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Date: 20050117
Docket: T-6317-82
Citation: 2005 FC 53
Ottawa, Ontario, the 17th day of January, 2005
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
MR. PAUL-ARTHUR GRENIER and
MS. PAUL-ARTHUR GRENIER
Plaintiffs
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
[1] Mr. Paul-Arthur Grenier and Ms. Jacqueline Grenier (respectively the male and female plaintiff and jointly the plaintiffs), representing themselves, are suing Her Majesty the Queen (the defendant) for damages of $2,463,500.00 resulting from the insulation of their over-200-year-old house with urea-formaldehyde foam insulation (UFFI). The plaintiffs' children sued initially but later abandoned their action. Similarly, the plaintiffs and their children also sued, in the Superior Court, district of Québec, the Attorney General of Quebec, the installer of the UFFI (Styrojet) and the manufacturer of the product (Borden), but the plaintiffs abandoned the action through an out of court settlement statement and a motion to dismiss for want of prosecution was allowed in the case of Borden.
BRIEF FACTUAL BACKGROUND
[2] In 1959, the plaintiffs became the owners of an old house situated at 2285 avenue Royale in Beauport, Quebec.
[3] In the wake of the oil crisis of the 1970s, the federal government set up a home insulation program through which owners could obtain a grant.
[4] In June 1980, the male plaintiff, after consulting the telephone book, contacted Styrojet to carry out the work of insulating the old house. After a visit to the premises, the Styrojet representative informed him that he was going to pierce the walls in certain places to allow the injection of the UFFI, for a payment of $591.00. A contract was signed and the work was done in the following days.
[5] In April 1981, UFFI was declared by the federal government to be unusable for insulation purposes and a complete prohibition was announced in December 1981.
[6] In February 1982, the plaintiffs and their children consulted Dr. Jean-Yves Bhérer to have him fill out the Centre de toxicologie form for persons living in a UFFI-insulated home. They told him, inter alia, that their eyes were irritated and they had a cough at times. After an examination in which the physician "observed" nothing concerning the consequences of exposure to UFFI, he signed a report in which he concluded that each member of the family suffered some health problems consistent with moderate exposure to UFFI.
[7] In August 1982, the male plaintiff suffered an initial inferior infarctus of the myocardium. He subsequently suffered at least three more such attacks. Psychiatric problems related to his coronary situation were detected in 1985-86. He was treated in this respect.
[8] In 1982, the male plaintiff, wishing to have the UFFI removed, consulted two contractors. They refused to do the work since the product had to be removed from the inside. The plaintiff says he was obliged to remove it with the help of his family. To do the work, the plaintiff neither consulted nor contemplated other options and the work was done in stages until 1983. It was a complex and long-drawn-out job.
[9] At the time of the male plaintiff's first heart attack and during his convalescence, the female plaintiff had to assume some additional duties in regard to the children and she participated in a major way in the removal of the UFFI. Her health suffered some consequences, including problems of high blood pressure and arthritis which have never subsided.
[10] The male plaintiff was declared incapable of working in June 1985 by Dr. Bhérer on account of Alzheimer's disease. He therefore quit his employment as a mechanics teacher. The plaintiffs' medical status has not improved subsequently. However, the Alzheimer's that was diagnosed receded although the male plaintiff's coronary situation continued to be a matter of concern for his doctors.
[11] In the interest of minimizing the costs to homeowners of the UFFI removal, the federal government established a reimbursement program. On or about April 15, 1983, the male plaintiff received a cheque in the amount of $6,627.55. In July 1983, an inspector with the Canada Mortgage and Housing Corporation (CMHC) evaluated the cost of removing the UFFI from the plaintiffs' house at $18,000.00.
[12] Summarily, the damages claimed by the plaintiffs break down as follows:
- loss of salary, $45,000.00 per year: $675,000.00
- insurance premiums, $900.00 per year: $13,500.00
- cost of drugs, $3,000.00 per year: $45,000.00
- male plaintiff's heart failure, followed by
four heart attacks, pain and suffering, loss
of enjoyment of life: $700,000.00
- female plaintiff's UFFI-related illness: $200,000.00
- damages and suffering of the five children,
three of whom underwent operations:
- 5 @ $150,000.00 per child: $750,000.00
- repairs to the house: $80,000.00
______________
Total: $2,463,500.00
SUMMARY OF EVIDENCE AND SUBMISSIONS BY PLAINTIFFS
[13] The plaintiffs testified, as did three of their children: Sylvain, Martin and Chantal. Also testifying were Dr. Germain Thériault (Dr. Thériault) of the Human Kinetics laboratory of Laval University and Dr. Bhérer, a family physician, who made the evaluations of the family's symptoms related to UFFI exposure in February 1982.
