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 Posted: Tue Oct 07, 2003 4:10 pm Post subject: New municipal liability shield in N. Van -- more to come? |
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What can you tell me about N. Van's proposed Bylaw 7353 Building Regulation Bylaw, 2003?
The purpose of the bylaw is to set out the roles and responsibilities of owners, professionals, constructors and the District in the construction process, which really means limiting government liability for negligence in the building inspection process. Click on Council minutes for public discussion and council's resolutions on the matter, which will again be on the District's agenda this month.
The rationale for the bylaw is explained in the July 8 report by Chief Building Inspector Brian Bydwell , the report, a profoundly disturbing document from a consumer advocacy perspective. Here's the trade-off: In order to preclude government liability for negligent inpections after the big Delta leaky condo decision, the proposed bylaw will severely limit municipal inspections in N. Van, making consumers there considerably more vulnerable to B.C.'s already loosely regulated housing industry.
The bylaw is the work of legal lights from the Municipal Insurance Association and the District's solicitor, who have determined that the best way to deal with a potentially negligent inspection process is not to upgrade or improve that process but "to limit the building officials role to limited and interim spot checking, to rely on the system of compliance as set out in the BC Building Code for complex buildings as well as professional assurances."
How will lawyers advise potential buyers in this scenario? How long before other municipalities follow the N. Van bylaw? The report begs a number of important questions and we'll try to ask them.
Please check back for answers and let the district council know your views.
Note: Consumers diligent enough to check on North Van's building inspection process have their work cut out for them. View the whopping 83 hits we got at the District's website June 1/05 here - and not one of them told us what became of the bylaw above. The only vaguely relevant link we found after searching the terms, 'building inspection,' was Design Panel, but it fails to describe any procedure that might provide a buyer with some assurance that his property has undergone critical review. This is particularly disturbing in view of the January, 2005 mudslide now the subject of a lawsuit. For more on the suit, scroll down. |
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Guest
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| Posted: Tue Oct 07, 2003 4:23 pm Post subject: |
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Vancouver home builders and developers given a bylaw heads-up by North Van
Here's one response to the proposed bylaw from the Greater Vancouver Home Builders' Association in its Oct. 6 Monday Morning Briefing:
| Quote: | BUILDING REGULATION BYLAW CONSIDERED BY DISTRICT OF NORTH VAN
The District of North Vancouver is considering a new Building Regulation Bylaw that sets out the roles and responsibilities of owners, professionals, constructors and the District in the construction process. The District's City Clerk sent me an e-mail at 3 p.m. on Friday, September 26 to inform me that Council would be considering a staff recommendation that the new bylaw be given first, second and third reading at the Monday, September 29 Council meeting. This short notice to the industry was, of course, unacceptable. Council agreed and instructed staff to ask GVHBA and other industry groups to review the proposed bylaw and provide comments for consideration by Council some time in November. We are asking North Shore builders to review the proposed bylaw and provide comments to GVHBA. Call Larraine at 604-588-5036 and she will send you a copy of the document. |
Note: Not long after we posted this excerpt, the availability of the Monday Morning Briefing was limited to members only. It was still that way when we checked June 1/05. |
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Guest
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| Posted: Wed Oct 08, 2003 5:10 pm Post subject: |
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Our e-mail to the Trial Lawyers Association of B.C. to see if litigators were similarly consulted:
| Quote: | From: editor [mailto:editor@bccondos.ca]
Sent: Wednesday, October 08, 2003 5:06 PM
To: 'tla-info@tlabc.org'
Subject: N. Van builders get heads-up from district city clerk
Dear B.C. Trial Lawyers,
The folks at www.bccondos.ca were somewhat taken aback to learn that the Greater Vancouver Home Builders’ Association got a personal phone call from N. Van’s District City Clerk with the scuttlebutt on upcoming legislative changes. Have a look at this item we pulled from the association’s online Monday Morning Briefing feature from Oct. 6 (see above post).
This is the proposed bylaw that answers the problem of potentially negligent building inspections by gutting the inspection process, leaving consumers even more vulnerable to B.C.’s loosely regulated building industry. You can click on the City Clerk’s report and the proposed bylaw at our Condo Law FAQs forum.
We were just wondering if the District of N. Van extended you the same courteous heads-up? We’re certain no one called us.
Editor@bccondos.ca |
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Guest
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| Posted: Tue Oct 14, 2003 5:20 pm Post subject: |
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What is the Municipal Insurance Association referred to in the district clerk's report?
