



COURT OF APPEAL
    FOR ONTARIO

CITATION: O'Brien-Glabb v. National Bank of Canada, 2018 ONCA
    242

DATE: 20180313

DOCKET: C64281

Feldman, Pardu and Benotto JJ.A.

BETWEEN

Natasha OBrien-Glabb and Tanya Rhonda Bonnie
    OBrien-Glabb

Plaintiffs (Respondents)

and

National Bank of Canada

Defendant (Appellant)

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.

By
    the Court:

[1]

Natasha OBrien-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 respondents 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 bodys 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
    respondents 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 para16; and
Galota
    v. Festival Hall Developments Ltd.
, 2016 ONCA 585 at para 15).
However, the motion judges 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 respondents] 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


