George White

The plaintiffs, Judy Faulkner and her real estate brokerage, brought an action against their landlord and property manager claiming approximately $2.2 million in damages allegedly caused by exposure to toxic mould in their leased office space.

The plaintiffs asserted that water leaks led to mould growth, causing Ms. Faulkner to suffer from cognitive symptoms and leading to the departure of key real estate agents.

The court accepted the evidence of the defendants' occupational medicine expert, finding that the plaintiffs failed to prove that the office air contained harmful mould or that Ms. Faulkner's symptoms were caused by mould exposure.

Consequently, the court dismissed the claims for negligence, negligent misrepresentation, and breach of lease, awarding only $4,000 for a temporary rent reduction due to the inconvenience of a remediation containment area.

The appellant condominium corporation appealed the dismissal of its application for an order permitting it to enter the respondents' units to carry out mould remediation.

The corporation argued that the respondents' chosen method of remediation was insufficient and created a dangerous condition under s. 117 of the Condominium Act, 1998.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's factual findings that the corporation failed to prove a risk of mould spreading to other units.

The Court also held that the deference standard from Dvorchik did not apply because the corporation's remediation requirement was not a formal rule and involved competing statutory rights.