Here is the Municipal Insurance Association's Building Bylaw Project of July, 2002 prepared by Thomas Barnes of Barnes Twinings & Short. The report explains the risk of liability involved in current municipal inspection schemes and recommends legislative wording to undercut that risk. We found the following paragraphs at p. 15 under the heading Case Law Review particularly instructive:
| Quote: | Owners, whether an individual putting an addition on a private residence or a developer constructing a multi-unit condominium, often have little interest or motivation to expend more than the minimum resources required to meet whatever standards apply to their particular project. Developers often incorporate a new company for each project. The low bid system tends to award work to the contractor who is wiling to run the greatest risk and cut the most corners. This is a major reason why construction companies enter and leave the industry with astonishing frequency. The focus on doing the minimum required means all too often that the periodic inspections of the design professional or building inspector are the primary quality control measures implemented on a given project. In these circumstances, it is not surprising that producing a high quality, low maintenance building is neither a priority, nor, all too frequently, a result.
Add to this the fact that it is often many years before serious construction deficiencies become known and it is not surprising that the builder and developer are no longer in the picture when the claim is made. Many claims against municipal authorities arise from construction that took place decades perviously. In these situations, it is rare for design professionals still to be in existence. Even if a builder or developer is found to be joined as a party, there is a good chance it will have either no insurance or insufficient assets to cover its liability. As a result, it falls upon secondary players in the construction to foot the bill. |
There are 85 pages of this report to digest, and we intend to read it carefully over the next few days. We have three questions so far for the association:
1. If a municipal council decides to gut rather than improve an admittedly inadequate inspection process, would a court consider that decision to have been made in good faith?
2. Would a newly gutted public inspection process trigger a municipality's duty to warn consumers of the new danger posed by that process? If so, what effect might this have on the construction frenzy in anticipation of Olympics 2010?
2. Without adequate public inspections, how will buyers be able to ensure their homes meet the requisite codes and standards? Will private inspection firms be allowed to inspect during the construction process? What effect will this have on real estate prices?
We'll be looking for these answers and more in days to come. Please check back soon for updates.
Ed. |
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Guest
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| Posted: Mon Oct 27, 2003 3:33 pm Post subject: |
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Municipal Insurance Association
Here is the e-mail we just sent the Municipal Insurance Association's website in an effort to find out about the costs of improving the public inspection process:
| Quote: | From: editor [mailto:editor@bccondos.ca]
Sent: Monday, October 27, 2003 2:33 PM
To: 'kolive@miabc.org'
Cc: 'editor@bccondos.ca'
Subject: Cost of improved public inspection process
Dear Executive Director Olive,
We’re a leaky condo consumer advocacy website at www.bccondos.ca and we’ve been examining your association’s answer to the liability risk of various municipalities as a result of current building inspection practices. While we can’t quibble with a sensible risk management strategy to avoid American-style bankruptcy resulting from huge tort settlements, we’re concerned with three issues:
1. Would a municipality that adopts a much more restrictive public inspection process have a duty to warn consumers, who likely and probably reasonably assume adequate inspections remain in place?
2. Would private building inspectors be allowed under a gutted inspection process to conduct field reviews of a building during construction?
3. Are there any estimates available from a cost-benefit analysis of a plan to improve rather than gut the public inspection process?
Thank you very much for your kind attention.
Editor@bccondos.ca |
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Guest
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| Posted: Mon Oct 27, 2003 5:53 pm Post subject: |
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| Quote: | From: Ken Olive [mailto:kolive@miabc.org]
Sent: Monday, October 27, 2003 2:30 PM
To: editor
Subject: Out of Office AutoReply: Cost of improved public inspection process
I am away until November 10th. For immediate assistance contact Mitch Kenyon or Angela Smith. |
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Guest
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| Posted: Mon Oct 27, 2003 5:55 pm Post subject: |
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How we love auto-messaging. We'll try both.
