A construction contractor has lost its bid for damages from a
city, relying on a little-used section of the Ontario
Occupational Health and Safety Act that permits
contractors to sue a building owner for damages for failing to
disclose the presence of designated substances such as asbestos.
The contractor's lawsuit and appeal were both dismissed.
The contractor alleged that the City of Ottawa had failed to
notify it that asbestos was present on the construction project
site, and that as a result, the contractor's workers had been
exposed to asbestos. The contractor claimed damages for
administrative expenses (it's president's time dealing with
the issue) and legal costs resulting.
The contractor relied on subsection 30(5) of the Ontario
Occupational Health and Safety Act, which reads:
An owner who fails to comply with this section is liable to the
constructor and every contractor and subcontractor who suffers any
loss or damages as the result of the subsequent discovery on the
project of a designated substance that the owner ought reasonably
to have known of but that was not on the list prepared under
Subsections 30(1) and (3) of the OHSA together require the
building owner to provide the contractor with a list of designated
substances at the project site.
The trial and appeal court decided that the contractor had not
proven any damages. The list of hours spent and work done by
the contractor's president to deal with the asbestos issue, was
vague and general and was not suitable proof. There was no
evidence that the legal bill was ever submitted to or paid by the
contractor. As such, the contractor's lawsuit was
Lastly, the trial and appeal court were not prepared to grant a
"declaration" that the City caused the unprotected
exposure of the workers to asbestos or that the City was liable for
damages incurred by the contractor and workers as a result of the
exposure. The court noted that the request was speculative as
it was not known whether any of the employees would ever become ill
as a result of the asbestos exposure and if so, whether they would
start legal proceedings. Also, any declaration might have an
impact on the rights of employees who were not a party to the
lawsuit between the contractor and the City.
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