Does a municipal inspector owe a duty of care to owner-builders?

30 Having decided that municipal inspectors owe a duty of care to owner-builders, La Forest J. proceeded to discuss the implications of the owner-builder’s negligence. He considered the dictum of Lord Wilberforce in Anns v. Merton London Borough Council, supra, that no duty is owed “to a negligent building owner, the source of his own loss”; see Rothfield v. Manolakos, supra, at p. 1271. La Forest J. found that this principle was applicable only in the narrowest of circumstances. At p. 1271, he states: It is to be expected that contractors, in the normal course of events, will fail to observe certain aspects of the building by-laws. That is why municipalities employ building inspectors. Their role is to detect such negligent omissions before they translate into dangers to health and safety. If, as I believe, owner builders are within the ambit of the duty of care owed by the building inspector, it would simply make no sense to proceed on the assumption that every negligent act of an owner builder relieved the municipality of its duty to show reasonable care in approving building plans and inspecting construction. Negligent owners would be viewed as the sole source of their own loss where they, for example, knowingly flouted the applicable building regulations or the directives of the municipality, or totally failed to acquit themselves of the responsibilities that properly rested on them, none of which apply in this appeal. La Forest J. concluded that the conduct of the plaintiffs in Rothfield v. Manolakos, supra, was not such as to make them the sole source of their own loss.

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.

32 There are several passages in the reasons of La Forest J. in Rothfield v. Manolakos which make it clear that the negligent conduct of an owner-builder should not absolve a municipality of its duty to take reasonable care in its inspection. For example, at p. 1273, he states: It cannot be disputed that the owners were negligent in failing to give timely notice for the pre-pour inspection. The by-law places this obligation squarely on every property owner. But the fact remains that when the inspector did attend at the site he was confronted with a situation in which it must have been at once clear to him that the retaining wall was potentially substandard. As I have just pointed out, there is no mystery to the fact that uninspected foundations may give rise to hidden defects. Again, at p. 1274, he states: . . . when he attended at the site, [the inspector] was confronted with a situation which, if left unremedied, manifestly stood to pose a threat to the health and safety of the public, including the neighbours and the owner builder. Of course, the cause of the problem would have been evident if the inspector had been asked to come at the proper time. But this does not absolve the inspector of his duties. It must be remembered that the inspector was, at the time, armed with all the powers necessary to remedy the situation. As I see the matter, it was incumbent on the building inspector, in view of the responsibility that rested on him, to order the cessation of the work, and the taking of whatever corrective measures were necessary to enable him to ensure that the structure was up to standard. In light of these two passages, it is apparent that an inspector who attends at a site owes a duty of care to the public, to third-party neighbours, and to owner-builders to ensure that all renovation and construction projects meet the standards set out in the by-laws. This duty arises regardless of the conduct or negligence of the owner-builder.