



COURT OF APPEAL FOR ONTARIO

CITATION: Capelet v. Brookfield Homes (Ontario) Limited, 2018
    ONCA 742

DATE: 20180911

DOCKET: C64799

Sharpe, van Rensburg and Brown JJ.A.

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)

Jasdeep S. Bal and Daniel Perlin, for the appellant

Gabrielle K. Kramer and Andrew Baker, for the respondent

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 appellants 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 Canadas 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 purchasers 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. Waismans 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 appellants 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. Waismans 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 courts determination. On the evidence, the motion
    judge concluded, at para. 25, that the appellants 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 respondents forensic psychiatrist, Dr. Bloom.

[14]

As for the appellants 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 judges 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 appellants
    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.





[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.


