ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 08-CV-41500/08-CV-41500A1
DATE: 2014/04/15
BETWEEN:
MARTINE PATRIARCKI
Plaintiff
– and –
CARLETON CONDOMINIUM CORPORATION NO. 621 and COMBUSCO ENTERPRISES LTD. c.o.b. as IDEAL COMBUSTION
Defendants
– and –
SHIELDS MECHANICAL INC.
Third Party
Martine Patriarcki, Self-Represented
John Summers, for the Defendant, Carleton Condominium Corporation No. 621 and Combusco Enterprises LTD. c.o.b. as Ideal Combustion
Louise Morel, for the Defendant Ideal Combustion
Kirk Boyd, for the Third Party Shields Mechanical Inc.?
HEARD: February 26, 27 and 28, 2014
REASONS FOR JUDGMENT
Maranger J.
[1] This was a motion brought by the Defendants, Carleton Condominium Corporation no. 621 (the Condominium Corporation) and Combusco Enterprises Limited c.o.b. as Ideal Combustion (Ideal Combustion), for a summary judgment dismissing the Plaintiff Martine Patriarcki’s claim on the basis that there is no genuine issue requiring a trial pursuant to rule 20.01 (3) of the Rules of Civil Procedure.
[2] Ms. Patriarcki’s lawsuit arises out of circumstances surrounding an alleged gas leak and subsequent repairs and replacement of a boiler in her condominium unit in and around the summer and fall of 2006. She also alleges that there was negligence in the installation of a carpet in and around January 2008. The named defendants in her lawsuit are the Carleton Condominium Corporation number 621, and Ideal Combustion.
The nature of the claim:
[3] The Plaintiff statement of claim at paras. 6 to 9 alleges the following:
The Plaintiff owned a Voyager gas boiler (furnace) in her unit which became defective in May 2006. The motor was replaced. Subsequently two gas leaks were found and repaired by October 2006 but it became red tagged on October 31, 2006. The defendant, Condominium Corporation’s contractor (Shields mechanical) took five months to locate the leaks of combustion gases. The Plaintiff then made a complaint to the TSSA (Technical Standard Safety Authority). During that time, the Plaintiff experienced numerous health symptoms. The Plaintiff had made arrangements with the manufacturer in the United States and the Defendant, Ideal Combustion, to have her boiler replaced under its warranty but the Defendant Condominium Corporation arbitrarily opposed it, as it had a different plan.
On or about November 3, 2006, the Defendant Condominium Corporation made a decision to replace all the boilers in the condominiums including the Plaintiff’s unit at the Condominium’s expense. The Plaintiff disputed this decision and was told that it was a Board’s decision, and that it was final. At that time, the Plaintiff was not aware that it is an illegal decision on the part of the Defendant Condominium Corporation as it was contrary to the Condominium’s Declaration and Bylaws. The replacement would then be at the Plaintiff’s expense. The Defendant condominium Corporation hired the Defendant, Ideal Combustion, to install the new Trinity gas boiler in the Plaintiff’s unit. The Plaintiff was never consulted, nor informed about the new boiler. This decision invalidated the Plaintiff’s claim for a warranty replacement.
The Defendant, Ideal Combustion, improperly and negligently installed the boiler in the Plaintiffs unit. Due to complaints from the Plaintiff, the Defendant, Ideal Combustion, was back in the unit on November 22, 2006, and detected with an advanced instrument, leaks of carbon monoxide fumes. Toxic fumes escaped to the extent that all of the windows had to be left open for ventilation in cold winter. Moreover, the top of the gas boiler was venting harmful fumes into the unit, which seriously aggravated the Plaintiff’s health to the point that she passed out in her bathroom. The Plaintiff complained to both Defendants, and her complaints were ignored or she was told by the Defendant, Ideal Combustion, that by pouring water into the drain weekly, it would take care of the carbon monoxide fumes. The Plaintiff urged both Defendants to remove the problematic gas boiler from her own. Both Defendants refused, claiming that it was “certified as safe”. The Plaintiff again complained to the TSSA and the Defendant, Ideal Combustion, misled the TSSA inspector about the carbon monoxide reading. According to the Defendants, the TSSA inspector stated the unit was safe. Medical letters regarding the Plaintiff’s severe conditions were submitted, but were ignored by the Defendant Condominium Corporation. The Plaintiff had no hot water and heat from the gas boiler, and by April 2007, the Plaintiff removed the gas boiler. The Plaintiff had to convert to electricity. As a result of having in her home such a faulty gas boiler, the Plaintiff became very sick.
Over the following three winter months, the Plaintiff had to resort to boil her water, and had minimum heat from portables. All the Plaintiff’s efforts, (with the assistance of a competent and ethical contractor recommended by the manufacturer/distributor), to resolve this saga amicably, peacefully and promptly were ignored by the Defendant Condominium Corporation.
