Court of Appeal for Ontario

Docket: C64799

Judges: Sharpe, van Rensburg and Brown JJ.A.

Parties

Between

Albert Capelet, Luisa Capelet, Chiara Maria Capelet, by her litigation guardian Luisa Capelet and Stefan Antonio Capelet by his litigation guardian Luisa Capelet

Plaintiffs (Appellant)

and

Brookfield Homes (Ontario) Limited

Defendant (Respondent)

Counsel

Jasdeep S. Bal and Daniel Perlin, for the appellant

Gabrielle K. Kramer and Andrew Baker, for the respondent

Hearing and Lower Court Decision

Heard: September 7, 2018

On appeal from: The judgment of Justice Patrick J. Monahan of the Superior Court of Justice, dated December 8, 2017, with reasons reported at 2017 ONSC 7283.

Reasons for Decision

[1] This is an appeal of a summary dismissal of a claim for damages.

[2] The appellant purchased a home designed and constructed by the respondent in 1997. He discovered mould in the home in February 2002, which was caused by water leakage as a result of faulty construction. The mould was promptly remedied by the builder and shortly thereafter, the house was sold with no loss in value. The appellant started an action that was limited to claims for damages for his psychological and emotional injuries, physical illness, and for certain out-of-pocket expenses.[1]

[3] The motion judge dismissed the action. The sole issue on appeal is whether he erred in dismissing the claims for psychological and emotional injuries on the basis that they were too remote, and if so, whether the appellant is entitled to a trial on these claims.

[4] The motion judge assumed for the purpose of the motion that the appellant had suffered considerable mental distress flowing from the discovery of mould at the property (at para. 25) and that his current emotional and psychiatric problems could be attributed in fact in whole or in part to the exposure to and discovery of the mould (at para. 28). The motion judge concluded, however, that the appellant's claims for emotional or psychiatric injury were not a reasonably foreseeable consequence of faulty home construction by the respondent and were therefore not recoverable as a matter of law (at para. 32).

[5] In coming to that conclusion, the motion judge applied the test from the Supreme Court of Canada's decision in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, that in cases where mental injury is claimed, it must be shown that a person of "ordinary fortitude" would suffer some type of mental injury in similar circumstances. The motion judge framed the issue as whether a person of ordinary fortitude would have reacted in the way the appellant did to the discovery of mould. The motion judge concluded that there was no evidence in the record supporting such a finding and considerable evidence supporting the opposite conclusion (at para. 25).

[6] The motion judge referred in his analysis to the agreement of purchase and sale between the appellant and the respondent (the "APS") and the contractual term limiting the purchaser's right to recover for "damage, loss or injury of any sort" to the specific warranty provided under the Ontario New Home Warranty statutory regime. He concluded that it was not within the contemplation of the parties at the time they entered into the APS that the appellant would have a right to claim for emotional or psychiatric losses resulting from defects in construction of the home (at para. 30).

[7] The appellant raises two grounds of appeal.

[8] First, the appellant asserts that the motion judge ignored or rejected evidence that he was a person of ordinary fortitude, which was relevant to the determination of whether such injuries would be reasonably foreseeable. He says that, instead, the motion judge pointed to the absence of evidence from his expert Dr. Waisman on the specific issue, and that he wrongly characterized Dr. Waisman's evidence as "subjective".

[9] Second, the appellant contends that the motion judge erred in concluding that his loss was not a foreseeable consequence of faulty home construction by referring to the limited warranty and exclusion language in the APS. He also relied on Turczinski v. Dupont Heating & Air Conditioning Ltd. (2004), 246 D.L.R. (4th) 95 (Ont. C.A.), leave to appeal refused, [2004] S.C.C.A. No. 581, which was a case involving the new home warranty system and a claim for breach of contract.

[10] We do not give effect to either of these grounds of appeal.

[11] The issue before the motion judge was whether the appellant's damages were reasonably foreseeable or too remote. Since this was a claim for damages for psychological and emotional harm, the question confronting the judge was whether it was reasonably foreseeable that a person of ordinary fortitude would have suffered a serious injury of that type. The appellant had the onus of proof.

[12] The appellant points to evidence of Dr. Waisman in cross-examination that he says the motion judge overlooked. At its highest this evidence confirms Dr. Waisman's view that the appellant was functioning as a reasonably well-adjusted individual before the situation with the mould occurred. There was also evidence from Dr. Waisman, referred to by the motion judge, that there were certain pre-existing tendencies or behaviours that likely contributed to the difficulties the appellant experienced.

[13] The motion judge considered all of the evidence and concluded that the appellant had not met his burden of proof. The issue was not whether the appellant himself was a person of ordinary fortitude, although this was relevant to the court's determination. On the evidence, the motion judge concluded, at para. 25, that the appellant's reaction to the mould was "highly unusual and the product of particular sensitivities on his part". In other words, the motion judge concluded that the reaction of the appellant to the presence of mould was not that of a person of ordinary fortitude. This conclusion was open to him on the evidence, which included the opinions of Dr. Waisman and the respondent's forensic psychiatrist, Dr. Bloom.

[14] As for the appellant's second ground of appeal, again we see no error. In determining whether serious psychiatric or emotional injury would have been foreseeable to the respondent, the court had to consider the circumstances in which the negligence arose. It was relevant to refer to the APS and what the parties would have anticipated at the time the contract was entered into. Although this would have been determinative in a contract claim, there is no indication that the motion judge treated this part of his analysis as determinative of the negligence claim or the issue of remoteness of damages.

[15] The motion judge's decision does not rest on the proposition that all claims for damages for psychiatric and emotional injury from negligent home construction are foreclosed. His conclusion that the appellant's damages were too remote was based on his considered analysis of the specific evidence that was before him on the motion and the conduct of the parties.

[16] The appeal is therefore dismissed. Costs to the respondent are fixed at $15,000, inclusive of taxes and disbursements.

Robert J. Sharpe J.A.

K. van Rensburg J.A.

David Brown J.A.

Footnote

[1] As noted by the motion judge, after the claims of the other plaintiffs in the action were settled the appellant was the sole remaining plaintiff.