[14] In August 1979, under a Laval University physical condition and health research program, the complete family was examined by the members of a group of physicians and the individual results were communicated to them. Briefly, the results showed that the family was generally in good health, with the exception of the female plaintiff who was somewhat less healthy (her blood pressure and weight were commented on by Dr. Thériault but did not indicate a significant problem).
[15] Following the examination in February 1982, Dr. Bhérer testified, the family members demonstrated, without exception, some health problems compatible with exposure to UFFI. However, on cross-examination, he explained that the symptoms (headaches, dryness of the nose, ocular irritation, dryness of the skin) related to UFFI exposure had been communicated to him by the family members, that his objective examination added nothing more and that in general the overall appearance of each of them seemed "good" to him. Moreover, he confirmed that in 1985 he had diagnosed Alzheimer's in the male plaintiff and that he had signed a statement of permanent disability to that effect. He explained that the Alzheimer's was unrelated to UFFI exposure.
[16] The children Sylvain and Martin told about how the general situation was different following the insulation of the house. Sylvain explained that he had had a hump removed from his back but was experiencing no aftereffects at present. Martin said he had some difficulty breathing but that he had elected not to undergo surgery. Chantal explained that she was operated on for inflammation of the sinuses that was creating breathing problems for her. After the operation, she convalesced at her grandparents' home. The other children (France and Sonya) did not testify.
[17] The female plaintiff testified that her health had deteriorated after the installation of the UFFI. Following her husband's first heart attack, she had to step up her work in the home and she participated very actively in the work to remove the UFFI from the house. She commented that life was no longer the same since the installation of the UFFI and that the family had suffered some major inconveniences. She suffers from osteoarthritis and underwent surgery on one of her knees. She asked the Court to do what was needed to bring closure to the case and allow the family to return to normal life. She has been heavily involved in the UFFI issue but she wants it to "stop".
[18] The male plaintiff says life was going well before the insulation of the house. The family was in good health, he was teaching diesel mechanics at the School Board, he had some invention projects under way and was himself improving the family home by doing some renovations. He claims the situation changed following the UFFI insulation of the house. He mentions generally that he had seen the Minister of Consumer and Corporate Affairs, Mr. André Ouellet (the Minister) on television urging homeowners to join the federal government's insulation program, in return for which a grant would be available. He decided to participate in this program, had the insulation work done by Styrojet and subsequently received the grant.
[19] Following the insulation of the house, his health and his family's health declined. He had some coronary problems and lost the capacity to carry on his job. He and his wife suffered considerable stress, which had some repercussions on his health. All of his problems were related to the UFFI, he said. On March 26, 1992, a representative (who did not testify) of the provincial government's UFFI victims help desk tested the house through Gastec and detected 1.8 ppm of formaldehyde (this test and the result are not admitted and are strongly disputed by the defendant). This result is higher than the acceptable level for a residential home (0.1 ppm). The family was then obliged to remove the UFFI since no contractor was willing to do so. It had no choice.
[20] The male plaintiff acknowledges that he smokes a pack of cigarettes a day and he disputes the truthfulness of medical reports stating that at one time he was drinking six beers a day and that owing to his consumption of alcohol he was unable to pass a treadmill test around the mid-1980s. However, he does not dispute having had some mental health issues ([translation] "disguised depression") at one time.
[21] He thinks the legal proceedings commenced in 1982 should have proceeded much more rapidly and he simply does not understand why the proceedings were interrupted, other than to state that his case was [translation] "hijacked" (it will be recalled that six test cases were referred for trial before Mr. Justice Hurtubise of the Superior Court, district of Montréal, and after some very lengthy hearings a judgment was handed down on December 13, 1991, Rita Berthiaume et al. v. The Borden Company Limited et al., [1992] R.J.Q. 76). He explains that he signed the out-of-court settlement statement against Styrojet but adds that he did so under pressure. He adds that the female plaintiff's signature on the statement is false but is unable to explain who signed on her behalf.
[22] Concerning the damages, the plaintiffs justify them by referring to the decline in the value of the house, the meagre improvement made to the house, the loss of salary, the inconvenience to the family, the stress, etc.
[23] Representing both himself and the female plaintiff, the male plaintiff did not make any submissions pertaining to the notion of damage-related fault. He cited no authorities. That being said, the Court considers that it has clearly understood the situation and that it was fully analyzed for the purposes of this judgment.
