Tingley v. Wellington Insurance Company, 2010 NSSC 465

SUPREME COURT OF NOVA SCOTIA Citation: Tingley v. Wellington Insurance Company, 2010 NSSC 465 Date: 2010/12/29 Docket: Hfx No. 115328 Registry: Halifax Between: Patricia M. Tingley, Kelli L. Smith, Todd A. Smith and Margaret M. Burton Plaintiffs - and - Wellington Insurance Company, a body corporate and Larry D. Hay Defendants LIBRARY HEADING Judge : The Honourable Justice A.

David MacAdam Heard: (119 days), in Halifax, Nova Scotia Written Decision: December 29, 2010 Subject: Negligent misrepresentation; equitable fraud; credibility and fact-finding Background: The plaintiffs claimed against their insurance company and an adjuster on account of the handling of an alleged incident of chemical contamination in a house occupied permanently by certain plaintiffs, and sporadically by another. The house was broken into, and a substance that was never definitively identified was apparently spread in the house.

The plaintiffs alleged that the defendants later told them the house was safe to occupy. They alleged that they subsequently suffered from Multiple Chemical Sensitivities as a result of their exposure to a toxic substance in the house, and claimed against the defendants in negligent misrepresentation and equitable fraud. The defendants denied that the presence of any toxic substance had been established, and denied telling the plaintiffs that the house was safe. In the alternative, the defendants took the position that any such statement would have been reasonable and neither negligent nor fraudulent.

Reasoning: The plaintiffs were unable to establish that the defendants had made the statements alleged, that a toxic substance was spread in the house, or that any substance they encountered in the house had harmed them. While the evidence supported the conclusion that the plaintiffs had experienced various health problems, it did not support a causative link with their occupancy of the house after the break-in or with any substance they encountered there.

The plaintiffs ’ medical witnesses were unaware of the plaintiffs ’ full medical histories, and their principal medical expert admitted on cross-examination that various aspects of his diagnoses would have been

different had he been provided with more accurate medical histories. The defendants ’ principal medical expert did not believe that the plaintiffs suffered from Multiple Chemical Sensitivities. There were significant issues of credibility and reliability in relation to the plaintiffs ’ evidence. The claim of negligent misrepresentation was not made out. While there was a duty of care owed to all of the plaintiffs, the evidence did not establish either that the statements alleged were made, or that any exposure to toxic substances caused their health problems.

Had the other elements been established, however, reliance would have been found. The evidence did not make out the claim of equitable fraud, given the absence of evidence of dishonesty on the part of the defendants. Result: The plaintiffs ’ claim was dismissed. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA Citation: Tingley v. Wellington Insurance Company, 2010 NSSC 465 Date: 2010/12/29 Docket: Hfx No. 115328 Registry: Halifax Between: Patricia M. Tingley, Kelli L. Smith, Todd A. Smith and Margaret M.

Burton Plaintiffs v. Wellington Insurance Company, a body corporate and

Larry D. Hay Defendants Judge: The Honourable Justice A. David MacAdam Heard: (119 days), in Halifax, Nova Scotia Written Decision: December 29, 2010 Counsel: Kevin A. MacDonald, for the plaintiffs Jocelyn M. Campbell, Q.C. and W. Harry Thurlow, for the defendants By the Court : THE EVENTS OF SEPTEMBER 1991 The Plaintiffs’ Account [ 1 ] In September 1991 the plaintiff Patricia Tingley, then known as Patricia Smith, was living in Dartmouth, NS, and working as a rehabilitation specialist in Dartmouth and Sydney.

While she was in Sydney, her two children, the plaintiffs Todd Smith and Kelli Smith, stayed with their father, her former husband Philip Smith. Her Dartmouth residence was a house at 150 Silestria Drive. Her brother, Kim Tingley, lived in the basement. [ 2 ] In the early hours of September 20, 1991, Kim Tingley returned from work and discovered a break-in had occurred. He called his sister, who was in Sydney. Ms. Tingley testified that her brother told her he had called the RCMP, and that he later called back and advised her that RCMP officers had gone through the house.

He told her that there were items missing. Ms. Tingley said a member of the RCMP advised her that it was not necessary for her to return home. [ 3 ] On October 27, 1990, the defendant Wellington Insurance Company had issued a policy on the house. Ms. Tingley said she called Wellington from Sydney and advised them of the break-in. She testified that later in the week, before returning to Dartmouth, she spoke to the defendant Larry Hay, the adjuster, who wanted to know when she would be back in Dartmouth, so that he could visit the house with her. [ 4 ] When Ms.

Tingley had arrived in Sydney there was a phone message in which a woman had said Ms. Tingley had ruined her life and was threatening to get her. Ms. Tingley said she played the tape of this threat to a number of people, including Margaret Burton, one of the other plaintiffs, a Sydney police officer and two of her sisters. The police officer and one of her sisters did not appear to take it seriously. She also said she told Mr. Hay and the RCMP officer she spoke to from Sydney, neither of whom appeared to take it seriously.

She said she later in the week, in using this tape in her work, had taped over and thereby erased the death threat.

[ 5 ] Both Todd and Kelli Smith testified that they noticed an unusual smell on entering the house with their father the morning after the break-in. Ms. Tingley went to the house with the children when she returned to Dartmouth. She said she could smell and taste something, and said there was burning in her eyes. The children said that nothing stood out to them at that time. Ms. Tingley found that some clothes were dark and wet, some had yellow stains, and some had grey and brown stains.

Kelli Smith described spots and stains on her clothing, yellow stains on the carpet and stains on her bedroom wall. [ 6 ] On entering the home the morning after the break-in, Mr. Smith said he saw muddy footprints but did not notice any stains or spots that day. He said they appeared later, but he could not say precisely when he first noticed them. He said the house was a mess. He said he saw a fog, a haze, or a mist, rising half a foot over the carpet. He had not seen it before nor has he seen it since. Mr. Smith did not recall if there was white powder on any of the clothes, nor did he recall noticing Ms.

Tingley’s dresser being wet. [ 7 ] Ms. Tingley testified that within a day or two of her return to Dartmouth Todd was cranky and had a running nose and a high fever. She ran a bath for him. She heard an "ungodly scream," and he came out of the bathroom, naked, screaming and crying about his feet, which she said were red and swollen, up to four to six inches from his ankle. Todd Smith's evidence was that his feet burned intensely as soon as they hit the water. He could see a line where his feet burned.

He testified that the socks he had been wearing before the bath had been in the bottom drawer of his mother’s dresser. Ms. Tingley said that earlier in the day she had washed clothes, including a stained grey sweater. She said the water turned grey when she washed the sweater and after drying it, she had washed it again. She said she put the sweater in a bag as they left for the hospital. She testified that when a nurse in the ER picked up the bag, she dropped it because it was hot. She said the nurse then called Poison Control, who took it away. [ 8 ] Mr.

Smith did not recall anything unusual about the socks he put on before his feet allegedly turned red in the bath. He did not recall what his symptoms were when he arrived at the IWK, or whether his feet were still red. He said the doctors did not take him seriously, and he thought Dr. Grover and Dr. Morton “blew him off”. He recalled taking a shower, but he was not sure whose idea it was. He did not recall his feet burning in the shower. [ 9 ] Todd was examined by Dr. Grover in the Emergency Room. It happened that his pediatrician, Dr. Morton, was in the emergency department at the time. Ms.

Tingley said the doctors asked what had happened and, after she told them, they said that as they did not know what the substance was, they could not treat him. Ms. Tingley said she was told they should remove their clothes and take showers. They were told to leave their clothes and were given hospital pajamas to wear when they left the hospital. [ 10 ] Despite some difference as to the sequence of the showers, the evidence of all three witnesses was that it was not until Todd took a shower that there was a problem. Ms. Tingley said that after Todd showered, he complained of his skin burning.

When she tried to dry him off, it looked like “charcoal grey” skin was coming off his body. According to Mr. Smith’s evidence, a film came off his skin, which she first noticed on his arm and his side. Ms. Tingley testified that no one responded to a call for help. She said they left the hospital without speaking to anyone else. Todd Smith recalled leaving in hospital flannels, without speaking to doctors or nurses. Ms. Tingley said Dr.