The Defendant Condominium Corporation continued to damage the Plaintiff’s health by installing a new synthetic, chemically treated, stain resilient, commercial carpet on her floor against the Plaintiff’s protest. New commercial carpets normally produce off-gassing for over one year, sometimes up to two years. The Plaintiff, with the empathy of her neighbours on the third-floor, requested that this project be postponed after her anticipated move in 2008. It was denied by the Defendant Condominium Corporation. The Plaintiff fell ill.
- As a result of the negligence of the Defendant, Ideal Combustion, and the decisions of the Defendant Condominium Corporation described above, the Plaintiff was exposed to harmful fumes, as well as irritants in her home to the extent that she has suffered the following injuries including, but not limited to:
A) Unmanageable and uncontrolled asthma, a disease of the airways of the lungs;
B) Multiple Chemical Sensitivities, an illness of the central nervous system (recognized as an invisible disability);
C) Chronic fatigue syndrome;
D) Changes in cognition; and
E) Inflammatory response in the respiratory system, damaged lungs, and excessive heightened sense of smell.
[4] The claim then listed various heads of pecuniary and non-pecuniary damages that were said to have resulted from the alleged injuries.
Findings of fact:
[5] After considering the affidavit evidence presented at this motion, the transcripts from the examinations of the parties, the documentary evidence filed, and the representations made by the parties, I make the following findings of fact and come to the following conclusions:
a) The Plaintiff is the owner of a condominium located at 301-211 2nd Ave. in the city of Ottawa, Ontario.
b) Shields Mechanical Inc. was the contractor originally engaged by the Condominium Corporation for the purposes of maintaining boilers located within each unit.
c) From May to October 2006, the Plaintiff complained of gas smell in her unit. Shields Mechanical attended and located a leak in the gasket of the boiler and performed repairs to the unit.
d) On October 13, 2006 at the request of the Plaintiff, Ideal Combustion attended at her residence to investigate complaints of a strange smell. The technician for Ideal Combustion noted a small gas leak at the gas valve due to a loose adjustment and tightened the valve. The technician tested for carbon monoxide and none was detected.
e) The same technician returned on October 31, 2006 and replaced certain parts and performed some repairs to the existing unit. The technician found leakage at the outer edge of the burner mounting flange of the heat exchanger. Because of this finding he, “red tagged” the unit, and advised the Condominium Corporation, the gas distributor and the TSSA (Technical Standard Safety Authority) of the fact that he had “condemned” the unit.
f) The Condominium Corporation decided to replace the existing boilers in each of the units. On November 1, 2006 Ideal Combustion was contracted by the condominium to replace the Plaintiff’s Voyager boiler with a Trinity boiler. This was completed on November 3, 2006. The installation technician certified that the unit was tested and that there were no deficiencies noted.
g) At the behest of the Plaintiff, a TSSA inspector attended her residence, in a report prepared shortly thereafter inspector Wayne Pilon commented on the work performed on the old boiler as well as on the installation of the new boiler:
• “Service complaint regarding repairs to appliance. Client is still getting odors from the appliance. Testing revealed gas odors escaping this residence on start-up and aldehydes or other products of combustion being exhausted into the residence while appliance is operating. No carbon monoxide was noted… The technician was not thorough in his evaluation of the appliance on repeat calls and the clients complaint of fumes. The biggest problem is the fact that her complaints were not dealt with in a very professional and timely manner…
• The report does not indicate the precise cause of the problem. It does speak describe a conflict between the Plaintiff and the original technician “there seems to be a problem with the client and the original technician performing the service. The technician will not return to this unit alone. The client does not want him back. She has tried very hard to have these people put out of business and to have me take away the certificate of the technician. There is no reason to have the certificate revoked. The technician is knowledgeable and normally diligent in his work ethics. The conflict is with this client only.”
• Later in the same report he states “the original boiler is now out of the picture. Owner is now complaining of fumes from the second boiler that appear to be off gassing of the glues used to install the insulation. A complete air quality analysis is required to pinpoint the irritant from this new boiler. This is the responsibility of the owner. The original contractor is not required to return for any reason, the orders are to prevent future incidents.
h) The TSSA report for the most part describes difficulties the Plaintiff had with technicians from Shields Mechanical and Ideal Combustion, it does not provide evidence of the air quality in the unit.
i) At the hearing of the motion the Plaintiff indicated that she also relied on several medical reports to support her claim. The primary report was from Dr. Jennifer Armstrong authored in April 2012, about six years after the alleged events. Dr. Armstrong diagnosed the plaintiff with “chemical-triggered respiratory condition called reactive airways dysfunction syndrome (RADS)”. The report concluded that the health problems were caused by an inhalation injury resulting from gas leaks or other combustion products being released from the boilers in her condominium unit.
j) The Plaintiff also relied upon reports from Dr. Finestone, Dr. Molot and Dr. Amjadi. The reports highlight her symptomology and two of them opine about the causal connection between the condominium unit boilers and the Plaintiff’s health problems.
