Canada: Legal Fallout From Falling Glass

Last Updated: April 20 2012
Article by Karen B. Groulx

There has been much publicity regarding the incidents of falling glass from condo balconies in Toronto over the past year. Of particular concern is the fact that these incidents continue to appear in the news.

As a result of the defects arising from the use of glass as a primary building envelope, condominium corporations are forced to initiate "...remediation and replacement of the buildings' window walls in a proactive manner. Remediation or replacement costs can be a substantial expense for the corporation [and] is borne by the owners in the form of high maintenance fees and/or special assessments."1 A question that remains to be answered includes what is the reasonable life expectancy of a primary building envelope principally made of glass?

While there is limited case law directly on point, it is clear that the law regarding developers' liability for falling glass will be developed in the coming years. Indeed, as a result of the Toronto incidents involving the Murano Towers and the Festival Towers, respectively, two class actions have been commenced against the developers, manufacturer/installer of the glass railings and the architects for each project.2

Each lawsuit is claiming general damages in the amount of $15,000,000 and punitive damages in the amount of $1,000,000. In addition to seeking a declaration that the builders were negligent in the design, installation and manufacturing of the glass panels, the owner plaintiffs are seeking a declaration that the builders are in breach of their statutory warranties under the Ontario New Home Warranties Plan Act3. Specifically, the actions seek to compensate the owners and tenants of the faulty condominium units for the loss and enjoyment of their balconies which access was prohibited to following the incidents of falling glass, and for the diminished loss in value and in rental income of their units.

Many owners of new condo units are protected by the Ontario New Home Warranties Plan Act4 (the "Act"), which imposes mandatory 7 year warranties for major structural defects on new homes in Ontario. The Act is administered by Tarion Warranty Corporation ("Tarion"). The Tarion condominium coverage can been described as follows:

One Year, Two Year, and Major Structural Defect warranties are in effect, where the aggregate maximum warranty coverage for new homes and condominium units is $300,000. The maximum coverage for condominium common elements is $50,000 times the number of units, to a maximum of $2.5 million...Normally, by the end of the total warranty coverage period, isolated performance problems begin to occur within the window wall assemblies, mostly visible as water leakage.5

Given the fact that Tarion imposes a maximum claim for warranty coverage, the next pocket that condo owners look to cover their expenses is generally those of the developers.

The Decided Cases

When claiming against a developer for negligent design/construction, the claimant must show that the defendant developer owed the claimant a duty of care. Further, it must be shown that the defendant developer failed to exercise a reasonable standard of care and that this failure was a material cause of the damage the plaintiff suffered.6

In Condominium Plan No. 9223676 v. McJane Developments Ltd.7, the condominium corporation brought an action against the developer‐contractor for negligence after it had to complete extensive repairs to the building post‐construction. The claim was also made against the structural engineer, the architect and the designer, manufacturer and supplier of materials used in the building, together with the developer‐contractor.

In turning its mind to the negligence claim, the Court affirmed that to be found liable for negligence depends on the existence of a duty of care, breach of that duty and resulting damages. In McJane Developments, the nature of the damages was for pure economic loss given that there was no injury to persons or damage to property apart from the defective building itself. The Court further affirmed the seminal case of Winnipeg Condominium Corp. No. 36 v. Bird Construction Co., where at para. 43, La Forest J. stated: ...contractors (as well as subcontractors, architects and engineers) who take part in the design and construction of a building will owe a duty to subsequent purchasers of the building if it can be shown that it was foreseeable that a failure to take reasonable care in constructing the building would create defects that pose a substantial danger to the health and safety of the occupants.8 [Emphasis added.]

The Court noted that Winnipeg Condo further distinguished between shoddy and dangerous defects, holding that the duty of care in a construction context does not extend to putting into circulation products which are merely defective or shoddy, if they are not dangerous.9 Therefore, in considering whether any of the defects in the building which warranted repair constituted a substantial risk or danger to the persons including the occupants of the building or the property of the plaintiff corporation, other than the building itself ("dangerous defects"), the Court held that none of the defects alleged by the plaintiff corporation were dangerous defects and dismissed the claim for negligence.10

When determining the standard of care to apply to a claim for negligence, the Court in Carleton Condominium Corp. No. 21 v. Minto Construction Ltd.11 confirmed that building by‐laws and building codes help to define the standard of care in a particular fact scenario. Further, the Court stated that while a minor discrepancy between the building by‐laws and codes and the actual construction of the building might result in such a small reduction of a safety margin that it would be insignificant in a legal sense, the defects in Minto Construction were significant deviations from the building by‐law requirements and justified a finding in negligence.12

This point is notable considering the glass condominiums in Toronto actually do adhere to building by‐laws and codes, and on the analysis offered in Minto Construction, it would appear that developers actually do meet the standard of care set out. On the other hand, the glass manufacturers would not meet the standard of care to the extent that the supplied glass contained defects arising from the use of substandard materials in the manufacturing process.

