April 7, 2026
You may know that a building permit is required in Ontario to erect a building.
THE ISSUE
As with most regulations, under the Building Code Act, there are many subtleties, which can be subject to interpretation. That interpretation often turns on the opinion of the Chief Building Official.
This includes seemingly simple questions like “what is a building?”
What happens if the Chief Building Official changes their opinion?
THE CASE
In 1391570 Ontario Inc. v. County of Norfolk, the Chief Building Official, as they often do, issued an “order to comply” based on the opinion that a retaining wall being erected by a developer fit the definition of “building” and therefore required a permit.
Retaining walls are among the types of construction that may or may not require a building permit, depending upon how they match a very technical definition in the Code.
Prior to construction, the developer inquired whether or not a permit was required. It was advised, by email, that no permit was required. So, construction commenced.
There was then a complaint to the County about the construction. The Chief Building Official inspected the property from the roadside, without entering the actual property. He issued an “order to comply” requiring a building permit for the wall.
When the developer applied to Superior Court for a declaration that the order to comply be rescinded, that the judge was critical of the building department’s “casual approach” to the situation.
The judge noted the limited visual inspection, and that:
…unaided by drawings, plans or other information, and without having inspected or informed himself about the use or zoning of adjacent properties, he determined that the retaining wall met the definition of a designated structure. He issued the order to comply that is in issue in this application.
The standard of review on an appeal from a Chief Building Official is reasonableness, the most common standard for judicial review of administrative decisions (though judicial review and appeal are technically different things).
The judge easily decided that the order to comply was unreasonable and should be rescinded. The judge did consider each aspect of the applicable portions of the definition of “building” under the Act, but the lack of evidence sank the County’s case.
The order to comply was rescinded.
TAKEAWAYS
- It is still important to obtain building permits when they are required.
- Relying on a municipal building department’s initial determination may be risky.
- However, decisions of the Chief Building Official are not final, they are subject to appeal to court.
- On appeal, the standard of review is “reasonableness”.
- Reasonableness is an extremely fact and situation specific. concept.
- Courts will not be sympathetic when building officials do casual or sloppy work in reaching their decisions.
- Sound legal advice about your rights may be a solid investment if you find yourself in a disagreement with a municipal building department.
WHAT WEILERS LLP CAN DO TO HELP YOU
Not every lawyer wants the challenge of working with your experts, or of arguing technical issues in Superior Court. Whether you work for a municipality in enforcing the Code or are in a difficult position as a property owner or contractor attempting to comply with the Code, Weilers LLP has the experience and knowledge to work with your experts to attempt to resolve the situation through negotiation. If that is not possible, we can vigorously represent your interests in court. If you find yourself confronted with a difficult Building Code issue and need legal advice, Weilers LLP may be the right lawyers for you.