Document, document, document

[Inspector Gadget]

There is a legal decision that just came down in BC (Canada) that, frankly, is a warning for all of us. It speaks to the freaking mantra I have been screeching incessantly for years: if you say something is wrong, show how. Give freaking MEASUREMENTS.

From the court case:
[62] Saanich alleges that various aspects of several buildings on the property do not conform to the Building Code, but the evidence advanced by Saanich in support of those allegations is also insufficient. For example, Mr. Thomassen deposes that a wood stove in one of the buildings on the property “did not meet clearance requirements as set out in the BC Building Code.” As argued by the respondent, he provides no dimensions or measurements and does not set out the Building Code requirements in his affidavit, making his statement conclusory and without an evidentiary foundation.

[63] Similarly, Mr. Thomassen deposes that work in a second building “appeared unpermitted and non-compliant with the BC Building Code; in particular, insufficient guardrails for the stairs to the second floor and the second-floor walkway, and insufficient ceiling clearance.” Again, he does not provide any dimensions or measurements, and he does not set out the Building Code requirements.

[64] Mr. Thomassen deposes that he is an experienced building inspector and a registered “building official.” Notwithstanding his expertise and experience, however, he is required to state and provide evidence of the underlying facts and standards upon which he relies. Otherwise, it is impossible for the Court to assess and for the respondent to test his assertions that structures on the property do not comply with the Building Code.

[65] For the reasons stated, I am unable to find that the respondent contravened ss. 4.1 and 7.1 of the Building Bylaw by constructing structures without valid and subsisting permits and without conforming to the Building Code.

Link to court case: https://www.canlii.org/en/bc/bcsc/d...kaW5nIG9mZmljaWFsIiArICJpbnNwZWN0aW9uIgAAAAAB

 

[Yankee Chronicler]

Yes, sir. I've been preaching this for years. Nobody listens -- until they lose in court, then they (maybe) admit "Oh! That's why you keep saying to document."

Yes, that's why. Yes, it takes a bit of extra time to write down measurements and to look up and cite code sections. IMHO, it's part of the job. If the inspection report (or plan review) record I create will end up being rejected by a judge as not providing enough detail to support my case -- well, that's not much of a report, is it?

Realistically, how much more onerous is it to write "Guard rail height 33", 36" required" rather than "Guard rail height doesn't meet code"?

I've been in court multiple times (mostly as an expert witness, once as a co-defendant). I saw where failing to send a simple, one sentence fax or e-mail to a client confirming their instruction cost an A/E firm $1 million. That was out of their own pocket -- it's a big firm, and they were self-insured.

 

[Inspector Gadget]

Realistically, how much more onerous is it to write "Guard rail height 33", 36" required" rather than "Guard rail height doesn't meet code"?

Ideally, (for me in Canuckistan), it would be "guard height <84 cm, must be 90 cm, per 9.8.8.3(2)."
That took me 45 seconds to find the reference.

It's just that freaking simple.

 

[ICE]

The assertion of the inspector was that there are life/safety violations. The judge did not determine that there are no life/safety violations. The judge determined that the inspector did not provide chapter and verse that describes the violations in detail. The plaintiff, if you have plaintiffs in Canada, has to provide chapter and verse to refute the inspector's issuance of a violation.
The judge allowed the life/safety violations to continue as a spanking for not educating the judge.

 

[steveray]

So now that we wasted a bunch of time and money, give him the specifics and let him correct....

 

[ICE]

So now that we wasted a bunch of time and money, give him the specifics and let him correct....

If you want to slap the inspector around a bit, have at it. Do not rule in favor of keeping life/safety violations. “A wood stove is too close to combustible construction.” Is it 12” instead of 18? Or is it 2”? There is a violation involving a guard. Might it be that there is no guard? Apparently those concerns didn’t factor in. The judge has no business weighing in on the application of a building code.

 

[mtlogcabin]

[59] However, in my view, the evidence adduced by Saanich is insufficient to prove this contravention, as there is no admissible evidence that the respondent constructed any of these units or structures.

I think what the court is saying because the government has no records it is insufficient to prove the current owner did the renovations. The AHJ should have been able to provide other evidence such tax assessments when it went from a single unit to 3 units. Was it before 2011 under the previous owner or after? Arial photos (google earth) would provide a time frame for changes to property and its use.

