CITATION: Jiang v. Lum, 2011 ONSC 3608

DIVISIONAL COURT FILE NO.: 09-DV-1533

DATE: 20110613

ONTARIO

DIVISIONAL COURT

SUPERIOR COURT OF JUSTICE

B E T W E E N:

JOAN JIANG, WEB BRIDGE E. CORP.

William N. Fuhgeh, for the Appellants

Appellants

• and -

ANITA LUM

James B. Barnes, for the Respondent

Respondent

HEARD: May 18. 2011

REASONS FOR JUDGMENT

J. Mackinnon J.

1This is an appeal from the judgment of Small Claims Court Deputy Judge Gilbert dated June 28, 2009. The case concerned an alleged breach of contract for the sale and installation of a granite countertop, backsplash and sink. The trial judge found that the contract was for the supply and installation of the materials, that the contract had been breached by the Defendants, that both the corporate and personal Defendants were liable and that the Plaintiff’s refusal to accept their proposal to rectify the breach was not a failure on her part to mitigate her damages.

2The standard of review on the appeal is not in dispute and is set out in Bell Canada v. The Plan Group, 2009 ONCA 548 at paragraph 129:

As my colleague noted, historically, interpretation of a contract was treated as a question of law, reviewable on a standard of correctness. However, Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31 dictates that a more nuanced approach be taken by reviewing courts. The standard of review in contractual interpretation -- as in other types of civil proceedings -- depends on the nature of the question that the trial judge decided: was it one of law, fact, or mixed law and fact? Questions of law are reviewable on a standard of correctness. Questions of fact are reviewable on a standard of palpable and overriding error, or the "functional equivalents" of "clearly wrong""unreasonable" or "not reasonably supported by the evidence": H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, [2005] S.C.J. No. 24, at para. 110. Questions of mixed law and fact, however, lie along a spectrum, with some questions being more akin to questions of law and others being more akin to questions of fact.

3The Appellants have submitted that the trial judge erred in law in holding both the personal and corporate Defendants liable. I disagree. He correctly stated that a corporation using a trade name, as was the case here, has an obligation to disclose the registered corporate name.¹ This was not done. The original invoice described the party with whom the Plaintiff was contracting as “Builders World” without indicating that this was a business name of an incorporation. In addition, the personal defendant accepted payment in her own name by two separate cheques. The trial judge found as a fact that she was not pressured to do so. These findings entitled the trial judge to find Ms. Jiang personally liable.² For these reasons he did not err in law in imposing liability on both Defendants.

4The Appellants also submitted that the trial judge conducted the trial in a way that gave rise to a reasonable apprehension of bias. The essence of the submission is that he ought to have questioned the Plaintiff on certain aspects of her testimony. There was no obligation upon the trial judge to do so. Insofar as the bias argument is based upon the reasons for judgment, these do not reflect bias but rather are findings of fact and credibility made by him based upon the evidence before him. There is no basis to this ground of appeal.

5The balance of the grounds of appeal attack findings of fact and credibility made by the trial judge. He did not believe the Defendant Jiang’s testimony that the contract was for materials only. He found as a fact that she hired the individual who took the measurements for the countertop and that the measurements were incorrect. He found that this was the fundamental breach of the contract. He accepted the testimony of the Plaintiff and of Mr. Finizia with respect to the deficiencies in the countertop namely that it was off centre. The trial judge gave cogent reasons as to why he preferred the testimony of the plaintiff over that of Ms. Jiang. He expressly stated that Ms. Jiang’s credibility was to be taken to task. He cautioned himself appropriately with respect to Mr. Finizia’s testimony because he was the contractor hired by the Plaintiff to do the repair. Having done so the trial judge found Mr. Finizia’s testimony to be very clear and uncontradicted and he accepted it. The trial judge considered the proposal that had been made by the Defendants to rectify, by installing the countertop off centre and transforming two working drawers to decorative facings only to facilitate this. He found that given this was a contract for the supply and delivery of a custom made granite countertop where aesthetics are key, this was not something that the Plaintiff should be required to accept by way of mitigation of damages. There was sufficient evidence before the judge as to the quantum of damages which he was entitled to, and did accept.

6All of these findings of fact and credibility are well within the province of the trial judge and are sustainable by the evidence before him. The Appellants have not made out any palpable or overriding error in this regard.

7The Appellants also submit that the real problem was in the size of the sink that the plaintiff ordered on June 8, which they say is larger than the one she stipulated for on May 28. There are several difficulties with this submission. The trial judge found that the problems all originated in the fact that the measurements were done incorrectly. He did not find that the sink was the problem. This court cannot substitute findings of fact for those made at trial. In addition, the emails referred to by the Appellants in support of this submission do not establish that the Plaintiff took responsibility for the size of the sink being compatible with the countertop measurements. Ms. Jiang actually suggested the sink size which the Plaintiff accepted.³ There was no evidence at trial that the sink as ordered was in fact deeper than the previously contemplated sink other than hearsay offered by the Defendant Jiang. There were other deficiencies by the Defendants including that no provision had been made for a bulkhead, all of the granite ordered was not delivered, the installer had broken the wall and vapour barrier, the kitchen drain could not be used with the sink that was ordered and the faucets could not be installed where required. The record of evidence before the trial judge fully supports his finding that the incorrect measurements taken for the counter top was the main cause of the problems and was the material breach of the contract.

8For these reason the appeal is dismissed. Costs are awarded to the successful Respondent on a partial recovery basis fixed in the amount of $10,000 inclusive of fees, disbursements, HST and GST. In fixing costs in this amount I have taken into account the Appellants successful motion before Marrocco J. and factored in a reduction of $1,500 on that account.

J. Mackinnon J.

Footnotes

1. 1Business Corporations Act, R.S.O. 1990 c.B16 s. 10(5)
2. 2Truster v. Tri-Lux Homes Ltd., [1998] OJ No. 2001
3. 3This email was included in the Appellants’ Appeal Book but was not actually part of the trial record.