Capelet v. Brookfield Homes (Ontario) Limited, 2017 ONSC 7283

CITATION: Capelet v. Brookfield Homes (Ontario) Limited, 2017 ONSC 7283

COURT FILE NO.: CV-03-257595-0000

DATE: 20171208

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ALBERT CAPELET

Plaintiff

• and -

BROOKFIELD HOMES (ONTARIO) LIMITED

Defendant

Jasdeep Bal and Daniel Perlin, for the Plaintiff (Responding Party)

Gabrielle Kramer and Andrew Baker, for the Defendant (Moving Party)

HEARD: October 20, 2017

P. J. MONAHAN J.

REASONS FOR JUDGMENT

1The defendant, Brookfield Homes (Ontario) Limited (“Brookfield”) moves for summary judgment under Rule 20 of the Rules of Civil Procedure, seeking the dismissal of the action for damages brought by the plaintiff, Albert Capelet. Mr. Capelet seeks damages of over $6 million¹ for losses he claims to have suffered from mould discovered in a property he purchased from Brookfield in 1997 (the “Property”). The mould was discovered in February of 2002 and was remediated by Brookfield approximately one month later.

2As is described in detail below, the damages claimed by Mr. Capelet are either not foreseeable, are unlikely to have been caused by the construction defects in the Property, or are not supported by credible evidence. In my view, there are no genuine issues requiring a trial and, accordingly, I would grant Brookfield’s motion for summary judgment and dismiss the action with costs.

Background Facts

3Mr. Capelet and his wife Luisa Capelet purchased the Property, which had been newly constructed by Brookfield, in early 1997 for $263,900. The Capelet family moved into the home in October 1997.

4Beginning in 1999, Mr. Capelet noticed signs of water leakage on the Property. He first discovered mould in early 2002 while carrying out other work in the basement of the Property. He retained a mould inspection consultant, Fisher Environmental (“Fisher”), to test the home for airborne mould. Fisher inspected the Property on February 26, 2002 and delivered a report of their findings on March 5, 2002. Fisher concluded that there was mould present at the Property and that remediation was required.

5The issue was brought to the attention of Brookfield who promptly retained Pinchin Environmental Ltd. (“Pinchin”) to test the Property. Pinchin inspected the Property on March 14, 2002 and recommended a number of remediation steps to be carried out. Brookfield hired contractors to carry out the work recommended by Pinchin. Pinchin also attended at the Property while the work was being done to ensure that proper procedures were followed and all of the mould growth was identified and removed.

6On March 22, 2002 Pinchin provided a further report, confirming that all mould growth had been remediated and the Property was fit for habitation. Pinchin noted that the indoor airborne mould concentration was now lower than the outdoor concentration, with the exception of the master bedroom. However Pinchin was of the view that the master bedroom concentration might be further improved following final cleaning, duct cleaning, and/or cleanup work on the shower. Pinchin also wiped down and vacuumed all of the Property contents. Pinchin concluded that there was no longer any indoor mould growth and the house was acceptable for occupancy.

7On September 12, 2002, Pinchin issued a further report concluding that all indoor concentrations of airborne moulds were significantly lower that the concentration in the outdoor reference sample. No further investigation work or remediation was required and the Property was acceptable for regular occupancy. This was followed on October 7, 2002 with a letter from Brookfield indicating that all remediation work had been completed.

8In February 2002, prior to the discovery of the mould, Mr. Capelet had retained an appraisal firm to value the Property. The appraisal report from Lebow, Hicks & Katchen Ltd., dated March 4, 2002, notes that “we were asked to appraise the subject as if it had no construction deficiencies.” Therefore, the appraisal did not make any discount for the value of the home based on water damage, leakage, or mould. The appraised value of the property at that time was $321,000.

9Over the summer of 2002, Mr. Capelet and his wife Luisa decided to sell the property. Mr. Capelet relied on both the Pinchin post-remediation report of September 12, 2002, as well as the October 7, 2002 letter from Brookfield to inform potential purchasers as to the quality of the home. The Property was sold on November 28, 2002 for $347,000, which was $26,000 over the March 4, 2002 appraised value. Mr. Capelet has acknowledged that he did not suffer any loss on the sale of the Property as a result of mould issues.