The building official did not present sufficient evidence that the current owner is at fault for the code violations he noted.

 

[arwat23]

Apparently those concerns didn’t factor in. The judge has no business weighing in on the application of a building code.

The inspector couldn't prove the building code issues he claimed existed. Why would the judge side with him? As far as anyone knows, there are no violations. Why grant something that can't be proven?

There's a few inspectors in jurisdictions around me that hardly ever actually reference code and just rely on "I've been in construction for 20+ years" or "I'm licensed" like I take any stock in that. They say generic things like "you need to do it this way" and get real cranky when I ask for a code reference. Surprise surprise, they're not always correct.

 

[ICE]

As far as anyone knows, there are no violations. Why grant something that can't be proven?

The end result is another example of, “I didn’t create the danger so it’s not my problem.”

Consider the outcome. Think about how it got there. If you are comfortable with all of it, that’s what matters. To you.

 

[tmurray]

The assertion of the inspector was that there are life/safety violations. The judge did not determine that there are no life/safety violations. The judge determined that the inspector did not provide chapter and verse that describes the violations in detail. The plaintiff, if you have plaintiffs in Canada, has to provide chapter and verse to refute the inspector's issuance of a violation.
The judge allowed the life/safety violations to continue as a spanking for not educating the judge.

This is not the way either of our legal systems work.

The burden of proof is on the government to prove that someone committed an offence. For someone to answer charges, they should know exactly what they are charged of doing.

You claim that the judge is allowing the life safety violations to remain. The judge is unconvinced that there are life safety violations because the inspector did not do the bare minimum in documenting what the violation is. From an objective standpoint, the building official appears to not be interested in public safety either, as they did not provide any information on what was deficient or what the minimum code requirements were.

 

[tmurray]

I've been to court multiple times as a building official. I actually enjoy it.

I enjoyed it because I documented the issues, can draw a line on escalation actions taken to resolve the issue, and have operations policies that I followed that show how and why I responded to the issue in the way I did. These documents are well measured and based in case-law. Judges like this because they do not have to imagine what a reasonable approach is to a problem in an industry they are not in. They just need to follow my breadcrumbs.

 

[Yankee Chronicler]

If you want to slap the inspector around a bit, have at it. Do not rule in favor of keeping life/safety violations. “A wood stove is too close to combustible construction.” Is it 12” instead of 18? Or is it 2”? There is a violation involving a guard. Might it be that there is no guard? Apparently those concerns didn’t factor in. The judge has no business weighing in on the application of a building code.

While we don't agree on the judge's decision, judges absolutely DO have business weighing in on the application of a building code. A building code is a law, and code enforcement officials are -- like it or not -- law enforcement officers. I don't know about in Canada but in the U.S. violations of the building code are, technically, criminal offenses. They carry the potential for monetary fines and/or imprisonment.

To say that a code inspector DOESN'T have to document the offense is like saying a traffic cop can just write you up for ... something ... and call it a day is not legally defensible. If a cop just wrote you a ticket for "speeding" without citing how fast you were going or what the speed limit was on the road in question, would you be happy if you took it to court and the judge upheld the ticket because "SAFETY!!!" ? I don't think so.

How are we any different?

 

[arwat23]

The end result is another example of, “I didn’t create the danger so it’s not my problem.”

Consider the outcome. Think about how it got there. If you are comfortable with all of it, that’s what matters. To you.

I disagree that it's "not my problem" (I mean, I don't work or live anywhere near Canada, so it factually isn't my problem, but you get the point). Again, there could very well be no danger at all. That's what I'm trying to get at. Taking someone at their word, regardless of their experience or qualifications, can be dangerous. What if the inspector is wrong, or worse, what if the inspector has a vendetta agents the property owner? Slippery slope and all that, and I'm not saying that's what's happening. There's just as much evidence for that as there is that there's a code violation.

I don't take any stock in someone's experience or qualifications. In my experience (haha), the more experience someone has, the more likely they are to make a mistake when it comes to code-related elements. Experience can, depending on the person and organization, breed a sense of superiority and and a culture of complacency. One could easily get outdated code requirements mixed up in their head (happens all the time at my work). Case in point, every inspector that doesn't reference code in the jurisdictions I work in are close to retirement and have been doing this for decades, while the middle- to younger-age inspectors are more diligent with the code references (generally speaking, obviously not everyone fits this observation - I've met plenty of experienced inspectors who are fantastic at providing code references, and plenty of younger inspectors who miss "obvious" violations).

