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25 April 2024

Mastering Compliance: Understanding Safety Codes Council Orders And Appeals In Construction

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The Court of King's Bench reaffirmed the decision by the Safety Codes Council of Alberta Appeals Panel, which found that portable storage racks in a warehouse...
Canada Real Estate and Construction
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The Court of King's Bench reaffirmed the decision by the Safety Codes Council of Alberta Appeals Panel, which found that portable storage racks in a warehouse do not fall under the National Building Code's jurisdiction. This judgment emphasizes the court's constrained role in only addressing legal and jurisdictional questions, leaving factual determinations untouched. The court applied a correctness standard, meaning it independently assessed the tribunal's legal interpretations without deference. This case underscores the importance for construction parties to be aware of their rights to appeal decisions made by Safety Codes Officers and the procedural limits of such appeals.

Inspections under the Safety Codes Act are a component of almost all construction projects. Various disciplines require inspections from an accredited Safety Codes Officer in order for occupancy to be granted. But what if a party – either the owner or the municipality – disagrees with a Safety Codes Officer's decision? Is there some appeal mechanism? And if so, when and to what extent can a Court get involved in determining the issue?

The Court here dealt with this issue, and confirmed a Court can only hear appeals on questions of law or jurisdiction. The Court has no ability to overturn decisions based on factual findings of the Safety Codes Council of Alberta Appeals Panel.

Background

In 2021, a Safety Codes Officer inspected a warehouse owned and operated by Group Touchette. The Officer and an engineer's report concluded that free-standing storage racks in the warehouse were not portable and therefore, had to comply with the National Building Code for fixed storage racks.

The owner appealed the Safety Codes Officer's order to the relevant tribunal – the Safety Codes Council of Alberta Appeals Panel (Building Sub-Council). The tribunal found that the racks were portable when not stacked. As a result, these racks were exempt from the requirements of the Code. The owner was directed to obtain a building permit with a scope excluding portable storage racks, while ensuring the building configuration and floor area accommodated the racks.

The City of Calgary appealed the tribunal decision to the Court of King's Bench, arguing the tribunal erred in law by finding that the Code did not apply to the storage racks.

What the Court Said

The Court confirmed that the Safety Codes Act only allows the Court to hear appeals on questions of law or jurisdiction. The Court can then confirm, revoke, or vary the Order of the tribunal. Since the tribunal found as a fact that the storage racks were portable, the sole question of law was whether the portable racks were subject to the Code and the Act. In addition, the Court had no ability to vary the tribunal's factual conclusion that the storage racks in question were portable.

When reviewing statutory appeals from administrative tribunals that engage questions of statutory interpretation, the Court must apply a standard of correctness, as it pertains to questions of law. Under this standard, no deference is afforded to the tribunal's decision on questions of law and the Court is therefore "free to replace the opinion" of the tribunal with its own. The Court can either uphold the tribunal decision or substitute its own view. Nevertheless, the Court is to take the tribunal's reasoning into account when conducting its review.

In its statutory interpretation analysis, the Court considered the context of the Act and Code when reading the words of the relevant sections at issue. When viewed holistically, the Court determined the Act requires minimum safety standards for the development and maintenance of buildings. Further, the Act is informed by the various codes implemented under it, such as the National Building Code.

The Court then turned its attention to the provisions relevant to the analysis of whether portable racks are subject to the Act and Code. In its analysis, the Court found that the Code mandates minimum safety requirements for building structures but is not meant to be all-inclusive. Thus, the Court agreed that the tribunal had correctly interpreted and applied the legislation, as the storage racks, being portable, did not fall under the Act or Code's jurisdiction.

Ultimately, the Court dismissed the appeal and reaffirmed the tribunal's decision. The Court held that to find portable racks subject to the Code would be inconsistent with the legislative purpose and intent of these collaborative statutes.

Takeaways

The decision highlights the Court's limited jurisdiction to review administrative rulings made by the Safety Codes Council of Alberta Appeals Panel. While the tribunal can make factual determinations contrary to that of a Safety Codes Officer, the Court cannot do so. Appeals to the Court of King's Bench are restricted to questions of law and jurisdiction.

In instances where the appeal contests the tribunal's interpretation and application of the Act or the various Codes enforced pursuant to the Act, the Court will apply well-established principles of statutory interpretation in its analysis. The Court will evaluate the decision against a standard of correctness, signifying that no deference will be given to the Council's decisions on questions of law.

For construction parties, knowing the potential recourse to appeal a Safety Codes Officer's decision to the tribunal, or from there to the Court, is important. Particularly if an appeal to the Court is brought, the Court has limited ability to vary an underlying decision.

Understanding the Safety Codes Act is crucial for ensuring that construction projects and property developments meet essential safety standards and regulations. These processes ensure compliance, resolve disputes, and guide the completion of projects within legal frameworks.

Link to decision: Calgary (City) v Group Touchette Real Estate Inc, 2024 ABKB 65

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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