In this presentation, FMC's Karen Groulx discusses the recent incidents of falling glass condominium balconies in Toronto. This presentation contains examples of the kinds of issues companies dealing with similar issues could face. If you are faced with one of these issues, please retain professional assistance as each situation is unique.

1. Legal Fallout from Falling Glass
Presented by: Karen Groulx
karen.groulx@fmc‐law.com
416.863.4697
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2. Legal Fallout from Falling Glass
• a reported 30 tempered glass
balconies from more than 10
buildings have shattered in
Toronto since last summer
• at the W hotel and residences in
Austin, several glass balcony
panels fell off the 37‐storey
building in two separate incidents
in June of 2011
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3. The Cause and the Fix
• at the provincial library in Montreal,
decorative glass panels have been
falling off the facade since soon after
the building opened in 2005
• the cause is likely impurities in glass ‐‐
most common type is nickel sulfide
• responsible for about 90 per cent of
impurity‐related fractures
• an independent assessment of the
glass problem at the Bibliothèque et
Archives nationales du Québec in
Montreal found that 30 percent of the
panes on the building do not meet
Canadian standards for glass
The Bibliothèque et Archives nationales du
Québec has been shedding its frosted glass panels treatment
almost since it opened in 2005. (Paul
Chiasson/Canadian Press)
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4. The Cause and the Fix (con’t.)
• shattering could occur due to a combination of
faulty treatment, fractures within the glass and too
tight mounting of the glass onto the façade which
does not allow for temperature‐related expansion
and contraction
• the building contractor, Pomerleau Inc., contested
the findings of the library's consultant
• the fix was to replace the 15 broken panes with the
same type of glass
• a permanent buffer zone was also installed around
the building made up of shrubs, bushes, plants and
1.8‐metre‐wide aluminum and galvanized‐steel
awnings.
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5. The Cause and the Fix (con’t.)
"[The panes] don't fall; they shatter," said library spokesperson
Geneviève Dubuc. "They break into small pieces that aren't
really dangerous. The aim is to, if necessary, collect the debris
caused by the shattering. In the event that glass does shatter,
it falls into the bushes, not on people."
( “In Depth: Shattered Glass: What Causes Panes To Fall Off Buildings”, Kazi Stastna, CBC News,
August 4, 2011)
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6. The Fallout
• class actions have been commenced
against the architects,
manufacturer/installer of the glass
railings and the developers of two
projects
• Each lawsuit is claiming general
damages in the amount of
$15,000,000 and punitive damages in
the amount of $1,000,000 plus a
declaration that the builders were
negligent in the design, installation
and manufacturing of the glass panels
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7. Municipal Regulations
• Property Standards section of Toronto
Municipal Code requires owner to repair,
maintain and keep the property clean in
accordance with the standards and to
take immediate action to eliminate any
unsafe condition
• City of Toronto ordered developer to
remove the balcony glass from the
building
• developer and/or the occupant should
report the incident of falling glass or
cladding to the Right of Way Department
at the City of Toronto
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8. Glass Window Wall Systems
Industry experts claim that window walls:
• are thermally inefficient
• of questionable performance in terms of
durability, air and water leakage
• will require extensive retrofit or
replacement within 15 to 20 years
• expensive to repair ‐‐ an estimated 20
per cent of condominium owners’
reserve fund contributions could be
spent on window wall repairs
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9. Tarion Warranties
One Year Warranty
• Constructed in a workmanlike manner and free from
defects in material;
• Constructed in accordance with the Ontario Building Code;
Two Year Warranty
• Water penetration through the basement or foundation
walls;
• Defects in work or materials, including windows, doors and
caulking, or defects in work that result in water penetration
into the building envelope;
• Defects in work or materials which result in the
detachment, displacement or deterioration of exterior
cladding (such as brickwork, aluminum or vinyl siding);
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10. Tarion Warranties
• Violations of the Ontario Building Code affecting health and safety (including, but
not limited to, violations relating to fire safety and the structural adequacy of the
home); and
• Major structural defects
Seven Year Warranty
• A major structural defect is defined in the Ontario New Home Warranties Plan
Act as:
• any defect in work or materials that results in the failure of a load‐bearing part of
the home’s structure or materially and adversely affects its load‐bearing function;
or
• any defect in work or materials that materially and adversely affects the use of the
building as a home.
