ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
Maxine Lydia Reid
Robert W. Becker, for the Appellant Plaintiff / Appellant
Plaintiff/Appellant
- and -
R.L. Johnston Masonry Inc.
Robert M. Holland, for the Defendant / Respondent
Defendant / Respondent
HEARD: June 11, 2009
Justice B. Glass
Introduction
1The Appellant sued the Respondent in Small Claims Court for defective workmanship when the corporation was hired to repair a water leak in a basement. There were claims for damages for claims related to damage to the property by the Respondent. This was an oral contract.
2The judgment dismissed the claims of the Plaintiff as not being proven on a balance of probabilities. The evidence of the Plaintiff was discounted by the trial judge based on his noting that the parties had a written quotation that provided the outline of their oral contract. This was an error because the document in question, Exhibit B, was not a written quotation at all. Rather, this was the account from the Respondent.
3The judgment did not address all the claims of the Plaintiff. Claims for damages to property were termed by the trial judge to be trivial. More consideration should have been given to them because they were part of the claim of the Plaintiff.
4The Appellant objects to the trial judge qualifying the principal of the Respondent, Randy Johnston, to be an expert. This was opposed by the Appellant’s counsel. The Appellant argues that an expert is not to be an advocate in a proceeding and ought to testify in an independent manner.
5The Appellant submits that even though the Consumer Protection Act, 2002 was not pleaded or argued at the trial, it should be considered at this appeal.
6The Appellant seeks to have the judgment overturned and a judgment entered in favour of the Appellant or in the alternative the proceeding returned for a new trial.
Analysis
7Treating Exhibit B, the Respondent’s account for work done, as the core foundation for the contract erroneously resulted in the judge accepting the work outlined in the account as the work that the two parties intended to have done. This meant that the evidence of the Plaintiff was reduced to a much narrower scope than should have occurred. By doing so, the trial judge made a significant error. This is not a misnomer as suggested by counsel for the Respondent.
8In the judgment, the trial judge referred to the contract as an oral one; however, he noted a document filed as an exhibit was a written quotation. In fact, this was the final account from the Respondent.
9Although there is considerable reference in a four page judgment to the parties having an oral contract, I conclude that the reference to the written quotation in a manner that infers the judge took what was listed in the document as the terms of the contract. In effect, the trial judge appears not to have accepted other evidence outside what the Respondent listed on his final bill as not part of the agreement. In doing so, the trial judge in effect treated the account as the contract. The judgment would appear to leave the reader with the impression that the trial judge did not assess the evidence of the Appellant to its fullest extent. Therefore, the trial judge made a final account into the contract and looked at the evidence that applied to those terms rather than looking at the whole of the evidence.
10Counsel for the Respondent submits that the trial judge considered all the evidence, but I do not read his judgment as having done so. Had his decision stated this was an oral contract and then conducted his assessment of the evidence presented, one might conclude that to overturn his decision would simply be an appellate court imposing its own take on the evidence. In the fourth full paragraph on the third page of his judgment, the trial judge stated:
“In closing argument, counsel for the Plaintiff stated that the Defendant was hired by his client ‘to fix the problem’ of water seeping into the basement. This may have been the Plaintiff’s intention, but the court must have regard solely to the oral contract entered into between the parties. This, in turn, is evidenced only by the written quotation delivered by the Defendant, including his notations thereon. The evidence at trial shows that this quotation was duly accepted by the Plaintiff, resulting in a binding contract.”
11Mr. Holland suggests that the use by the trial judge of the term ‘quotation’ was a misnomer. Counsel recommends that one should take into account the whole of his reasoning of the evidence following which the court should conclude that he did not narrow his field of consideration too much.
12I conclude that Mr. Holland’s submission about ‘quotation’ being a misnomer does not have solid foundation. The wording amounts virtually to making the document the contract. All he had left to consider in effect was whether the Defendant had completed the work listed in his final bill. The whole of the evidence indicates that the Plaintiff expected the person to fix a leak in her basement. At the second page of the judgment, the judgment states that the document is not signed by the Plaintiff and has the word ‘quotation’. He states that it is a ‘quotation’ which I interpret the trial judge to infer it to be akin to an estimate or letter of intent. If he had continued that interpretation, he would not have narrowed his reasoning at page four to the extent of holding that the written quotation evidenced the contract. He would have stated that the document is the final bill for the work done and that such was what the Defendant thought the contract involved. Then, he could have assessed all of the evidence. By stating that this document in effect amounts to what they agreed to do, the trial judge in effect made the final bill a written contract. I am concerned that he set aside other evidence that was open to consider by doing so.
