COURT FILE NO.: 05-DV-1159

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

MEYKNECHT LISCHER CONTRACTORS LTD.

Douglas Menzies, for the Plaintiff (Respondent)

Plaintiff (Respondent)

• and -

PETER STANFORD

Peter Stanford, in person, for the Defendant (Appellant)

Defendant (Appellant)

HEARD: September 5, 2006

Madam Justice M. Linhares de Sousa

INTRODUCTION

1The Appellant, Peter Stanford (“Mr. Stanford”) appeals from the Judgment of Deputy Judge Catherine Coplea ordering him to pay the Respondent, Meyknecht-Lischer Contractors Ltd. (“MLC”) the sum of $5,213.80 plus interest, less credit for monies paid on account.

2MLC brought an action against Mr. Stanford in Ottawa Small Claims Court for the supply and installation of a chain link fence to enclose the back yard of Mr. Stanford’s property on which he had a swimming pool built. The claim brought by MLC was for the recovery on an invoice dated June 18, 2002 for the total amount of $5,927.80. The Trial Judge concluded that MLC had performed work which, based on the invoicing and the credits recognized by her, amounted to $5,340 plus G. S. T. for a total of $5,713.80. She went on to allow Mr. Stanford some compensation, fixed in the amount of $500.00, in relation to gaps left in the fencing which Mr. Stanford had to fill in himself. This left the net amount payable of $5,213.80 less a credit to Mr. Stanford for $1,000.00 which he had paid in the spring of 2005, with prejudgment interest in accordance with the Courts of Justice Act.

BACKGROUND

3The facts and background of this dispute are described in detail in the Reasons For Decision of the Trial Judge (tab 2 of the Appeal Book and Compendium) and need not be repeated here. The facts as found by the Trial Judge are accepted. No transcript of the trial evidence was provided to this Court. Furthermore, Mr. Stanford informed this Court at the outset that he brought no appeal from the Trial Judge’s findings of fact.

DECISION OF THE TRIAL JUDGE

4In coming to her conclusions, Judge Coplea rejected Mr. Stanford’s claim against MLC that they were negligent for installing the retaining wall and fence in 2001 that abutted his property. This retaining wall and fence had been requested by the developer from whom Mr. Stanford purchased his property and resulted in the same by-law infraction as the rest of the fencing MLC subsequently installed in 2002 at the request of Mr. Stanford to enclose the rest of his property after the installation of his swimming pool. The by-law infraction was, in brief, that the fences, both in 2001 and in 2002, were installed with insufficient room to erect the cedar hedge contemplated by the municipal by-law.

5Mr. Stanford’s argument was that while it was the developer that contracted with MLC to install the 2001 fence and it was the developer’s failure to comply with the by-laws, the consequences of this breach should extend to MLC because of its commercial activities for gain. The Trial Judge concluded that in the circumstances of the case, including what MLC was retained to do by the developer, MLC did not have a duty of care to Mr. Stanford “which was sufficiently broad” to make inquiries regarding by-law compliance.

6The Trial Judge went on to state that if she were wrong in this conclusion she would still have to come to the conclusion that Mr. Stanford suffered no damages because of the inevitable loss of use of land required to comply with the municipal by-law, in addition to the extra cost of purchasing and installing a cedar hedge.

7Based on the same reasoning, the Trial Judge found that with respect to the 2002 fence contracted by Mr. Stanford to enclose the rest of this property, the employee-foreman of MLC, in failing to consult with Mr. Stanford regarding the location of the property markers, breached the duty of care owed to Mr. Stanford to ensure the fence construction accorded with Mr. Stanford’s desire to have the fence as close to the property line as possible. However, the Trial Judge found, that the required compliance with the by-laws and the erection of a cedar hedge would have meant for Mr. Stanford the loss of as much or more of his property than he lost with the erection of the fence in the location in which it was in fact placed.

8The Trial Judge found that of more substantial damage to Mr. Stanford was the extent of the gaps left between the bottom of the fencing and the ground, given the fact that what was being constructed was a pool enclosure fence. The Trial Judge found that, given the nature and purpose of the fence and the experience of MLC’s principal in the landscaping field, it was incumbent on him to not install a fence with the gaps which were left. The Trial Judge found that Mr. Stanford was put to a substantial amount of work to satisfactorily fill the gaps. She fixed this amount of compensation at $500.00, cognizant of the fact that some remedial work would likely have been required in any event.