10Mr. Capelet commenced the present action on October 24, 2003.² Examinations for discovery took place on May 15, 2008 and the action was set down for trial on May 21, 2009. Further examinations for discovery took place in January and August of 2015.

11In 2014 and 2015, Brookfield served expert medical reports from a toxicologist, Dr. David Juurlink (the “Juurlink Report”), and a forensic psychiatrist, Dr. Hy Bloom (the “Bloom Report”), along with an opinion on mould impact to household items from Jill Grant, a professional engineer with Pinchin (the “Grant Report”). These expert reports concluded that Mr. Capelet had suffered no personal injury and no damage to personal property due to the residential mould exposure.

12By late 2016, despite the fact that the litigation had been commenced 13 years previously, Mr. Capelet still had not served medical or other expert reports required to substantiate major components of his claim. Accordingly, in October 2016, Brookfield brought the present motion for summary judgment.

13On January 23, 2017, a chambers appointment was held before Lederer J., who ordered that the Plaintiff had eight weeks to prepare any responding reports, failing which the action would be dismissed. In March of 2017, Mr. Capelet served two reports, one from a physician, Dr. John Molot (the “Molot Report”) and the second from a forensic psychiatrist, Dr. Zohar Waisman (the “Waisman Report”). These reports provide expert opinion on Mr. Capelet’s physical, emotional and psychiatric injuries. The plaintiff did not serve any independent reports or other evidence respecting his claims for property damage, costs to replace personal property, or other financial losses. On June 23, 2017, Lederer J. determined that the matter was appropriate for summary judgment.

The Plaintiff’s Claims

14Mr. Capelet’s claims are as follows:

(i) Emotional and psychological injuries resulting from water leakage and mould contamination to the Property;

(ii) Physical injuries, including shortness of breath and other lung problems, sinus problems, eye and other infections, skin irritation and other health problems resulting from the mould contamination;

(iii) Loss of care, guidance and companionship under s.62 of the Family Law Act, resulting from the emotional and physical injuries suffered due to the mould exposure; and

(iv) Various costs and expenses including living expenses, carrying costs and the costs to move to and renovate another property.

15The plaintiff at one time advanced a claim for the loss of investment in the Property but this claim has since been abandoned.

16Although the plaintiff amended his statement of claim within the past year, he has not pleaded a claim for income loss or punitive damages. He maintains that, since these claims have not been pleaded, Brookfield is not entitled to seek summary judgment on them as “they are not at issue in the litigation”. He suggests that the proper forum to determine whether the plaintiff is entitled to proceed with a claim for income loss or punitive damages is a motion to amend the statement of claim. The plaintiff has not brought any such motion, but argues that Brookfield cannot raise these issues and have them dealt with on this motion for summary judgment.

Motion for Summary Judgment

17As the Supreme Court of Canada concluded in Hryniak v. Mauldin (“Hryniak”), recent changes to Rule 20 of the Rules of Civil Procedure were intended to effect a culture shift in the approach to summary judgment in Ontario.³ Prior to Hryniak, there was a tendency to assume that summary judgment was an exception to the expected or ideal method of adjudication, namely, a full trial. But as Karakatsanis J. noted in Hryniak, an adjudicative process is illusory unless it is accessible. Few Canadians can afford the time and cost associated with bringing a civil proceeding to trial. Thus, a continued expectation that civil disputes will normally be resolved through a trial will mean that the civil justice system will be rendered ever more remote and inaccessible to ordinary Canadians.

18The fundamental teaching of Hryniak is that access to justice is a judicial imperative which must shape and inform how courts interpret all manner of procedural rules. In the context of summary judgment, this means that summary procedures must be interpreted broadly, so as to reduce the cost and time involved in civil litigation. Nor should it be assumed that an expansive approach to summary judgment will compromise the integrity of the fact finding process. To the contrary, parties on a summary judgment motion can file documentary and affidavit evidence and are provided an opportunity for cross-examination. A motions judge will commonly be well equipped to make the findings of fact and law necessary to resolve the relevant issues in a fair, just and appropriate manner, thereby sparing the parties as well as the justice system the time and expense that would have been required by a full trial.