It is interesting to note that the Court, in finding liability as against Minto, noted that nothing dramatic had happened to the building and that the wall at issue had been standing for 22 to 23 years when the repair work was undertaken. The wall had not collapsed nor was it displaying any minor failures that would herald possible future disasters. Nevertheless, the Court determined that, based on the evidence adduced, the defects required remedial action for reasons of safety and that the builder owed a duty of care to take reasonable care in constructing the building to ensure it would "not contain defects that would pose foreseeable and substantial danger to health and safety of occupants".

It has been suggested that the proper reaction of developers of faulty condos is to be proactive. For example, with respect to the Festival Towers' incident, mentioned above, prior to building code amendments being suggested by Toronto's city council, Lanterra Developments (the developer for the Festival Tower) had already announced plans to replace the faulty glass on its balconies with safer laminated glass.13

Given the proliferation of information available on the Internet today, including reports of complaints made by purchasers of condominium units, there are incentives for developers to be proactive to ensure that their reputation as solid and reliable builders is maintained. As with any construction project, there will be deficiencies and issues; however, the good builders will take steps to deal with these issues in a proactive manner before Tarion or the Courts award compensation to purchasers for the negligent design and/or construction of condominiums by developers and their contractors, architects and/or engineers.

Footnotes

1 Lynn Morrovat, "Toronto Condo Group says Planning, Education, Industry/Government Initiatives, Key to dealing with Glass Tower Issue," Canadian Condominium Institute, November 2009, online: (date accessed: 20/03/2012).

2 Notice of Action against Lanterra Developments Ltd. et al, available online: (date accessed: 02/04/2012); Notice of Action against The Daniels Corporation et al, available online : (date accessed: 02/04/2012)

3 Ontario New Home Warranties Plan Act, R.S.O., 1990, c. O.31

4 Supra, note 3.

5 Ted Kesik, "The Glass Condo Conundrum", University of Toronto, online at http://www.cbc.ca/Toronto/features/condos/pdf/condo_con undrum.pdf : (date accessed: 19/03/2012)

6 The Owners, Strata Plan NW 3341 et al. v. Canlan Ice Sports Corp. et al., 2001 BCSC 1214 at para. 24.

7 2002 ABPC 181 ["McJane Developments"].

8 Ibid. at para. 20, citing (1995), 121 D.L.R. (4th) 193 (S.C.C.) ["Winnipeg Condo"].

9 Ibid. at para. 58.

10 Ibid. at para. 6.

11 2001 CarswellOnt 4558 (S.C.J.) ["Minto Construction"]

12 Ibid. at 406.

13 Michael McKiernan, "What's the future of glass houses," Canadian Lawyer Magazine, February 2012, online: (date accessed: 20/03/2012.

About Fraser Milner Casgrain LLP (FMC)

FMC is one of Canada's leading business and litigation law firms with more than 500 lawyers in six full-service offices located in the country's key business centres. We focus on providing outstanding service and value to our clients, and we strive to excel as a workplace of choice for our people. Regardless of where you choose to do business in Canada, our strong team of professionals possess knowledge and expertise on regional, national and cross-border matters. FMC's well-earned reputation for consistently delivering the highest quality legal services and counsel to our clients is complemented by an ongoing commitment to diversity and inclusion to broaden our insight and perspective on our clients' needs. Visit: www.fmc-law.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Karen B. Groulx
 
In association with
Related Video
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
Accounting and Audit
Anti-trust/Competition Law
Consumer Protection
Corporate/Commercial Law
Criminal Law
Employment and HR
Energy and Natural Resources
Environment
Family and Matrimonial
Finance and Banking
Food, Drugs, Healthcare, Life Sciences
Government, Public Sector
Immigration
Insolvency/Bankruptcy, Re-structuring
Insurance
Intellectual Property
International Law
Law Practice Management
Litigation, Mediation & Arbitration
Media, Telecoms, IT, Entertainment
Privacy
Real Estate and Construction
Strategy
Tax
Transport
Wealth Management
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.comís content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltdís services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) Ė meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with ďno disclosureĒ in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a userís hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friendís name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our usersí information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a userís personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that userís personal data provided to us. This can usually be done at the ďYour ProfileĒ page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.