9The Trial Judge also refused Mr. Stanford’s argument that MLC should be found liable under s. 13(b) of the Sale of Goods Act for failing to provide him with quiet possession of the goods supplied, given that the goods, namely the fence, failed to comply with the necessary by-laws. Hence it deprived him of the use of some of his land. The Trial Judge found that Mr. Stanford was not deprived of the use or quiet possession of his property. She further found that Mr. Stanford, having decided to apply for the pool building permit on his own rather than having his pool contractor assist him in obtaining the necessary permits and also having made the decision as to what kind of fence he wanted, bore the responsibility and obligation of ensuring that the pool installation and enclosure complied with the applicable by-laws.

POSITION OF THE APPELLANT, MR. STANFORD

10Mr. Stanford takes the position that the Trial Judge erred in four distinct areas of law. The detailed discussion of Mr. Stanford’s arguments are found in his Factum. Briefly, they are as follows:

1. The Trial Judge erred in finding that MLC did not owe Mr. Stanford a duty of care in respect of the first fence installed in 2001 at the request of the developer for the reasons argued at trial. Furthermore, to have found that there was no duty of care with respect to the 2001 fence and to have found that there was a duty of care with respect to the 2002 fence and the gaps left with that fence was internally inconsistent. Both fences concerned breaches of by-laws. The Trial Judge also misapprehended the nature of the damage caused by the installation of the 2001 fence. It was not the loss of property but rather the harm and expense of having to comply with the by-law once the municipality took steps to enforce its by-law, all of which was imminently, foreseeable.

2. The Trial Judge erred in finding that there was no compensable damage or loss suffered by Mr. Stanford as a result of the incorrect location of the pool enclosure fence installed by MLC in 2002. The Trial Judge reached this conclusion by way of a faulty causation analysis. There was loss of use of property, solely and directly as a result of errors made by MLC in locating the fence.

3. The Trial Judge erred in finding that, in the circumstances of this case, Mr. Stanford had not been deprived of the “quiet possession of his property”. Mr. Stanford was disturbed in his possession of the fence by the subsequent complaints of the illegality of the fence and the measures taken by the City of Ottawa to enforce its by-law. In this way, MLC breached s. 13 of the Sale of Goods Act.

4. The Trial Judge erred in not finding that there should have been some deduction from the contract price for the pool enclosure fence because the goods, namely the fence, did not fit the purpose for which it was purchased. The fence did not fit the purpose as it could not legally be used to enclose the property because of the existing by-law requiring the erection of the cedar hedge. Section 15.1 of the Sale of Goods Act was breached by MLC.

11Mr. Stanford seeks an order that the claim of MLC against him be dismissed with costs. In the alternative, Mr. Stanford seeks an order reassessing the amount ordered to be paid by him to be reduced by the amounts stipulated on p. 17 of his Factum, which would essentially reduce the claim to below zero.

POSITION OF THE RESPONDENT, MLC

12MLC contests the appeal on all the grounds raised by Mr. Stanford. After raising certain preliminary objections, counsel for MLC argued that the Trial Judge did not err in finding that MLC did not owe Mr. Stanford a duty of care with respect to the 2001 fence. She rightly came to this conclusion on the basis of the foreseeability of harm, and not on the basis of proximity between the parties, as Mr. Stanford argued. It was hardly foreseeable that MLC, under contractual obligations to the developer to act precisely according to the strict directions of the developer and in the total absence of knowledge or indication that the fence contravened the municipal by-law would be in a position to anticipate the harm that Mr. Stanford alleges.

13MLC further argues that the Trial Judge did not err in finding that there was no compensable loss with respect to the 2002 enclosure fence. It is supported by the evidence and hence a conclusion she was entitled to draw. It is a finding of fact, part of the findings of fact from which Mr. Stanford at the outset of the appeal stated that he did not appeal.

