DIVISIONAL COURT FILE NO.: 10-DC-1696
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J. Mackinnon J.
BETWEEN:
Mohammad Mehdi-Pour and Marzieh Yazdanyar
Appellants
– and –
Minto Developments Inc., Direct Energy Essential Home Services, Enbridge Gas Distribution and Harding Mechanical Contractors Inc.
Respondents
Marcus J. Boire, for the Appellants
Tara M. Sweeney; Kevin P. Nearing; and Christopher F. Reil, for the Respondents
HEARD: May 18, 2011
REASONS FOR JUDGMENT
1This is an appeal from the order of Master Calum MacLeod dated November 15, 2010 granting summary judgment to dismiss the Plaintiffs’ claim with costs of the action and of the motion. The action arises from the installation of a hot water heater in a new home purchased by the Appellants from Minto. Minto contracted with Harding to install the hot water heater which was owned by Direct Energy. Enbridge was responsible for the supply of natural gas used to operate the hot water heater.
2The Appellants took possession of the home on February 25, 2003. They claim that for almost two and one half years the hot water heater was not vented to the outside of their home and that consequently there was a build up of carbon monoxide in the home resulting in adverse health consequences to themselves.
3The grounds of the appeal are that:
The Master erred in denying an adjournment of the motion;
The Master exceeded his jurisdiction in that the motion involved a question of law;
The Master exercised powers specifically reserved for judges hearing summary judgment motions;
The Master erred in reversing the onus of proof by placing it upon the responding parties rather than upon the moving parties;
The Master erred in considering expert evidence submitted by the respondents; and
The Master erred in applying the wrong legal test for causation.
Standard of Review
4Appellate interference with a Master’s decision on a motion of summary judgment is justified only if the Master made an error of law, exercised discretion on wrong principles or misapprehended the evidence such that there is a palpable and overriding error. Applied to this appeal the standard of review requires that the Master be correct in his determination that he had jurisdiction to hear the motion and to exercise the powers that he did exercise, that he applied the proper principles of law, and that in terms of the factual context of the motion, that his determination that no genuine issue requiring trial exists is one that was open to him to find on the record before him.
The Adjournment Request
5The decision whether or not to adjourn the motion was discretionary. On May 31 the motion was scheduled to be heard on September 30. It was made clear to the Plaintiffs’ counsel in May that because of non compliance with the timetable with respect to outstanding undertakings he was unable to examine the Defendants for discovery but that he would be able to cross-examine on any affidavit material delivered in support of the motion. The motion materials were delivered on July 14. Two notices to attend for oral examination for discovery were served returnable on September 14. Counsel advised that they would not attend because undertakings remained outstanding and the Master had already ordered that the Plaintiffs could not take further steps in the case until they had been answered. The Plaintiffs never sought to cross-examine deponents on their affidavits. The request for the adjournment was not made until the morning of the event. On these facts the Appellants incorrectly describe the denial of the adjournment as a refusal to allow them to cross-examine. They had a reasonable opportunity to do so and failed to take the proper steps to do so.
6The Master exercised his discretion to deny the adjournment on proper principles. There is no basis to this ground of appeal.
Jurisdiction
7The Appellants submit that the motion required a decision on a point of law on the question of causation and therefore exceeded the Master’s jurisdiction. Rule 20.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 requires a Master who determines that the only genuine issue is a question of law to adjourn the motion to a judge. This Rule does not mean that a Master cannot apply settled legal principles to the facts of the case. Nor does it mean that a Master cannot find that there is no genuine question of law requiring trial. In my view, the Master had the jurisdiction to apply the legal test for causation to the record before him in determining the motion for summary judgment.
8The Appellants also submit that the Master exercised judicial powers under Rule 20.04(2.1) to weigh evidence and to draw reasonable inferences from the evidence. These powers are not within the jurisdiction of a Master. The Appellants point to three such inferences that they say the Master drew:
That the exhaust was in fact installed on February 7, 2003;
That the Appellants’ symptoms although medically substantiated, were not associated with exposure to carbon monoxide poisoning; and
Inferences of fact from the evidence that carbon monoxide detectors in the home were fully functioning during the entire time that the appellants were in occupation.
9Rule 20.02(1) provides that the court, which includes a Master of the court, may if appropriate draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts, instead relying upon second hand information.