I'm also not saying the judges decision is right or wrong. I can't measure the property, I can't predict the future. All I'm saying is I completely understand why the judge ruled the way they did. The only person to blame for this outcome is the Inspector and the District.

 

[ICE]

While we don't agree on the judge's decision, judges absolutely DO have business weighing in on the application of a building code. A building code is a law, and code enforcement officials are -- like it or not -- law enforcement officers. I don't know about in Canada but in the U.S. violations of the building code are, technically, criminal offenses. They carry the potential for monetary fines and/or imprisonment.

To say that a code inspector DOESN'T have to document the offense is like saying a traffic cop can just write you up for ... something ... and call it a day is not legally defensible. If a cop just wrote you a ticket for "speeding" without citing how fast you were going or what the speed limit was on the road in question, would you be happy if you took it to court and the judge upheld the ticket because "SAFETY!!!" ? I don't think so.

How are we any different?

Judges have as much knowledge of the building codes as has been imparted to them by the building officials in front of them. The judge in this case was about as not curios as they get. I did not say that the inspector doesn't have to defend the violation. Whether at the time the citation is written or in court, of course the inspector must educate the assembly.

The punch line is in the result. Are you willing to walk away from life/safety violations because a judge screwed up?

 

[ICE]

What if the inspector is wrong, or worse, what if the inspector has a vendetta agents the property owner? Slippery slope and all that, and I'm not saying that's what's happening. There's just as much evidence for that as there is that there's a code violation.

You have a canvas to paint any picture that suits you. You made my point in that nobody knows the truth because they threw up their hands and walked away. The judge should have instructed the building department to get off their ass and do the job of a building department so that the judge can make an informed decision.

 

[tmurray]

Judges have as much knowledge of the building codes as has been imparted to them by the building officials in front of them. The judge in this case was about as not curios as they get. I did not say that the inspector doesn't have to defend the violation. Whether at the time the citation is written or in court, of course the inspector must educate the assembly.

The punch line is in the result. Are you willing to walk away from life/safety violations because a judge screwed up?

But that's the issue right? The judge doesn't get to weigh evidence that is not in front of them. What is presented to the judge is supposed to be all the pertinent evidence. The inspector did not have sufficient evidence to demonstrate that the resident committed an offence. The judge doesn't get to go find more evidence on their own.

The judge should have instructed the building department to get off their ass and do the job of a building department so that the judge can make an informed decision.

The judge did that the only way they could have. A judge cannot arbitrarily hand out orders. They rule on matters before the court.

The prosecutor is not going to file a motion to get the judge to issue an order to compel their own client to do this because of the optics, and the defendant certainly isn't going to ask the judge for this because it would negatively impact their case.

 

[arwat23]

You have a canvas to paint any picture that suits you. You made my point in that nobody knows the truth because they threw up their hands and walked away. The judge should have instructed the building department to get off their ass and do the job of a building department so that the judge can make an informed decision.

The judge ruled on a case based on the facts presented for the case. There is no evidence supporting the inspector's claim, therefor no reason to grant the application. That's not my opinion, that's the facts of the case and partial admittance from the inspector (see 65 where the inspector states it "appears" that there are violations). No photo or measurement evidence, so nothing can be proven.

If the police fumble a criminal investigation due to poor documentation, or a commercial tenant doesn't document property management's alleged contract violations in a civil case, then they'll lose the case. That happens all the time. Judges don't go asking the police or the plaintiff to go find better evidence, they rule on what's been presented. Why would this be any different?

 

[steveray]

There's few anyone anywhere around me that hardly ever actually reference code and just rely on.....

Fixed it...

 

[arwat23]

Fixed it...

Well, if you want to be accurate, sure, everyone sucks .

I'm willing to bet us design professionals are far, FAR worse than any of the inspectors I've dealt with.

 

[ICE]

The judge doesn't get to go find more evidence on their own.

They do that often enough to know that when this judge heard about the wood stove clearance and the guard violation, he should have been asking questions.