19Both parties are expected to “put their best foot forward” and counsel are therefore expected to adduce their best and most complete evidence as if the proceeding were a trial. As noted in Sweda Farms v. Egg Farmers of Ontario,⁴ the court will assume that the parties have put all the evidence that they can muster for the motion before the court, and assume that the parties have no further evidence for trial.

20In the present case, there have been numerous affidavits and expert reports prepared by both parties, and extensive cross-examinations on the materials filed, conducted over many years. The litigation has been ongoing for over 14 years and thus the plaintiff has had more than ample opportunity to muster all the available evidence in support of his claims.

21In my view, I am able to fairly determine the issues raised on this motion based on the evidentiary record that has been filed. In accordance with the Lederer J.’s June 2017 order, this action in entirely appropriate for resolution through the application of Rule 20, and I will proceed on that basis.

Claim for Emotional and Psychological Harm

22Claims for psychiatric or mental injury must be reasonably foreseeable in order to be compensable through the law of negligence. In cases where mental injury is claimed, it must be shown that the injury in question is one that a person of “ordinary fortitude” would suffer in the relevant circumstances. Thus in Mustapha v. Culligan of Canada Ltd.,⁵ (“Mustapha”), a plaintiff who suffered psychiatric injuries from observing dead flies in a bottle of drinking water could not recover for the injuries because they would not have occurred in a personal of ordinary fortitude. As Chief Justice MacLachlin noted for a unanimous Court, this rule is not intended to marginalize or penalize those particularly vulnerable to mental injury. It merely reflects the fact that tort law does not function as insurance for mental injury claims. The law of negligence “seeks to impose a result that is fair to both plaintiffs and defendants, and that is socially useful.”⁶ It is for this reason that mental injury or distress must be reasonably foreseeable before it becomes compensable through the law of negligence.

23Similar reasoning, with the same result, was applied in relation to a claim for contractual damages in Turczinski Estate v. Dupont Heating & Air Conditioning Ltd.⁷ (“Turczinski”). Here, the defendant heating contractor was hired to replace the heating system in the plaintiff’s home. Unfortunately the plaintiff suffered from bipolar disorder and obsessive-compulsive personality disorder. Problems arose in the early stages of the contract and after three days the plaintiff would no longer allow the defendant contractor back onto the premises to complete the work. The plaintiff was unable to cope mentally with the consequences of the breakdown of the contract, and was awarded $35,000 for mental distress at trial. However the Court of Appeal overturned this award, noting that in a contract for home improvements “realistically one expects some disruptions during renovations, and not a stress-free time.”⁸ Damages for mental distress was not within the reasonable contemplation of the parties and the award at trial was therefore made in error.⁹

24In this case, there is evidence supporting the conclusion that Mr. Capelet has suffered considerable mental distress flowing from the discovery of mould in the Property. The Waisman Report submitted by the plaintiff concluded that the mould incident, combined with Mr. Capelet’s inability to successfully address and rectify the problem, has created an “emotional and spiritual crisis for Mr. Capelet.”¹⁰ Dr. Waisman concluded that the mould incident was the primary cause of a “litany of emotional distress, including frustration, discouragement, depression, anxiety and an ever-evolving sense of helplessness and hopelessness in his advocacy to remedy the situation for his family.”¹¹ In fact, there is evidence on the record indicating that a July 2014 disagreement between Mr. and Mrs. Capelet over whether to settle the litigation led to Mr. Capelet being arrested, and the couple’s subsequent separation. In Dr. Waisman’s opinion, as a result of the mould incident, Mr. Capelet developed an “Adjustment Disorder with Mixed Anxiety and Depressed Mood” with symptoms that include low mood, feelings of sadness, worry, anxiety, insomnia and poor concentration.¹² This Adjustment Disorder has negatively affected all aspects of Mr. Capelet’s life, producing interpersonal and legal conflicts with family, employers, colleagues, students and friends.¹³

25Assuming these findings to be true, the issue is whether this kind of reaction could be said to be a reasonably foreseeable consequence of the discovery of mould in one’s home. Would a person of “ordinary fortitude” have reacted in the way the Mr. Capelet did to the discovery of mould? There is no evidence in the record before me supporting such a finding. In fact, there is considerable evidence supporting the opposite conclusion, namely, that Mr. Capelet’s reaction to the mould was highly unusual and the product of particular sensitivities on his part.