10The Master did not infer that the hot water heater was properly vented on February 7, 2003. Rather he stated at paragraphs 32, 33, 34 and 35:
There is however nothing in this affidavit establishing precisely what the deficiency in the venting was, what observations the plaintiff himself made, how serious the deficiency actually was, what other sources of fresh air there may have been or what if anything had been done to the water heater during the time the plaintiffs were in occupation. The plaintiff has no technical or scientific evidence about carbon monoxide generation or dissipation or specific measurements taken at the property.
The plaintiff attesting that a representative from Direct “recognized that the … pipe was not connected and that the pipe had been emitting carbon monoxide …” is obviously a summary of hearsay evidence and is nothing more than a general assertion. There is other evidence on this point that I will come to momentarily but it cannot be found in the plaintiffs’ affidavits. The plaintiffs did not cross examine the deponent for Direct Energy or put in evidence any of Direct Energy’s productions. This seems a particularly glaring omission because obviously the installer from Direct Energy who concluded the venting was inadequate and who effected the repairs will be a critical witness.
The affidavit states that Direct Energy recognized the vent pipe was not connected but it does state whether or not there was any other way for CO to escape or fresh air to enter. There is no evidence concerning the amount of CO that the water heater would generate if operating properly. There is no explanation as to how, if the vent was never connected properly, the premises passed numerous inspections by the defendants but also by a home inspector hired by the plaintiffs to go over the home a year after they took possession. Not disclosed in the affidavit but admitted under cross examination is the fact that the carbon monoxide detectors installed on the upper floors of the house were fully functioning and were never triggered during the entire time the plaintiffs were in occupation. There is no explanation as to how a toxic level of carbon monoxide could be present without triggering the alarms. These can only be genuine issues requiring a trial if the plaintiffs have evidence that could meet the onus upon them at trial to prove their allegations.
The plaintiff proposes a circular form of proof. According to the plaintiff his doctors say that symptoms described by him and certain signs observed by diagnostic means are consistent with CO exposure. On this evidence the court will be asked to find that the levels of CO in the house must have reached toxic levels because the water heater was not vented properly. The damage in other words speaks for itself. But the affidavit does not deal with whether or not there might be other sources of CO exposure or other explanations for the signs and symptoms. In fact the plaintiff admitted to being exposed to other sources of CO. The evidence of the plaintiffs does not establish that the symptoms reported to the doctors and described in the medical legal reports are accurate. There is no affidavit from the plaintiffs’ family physician attesting to their health status before moving into the home and contrasting it with the situation afterwards. The summaries of medical history contained in the specialist reports are not evidence.
11In these paragraphs the Master is not drawing inferences from the facts; rather he is noting what evidence was not before the court. This was especially important in that the Appellants had not deposed that they themselves saw that the venting was not connected although they were present with the Direct Energy technician. At paragraph 48 the Master refers to the inspections in order to illustrate the importance of the Appellants’ failure to present evidence that there were no alterations to the state of the equipment in the intervening years.
12The Master notes that the Appellants submitted that because they had medical symptoms consistent with carbon monoxide exposure the court could find that the levels of CO in the house must have reached toxic levels because the water heater was not properly vented. The Master made no inference that the symptoms were not caused by carbon monoxide poisoning. Rather he notes that Mr. Mehdi-Pour had been exposed to carbon monoxide during his employment and that both Appellants were smokers. In the case of Ms. Yazdanyar the medical report filed stated that her family doctor had described a significant deterioration of her health status and that it is impossible to accurately predict the future health effects from prolonged CO poisoning. The Master’s point was that this evidence would not be able to establish causality between the water heater and the symptoms. This conclusion is not based on inferences from the evidence rather from deficiencies or gaps in the evidence in the record before him.
13The Master did not draw inferences of fact from the evidence that the carbon monoxide detectors in the Appellants’ home were fully functional throughout the period in question. That was an admitted fact in the record before him and at paragraph 34 he noted that there was no explanation or evidence as to how a toxic level of CO could be present without triggering the alarms.
14For these reasons I conclude that the Master had jurisdiction to hear the motion before him and did not exceed the powers allowed a Master in deciding a motion of summary judgment.
Burden of Proof
15The Appellants submit that the Master erred in reversing the burden of proof by placing it upon themselves rather than upon the moving party. Consideration of paragraphs 4, 22, 23 and 56 of the Master’s reasons satisfy me that he was alive to the requirement that the onus remain upon the moving party, but that once the moving party has made out a prima facie case that there is a burden akin to an evidentiary burden upon the responding party to set forth specific facts showing that there is a genuine issue for trial. The Appellants object to paragraph 18 of the Masters’ decision but he is in fact merely paraphrasing Rule 20.02(2) of the Rules of Civil Procedure, which provides as follows:
EVIDENCE ON MOTION
20.02(2) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.
