Aird & Berlis LLP Barristers and Solicitors

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1 John Mascarin Direct: November 19, 2015 Ontario Sign Association 400 Applewood Crescent, Suite 100 Vaughan, ON L4K 0C3 File No Attention: Isabella Cerelli Dear Ms. Cerelli: Re: Sign Design Approval Requirements We have been asked to provide an opinion to the Ontario Sign Association with respect to the design requirements under the Ontario Building Code,1 Specifically, we have been asked whether Part 4 of Division B of the Code always requires a sign permit applicant to obtain a professional engineer s seal on its sign designs. We have also been asked whether municipalities are authorized to request professional engineer s drawings for signs which do not meet the criteria specified in the Code for sign structures requiring review by a professional engineer. Background We have been advised that the sign industry, including the Ontario Sign Association, has been experiencing ongoing issues related to applications for permits to construct various sign structures. There is an apparent disagreement between building officials and the sign industry over whether or not a professional engineer s seal is required for all signs that are intended to be constructed. We have been advised that building officials are reading the requirement for a professional engineer s seal into the Code, specifically, into Sentence (2) which provides, in part, as follows: (2) Provided the design is carried out by a person especially qualified in the specific methods applied... We are also advised that certain municipalities are requesting professional engineer s drawings for sign structures that do not meet the criteria specified in the Code for sign structures requiring review by a professional engineer. We will first address this issue below and then move on to discuss the requirements of Part 4 of the Code. 1 O. Reg. 322/12 - Building Code ( Code ). Brookfield Place, 181 Bay Street, Suite 1800, Box 754 Toronto, ON M5J 2T9 Canada F

2 Page 2 When is a Professional Engineer s Seal Required? We note, at the outset, that the Code contains provisions that explicitly require certain sign structures to be designed by professional engineers. This requirement is expressly set out in the Code in a number of instances. Sentences (6) and (7) of Division C of the Code list the circumstances in which sign structures must be designed by a professional engineer or architect: (6) A sign structure attached in any manner to a building shall be designed by an architect or a professional engineer or a combination of both where it is, (a) a projecting sign that weighs more than 115 kg, or (b) a roof sign that has any face that is more than 10 m2. (7) A projecting sign attached in any manner to a parapet wall shall be designed by an architect or a professional engineer or a combination of both. Sentences (8) and (9) of Division C list the circumstances in which sign structures must be reviewed by an architect or a professional engineer: (8) The construction of a sign structure shall be reviewed by an architect or a professional engineer or a combination of both, where the sign is, (a) a ground sign that exceeds 7.5 m in height above the adjacent finished ground, (b) a projecting sign that weighs more than 115 kg, or (c) a roof sign that has any face that is more than 10 m2. (9) The construction of a projecting sign attached in any manner to a parapet wall shall be reviewed by an architect, professional engineer or a combination of both. As indicated above, the Code explicitly sets out the circumstances in which sign structures are required to be designed by a professional engineer and the circumstances in which the construction of a sign structure must be reviewed by a professional engineer. In our opinion, there is nothing in the Code that authorizes a municipality to require the approval by a professional engineer of sign types that fall outside of those described in Sentences (6) and (7) and 1.2.2,1.(8) and (9) of Division C of the Code.

3 Page 3 Relevant Code Provisions Clause 1 (1 )(d) of the Building Code Act, 1992 provides that the Code may designate certain structures as a building.2 Sentence (1) of Division A of the Code sets out a list of structures which are designated as buildings. Pursuant to Clause (1 )(e), signs regulated by Section of Division B that are not structurally supported by a building are designated as buildings for the purpose of the Code: Interpretation Designated Structures (1) The following structures are designated for the purposes of clause (d) of the definition of building in subsection 1(1) of the Act: (e) signs regulated by Section of Division B that are not structurally supported by a building, Article of Division B provides as follows: Section Signs Scope Application (1) Except as provided otherwise in Article this Section shall apply to the erection of all signs. It is our understanding that none of the exceptions set out in Article apply to the types of signs in various permit applications submitted by members of the Ontario Sign Association. Article provides that all sign structures must be designed in accordance with Part 4: Structural Requirements Structural Design (1) Except as provided in this Section, all sign structures shall be designed in accordance with Part 4. We note that the term sign structures is not defined in the Code. 2 Building Code Act, 1992, S.O. 1992, c. 23, s. 1(1)(d).