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11. Maximum Tarion Warranty Coverage
• 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
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12. The Fallout
Developers will be the target for recovery of claims
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13. General Case law regarding Developer’s
Liability
• Does a contractor/developer owe a duty of care to
subsequent purchasers?
• A finding of negligence would depend on the
existence of a duty of care, breach of that duty and
resulting damages
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14. Legal Liability for Dangerous Defects
• In the seminal case of Winnipeg Condo Corp. No.
36 v. Bird Construction Co., Supreme Court of
Canada Justice LaForest 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.” [Emphasis added]
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15. Legal Liability for Dangerous Defects
• There is liability for dangerous defects
• Defective materials or shoddy but not dangerous defects do
not give rise to liability to third parties for pure economic loss
(such as the cost of repairs) unaccompanied by personal injury
or property damage: Condominium Plan No. 9223676 v.
McJane Developments Ltd.
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16. Implied Warranty
• implied warranty in favour for purchaser of new residence
under construction that the residence will be completed in a
workmanlike manner and will be fit for habitation
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17. Relevance of Building By‐laws and
building codes
• claim against the developer‐contractor for breach
of implied warranty that the building was to be
constructed in a good and workmanlike manner
was dismissed
• sale agreements between the developer and the
individual unit owners expressly stipulated that
the agreements excluded any warranties that
were not written in the contract.
• building by‐laws and building codes help to define
the standard of care
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18. Relevance of Building By‐laws and
building codes
• nothing dramatic had happened to the building and the block wall at issue
had been standing for 22 to 23 years when the repair work was undertaken
in Carleton Condominium Corp. No. 21 v. Minto Construction Ltd.
• significant deviations from building by‐law requirements gave rise to a
claim for breach of warranty and negligence and a finding of liability of $1.5
million to repair the construction of a block wall found to have created a
dangerous condition in Minto Construction
• many glass condominiums in Toronto arguably adhere to building by‐laws
and codes
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19. Other Targets of Litigation – Directors and
Officers
• directors and officers may be the target of claims where there
are no assets or warranty coverage
• courts will consider piercing the corporate veil in situations
where the corporation is, “being used as a shield for
fraudulent or improper conduct”
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20. Building Code Act
• building owners responsible under the Building
Code Act for keeping their building safe
• Building Code changes apply only to
developments approved after July 1, 2012
• heat‐strengthened laminated glass where glass
is installed beyond concrete balcony slab
• heat‐soaked tempered glass to be used when
glass is on a slab but close to the edge
• changes in design required ‐‐no contact
between glass and metal
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21. Response from City of Toronto
• database of condos with glass balconies constructed within the
last five to seven years is being compiled by the City of Toronto
requesting voluntary inspections
• source of information to litigants or potential buyers through
Municipal Freedom of Information Act requests?
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22. Managing Latent Defect Exposure (con’t.)
• be proactive – communicate steps being taken to address problem
• limit warranties provided to purchaser in sale documents
• seek expert advice regarding most cost‐effective and practical type of
cladding taking into account energy efficiency, Building Code requirements,
maintenance cost, lifespan, and building aesthetics
• consult insurance professionals
• consider having professionals conduct regular reviews of the cladding on all
existing large buildings to confirm safety and address any hazards
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23. Karen Groulx
karen.groulx@fmc‐law.com
416.863.4697

24. The preceding presentation contains examples of the kinds
of issues companies dealing with a similar situation could
face. If you are faced with one of these issues, please retain
professional assistance as each situation is unique.