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Dumoulin v. Ontario, 2006 CanLII 9598 (ON S.C.)

Fasken
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Ontario Realty

Dumoulin v. Ontario, 2006 CanLII 9598 (ON S.C.) On March 29, 2006, Justice Cullity of the Superior Court of Justice dismissed the certification motion of Paul DuMoulin for a proposed class action related to alleged toxic mould in the Newmarket Courthouse. Paul DuMoulin was an employee of York Regional Police assigned to the Newmarket Courthouse in 1997. He alleged that after approximately one year, he began to suffer from respiratory problems he attributed to the presence of toxic moulds inside the courthouse that resulted from the negligent design, construction, control, possession and ongoing maintenance of the building. The class was defined as being "all persons who were, by reason of their employment, vocation or compulsion of law, remained within the court house for a cumulative period of 50 hours between the period January 1, 1995 and June 30, 2000." The defendants argued that the issues to be determined by individual trials were numerous and complex, and therefore a common issues trial would not appreciably advance the litigation. Justice Cullity agreed. A favourable resolution of the proposed common issues is a "prerequisite to the existence of any claim of a class member or, in the case of the last of the issues, a determination of the relative degrees in which defendants will be liable as among themselves." Certification will be denied where the determination of the common issues will in fact mark only the commencement of the litigation process. Plaintiff's counsel admitted that the individual trials would be protracted and expensive. Justice Maurice Cullity held that the resolution of common issues in favour of class members would not be sufficient to establish the liability of any of the defendants. Further, Justice Cullity held that where the methodology of proving causation is in contention, such an issue is not a proper common issue. Common issues are issues raised by the claims of the class members. The test is "not whether resolution of the issue is necessary to the resolution of each member's claim in a class action…. It may be relevant, or even necessary, to accept such opinions for the purpose of a finding that a class proceeding is a preferable procedure, but this, I believe, differs significantly from a conclusion that it is necessary for the purpose of resolving each member's claim. The question of preferability must be decided on this motion." Therefore, since the plaintiff did not discharge the burden of proving the validity of Dr. Shoemaker's opinions and methodology (which were either unsupported or directly contradicted by other expert evidence), the plaintiff cannot "deflect the inquiry by transferring the task to the court at the trial of the common issues." Causation was therefore a significant issue for determination by individual trial. Finally, Justice Cullity distinguished the Pearson decision, stating that a crucial difference in this case was the "lack of evidence that any class members, other than the representative plaintiff and the person pursuing a separate action, have claims that may reasonably be considered to be commensurate to the litigation risks and expense involved in the lengthy trials that would be required to resolve such issues - and are likely to be willing to participate in them." The defendants should not be required to defend an action brought ostensibly on behalf of a potential class of 500 persons if there is reason to believe that few, if any, of them would be willing to attempt to enforce their individual claims. The certification motion was successfully defended by Her Majesty the Queen in Right of Ontario, the Ontario Realty Corporation, Ellard-Willson Engineering Limited, Boigon Armstrong, ProFac Facility Management Services Inc., Ellis Don Corporation and Clifford Restoration Limited. The Ontario Realty Corporation was represented by Fasken Martineau with a team headed by Paul J. Martin and Laura F. Cooper, which included, among others, Robin Roddey and Catherine Wiley.

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