4 Page 4 Section (1) sets out the scope of Part 4: Section 4.1. Structural Loads and Procedures General Scope (1) The scope of this Part shall be as described in Subsection of Division A. Section of Division A describes the application of Parts 3, 4, 5 and 6 of the Code. Sentence (2) states that Part 4 of Division B applies to: (g) signs regulated by Section of Division B that are not structurally supported by a building. For the purpose of Part 4, sign structures may be interpreted as ground signs. It follows that Part 4 does not apply to signs that are structurally supported by a building (e.g. wall signs, roof signs, etc.). It further follows that ground signs must be designed in accordance with Part 4 of Division B of the Code. Specifically, ground signs are subject to the following Sections of Part 4: Structural Loads and Procedures (Section 4.1), Foundations (Section 4.2) and Design Requirements (Section 4.3). Part 4 of Division B of the Code sets out the requirements for the structural design of buildings as defined in the Code. We note that the requirement for a professional engineer s seal is not explicitly mentioned anywhere in Part 4. Article is relevant to this opinion: Design Basis (1) Except as provided in Sentence (2), buildings and their structural members shall be designed in conformance with the procedures and practices provided in this Part. (2) Provided the design is carried out by a person especially qualified in the specific methods applied and provided the design demonstrates a level of safety and performance in accordance with the requirements of this Part, buildings and their structural components falling within the scope of this Part that are not amenable to analysis using a generally established theory may be designed by, (a) evaluation of a full-scale structure or a prototype by a loading test, or (b) studies of model analogues. The explanatory note to Sentence (2) in Appendix A, Volume 2 of the 2012 Building Code Compendium states, in part:

5 Page 5 Sentence (2) provides for the use of design methods not specified in Part 4, including full-scale testing and model analogues. This provision is usually used to permit the acceptance of newer and innovative structures or to permit the acceptance of model tests such as those used to determine structural behaviour, or snow or wind loads... Sentence (2) and the provision for alternative solutions stated in Clause (1 )(b) of Division A are not intended to allow structural design using design standards other than those listed in Part 4. The acceptance of structures that have been designed to other design standards would require the designer to prove to the appropriate authority that the structure provides the level of safety and performance required by Clause ,(1)(b) of Division A...3 It is our understanding that none of the designs proposed by the sign industry or by members of the Ontario Sign Association have been designed to standards other than those listed in Part 4 of Division B. Division C contains the administrative provisions of the Code. Article of Division C exempts persons in the business of providing design activities to the public from certain qualifications required in the Code. Specifically, a person whose design activities relate only to the construction of signs is not required to register with the director: Qualifications - Persons Engaged in the Business of Providing Design Activities to the Public General (1) Except as provided in Sentences (3) and (4), every person engaged in the business of providing design activities to the public must have the following qualification: (a) the person must be registered with the director. (2) A registration shall be in a form established by the director. (3) A person is exempt from the requirement to comply with the qualification in Sentence (1), if the person s design activities relate only to, (g) construction of signs. Article defines design activities as follows: Design activities means the activities described in subsection 15.11(5) of the Act Building Code Compendium, Appendix A, Volume 2, Sentence (2).

6 Page 6 Subsection 15.11(5) of the Building Code Act, 1992 provides: Qualifications for designers (5) A person is not eligible to engage in any of the following activities unless he, she or it has the qualifications and meets the requirements set out in the building code to be a designer: 1. Prepare a design or give other information or opinion concerning whether a building or part of a building complies with the building code, if the design, information or opinion is to be submitted to a chief building official in connection with, i. an application for a permit, ii. a request for the authorization referred to in subsection 8(12) or (13), or iii. a report described in paragraph If a general review of the construction of a building or part of a building is required by the building code, prepare a written report based on the general review. Subsection 15.11(6) of the Building Code Act, 1992 provides: "design includes a plan, specification, sketch, drawing or graphic representation respecting the construction of a building. The Building Code Act, 1992 also sets out the role of designers within the building regulatory framework at subsection 1.1(2): Role of designers 1.1 (2) It is the role of a designer, (a) if the designer s designs are to be submitted in support of an application for a permit under this Act, to provide designs which are in accordance with this Act and the building code and to provide documentation that is sufficiently detailed to permit the design to be assessed for compliance with this Act and the building code and to allow a builder to carry out the work in accordance with the design, this Act and the building code; (b) to perform the role described in clause (a) in respect of only those matters for which the designer has the qualifications, if any, required by this Act and the building code; and (c) if the building code requires that all or part of the design or construction of a building be under general review, to perform the general review in respect of only those matters for which the designer has the qualifications, if any, required by this Act and the building code. Pursuant to Sentence (c) designer" means the person responsible for the design. Aird & Berlis llp