16The moving parties’ evidence included the following:
a carbon monoxide detector had been installed in the home by Minto and was working properly at all times;
On February 6, 2003 a Minto inspection revealed that the hot water heater required the exhaust pipe to be installed;
Harding was directed to install it the next day;
Enbridge retained Double G Gas to inspect all gas appliances including the hot water heater on February 10, 2003 and the inspection was passed;
The appellants and Minto did an inspection on February 18, 2003 and no concerns were noted with the hot water heater or its venting;
The City inspected on February 25 and all mechanical systems were passed;
On January 20, 2004 the appellants had an independent inspection of their home done and it did not note any deficiency with the hot water heater or its venting;
In July 2005 Direct Energy attended to install an air-conditioning unit and found that the venting with the water heater had not been properly installed, changed the 2 inch venting to three inch and repaired the deficiency; and
The respondents in the appeal had an engineering report which would be properly tendered at trial that concluded that it was not self evident that an inadequately vented water heater would produce dangerous levels of carbon monoxide and also provided an opinion that the amount of carbon monoxide produced by the water heater could not have resulted in chronic exposure to dangerous levels of carbon monoxide.
17In particular the Plaintiffs had no expert report to counter that of the Defendants. The Appellants submit that the Master ought not to have considered the engineering report because it was not submitted in affidavit form and not open for cross-examination. The Master was well aware of this and took care to confine his use of the report to prove the fact that it existed and would be presented at trial, and to show the issues considered and calculations done. He clearly stated that he need not admit the report as opinion evidence in order to use it for those purposes. He correctly noted the difficulty the Plaintiffs would face at trial without a contrary opinion and that they did not have one.
18On this basis the Master was correct to find that the moving party had made out a sufficient case that there was no genuine issue of fact for trial such that the Plaintiffs were therefore required to demonstrate that they had appropriate evidence to support the elements of their claim at trial. After a hard look at the evidence he concluded that the moving parties had met the onus of showing that there were missing elements of proof.
19Finally, I disagree that the Master ruled that the Appellants’ medical evidence would not be admissible at trial. Despite the fact that it had not been properly tendered in affidavit form he considered it to demonstrate that the Plaintiffs’ health problems could be the result of carbon monoxide exposure and noted where it was deficient in terms of proof of liability or causation. There was no error here.
20For these reasons I conclude that the Master correctly held the moving parties to the burden of proof, he did not reverse the onus as submitted by the Appellants, nor did he make any reviewable errors in terms of admissibility or use of improperly tendered opinion evidence.
Legal Test for Causation
21The Appellants submit that the Master applied a sole cause of injury test and thereby erred. I disagree. He stated that the medical reports tendered were not unequivocal or conclusive in relation to the Plaintiffs’ attempt to use them to show that because they had symptoms consistent with carbon monoxide exposure that therefore the water heater was not vented properly. He correctly described this as circular reasoning that could only succeed if the medical reports ruled out other potential causes of CO poisoning or other potential causes of the symptomology. The Master noted that the medical reports could not demonstrate the first and did not demonstrate the second.
22In his conclusions the Master notes again that the medical reports before him could not possibly be proof of liability or even causation if the underlying assumptions cannot be proven. In so stating he is not applying a legal test of causation rather commenting on the utility of the evidence.
Appeal from Costs Award
23The appeal from the Master’s costs award is dismissed. The appeal record before me did not include the costs outlines or bills of costs that were before the Master and accordingly there was no factual basis upon which I could conduct a review of his award.
Decision
24Based upon the foregoing reasons the appeal is dismissed. Costs of the appeal inclusive of fees, disbursements and HST are awarded on a partial indemnity basis as follows:
To Minto, $8,500
To Harding, $5,000
To Enbridge, $2,500
To Direct Energy, $1,000
J. Mackinnon J.
Released: June 8, 2011
CITATION: Mehdi-Pour v. Minto Developments Inc., 2011 ONSC 3571
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J. Mackinnon J.
BETWEEN:
Mohammad Mehdi-Pour and Marzieh Yazdanyar
- And -
Minto Developments Inc., Direct Energy Essential Home Services, Enbridge Gas Distribution and Harding Mechanical Contractors Inc.
REASONS FOR JUDGMENT
J. Mackinnon J.
Released: June 8, 2011