Ed. |
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Guest
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| Posted: Wed Nov 12, 2003 3:44 pm Post subject: |
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| Quote: | From: Ken Olive
To: 'editor'
Sent: Wednesday, November 12, 2003 1:05 PM
Subject: Cost of improved public inspection process
Sorry for the delay in responding but I have just returned to the office and will get to your questions as soon as I am able. |
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Guest
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| Posted: Wed Nov 12, 2003 3:45 pm Post subject: |
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| Quote: | From: editor@bccondos.ca
To: Ken Olive
Sent: Wednesday, November 12, 2003 2:27 PM
Subject: Cost of improved public inspection process
Great. Thanks. We look forward to hearing from you. |
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Guest
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| Posted: Mon Nov 17, 2003 10:23 pm Post subject: |
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Our reply from Ken Olive:
| Quote: | From: Ken Olive
To: 'editor@bccondos.ca'
Sent: Monday, November 17, 2003 3:41 PM
Subject: Cost of improved public inspection process
In responding to your questions it is important to note that the changes recommended in the Core Building Bylaw mainly concern complex construction, where architects and/or engineers are present as required in the Building Code. So the average single family home will see little change in the inspection process except perhaps in the area of foundation design, where the requirement for professional review may be more rigorous due to soil bearing conditions. Exceptional homes may require the expertise of architects or engineers during design and construction.
In the Barrett Commission report dealing with complex construction was a recommendation that municipalities should make clear to homeowners their exact functions and responsibilities under the inspection process because "the role of local government with respect to building inspection and plan checking is misunderstood" and "it is not the municipalities role to ensure the quality of construction .... the ultimate responsibility for the quality of construction must rest with the developer/builder. The developer can then contract that responsibility to the professional architect or engineer." And further "the role of building official is to monitor the process".
Design professionals are the persons charged with responsibility under the B.C. Building Code and Architects Act with design and subsequent field review and to provide Letters of Assurance to local government that the Building Code is complied with. There will be greater monitoring of this process and for the first time direct reference to the requirements of the Architects Act in Building Bylaws.
Field reviews of complex construction were and are the responsibility of design professionals. Local governments responsibility is to make sure the Letters of Assurance are delivered by those professionals. Private inspectors cannot assume the role of design professionals under the Code. The inspection process by local governments under the Core Bylaw will see no fewer local government building officials at work, indeed their resources in at least one case I know of will increase. The objective is to target resources towards reduction of defects from construction. This is the monitoring process described by the Building Code.
The public inspector process is not being gutted as a careful reading of the report will show. To "gut the public inspection process" would simply lead to more defects in construction and more lawsuits, exactly the opposite of our intent. And clearly the status-quo was not working. Also, building bylaws were inconsistent across the province. As stated on page 1. of the MIA Building Bylaw Project, "Our goal is to develop core building bylaw provisions that reflect the policy decisions made by local governments, restrict the associated responsibilities to matters that are attainable and the consequent liabilities to risks that are foreseeable, fundable and controllable." Our paper identifies the role of local government and others as set out in legislation such as the Local Government Act, Architects Act and B.C. Building Code.
For complex construction there is greater scrutiny by local governments under the MIA Core Bylaw, a requirement for architects involvement where required under the Architects Act (a situation highlighted by the Delta decision where no architect was present, but was required), a schedule requesting notification of design professional's insurance (key for consumers), greater oversight of letters of assurance for professionals design and field review by local governments, consistent core principals in local government bylaws across B.C. and a reduction of taxpayer associated costs where parties to construction avoid liability for their negligence, which because of the rule of joint and several liability results, (again as in the Delta decision), is the local taxpayer paying to repair damages caused by responsible parties. It would be a mistake to believe that the local building inspection process has been restricted under new building bylaw provisions for complex buildings when in fact the opposite is true. As risk managers for local government a tighter, better directed system of monitoring construction not a reduced system, is what will reduce damages and related expenses to the taxpayer. Those are the foundations of the Core Building Bylaw. |
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Guest
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| Posted: Mon Nov 17, 2003 10:26 pm Post subject: |
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A note of thanks:
| Quote: | From: editor@bccondos.ca
To: Ken Olive
Sent: Monday, November 17, 2003 9:15 PM
Subject: Cost of improved public inspection process
A comforting and carefully considered response. We'll post it immediately. We're pleased to see the risk of building failures placed squarely on the shoulders of designers rather than on municipalities (taxpayers). Thanks very much.
Ed. |
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Guest
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| Posted: Wed Nov 19, 2003 11:09 am Post subject: |
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What are Letters of Assurance and why are they so important?
