Curoc Construction Ltd. v. Ottawa (City), 2015 ONCA 693

• Judge: Gillese, Epstein and Roberts, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 23, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 693;(2015), 341 O.A.C. 36 (CA)

Curoc Constr. Ltd. v. Ottawa (2015), 341 O.A.C. 36 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. OC.016

Curoc Construction Ltd. (plaintiff/appellant) v. City of Ottawa (defendant/respondent)

(C60006; 2015 ONCA 693)

Indexed As: Curoc Construction Ltd. v. Ottawa (City)

Ontario Court of Appeal

Gillese, Epstein and Roberts, JJ.A.

October 15, 2015.

Summary:

Curoc Construction Ltd. and the City of Ottawa entered into a contract under which Curoc was to, inter alia, remove, refinish and replace vinyl floor tiling in a City-owned property. After Curoc had completed most of the work, it received information that there was asbestos in the flooring in the construction area. Work stopped for approximately one week, during which time the City retained an asbestos containment contractor to co-ordinate the clean-up of the work site and facility. Curoc then completed its work. Curoc started an action against the City seeking damages and declaratory relief for alleged breaches of the Occupational Health and Safety Act. The City moved for summary judgment. Curoc brought a cross-motion for summary judgment.

The Ontario Superior Court granted the City's motion for summary judgment and dismissed Curoc's cross-motion. Curoc appealed.

The Ontario Court of Appeal dismissed the appeal.

Practice - Topic 5660

Judgments and orders - Declaratory judgments - Necessity for joinder of or notice to interested persons - [See Trade Regulation - Topic 7784 ].

Practice - Topic 5667

Judgments and orders - Declaratory judgments - Bars - Academic questions - [See Trade Regulation - Topic 7784 ].

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See Trade Regulation - Topic 7784 ].

Trade Regulation - Topic 7784

Industrial safety - Dangerous substances - Duty or liability of owner re designated substances - Curoc Construction Ltd. contracted with the City of Ottawa to, inter alia, remove, refinish and replace vinyl floor tiling in a City-owned property - Afer Curoc had completed most of the work, it received information that there was asbestos in the flooring - Work stopped for approximately one week, during which time the City retained an asbestos containment contractor to coordinate the clean-up of the work site and facility - Curoc then completed its work - Curoc started an action against the City seeking damages and declaratory relief for alleged breaches of the Occupational Health and Safety Act (OHSA) - Curoc alleged that the City knew that asbestos was present at the work site but, contrary to the requirements of the OHSA, failed to disclose that information to Curoc - As a result, Curoc failed to take the appropriate precautions and Curoc's president and certain employees were exposed to asbestos (the "Incident") - The City moved for summary judgment - It contended both that Curoc's action was premature, in that Curoc had not actually sustained any damages, and that declaratory relief was inappropriate - Curoc brought a cross-motion for summary judgment - Before the motions judge, Curoc tendered evidence that it had suffered damages in the form of legal and administrative costs as a result of the Incident - The City's motion was granted - Curoc's cross-motion was dismissed - Curoc appealed - The Ontario Court of Appeal dismissed the appeal - Liability under s. 30(5) of the OHSA was dependent on Curoc suffering "loss or damages" as the result of the subsequent discovery of asbestos on the project - Having found that Curoc failed to meet its burden in respect of loss or damages, it was not necessary for the motions judge to give more detailed reasons about the employees' exposure to asbestos nor was he obliged to determine whether the City had breached the OHSA - The first factor guiding the court's exercise of discretion to grant declaratory relief (the utility of the declaration) was not met because the proposed declarations concerned possible future legal proceedings and related to future or hypothetical rights - Further, the motions judge made no error by considering the possibility that the proposed declarations could affect the rights of third parties, namely, one or more of the employees.

Cases Noticed:

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425, refd to. [para. 13].

Aronowicz et al. v. Emtwo Properties Inc. et al. (2010), 258 O.A.C. 222; 98 O.R.(3d) 641; 2010 ONCA 96, refd to. [para. 26].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [para. 32].

Statutes Noticed:

Occupational Health and Safety Act, R.S.O. 1990, c. O-1, sect. 30(5) [para. 14].

Counsel:

Nigel McCready, for the appellant;

Jeremy Wright, for the respondent.

This appeal was heard on September 23, 2015, before Gillese, Epstein and Roberts, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Gillese, J.A., and was released on October 15, 2015.