26I would note, first, that the plaintiff’s expert, Dr. Waisman, was not asked to consider whether a person of “ordinary fortitude” would have reacted to the discovery of mould in the manner evidenced by Mr. Capelet. As was the case of the expert report in Mustapha, the Waisman Report proceeds entirely on the basis of a subjective rather than an objective standard. But Dr. Waisman does note that there were certain pre-existing tendencies or behaviours which likely contributed to the difficulties Mr. Capelet has subsequently experienced. In particular, Dr. Waisman notes that, based on a review of Mr. Capelet’s medical records, he had symptoms of “obsessive compulsive traits dating back to 1998.” Dr. Waisman was further of the view that Mr. Capelet has become entrenched in a “cumulative and complex interaction of longstanding traits and behaviours, fuelled by his ongoing preoccupation with this litigation and the negative and worrisome effects it has had on his self-worth and self-esteem.”¹⁴

27The Bloom Report from the defendant’s psychiatric expert noted that Mr. Capelet is the product of a “markedly difficult childhood and adverse experience within his family of origin.”¹⁵ Dr. Bloom reports that Mr. Capelet experienced both physical and psychological abuse, total abandonment by his mother, and a measure of abandonment by his father…”; his adult history is consistent with “marked obsessive-compulsive traits, and at times, obsessive-compulsive symptoms, for example concerns around cleanliness and contamination.” Dr. Bloom concludes that “the problem with the mould in his house and ensuing litigation has, for him, snowballed into something that other people wouldn’t have seen as so large and immovable as Mr. Capelet has come to experience it.” Dr. Bloom further speculates that the events in question, including the litigation, have become a “cause celebre for Mr. Capelet because they have provided a tangible target onto which he has (unconsciously) displaced an accumulation of insufficiently addressed grievances and psychological injustices originating in his past.”

28On the evidence before me, it is not entirely clear whether Mr. Capelet’s current emotional and psychiatric problems are a result of his pre-existing conditions, as opposed to his exposure to the mould. I am prepared to assume, for purposes of this motion, that his current emotional and psychiatric difficulties can be attributed, in whole or in part, to exposure to the mould. Nevertheless I am of the view that this loss is not compensable through the law of negligence for the simple reason that it is not a reasonably foreseeable consequence of faulty home construction.

29Ontario has long regulated the rights and responsibilities of purchasers and builders of new homes in Ontario.¹⁶ This includes warranties regarding the proper construction of the home, a process for conciliation of disputes, and a guarantee fund to provide compensation to purchasers who have suffered losses from breach of warranty. This scheme does not provide compensation for emotional or psychiatric injuries suffered by purchasers resulting from defects in their new homes.

30The February 1997 agreement of purchase and sale between Mr. Capelet and Brookfield incorporated the warranty provided at that time under the Ontario New Home Warranty, and provided that this warranty constituted the full extent of the purchaser’s right to recover for “damage, loss or injury of any sort.”¹⁷ Accordingly, it was not within the contemplation of the parties at the time of the entering into of the APS that Mr. Capelet would have a right to claim for emotional or psychiatric losses resulting from defects in construction of the Property.

31As the Supreme Court of Canada noted in Mustapha, the law of negligence seeks to achieve a result that is fair to both plaintiffs and defendants and that is “socially useful”. If purchasers of new homes could recover for emotional or psychiatric damages suffered from defects in house construction, these costs would necessarily have to be factored into the price of new homes and paid for by purchasers. I see no authority or mandate for this Court to assume this cost-shifting role.

32In my view, therefore, Mr. Capelet’s claims for emotional or psychiatric injury are not a reasonably foreseeable consequence of faulty home construction by Brookfield, and are not recoverable as a matter of law. There is no genuine issue requiring a trial with respect to this head of damage.