SUMMARY OF EVIDENCE AND SUBMISSIONS BY THE DEFENDANT
[24] The defendant called two representatives of the CMHC, Mr. Jacques Charlebois (Mr. Charlebois) and Mr. Ken Ruest (Mr. Ruest), both of them civil engineering technologists. Two physicians testified: Dr. Yvan Gauthier, a psychiatrist (Dr. Gauthier) and Dr. John Osterman, a specialist in community and occupational health (Dr. Osterman). At the request of the defendant, and after hearing the physicians list their qualifications, the Court recognized them as expert witnesses and they each filed their report. The fifth witness for the defendant was Mr. Rhéal Galarneau (Mr. Galarneau), a certified building inspector and estimator and general contractor. After he presented his qualifications, the Court recognized him as an expert. He filed a report cosigned by Mr. Roger Boucley (Mr. Boucley), a building engineer and inspector.
[25] Mr. Charlebois worked for the UFFI Centre from 1982 to 1986. This Centre was set up to respond to the numerous requests from the public and to develop, inter alia, a training program for UFFI removal for contractors and homeowners. He told the Court that there were some alternatives to removing UFFI: sealing, drying out the wall cavities, purifying the air, cleaning the ducts, etc., but that the impact on the value of the houses created such pressure that the favoured solution was to remove the product. The Centre recommended that homeowners hire contractors who had taken the training and that if this was not possible, to do it themselves provided they adhered to the training. He explained that the gas released by the UFFI could derive from other sources and that these could have an impact on air quality. He contributed to the production of a manual with information on UFFI removal methods. He acknowledged that 0.1 ppm was the acceptable standard for a house and that 1.8 ppm was a high result.
[26] Mr. Ruest worked for a federal government consultant (Scanada Consultant) from 1981 to 1998, when he joined the CMHC as a senior researcher. As an employee of the consultant, he helped to take air samples from hundreds of UFFI-insulated homes. He had never detected a 1.8 ppm result. He thinks the Gastec test system is not as reliable as the dosimeter, which provides objective results while the Gastec system relies on subjectivity. The dosimeter monitors the air over a long period while the Gastec system yields a momentary result. He noted that the 1.8 ppm result was detected in the wall, which yields a quite different result when the comparison is made with the room air in a house over several days. He corroborated Mr. Charlebois' testimony, explaining the alternatives to UFFI removal. He said the elevated presence of gas occurs in the days following the insulation with UFFI and later diminishes completely. He thinks that using UFFI as an insulating material is acceptable. The European countries and all U.S. states other than Massachusetts use it. He explained that the prohibition of UFFI in Canada in December 1981 was made as a consequence of the multitude of complaints received, and not as a result of scientific studies.
[27] Having examined the plaintiffs, Dr. Gauthier thinks they experienced the events very intensely and disproportionately to what is normally acceptable. He diagnoses a persecution and "folie à deux" type of delusional disorder. The female plaintiff was less affected than the male plaintiff. Having had access to the plaintiffs' medical records, he notes that the diagnosis is consistent with the medical history of each of them. In his opinion, the events surrounding the UFFI engendered some stress but he explains that UFFI cannot be the cause of the coronary diseases documented in the records for the male plaintiff or the cause of the female plaintiff's medical condition.
[28] Dr. Osterman, having also examined the plaintiffs, explains that formaldehyde exists in human beings. The body consumes it through respiration (from cigarette smoke, cooking, fabrics, plywood, etc.) or by eating. It is found in bread crusts, certain fruits, etc. He thinks 1.8 ppm is [translation] "digestible" by the body (which digests 50,000 ppm of it daily). However, he acknowledges that this result would create coughing, and watering and blinking of the eyes. He adds that exposure to formaldehyde does not have any cumulative effect. In his opinion, there is no consensus that psychic stress causes cardiac disease and he says UFFI is not the cause of such illness. His report notes that Dr. Yves Morin, on October 12, 1984, following a coronary angiography of the male plaintiff, identified an obstruction of an artery. The male plaintiff's heart condition can be explained by the consumption of a pack of cigarettes per day, overweight, lack of exercise and consumption of alcohol. The female plaintiff has a medical history that indicates high blood pressure, diabetes and arthritis. These observations are unrelated to UFFI. He reviewed the children's case, saying the result of Sylvain's "hump" biopsy (swelling) is not part of the file and that no link can be made with UFFI, that the operation on Chantal's respiratory tract is caused in part by a natural deviation from the time of birth, and that the UFFI may have added to the situation but that the record does not demonstrate this.
[29] Mr. Galarneau, after visiting the house, concludes in his report that the plaintiffs' old house was not appropriate for UFFI and that the installer should have contemplated other types of insulation. He advises as well that during the removal of the UFFI, the method and safety process were deficient and dangerous to the health of the family members. The air quality test shows that the presence of formaldehyde is within the recognized norms, he said in closing.
