Canadians may never know the extent of mould-related health problems plaguing some who served aboard Royal Canadian Navy frigates as Veterans Affairs is not tracking the problem and legal action that aimed to shed light on the issue has been denied.
A Federal Court judge has shot down a proposed class action case led by a former Royal Canadian Air Force captain who claimed “dangerous levels of toxic mould” in one of the navy’s frigates caused him serious ongoing health problems because Veterans Affairs Canada has already compensated him for the same injury.
A Veterans Affairs spokesman said Wednesday the department tracks injuries, but not their source.
Félix Dunn joined the military in 2006. The air combat systems officer was stationed aboard HMCS Vancouver, a Halifax-class frigate that can carry helicopters, from June until December of 2016, when he started experiencing respiratory issues.
“In my view, (Dunn’s) claim in this case relies on the same factual basis that led to compensation being paid to him by (Veterans Affairs Canada),” Justice Cecily Y. Strickland wrote in a recent decision out of Ottawa.
“That is, the presence of mould on a (Canadian Armed Forces) ship to which the plaintiff was exposed in the course of his CAF duties causing him injury. Thus, the compensation paid or payable to him is a bar to the action against the Crown because it is made on the same factual basis.”
Another insurmountable hurdle, the judge noted, is that while Dunn was still in uniform, he never filed a grievance with the military’s dispute resolution scheme
to contest the issues alleged in his claim.
The Attorney General of Canada brought the successful motion striking Dunn’s statement of claim for his proposed class action on behalf of former members of the military and those still in uniform.
“It certainly was a blow,” Dunn’s lawyer, Brian Murphy, said of Strickland’s ruling.
“We thought we had a pretty good argument. But I guess it didn’t work out.”
At least 20 people — mostly former sailors who served aboard different frigates — had expressed interest in joining the proposed class action, Murphy said. “The whole nature of a class action is there are probably so many more.”
The military is not admitting health problems were caused by mouldy frigates, Murphy said. “Not in the confines of this litigation, for sure, no they’re not,” he said. “At the end of the day we may have proved there was mould, but they would say he’s been compensated, it doesn’t matter.”
The federal government’s win “was legal, it was technical, if you like,” said Murphy. “It wasn’t on the whole merits of things, that’s for sure.”
The navy has said that it is doing everything it can to mitigate mould in its frigates, including updating ventilation system controls on warships.
“They claimed to have it sorted out and then we started hearing more about these kinds of cases,” said Ken Hansen, a military analyst and former naval commander.
“I know they’re still working on it; there’s still people leaving the fleet with respiratory problems.”
The mould issue “came about because, in the Halifax-class frigates anyway, they added a lot of heat-generating electronics when they modernized the ships and gave them their life extension,” Hansen said, noting the Canadian military did not sufficiently heed warnings that adding electronics to the frigates would require more ventilation.
The extra heat they produce “picks up and holds moisture,” he said.
“Then, when you get into an area where the water is cool or cold on the outside, it starts condensing all this moisture back into the solid part of the environment (creating the) perfect environment for growing mould,” Hansen said.
The court heard that during Dunn’s “service on the HMCS Vancouver, he began experiencing chills and fever, along with a cough, burning and tightness in his chest, and fatigue. He claims that he was treated with antibiotics while onboard but never fully recovered. Further, that he discovered what he believed to be black mould growing from the fittings in the pipes on the ship. Shortly thereafter he was diagnosed with exercise-induced asthma, sleep apnea, and chronic rhinitis.”
Dunn told the court “that since first developing these symptoms on the HMCS Vancouver, he has never fully recovered, he continues to experience violent swings in temperature and chest pain when breathing, that his overall quality of life has been compromised, and that his ability to perform any physically demanding activities has been severely limited.”
Dunn applied to Veterans Affairs “for various disability benefits, including pain and suffering compensation, critical injury benefit as well as rehabilitation services and vocational assistance programs for veterans,” between March 2019 and August 2022, Strickland wrote in her decision, dated April 9.
He submitted a request for permanent release from the military in May of 2020. “He stated this request was due to his permanent lung issue caused by the exposure to mould on HMCS Vancouver,” said the judge.
Less than three months later, Dunn filed his statement of claim for a proposed class action on behalf of people who served on Canadian warships from Jan. 1, 2000 onward, who had been “exposed to mould, toxins, and other airborne contaminates throughout the course of their service,” said Strickland’s decision.
Dunn claimed that the military “was aware, or should have been aware, of the dangerous levels of toxic mould on a number of its ships, that it breached its duty of care to maintain its property so that it was safe and, failed to take reasonable measures to ensure that preventable and foreseeable harm did not occur,” said the decision.
Dunn was medically released from the military Sept. 1, 2022.
According to military records, as of Dec. 7, 2023, Dunn had received $167,052 in pain and suffering compensation. He’s getting ongoing monthly payments of $628 for same.
Dunn had also received $22,390 in income replacement benefits. He’s getting ongoing monthly payments for same of $1,516.
Motions to strike claims “serve an important screening or gatekeeping function,” Strickland said.
“They are essential to effective and fair litigation and prevent unnecessary effort and expense being devoted to cases that have no reasonable prospect of success,” said the judge.
Lawyers for the federal government argued Dunn’s proposed class action claim should be barred “because it is in respect of the same injury, damage, or loss for which compensation was paid or is payable to the plaintiff and the entire proposed class.”
Dunn’s lawyers acknowledged the rules against “double recovery,” said the decision, but they asserted “his claim does not arise merely from exposure to mould, it arises from the CAF’s conduct, which has resulted in consequences separate and distinct from the damages suffered by the proposed class.”
Dunn’s claim contended “that several members of the CAF failed to act, or maliciously and intentionally withheld information when presented with detailed information about the rampant toxic mould growth on (Canadian frigates) and intentionally placed the members in said toxic environments. Thus, the alleged injuries and events are not identical to those for which compensation was previously awarded.”
Dunn argued that “he and the proposed class are not seeking double or enhanced recovery for medical disabilities diagnosed for compensation under a disability pension. Rather, they seek compensation for the intentional infringement of the Charter right to security of the person.”
But the judge wasn’t buying it.
The Crown Liability and Proceedings Act, “reflects the sensible desire of Parliament to prevent double recovery for the same claim where the government is liable for misconduct but has already made a payment in respect thereof,” said her decision.
“In this case, the event is exposure to black mould. Whether framed in terms of negligence, systemic negligence, or breach of fiduciary duty, the compensation paid and the damages sought all stem from that same event,” Strickland said.
Murphy, Dunn’s lawyer, hasn’t decided yet whether to appeal Strickland’s ruling. “I’m expected to have a little meeting with my clients next week.”
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