COURT FILE NO.: 01-BN-8191

DATE: 20030214

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

Barbara Patricia LALONDE

D. W. Lalonde, for the Appellant (Defendant)

Appellant (Defendant)

• and -

Jelena KUKOLJAC and Zoran KUKOLJAC

Zoran Kukoljac in person

Respondent (Plaintiff)

HEARD: December 6, 2002

REASONS FOR JUDGMENT ON APPEAL

Dunn J.

1The defendant appeals a judgment against her given by Deputy Judge B. King on August 31, 2001 at Oakville, Ontario. The plaintiff was the purchaser and the defendant was a buyer in an Agreement of Purchase and Sale. Judge King found that the defendant was liable to pay the purchaser the sum of $3,184.59 plus court costs and pre-judgment interest.

2The appellant seeks to appeal the decision of the Small Claims Court Judge on the grounds that he misapprehended the law, misapprehended the evidence and made findings of fact that were not supported by the evidence.

Overview of Facts

3The claim of the plaintiff was for three problems encountered after closing of the real estate transaction.

4After closing, the plaintiff turned on the water supply and found water coming into the basement. It proved to be caused by a cracked pipe underneath the floor. She had found a note from the appellant on closing indicating that the water had been turned off because the appellant was ‘missing a washer’. The trial judge found as a fact that the water was turned off to hide the cracked pipe and the escaping water.

5The appellant gave the purchaser plaintiff a limited warranty with respect to the swimming pool on the premises. It was the obligation of the appellant to close the pool in September and the warranty covered any defects or difficulties with the pool at that time. The warranty was made to survive closing. The evidence before the trial judge indicated that upon opening the pool in the springtime two leaks were discovered that had to be repaired.

6When attempting to open the pool in the spring the plaintiff purchaser found that the pool pump was missing. The respondents herein ordered a new pump and only later found out that the pool service had taken the pump and stored it over the winter at the request of the appellant.

Standard of Review

7This Court will not interfere with a decision of the trial judge in Small Claims Court unless there has been some gross or palpable error. His decision must be clearly wrong and contrary to the law or, as the case may be, contrary to the evidence presented.

8On the evidence presented to the judge at trial I believe it was open to him to make the findings that he did. Some deference is accorded to a trial judge who can make findings of credibility having seen and heard the witnesses in person. It would be inappropriate for this Court to interfere with his findings of fact in the absence of palpable error.

9It was open to the trial judge to make the finding of fact that the defect in the pipe allowing water into the basement when the purchaser first turned it on was a defect that had occurred before closing. It was also the domain of the trial judge to conclude that the respondent knew of this defect and took steps to conceal it from the purchaser plaintiff.

10The limited warranty with respect to the leaks in the pool survived closing. It was open to the trial judge to conclude on the evidence presented to him that the leak had occurred when the pool was closed under the responsibility of the appellant and only discovered when the plaintiff opened the pool. This scenario was contemplated by the warranty.

11With respect to the pool pump and its storage at the pool service company, again the evidence before the trial judge permitted the conclusion that the storage of the said pump was unknown to the purchaser plaintiff. In the absence of the respondent advising the plaintiff of this fact, the trial judge clearly made a decision based on the evidence.

12In this case I cannot conclude that the trial judge’s decision was clearly wrong or contrary to the evidence or law. The appeal is dismissed. Costs of the appeal to responding parties.

Dunn J.