[30] Through her counsel, the defendant submits that the plaintiffs were unable to attribute any fault to Mr. Ouellet, the Minister. The only evidence is the imprecise testimony of the male plaintiff. There is no video or document in this evidence that is capable of demonstrating that certain remarks of the Minister were tantamount to a fault. It is inconceivable that the Minister might have said: use the Styrojet services with this type of product. The Minister did not visit the plaintiff's home, did not choose the installer and did not participate in the manufacture of the product or its installation. The grant and insulation program created by the federal government is not a fault-contributing element. If there were any fault, it would be attributable to a party or parties who are not involved in the present proceeding.
[31] In the alternative, the defendant adds that there is no evidence that UFFI is toxic and dangerous. The air quality may be affected by other sources of pollution (for example, cigarette smoke). The 1.8 ppm rate detected in March 1982 was recorded with an unreliable instrument and the air sample was taken from within the wall, and this test was done at supper time. As for the heart attack suffered by the male plaintiff, it was caused by a blocked artery and not by the UFFI. As to the female plaintiff, she experienced the inconvenience of the male plaintiff's heart attacks. Her duties were substantially increased and she participated very actively in the removal of the UFFI.
[32] The damages are not related to the defendant and it cannot be held liable for them.
THE LAW
[33] To succeed in this proceeding, the plaintiffs have an onus of proof to discharge and they must adduce evidence that will allow a finding of fault attributable to the defendant that is connected with the deterioration in their medical status and the damages resulting therefrom. There are five general conditions that the plaintiffs had to demonstrate:
· that there was a duty of care based on a "special relationship" between the Minister and the plaintiffs;
· that the representation in question was untrue, inaccurate or misleading;
· that the Minister acted negligently;
· that the plaintiffs relied, in a reasonable manner, on the negligent misrepresentation; and
· that the reliance on the representation was detrimental to the plaintiffs in the sense that damages resulted. (See Queen v. Cognos Inc., [1993] 1 S.C.R. 87, at para. 33.)
[34] Now let us see what findings we can make based on the evidence as presented.
FINDINGS FROM THE EVIDENCE
[35] It is difficult if not inconceivable to envisage the possibility that the plaintiffs have discharged their burden of proof. They testified with the participation of some of their children and of two physicians, Dr. Thériault and Dr. Bhérer. The latter confirm that the family's state of health in 1979, before the UFFI insulation in the summer of 1979, was good and that the exposure to UFFI allowed the moderate identification of health problems (headaches, coughing, etc.) in February 1982. These problems were communicated to Dr. Bhérer but he makes no objective finding. On the contrary, his examination concludes that all the members of the family are almost 100% normal.
[36] However, the record is silent as to the family's medical situation from June 1980 to February 1982 (the date of the insulation of the house and initial examination of the family following the insulation). If the situation had been dangerous and intolerable, the members of the family would not have gone for 20 months without seeking medical advice.
[37] It is worth resituating certain events in their context. The prohibition on the use of UFFI as an insulating material dates back to December 1981. The family's visit to the physician, Dr. Bhérer, for the Centre de toxicologie du Québec, for anyone living in a UFFI-insulated house, occurred two months later, in February 1982. The triggering event behind the medical appointment does not appear to be the precarious state of health of the family members but rather the prohibition of the UFFI and the visit to the doctor for him to fill out the form from the Centre de toxicologie du Québec.
[38] In regard to the plaintiffs' medical condition, their medical records show that the origins of their problems are in part genetic or caused by lifestyles. Dr. Osterman testified that the male plaintiff's consumption of a pack of cigarettes a day, his consumption of a certain quantity of alcohol, his overweight and lack of exercise are possible contributing factors in a heart attack. Moreover, the medical record reveals that one of the arteries was blocked. All of these considerations explain the male plaintiff's heart condition. His mental health in 1984-85 is also explained by the cardiac problems. The female plaintiff's high blood pressure, osteoarthritis and overweight are partly genetic in origin and are caused by a personal contribution. It is the uncontradicted opinion of Dr. Gauthier and Dr. Osterman that the UFFI is not the cause of the male plaintiff's cardiac and mental health problems or the female plaintiff's health status.
[39] The plaintiffs contend that the stress engendered by the events concerning the UFFI occasioned their medical problems. Dr. Osterman is of the opinion that there is no consensus that psychic stress causes cardiac disease.
