What is the municipality’s obligation upon a building inspector to supervise a construction project?

On the facts of the case in Rothfield v. Manolakos, Mr. Justice LaForest formulated a question at para. 21 of his decision “In other words, is it reasonable, in the circumstances to conclude that a due exercise by the inspector of his powers, even though he was summoned late, could have avoided the danger?” In further assessing the obligation upon the municipality, Mr. Justice LaForest answered his own question in this way at paras. 22-24 of the judgment; (22) When the question is framed in this way, I think the answer must be in the affirmative. The inspector could not and did not rely on the plans submitted to him; it was inadequate. He chose instead to rely solely on the onsite inspection. And when he attended at the site, he 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 upon 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. (23) Indeed, the inspector stipulated that the situation be monitored for a certain time and that construction proceed if no further damage occurred. In my view, this was negligence. When a building inspector authorizes a given project to proceed this must be taken as an indication that the inspector has satisfied himself that the project conforms to applicable standards. On what other basis could the building inspector, acting prudently, authorize construction to proceed? Here, on the (page 1275) facts, I do not see how the building inspector, using reasonable care, could have satisfied himself that this was the case. Even leaving aside the fact that the project was already showing signs of damage, the inspector, never having inspected the structure, simply did not have at his disposal any information on which to base a conclusion that the project was up to standard. Indeed, had the inspector simply turned to the city’s records or inquired about the manner in which the structure was built or about the materials used in the construction, he would have discovered from the specifications what he ought to be taken to know in any event, that the structure was deficient in a number of important aspects. (24) To return, then, to my initial proposition that it would be unreasonable to hold the owners to be the “sole authors of their loss”, I see a vital distinction between this case and instances where an owner/builder determines to flout the building by-law, or is completely indifferent to the responsibilities that the by-law places on him. In such circumstances, owner/builders cannot reasonably allege that any damage they suffer is a result of the failure of the building inspector to take reasonable care to ensure that a given construction project is built in conformity with the by-laws. They have, by their actions, placed themselves outside the scope of the duty owed by the public authority. In effect, their breach of the regulations is such as to justify the conclusion that they can have no reasonable expectation that they are entitled to rely on the due exercise of the inspection power to forestall dangers to their health and safety. In summary, the duty of building inspectors should not be taken to extend to requiring them to ferret out those who are aware or indifferent as to whether work is being done illegally, and who persist in that course of action.