ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
AL FRASER
WILLIAM RAMSAY, for the APPELLANT
Appellant
- and -
DOREEN COUTU
ROBERT DINNEN, for the RESPONDENT
Respondent
HEARD: 01022011
D E C I S I O N
WILCOX, J.
1This is an appeal from the decision of Deputy Judge P. Cassidy.
2The plaintiff’s claim against the defendant arose from an arrangement made in or about May, 2007 and reduced in whole or in part to writing, signed by both parties. Pursuant to this arrangement, the defendant contractor was to perform work on a garage attached to the plaintiff’s residence. The work, done in or around August, 2007, was alleged by the plaintiff to be unsatisfactory in that the garage wall subsequently leaked water and was found to be collapsing. The defendant simply denied the plaintiff’s claim and the matter went to trial on March 25th, 2010. Both parties were unrepresented. The trial judge’s decision, dated on April 8th, 2010, awarded the plaintiff $10,000 plus $500 in costs.
3At trial, both parties gave evidence. There was also a second witness, Edward Girard, for the plaintiff. The trial judge found the defendant’s evidence not to be persuasive, preferring the plaintiff’s evidence.
4The defendant appealed, seeking an order that the judgment of Deputy Judge Cassidy dated April 8th, 2010 be reversed, a finding made that Al Fraser complied with the terms of the contract, and a dismissal of the claim of Doreen Coutu. The appellant’s grounds were that the trial judge erred in failing to consider the evidence presented to her, and specifically that she failed to consider the signed contract between the parties..
5The appeal was heard on February 1, 2011. The appellant was represented by Mr. Ramsay. The respondent was represented by Mr. Dinnen.
6The standard of review with respect to a matter of law is one of “correctness”. The standard of review with respect to the facts is whether the trial judge made a “palpable and overriding error” regarding them.
7Counsel for the appellant argued that the judge made an error of law and requested that the trial decision be reversed so that there would be no monetary award for the plaintiff against the appellant, and that costs would be payable to the appellant. In the alternative, he sought a new trial with a direction to the trial judge to determine whether the appellant had done what he had contracted to do, not whether he should do extra work for the plaintiff.
8Appellant’s counsel outlined the matter as follows. The appellant, he said, had done the work contracted for, and had been paid for it. The dispute was over whether the defendant was hired to fix a leaking wall, which the plaintiff had hired a subsequent contractor to do for a price in excess of $10,000 (which was then the Small Claims Court’s monetary jurisdiction limit). The appellant did not dispute that that work had been done by the subsequent contractor, nor the price of it. The appellant did dispute paying for that work through the trial judgment.
9In more detail, appellant’s counsel submitted that the trial judge had erred in law in inferring an additional contract to fix the leaking wall for which there is no evidence and no consideration, relying on the parol evidence rule.
10One formulation of the parol evidence rule is found in Waddams’ text, The Law of Contracts, which states that “it is the rule that when a contract has been reduced to writing, extrinsic evidence is inadmissible to modify the writing”.
11Appellant counsel’s argument was that the document signed by the parties should be viewed as the entire contract, the trial judge should have considered only that document when deciding if the appellant had done the work required of him, there was no indication that the appellant had not completed that work, and the contract did not require the appellant to fix the garage from leaking. He went on to say that the work that the plaintiff subsequently claimed should have been done to fix the leak was additional work, for which there was no contract nor consideration.
12Respondent’s counsel noted that the trial court had accepted the plaintiff’s evidence, rejected the defendant’s evidence, thoroughly examined the evidence, made accurate, detailed findings of fact and found that the bargain between the parties was as the plaintiff had said it was. He submitted that the trial judge had made no palpable or overriding error and that none was alleged by the appellant’s counsel.
13Respondent’s counsel further submitted that the trial judge had found that the repair of the leaking wall was a major concern of the plaintiff when contracting with the defendant and, implicitly, found that there was a warranty which the defendant breached by not fixing the leak. The remedy was to put the plaintiff into the position she would have been in if the warranty had been satisfied. The measure of damages was the cost for the subsequent contractor to fix the leaking wall, which exceeded the $10,000 jurisdiction of the court at that time. Therefore, the court had awarded to the plaintiff the $10,000 maximum.
14Respondent’s counsel argued that oral contracts are valid and enforceable except if dealing with the statute of frauds, which is not applicable here. The task, then, is to determine what the parties agreed to. The trial judge had found that it was the written document and oral terms together. There was no clear evidence that the written contract was complete so as to preclude the oral terms. Indeed, counsel said, the contract was induced by the defendant’s oral representations. The written part of the contract did not exclude the oral terms. In support, he referred to the head note of the case of Carman Construction Ltd. v. Canadian Pacific Railway Co. et al. 1982 52 (SCC), [1982], 1 S.C.R. 958.
15I do not accept the appellant’s contention that the respondent’s request to have the leak in the wall dealt with involves a second job for which there was no contract nor consideration.
16On the contrary, I find it to be clear on the evidence that the respondent wanted the leak dealt with at the outset and expressed this to the appellant who then drew up the written part of the contract. When the respondent questioned the appellant about the draft contract’s terms, she received assurances from the appellant that it would deal with the leak.
17Therefore, I agree with the respondent’s position that the contract was a combination of written and oral terms and that the oral terms included a warranty regarding the leak which was breached when the appellant’s work failed to fix it. I also agree with the amount of the judgment as determined by the trial judge. I find that the judge made no error of law as alleged by the appellant. Therefore, I dismiss the appeal.
Justice J. A. S. Wilcox
Released: 02162011