Case Law Review

Failure to Enforce Regulations

This is an element of negligence and is discussed in the following cases, as well as in the Delta and Powell River cases discussed under item 2 above.

Bakhtiari v Axes Investments Ltd (20020 24 MPLR (3d) 248, is a very lengthy judgment of the Ontario Superior Court of Justice, where the City of North York (now part of the mega-city of Toronto) was found 20% liable for injuries sustained in a high rise apartment fire, as a result of its failure to enforce fire safety requirements for self-closing devices (SCDs) on doors. The court found that the city’s building bylaw, in force when the apartment building was constructed, required SCDs on all interior fire separation doors, a category in which the court placed the individual suite doors, and that the city was negligent in failing to require them in this case.

Furthermore, the building’s owner had been granted an extension of time to meet the city’s bylaw requirements as part of a compulsory program of upgrading older apartment buildings authorized by legislation enacted by the province of Ontario in 1992. There was a two year period of compliance and a possible extension for two more years. The legislation contained no criteria for granting the extensions, but the statement they “must be based on sound financial or logistical reasons and be accompanied by a schedule for completion of the required work” was set out in a Commentary on Changes to the Fire Code. The application had to be dealt with in 10 days. The extension requested included the required SCDs and financial hardship was the reason given. The court found that while the official in charge of extension applications was not specially trained in analyzing financial statements, his decision was reasonable and could have been reached by someone who was experienced in such matters.

The alleged failures of the city in actually fighting the fire were found not to have contributed to the plaintiffs’ injuries, unlike the failure to require the SCDs.

In a 2002 BC case, Cambridge Plumbing Systems v. City of Vancouver et al (2202) 29 MPLR 304, the plaintiff, a plumbing contractor, sued Vancouver and 9 other Lower mainland municipalities for economic loss resulting from failing to enforce their bylaws, specifically the way in which other contractors performed epoxy pipe coating. The claim alleged that the defendants failed to require epoxy applicators to obtain permits, to insure that they were properly trained, to inspect plans and to inspect the work done. Vancouver applied successfully to strike out the claim on the ground that it disclosed no reasonable claim.

The city pointed out that the plaintiff is “neither the owner nor prospective purchaser of property where epoxy pipe coating is used”, nor “a contractor working on such property”. The plaintiff is a competitor of other such contractors. The court agreed “the duty of a municipality to inspect without negligence is owed only to the property owner and to prospective purchasers”.