Dirckx v. Czerchowicz, 2007 CanLII 16441 (ON SCDC)

COURT FILE NO.: DC-06-109-00

DATE: 20070507

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LEROY DAVID DIRCKX and ANTHONY GEORGE PATTRICK DADSWELL (Appellants) v. THE ESTATE OF ADAM CZERCHOWICZ and KEN McFARLAND (Respondents)

BEFORE: Clarke, J.

COUNSEL: Leroy Dirckx, self-represented

Anthony Dadswell, self-represented

J. Rosenberg, for the Respondents

E N D O R S E M E N T

1Both sides provided me with factums and made able presentations.

2The appeal is dismissed without costs.

3I find that the trial judge made no palpable or reversible error. He carefully reviewed all the facts and issues. He did not misapprehend or ignore the evidence. He made key findings of fact. I am conscious that an appellate court should not lightly interfere with a trial judge’s findings of fact or credibility and substitute its own judgment or opinion in the absence of palpable and overriding error (there is none here), for that of the trier (Housen v. Nikolaisen, [2002] S.C..R. 235).

4After thorough consideration of all the evidence the trial judge found that the warranty applied to the state of the septic system existing on the completion of the transaction. In addition, he found that to the knowledge and belief of the vendors there were no existing problems with the system at that time. The issue was actual, not potential problems to be expected from an old system.

5I disagree that the vendors “actively concealed” a latent defect. They specifically sold the system “as is”. The purchasers, both experienced realtors, knew this. Indeed, they insisted on the warranty clause as drafted. Further, it wasn’t until Aug. 2003, 8 months after completion that they discovered problems with the system. Prior to closing they neither had the system inspected (though aware of potential problems) nor flushed the toilets to see if the system was in working order. I find no evidence of “problems” with the system at the time of closing. Based on the totality of the reasons, though not specifically addressed, I find that the trial judge found none either.

6Although I have dismissed the appeal I exercise my discretion and find that this is not a case for costs.

Clarke J.