The Professional Reliance Act bill (M216) threatens to weaken the oversight of new home construction and increase the liability risk of taxpayers
A private member's bill that poses significant risks to new homeowners and taxpayers passed second reading earlier this week. Bill M216 – Professional Reliance Act, sponsored by NDP MLA George Anderson would remove the ability of local governments to review development proposals, and instead allow professionals hired by developers to certify their projects. The bill will now proceed to review by the Select Standing Committee on Private Bills and Private Members' Bills. A portal is available for submissions to the committee. UBCM has asked the province to extend the period for input beyond the December 2 deadline. Local governments are encouraged to provide comments there and communicate directly with MLA George Anderson, Minister Christine Boyle, and Minister of State Brittny Anderson.
If adopted, Bill M216 would prohibit local governments from requiring a standard technical peer review during housing development applications. Instead, local governments would be required to accept any certified submission of a registered professional (in accordance with the Professional Governance Act) hired by the developer. If passed, any local government that disputed the submission would have to appeal the certification with the Office of the Superintendent for Professional Guidance.
UBCM’s Concerns
UBCM provided a preliminary analysis of Bill M216 identifying unanswered questions when the bill was first introduced. In addition to these initial questions, UBCM has identified the following concerns:
- If passed into law, Bill M216 would effectively deregulate a core element of the development approval process. Local government staff commonly identify deficiencies in applications that have been certified by a registered professional and provided by developers. By removing peer review that is integral to common current process, these deficiencies are more likely to be missed, putting the eventual homeowner at risk of unexpected cost and safety issues.
- Bill M216 is a recipe for slowing down development approvals. Under the current process, local governments can work with development applicants to identify and address deficiencies. If Bill M216 is brought into law, local governments would have to make an appeal to the Office of the Superintendent for Professional Guidance if they had concerns with a submission. Given the volume of issues that arise during development approvals, this will create a significant bottleneck and slow down the overall approval process for deficient projects. The Office would need to become larger to address demand – increasing rather than reducing bureaucracy and centralizing it far from impacted communities.
- Bill M216 will create liability concerns for local governments, and by extension, property taxpayers: If defects emerge during the lifespan of a given building or infrastructure asset, it is unclear who would bear the true costs. If the certified professional in question is unavailable to be held accountable or is underinsured, affected residents, tenants, businesses and local governments may find themselves with limited recourse to seek reparations for damages. Despite the claim made within the bill that local governments will not be liable for damages, that will not prevent an injured party from naming a local government in its claim. It also remains unclear whether local governments would still owe a duty of care under the proposed bill.
- Bill M216 is not innovative. The bill is being described as enabling an innovative approach to cutting red-tape, when in fact local governments already are enabled to adopt a professional reliance model for specific purposes. What this bill would do is mandate the model to all local governments across the Province, applying it as a one-size fits all approach regardless of local context, while stripping away critical checks and balances, like peer review.
- Bill M216 was created in a vacuum. It is not clear whom MLA Anderson spoke to in developing the bill, but the net result is a bill of sweeping scope that lacks nuance and real-world ground truthing. Unintended consequences are likely to result.
A vocal opposition to Bill M216 is developing, as noted in these Vancouver Sun and CBC articles. Earlier this week, the Okanagan Basin Water Board shared its concerns with UBCM. We also understand that several local governments are preparing correspondence.
We will continue to monitor the progress of Bill M216 as it moves toward review by the Standing Committee and will share further analysis in the coming weeks.