Grover had told them not to go back to the house and so they went and stayed with a friend, Donna McKay. [ 11 ] Three documents were tendered in evidence relating to the emergency room visit: the hospital record, a printout delivered to Ms. Tingley by a nurse at Poison Control, and the Poison Control record. Under the heading "History and Clinical Findings", the emergency room record states; “[h]istory of pesticide being sprayed in the house. Brought in for decontamination. No abnormal findings.” The attached notes, apparently by a nurse, state, in part: Sept 30/91 @ 2120 Mrs. P.

Smith arrived with 2 children stating that her house had been broken into and sprayed with? contaminate. Could of been at least 1 week ago, only returned to house 3 days ago. No systemic symptoms other then skin burning when water applied. Spoke with P.C. and Dr. Grover both recommend frequent showering until identified.

(2200) Placed in Pl. Room. No obvious skin irritation noted. No C/O discomfort, rashes, etc. Med. to see.

(2250) Dr. Grover has examined pt. Mom requests that child be able to shower before returning home. (to decontaminate skin).

(2330) Shower completed no skin irritation noted. D/C home mom.

[ 12 ] As to whether Todd had a burning sensation when he took the shower at the IWK, Ms. Tingley said on cross-examination that she was not sure. On direct examination she had testified that he had a burning sensation. She later added that she "vaguely" remembered that there had been a slight burning. After being referred to the Poison Control records, she said she believed Todd had experienced burning in the shower. [ 13 ] Ms. Tingley testified that she had one experience of a burning sensation on her own skin after the break-in and before the visit to the IWK.

She had put on a flannel nightshirt from her dresser. It was dry and looked normal. The burning was localized to her mid-back. She said the irritation on Todd's feet was like a bad burn, while hers was a chafing, like a carpet burn. [ 14 ] The first Poison Control document is entitled, "POISINDEX ® SUBSTANCE IDENTIFICATION". Among other things, it refers to "PESTICIDE, WATER REACTIVE, CONTAINING MANGANESE ETHYLENEBISDITHIOCARBAMATE (MANEB) (DOT)". In the Poison Control record, the third document generated that evening, under the heading "Comments; Misc. Info,” it is indicated that Ms.

Tingley and the children “have been exposed to? Pesticide,” and adds the notation “rotten wood smell [illegible] when skin gets wet, burns & turns red.” Under the heading "Progress Notes", the following entries appear (among others): F/u 2125 - Advised Mom that PCC best guess is that substance is a pesticide that is water reactive but no ways know [without] analysis, name of company & products. Given Mom 1-800 # for Ortho Co. to perhaps get more info on product. ...... F/u 2200 Constable Marando, RCMP Cole Harbour calling re: Smiths situation. Asking about possible kind of product.

Advised PCC guess is a pesticide - gave chemical name of water - reactive pest. containing manganese that is attached to give to their lab for testing as a possibility. Advised that lab could call PCC in AM. for info on possible other substances that they could test for. Constable Marando asking if plastic bags are adequate for samples of articles - yes. - PCC advised use gloves. Call pm. Thanks. F/u 2220 Dr. Morton calling re: Smith family. Mom claiming PCC advised her to be treated here @ IWK [with] showers, etc. - PCC stated that we did not advise treatment. - ok.

F/u 2330 Family all showered - no burning or redness! Given IWK pajamas to wear home. No adverse effects noted. D/C'd [discharged] home. [ 15 ] Ms. Tingley said that she felt poor at the hospital. By the time they arrived at Ms. McKay's house, she was ill, with headaches, earache and a sore throat. Todd said he was tired and having headaches and breathing problems as well, she testified. On cross-examination Ms. Tingley agreed with her statement on discovery that Kelli had told her and the doctors at the IWK that she was not experiencing any ill effects. [ 16 ] Ms.

Tingley testified that while she and the children were at the IWK, Donna McKay, who had been visiting them, went to the house with an RCMP officer. The officer took pieces of clothing, and the back of the dresser from the master bedroom from which Todd had gotten the socks. The back of the dresser was wet. The items were examined by Michelle Holzbecher of the RCMP Forensic Lab, Toxicology Section, who was unable to identify any substance. [ 17 ] Ms. Tingley testified that after they went back to Ms. MacKay's home, two RCMP officers arrived, and she went with them to 150 Silestria Drive.

She said she began to cough, experienced burning eyes and noticed a smell when she entered the house. She said she asked the officers, Constables Emberley and Turner, whether they smelled or tasted anything, to which they said no. Upstairs she showed them a sweater that had a white powder on it. She said one of the officers said it looked like discharge from a fire extinguisher, while the other said it looked like an excess of laundry soap. She said it was not laundry soap, and that there was no fire extinguisher in the house. [ 18 ] Later Ms. Tingley met with Larry Hay, the adjuster.

She testified that she told him to contact the doctors, the RCMP or Poison

Control, and that she offered him a copy of the printout from Poison Control and the IWK records. According to Ms. Tingley, Mr. Hay said he did not want this information, insisting he was not involved in a health issue, only a break-and-enter. Ms. Tingley said she told Mr. Hay about the stains on the walls and on her clothes. She said he "blew her away", got "very rude" and was "disrespectful and bullying." The meeting lasted between 45 minutes and an hour, during which, she said, Mr. Hay only seemed interested in what was missing.

She testified that he said it could be done "the hard way or the easy way." She agreed that he approved their moving into the Cambridge Suites Hotel, rather than returning to the house. When she asked him what he would do about the clothing and the walls, he said they could be washed. She said she told him she wanted the house tested. She agreed that this conversation could have occurred in either her first meeting with Mr. Hay or her second. [ 19 ] Ms. Tingley said the Poison Control printout was given to Mr. Hay and to the RCMP. On another occasion, she said Mr.

Hay would not take it when she offered it to him. [ 20 ] Ms. Tingley described a second visit by Mr. Hay, when Constable Rice of the RCMP was also present. She said she had found more clothing with substances on it. Constable Rice contacted the crime lab, which indicated that it was not possible to come to the house due to workload. Ms. Tingley said Constable Rice told Mr. Hay that the house should be tested, and that anything that could absorb chemicals or substances should be replaced, including linen, bedding and clothing. She said Mr. Hay told Cst. Rice not to tell him how to do his job, to which Cst.

Rice responded that he was just reporting what the crime lab had said. [ 21 ] Kelli Smith recollected a meeting with Mr. Hay and Constable Rice in which her mother explained what was missing, Mr. Hay only appeared interested in the missing things. She recalled Mr. Hay saying "we can do it the easy way or the hard way," and refusing to follow the RCMP advice. On cross-examination Ms. Smith agreed she was incorrect when she testified that her mother told Mr. Hay and Constable Rice about the sweater and the IWK, because it had not happened by the time of the meeting. Neither Mr. Hay nor Cst.

Rice’s evidence supports this account. Cst. Rice is now deceased, and his discovery evidence was admitted on consent. [ 22 ] On cross-examination, Ms. Tingley was referred to notes, apparently made by Mr. Hay, dated October 2, 1991, which appear to refer to a phone call between herself and Mr. Hay. The notes described the house as “polluted” and refer to skin burning and the need to “get the toxins analyzed”. It referred to the RCMP removing the back of the dresser and the sweater being deposited with Poison Control, as well as involvement of Public Health authorities.

There are also notations which say “fungicide and pesticide manganese”; “time release chemical concentrated”; “water reactive”; and, finally, “she is more concerned with health than house right now” and “hold off cleaning until we know what it is”. Ms. Tingley testified that the notes were "pretty accurate". She did not know if the references to fungicide, manganese and pesticide came from her or from the RCMP. She assumed that she told Mr.

Hay in October that it was a pesticide, fungicide manganese, and that manganese was only a suggestion. [ 23 ] A later note, timed at 4:10, apparently on the same day, refers to a call from Ms. Tingley indicating that Bob Jeans, apparently of the Atlantic Health Unit, had suggested "do air sample". On cross-examination Ms. Tingley said she did not recall the name "Bob Jeans". Ms. Tingley said she "assumed" that Mr. Hay would be doing "air quality testing." She said Cst. Rice told Mr.

Hay that the RCMP Crime Lab had said that he should do "air quality tests." She agreed that there was no record of this in the RCMP files. [ 24 ] Ms. Tingley said she notified Mr. Hay that before the house was cleaned it had to be tested, and he would have to arrange the testing. She testified that she told him she could not afford to pay for the testing, and he said he would do it. She said she wanted "air quality" testing, based on what she was told by the Department of Health. Ms. Tingley said she provided Mr.