14With respect to Mr. Stanford’s arguments relating to the Sale of Goods Act, the Trial Judge correctly rejected this argument. Section 13 of the Sale of Goods Act is intended to guarantee the integrity of the purchaser’s titular interest in the property in question. There was no evidence to indicate that Mr. Stanford’s title to the fencing material that made up the fence was defective.

15With respect to the application of s. 15.1 of the Sale of Goods Act, a condition of that section is that the purpose for which the good is purchased must be communicated to the seller. The purpose of the 2002 fence was to enclose the entire back yard and pool of Mr. Stanford. The fence met that purpose. Furthermore, based on the facts found by the Trial Judge that Mr. Stanford made the decisions to purchase the chain link fence and the location of its installation on his own, there was no evidence to show that Mr. Stanford was relying on the expertise of the MLC to help him choose either the type of fence or its location, which would be a stipulated condition of the application of s. 15.1 of the Sale of Goods Act.

16MLC asks this Court to dismiss the appeal and confirm the Judgment of Trial Judge Coplea and to award it costs of the appeal, on a substantial indemnity basis.

STANDARD OF REVIEW

17The role of this appellate court is not to retry the case nor substitute its view for the views of the Trial Judge. Appellate Courts are guided by clear standards of review that will depend on the nature of the question under review. This was clearly enunciated in the Supreme Court of Canada decision of Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

18As was further stated in that same case, the standard of review for questions of law is that of correctness. For findings of fact, it is that of palpable and overriding error. The standard of palpable and overriding error also applies to the inference of fact drawn by the trial judge.

19With respect to questions of mixed fact and law, Mr. Justice Iacobucci had the following to say:

¶ 36 To summarize, a finding of negligence by a trial judge involves applying a legal standard to a set of facts, and thus is a question of mixed fact and law. Matters of mixed fact and law lie along a spectrum. Where, for instance, an error with respect to a finding of negligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness. Appellate courts must be cautious, however, in finding that a trial judge erred in law in his or her determination of negligence, as it is often difficult to extricate the legal questions from the factual. It is for this reason that these matters are referred to as questions of "mixed law and fact". Where the legal principle is not readily extricable, then the matter is one of "mixed law and fact" and is subject to a more stringent standard. The general rule, as stated in Jaegli Enterprises, supra, is that, where the issue on appeal involves the trial judge's interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.

20I agree with counsel for MLC that the issues raised in this appeal are of mixed fact and law.

DISPOSITION

21As was made clear in Housen v. Nikolaisen, supra, a finding of negligence by a trial judge involves applying a legal standard to a set of facts and thus is a question of mixed fact and law. I can find no error in the Trial Judge’s finding that MLC was not negligent towards Mr. Stanford in its installation of the 2001 fence. The facts found by her were that the developer gave the directions as to the location and specifications of the retaining wall and 4’ chain link fencing. The subsequent difficulties that arose for Mr. Stanford in those circumstances could not be said to be reasonably foreseeable by MLC. With no element of foreseeability having been found on the facts, the Trial Judge went on to conclude that MLC, in those circumstances, did not have a duty of care to Mr. Stanford which was sufficiently broad to make inquiries regarding by-law compliance. Her findings of fact are supported by the evidence and I can not find any palpable and overriding error in her decision with respect to the 2001 fence.

22I come to the same conclusion with respect to the 2002 fence. The facts found were that Mr. Stanford himself chose the type of fence for the enclosure of his property. He also chose to apply for the building permit on his own, rather than having the pool contractor assist him in obtaining the necessary permits. The permit was required for the installation of the pool and not for the fencing. On those facts, the Trial Judge found that Mr. Stanford had the obligation to ensure that the pool installation and the enclosure complied with the applicable by-laws. On these facts as she found them, I can find no palpable or overriding error in her conclusion that MLC did not owe Mr. Stanford a duty of care to inform itself of the local by-laws regarding the aesthetics of the subdivision. I agree with counsel for MLC that his client, on the facts of the case, would not be in a position to appreciate and anticipate the difficulties which Mr. Stanford subsequently encountered.

