Legal Issues: The regulation of building materials

by Leo Longo and Meaghan Barrett

Photos courtesy EIFS Council of Canada
Photos courtesy EIFS Council of Canada

An exterior insulation and finish system (EIFS) is considered a general class of nonloadbearing building cladding assembly providing exterior walls with an insulated, water-resistant, and finished surface in an integrated composite material system (An earlier version of this article appeared in the September 2018 issue of the Ontario Building Official Association’s [OBOA’s] Journal). It is widely used throughout the country.

In Ontario, issues have arisen about a municipality’s ability to regulate the use of EIFS under its site plan control powers.

The EIFS Council of Canada has launched an application to the Superior Court of Justice against the City of Waterloo seeking a declaration that the provisions of the City’s Urban Design Guidelines, Supplementary Design Guidelines, and Northdale Urban Guidelines unlawfully trench on provincial jurisdiction by purporting to regulate the use of EIFS as part of its site plan control process.

Some municipalities, including the City of Waterloo, have adopted site plan control guidelines and Official Plan policies targeting the use of EIFS (occasionally referred to as ‘stucco’) and treating the product as simply an esthetic finish in the construction process. As a result, municipal staff are requiring architects and designers to change project submissions so as to remove the proposed use of EIFS products.

The problem with the approach taken by the City of Waterloo and other municipalities is EIFS is not an esthetic finish, but rather a construction system addressing building science requirements, including exterior wall heat transfer, air leakage, vapour diffusion control, and protection from outside weather elements through standardized composite elements. EIFS is often used for its energy-conserving properties, and, as a secondary point, can be manufactured to meet a wide range of esthetic finishing specifications, including colour, texture, or decorative detail.

EIFS’ argument is based on a thorough reading of the statutory framework governing site plan control matters in Ontario. Though a municipality is empowered to regulate the appearance, character, and scale of development through the site plan control process, its authority is limited as it cannot regulate matters falling under the jurisdiction of the Ontario Building Code (OBC). EIFS will argue on this basis certain policies and guidelines of the City of Waterloo governing site plan control (one example of the practice employed by other municipalities across the province) overstep the scope of the municipality’s power in this area.

Division of powers

Site plan control is governed by the Planning Act, R.S.O. 1990, c. P.13 (the ‘Planning Act’) and building construction by the Building Code Act, 1992, S.O. 1990, c. 23 (‘BCA’) and its accompanying regulation O. Reg. 332/12 (‘OBC’).

Under subsection 41(4.1) of the Planning Act, municipalities may regulate matters of site plan control, but they do not have the authority to regulate the manner and standards of construction.

41. (4.1) The following matter relating to buildings described in paragraph 2 of subsection (4) are not subject to site plan control:…

        
3.The manner of construction and standards for construction.

In Ontario, the use of exterior insulation and finish systems (EIFS) is regulated by the Ontario Building Code (OBC).
In Ontario, the use of exterior insulation and finish systems (EIFS) is regulated by the Ontario Building Code (OBC).

Only the province has the authority to regulate the manner of construction and standards of construction, and this is done through BCA and OBC. BCA provides that the province may make regulations governing standards for the construction and demolition of buildings, including “regulations governing the manner of construction and types and quality of materials used therein.”

When read together, the provisions of the Planning Act and OBC show that matters relating to a building’s construction, including materials such as EIFS, are regulated by the province and not properly the subject of municipal site plan control.

BCA and OBC

BCA sets out the legal framework for the regulation of building and construction in Ontario. OBC itself is regulation made pursuant to s. 34 of BCA, with the purpose of establishing:

  • standards for public health and safety, fire protection, structural sufficiency, conservation, including without limitation, energy and water conservation, and environmental integrity;
  • barrier-free requirements; and
  • process that is needed for the enforcement of the standards and requirements.

As outlined, subsection 34(1) of BCA provides the broad authority to make regulations governing standards for the construction and demolition of buildings, including “regulations governing the manner of construction and types and quality of materials used therein.” These technical specifications are consolidated into OBC.

BCA provides a broad definition of “construction” in subsection 1(1):

“construct” means to do anything in the erection, installation, extension or material alteration or repair of a building and includes the installation of a building unit fabricated or moved elsewhere and “construction” has a corresponding meaning.

While municipalities have some jurisdiction to enact building bylaws (see s. 7 of BCA), this power is limited to local matters of administration, fees, and enforcement. Section 35 of BCA particularly provides that the OBC is paramount to any municipal bylaw respecting the construction or demolition of any building.

35. (1) This Act and the building code supersede all municipal by-laws respecting the construction and demolition of buildings.

The Planning Act

Pursuant to the site plan control provisions contained in section 41 of the Planning Act, municipalities are permitted to regulate certain matters related to building and site development.

Subsection 41(4) grants municipalities the power to approve plans or drawings containing certain, specified information before development may be undertaken in the area. The information includes matters relating to exterior design.

41. (4) 2. (d) matters relating to exterior design, including without limitation the character, scale, appearance and design features of buildings, and their sustainable design, but only to the extent that it is a matter of exterior design, if an official plan and a by-law passed under subsection (2) that both contain provisions relating to such matters are in effect in the municipality;

Municipalities’ power to control aspects of exterior design is expressly limited by subsection 41(4.1) of the Planning Act that reiterates the division of provincial and municipal jurisdiction and provides the manner of construction and standards of construction, including construction materials and systems, are prescribed by OBC alone.

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