Hay with the names of companies that could do the testing, but he decided to use Nova Scotia Research Foundation (NSRF). She said Mr. Hay indicated he was not sure whether he would do it and she responded that the house would not be cleaned without testing. She said she took this position because of the sickness that Todd had suffered. She said she took him at his word that he would have the appropriate testing done. She understood the first thing they wanted to test was clothing, and she provided selected items to Mr. Hay. She assumed that the second step would be "air quality testing." [ 25 ] Ms.

Tingley testified that Mr. Hay called and said Nova Scotia Research Foundation wanted examples of stained clothing. She said she gave him various items, including a blouse with an oily grey stain. Later, when Donna Strong, Mr. Hay's supervisor, was at the house, Ms. Tingley asked about these items, and Mr. Hay said he did not think he had gotten them back from Nova Scotia Research Foundation. Ms. Tingley said Ms. Strong told him to pay her for these items. [ 26 ] Ms. Tingley said she was not present when Michael Robicheau, of Nova Scotia Research Foundation, came to inspect the house.

She said she later heard from Mr. Hay that the results had come in and that the house was "safe to be cleaned." She said she asked for a copy of the test results, which she said she did not receive. According to Ms. Tingley, Mr. Hay said it appeared that the substance involved was urine. She said it did not smell like urine. On cross-examination, Ms. Tingley said Mr. Hay told her that

"everything was fine," but did not use the word "safe." She maintained that the Insurance Company told her the house was safe, that she believed this, and she and the children moved back in as a result. [ 27 ] Ms. Tingley said she believed that she and the children moved back into 150 Silestria Drive on Halloween, 1991. She said she soon began to experience some of the same symptoms she had experienced after the break-in. She said she called Mr. Hay, who said the house was clean and safe and that her symptoms were probably related to materials used by the cleaners. Her symptoms continued and became worse.

She said she asked Mr. Hay about the testing and about the cleaning, and he responded that he would not do any more testing or cleaning of the house, or cleaning of clothes, and that her sickness was not his concern. Ms. Tingley testified that she developed bladder problems, and that she and Todd had rashes, outbreaks on their lips, runny noses and bleeding. Nevertheless she signed off on the insurance claim. [ 28 ] After the house had been cleaned, the carpet spot-cleaned and clothes cleaned, Ms. Tingley was still unsatisfied with the condition of the house and its contents. Around November 1991, Ms.

Tingley testified, she contacted a manager at Wellington and arranged for Mr. Hay and Ms. Strong (a senior official at Wellington) to come to the house. Her friend, the plaintiff Margaret Burton, was also present at this meeting. Ms. Tingley showed them stained clothing that she wanted replaced. Mr. Hay asked for receipts. Ms. Tingley said she requested a lump sum for her clothes and bedding, and Kelli's clothes. She said Mr. Hay offered $2500, then $3500, which she accepted because she was "hitting [her] head against a brick wall." On cross-examination Ms. Tingley was referred to handwritten notes of Ms.

Strong, dated November 4, 1991, which included a list headed “problems”, numbered 1-7. This list included the notations “House not cleaned properly”; “carpet had to be cleaned twice”; “chemical is still in the carpets [and] on walls”; “stereo wasn’t delivered in time for guy to hook it up”; “Scotch Guard wasn’t done properly”; “says there is semen all over her [daughter’s] window”; and “Both [Pat’s] and her [daughter’s] clothing aren’t salvageable not cleaned properly”. [ 29 ] Ms. Tingley said she and Kelli showed Ms. Strong and Mr. Hay stained clothes, including a pair of Kelli's jeans, which Mr.

Hay said could still be worn. Kelli began to cry, and Ms. Tingley asked Ms. Strong, "are you going to do anything?" They then went upstairs and she pointed out a stain on the wall that the cleaners had not been able to remove. She described it as a "grey oily stain" seeping through the wall. She said Ms. Strong told Mr. Hay to have it cleaned. She showed them stains on a wall in Kelli's room as well. She said the stains could only be seen at a certain angle or when the lights were on; the wall was full of shiny spots. On opening the blind in Kelli’s room, she said, they saw a stain on the window which Mr.

Hay said looked like semen. Ms. Tingley said Ms. Strong told Mr. Hay to have the windows cleaned and the room and other areas painted. [ 30 ] Todd Smith said he saw spots on the carpet and walls throughout the house after the break-in and before the visit to the IWK, Ms. Tingley agreed the stains disappeared when the cleaners washed them off, but said they reappeared later and could be seen in certain light or from certain angles. Todd Smith also said the stains reappeared after the cleaning. [ 31 ] Ms. Tingley said she brought up the plaintiffs’ health problems on an occasion when Ms.

Strong and Brian James were at the house. Mr. James owned James Proper Care, the company that Mr. Hay engaged to clean the house. Ms. Tingley told Ms. Strong that she had blood in her urine and masses in her breasts, to which she said Ms. Strong responded that she had problems with her own breasts and that the other issue could be an infection. [ 32 ] After November 1991, Margaret Burton, would occasionally stay at the house. Ms. Tingley said Ms. Burton never lived at Silestria Drive on a permanent basis. She said she did not recall Ms. Burton staying longer than seven days on any one occasion. Ms.

Tingley said she and the children were sick, and Ms. Burton became sick as well as turning "yellowish orange." [ 33 ] Ms. Tingley identified several occasions when she told Mr. Hay, or someone else at Wellington, that she was having health problems that she attributed to toxic chemicals in her home, including when she went to Ms. McKay's after leaving the IWK, and when she told Mr. Hay she was sick when she requested hotel accommodations. She said that after moving into the hotel, she informed Mr. Hay that Todd was having breathing problems, and that she was experiencing headaches, diarrhea and severe thirst.

He agreed to an allowance for additional fluids. She also said she told him she had a rash from her nightshirt, and that when she moved back into the house, she had a runny nose and blisters on her lips. Mr. Hay replied that these symptoms resulted from the cleaning. [ 34 ] Ms. Tingley said Mr. Hay knew about the blood in her urine, headaches, and bladder problems shortly after they returned to the house. She said she told him about her bladder problems in 1991 or early 1992.

She testified, on cross-examination, that prior to October 2, 1991 she had had severe diarrhea, cramps, headaches, earaches, red ears, enormous thirst, burning in the back of her throat, burning eyes and perhaps a running nose, while the blood in her urine and bladder pain appeared later. She said that between September 28 and October 13, 1991, when they left the hotel, she also had "chills and was flushed." She said Mr. Hay knew of these symptoms in 1991 and 1992, and that he said he was "not dealing with health issues, only house issues."

[ 35 ] Ms. Tingley testified that she and the children became ill, as did Ms. Burton, who turned “yellowish orange”. Ms. Tingley testified that Dr. William Deagle, who became the plaintiffs’ family physician in 1993, told her she should not stay in the house, and that she should not remove anything from the house, so that they would not take any contaminated items to their new environment.

She also said that Craig MacMullin, a chemist with Fenwick Labs, who tested pieces of carpet and paint chips from the house and provided a report listing the chemicals found, said the house was not safe for her, but might be safe for someone else. Mr. MacMullin denied making such a statement. [ 36 ] In late 1993, the plaintiffs moved to an apartment on Forest Hills Parkway in Cole Harbour, where Ms. Burton began to reside with the family on a permanent basis. They remained in this apartment for less than a year, moving because of exhaust fumes from the highway.

They moved into another apartment in the same complex, where they continued to have problems due to "off gassing” from the carpets and paint fumes. Ms. Tingley said she had seizures due to the fumes. They then went to stay with her brother, Mark, on Pelzant Street, in Dartmouth. [ 37 ] It is appropriate at this point to review the evidence of other witnesses who gave evidence respecting the investigation of the break-in and the subsequent investigations and clean-up. Kim Tingley [ 38 ] Kim Tingley is Ms. Tingley's younger brother. In September 1991 he was working the evening shift at a restaurant in Halifax.

He lived in Ms. Tingley's basement, which he accessed by a side entrance. He testified that on the evening of the break-in, he arrived home around midnight. His bike, which was under a window, had been knocked over, and the window had been jimmied out. He called Ms. Tingley in Sydney, and called the police. Two RCMP officers came and made observations for about half an hour. He repaired the window, ate and went to bed. [ 39 ] In a statement to Bill Wilson of the Insurance Crime Prevention Bureau, dated April 20, 1994, Mr.