Claim for Physical Harm

33Mr. Capelet claims for various physical injuries which he alleges were caused by exposure to the mould, including shortness of breath and other lung problems, sinus problems, eye and other infections, and skin irritation. The clinical notes and records of Mr. Capelet’s family physician, Dr. Kristen Terenzi, for the period 1998 to 2002 were filed on this motion, along with two expert reports, the Juurlink Report from the defendant dated June 26, 2014 and July 8, 2014, and the Molot Report from the plaintiff dated March 16, 2017.

34No affidavit was filed by Dr. Terenzi. However her clinical notes and records indicate that Mr. Capelet complained of sinus problems, coughing and trouble breathing dating back to June 29, 1998, well before discovery of mould on the Property.

35The Juurlink Report considers whether the various physical symptoms reported by the Capelet family are likely to have been caused by exposure to residential mould. Dr. Juurlink concludes that it is “extremely unlikely that the many symptoms reported the Capelet family are the result of residential mould exposure.” Amongst the reasons cited in support of this conclusion are the following:

(i) In order to establish causation, the cause must precede the effect. Here, many of the symptoms preceded the alleged cause, namely, exposure to mould;

(ii) The symptoms did not diminish once the alleged cause – mould exposure – was remediated;

(iii) Many of the symptoms reported by the Capelets have no known association with exposure to mould. It is simply inconceivable that the majority of symptoms experienced by the Capelet family are the result of exposure to mould; and

(iv) There are alternate potential explanations for the symptoms experienced by the Capelets, including financial difficulties, marital stress, and pre-existing medical conditions such as Obsessive Compulsive Disorder.

36Based on this reasoning, Dr. Juurlink concludes that he does not believe that the symptoms reported by the Capelet family reflect exposure to residential mould.

37The plaintiff’s medical expert, Dr. Molot, was asked to diagnose Mr. Capelet’s injuries and offer a prognosis. He was further asked to offer his opinion on the extent to which the mould in the Property caused or contributed to any injuries suffered by Mr. Capelet. In preparing his report, Dr. Molot was provided with the Juurlink Report filed by the defendant.

38Dr. Molot diagnosed Mr. Capelet as suffering from the following conditions:

(i) adjustment disorder;

(ii) chronic fatigue syndrome;

(iii) fibromyalgia;

(iv) chronic rhinosinusitis; and

(v) irritable bowel syndrome.

39In his discussion of these symptoms, Dr. Molot indicated that he could not comment on the cause of the adjustment disorder, since this was beyond his area of expertise. He also acknowledged that chronic fatigue syndrome and fibromyalgia are often associated with psychiatric illness, and there is a low level of evidence associating the onset of chronic fatigue with mould exposure. However, he noted that the epidemiologic literature has found an association between exposure to dampness and mould and respiratory complaints such as asthma, shortness of breath, and respiratory infections. While such symptoms often improve after exposure to mould ceases, there are academic studies that have found that a significant number of exposed inhabitants remain symptomatic for long periods, with respiratory symptoms persisting for years after successful remediation.

40Dr. Molot also commented on the Juurlink Report. In response to Dr. Juurlink’s observations that the majority of the symptoms reported by the Capelets have no known association with exposure to mould, Dr. Molot indicated that the medical literature is clear that exposure to mould “can be associated with changes in health”, including in particular upper and lower respiratory complaints.” He also acknowledged that, “while it is expected that symptoms provoked by the exposures in water damage will improve after remediation or removal, sometimes these symptoms can persist for years.”

41When asked to offer an opinion on whether the mould in the Property caused or contributed to any injuries suffered by Mr. Capelet, Dr. Molot’s conclusion consisted of the following short paragraph:

As discussed above, the medical literature demonstrates a strong association with water damage and mould growth in homes and the development of upper and lower respiratory symptoms. The literature is weaker with respect to an association with ME/CFS.

