such towers must be drawn up by one or more members of a professional order whose scope of practice is connected to cooling towers, such as a microbiologist. The program must take into account the history of the facility and be updated every 5 years or following any major modification, a change in water quality maintenance procedure, replacement of an appliance or equipment, or if the decontamination procedure provided by the maintenance program is carried out because "the quality of the water reaches an immediate health risk threshold".7
Just like façades and multistorey garages, a local register must be established by the owner of the water cooling tower. The register shall include, inter alia, information regarding the maintenance programs, results of water analyses for the past two years and the history of maintenance, repairs, alterations and replacements.
Ultimately, legal persons who violate any requirement set out by the Buildings chapter are liable for a fine ranging from $3,144 to $15,723 for a first offense. For a second offense, the fine can vary between $6,289 and $31,444. Any subsequent offense can result in a fine ranging from $18,867 to $94,333.
In short, the Buildings chapter was added to the Security Code with a view to preventing accidents and ensuring public safety. Minimum rules of due care for specific structural elements of some buildings are now in effect, with deterrent fines for failure to comply, particularly to overcome problems arising as a result of the advancing age of the real estate stock in Quebec.
1 O.C. 1263-2012.
2 c. B-1.1., r. 3.
3 c. B-1.1.
4 Sec. 372 of the Safety Code.
5 Sec. 375 of the Safety Code.
6 Sec. 385 of the Safety Code.
7 Sec. 403 of the Safety Code.
The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.
© Copyright 2013 McMillan LLP