Court File and Parties

Court File No.: DC-07-00000279-0000 Date: 2009-03-02 Ontario Superior Court of Justice Divisional Court

Re: Esther Kulman, Plaintiff/Respondent And: Aldo Elio c.o.b. Pavemar Paving, Defendant/Appellant

Before: Karakatsanis J.

Counsel: Jane Lo, for the Appellant Donald G. Martin, for the Respondent

Heard at Toronto: February 27, 2009

ENDORSEMENT

[1] The appellant Aldo Elio, carrying on business as Pavemar Paving, appeals from the judgment of Deputy Judge Poot dated December 19, 2006 and March 23, 2007 wherein he awarded the plaintiff/respondent judgment for $5,714.34 and costs of $750.00.

[2] The appellant submits that the trial judge improperly bifurcated the trial, and improperly awarded judgement for an amount in excess of the amount claimed.

[3] The evidence was heard in December 2006. The trial judge gave his decision the following morning finding liability but noting that he had not been provided with any estimate to correct the work and stating that there was no explanation with respect to the amount of the claim. The trial judge granted leave to the respondent to prove such damages by appropriate evidence at the continuation of the trial. The trial resumed in March 23, 2007; the appellant was not present and the trial judge granted judgement based upon the estimates presented.

[4] The appellant installed a driveway between the homes of the respondent and her neighbour. At the time of the agreement, the respondent was particularly concerned that the "water flow to the centre away from both homes and out to the road. Pavemar will use laser level to ensure that all slopes will maintain levels that permit the above noted details." The driveway was installed and paid for in June 2004. In February 2005 the respondent noted that the water was flowing towards her home and subsequently brought an action in Small Claims Court. The respondent testified that she initially claimed an abatement of 35% of the cost of the driveway, in the amount of $2,360.00; and subsequently amended the Claim to $4,381.65, representing 65% of the amount paid for the driveway. The plaintiff relied upon an expert report of a professional engineer at trial who confirmed the water flowed towards and alongside her home and recommended an asphalt overlay to a minimum of 65 percent, and if that did not work, a new driveway. Because it was a shared driveway and her neighbours did not want further work on the driveway, she requested an abatement of 65%. At the resumption of the hearing she presented estimates and the trial judge relied upon an estimate to remove the asphalt and replace the driveway in the amount of $4,860. He also added an amount relating to moving a porch in order to facilitate the work.

[5] Although counsel for the appellant stated that she had been told by the appellant that he had not received the amended Statement of Claim and did not receive notice from the Small Claims Court of the continuation date, these statements were unsupported by the record or by an affidavit of the appellant. It is clear from the transcript that the appellant would have been aware of the amended claim during the first hearing date.

[6] With respect to the submissions regarding "bifurcation" I agree that in such a case it would be preferable to have all issues heard together.

[7] Furthermore, the parties did not formally make any submissions before the trial judge made his decision on liability. However, both parties were self-represented and it is apparent from the transcript that they were putting forward their positions as the evidence was being presented. The proceedings in the Small Claims Court are informal and the parties are often unrepresented. The trial judge has some latitude to adapt the process provided it is fair to both parties.

[8] The trial judge erred in law in awarding judgement in excess of the amount claimed. He was also clearly wrong in finding that there was no explanation of the amount claimed when he gave his decision on liability and gave leave to the respondent to present further evidence.

[9] I conclude that it would not be in the interests of justice between these parties to send this matter back for a re-hearing. To the extent that the appellant is concerned that the respondent was able to provide the evidence to prove her case on the second day, that evidence would be available at a re-hearing. However, the respondent had led evidence of an expert professional engineer that a minimum of 65% of the driveway needed to be repaired and, if that did not work, to be replaced. She testified that her claim represented 65% of the contract price, based upon her expert's testimony. The invoice subsequently provided was of similar, if somewhat higher, value. In my view having established a strong case for liability, the evidence provided by the respondent on each of the two trial dates supported judgement in the amount of her claim.

[10] For these reasons, the appeal is allowed. The plaintiff/respondent shall have judgement in the amount of $4,381.65, together with interest and costs as awarded by the trial judge.

[11] Given that success has been divided, I make no order for costs on the appeal.

Karakatsanis J.

Released: March 2, 2009