When a purchaser of a building or residence suffers a loss due
to defective construction a claim for breach of contract is often
illusory as the developer has no assets or is out of business. The
problem is compounded by the fact that the purchaser has no
contract with the general contractor, subcontractor or design
professional who caused the defect to satisfy its claim. The only
claim that can be made in these circumstances is one of negligence
against the general contractor, subcontractor or design
professional involved in the actual construction.
However, in pursuing such a claim the purchaser is faced with
the law of negligence in Canada as set-out in the 1995 Supreme
Court of Canada case of Winnipeg Condominium
Corporation No. 36 v. Bird Construction Co.
("Winnipeg Condominium"). This seminal case sets out that
a purchaser in such circumstances must prove that the construction
defect or design is dangerous to health and safety before a claim
will succeed for
