Fw: Infor from sheilah- see Ontario part

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Sent: Tuesday, February 19, 2002 11:19 AM

Subject: Infor from sheilah- see Ontario part

MOULD LITIGATION AND DUE DILIGENCE Jim Bagley, M.C.I.O.B. Previous issues of the Environmental News have highlighted the hazards of mould in buildings and described the measures needed to assess and remediate mould. Mould contamination is however, not only a disruptive and costly problem to remedy, it can also be the subject of litigation, with settlement costs in some cases reaching eight figures! In general, Canada is less litigious than our neighbours south of the border, where some of the more substantial cases have been tried. However, several cases are pending in Canada and inevitably a large judgement will focus our attention more closely. A close parallel can be seen with asbestos litigation in the late 1980's. Worker remediating mould from a leaky building.>>> A mould contaminated building impacts on a wide range of stakeholders. Some of the parties involved will have a special relationship such as employee/employer, and our no-fault compensation system may limit claims in this relationship. This system does not, however, cover other parties such as landlords and tenants (both commercial and residential), and building occupants such as schoolchildren. Very little case law is yet available in Canada. One of the earliest references in the journal of the Canadian Bar Association is to a 1989 Quebec Tribunal (Bureau de Revision de la Commission de la Santé et de la Securité au Travail), which found that the province's health and safety legislation was violated by significant growth of Stachybotrys Chartarum in a building. Minnesota Courts have ruled against insurance companies attempting to exclude coverage for mould, mycotoxin and allergen contamination under the "pollution exclusion" of their insurance policies. In 1995 the Reliant Insurance Company was ordered to pay the owners of Polk County Courthouse $40 Million to remedy toxigenic mould growing in a building. Personal injury claims were settled for approximately $10 Million. In an even more spectacular judgement, a $400 Million class action suit was settled between The New Museum of Contemporary Art in New York and its employees. Stachybotrys Chartarum found growing on building materials in a sub-basement was found to have caused immune dysfunction. One of the most important developing cases in Canada, both for the scope and potential impact on building owners in the public sphere is the $2 billion class action lawsuit launched against the Dufferin Peel Catholic District School Board in Ontario. This lawsuit alleges that children in the board have been adversely affected by mould exposure in school buildings, particularly portable classrooms and other "temporary facilities". Peel has been a hotbed of public concern over mould in schools. In March of 1999 the regional medical officer of health ordered the public and Catholic boards to inspect and remediate over 1100 school portables and portapack classrooms, failing which, they would not be reoccupied in September. It is clear that in the light of not only a potential health hazard to occupants, but also the very real threat of a substantial lawsuit, building owners and managers need to do all they can to mitigate their risks.The best defence against any form of health and safety litigation is "Due Diligence". Have I done all that is reasonable in the light of current knowledge to prevent this problem from occurring? Mould contamination in a building is entirely preventable – if a suitable nutrient source and water is not available, moulds will not amplify. Having said that, inspecting a large facility or extensive property portfolio and ensuring that it is free from water damage can be a major task. Often some of the early symptoms of mould are not attended to quickly enough – reports of musty odours or staining on ceiling tiles or drywall finishes. Routine maintenance tasks such as clearing gutters and ensuring that caulking is intact should take on a higher priority as the impact of not doing so could prove several orders of magnitude higher than the effort expended. Public Works and Government Services Canada has produced guidelines that should help property owners and managers achieve and maintain a healthy building environment. Their strategy comprises: good design in accordance with accepted standards; formal commissioning to ensure building systems are functioning as intended; an active preventative maintenance program; regular periodic inspections by the property manager; investigation of any environmental problems or complaints; testing and special in-depth investigation by consultants (in-house or external) where problems persist; open communication including a service-call system for tenants; meetings with tenants and their safety and health committees and consultation with health and other regulatory officials. NB Thanks to J QC of Thomson, Barristers and Solicitors, Calgary Alberta for providing case law and to Bruce CIH, ROH of Pinchin Environmental, Mississauga Ontario for providing school information.