The Ontario Court of Appeal recently dismissed a
contractor's appeal for damages due to exposure to asbestos.
The contractor's employees were exposed to asbestos on a
worksite. Despite confirming the existence of a statutory cause of
action, the contractor was unable to prove any damages.
Historically, environmental civil litigation has been grounded
in the common law torts of trespass, nuisance, negligence and the
doctrine of strict liability. As more information has become
available about environmental contamination and its effects on
humans and the natural environment, the provincial legislature has
responded by creating statutory causes of action to hold those
We recently discussed the application of one such statutory
cause of action for loss or damage resulting from a spill in
Midwest Properties Ltd v Thordarson.1 Click
here to read the article. Another example of an environmental
statutory cause of action was recently considered by the Ontario
Court of Appeal in Curoc Construction Ltd v Ottawa
The City of Ottawa hired Curoc Construction Ltd. to replace
flooring at a City-owned office building. After completing most of
the work, Curoc discovered asbestos in the flooring. Both sides
agreed to cease work until the City completed asbestos removal and
clean-up. Once the asbestos containing material was removed, Curoc
completed the remainder of the work.
Curoc brought an action against the City under the
Occupational Health and Safety Act.3
Section 30 of the Act states:
(1) Before beginning a project, the owner shall determine
whether any designated substances are present at the project site
and shall prepare a list of all designated substances that are
present at the site.4
(5) 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 subsection (1).5
Asbestos is a designated substance.6 Other
designated substances include: acrylonitrile, arsenic, benzene,
coke oven emissions, ethylene oxide, isocyanates, lead, mercury,
silica and vinyl chloride.7
Curoc alleged that the City did not inform it of the asbestos,
as required by law. Curoc alleged damages for administrative and
legal costs arising from the incident. Curoc also sought
declaratory relief that the City admit liability and indemnify
Curoc for any future claims.
The City moved for summary dismissal. The motions judge granted
the City's motion and summarily dismissed Curoc's
claim.8 The Ontario Court of Appeal upheld the
Both Courts focused on Curoc's inability to prove its
Curoc's claim for administrative
costs sought reimbursement of its president's time to deal with
the incident. The Court of Appeal found that the list of hours
spent and the tasks undertaken by the president were vague and
lacked particulars. There was no evidence that the president
received any additional compensation or that there was any actual
loss to Curoc.9
Curoc's claim for legal costs
sought reimbursement for a sample bill from a law firm used to
determine how to properly respond to the incident. The Court of
Appeal found that there was no evidence the bill was ever rendered
or paid. Further, the bill may have reflected time spent on the
litigation and not in response to the
While Curoc's claim failed, the Ontario Court of Appeal
acknowledged that section 30(5) of the Occupational Health and
Safety Act does create a cause of action in certain
Owners of buildings should ensure they determine whether any
designated substances are present at the project site and prepare a
list of all designated substances. Similarly, constructors,
contractors and subcontractors should be aware of this cause of
action if they are unknowingly exposed to a designated
1 2015 ONCA 819.
2 2015 ONCA 693.
3 RSO 1990, c O.1.
4Ibid, s 30(1).
5Ibid, s 30(5).
6 O Reg 490/09, s 2.
9 2015 ONCA 693 at para 20.
10Ibid at para 25.
11Ibid at para 13.
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