Tingley gave a different description of how he came to discover that the house had been broken into. He said he arrived home, entered through the side door, and watched television for 30 to 45 minutes, then noticed a draft, which he found to be coming from the pried-open basement window. On discovering the window was cranked out and the metal rods were bent, and that he could not close it, Mr. Tingley said he realized that the house had probably been broken into. He testified that the version in the statement was probably more accurate than the version he had given in court, since it was more detailed.

The statement also referred to his bike being knocked over, without mentioning the vapour barrier being torn down. He said that for an intruder to gain access, once they opened the window, they would have needed to knock down the vapour barrier. [ 40 ] Mr. Tingley's statement indicated that he went upstairs to Ms. Tingley's bedroom, where he noticed the dresser was pulled out from the wall and the back of the dresser was wet. He said clothes in her closet were pushed aside as if someone was looking to see what was in the closet.

He agreed that the statement suggested he had noticed the dresser that night, which he had not recalled in his earlier evidence. [ 41 ] Mr. Tingley testified that he saw stains on the walls, on the carpet below the wall stains, and on the dresser. He saw them in Ms. Tingley’s bedroom, the upstairs hallway and in the stairwell. Only the stains on the back of the dresser were still wet. He did not see a fog or a mist, nor did he smell any pesticide or urine. He did not recall an ammonia smell the morning after the break-in.

He was referred to the statement he gave to the Insurance Crime Prevention Bureau, in which he said that he noticed an ammonia smell upstairs the day after the break-in. He said the statement did not help him recall smelling anything unusual the day after the break-in. He also noted that in the statement he said that Ms. Tingley had returned home in a couple of days, but it was actually eight days. He agreed that in the statement there was no mention of him being itchy.

He agreed it appears in his statement that the ammonia-like smell was upstairs in the bedroom, where the clothes had been stained and the back of the dresser was damp. [ 42 ] Mr. Tingley agreed that there were three versions of his evidence, as to whether he smelled urine: his discovery, the statement taken by the insurance investigator and his evidence in court. He could not say which was most accurate. On re-examination, he noted that in discovery he had said he did not smell urine. In the statement he said he smelled something like ammonia upstairs, which was not a reference to urine.

His evidence in court was that he did not smell urine, but an ammonia-like smell.

[ 43 ] Mr. Tingley said that when Ms. Tingley came home, she said she smelled fumes and saw stains on walls, carpet and clothing, which he had not noticed. She showed him colourless stains on clothing from a walk-in closet in her bedroom. She moved to a hotel, and he moved in with his mother. He said Ms. Tingley wanted him to move out. At the time, Mr. Tingley’s opinion was that there was nothing wrong with the house. He agreed that if Constable Turner had asked him, this is what he would have said. [ 44 ] Mr.

Tingley testified that he experienced itching, probably starting the day after the break-in, and continuing for the rest of the week. He associated it with being upstairs or having a shower. He had said on discovery that he could not recall if it was he or Ms. Tingley who first had itching. After he moved out it stopped. On discovery, he had said that he had installed insulation in the basement several months before the break-in. It was exposed insulation, which caused itching similar to the itching that he testified he experienced after the break-in.

However, he said that after the break-in he had itching after showering, while a shower would stop the itching from the insulation. [ 45 ] Mr. Tingley did not recall Ms. Tingley telling him about receiving a death threat. He also did not recall being told about the IWK visit, or that anyone at the IWK said no one should live in the house. He was not aware of Paula Robbins, a friend of Kelli Smith, having medical problems after staying at the house. He recalled Ms. Tingley saying that there were items from the house tested and medical tests were done on her and the children. On discovery he had said that Ms.

Tingley told him that toxins had been found in fatty tissue samples. [ 46 ] Mr. Tingley agreed that in September 1991 Phil Smith and Ms. Tingley were arguing about the children. He said Ms. Tingley told him she suspected that Mr. Smith had broken into the house. He did not think she suggested that he was trying to murder her. He was not aware of notes in the RCMP files that Ms. Tingley had said she did not trust him, and said she never told him that she did not trust him. He said it would surprise him if Ms. Tingley had suggested he was involved in the second break-in (which he denied). He did not know that Ms.

Tingley told Constable Turner that he was a compulsive liar. He denied that he would have told the police that his sister was “nuts.” Police Evidence [ 47 ] Constable. H. Gillis, then of the Cole Harbour detachment, was the first officer on the scene, and was in charge of the file, after the call was received at 2:17 a.m. on September 21, 1991. Kim Tingley showed him where the entry occurred. Cst. Gillis said he walked through the house, including the basement. He did not see any containers outside that could be used to transport chemicals. He did not smell anything and Mr.

Tingley did not say he smelled anything. He did not see any stains nor did Mr. Tingley refer to stains. He did not see a fog near the carpet. He said that when he arrived, Mr. Tingley said nothing had been taken from the house; however, Cst. Gillis pointed out that the TV and VCR were gone from the living room. Cst. Gillis said he came alone, and that Mr. Tingley was mistaken if he said there were two officers present. He said it appeared to be a normal break and enter. [ 48 ] Cst. Gillis said he was never advised that Ms. Tingley had received a death threat while she was in Sydney.

He said any exchange similar to that described in Ms. Tingley’s discovery – where she said she had told him about the death threat, and he told her she did not need to return from Sydney immediately – would have been noted in the file. He also said he was not told about such a call by Cst. Gerry Rice. He denied that Cst. Rice told him that anything that could absorb chemicals should be destroyed. [ 49 ] Cst. Gillis spoke to Phillip Smith. His notes indicated that Mr. Smith’s then wife had received a call from a male who said he was out to get him and Ms. Tingley, his former wife. Mr.

Smith said he did not believe that there was any poison, and that his wife had a tendency to “run off a bit with her mouth”. He had mentioned a custody issue as well. [ 50 ] Cst. Gillis's note of October 4, 1991, indicated that he spoke to Michelle Holzbecher of the Toxicology Section, and told her that he had not seen or smelled anything suspicious on the night of the break-in, and that she would “speak to Dr.

Grover and if she cannot get any additional information she will be returning my exhibits.” [ 51 ] Constable Ken Turner and Constable Angus Emberley, both now retired, were in the Cole Harbor detachment in September 1991. They went to the house with Ms. Tingley on October 2, 1991. According to Cst. Turner, at the entrance to the house Ms. Tingley said she could smell something and began coughing and hacking. She pointed out substances, but he could not see them. Kim Tingley was in the house preparing food. He said it did not bother him, and said his sister was “just crazy”. In response to the information that

Kim Tingley later testified that he smelled something, Cst. Turner said anything out of the ordinary would have been documented in the file. [ 52 ] Cst. Turner said Ms. Tingley pointed out items of clothing that she said were damaged, but he did not see, smell or feel anything on most of them. One sweater showed a small amount of powder or marking. He felt it through rubber gloves, and ran it under a tap when she suggested the substance was water solvent. She repeatedly asked if he could smell the substance, but he detected nothing. There was a yellowish spot, about the size of a Loonie, which Cst.

Turner thought looked like dry chemical from a fire extinguisher. Cst. Emberley thought it was detergent that had not totally dissolved. They did not find this substance on any other clothing. [ 53 ] Cst. Turner said he did not smell anything, and he experienced no irritation while he was at the house. He said his sense of smell was "keen". The protocol when a dangerous substance was suspected was to advise the appropriate government department and leave the house. Any health complaint by an officer would require all the officers present to be tested. [ 54 ] Cst. Turner said Ms.

Tingley did not point out any stains on walls, ceilings or carpets, nor did she mention receiving a death threat on the day of the break and enter. He said the protocol in such a situation would have been to document the statement in the file. He said he would not regard a statement like “out to get you” as a death threat. If an officer believed a threat was of consequence, it would be documented in the file. [ 55 ] Cst. Turner went to the house again on November 14, 1991, in response to another report of a break-in. On arriving, he saw a person who looked like Kim Tingley running off.

The person had not gained entry. There was no one in the house. He spoke to Donna McKay, who told him that Ms. Tingley was away. He learned that Kim Tingley had been evicted. Ms. Tingley later told him the intruder was probably her brother at the house to get his things, and said he was a “compulsive liar.” When told that Ms. Tingley denied saying this, Constable Turner said you do not fabricate notes. [ 56 ] Cst. Turner said it was his view that nothing was sprayed in the house, and he did not believe it was a legitimate break and enter. He believed some details were fabricated or exaggerated.

