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

The Appellant purchased a home from the Respondent.  Due to a faulty design, the home leaked, and mould formed. The Appellant sued the Respondent for psychological and emotional injuries.  Following a motion for summary judgment, the Appellant’s action was dismissed.  

Date Heard: September 7, 2018 | Full Decision [PDF]

The motion judge held that the Appellant’s psychiatric injury was not the reasonably foreseeable consequence of faulty home construction (the Appellant had developed Adjustment Disorder with Mixed Anxiety and Depressed Mood).

The Appellant raised two grounds of appeal. First, the Appellant argued that the motion judge “ignored or rejected evidence that would prove he was a person of ordinary fortitude”. Second, the Appellant argued the motion judge erred by considering a “limited warranty and exclusion language” in the agreement of purchase and sale as a factor relevant to foreseeability.

The Court rejected both grounds of appeal. The Court clarified that the Appellant was required to prove that “it was reasonably foreseeable that a person of ordinary fortitude would have suffered a serious injury of that type”. The motion judge held that the Appellant’s reaction was “highly unusual and the product of particular sensitivities on his part”. This conclusion was open to the motion judge.  The Court wrote:

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.

The Court also found no error in considering provisions within the agreement of purchase and sale.  The motion judge had to consider the “circumstances in which the negligence arose” in order to determine whether the type of harm was foreseeable. Although not determinative, it was proper to refer to the agreement of purchase and sale. The Court wrote:

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.

 

Read the full decision [PDF]
Jordan Kofman
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Jordan's practice focuses on motor vehicle accidents, occupiers’ liability, product liability, municipal liability, medical malpractice, wrongful death, accident benefits, and long-term disability claims.

In his spare time, he enjoys golfing, downhill skiing, road cycling, and fishing. Jordan is also an avid NFL and Toronto Blue Jays fan.