On October 11, 2017, the Chief Judge of the Provincial Court of Prince Edward Island gave her decision in R v. Community of Brackley. The Community of Brackley (the “Municipality”) was found guilty of an offence contrary to section 27 of the Architects Act, RSPEI 1988, c A-18.1 (the “Architects Act”).

Background

In June 2016, a development officer of the Municipality issued a development permit to an applicant corporation (the “Corporation”) based on a site plan that did not bear the stamp and signature of a licensed architect. The Corporation proceeded with the development. After the building was completed, the Corporation was contacted by the Architects Association of PEI, who requested to see which architect had signed and stamped the site plan. The Corporation acknowledged that no architect had done so. A subsequent review of the building indicated that it did not meet the standards of the National Building Code. The Corporation was charged with failing to comply with section 27 of the Architects Act, which makes it an offence to use or rely upon a plan, sketch, drawing, graphic representation or specification intended to govern the construction of a building and related site development, where that plan has not been signed and stamped by an architect practicing in Prince Edward Island.

Specifically, section 27 of the Architects Act reads:

Every person who uses or relies upon a design, where such design has not been signed and stamped in accordance with the requirements of section 16, commits an offence.

The Municipality was also charged with an offence contrary to section 27 of the Architects Act for relying on the same unstamped site plan when issuing a development permit to the Corporation. The Municipality pleaded not guilty to the charge and elected to go to trial.

At trial, the Court asked two questions in order to decide whether the Municipality had committed an offence contrary to section 27 of the Architects Act:

1. whether the Municipality used or relied upon the site plan to govern construction of the building, where that design had not been signed and stamped in accordance with the requirements of the Architects Act; and
2. whether the Municipality could establish that it was more likely than not that it had exercised due diligence to avoid commission of the offence.

I. Reliance on the design

The development officer responsible for recommending approval of the Corporation’s development permit testified at trial. He indicated that, once the Corporation submitted the application, he reviewed the site plan and application materials to determine whether the development complied with the Municipality’s Zoning and Subdivision Control (Development) Bylaw (the “Development Bylaw”). As development officer, he testified that his role was to review applications and submit them to Council with comments as to whether the applications satisfied the various bylaws in the Municipality. The Court found that it was clear that the development officer relied upon the Corporation’s site plan to determine whether the application satisfied the requirements of the Development Bylaw.

Being satisfied that the Municipality had relied on the site plan, which had not been stamped in accordance with the requirements of the Architects Act, the Court moved on to determine whether the Municipality could establish that it was more likely than not that the Municipality had exercised due diligence to avoid commission of the offence.

II. Due diligence

The Municipality raised several issues in its defence, arguing that:

• the provisions of the Architects Act conflicted with the Development Bylaw as well as the Planning Act, RSPEI 1988, c P-8 (the “Planning Act”), because nothing in the Development Bylaw or the Planning Act required drawings to be stamped; and
• often there were a number of draft drawings in the preparation of a site plan, and it would be confusing if all drawings were required to be signed by an architect and confusing as to which drawing was the final one for the purpose of the permit.

The Court found no conflicts between the Development Bylaw and the Architects Act, stating that the fact that the Development Bylaw did not require drawings to be signed and stamped by an architect did not mean that it conflicted with the Architects Act. The Court also noted that, even if a conflict was present, the Architects Act, being primary legislation, would take priority over bylaws in any event.

As for the second issue, the Court clarified that every design or construction document was not required to be stamped. Rather, subsection 16(3) of the Architects Act required stamps to be affixed to “all final designs or construction documents”.

The Municipality’s development officer had also given evidence that it was not relevant to him who prepared the site plan. His role was simply to ensure that the site plan complied with the Development Bylaw. The Court did not accept this proposition, noting that the scope of the development officer’s role was not solely to ensure the application complied with the Development Bylaw. It was clear from the conditions imposed on the development permit that the development officer considered matters outside the Development Bylaw. Those conditions included a requirement that the Corporation comply with several other regulatory requirements, including approval of an entrance permit from the Department of Transportation, septic tank requirements, and approval from the Fire Marshal.

In summary, the Court found that the development officer offered no valid explanation as to why the Architects Act was not complied with. In the circumstances of this case, the Court found no evidence to suggest that due diligence had been exercised by the development officer when advising the Municipality about the Corporation’s application for a development permit.

Penalty

The Court found that the development officer clearly put himself and the Municipality within the provisions of section 27 of the Architects Act by relying on the site plan. In the absence of proof of due diligence, the Municipality was guilty of the offence. The design had not been signed and stamped in accordance with the requirements of section 16 of the Architects Act.

The penalty for an offence under section 27 of the Architects Act is prescribed in section 28, which reads:

A person or corporation who violates any provisions of this Act or its bylaws, of the contravention of which constitutes an offence, is liable on summary conviction to a fine not exceeding $5,000, or to imprisonment for a term not exceeding six months, or both.

In reaching its decision on the appropriate penalty, the Court noted that it was difficult to accept the defence put forth by the Municipality that only its bylaws govern its decisions. The Court stated that the Municipality was also bound by the laws of Prince Edward Island. The Municipality was fined $2,500.

Message for municipalities

Municipalities should be mindful of all provincial legislation that applies to developments – not just their bylaws. Wherever possible, bylaws should incorporate the requirements of provincial legislation to ensure that provincial laws are not overlooked by municipal employees administering those bylaws. The penalty for contravening section 27 of the Architects Act was a fine in this instance. However, the Municipality’s exposure to liability could have been more serious had damage occurred to the Corporation’s development site or surrounding properties, or had someone been injured as a result of the building not complying with the National Building Code.

Municipalities may not be liable when exercising due diligence to prevent the commission of an offence. It is clear from this recent decision, however, that the failure of a Municipality to administer its bylaws in accordance with provincial legislation (due to a lack of knowledge or otherwise,) will not be sufficient to prove due diligence. Therefore, municipalities should take steps to ensure that its employees are aware of all legislation that may apply to a development, and have steps in place to ensure a periodic review is triggered each time relevant legislation is amended.

If you have any questions about this update or would like assistance developing municipal procedures to ensure your municipality’s bylaws comply with provincial legislation, please do not hesitate to contact our municipal government team at Stewart McKelvey in Charlottetown: Perlene Morrison and Jonathan Coady.