Federal Court strikes claim in proposed class action alleging injury due to mould on military ship

• started suffering chills, a fever, a cough, burning and tightness in his chest, and fatigue while serving on the vessel
• received a diagnosis for exercise-induced asthma, sleep apnea, and chronic rhinitis
• discovered what he assumed was black mould growing from the fittings in the ship’s pipes
• never fully recovered since developing these symptoms, even though he received antibiotics aboard the ship
• continued to experience temperature swings and chest pain
• had a worse overall quality of life and could not perform physically demanding activities like he used to

He also argued that the CAF knew or should have known about the dangerous levels of toxic mould on its ships, breached its duty of care to maintain its property in a safe condition, and failed to take reasonable measures to prevent foreseeable harm.

The plaintiff also alleged systemic negligence, breach of fiduciary duty, and violations of s. 7 of the Canadian Charter of Rights and Freedoms and s. 1(a) of the Canadian Bill of Rights, 1960. He requested general, special, and punitive damages.

The plaintiff filed his statement of claim in July 2020 as a proposed class proceeding. The proposed class was all current or former CAF members who served on CAF ships within a specified period and experienced an exposure to airborne contaminants like mould or toxins during service.

Canada’s attorney general moved to strike the plaintiff’s claim as a whole without leave to amend. The federal attorney general argued that s. 9 of the Crown Liability and Proceedings Act, 1985 (CLPA) barred the claim and that the court lacked jurisdiction since the claim fell within a CAF dispute resolution scheme under s. 29 of the National Defence Act, 1985 (NDA).

Claim struck

The Federal Court granted the motion to strike under r. 221(1)(a) of the Federal Court Rules, SOR/98-106, without leave to amend based on the claim’s failure to disclose a reasonable cause of action for a lack of jurisdiction.

First, the court ruled that s. 9 of the CLPA barred the plaintiff’s claim because the allegations of damages and losses in the claim and the compensation paid or payable to the plaintiff under the Veterans Well-Being Act, 2006, had the same factual basis and arose from or had a direct connection to the same event.

The court explained that this same event pertained to the plaintiff’s exposure to black mould while serving his duties as a CAF member onboard a CAF ship, which caused him an identical injury or disease. The court noted that the plaintiff failed in his chest pain and critical injury benefit applications but succeeded in his other filings.

Second, the court found that the plaintiff was an enrolled CAF officer when he filed his claim and was thus subject to the applicable dispute resolution scheme under s. 29 of the NDA.

The court held that the plaintiff failed to establish that the grievance process in s. 29 was demonstrably ineffective or incapable of redressing his claim. The court added that he also failed to show exceptional circumstances that would justify the court’s exercising of its residual jurisdiction to allow the claim to proceed.