Court File and Parties

COURT FILE NO.: 625/07

DATE: 20090928

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: CECILIA BLAKE v. KEVIN CHEN AND 116845 ONTARIO LIMITED o/a PILLAR TO POST

BEFORE: Justice D. Aston

COUNSEL: Anthony Guindon, for the Appellants/ Defendants

Gregory E. McConnell, for the Respondent/Plaintiff

HEARD AT TORONTO: September 23, 2009

ENDORSEMENT

[1] The defendants appeal the Small Claims Court Judgment of November 14, 2007.

[2] Though the relationship between the parties was established by a contract, whereby the plaintiff retained the defendant to do a home inspection report for a residence she was considering purchasing, it is evident the trial judge based the liability finding on negligence, not breach of contract. There can be no doubt the defendants had a duty of care; the legal issue is whether they breached the standard of care.

[3] Whether the defendants breached a standard of care rests on the application of a legal standard to findings of fact; a question of mixed fact and law. The standard for appellate review is "palpable and overriding error".

[4] The appellant submits the trial judge:

(a) had no evidence upon which to establish a standard of care; and

(b) failed to determine, let alone apply, the correct legal standard.

[5] The trial judge had no expert evidence on the appropriate standard of care, and did not refer to the "ASHI Standards" referred to in the fine print in the standard form contract. However, there was evidence from the defendants themselves concerning the extent of their obligation to bring a potential basement leak problem to the plaintiff's attention.

[6] Expert evidence has become the norm in cases alleging professional negligence but it is not always necessary. In this case, Mr. Radomski, on behalf of the defendants, admitted in his testimony, that because of the "staining and/or efflorescence from previous water penetration" observed by the inspector, the plaintiff should have been warned and that such observations would "ring a bell [ring an alarm] with a competent inspector". Mr. Radomski went on to say the plaintiff was warned about the potential leakage, and given recommendations to prevent basement leakage, in the written home inspection report which the plaintiff admitted she had not read. However, the plaintiff testified she relied on the verbal report of the inspector.

[7] The trial judge did not consider that adequate warning had been given to the plaintiff:

"I find that the inspector, Chen, having seen stains on the block wall, did not adequately perform his duties in not making further inquiries and not cautioning the plaintiff as to the seriousness of the possible leakage. I find the bulk of the 27 page report is boiler plate and the inspector failed to point out a major defect to the plaintiff and is in breach of his retainer."

[8] The defendants have failed to demonstrate that the trial judge made a palpable and overriding error by ignoring or misapprehending relevant evidence or by making a finding unsupported by any evidence. I am satisfied that the trial judge did not err in principle or in law and that the brief reasons are sufficient to identify the essential basis of the liability finding.

[9] The appellant points out that the trial judge failed to address contributory negligence on the part of the plaintiff. However, the defendants did not raise contributory negligence as an issue in their pleading nor does it appear to have been addressed at the trial. It was not incumbent on the trial judge to raise the issue on his own.

[10] The appeal is dismissed.

[11] If counsel are unable to agree on costs, brief written submissions may be made within the next 20 days.

Aston J.

DATE: September 28, 2009