7 Page 7 Based on the foregoing, it is clear that the Building Code Act, 1992 places the onus on the designer to provide documentation that designs are compliant with the Building Code Act, 1992 and the Code. The Code does not prescribe the specific content of the required documentation. In order to demonstrate that a sign structure is compliant with Part 4 of Division B of the Code, a designer must provide the chief building official with documentation that is sufficiently detailed to permit the design to be assessed for compliance with [the] Act. Jurisprudence In Pollard v. Bryden, the Ontario Superior Court considered Sentence (1) of Division B of the Code which requires the design of foundations to be based on a subsurface investigation carried out by a person competent in this field of work, and one of the following: (a) application of generally accepted geotechnical and civil engineering principles by a person especially qualified in this field of work as provided in this Section and other Sections of this Part, (b) established local practice where such practice includes successful experience both with soils and rocks of similar type and condition and with a foundation or excavation of similar type, construction method, size and depth... The Ontario Superior Court noted that the Code draws a clear distinction between the more general reference to a person competent in this field of work and the later and more specific reference to a person especially qualified in the field of civil or geotechnical engineering. The Court determined that the Code did not require the investigation to be conducted by geotechnical engineers.4 The applicant in Craft-Bilt Materials Ltd. v. Toronto (City) was the manufacturer of sandwich panels which were not specified in the Code. The city refused to examine the applicant s load test results or supporting data because it lacked resources. The Ontario Divisional Court upheld the Superior Court s finding that the chief building official cannot choose to disregard Section of the Code because it requires officials to exercise more judgment in processing applications for building permits.5 In Assn, of Professional Engineers (Ontario) v. Ontario (Ministry of Municipal Affairs & Housing), the Divisional Court considered amendments to the Code that established a regulatory scheme for persons who prepared designs or conducted general reviews of buildings. In this case, the court considered the term designers and determined that, 4 Pollard v. Bryden, 2007 CanLII (Ont. S.C.J.) at para Craft-Bilt Materials Ltd. v. Toronto (City), [2006] O.J. No. 4710, 28 M.P.L.R. (4th) 274 at para. 39 (S.C.J.), aff d [2008] O.J. No. 59, 42 M.P.L.R. (4th) 304 (Div. Ct.).

8 Page 8 taken literally, it is broad enough to include professional engineers.6 The court recognized, however, that the Building Code Act, 1992 permits the making of regulations prescribing qualifications for designers and others, including different qualifications for different classes of...designers. The court held that this signaled a legislative intention to differentiate between classes of designers, presumably by reason of differences in training, education and experience.7 Analysis It is our view that the issues raised in this opinion involve the proper interpretation and construction of the Code. The modem approach to the interpretation of legislation is a purposive one that seeks to achieve an interpretation that best serves the intent of the legislation. Elmer Driedger s Construction of Statutes contains the following pronouncement: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.8 (a) Professional Engineer s Approval for Sign Types not Specified in the Code The maxim, expressio unius est exclusio: to express one thing is to exclude another, may be aptly applied to an interpretation of Sentences (6) and (7) and (8) and (9) of Division C the Code. This maxim is often referred to as implied exclusion. In Sullivan on the Construction of Statutes, Ruth Sullivan writes: An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within its legislation, it would have referred to that thing expressly.9 When a provision specifically mentions one or more items but is silent with respect to other items that are comparable, it is presumed that the silence is deliberate and reflects 6 Assn, of Professional Engineers (Ontario) v. Ontario (Ministry of Municipal Affairs & Housing), 284 D.L.R. (4th) 322, 157 A.C.W.S. (3d) 1048 at para. 39 (Ont. Div. Ct.). 7 Ibid., at para Elmer A. Driedger, The Construction of Statutes, 2nd ed., (Toronto, Butterworths, 1983), at 87. The Supreme Court of Canada has adopted this approach in numerous cases including Re Rizzo and Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 and in Bell ExpressVu Ltd. Partnership v. Rex, [2002] 2 S.C.R Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed., (Markham: LexisNexis Canada Ltd., 2014) at 248.

