Lawsuit issued against Thermëa spa village in Whitby asking $5 million in damages

A statement of claim citing Thermëa Spa Village in Whitby, its owners, managers and technical staff, as well as Durham Region and its public health inspectors has been issued at the Ontario Court of Justice, with the plaintiffs claiming $5 million in damages.

Seventy-one people from all over southern Ontario have signed on to the lawsuit, which was served by Justin Linden, a Bay Street personal injury lawyer.

Linden claims the defendants “knew and/or were advised by technical experts and staff” that the spa pool facilities, including and in particular, the Kallä pool, were not in proper working condition and were not ready to be open to the public.

“The Plaintiffs plead that one or more of the individual Defendants made the conscious decision to ignore the advice of the maintenance and technical experts and staff and opened Thermëa Spa to the public before it was safe to open and despite there being a clear risk to public health,” the statement of claim read. “The Plaintiffs plead that the Defendant, Durham, should not have allowed Thermea Spa to open to the public, considering it was not safe to do and it posed a risk to patrons using the facilities.”

The claim further states that the defendants “failed to conduct proper and adequate testing and inspections of the spa facilities” after the spa opened and when patrons began to report adverse reactions, “failed to immediately close Thermëa Spa.”

The spa opened after much delay October 6, with spa owners Groupe Nordik of Gatineau, PQ claiming that all nine of its pools were fully inspected, approved and certified.

But after people started to complain about skin rashes, ear infections and other ailments dues to staph infections from the Kallä saltwater pool, the company shut down all the pools on October 14 and ordered a comprehensive audit.

The audit determined there were three key factors that resulted in a malfunction of the disinfectant system in the pool and the subsequent staph infections.

• A valve on the bromine erosion system failed sometime after launch. The audit has not determined if this was due to a manufacturing defect, installation error or some other cause
• An ultraviolet disinfectant system, which functions as a secondary safety measure to destroy any bacteria that escapes the bromine, failed because of a ‘flow switch’ malfunction, which caused the ultraviolet system to fall into maintenance mode and not serve its primary function. The switch has been replaced.
• The highly concentrated 14 per cent solution of salt in the Källa pool impacted the bromine puck’s ability to dissolve in the water, rendering the bromine ineffective. As such, the pool will be converted to chlorine – a proven effective chemical for sanitizing saltwater pools.

Groupe Nordik said the Källa pool and “all related systems” are being completely drained, sanitized, and re-assembled to allow for the use of liquid chlorine, which does not need to dissolve.

As far as Linden is concerned, the audit only proved that there were failures at all levels including systems, testing and monitoring. The bottom line, he added, is that people got sick going to a health spa. “If you go to a health spa it should be healthy and they got sick. It was the complete opposite of what should have happened.”

The general manager of the spa village and two senior technical staff were cited in the lawsuit for “failing to design, implement and ensure the safe operation” of the facility and for “consciously” ignoring the advice of technical experts and staff to open the spa “when they knew it was not safe.”

The pool design company was cited for not having a functional disinfection system and failing to take the “appropriate actions” when the disinfectant issues were discovered, while Durham Region and its inspectors were named for failing to conduct the “proper inspections, maintenance and monitoring to ensure that the spa facilities were free of harmful contaminants.”

Groupe Nordik and the other corporate defendants were singled out in the claim for continuing to receive funds from patrons using the spa “when they knew or ought to have known that the spa facilities were not safe” for use and that they “negligently failed to close Thermëa Spa when it became clear from the first date of opening that patrons were becoming ill from the contaminated pools and inoperable pool equipment.”

A further claim is made in the statement that Groupe Nordik “made the conscious decision to ignore the risk to public health when they opened Thermea Spa in favor of profit.”

Legal notices were sent to Groupe Nordik CEO Martin Paquette on October 21 and 26 advising him of the upcoming lawsuit to “recover damages” from exposure to contaminants at the spa.

Patrons named in the lawsuit came from as far away as Windsor and Ottawa to visit the spa, with 23 of the 71 names hailing from Toronto. Six came from Mississauga and five each from Whitby and Oshawa.

The plaintiffs are asking for $4 million in damages, plus an additional $1 million in “aggravated, punitive and exemplary” damages.

Groupe Nordik have twenty days to respond to the lawsuit.

“Thermëa’s number one job was to provide a safe environment,” Linden said. “We believe that a court will hold that it completely failed its clients.”