13The trial judge qualified the principal of the Respondent corporation, Randy Johnston, as an expert. Mr. Becker for the Appellant objected to making a party an expert because in law an expert is to be independent and not an advocate for a party in the proceeding. This treatment of a party elevates Mr. Johnston to an enhanced status and runs the risk of lending more weight to the Respondent at trial. This should not have been done.
14The Appellant claimed several headings of damages, but the trial judge dismissed them peremptorily as being trivial. This was an error. They ought to have been analyzed with a determination whether they were claims established. These claims covered patching a hole cut in the basement floor, repair to brickwork damaged by a backhoe when it struck the building, patio stones damaged, the cost of reflexology treatments provided for topsoil that was never delivered, the cost of shovels and rakes mistakenly removed by the Respondent, the Appellant’s lawnmower damaged by stones left on the lawn, compensation for stress, inconvenience and loss of enjoyment of the Appellant’s property. The air conditioning unit was damaged when earth settled. Mr. Johnston testified that he usually told customers to contact an expert in the air conditioning business; however, his evidence did not say that he did so with the Ms. Reid. The judgment does not analyze whether or not they were proven claims.
15The Appellant accepts that she did not plead the Consumer Protection Act, 2002. Further, the Act was not argued at trial. Nevertheless, the Appellant seeks to have the terms of that statute considered here. There is consideration to the fact that the Act would enable a customer to withdraw from this type of contract; however, the work has been done. If a contracting party did not receive a written contract, had the benefit of the work being completed satisfactorily and then requested their money to be returned because the contract was not in writing within the terms of the statute, she would not succeed. In this case, the Respondent ought to have provided a written agreement setting out the work to be done. The agreement was made away from the place of business of the Respondent. If this action was sent back for trial again, the statute would be argued no doubt. I am persuaded that an appellate court can consider the Act to the extent of refunding the contract price of $9,000 plus interest and costs. The Consumer Protection Act, 2002, exists to protect consumers. If the supplier of services does not follow the Act, it runs the risk of being subject to a sanction. If this judgment is set aside, then the Divisional Court may order the return of funds paid plus interest and costs.
Relief Sought at This Appeal
16The Appellant seeks to have the trial judgment set aside and judgment entered in her favour.
17An appellate court does not interfere lightly with findings of fact and determinations of credibility of witnesses at trial. However, if the trial judge makes palpable and overriding errors with findings of fact, on appeal such errors may be overridden. In this trial, the trial judge was in error when he handled the oral contract and determined that the account was a quotation that in effect outlined the work to be done. This was a significant error that is of such a degree as to remove those findings of fact. When those findings are excised, the judgment has such a gap in it that a new judgment must be entered or the action must be re-tried. These considerations have been explored thoroughly by the Supreme Court of Canada in Housen v. Nikolaisen [200] 2 S.C.R. 235 at paragraphs 14-25 inclusive as well as by the Ontario Court of Appeal in Waxman v. Waxman (2004), 2004 SCC 20, 185 O.A.C. 201.
18This action focuses on work to be done by the Respondent to repair a water leak in the basement of the Appellant’s home. Not only did the work done not stop the leaking of water into the residence, but also the water problem increased within days of the Respondent finishing work. The evidence displayed in the transcript, when all the evidence is considered, does establish the Appellant’s claims that the repair work was not done properly. Regardless of the spin one might place on the evidence, one can only conclude that the repairs were not completed correctly.
19The agreement was completed away from the Respondent’s place of business. There was no signed agreement as there should have been pursuant to the Consumer Protection Act, 2002. A remedy pursuant to section 100 of the Act permits a consumer to recover full payment that a consumer might be entitled to receive provided such relief would not be inequitable. That remedy can be applied here.
20The judgment will be set aside and judgment will be entered in favour of the Appellant as set out below.
21The Appellant paid to the Respondent the sum of $9,000 and is entitled to its return. The claims that were not addressed are well founded in the evidence given at trial. They total more than $1,000. I have listed the headings for those claims previously in these reasons. Judgment for $10,000 in favour of the Appellant shall issue. In addition, the Appellant would be entitled to pre-judgment and post-judgment interest.
22Costs are awarded to the Appellant. Quantum may be addressed separately.
Justice B. Glass
Released: June 12, 2009
COURT FILE NO.: 384/07
DATE: 2009-06-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Maxine Lydia Reid
Plaintiff / Appellant
- and –
R. L. Johnston Masonry Inc.
Defendant / Respondent
REASONS FOR JUDGMENT
Justice B. Glass
Released: June 12, 2009