Between May and August 2011, five panels of glass fell from balcony guards on the Festival Tower, a 41-storey condominium in downtown Toronto that was completed in 2010. Since then, residents of the Festival Tower have launched a $20 million class action lawsuit against the developer, Daniels Corp., for the diminished value of their suites and being locked out of their balconies while the developer replaced the balcony guards with laminated glass.

Between April 2010 and September 2011, 15 panels shattered on the 45-storey and 35-storey Murano towers completed by Lanterra Developments in 2009. Residents have launched a similar $20 million class action lawsuit since they, too, have been locked out of their balconies for more than a year while the developer replaces the balcony guards.

Up until July 1, the glass used in balcony guards had to either be fully tempered or heat strengthened laminated glass.

Jerry Genge, president of GRG Building Consultants Inc., says the shattered panels were tempered glass.

“(Almost) all the breakage that has been happening is the result of nickel sulphide inclusions in the glass,” he explains. “Nickel is a naturally occurring impurity in the raw materials that make glass. Sulphur is added to the molten glass to eliminate air bubbles. The miniscule particle of nickel sulphide can (then) form. (It) wouldn’t be a problem in glass except the particle actually changes and when it does, it swells slightly and that can cause the glass to break spontaneously.”

Condominium trends have changed in the past few years in ways that have made glass exteriors seem more prone to breakage. Glass guards used to be mounted on the top of the slab or as small infill panels above low walls. Now they are being designed to cover the edge of the floor slab and stretch around the full perimeter of the building.

“Covering the edge of the slab makes the panels larger, which means they need to be thicker to be as strong to resist wind and live loads,” says Genge. “Thicker glass increases the chances of having a nickel sulphide inclusion in any one panel. More glass balcony area means more opportunity for a nickel sulphide inclusion somewhere on a building.”

In an effort to curb the problem, the City of Toronto is compiling a list of condominiums it would like inspected. However, a consultant won’t be able to check if there is nickel sulphide in the glass panels; a consultant can only inspect the way the glass was installed.

“You don’t want the glass to be very close to the anchorages that hold the glass in place or that hold the posts for the balcony guards to the slabs,” says Genge. “If the glass deflects under wind load, it might touch the metal and that can either cause a break or it can cause the glass to weaken at the edge and then eventually shatter.”

Whether or not the City requests a condominium to be inspected, it is prudent for any condominium with glass balconies to consider the possibility of them shattering or they could be found negligent by the courts.

Joel Watson, a partner who practices construction and condo litigation at the law firm Heenan Blaikie LLP, recommends condominium corporations enlist legal help. Lawyers have experience dealing with consultants and will be able to steer a client toward a reputable one.

Watson adds enlisting council that is knowledgeable in condominium law can save money in the long run if the lawyer works with the consultant.

Once the board gets a recommendation from a consultant on how to proceed, it can work with council to recover some of the cost of the repairs from the developer.

“If a remedy has to be taken, get a quote on how much it will cost to do it and then discuss with the developer as to how they want to approach it,” says Watson. “When the building was constructed, it might have been built according to (the building) code, (so the developer) may not have been negligent but they may have a commercial interest in making sure their building is safe.”

Watson recommends a board engage with the developer as early as possible. Address the issues when the developer still has people on site, not when it has moved on to another project or has possibly gone bankrupt.

“The standard is not perfect but obviously once you become aware of the concern, people should be responding to the concern,” says Watson. “And the (building) code is a minimum. It is not the standard to which the court will eventually hold you to.”

Amie Silverwood is editor-in-chief of CondoBusiness magazine.