42Significantly, this does not amount to a conclusion that the exposure to mould caused, or likely caused, the physical injuries identified by Mr. Capelet. Dr. Molot merely states that the medical literature has found, as a general proposition, that there is a “strong association” between mould exposure and certain health problems. But Dr. Molot stops short of expressing an opinion that Mr. Capelet’s physical symptoms were caused by the mould. He also recognizes that the medical literature has found the association between mould exposure and a number of the health problems experienced by the Capelets to be weak. He further conceded that one would have expected the symptoms experienced by the Capelets to have diminished following remediation of the mould, but that “sometimes these symptoms can persist for years.” Nor does Dr. Molot consider how, if at all, the pre-existing sinus and respiratory problems experienced by Mr. Capelet might affect a causation analysis. At its highest, therefore, the Molot Report amounts to a finding that it is possible that the mould caused some of the physical symptoms experienced by the Capelets.

43As indicated above, the plaintiff on a summary judgment motion is expected to put his or her best foot forward and adduce the best and most complete evidence as if the proceeding were a trial. Here the plaintiff has failed to provide any expert or other evidence indicating that it is more likely than not that the exposure to mould caused the physical injuries that are the subject of the claim. Moreover the Juurlink Report, provided by the defendant, concludes that it is “extremely unlikely” (although not impossible) that the mould exposure caused the plaintiff’s injuries; in my view, nothing in the Molot Report directly contradicts or answers the Juurlink analysis and conclusion.

44Thus the record before me fails to provide a basis for concluding that it is more likely than not that the plaintiff’s physical injuries were caused by exposure to mould. Given that I am assuming that the plaintiff will have no further evidence to tender at trial, in my view there is no genuine issue requiring a trial on the claim for physical injuries.

Family Law Act Claims

45The Family Law Act claims flow from and are based on the plaintiff’s emotional and physical injuries. Since I have already concluded there is no genuine issue requiring a trial on the claims for emotional or physical injury, the same result necessarily follows with respect to the Family Law Act claims.

Expenses and Financial Losses

46The plaintiff claims for various expenses and financial losses that are said to flow from the mould contamination. These costs are not specified or detailed in the statement of claim but, from the record before me, appear to include some or all of the following:

(i) the cost of replacing furniture and personal property allegedly contaminated by mould;

(ii) the cost of securing alternative accommodation following discovery of the mould; and

(iii) the cost of renovating the new home that was purchased following the sale of the Property.

47The plaintiff claims that the defendant’s notice of motion did not specifically indicate that the defendant was seeking summary judgment on these issues. It is argued that consideration of these claims would be inappropriate and beyond the scope of the present summary judgment motion. In effect, the plaintiff invites me to treat this as a motion for partial summary judgment and argues that, even if the defendant is successful, the various claims for financial losses outlined above should be permitted to continue to trial.

48In my view there is no merit to the plaintiff’s position. The notion of motion indicated that the defendant was seeking summary judgment on, inter alia, the plaintiff’s claims for “financial losses arising from the move to 19 April Gardens”. The defendant also included in its motion materials the Grant Report, dealing specifically with the claims for losses to personal property arising from the mould contamination. The January 23, 2017 endorsement from Lederer J. gave the defendant eight weeks to prepare any reports or other responding materials, failing which the action would be dismissed. Given that the action has been ongoing for 14 years and was originally set down for trial over 7 years ago, the plaintiff can hardly argue that he has had insufficient time to prepare, or that it would be unfair to consider the entirely of the plaintiff’s claim on this motion. In my view, it was incumbent on the plaintiff, following Lederer J.’s endorsement and pursuant to his obligation to put his best foot forward, to present relevant evidence and argument in support of his various claims, or run the risk of having the action dismissed.

49I also note that the Court of Appeal has held on a number of occasions that partial summary judgment should be regarded as a rare procedure available in a limited number of instances. For example, in Butera v. Chown, Cairns LLP,¹⁸ Pepall J.A. commented that the widespread use of partial summary judgment would be inconsistent with the philosophy underlying Hryniak, since partial summary judgment runs the risk of increasing costs and extending delays, thereby decreasing rather than increasing access to the justice system. In my view, this is another consideration in favour of dealing with the entirety of the plaintiff’s claim on this motion.