He agreed that he thought Ms. Tingley was unstable and that he might have used terms such as “crackpot” or “nutty as a fruitcake” in subsequent conversations with Cst. Emberley. He said he might have told Mr. Hay he thought that there was nothing to support a break and enter or that anything was sprayed in the house. He said he suspected early on that the file was a fraud. [ 57 ] Cst. Emberley testified that on October 1, 1991, he received a call from Constable Gerry Rice to take exhibits to the RCMP lab in Halifax. He took the items to the lab the next day and gave them to Michelle Holzbecher. Neither he nor Ms.

Holzbecher found any stains on the items, or any wetness on the dresser. She found nothing to analyse. Cst. Emberley agreed that if the back of the dresser was saturated with urine, even if it was dry, he would expect to smell urine. [ 58 ] Cst. Emberley went back to the house on October 2, with Cst. Turner and Ms. Tingley, to retrieve further exhibits for analysis. He said Ms. Tingley started coughing at the front door, and asked the officers if their eyes or throats were burning, to which they said no. Kim Tingley was in the house, and there was bread on the counter. Cst. Turner asked Mr.

Tingley if the contamination bothered him, and he said no. [ 59 ] Cst. Emberley went upstairs with Ms. Tingley. He said her daughter’s room was a mess, and she said the intruders had not been in that room. She directed him to a bag of clothes. There was a white patch, about half the size of his hand, about 3" x 3", on a sweater. He said it looked like undissolved laundry detergent. Cst. Turner thought it was chemical from a fire extinguisher. [ 60 ] Cst. Turner and Cst. Emberley did not seize any items on October 2, 1991. Cst. Emberley said they found no evidence of anything spread in the house.

He said that at one point, Ms. Tingley answered the phone and said the Department of Health was calling with the names of companies that could analyze the air. Cst. Emberley said he found nothing wrong with the air, He said they were with Ms. Tingley for one-and-a-half to two hours. They would have finished by 4:10 p.m. He was referred to a note in Mr. Hay's file, that read “4:10 Pat called [...] RCMP - went through the house with ins'd today - RCMP took clothing sample - white powder on it.” Cst. Emberley said they did not take any of the clothing with white powder on it.

[ 61 ] When Cst. Emberley and Ms. Tingley went upstairs, Cst. Turner spoke to Kim Tingley. Cst. Turner believed that Mr. Tingley said Ms. Tingley was a “nut case” or words to that effect. Cst. Emberley said Ms. Tingley did not tell him she had received a death threat on the day of the break-in. Other than the smell of which she complained, and the clothing in the bedroom, Cst. Emberley said Ms. Tingley did not direct him to anything else in the home that she said was contaminated.

He said she did not report that anyone had seen a fog-like substance in the house, and she did not ask him to take any items for examination. [ 62 ] Staff Sgt. Joe Marando was a constable in Cole Harbour in 1991, and was involved in the investigation. He recalled seizing exhibits, preparing them for the lab and returning them, although he did not recall the results. Staff Sgt. Marando said he went to the house after Donna McKay informed him that Ms. Tingley and the children had gone to the IWK.

He spoke to Kerry Smart at Poison Control, who said the substance might be a pesticide made by Ortho, possibly water-reactive manganese. His notes include the phrases " [w]ater reactive, containing manganese, and there is ethylene, bipdithio-carbonate, carbonate herbicides and fungicides. " He said these were possibilities for what the substance might be. Staff Sgt. Marando also spoke to Dr. Morton, who did not know what the substance was and could not treat it. He said the children would be washed and released that night. He said they would be fine but they should not go back into the house.

He made no comment on Staff Sgt. Marando's well-being, if he went in the house nor did he say that any clothes he had on should be destroyed. Staff Sgt. Marando said he did not have any concerns about the house not being safe. He understood that the doctor was only being cautious. [ 63 ] Staff Sgt. Marando said he seized several items after speaking to Donna McKay, who told him the substance was on clothing and furniture, and directed him to the upper level of the house. He did not see or smell anything.

He seized a dresser panel from the master bedroom, purple and white sweaters (also from the master bedroom), a pink sweater (from Kelli Smith's bedroom), a pink robe from a closet in the study and a blue towel from the linen closet. Staff Sgt. Marando said he did not see anything that looked like a foreign substance on anything he seized, and that nothing he seized was wet. He did not recall an odour in the house, and did not notice any stains on the walls, ceilings or carpets. He did not notice any ill effects, such as coughing, and he was not aware of Ms. McKay having any ill effects. Staff Sgt.

Marando did not recall Ms. McKay saying that Ms. Tingley had received a death threat on the day of the break-in. He said it would be in the file, as it would be an escalation from a property damage claim to physical violence. [ 64 ] Constable Gerry Rice, in his discovery, said he was first at the house on September 29, after receiving a call from Kim Tingley reporting a break-in and the removal of various items, including the VCR, TV, CD player and CDs. Ms. Tingley told him that she did not trust her brother, none of whose things had been touched. On being told that Ms. Tingley denied saying this, Cst.

Rice acknowledged that he did not recall this, but it was in his notes; he said she might not have said it directly, but that she would have said something that led him to believe she did not trust her brother. Cst. Rice said the talk of threats “did ring a bell.” [ 65 ] Cst. Rice said Ms. Tingley told him that she found a yellow substance on her clothing, similar to nicotine or a light burn. Cst. Rice said he could not see the marks she described, and could not smell nicotine on the clothes. Ms. Tingley wanted the police lab to check the clothes. He told her that it could take three to four months.

He said he had been told by lab personnel that it would be low priority. Cst. Rice said it was Ms. Tingley who suggested there was something on her clothing, similar to nicotine or a light burn. He did not observe it himself. Craig MacMullin [ 66 ] Mr. MacMullin was qualified “as an expert chemist, lab technician and WHMIS instructor with training and experience in indoor air-quality investigation, operating various test equipment including gas chromatography mass spectrometry, interpreting the results, and identifying chemicals”. [ 67 ] Mr. McMullin testified that Ms.

Tingley contacted Fenwick labs and indicated that samples had been taken after the break-in, but were no longer available. He understood that the Nova Scotia Research Foundation had concluded the substance was urine. Fenwick did not collect samples. This was the client’s responsibility. Mr. McMullin said if Ms. Tingley could get a sample of the stained area of the carpet and a blank piece of carpet, he could eliminate what was common to both. She also provided paint chips. [ 68 ] Mr.

MacMullin said he keyed in on volatiles, because he was told there was a smell, and he concluded that the presence of an odour indicated something volatile. In the carpet he found hydrocarbons, as he did in the paint samples, but he also found aromatic compounds, related to benzenes. The percentage that would have been sufficient for a conclusion depended on a number of factors. Independent of the percentages he found, he said none of these were found in the blank carpet he tested.

In his report, he added, “since so much time has passed since the incident in question, it is impossible to tell whether other compounds not noted here were present and thus compounded the exposure.” He said if there is contamination by volatiles, there is potential for evaporation.

[ 69 ] Mr. McMullin concluded from his testing that there were hydrocarbons, which could not be specifically identified. Not knowing what materials the cleaners used, he could not say that this had not come from the cleaners. [ 70 ] As with the carpet, the percentages of the chemicals he found in the paint chips did not indicate anything about the quantities of the chemicals. He did not do any analysis to see if these were typically found in carpet or paint. Mr. MacMullin said he had no basis to disagree with Dr.

Jean Gray’s statement that the substances found in the carpet and paint did not surprise her, as she would have expected them to be found there. [ 71 ] Mr. McMullin said he did not test for urine, in the carpet or the paint. He said there was a visible stain on one piece of carpet. He said he could not test for pesticides, which are semi-volatiles. The paint chips had a visible area where he could see the flat paint and a sheen on top of it. Based on his analysis, he could not reach any conclusion as to whether Ms. Tingley or the children were exposed to chemicals in their house. Mr.

