A Sad, Mad, Mouldy Lawsuit

Article By Tim Mavko, Partner
and Member of RMRF’s Construction Law Team

Stachybotrys chartarum is nasty stuff. It’s one of the handful of environmental moulds known to be dangerous. When it shows up in buildings, it terrifies contractors and horrifies homeowners.

Several years ago Scott and Betty Tompkins found it in their Ontario home, growing on a wall in their daughter’s bedroom.

Mould needs moisture to grow, and the Tompkins thought they knew the source. Several years before they had replaced some older wooden windows with new vinyl models. The new windows came from Home Depot, which had hired a subcontractor to install them.

Unfortunately, the subcontractor did a poor job. Shortly after the new windows were installed, moisture appeared on the inside surfaces. During the next four winters condensation repeatedly formed on the glass when the weather turned cold, and then disappeared in the summer heat. The Tompkins complained to Home Depot; they all tried various things, but the problem never got solved.

During this time the Tompkins say their health deteriorated. They say their children fell sick more often with respiratory and allergy-like symptoms. They say their house felt cold and damp.

In the fifth winter, the Tompkins brought in an expert, who sampled the air in an upstairs bedroom. The expert detected stachybotrys chartarum and recommended that the room be sealed for remediation. The infected patch of wall should be stripped, cleaned and replaced. He further recommended that the rest of the house be tested for additional mould growth, and any further areas should be remediated as needed.

The Tompkins did not follow the expert’s advice. Instead of cleaning the known area, and then inspecting and dealing with the rest of the house, they moved their family out of the house and into a hotel. They stayed in the hotel for 79 days while they gutted their home. They stripped the outside walls down to the studs, demolished the interior walls, pulled up the flooring, pulled down the ceilings, and ripped out the ductwork. They then threw out much of their belongings. Their bedding, clothing, appliances, tables, chairs, mattresses, TV and stereo all went to the dump.

To pay for this they went deep into debt, adding to their existing mortgage, taking out a second mortgage, and finally charging $250,000 to their credit cards.

They then sued Home Depot and the installer for $550,000, that being the cost of demolishing and rebuilding the inside of their house, and of replacing their belongings.

The trial lasted 20 days.

The judge agreed with the Tompkins that new windows were not properly installed. He concluded that the windows were not properly set within the wall cavity, and were without sufficient insulation. This let cold air seep into the house, and meant that the inside window surfaces were cooler than the rest of the air in the house. When then warm, moist air hit the cooler glass, and condensation formed.

But this did not decide the claim, as the judge still had to determine the cause of the mould. And here the Tompkins had trouble. An expert testified at trial that there was no moisture or wetness on the drywall surfaces around the new windows. Rather, there was water-saturated insulation behind wood framing elsewhere in the house. More importantly, while the new windows were on the north wall, the mould was on the east and west walls.

The judge concluded that the condensation on the windows was not the cause of the moisture and the mould, but rather showed that there was pre-existing moisture inside the house from some other source. This other source was found to be bad mortar, plugged weeping holes, and improperly installed flashing – all of which existed before the new windows were installed. Since the new windows were not the cause of the mould, Home Depot and the installer were not liable.

The judge also concluded that the Tompkins’ reaction was unreasonable. Even if the windows were at fault, fixing the known mould contamination meant replacing less than 10 square feet of drywall. The cost of doing that, along with testing and other expenses, was around $15,000.

The full court decision can be found at Tompkins v Home Depot,CanLII 2 (ON SC)

This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.