The Condominium Act, 1998, SO, c.19 (the “Act”) is sometimes inaccurately viewed as addressing all things related to the function and maintenance of a condominium corporation. The common law and other legislation greatly affect how a corporation must be managed pursuant to section 27(1) of the Act and what responsibilities exist with respect to the repair and maintenance of the common elements under section 90(1). An excellent example of the interplay of the common law and other legislation is illustrated by the discovery of asbestos in a building. As corporations deal with repair and maintenance issues of aging structures the issue of asbestos is a concern.
Prior to 1984, the use of asbestos in drywall compound, stippled ceilings and acoustic tile was not uncommon. There are several types of asbestos. The six types include tremolite asbestos, actinolite asbestos, anthophyllite asbestos, chrysotile asbestos, amosite asbestos and crocidolite asbestos. Of the six types, chrysotile is the only serpentine asbestos that is found in almost all asbestos-based products available today and is the main form of asbestos still mined. Chrysotile, being serpentine, is different from the amphiboles both structurally and chemically. It is generally accepted that chrysotile asbestos is less potent and does less damage to the lungs than the amphiboles.Footnote1
For the most part, the chrysotile asbestos used in joint compound and acoustic tiles contained small amounts of chrysotile asbestos and posed a minimal risk of becoming airborne. Problems arise when the asbestos-containing material (“ACM”) is removed through the course of a renovation or repair. The Act places an onus on a corporation to manage the affairs of the corporation and it also places a burden on the corporation to maintain and repair the common elements or other areas as designated in a corporation’s declaration.
If a corporation suspects that it may have asbestos in its building, its first step would be to request a report from a reputable environmental company specializing in asbestos testing. The Occupational Health and Safety Act RSO 1999, c.0.1, specifically, Ontario Regulation 278/05 Designated Substance – Asbestos in Construction Projects and in Buildings and Repair provides the methodology to be used by the environmental testing company. It also establishes thresholds for what are deemed to be tolerable levels of asbestos. Each province has legislated tolerable thresholds – in Ontario, ACM is defined as material that contains 0.5 per cent or more asbestos by dry weight. If a building is found to contain ACM above the regulated threshold, the regulation imposes certain obligations on a building owner. In the case of a condominium corporation, the obligations may include the establishment of an asbestos management program.
The Occupational Health and Safety Act is an example of other relevant legislation that has a direct impact on the management of the corporation as well as the repair and maintenance requirements.
A corporation faced with ACM, (whether in a unit or a common area), will be required to balance competing interests of unit owners and the corporation. Prior to implementing an asbestos management plan, what needs to be done? Will remedial work be required? If no work is required, the Act does not specifically provide for the disclosure of the possible existence of asbestos in the status certificate as set forth in the prescribed form under the regulation. However, the common law will likely impose a duty on a corporation to disclose this matter and take appropriate steps. Something a corporation wrestles with is balancing unit owners’ safety with the potential negative impact associated with the disclosure of ACM. Assuming the amounts of ACM are small, just above the regulated threshold, what is the corporation to do? Some corporations faced with this situation have elected not to mention the existence of ACM in their status certificate, but have decided to institute an asbestos management program and create a rule. The rule may include such items as a prohibition on unit owners doing any renovations to units without the written approval of the Board. This may allow the Board of Directors to ensure that the asbestos management program is adhered to during any renovation process. The passage of the rule and the contents of the asbestos management program are disclosed to the unit owner. As far as innocent third-party purchasers are concerned, the disclosure of the rule is found in the information provided with the status certificate.
There are many issues to consider and a multitude of considerations to think of outside the Act. There is only one thing that is certain – every situation will be different. It is highly recommended when these issues surface, expert professional advice be obtained.
Timothy P. Kennedy is a partner at Vincent Dagenais Gibson in Ottawa.