McMullin said he never told Ms. Tingley, or anyone representing her, that the ideal situation would be to have the house bulldozed and a new house constructed. He said he could absolutely not draw such a conclusion. He agreed it would have been ridiculous for him to have made such a statement. Dr. Amares Chatt [ 72 ] Dr Amares Chatt was a Professor of Chemistry at Dalhousie University. He retired in 2010. His research area is analytical chemistry, involving the detection and identification of major and minor trace elements, using neutron activation, using a “slowpoke” nuclear reactor. Dr. Chatt met Ms.

Tingley in November 1991 and she provided carpet samples for analysis, which he gave to an associate, Dr. Jiri Holzbecher. [ 73 ] Dr. Chatt said Ms. Tingley complained of allergy and fatigue. He did not think she mentioned a police investigation. He said that if she had said the police were involved, he would have recommended that she take the samples . to their lab. He did not recall her saying that there had been testing done by any other labs, nor did he remember her mentioning involvement with Poison Control.

He said he would not have done the analysis if Poison Control were involved, or there would be legal implications. [ 74 ] The only health symptoms Dr. Chatt recalled Ms. Tingley mentioning were fatigue and allergies. He did not recall hearing that anyone had reacted to carpet. Dr. Chatt said Ms. Tingley brought two small carpet samples. Dr. Holzbecher, the associate who did the analysis, reported “nothing out of the ordinary”. They were looking for contamination with metal elements. The analysis indicated that the carpet did not contain any elements that the clean carpet did not have. There was no arsenic. Dr.

Chatt did not recall Ms. Tingley providing a vial of grey powder or a picture frame. Professor Tang Lee [ 75 ] Shortly before he was scheduled to testify, plaintiffs’ counsel advised the court that Professor Tang Lee would be unable to attend at trial for medical reasons. Plaintiffs’ counsel applied to introduce Professor Lee’s four reports, three of which commented on reports filed by defence counsel in respect of potential witnesses for the defence and an additional report outlining Professor Lee’s views on the procedure for indoor air quality examination of a house.

Following lengthy submissions , including references to Professor Lee’s reports and discovery examinations, he was qualified as an “expert Professor of architecture and building science and indoor environmental quality capable of giving opinion evidence as it relates to indoor air quality, the proper tests and procedures pertaining to same.” He was not qualified to discuss health risks arising from chemicals that may or may not be found in buildings.

His reports, with some deletions, were permitted to be filed as expert reports. [ 76 ] A consideration of the evidence of Professor Lee must necessarily start with a letter he addressed to plaintiffs’ counsel on September 2, 2004: Thank you for your letter of August 12, 2004 containing the report from Jacques Whitford Environmental Limited. The report refers to several laboratory anaylses of blood samples taken from Patricia Smith, Kelli Smith, Todd Smith, etc. Unfortunately I am not qualified

to comment on this report. As I reviewed this case, I am at a disadvantage in formulating a definitive opinion to assist your client. The major difficulty is that I did not conduct the air sampling of the house, or even examined the house and its contents. The photographs and video tape shows some staining that can be from many other causes. This will put me at a disadvantage in making a good case.

The report from OCL Services Ltd. conducted a limited air sampling of the house and in their opinion, did not find any indoor air quality problems in the house. [ 77 ] Nevertheless some five days later, on September 7, 2004, Professor Lee provided his comments on the report prepared by Nova Scotia Research Foundation. By further letter dated January 27, 2005, he commented on the report prepared by OCL services Limited. On July 1, 2005 he provided a further report, commenting on the report of Jacques Whitford Environmental Limited of September 3, 2002.

By letter dated July 3, 2005 he described a “Procedure for Indoor Air Quality Examination of a House.” Nowhere is it explained how Professor Lee was now able to provide anything more than “conjecture based on secondhand reports”, as he described in his letter of September 2, 2004.

His comments on the Jacques Whitford report, which was not tendered at trial, are troubling in light of his own statement that he was “not qualified to comment on this report.” His comments on the OCL Services Limited report, which was also not tendered at trial, are also troubling in light of his opinion, without adverse comment, in his September 2, 2004, letter that they “conducted a limited air sampling of the house and did not find any indoor air quality problems in the house”. [ 78 ] Notwithstanding his observation on September 2, 2004, apparently having viewed photographs and the video tape, that the staining could be “ from many other causes”, Professor Lee was prepared to state, in his September 7, 2004 letter: From the video taken on May 11, 1994, there was considerable evidence of chemical staining throughout the entire house including the walls, ceilings, bulkheads, carpeting, around light fixtures, at the junction between wall and ceiling, etc.

Even from the poor video quality, it was clearly seen that some of the stains were in the shape of spots and some streaks. The stains were especially noticeable on the carpet, with clear demarcation where the chemical spills had extended. The extent of the chemical spills was clearly seen on the carpet. In some locations, the stains reached the edge of the carpet and corners of the room. [ 79 ] On discovery in speaking about the video, Professor Lee said he reviewed it as soon as he received it. He said he only reviewed it once because in doing so he became “very dizzy”.

He said he thought he played back certain parts, but was unable to recall them. Needless to say, equally troubling is how Professor Lee, apparently without having again viewed the video, could say that what he was seeing were “chemical spills” when five days earlier he had said they could be “from many other causes”. This is one of many troubling aspects to the reports of Professor Lee. As another example, addressing the report by Michael Robicheau, of Nova Scotia Research Foundation, Professor Lee comments: This one – page report from NSRFC conducted only one test on a sample taken from a blouse.

The laboratory results were noted as: “Sodium 4:Potassium 0.6:Chloride 6: Sulfate 3" It is not known what the unit of measure is. The report states that this refers to ratio of the substances in the blouse. Is this referring to a percentage of total substances found in the blouse? If so, what other substances were found in this sample as the total only represents 13.6%. This report is very sloppy and not scientifically rigorous and thus its statement is not reliable. [ 80 ] In responding to Professor Lee’s statement, Mr.

Robicheau said: ..... for some reasons I don’t understand, he doesn’t understand what a ratio is and then for some reason he added them all up and made it to a percent which is more absurd to me. I’m not sure why he wouldn’t have checked with one of his colleagues to ask them what a ratio was. But it’s like saying in this building there’s 200 men, there’s 200 women - the ratio of men to women is 2 to 2. So that means there’s 4% of the people in the building are men and women, what are the other 96%. It makes no sense to me. And that’s fairly basic.

I really don’t understand why he couldn’t understand what a ratio is.

[ 81 ] Mr. Robicheau was also referred to Professor Lee’s letter of September 7, 2004 where he wrote that NSRF was a “laboratory for analytical chemistry” whose “primary if not exclusive service is to analyze samples brought to the laboratory.” Mr. Robicheau said this is “completely incorrect”. He said the Nova Scotia Research Foundation had a range of people doing a range of things. In reference to Professor Lee’s comment that laboratories typically do not have the expertise or ability to conduct on-site investigations, he disagreed saying it depended on the individual lab. [ 82 ] Mr.

Robicheau responded to Professor Lee’s description of “chemical staining” throughout the house (in his September 7, 2004 letter). He noted that Professor Lee’s comments were based on a video that was made several years after he was in the house. He said he did not see any of this when he was in the house. He also responded to Professor Lee’s comment that, “[m]ost shocking was that the only laboratory test conducted was on a sample of a blouse.” Mr. Robicheau commented that he was not sure why Professor Lee would have been shocked, as this was the subject matter of the report.

He added that Professor Lee might have mistakenly thought it was an air quality test. [ 83 ] On cross-examination Mr. Robicheau indicated he agreed with some, and disagreed with others, of the comments in Professor Lee’s letter of July 3, 2005. In reference to Professor Lee’s comment that, “[a]s most air contaminants are odourless, colourless and tasteless, sophisticated and sensitive instruments must be used to identify the substances of the chemicals and its impact on occupant health,” he said most contaminants are not odourless, colourless or tasteless.

As to Professor Lee’s comment that “[s]ufficient samples of the contaminated materials including building materials, furniture, clothing, finishes, must be gathered and sent to an appropriate laboratory for analysis”, he agreed it would be a good idea to gather samples of contaminated materials and have them sent to lab. [ 84 ] In his letter of July 2005 regarding the Jacques Whitford report, Professor Lee wrote: The Jacques Whitford report casually mentions that trimethylbenzene and chloloroform was “detected” in 1993 and 1994 but failed to consider how significantly elevated and alarmingly high levels were found in the occupant’s bodies.

