Court of Appeal for Ontario

Date: March 13, 2018 Docket: C64281

Judges: Feldman, Pardu and Benotto JJ.A.

Between

Natasha O'Brien-Glabb and Tanya Rhonda Bonnie O'Brien-Glabb Plaintiffs (Respondents)

and

National Bank of Canada Defendant (Appellant)

Counsel

John Webster, for the appellant

Joseph Dallal, for the respondents

Heard: March 2, 2018

On appeal from the order of Justice Linda M. Walters of the Superior Court of Justice, dated August 23, 2017.

Decision

By the Court:

Facts

[1] Natasha O'Brien-Glabb (the respondent) worked for the National Bank of Canada (the Bank). In April 2010, she began experiencing severe allergic symptoms while at work, which she suspected might be from mould or dust at her workplace. Her doctor advised that the symptoms could be due to a condition in her workplace and could be caused by mould. The Bank ultimately confirmed the presence of mould and undertook remedial work.

[2] The respondent's symptoms worsened and she began having episodes when not at work. She stopped working at the Bank in August 2011 and has never returned. Despite seeing a number of doctors, the respondent was not diagnosed with anything that connected her condition to mould exposure at the Bank. She continued to believe, however, that the two were connected.

[3] In February 2013, the respondent sought out a specialist, Dr. Patel, who concluded that she had a genetic deficiency that impedes her body's ability to detoxify many toxins. Dr. Patel told the respondent that her symptoms were caused by exposure to mycotoxins released from toxic mould in the Bank building leading to organ damage as a result of that exposure.

[4] The respondent commenced an action against the Bank in July 2013. The Bank brought a motion for summary judgment alleging that the claim was statute-barred because the cause of action arose, and the limitation period began to run in April or June 2010 when the respondent began to experience allergic symptoms. The motion judge dismissed the motion for summary judgment on the basis that the limitation period did not commence until February 2013 when the respondent received the diagnosis from Dr. Patel.

[5] The appellant submits that the motion judge misapprehended the facts, and misapplied the law with respect to s. 5(1)(a)(iv) of the Limitations Act 2002, S.O. 2002, c. 24, Sched. B.

Errors of Fact

[6] The appellant submits that the respondent knew in 2010 that her allergic symptoms were caused by mould and the motion judge erred when she found that, before the respondent saw Dr. Patel, "[n]o doctor she saw suggested that the mould she was exposed to at the bank was the cause of her difficulties…" (at para. 31). The appellant contends that on the respondent's own evidence, she thought her symptoms were caused by mould and that she was being investigated accordingly.

[7] We do not agree. There is evidence that she was being investigated for a variety of illnesses other than an allergy to mould. Her physician Dr. Kundi, on May 7, 2012 said that she was suffering from an "as yet undiagnosed constellation of symptoms".

[8] The appellant further alleges that the motion judge erred in finding the limitation period began to run in February 2013 on the basis that the respondent "suffered two separate and distinct injuries arising from the mould in the bank" (at para. 25).

[9] We also do not accept this submission. It was open to the motion judge on the evidence to make this finding. Until the respondent saw Dr. Patel, she did not know that she had a genetic disorder. According to Dr. Patel, this disorder exacerbated the effects of her exposure to the toxic mould, which included "oxidative stress and damage to various cell membrane of organs and organelle". He also gives the opinion that these exacerbated effects "cause adverse health effects similar to exposures to hazardous substance[s] that adversely affect[] various systems in the body", akin to exposure to toxic chemicals or toxic metals.

[10] There was therefore evidence on which the motion judge could conclude that organ damage is a separate and distinct injury from allergic symptoms and that the respondent did not know of that injury until February 2013.

Misapplication of s. 5(1)(a)(iv)

[11] The Limitations Act, 2002 provides:

5 (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

[12] The appellant submits that the motion judge erred in concluding that it was not "appropriate" for the respondent to start her action in 2010. It alleges that the motion judge reversed the onus of proof by requiring the appellant to establish that an action would have been appropriate when the allergic symptoms first appeared in 2010 and also that she applied a subjective rather than objective standard to the determination of when a proceeding would be an appropriate means to seek to remedy the injury, loss or damage.

[13] We agree with the appellant that it was the respondent who bore the onus of leading evidence to establish on a balance of probabilities that a proceeding was not appropriate in 2010 (see: Miaskowski (Litigation guardian of) v. Persaud, 2015 ONCA 758 at para. 27; Fennell v. Deol, 2016 ONCA 249 at para. 16; and Galota v. Festival Hall Developments Ltd., 2016 ONCA 585 at para. 15). However, the motion judge's reasons, read as a whole, make it clear that she was satisfied the respondent had met this burden. She considered, for example, at para. 32 that "…it would have been foolhardy to commence litigation supported by [the respondent's] own subjective belief and not any medical evidence. This type of litigation would be risky and could expose her to costs if not successful". In essence the motion judge concluded that a reasonable person in the circumstances of the respondent would not have known that a legal proceeding would have been an appropriate remedy for possible exposure to allergens before 2013.

[14] We see no error in the decision of the motion judge. Accordingly, the appeal is dismissed with costs fixed in the agreed upon amount of $10,000.00 inclusive of disbursements and taxes.

"K. Feldman J.A."

"G. Pardu J.A."

"M.L. Benotto J.A."

Released: March 13, 2018