The following is a guest post by Marc P. Kemerer a partner with Blaney McMurtry LLP in the firm’s Planning and Expropriation law group and the Architectural/Construction/Engineering Services (ACES) Group. Marc has acted for a number of large developers and regularly provides strategic and legal advice on large residential, condominium, retail/commercial and subdivision developments.

In the summer of 2011 there were a number of instances of “glass panel failure” at Toronto condominium sites in both Regent Park and the Bay and College Streets area. In these cases glass from balcony panels shattered onto the street below, causing immediate safety concerns for unit occupants, pedestrians and persons using the commercial/retail podiums below.

In response to this rash of panel failures, the City of Toronto retained an independent engineer to review the issue and to meet with representatives of the developers of the buildings where the failure had occurred. The result of this investigation, set out in a City Staff report dated 3 November 2011, was a determination by the City consultant that improvements are required in the following areas:

  • design of the balcony guards incorporating glass; and
  • Ontario Building Code performance load and material standards for glass panels

The staff recommendations in that report, adopted by the City’s Planning and Growth Management Committee at its meeting of November 29 and 30, 2011, are that the City:

  • review levels of service undertaken in the issuance of building permits and inspections for glass balcony guards, and
  • recommend that emergency amendments be made to the National and Ontario Building Codes

It is unclear what staff mean by reviewing existing levels of service; staff conceded to the writer that there is little they can do provided the balcony design meets the requirement of the Building Code (the “Code”). What is clear is that this issue is being taken very seriously at the Provincial level and that we may soon see amendments to the Code to address this concern, for example a requirement that balcony glass undergo a process of “heat soaking” before being installed.

If so, the result will be that it will be more expensive to fashion the clean modernist look that increasingly characterizes high rise condominium buildings. This is a cost that will likely be passed on to the consumer seeking out this aesthetic. At the same time, it will mean that the purchaser will be able to entertain on that hip balcony with less worry.

This concern is not restricted to balcony guards. The use of glass as an important construction material in tall towers is coming under increasing criticism and litigation, with certain analysts expressing concern about the energy efficiency and durability of the material. Should these skeptics be proven right, further amendments to the Code or changes in construction practice may follow. We will keep you posted on these developments.

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