As a municipal and planning lawyer in Ontario I am often asked by real estate counsel what an “Occupancy Permit” or “Certificate of Occupancy” is, whether they are the same thing, and how they work. This is a general short answer to those questions for quick reference.
An Occupancy Permit or Partial Occupancy Permit indicates compliance with the Ontario Building Code. In order for occupancy of certain buildings to be permitted following new construction pursuant to Section 11 the Building Code Act, the building must meet a list of minimum requirements set out in the Ontario Building Code:
Occupancy or use after completion 11.(1) Except as authorized by the building code, a person shall not occupy or use a building or part of a building that is newly erected or installed or permit it to be occupied or used until the requirements set out in this section are met.
Some municipalities issue a formal “Occupancy Permit” indicating that the building complies with this provision. Some municipalities do not issue a formal “Occupancy Permit” and merely deem one of the final building permit inspections to be the “occupancy inspection” after which the building is said to comply with Section 11 and be safe for occupancy.
Most or all municipalities in Ontario, whether or not they issue formal “Occupancy Permits”, issue “Partial Occupancy Permits.” They may be issued by the municipality where, for example, a building is under construction and only the parts of the building specified meet the Building Code occupancy requirements. It is routine for Partial Occupancy Permits to be issued for the commercial space only while the residential portion of the building remains under construction, or for specific residential floors as construction progresses upwards.
Certificate of Occupancy
A Certificate of Occupancy indicates compliance with zoning, in particular that the proposed occupancy is a permitted use. Section 34(6) of the Planning Act allows municipalities to require Certificates of Occupancy:
Certificates of occupancy (6) A by-law passed under this section may provide for the issue of certificates of occupancy without which no change may be made in the type of use of any land covered by the by-law or of any building or structure on any such land, but no such certificate shall be refused if the proposed use is not prohibited by the by-law.
Confusingly, Certificates of Occupancy may from time to time also be referred to as “Occupancy Permits” by municipal staff or some real estate counsel who are unfamiliar with the difference. They may also be referred to as Change of Use Certificates, or incorporated into the municipality’s Zoning Certificate process, which certifies that the plans provided comply with a bylaw passed pursuant to this section and other zoning bylaws.
Zoning compliance is a prominent component of the Building Code Act’s applicable law requirements that must be complied with as a prerequisite to obtaining a building permit. Therefore, Certificate of Occupancy compliance questions will most often arise when no building permit was necessary or obtained.