k) There were also articles from journals and other material to support the proposition of that chemical sensitivity syndrome does in fact exist.
l) The medical reports were not in affidavit form and as a consequence could not be challenged through cross-examination. The Defendants properly objected to the admissibility of the reports at this motion. I can say that had the reports impacted on the outcome, at a minimum, I would have adjourned the matter so the self-represented Plaintiff could remedy the defect and allow for cross-examination by the Defendants.
m) In any event, the reports in question do not constitute evidence of a causal connection between the installation and maintenance of the two boilers in the condominium unit and the Plaintiff’s health difficulties. In each case the conclusions are either based entirely on self-reports from the Plaintiff or on a specific interpretation of the TSSA report. This is especially so in Dr. Armstrong’s report.
n) The Plaintiff’s subjective beliefs about the cause of her health problems are not evidence that the Defendants are in any way liable.
o) The Plaintiff did not obtain an air quality analysis of the air in her condominium in and around the time of her alleged injury.
p) The Plaintiff did not present any expert evidence to attempt to link the installation and maintenance of either of the two boilers to the alleged poor quality of the air in her condominium unit and her injuries. A report from an engineer for instance coupled with an air quality analysis would be the expected type of evidence to support such a claim.
Summary judgment motions:
[8] Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 stipulates that a defendant may, after delivering his or her statement of defence, move with appropriate affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim. The court is mandated to grant summary judgment if it is satisfied that there is no genuine issue requiring a trial respecting a claim or defence.
Rule 20.04 (2.1) provides that:
In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
- Weighing the evidence.
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.
[6] The Supreme Court of Canada in the case of Hryniak v. Mauldin, 2014 SCC 7, 366 D.L.R. (4th) 641. provided the latest guidance to trial courts respecting the determination of rule 20 summary judgment motions. At paras. 49-51, Justice Karakatsanis indicated the following:
[49] There will be no genuine issue requiring a trial and the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[50] These principles are interconnected and all speak to whether summary judgment will provide fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost-effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve the dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.
[51] Often, concerns about credibility or clarification of the evidence can be addressed by calling oral evidence on the motion itself. However, there may be cases where, given the nature of the issues and the evidence required, the judge cannot make the necessary findings of fact, or apply the legal principles to reach a just and fair determination.
[7] In Mehdi-Pour v. Minto Developments Inc. 2010 ONSC 5414 Master Macleod was confronted with a very similar case. The Plaintiffs Mehdi- Pour were claiming damages caused by carbon monoxide exposure, without providing proof of liability or causation. They alleged that it had to do with poor ventilation in the house built by the defendants without offering evidence of a causal connection, instead they simply attempted to rely on medical evidence of their health difficulties and relate these to a problem with the ventilation in their home. The evidence before him as in this case was not properly before the court. At paragraphs 35 and 39 indicated the following:
35 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 reach toxic levels because the water heater was not vented properly. The damage in other words 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.
39 The most significant problem with the plaintiffs expert reports however is that they are not admissible on the motion as expert evidence. Expert evidence can be considered on a motion and is subject to all of the usual requirements. For example the expert must be qualified to give the opinion, the opinion must be necessary to the determination of the point at hand and the expert must be sufficiently neutral that the evidence is trustworthy. The court has repeatedly held that appending an expert report the affidavit of a non-expert is not the proper manner to put expert opinion into evidence.
Analysis in this case
[8] This is a case where the plaintiff has failed to present any evidence that could prove that her health problems are connected to anything that the defendants did or did not do. The facts behind the claim occurred almost 8 years ago, the evidence before me will not improve or materially change with the running of a trial.
[9] Based on the evidence or lack of evidence presented at this motion, I can confidently state that the plaintiff is incapable of proving her claim against the two defendants. The evidence by any objective examination fails to support the necessary proposition that the Plaintiff’s physical injuries have been linked to the air quality or the maintenance and installation of boilers contained in her condominium unit. This missing link is fatal to her lawsuit. Therefore the summary judgment motion is granted and the Plaintiff’s claim is dismissed.
Costs
[10] I will accept one page of written argument on the issue of costs from each of the party defendants within 15 days of this release of this decision. Counsel representing the defendants should be alerted to the fact that the court is sympathetic to the various health difficulties suffered by the plaintiff.
Maranger J.
Released: April 15, 2014
COURT FILE NO.: 08-CV-41500/08-CV-41500A1
DATE: 2014/04/15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MARTINE PATRIARCKI
Plaintiff
– and –
CARLETON CONDOMINIUM CORPORATION NO. 621 and COMBUSCO ENTERPRISES LTD. c.o.b. as IDEAL COMBUSTION
Defendants
– and –
SHIELDS MECHANICAL INC.
Third Party
REASONS FOR JUDGMENT
Maranger J.
Released: April 15, 2014