Fig. 1 shows the level of trimethylbenzene in the occupants as compared to the average population. This is strong evidence that these documents were exposed to trimethylbenzene is sufficient quantities to have these levels in their body. [ 85 ] A further criticism by Professor Lee is that the Jacques Whitford report “failed to acknowledge three other substances that were found elevated in the occupants blood and adipose tissue including xylene , benzene and 1,1,1- trichloroethane .” In respect to xylene he stated that in Ms.

Tingley it was 1.6 ppb as compared to the average population which will have less then 1.0 ppb. He then states that xylene , as well as benzene are carcinogens , use of which are strictly regulated. He added, “[e]xposure to such substances that can be detected in the body must be severe and intentional.” (Italics in original) [ 86 ] Dr. Mark Cullen testified for the defence.

He was qualified “as an expert physician in the fields of occupational and environmental medicine, general internal medicine, epidemiology and the public health, capable of giving opinion evidence with regard to the diagnosis and treatment of health conditions prevalent among people with concerns about the environment, including but not limited to the diagnosis and treatment of multiple chemical sensitivity, the effects of chemicals and their impact on human health and the assessment of indoor air quality.” With minor modification Dr. Cullen was so qualified. Dr.

Cullen commented on Professor Lee’s letter of July 1, 2005: The letter of July 1, 2005 describing the results in blood and fat from Accu-chem Laboratories contains many erroneous and problematic assertions that again lead me to question Mr. Lee’s fundamental knowledge of environmental health. First and foremost, the presentation of blood and fat tissues tested and the discussion of the results demonstrates complete lack of understanding about how trace foreign materials are assessed in body fluids and how to interpret them.

First, any meaningful evaluation of laboratory tests such as these, which are nonstandard and unvalidated (see below), requires at a minimum a careful description of the comparison population to whom values will be referenced, the circumstances under which testing was performed and the techniques for quality assurance used by the laboratory to validate reported numbers. To describe, as is done on the first page of the July 1 letter in regards to xylene 111-tricloroethane and benzene, in such terms as “twice the average population” or “higher than the average population”, is meaningless.

But this same approach is taken graphically on the subsequent two pages regarding blood levels of trimethylbenzene and fat tissue levels of chloroform. In reality, assuming that appropriate comparison or reference population data are available (which I believe is false) and that it has been performed in a quality laboratory (also false in my view), results are typically expressed in relationship to percentiles within

reference populations. This approach is not arbitrary, but has been adopted by convention because all of us have hundreds or thousands of trace exogenous chemicals in our blood . The range of findings are among individuals with no known source of exposure (such as chemical-using occupation) is often ten or hundreds folds from the relatively lowest, say the 5 th percentile, to the relatively highest, say the 95 th percentile.

Given that sort of distribution to talk about a value of two parts per billion being “twice a value of one part per billion” absent an appreciation of how the material distributes in the unexposed population suggests Mr.

Lee has no acquaintance with the emerging scientific literature on biomonitoring, now at least 20 years old. [ 87 ] In his letter of January 27, 2005, commenting on the report of OCL Services Ltd., Professor Lee wrote that despite the “lengthy offgassing period” of 18 months, the laboratory found “several substances (hydrocarbons)” in one or more of the three sampled rooms, including n-decane, n-undecane, n-dodecane, p+m xylene, 1,4-dichlorobenzene, and 2-exyhexenal. He wrote that “[w]hile these substances were low, 2-exyhexenal were extremely high in all three rooms”.

This substance, he wrote, was an “oxygenated component that is known in offshore oil and gas installations to have occupational exposures and health risks.” Dr. Cullen, in his December 29, 2005 letter, commented: On the following page (following the list of six chemical substances) appears the following comment: “while these substances were low, 2-ethylhexanol were extremely high in all three rooms...” Without commenting on the relevance of these materials to the health of the house occupants, I find myself again perplexed by the evident lack of thoughtfulness and precision in the description of results.

What, may I ask, is the basis for the

interpretation that 76 or 91 or 57 nanograms per gram of carpet represents a “high” value? Although surely the number is higher than, say the detection limit or the values of the other organic materials obtained, a relationship to human health cannot be inferred without knowledge of the route of exposure and likely dose. All that can be meaningfully said is that there is more to ethylhexanol on the carpet sample than there is, for example, toluene. Any inference regarding human exposure or health from this carpet analysis is unsupportable. [ 88 ] Dr.

Cullen continued with further criticisms of Professor Lee’s letter: A similar criticism pertains to the discussion of the Fenwick laboratories limited carpet and paint chip analysis on the following page. While (unquantified) trace substances of various organic materials were identified by Fenwick, the assertion at the top of the sixth page of the letter that “Fenwick Laboratories Ltd. declared that the presence of the substances may lead to the deleterious health effect experienced by the occupants” is an unconscionable repetition of a flawed inference made by the laboratory.

In the Fenwick report itself there is absolutely no quantification which would allow estimation of the amount of material actually present in the carpet and paint chip, there is no information regarding the source of the materials identified in the paint chip and carpet and most importantly, no information whatsoever about potential routes of exposure of the individuals living in the house that might pertain to their health.

For an environmental expert to corroborate this sort of disinformation speaks either to a failure to understand the basic fundamentals of toxicology in relationship to exposure dose or the lack of understanding of what the laboratory analysis actually purports to show. Finally regarding this letter, there is a

section on health effect in which Mr. Lee points out what he believes is apparently corroboration between the Fenwick carpet and paint analysis and the Accu-chem blood and fat analysis to which I will come shortly. In point of fact there is almost no correlation whatsoever between the small number of volatile organic materials (among literally thousands the method could detect in theory) measured in Fenwick and the small number with measurable levels in blood of the patients in this case. It is particularly ironic that Mr.

Lee mentions it in view of the fact that the source of the chloroform measured in adipose tissue in three of the four patients not only could not be identified in their blood but also has appeared in no environmental specimens including this one! [ 89 ] In respect to his criticisms of the visual examination by Mr. Robicheau, and his failure to notice stains or spots that Prof.

Lee observed on the video of May 11, 1994, in his discovery of May 18, 2007, Professor Lee agreed that a person in the house and viewing a spot or stain would be in a better position to comment on what it was. [ 90 ] In his discovery of February 9, 2007 Professor Lee had an exchange with defence counsel respecting the scope of his expertise. He mentioned that his expertise was broader than the design of buildings to minimize indoor contaminants. As to the other areas, he said: A.

Looking at energy conservation; recycling of heat, extracting heat from exhaust air, extracting heat from sewers to heat buildings; the building envelope, which is to maintain the integrity of the building envelope so it does not leak water, doesn’t have condensation that can manifest into mould growth; the area of using renewable energies, like solar, to heat water and air; a variety of different things related to the built environment. Q. Right.

But I guess, again, my impression of what you’ve just described is that the main focus or your area of expertise is more with regard to the design and construction of better buildings as opposed to the effects on health of contaminants that are in the air.

A. That’s partial. You cannot divorce occupants from the design of buildings. What good is a beautiful-designed building if people inside are sick? So, therefore, my focus has been to provide a quality, durable environment in which it would maintain the health of the individuals inside. You cannot divorce those two.

For example, if a building leaks, it’s certainly going to compromise integrity and value of the building, but it’s also going to manifest into mould growth and other types of problems, including structural problems, and that’s going to certainly compromise the health and safety of the individuals inside.

So it’s all interlinked. [ 91 ] Clearly Professor Lee’s expertise is limited to designing buildings and structures that provide a “quality, durable environment in which it would maintain the health of the individuals inside.” His reports, and particularly his criticisms of the investigation and report by NSRFC to the extent presented in the course of this trial, extend well beyond the scope of his expertise both by training and experience.

Perhaps it is no better stated than when he, in his September 2, 2004 letter to counsel for the plaintiffs, wrote: Furthermore, I believe the case hinges on the medical evidence of chemical exposure and its impact on their health. A physician would be more qualified than I to formulate such an opinion. I do not want to mislead you in thinking that I can provide substantive arguments to help your case. As it stands, the best I can do is conjecture based on second hand reports. As such, I wish to be relieved from consulting you on this case.