Put yourself on that bench. Would your curiosity have been enough to ask questions? Had the issue not been life/safety violations, I could be more accepting of the disinterested attitude. Laziness is what this is.

 

[Inspector Gadget]

The assertion of the inspector was that there are life/safety violations. The judge did not determine that there are no life/safety violations. The judge determined that the inspector did not provide chapter and verse that describes the violations in detail. The plaintiff, if you have plaintiffs in Canada, has to provide chapter and verse to refute the inspector's issuance of a violation.
The judge allowed the life/safety violations to continue as a spanking for not educating the judge.

That's not how this works. First off, the inspector stated that it "appeared" there were issues with the guards. OK. Sure. But what was the height of the guard, and what section of code was being used? In our codes, guards for residential occupancies can be less than guard heights for residential. Quote the section. Show us your work.

If you want to slap the inspector around a bit, have at it. Do not rule in favor of keeping life/safety violations. “

So you'd simply accept a cop's ruling that a guy was speeding, because the cop felt it looked fast? That's now how this works. One has to present *evidence*. There was none presented.

The judge ruled on a case based on the facts presented for the case. There is no evidence supporting the inspector's claim,

^^^ This.

Put yourself on that bench. Would your curiosity have been enough to ask questions? Had the issue not been life/safety violations, I could be more accepting of the disinterested attitude. Laziness is what this is.

That's what the defence lawyer is for. And I strongly suspect the defence lawyer argued that without measurements and code references, the declaration of the building official could not be considered as, in fact, evidence of a code violation.

I think it's also important to note that documenting evidence is also part of what keeps our butts out of a sling. I have pictures where I show an egress window with a tape measure. Why? Because there's a non-zero chance that somewhere down the road, some bonehead will either (a) change out a bedroom window without a permit, or (b) change a room that was not intended to be a bedroom ... into a bedroom, and the window that was there (or the one they install on the down-low) is not an egress. The measurement image from six inspections ago could become evidence that checking for egress windows is established practice.

I had a Dangerous and Unsightly Premises inspection. Occupied dwelling unit in rough, rough shape. One of the critical elements of this build was a central brick chimney that was also a load-bearing element holding the first floor. I could have said "the brick looked bad," but I
a) captured a moisture reading
b) captured an image showing the efflourescence and many cracks
c) captured a video where the mortar is so friable that I was removing it with my bare pinky finger.

If that had ever gone to court (for whatever reason), I could have easily presented that evidence to defend my assertion that the failing chimney was a key factor (along with a whole crapton of other issues) in declaring the building so structurally unsound, and so irrepairable, that the municipality should deprive the occupant of a dwelling and tear the house down.

One of the issues that code and similar officials face is the "he/she is out to get me, and is only doing this because
a) he/she is racist
b) he/she is sexist
c) he/she is just plain biased

Providing objective criteria is the surefire way of demonstrating that we are being objective. I don't know if the US law has the same concept - I suspect it does - but Canadian law has a concept called "procedural fairness." For us, citing code for every required correction/alteration is part of demonstrating that.

 

[ICE]

So you'd simply accept a cop's ruling that a guy was speeding, because the cop felt it looked fast? That's now how this works. One has to present *evidence*. There was none presented.

That has nothing to do with what I have written. Excuses are hollowed out by the facts. Two simple questions by the judge would have cleared it up. The inspector made a claim of a violation and the owner didn't argue the point and relied on a sketchy violation instead. The owner won on a technicality which is good enough for the crowd here.

 

[arwat23]

That has nothing to do with what I have written. Excuses are hollowed out by the facts. Two simple questions by the judge would have cleared it up. The inspector made a claim of a violation and the owner didn't argue the point and relied on a sketchy violation instead. The owner won on a technicality which is good enough for the crowd here.

What two questions would have cleared this up? Genuinely asking, because I don't see it. Any question I think of can be countered by the defense or can't be answered by the inspector (based on the info available), but I could easily be missing something.

 

[ICE]

What two questions would have cleared this up?

Clarification on the violations. The judge took a chance that the stove will not cause a fire and the guard will protect people from a fall. That's with no knowledge of the details.

"You didn't tell me enough to go on so I'm not going on" That a Helluva thing to know about a judge.