Here's what the Barrett report, somewhat whimsically titled The Renewal of Trust in Residential Construction Part II, Volume Two, (March 2000) had to say about them:
| Quote: | | For all Part 3 buildings of the BCBC [Building Code], there is a requirement for a registered professional to submit Letters of Assurance confirming that the design components of the plans and supporting documents prepared by the registered professional, substantially comply with the BCBC. After construction but prior to requesting a final inspection, the registered professional submits a “Letter of Assurance,” confirming that s/he has fulfilled the obligations for field reviews and that those components, as built, substantially comply with the design drawings submitted to the municipality. The Letters of Assurance require that the registered professional be responsible for design and field review of exterior finishes, roofing, wall cladding systems, thermal insulation systems, including condensation control and cavity ventilation and exterior glazing. |
We also found this technical bulletin, Letters of Assurance and Due Diligence, at the Association of Professional Engineers and Geoscientists of B.C. (APEG BC) website, which sets out quite clearly the duties and obligations of building professionals when they sign these powerful legal documents and submit them to municipal authorities. The bulletin goes on to say:
| Quote: | | However, experience has shown that the use of LOA across BC is not uniform and there is some misunderstanding among owners, authorities having jurisdiction, engineers and architects about the responsibilities that stem from the LOA. APEGBC has become aware of instances where members have not exercised the appropriate due diligence before providing their signature and seal to the LOA. Examples include projects involving backfilling, welding of structural steel (see article in the March 1993 issue of The BC Professional Engineer), fire alarm systems and concrete reinforcement. (emphasis ours) |
Have a look, too, at this article, Design Professionals’ Liability for Field Services, 19 C.L.R. (3d) 104, listed at the Courthouse Library by Brian Shapiro, who was engaged in the early ‘70s by an insurance company to analyze more than 2,000 claims against architects and engineers to determine why the overwhelming majority of the claims involved field service work.
Mr. Shapiro had this to say about Letters of Assurance:
| Quote: | | It should be noted that just prior to the “leaky condo” crisis all municipal governments moved heaven and earth to create legislation requiring “letters of assurance” from architects and engineers. These “letters of assurance” effectively foisted all liability away from municipal building departments onto architects and engineers. |
From a consumer perspective, it seems reasonable to expect that either an architect or an engineer will have approved all construction on a building. Who else would be qualified to do so? However, Mr. Shapiro describes professional responsibility issues inherent in the certification process not unlike those facing a lawyer representing both sides in a dispute.
| Quote: | | In the writer’s experience, A/Es must endure an eternal dilemma which arises on most, if not all, construction projects, which may account in no small measure for the design professionals’ problems in the field service area. A/Es appear to have an inherent conflict of interest on most construction projects. The A/E has a judicially-considered duty to act impartially and objectively in administering the contract between the owner and the contractor. The A/E also has a concurrent duty to act with professional care in carrying out its field service. At the same time, the A/E has a duty to protect the client in accordance with his contractual obligations set out within his contract with the client. Of course, he also has a duty to protect himself from self-incrimination and to avoid prejudicing the defence of any liability claims brought against him by the client or the contractor. Some writers hypothesize that the A/E, in wearing these three hats simultaneously, is in an untenable position, which in and of itself increases the likelihood of claims, particularly in the rendering of field services. |
The author suggested further that municipal building inspectors may be better positioned than architects and engineers to assume liability for defective construction because of a number of perceived (by some architects and engineers, presumably) advantages municipal inspectors may have, including:
union protection against harassment;
independent remuneration by city governments;
immunity from termination by developers or contractors;
absence of conflict of interest. Building inspectors never have to inspect or reject the work of their employers;
reasonable reliance on ever increasing building permit fees and development cost charges (with little or no recourse from the public, developers or contractors);
authority and jurisdiction to use discretion in interpreting the building code;
immunity from being sued personally for construction problems.
Food for thought. |
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editor
Site Admin
Joined: 01 Dec 2003
Posts: 878
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| Posted: Tue May 31, 2005 11:39 am Post subject: |
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Is your lot safe?
North Van's fatal mudslide anticipated in 25-year-old engineering study
It appears we're not the only ones wondering if a municipality can legislate its way out of liability for the sale of a home known to have been at considerable risk of being washed away in a mudslide.
We refer to the North Shore Outloook story of April 21/05 by Justin Beddall, Mudslide lawsuit filed, which states in part:
| Quote: | A District-commissioned 1980 geotechnical appraisal report of the Berkley/Riverside area provides the underpinning for the claim. The report, penned by Klohn Leonoff Consulting, presented a general geotechnical appraisal of the potential for slide activity along the east bank of the Seymour River, which had been the site of a serious slide in 1979 following a severe winter storm that demolished a pair of homes at the base of the slope.