50The record before me indicates that, except for an approximately one week period in March 2002 while the mould remediation was being undertaken, the Property remained fit for human habitation. Thus, there was no need for the plaintiff to vacate the Property, much less to sell it. Moreover the Grant Report indicates that there was no need to replace personal property in the home, as the items in question had been cleaned and did not require any further remediation. As for the renovation and other costs associated with a move to another property, the decision of whether or where to relocate and what renovations, if any, should be undertaken to the new property were personal decisions of the plaintiff. I see no legal basis upon which Brookfield could be held accountable or responsible for such voluntary decisions and choices.

51The plaintiff chose not to tender any evidence in support of its claims for financial losses. The only evidence on the record is that outlined above. Accordingly, I find that there is no genuine issue for trial with respect to the plaintiff’s claim for financial losses.

Unpleaded Claims

52The above analysis is sufficient to dispose of all the claims pleaded in the statement of claim. However, the plaintiff argues that he intends to amend the statement of claim and advance claims for additional heads of damage, including income loss and punitive damages. He argues that since these additional claims have not yet been pleaded, they cannot be considered or dealt with on this motion for summary judgment.

53In my view, the plaintiff’s approach on this issue is inconsistent with the underlying philosophy and approach set out in Hryniak. Summary judgment is intended to expedite rather than delay matters. The plaintiff has provided no explanation as to why, 14 years after commencing the action, he has not yet pleaded all aspects of his claim. In fact, the plaintiff on examination for discovery acknowledged that he had not suffered any income loss, and I see no basis whatsoever for a claim for punitive damages. In short, the prospect of additional, as yet unpleaded claims is little more than a delay tactic to keep the litigation on life support, resulting in further cost and delay to the parties and the justice system.

54I have found that there is no genuine issue requiring a trial on the claims pleaded by the plaintiff. The defendant is accordingly entitled to summary judgment, and the plaintiff cannot resist this outcome by relying on unpleaded claims with little apparent merit.

Conclusion

55For the reasons set out above, there is no genuine issue requiring a trial on any of the claims advanced by the plaintiff. Brookfield is entitled to summary judgment dismissing the action with costs on a partial indemnity basis.

56I have reviewed the costs outlines filed by the parties and considered the factors enumerated under Rule 57, including the result achieved and the time spent. I have also considered the principle set forth by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario, to the effect that the overall objective in fixing costs is to determine an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances.¹⁹ I note that preparation for this motion involved a considerable amount of time and effort. There were complex factual and legal issues raised, a lengthy record spanning 14 years, and numerous expert reports. Taking these various factors into account, in my view an appropriate award of costs on a partial indemnity basis, is $45,000 inclusive of H.S.T. and disbursements.

P.J. Monahan

J.

Footnotes

1. 1Mr. Capelet recently amended his statement of claim to increase the claim for general damages from $500,000 to $6 million. He also claims special damages in an unspecified amount.
2. 2Luisa Capelet, along with Mr. and Mrs. Capelet’s minor children, were originally plaintiffs in the action. However the claims of the other plaintiffs have been settled and Mr. Capelet is the sole remaining plaintiff.
3. 3Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87.
4. 4Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at paras. 33-34, aff’d 2014 ONCA 878, leave to appeal to SCC refused, [2015] S.C.C.A. No. 97.
5. 52008 SCC 27, [2008] 2 S.C.R. 114.
6. 6Mustapha at para. 16.
7. 7[2204] O.J. No. 5410 (C.A.)
8. 8Turczinski at para. 29.
9. 9Turczinski at para 45. See, to the same effect, P. (C.) v. RBC Life Insurance Co., 2015 BCCA 30.
10. 10Waisman Report at p.11.
11. 11Ibid.
12. 12Ibid.
13. 13Waisman Report at p.13.
14. 14Waisman Report at p.14.
15. 15Bloom Report p. 29.
16. 16See, for example, the Ontario New Home Warranties Plan Act, R.S.O. 1990, c.0-31.
17. 17Agreement of Purchase and Sale dated February 4, 1997 (the “APS”), s. 20.
18. 182017 ONCA 783. See also Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922.
19. 19Boucher v. Public Accountants Council for the Province of Ontario, (2004) 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291, (C.A.).