Can an owner-builder be a defence to a finding of negligence on the part of a municipal inspector?

31 There is some ambiguity in the decision in Rothfield v. Manolakos as to where in the traditional tort law analysis the consideration of an owner-builder’s negligence should take place, namely whether the analysis should take place in the determination of whether a municipality owes a duty of care to the negligent owner-builder, or whether the negligence of an owner-builder can serve as a defence to a finding of negligence on the part of a municipal inspector. This ambiguity stems from the fact that La Forest J. began his analysis of the consequences of the negligence of an owner-builder by quoting the dictum of Lord Wilberforce in Anns v. Merton London Borough Council, supra. At p. 504, Lord Wilberforce states: To whom the duty is owed. There is, in my opinion, no difficulty about this. A reasonable man in the position of the inspector must realise that if the foundations are covered in without adequate depth or strength as required by the byelaws, injury to safety or health may be suffered by owners or occupiers of the house. The duty is owed to them, not of course to a negligent building owner, the source of his own loss. Lord Wilberforce’s dictum does imply that an examination of the negligence of an owner-builder will take place within the two-step analysis of whether a duty of care is owed by a municipality in conducting an inspection. As a result, the analysis of the consequences of the negligence of an owner-builder in Rothfield v. Manolakos, supra, also uses language which implies that the inquiry into whether a municipality is liable for its negligent inspection will end at the duty stage of the analysis if the plaintiff’s conduct is found to be such as to make him or her the sole source of his or her own loss. Upon further examination, however, it is my view that the true intention of the decision in Rothfield v. Manolakos was to create a defence available to municipalities in a very limited set of circumstances.