The report noted that topography at the slope area, about 250 feet high with homes at the top and bottom, had been altered by residential development. At the top of the slope, fill had been used to extend the size of some lots making the slope artificially steepened. At the bottom, some parts of the slope had also been cut back in order to extend the level lot area, it noted.
The report stated that the greatest danger for future sliding exists at the bottom of the slope. Homes built on the crest of the slope, it said, are founded in dense natural soils that are not at risk to surface sliding. The one exception is the house at 2175 Berkley - the home bought by the Perrault family last July.
"The house at 2175 Berkley Ave. is founded on fill. However, it is located well back from the crest of the slope and outside any potentially unstable zone," the report stated.
[Atty. James] Straith says his clients had no idea about a District-commissioned 1980 geotechnical appraisal of the Berkley/Riverside area, when they bought their home in July 2004.
"Our position is very clear. The District had a duty. You're dealing with people's lives, limb and security of property. The District has a duty to tell people. Not to file it away and hope the problem will go away. (emphasis ours) They had a duty, they had a choice -- they ignored the choice. The question as to the extent of their legal liability will be decided by the courts."
Straith says his clients were also unaware of a letter sent to homeowners in the area prior to the report by then-Mayor Don Bell. The letter, dated May 20, 1980, acknowledges a petition from local area residents for the District to undertake a geotechnical study of the area to provide information and investigate the potential for future slides in the area and recommend corrective action to prevent slides or slippages. |
See also news stories at CBC.ca Online, including Wednesday's slide predicted in 1980 report , Slide warnings ignored, says former North Van resident, both of Jan. 20/05 and North Vancouver on alert for more mudslides of Jan. 21/05 from which the following is excerpted:
| Quote: | Vancouver geoscientist Mattias Jakob said Wednesday's mudslide in North Vancouver comes as no surprise, and warned that more could occur within days.
"With more rain and high intensity rain, I think we can expect more landslides in Greater Vancouver and the ... Fraser lowlands," said Jakob, who completed a landslide study for the municipality several years ago. |
Here, too, is the response of Jan. 24/05 by the City of North Vancouver, which makes no mention of disaster relief by the federal and provincial governments reported by CBC Online (see above).
We anxiously await the outcome of the lawsuit and will provide links as they become available. Please check back for updates.
Last edited by editor on Fri Jun 24, 2005 1:39 pm; edited 2 times in total |
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editor
Site Admin
Joined: 01 Dec 2003
Posts: 878
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| Posted: Wed Jun 01, 2005 10:28 am Post subject: |
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Still no public tracking or assurance that land parcels new and old are secure
..Four months later, the Perraults are still waiting for soil test results
For more, see the CBC.ca Online story of June 1/05, North Van family still waiting to see if house is safe.
We're deeply troubled by this story, by the City of North Vancouver's delayed response and especially by its failure to publicly track the disaster or even provide some assurance that frenzied condo construction in North Van is indeed taking place on secure lots. The Construction link at the city's website looks disturbingly like an ad for home builders. Why isn't January's mudslide a Hot Topic? To consumers - especially out-of-towners targeted by condo developers and who have no other way of informing themselves about the area's slide history - it's a sizzler. |
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editor
Site Admin
Joined: 01 Dec 2003
Posts: 878
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| Posted: Wed Jun 22, 2005 4:24 pm Post subject: |
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Another lawsuit following the fatal North Van mudslide in January, 2005
We found the following headline on the bottom half of the Vancouver Sun's Westcoast Section B on June 22/05: Mudslide victim's family sues district, Eliza Kuttner died when family home was swept away, by Brad Badelt. Here are three key paragraphs from the story:
| Quote: | The family of a woman who was killed by the devastating landslide in North Vancouver in January filed legal action Tuesday against North Vancouver District, alleging the district intentionally withheld information about landslide risks in the area.
The family is also suing the former owners of the neighboring property at 2175 Berkeley Ave., where the slide is believed to have started, for making changes to their land which the Kuttner family alleges caused the slide to occur.
...The Kuttner family is claiming for the wrongful death of Eliza Kuttner under the Family Compensation Act, as well as for injuries and property damage sustained in the slide. |
For more on the Family Compensation Act, see Working Paper No. 69 of November, 1992, Pecuniary Loss and the Family Compensation Act, by the B.C. Law Reform Commission. |
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