Over the past 20 or more years, mould and water ingress in condominiums and commercial buildings have caused substantial property damage and resulted in numerous lawsuits.
In British Columbia, matters reached historic proportions two decades ago during the province’s so-called “Leaky condo” crisis.
It has been estimated that $4 billion in damage occurred in more than 900 buildings and 31,000 housing units built between the late 1980s and early 2000s.
Ultimately, a provincial commission identified several causal factors such as: “design features inappropriate for our climate; a reliance on face-sealed wall systems; a fundamental lack of awareness regarding the principles of enclosure design suitable for our climate; meaningful inspection at critical stages of construction; and a regulatory system which was unable to understand that failures were occurring and to redress them.”
In cases where individual condominium unit owners take legal action years after occupancy, it’s often management boards that end up paying for mould and water ingress remediation, even if the specific deficiencies were found to be related to the original design and construction of the building.
However, this doesn’t mean the developers, contractors and builders are always off the hook. In fact, employers, landlords, building owners, contractors, architects, mechanical engineers, trades, product suppliers, developers, vendors, real estate agents, property inspectors and insurers can all find themselves the target of litigation from commercial or institutional building owners.
As a result of the earlier mould and water-ingress problems, homeowner protection acts in some jurisdictions now address most building-envelope issues through regulations that require contractor licensing, registration and insurance.
For its part, the Canadian Construction Association (CCA) released its Mould Guidelines for the Canadian Construction Industry in 2004 which advocated that builders take “a cautious, conservative approach.” The CCA further warned that “contractors and others who fail to follow this suggested approach will increase their exposure to legal claims.”
Fifteen years after the CCA report, however, the issue of mould in larger buildings has not disappeared entirely. In fact, an argument is being made today that a serious problem could re-emerge due to the application of new energy-efficiency building codes being demanded by various levels of government.
Casey Edge, Victoria Residential Builders Association executive director, has long cautioned about the rush towards high energy-efficiency codes without proper investigation, review of proven practice and industry education. In particular, Edge takes issue with the B.C. Step Code, a provision allowing local municipalities in that province to arbitrarily implement energy-efficiency standards beyond those required by the National Building Code.
“Changes to the code should be incremental,” says Edge. “The B.C. Step Code is a Leap Code. In fact, it might actually fast-track building envelope failure by imposing higher levels of energy efficiency on currently approved materials, causing them to deteriorate more quickly because they were not designed for the purpose.”
Debate surrounds the exact nature of the health hazards associated with mould. Nevertheless, Scott Booth of law firm Jenkins Marzban Logan LLP warns that “the only conclusion that can be drawn from the list of parties involved and the nature of the claims being brought is that the uncertainty surrounding mould claims will not stop them from being advanced and, further, that same uncertainty promotes a shotgun blast approach to identifying the parties responsible.”
What should contractors and builders do to protect themselves from possible litigation?
“Mould litigation may not be the next asbestos but it cannot be ignored,” says Booth.
In fact, most legal experts agree that the construction industry needs to be proactive from the outset by educating workers in the correct installation of materials and by developing rigorous periodic inspection procedures during construction. Risk avoidance is always preferable to the time and resources expended through court actions, state experts.
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