ST. CATHARINES COURT FILE NO.: 49065/07
DATE: 2008/09/05
ONTARIO
DIVISIONAL COURT
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LUCIA EMMANUEL
Donald C. DeLorenzo and Andrea E. Mullin, for the Respondent
Respondent
- and -
JOE CAPPARELLI c.o.b. as Proprietor for VILLA TILE CONTRACTOR FLOOR EXPERT
Joseph Nicoletti, for the Appellant
Appellant
HEARD: September 4, 2008
THE HONOURABLE MR. JUSTICE J.R. HENDERSON
DECISION ON APPEAL
INTRODUCTION
[1] This is an appeal from the decision of Small Claims Court Deputy Judge B. Marotta (“the trial judge”), dated April 10, 2007, granting judgment against the appellant in the amount of $10,000 plus costs, plus a representation fee.
[2] This appeal was heard by this court in accordance with section 31 and section 21(2)(b) of the Courts of Justice Act.
[3] It is the appellant’s position that the trial judge made erroneous findings of fact with respect to problems that arose regarding the ceramic tiles that were installed by the appellant at the respondent’s residence.
BACKGROUND
[4] The respondent was in the process of renovating her residence in the City of Niagara Falls, when she retained the appellant to install ceramic tiles in several parts of the residence.
[5] The respondent had previously purchased the ceramic tiles from a third party business, and the appellant’s sole job was to install the tiles.
[6] The appellant installed the tiles in the residence over a period of time. The last part of the appellant’s job was completed in 2003 when he returned to the residence to install the tiles in the basement area. There is conflicting evidence as to whether the floor joists were visible at that time, as the witnesses disagree as to whether the basement ceiling had been finished so as to cover the floor joists.
[7] At some point after the appellant had completed the job, the respondent complained that some of the tiles and grout were cracking. Subsequently, the appellant attended at the residence on three separate occasions to repair the grout and replace some of the tiles. However, the problems continued.
[8] The respondent adduced evidence at trial from four witnesses who either testified viva voce or provided written expert opinions. The essence of the evidence of the respondent’s witnesses was that the appellant should have checked the floor joists before installation, that the floor joists should have been strengthened before installation, that a plywood or wire mesh should have been used on the stairs, and that the only way to rectify the problem was to remove and replace all of the existing tiles.
[9] The appellant testified at trial that he could not have observed the floor joists when he installed the tiles because the basement ceiling had been finished and the joists were covered before he installed the basement tiles.
[10] Also, the appellant adduced evidence from Anthony Pietrangelo, the carpenter who worked at the respondent’s residence, who testified that the sub-floor had been installed properly. Further, the appellant called his own expert witness who testified that he believed that the cracks in the tiles were caused by people walking on the floor before the tiles had been cured.
THE TEST ON APPEAL
[11] It is not the role of an appellate court to reconsider the evidence and substitute its own opinion for that of the trial judge. The trial judge is in the best position to weigh the evidence and make findings of fact.
[12] An appellate court should not interfere with the decision of a trial judge, unless the trial judge was clearly wrong. In that respect, see the case of Sathaseevan v. Suvara Travel Canada Inc., [1998] O.J. No. 1055, at para. 6.
[13] The Supreme Court of Canada described the function of an appellate court in the case of Stein v. The Kathy K, 1975 146 (SCC), [1976] 2 S.C.R. 802, at p. 804 as follows:
…the accepted approach of a court of appeal is to test the findings made at trial on the basis of whether or not they were clearly wrong rather than whether they accorded with that court’s view of the balance of probability.
ANALYSIS
[14] The appellant submits that the trial judge made several errors that were clearly wrong.
[15] First, at page 132 of his reasons, the trial judge refers to conflicting evidence regarding whether the floor joists were visible, and determined that it was not necessary for him to make a finding on that point. The appellant submits that all of the expert witnesses stated that the appellant should have examined the floor joists before installation, and therefore the visibility of the floor joists is a key consideration. It was submitted that it was an error to make no finding.
