Court File and Parties
CITATION: Winter v. Chao and Kwan, 2010 ONSC 464
DIVISIONAL COURT FILE NO.: 145/08
DATE: 20100118
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MOLLOY J.
BETWEEN:
BARBARA WINTER
Plaintiff
(Respondent)
– and –
IN CHEONG CHAO and MEI LAN KWAN
Defendants
(Appellants)
James S. Marks, for the Plaintiff (Respondent)
Garth Low, for the Defendants (Appellants)
HEARD at Toronto: January 18, 2010
Reasons for Decision
MOLLOY J. (ORALLY)
[1] This is an appeal by the defendants, In Cheong Chao and Mei Lan Kwan, from the decision of Godfrey J. of the Small Claims Court in Toronto, dated March 3, 2008. Godfrey J. awarded judgment to the plaintiff in the amount of $5,209.00 plus costs and interest based on her evidence at trial that she had purchased a home from the defendants relying on representations that there was an operational gas fireplace on the first floor. Those representations were made prior to Ms. Winter having a home inspection done. The home inspection was completed on September 26, 2004. The offer to purchase was made and the agreement of purchase and sale signed on September 27, 2004.
[2] There was evidence at trial from Suzanne Waite, who was the real estate agent for the purchaser Ms. Winter. She testified that prior to the offer to purchase she was told by the home inspector that there was no operational fireplace on the first floor. Ms. Waite said that she then had a discussion with the agent for the vendor, Mr. Hung, who told her that there had been a gas fireplace on the first floor at one time but that when new hardwood flooring was put in, the piping may have been removed. He told her that “possibly” there was still piping for the gas fireplace down in the basement near the furnace. Ms. Waite was very clear in her evidence that she knew this information prior to the offer to purchase being signed.
[3] Ms. Winter testified at trial that she did not know of the problem with the fireplace before she signed the agreement of purchase and sale. She testified that her agent told her about this problem only after the agreement was signed, but before closing. Prior to closing, both Ms. Winter and Ms. Waite attended at the premises and did look at the fireplace. They discovered at that time that it was in fact filled with concrete. The evidence was that both Ms. Winter and Ms. Waite were shocked to find the concrete there.
[4] The critical point however, is that Ms. Waite, on her own evidence which was uncontradicted by any other evidence at trial, knew prior to making the offer that there was a problem with the fireplace. As a matter of law her knowledge is imputed to her client, the purchaser.
[5] If Ms. Winter knew from the inspection that there was no working fireplace, and this information was confirmed by her agent with the agents of the vendor prior to the offer being presented, it was not reasonable to rely on earlier representations that there was an operational fireplace. I note as well that the Statement of Claim of the plaintiff states as follows at paragraphs 9 & 10 under the heading “September 26, 2004: Home Inspection Revealed No Insert”
“9. On or about September 26, 2004, a home inspection was conducted of the Property. Afterwards, the home inspector advised Winter that there was no fireplace behind the mantelpiece on the main floor.
- As a result of this discovery, Winter’s agent, Suzanne Waite, advised the Defendants or their listing agent, Fai (Danny) Hung, that there was no fireplace on the main floor as had been advertised and represented by the Defendants. The Defendants or their listing agent admitted that there was no insert for a fireplace but said there was gas piping for a gas fireplace.”
[6] On the evidence at trial from Ms. Waite, the representation made by Mr. Hung did not go quite as far as was alleged in the Statement of Claim. According to the evidence of Ms. Waite there was no specific representation that there was gas piping for a fireplace; there was merely a statement that this was a possibility.
[7] In his Reasons for Decision, Godfrey J. made no mention whatsoever of the evidence given by Ms. Waite, which was completely uncontradicted at trial and consistent with the Statement of Claim. He did not reject the evidence and he did not reconcile that evidence with the evidence of the plaintiff. He appears to have simply ignored it.
[8] Either there is a palpable and overriding error because of the trial judge’s fundamental misapprehension of material evidence or, there is an error of law in not imputing the knowledge of the agent to Ms. Winter. Accordingly, I find that this decision cannot stand.
[9] There were significant gaps in the evidence at trial. It may be the case that the plaintiff is unable to prove a cause of action against the defendants in this case. However I consider it possible that the plaintiff might still be able to prove a claim. In these circumstances, in my view the appropriate remedy is to order a new trial.
COSTS
[10] The trial judge below indicated that there was evidence before him that the interpreter cost is $400.00. He did not award that amount to the defendants because they were unsuccessful. Given that those costs are now thrown away, I am ordering that the defendants can recover that $400.00 as a disbursement. In addition the trial judge awarded the defendants $500.00, in any event of the cause, with respect to a prior adjournment of the trial, so that $500.00, they are still entitled to. The disbursements on this appeal are not disputed; those amount to $1,190.55. That brings the total for disbursements and the costs of the previous adjournment to $2,090.55. I am going to award an additional $1,000.00 as the costs of this appeal. There has been a half day attendance in this Court plus the time spent to prepare the materials which was time that had to be spent. However, a reduced counsel fee is appropriate in recognition of the fact that this is a Small Claims Court matter and also the amount of money that was at issue. So costs are awarded at $1,000.00 for the counsel fee and $2,090.55 for disbursements, for a total of $3,090.55. I agree with the submissions of both counsel that this is an unfortunate result given the fact that the entire amount at issue in the action was $5,000.00 and I also recognize that the defendants who have been successful will have incurred costs well above the $3,000.00. However, I am also mindful of the fact that they signed a multiple listing data sheet and also there was a listing agreement indicating that there was a fireplace. It is fair they should bear some responsibility for what got this action going in the first place. It is a small factor, but nevertheless one that I take into account in considering the equities between the parties and the overall allocation of costs.
MOLLOY J.
Date of Reasons for Judgment: January 18, 2010
Date of Release: January 25, 2010
CITATION: Winter v. Chao and Kwan, 2010 ONSC 464
DIVISIONAL COURT FILE NO.: 145/08
DATE: 20100118
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
BARBARA WINTER
Plaintiff
(Respondent)
– and –
IN CHEONG CHAO and MEI LAN KWAN
Defendants
(Appellants)
REASONS FOR JUDGMENT
MOLLOY J.
Date of Reasons for Judgment: January 18, 2010
Date of Release: January 25, 2010