Who is responsible for a Designated Substance Survey on a leased commercial unit?

Section 30 of Ontario's Occupational Health and Safety Act requires the owner, before beginning a project, to determine whether any designated substances are present at the project site, and to prepare a list of them. That list must be included in the tender documents. If the work goes ahead without tendering, the list goes to the constructor before any contract is entered into. The constructor must then give it to each prospective contractor and subcontractor.

The Act's definition of owner is broader than the name on title. It includes a tenant, lessee or occupier of land or premises used as a workplace, and anyone acting on their behalf. So when a tenant commissions a fit-out or strip-out of its leased unit, the tenant can be the owner for the purposes of section 30. When the landlord commissions the work, for example to prepare a vacant unit, the landlord is the owner.

Many commercial leases address hazardous materials directly. Common arrangements include:

• The landlord provides a building-wide survey and updates it for each unit
• The tenant commissions a unit survey as part of its fit-out, at its own cost
• The work letter assigns the survey to whichever party is doing the work
• The landlord requires any tenant contractor to follow the building's asbestos management plan

Without a survey, contractors are pricing blind and workers may disturb asbestos or lead without knowing. If asbestos is present, the work falls under O. Reg. 278/05, which sets out how it is classified and removed. Finding it halfway through a job means a stop, a new scope and a delay.

A survey done years ago may not cover the areas now being disturbed, such as above the ceiling, inside walls or under flooring. If the scope reaches places the survey did not, it should be updated. Sampling of suspect materials before disturbance is the safe default.

A demolition contractor is not the owner and does not carry the section 30 duty, but should ask for the list before quoting and refuse to disturb suspect materials that have not been assessed. The constructor, often the GC, passes the list to every trade.

We ask for the Designated Substance Survey on every commercial unit before we quote, and if it does not exist we explain who is likely responsible under the lease and the Act. Suspect materials outside the survey are tested before we disturb them. Read about our commercial strip-outs and interior demolition, or request a free estimate.