[16] However, on a careful reading of the reasons, it is clear that the trial judge did not decide that the appellant was negligent because he did not examine the floor joists. Rather, the trial judge determined that the appellant was negligent because he failed to discuss the issue of the adequacy of the floor joists with the homeowner.
[17] At page 132 of his reasons, the trial judge wrote:
…the normal practice would be to have the homeowner sign a disclaimer that the installer would not guarantee the installation.
[18] Implicit in the trial judge’s reasons is a finding that even on the appellant’s best case (that is, if it were found that the joists were not visible to the appellant), the appellant still had a duty to discuss the adequacy of the floor joists with the respondent. In my view, it was open to the trial judge to make this finding as there was evidence that it was the normal practice in the industry to engage in this discussion with the homeowner. There is clear evidence that the appellant did not do so in this case, and thus, in the view of the trial judge, the appellant breached his duty to the respondent.
[19] Moreover, the trial judge relied on the evidence of Raymond Charland, who testified that he could feel the floor moving around as he walked on it, and therefore, Mr. Charland was of the opinion that the floor joists were not stable enough.
[20] Given the evidence of Raymond Charland and the evidence of the normal practice of discussing the adequacy of the floor joists with the homeowner, it was open to the trial judge to find that the appellant was negligent without making a finding regarding the visibility of the floor joists.
[21] Second, the appellant submits that the trial judge erred by finding that the tiles could not be laid over a vinyl floor. With respect, the trial judge did not make such a finding. Rather, at page 132, the trial judge found that in some cases, tiles could be laid over vinyl, but it would require special preparation and the proper glue.
[22] The appellant testified that he had used the proper glue, but the trial judge made no finding as to whether the proper glue had been used. Given the trial judge’s decision that the appellant breached his duty to discuss the adequacy of the floor joists, it was unnecessary for him to do so. Therefore, the lack of a finding of fact on this point is not an error.
[23] Third, the appellant submits that the trial judge erred because he found that the appellant should have reinforced the floor and/or used wire mesh. In my opinion, this finding cannot be described as being clearly wrong. The trial judge accepted the evidence called by the respondent that the problems with the tiles were caused by the inadequacy of the floor joists. It was open for the trial judge to accept this evidence, and reject the appellant’s evidence.
[24] Fourth, the appellant submits that the trial judge erred by finding that the tiles on the stairs were improperly installed. However, the trial judge made no specific finding with respect to the tiles on the stairs that was distinct from his findings regarding the job as a whole. In his reasons the trial judge dealt with the job as a whole, and that approach is acceptable.
[25] Lastly, the appellant submits that the trial judge erred by failing to articulate that he made his decision on a balance of probabilities. In my view, a trial judge is not required to expressly state in his reasons that he has considered the evidence on a balance of probabilities, provided that his reasons show that he has considered the proper burden of proof.
[26] At page 133 of his reasons, the trial judge stated: “on the facts as presented they weigh in favour of the plaintiff and there will be judgement for the plaintiff.”
[27] In my view, this statement by the trial judge clearly shows that the trial judge has weighed the evidence on a balance of probabilities.
SUMMARY AND CONCLUSION
[28] After a careful review of the trial judge’s reasons, I find that the trial judge has made no error that can be described as being clearly wrong. Therefore, the appeal is dismissed.
[29] The respondent is hereby granted costs of the appeal payable by the appellant in the amount of $2,000 plus GST, plus disbursements.
Henderson, J.
Released: September 5, 2008
COURT FILE NO.: 49065/07
DATE: 2008/09/05
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
LUCIA EMMANUEL Respondent
- and –
JOE CAPPARELLI c.o.b. as proprietor for VILLA TILE CONTRACTOR FLOOR EXPERT Appellant
REASONS FOR JUDGMENT
Henderson, J.
Released: September 5, 2008