9 Page 9 an intention to exclude the items that are not mentioned.10 The Code sets out the specific types of sign structures that require review by a professional engineer. Applying the implied exclusion rule to the Code, it is suggested that the Code s silence with respect to other sign types is intentional and that the Code intends that only those sign types explicitly referred to be subject to review by a professional engineer. (b) Requirements of Part 4 of the Code Again, in Sullivan on the Construction of Statutes, Ruth Sullivan writes: It is presumed that the legislature uses language carefully and consistently so that within a statute or other legislative instrument the same words have the same meaning and different words have different meanings. Another way of understanding this presumption is to say that the legislature is presumed to avoid stylistic variation. Once a particular way of expressing a meaning has been adopted, it is used each time that meaning is intended. Given this practice, it follows that where a different form of expression is used, a different meaning is intended.11 Sentence (2) of Division B refers to a person especially qualified in the specific methods applied. This is in contrast to Clauses (6) and (7) of Division C which explicitly state that certain sign structures shall be designed by a professional engineer (or architect) in specified circumstances. Given the principle of presumed consistency, in our opinion, if the drafters of the Code had intended that a professional engineer s seal were required on all designs under Part 4 of Division B, this requirement would have been expressly stated. Indeed there would be no basis whatsoever for the Code to specify that a professional engineer s seal is required on certain designs if there was a blanket requirement for it to appear on all designs. This interpretation supports a consistent and purposive approach to the Code. In our view, where the Code intends a professional engineer s seal to be applied, it expressly states the requirement. The fact that the Code specifically sets out where a professional engineer s seal is required serves the purposes of the Code by requiring it only when it is needed. Not every sign requires a professional engineer s seal and the language of the Code reflects this reality. We note that this position is consistent with the court s interpretation of a similar provision considered in Pollard v. Bryden, discussed above. In that case, the court found that the reference in the Code to a person competent in this field of work did not require that the particular investigation in question be undertaken by a geotechnical engineer. 10 Ibid. 11 Ibid., at 217.

10 Page 10 Furthermore, as confirmed in Craft-Bilt Materials Ltd. v. Toronto (City), a building official s claim that the municipality does not have the manpower to review the data provided by a designer does not permit it to circumvent the provisions of the Code.12 In this case, a building official may not read in a requirement for a professional engineer s stamp as a matter of administrative efficacy because of the municipality s budgetary concerns or constraints. We also note that the explanatory note to Sentence (2) makes no reference to the requirement for a professional engineer s seal. While the explanatory note is not to be given the status of law, it is of assistance in interpreting the Code and supports our position that a professional engineer s seal is not always required for applications for signs that must be designed in accordance with Part 4 of the Code. The Building Code Act, 1992 recognizes the role of designers and explicitly requires that they have certain qualifications to support their functions. Where designs are to be submitted in support of an application for a permit, the Building Code Act, 1992 requires that the designs be in accordance with the Code. To require an engineer s stamp on all permit applications for signs governed by Part 4 of Division B ignores the fact that the Building Code Act, 1992 contemplates the participation of designers in the application process and that the Code itself does not expressly require such evidence. It is significant that the court in Assn, of Professional Engineers (Ontario) v. Ontario (Ministry of Municipal Affairs & Housing), acknowledged that the term designers as employed in the Building Code Act, 1992 and the Code encompasses different classes of persons. While a designer may be a professional engineer, the term is broad enough to capture non-engineers as well. Conclusion For the reasons set out above, it is our opinion that a professional engineer s stamp is not required whenever it is determined that a sign structure must comply with Part 4 of Division B of the Code. There is no express requirement set out in the Code. Such a requirement must be read into the provisions of the Code which derogates from the accepted method of legislative interpretation advocated by the courts. Such an interpretation is clearly not warranted under the Code, would not serve to provide a consistent approach to the construction of the Code and does nothing to advance the underlying policies and purposes of the Code. Similarly, it is our opinion there is nothing in the Code that authorizes a municipality to require the approval by a professional engineer of sign structures that fall outside of those described in Sentences (6) and (7) and (8) and (9) of Division C of the Code. 12 Craft-Bilt Materials Ltd. v. Toronto (City), supra note 5 at para. 43.

11 Page 11 Should you have any questions or concerns with respect to the foregoing, please do not hesitate to contact us. Yours truly, AIRD & BERLIS LLP Airb & Berlis LLP