I will send back all of the documents to you shortly. [ 92 ] The four letters provided by Professor Lee can be described in one word, “troubling”. Where there is contradiction or contrary conclusions in respect to when and how to conduct an indoor air quality examination, I prefer the evidence of Mr. Robicheau to that of Professor Lee. Where there is contradiction or contrary conclusions in respect to the

interpretation of health effects from the reports of Accu-Chem Laboratories or Fenwick labs, I prefer the evidence of Dr. Jean Gray, as well as Dr. Cullen. Larry Hay [ 93 ] Mr. Hay testified that part of his duty as an insurance adjuster was to find out what had happened, whether it was covered by the policy, and what coverage, if any, applied. He had an obligation to the insured and to the insurer,Wellington, to adjust the claim. This obligation would extend to the occupants of the home as well. He was required to contact the insured, find out what had happened, quantify the damage and loss and settle the claim.

In 1990 – 1991 Gail Munroe was his supervisor. He could not recall if Donna Strong had been a supervisor for a short period, prior to Ms. Monroe, or was a resource person. She was not his supervisor in the fall of 1991, but became his supervisor later. [ 94 ] Mr. Hay testified that until the defendants retained counsel, he had not considered that Ms. Tingley was involved in a fraud or that she was not telling the truth. At no time did he think she was faking things or making things up, he said. Later, he said that up to November 1, 1993, the only reason he would not have believed Ms.

Tingley, was her failure to substantiate some of her allegations. [ 95 ] Mr. Hay said he believed he first spoke to Ms. Tingley while she was in Sydney, when they arranged to meet on her return to Halifax. His Day Timer indicated that his first meeting with her was on September 30, 1991. He denied that she told him during their first phone call about receiving a call from someone who said that Ms. Tingley had ruined their life. He said he first heard about a death threat from Mr. Proudfoot, the defendants’ counsel at the time, or at a meeting at the RCMP office, some time later.

He said that if she had told him about a death threat, either while she was in Sydney or at any other time, he would remember. [ 96 ] Mr. Hay said his office received a phone call from Ms. Tingley before he met with her. The note of the call said, “chemical sprayed on her & her daughter’s clothing - gone through to the wood RCMP on the way over!” He called Ms. Tingley, who told him that items had been taken, including clothes, that there were spots on clothes that remained and that clothes in drawers were soaked. She wanted the RCMP to investigate what was sprayed on her clothes.

She thought it was a pesticide or bleach. She said she had put something on the previous night and broke out in a rash. Ms. Tingley also said a dresser was damaged, that the intruders had been in her daughter’s room and that there was blood on the carpet. She said she did not have any suspects. Mr. Hay denied that these notes were from his visit to the house, saying they were from the phone call that preceded the visit. He said she did not say why she thought a pesticide or bleach had been sprayed, nor did he ask her.

[ 97 ] Mr. Hay said he went to the house around 3:15 p.m. on September 30, 1991. He said the children were present, as well as an RCMP officer, whose name he did not recall. [ 98 ] Mr. Hay said that Ms. Tingley may have shown him the top that she said she had put on, but he did not ask to see the rash, and did not question it. He accepted it. She said the top came from a drawer, but she did not say she had washed it before trying it on. He said he did not detect any smell on the clothing.

He said he did not stick his nose in the drawer, but that he was close to the clothing. [ 99 ] After the RCMP officer left, Mr. Hay said, Ms. Tingley showed him around the house, including the dresser that had been soaked. The clothes in the bottom of the dresser appeared wet, or as if they had been wet, but he did not touch them. Ms. Tingley did not point out any spots or discolouration on the walls or carpets. Mr. Hay said he saw graphite and mud on the carpet. He said Ms. Tingley told him about items that had been taken, including electronics. She did not show him any of Kelli’s clothing that was wet.

He denied that Ms. Tingley expressed concern that day that the substance might be in other parts of the house, but was not then observable because it had dried up. He said on discovery that Ms. Tingley was concerned whether what was on the clothes might be elsewhere in the house and had dried up. At trial Mr. Hay said he did not recall this. Upon further reference to his discovery, Mr. Hay said that this statement related to events after the IWK visit. [ 100 ] A note in Mr.

Hay’s file dated October 1, 1991, indicated that he spoke to Kim Tingley, who told him the RCMP had taken the back of the dresser, and that apparently Ms. Tingley’s son had stepped into the bath the previous night and his feet had started burning, so they went to the hospital, and the hospital had thought it was a pesticide. [ 101 ] Mr. Hay denied the suggestion by Ms. Tingley that she had offered to provide him with the records from Poison Control. On discovery he had said that while the family was at Cambridge Suites, Ms.

Tingley had told him she had records of Todd’s visit, but it was only the outpatient report, and was limited to his burning feet, or whatever the problem was at the time. Mr. Hay did not dispute that at his discovery he said he believed that while at the Cambridge Suites Ms. Tingley was talking about health problems and that he had said, “I can only deal with the house. If the activity at the IWK helps us identify what it was, that’s great. But the policy does not extend to cover you or your family’s health.” [ 102 ] Mr. Hay said that at some point, he was informed that a friend of Kelli Smith had become sick.

Although he received the phone number of Paula Robbins’ parents, he never followed up about the complaint. He relayed what Ms. Tingley told him to Nova Scotia Research Foundation. [ 103 ] Mr. Hay testified that his notes dated Nov. 5 1991 could have been made after a meeting at Ms. Tingley's house, although he had previously stated that he did not believe he was at the house that day. He denied that Ms. Strong was present on this occasion. He also denied any discussion about damage to Kelli's jeans. After being referred to a passage in his discovery that suggested that Ms.

Strong may have been present at the house on November 5, Mr. Hay said this was before he had an opportunity to review the cheque that was issued on November 21, when Ms. Strong was present. He said Ms. Strong was only present once when he was there. He said both of them signed the cheque and that the cheque was issued while they were at the house. [ 104 ] On discovery in October 1996, Mr. Hay referred to a notation in his day timer of "8:45" and "Pat Smith," and said this was possibly the time of the visit by himself and Ms. Strong. At this meeting, they discussed the alleged damage to clothing, and Ms.

Strong and Ms. Tingley looked through clothing in a pile on the floor in order to identify damaged items. A cheque for $3500 was issued. Mr. Hay said on discovery that there was no conversation with Ms. Burton, but she made comments when Ms. Tingley left the room. He recalled her criticizing the way Ms. Tingley was being dealt with. On direct examination he appeared to say he did not recall Ms. Burton saying anything. [ 105 ] Mr. Hay went to the house with Donna Strong on November 21, 1991, after the cleanup by James Proper Care. He was shown what was alleged by Ms.

Tingley to be semen on the window screen in Kelli’s room. There was also a “discolouration” on the wall in the bedroom, that could be seen in a certain light. He thought they agreed to seal it over and paint it. His recollection was that it was the size of a two dollar coin. Other than these things, and the graphite and mud on the carpet, Mr. Hay said he did not see any stains on the walls at any time. He saw evidence of stains on clothing that had apparently been dry cleaned. [ 106 ] Mr. Hay said he visited the house again with Scott McKnight, of OCL, who was retained by the defendants to prepare a report.

Mr. McKnight reported that he saw spots and stains that appeared to have been caused by some form of oily spray, as, for example, from a can of WD – 40. Mr. Hay said he did not see the spots or stains that Mr. McKnight was referring to. Mr. McKnight did not testify. [ 107 ] The defendant Wellington obtained an appraisal report, dated May 4, 1995, in which the appraiser stated: “[b]esides the fact samples were taken from carpets other carpets such as living room were partially stained.” Mr. Hay said he would have read the report, but did not recall it. He said he did not know what the appraiser was referring to.

Counsel also showed him a number of photographs in the report which were suggested to have indicated stains or discolouration. With respect to photographs where Mr. Hay acknowledged the appearance of stains, he said his attention was not drawn to the stains when he was in the house. Mr. Hay noted that the appraisal report is dated May 4, 1995, which was after he was in the house with Mr. McKnight in November/December, 1993. He said he could not say if the stain was visible in the house at that time. [ 108 ] Mr. Hay recalled seeing stains or discolouration in the video.

He said that when he was in the house between September and November 1991, none of the stains were pointed out to him nor did he see them. He did not accept that the stains were present after the break-in and before the cleanup. [ 109 ] Mr. Hay said he contacted the Nova Scotia Research Foundation shortly after his meeting with Ms. Tingley on September 30, 1991. He said he spoke to Bill Thorpe about testing to identify the substance. He said he told Mr. Thorpe that the substance was suspected to be a pesticide. He said Mr. Thorpe

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