23Mr. Stanford puts forward the argument that the decision of the Trial Judge is internally inconsistent in that she found that there was no duty of care with respect to the by-law requiring the erection of a cedar hedge in front of a chain link fence but yet found there was a duty of care with respect to the by-law dealing with the gaps that were left between the bottom of the fence and the ground below it. The failure by MLC to take action to meet the standard stipulated in the by-law in question was found by the court to constitute a breach of the duty of care that was owed in the circumstances.

24I fail to see any inconsistency if one applies the test of reasonable foreseeability as the Trial Judge properly did to the facts of the case. It is reasonably foreseeable by MLC, with its many years of landscaping experience in the Ottawa area, that if it installed a pool enclosure fence with significant gaps that hardly resulted in a complete enclosure at all, then the standard stipulated by the by-law would not be met and would constitute a breach of the duty of care that was owed in the circumstances. The Trial Judge correctly found such a duty of care and appropriately compensated Mr. Stanford.

25With respect to the question of compensable damages, Mr. Stanford argues that the Trial Judge misapprehended the nature of the damages caused by MLC. I agree with counsel for the MLC that the question of damages is a finding of fact. Mr. Stanford stated at the outset that he does not appeal from any findings of fact made by the Trial Judge.

26I cannot find that the Trial Judge misapprehended the nature of the damages. There was evidence before her on which she could conclude that had the fence been erected in compliance with the cedar hedge by-law, it would have been installed further back from the lot line than it actually was, resulting in more land being given up or lost, as well as putting Mr. Stanford to the additional expense of purchasing and installing the cedar hedge. On the evidence, she was entitled to come to that conclusion. It is not for this Court to retry the case and substitute its view for the views of the Trial Judge in the absence of palpable and overriding error.

27Finally, I can find no error in the rejection by the Trial Judge of Mr. Stanford’s arguments regarding ss. 13 and 15.1 of the Sale of Goods Act. The Trial Judge rightly found that Mr. Stanford, in all of the circumstances of the case, bore the responsibility for ensuring that the pool installation and the enclosure complied with all of the applicable by-laws. That being the case, it could hardly be concluded that MLC deprived Mr. Stanford of the use and quiet possession of his property, namely the fence.

28In Humen v. Le Baron Outdoor Products Ltd, [1989] C.L.D. 1196, Hoilett D.C.J. establishes the intention of s. 13 of the Sale of Goods Act. He states at para. 9:

…..It is clear from a reading of the other two subparagraphs of Section 13, which I have hereafter cited for ease of reference, that what Section 13 is intended to guarantee is the integrity of the purchaser’s titular interest from any other competing property……

29On the facts as found by the Trial Judge in this case, there was no defect in the title to the fencing material sold that made up the fence. Mr. Stanford’s difficulties arose not out of the fence itself but out of the installation of the fence, which was done on his own instructions in ignorance of the applicable by-laws with the responsibility for ensuring that the applicable by-laws were complied with resting with him. I find the facts of this case quite distinguishable from those found in Gencab of Canada Ltd. v. Murray-Jensen Manufacturing Ltd. (1980), 29 O.R. (2d) 552 (H.C.J.).

30With respect to Mr. Stanford’s arguments regarding s. 15.1 of the Sale of Goods Act, I find the reply arguments of MLC found at paras. 59 to 67 persuasive. On the facts as found by Trial Judge, the purpose of the fence can be found to have been to enclose his entire back yard. It met that purpose. The Judge made no error in coming to this conclusion in light of the fact that she also found that Mr. Stanford was responsible for ensuring that the fence complied with the applicable by-laws.

31Furthermore, there was evidence on which the trial judge could reasonably conclude that, given the active role Mr. Stanford played in choosing the nature of fence, obtaining the necessary permits and directing the location of the installation of the fence, he did not rely on MLC’s expertise in either helping him to choose the type of fence or to determine its location.

32For the above reasons I dismiss the appeal on all grounds as being without merit and confirm the Judgment of the Trial Judge.

33If the parties cannot otherwise resolve the question of costs of the appeal, MLC shall have two weeks from the date of the release of this decision to serve and file with the court its written submissions on costs. Mr. Stanford shall have one week from that date to serve and file with the court his written submissions on costs. MLC shall then have one week to serve and file any reply it may wish to make.

M. Linhares de Sousa J.