Asbestos is a word that can trigger concern and rightly so. However, the presence of materials containing hazardous substances, such as asbestos, is not unusual. Such materials are commonly found in homes, rental buildings, schools, hospitals, government offices and workplaces.
For condominium directors and property managers in Ontario, understanding your legal responsibilities when it comes to asbestos in common elements is not just prudent, it’s essential. This post outlines your obligations under Ontario law, including when you must investigate, what to do if asbestos is found, and how to communicate with owners.
1. Do You Need to Determine If Asbestos Is Present?
Yes. Under Ontario’s Occupational Health and Safety Act (OHSA) and O. Reg. 278/05: Designated Substance, Asbestos on Construction Projects and in Buildings and Repair Operations, condo corporations are considered employers and building owners. This means they have a legal duty to identify designated substances like asbestos in the workplace which includes common elements of a condominium.
A Designated Substance Survey (DSS) is typically required before any renovation, demolition, or repair work. This survey identifies whether asbestos-containing materials (ACMs) are present, their condition, and the risk they pose
2. What If Asbestos Is Found in the Common Elements?
If ACMs are discovered and exceed the regulated threshold (0.5% asbestos by dry weight in Ontario), the condo corporation must:
- Maintain a record of the location and condition of the asbestos.
- Notify workers and contractors who may be exposed.
- Implement a management plan to monitor and control exposure.
- Take corrective action if the asbestos is damaged or deteriorating.
These obligations apply even if the asbestos is not currently being disturbed. Simply knowing it exists triggers a duty to manage it responsibly.
3. Are You Required to Disclose to Owners?
The presence of asbestos must be disclosed to owners. Failing to inform owners could expose the corporation to liability, especially if health risks arise or if owners undertake renovations that disturb ACMs unknowingly.
Boards should consider:
- Including asbestos findings in status certificates.
- Updating rules and renovation policies to ensure that ACMs are handled properly when owners undertake renovations.
- Notifying owners before major work that may disturb ACMs.
- Consulting legal counsel on how to frame disclosures to avoid panic while fulfilling duty of care.
4. Who Is Responsible for Compliance?
The condominium corporation, through its board of directors and property manager, is responsible for ensuring compliance. This includes commissioning surveys, maintaining records, and hiring qualified professionals for remediation if needed.
Failure to comply can result in:
- Orders from the Ministry of Labour
- Fines or prosecution
- Civil liability for negligence
5. Final Thoughts
Asbestos management is not just a technical issue, it’s a legal and fiduciary one. Directors and managers must be proactive in identifying risks, complying with regulations, and communicating responsibly with owners.