[40] Even more important, the plaintiffs have not adduced any evidence that would point to a finding that UFFI is dangerous and might cause medical conditions of major significance. Again, Dr. Osterman's testimony is interesting in this regard. He explains that even an exposure to 1.8 ppm is tolerable for the human body. Concerning the 1.8 ppm rate detected in March 1982, the Court notes that the inspector, Mr. Daniel Lessard, did not testify, that the test was done with the Gastec instrument instead of with a dosimeter (the latter being more reliable), that the sample was taken only once in the wall and at supper time. The only other result that the record discloses is that the ppm rate identified was more than 0.05. (See P-1, tab 38 Urea Formaldehyde Foam Insulation Program, March 20, 1997.)
[41] The other aspect of the medical evidence is the report by Dr. Gauthier, a psychiatrist. After meeting with the plaintiffs and consulting their medical records, he arrives at a diagnosis of a persecution and "folie à deux" type of delusional disorder. For obvious reasons, and out of respect for the plaintiffs, the Court notes the diagnosis without further comment.
[42] Concerning the criticisms levelled at Minister Ouellet by the plaintiffs, the Court is unable to adopt them. In this regard, the evidence is weak if not virtually non-existent and is limited to the male plaintiff's testimony and certain newspaper articles. The evidence is not further documented. Having noted this, the Court adds that the invitation (of the Minister, if such was the proof) to participate in a grant program does not make him liable for the work of the installer or the manufacturer of the product. There would need to be evidence implicating the Minister in the choice of product and its formulation or some association of the Minister with an undertaking of guaranteed result. There is no evidence in that regard. As to the causal connection (if the defendant were found at fault), the uncontradicted evidence of the physicians Osterman and Gauthier is that the plaintiffs' medical condition is unrelated to the UFFI.
[43] Finally, a small comment on the damages, although it is not essential to comment on them in view of the above conclusions. The plaintiffs were unable to prove their damages. They threw out some figures without presenting any supporting evidence. If the situation experienced by the plaintiffs were to be attributable to the defendant, it would be hard to identify the accuracy of the damages with the evidence that was presented, with the possible exception of certain material claims.
CONCLUSION
[44] Having made the preceding findings, the Court would like to make it clear that it does not doubt the sincerity and honesty of the plaintiffs. They have a perception and an experience of the events that leads them to the understanding they have of the situation. However, there is a major gap between their perception and the legal reality applicable to the present situation and the latter cannot reflect their own perception. The Court has no doubt that the consequence of the UFFI insulation imposed a major burden on them and their family which complicated their life. However, this is not necessarily the cause of their medical problems subsequently and it is not the purpose of the court proceeding to find "a guilty party" at any cost.
[45] The plaintiffs have not discharged their onus of proof. They have not been able to identify a fault attributable to Minister Ouellet, essential for any conceivable finding of liability. Moreover, the evidence does not show any causal connection between the UFFI and the plaintiffs' medical condition. According to the evidence that was presented, their medical condition is explained otherwise than by the consequences of exposure to UFFI. Lastly, the damages claimed are not supported by documentary or other evidence.
[46] The Court, having sat for five days, attempted to allow the plaintiffs to present their evidence in its most favourable light. That is what they have done but the evidence adduced was not sufficient or conclusive enough to allow them to discharge their onus. In human terms, the Court sympathizes with the plaintiffs but not to the point of granting them what they are asking. The law must prevail.
[47] Bearing in mind the remarks by the female plaintiff, who asked the Court that [translation] "it come to an end", the Court ventures to hope that this decision, which was expressly written to provide detailed reasons that would be comprehensible, will enable them to turn the page. In this regard, the Court reserves the right and the discretion to award the costs later upon request by one of the parties, the principle being that the winning party is awarded costs. I venture to hope that this can facilitate the outcome of this matter for all parties.
THAT IS WHY THE COURT CONCLUDES:
- The plaintiffs' application is dismissed and the allocation of the costs is reserved, subject to a request from one of the parties.
"Simon Noël"
Judge
Certified true translation
K.A. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-6317-82
STYLE: Mr. Paul-Arthur Grenier and Ms. Paul-Arthur Grenier v.
Her Majesty the Queen
PLACE OF HEARING: Québec
DATE OF HEARING: December 6-10, 2004
REASONS: The Honourable Mr. Justice Simon Noël
DATED: January 17, 2005
APPEARANCES:
Paul-Arthur Grenier FOR THE PLAINTIFFS
Marie-Geneviève Masson FOR THE DEFENDANT
Stéphane Nobert
SOLICITORS OF RECORD:
Paul-Arthur Grenier FOR THE PLAINTIFFS
Beauport, Quebec
Department of Justice Canada FOR THE DEFENDANT
Montréal, Quebec