February 14, 2018 by Chris Ciasnocha, Senior Associate, Multidisciplinary Remediation; Joelle Reid, Associate Environment; and Jeff Reitsma, Practice Lead, Multidisciplinary Remediation, 30 Forensic Engineering
Property losses make up a large portion of files that end up as insurance claims, often requiring the involvement of multiple parties to return the insured property to a pre-loss state, including insurers, engineers, and contractors. Fundamentally, under the terms of Ontario Regulation (O.Reg.) 297/13—Occupational Health and Safety Awareness and Training, failure to make parties aware of hazards and hazardous materials can be deemed as an offence chargeable under the act.
In an insurance context, this obligation to disclose may well flow through to adjusters, contractors and their organizations more broadly. Understanding the requirements is critical, therefore, for all parties in the safe and proper execution of both simple and complex files. When dealing with property losses in Ontario, many aspects of the Ontario Building Code, Electrical Code, Fire Code and Municipal By-Laws drive the assessment and reinstatement phases. The environmental aspect of a loss should be an important consideration at the onset of the assessment phase, especially if any portion of the project will be tendered.
Section 30 of the Occupational Health and Safety Act (OHSA) outlines the following duties of project owners regardless of the urgency, be it a planned or emergency situation:
• 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 at the site.
• If any work on a project is tendered, the person issuing the tenders shall include, as part of the tendering information, a copy of the designated substances assessment.
• The owner shall ensure that a prospective constructor of a project on the owner’s property has received a copy of the designated substance assessment.
• The owner who fails to comply with Section 30 is liable to the constructor and every contractor 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 not listed in the designated substance report.
In Ontario, designated substances are defined by O.Reg. 490/09 and include acrylonitrile, arsenic, asbestos, benzene, coke oven emissions, ethylene oxide, isocyanates, lead, mercury, silica and vinyl chloride.
In addition, O.Reg. 278/05—Asbestos on Construction Projects and in Buildings and Repair Operations requires that an asbestos survey be completed to identify the type of material that contains asbestos, the type of asbestos presence, the location within the building, and the condition of the asbestos-containing material. This applies to residential buildings with more than four units.
Read the full article in the Digital Edition of the February 2018 Canadian Underwriter.
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Chris Ciasnocha, Senior Associate, Multidisciplinary Remediation; Joelle Reid, Associate Environment; and Jeff Reitsma, Practice Lead, Multidisciplinary Remediation, 30 Forensic Engineering