CITATION: Fazari v. Simpson, 2011 ONSC 5953
BARRIE COURT FILE NO.: 10-1328
DATE: 20111011
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
SILVANO FAZARI
Appellant
– and –
JAMES CRAIG SIMPSON
Respondent
On his own behalf
On his own behalf
HEARD: October 5, 2011
ON APPEAL FROM THE DECISION OF DEPUTY JUDGE E. SYMONS DATED NOVEMBER 18, 2010
EBERHARD, J.
[1] The appellant homeowner appeals the decision of Deputy Judge E. Symons rendered November 18, 2010 in the amount of $1,520 together with costs of $400 and prejudgment interest from March 16, 2010 at the Courts of Justice Act rate and post-judgment interest also at the Courts of Justice Act rate.
[2] I begin with the observation that Deputy Judge Symons conducted a trial, demonstrated by the transcript, in a manner showing patience and considerable skill in instructing the litigants as to procedure, accommodating their lack of experience, maintaining an unbiased and impartial attitude and explaining his reasons as required. He, and so many of the Deputy Judges of the Small Claims Court, have my admiration in their task. Deputy Judge Symons clearly pursued a just result and responded to the presentation made before him.
[3] The presentation before him was unorganized. I make that observation without criticism. I merely state the fact that perfect justice is unlikely to arise from an imperfect presentation. The evidence suffered from lack of independent support and the testimony was made chaotic by the litigants, particularly the appellant, who over-spoke the court and the witnesses and attempted to put forward his evidence and views in his questions rather than in his testimony. Nevertheless I could discern from the record that Deputy Judge Symons attempted to sort through the presentation to comment on the information that had been placed before him. It must be observed, however, that the evidence cited from the transcript in the appeal material was not nearly so clearly emphasized in the presentation that Deputy Judge Symons had to adjudicate.
[4] That chaos accounts for an error in Deputy Judge Symons’ comments on the evidence in his Reasons for Judgment. It is raised in the Appellant’s grounds for appeal at Part 3C. The evidence does not support that there was any change in the colour of paint based on the recommendations of the home-stager. In his reasons, Deputy Judge Symons commented about paint cover when colours are changed as an example of how work on a project might expand during the course of the contract. That reason for the expansion of the contract is not supported by the evidence. However, other examples of reasons why the work expanded were supported in the evidence. He cited repairs that were outside of the scope of the Respondent painter’s work. Such repairs were supported in the evidence. Delay attributable to those repairs was supported by the evidence. The need for extra coats of paint was supported by the evidence. What the Deputy Judge got wrong was his surmise that the extra coats of paint might have been required because of a colour change. I therefore agree with the ground of appeal set out at Part 3C of the Appellant’s Factum but I do not agree that the error had any impact on the overall findings.
[5] At Part 3A the Appellant recites that Deputy Judge Symons did not acknowledge that Silvano Fazari had paid Mr. Simpson $1,040. I agree that he did not expressly do so. However, in his Reasons for Judgment at page 87 he entered judgment in the amount of $1,520. He had found that Mr. Simpson was entitled to be paid fairly for the work he did at $20 per hour. The evidence indicates that $440 was paid for cleaning the walls which was outside of the estimate of $1,200 for painting. The amount paid towards the painting was $600.
[6] By working back through the mathematics of a judgment in the amount of $1,520 and adding back in the $600 payment that would suggest a judgment in the amount of $2,120 at $20 per hour making 106 hours at an eight hour day equalling 13.25 days. This is consistent with the evidence that the Respondent was at the job painting for 13 days. What is absent is the invoice which the Respondent says was before the court. On the evidence contained in the transcript of 13 days of attendance I can only calculate a total price based on work done at $2,080 less the $600 payment for an amount owing of $1,480.
[7] Because the Respondent has failed to provide this appeal court with figures justifying the calculation of $1,520, I am unable to uphold Deputy Judge Symons to that extent. Accordingly the judgment will be reduced from $1,520 plus costs plus interest to $1,480 plus costs plus interest.
[8] The next ground of appeal brought by the Appellant is at 3B that Deputy Judge Symons did not determine when the contract was made and the contract was for a fixed price.
[9] I disagree. I interpret the judgment of Deputy Judge Symons to mean that the estimate of $1,200 was appropriate for the work apparent at the time of the estimate. He included in his reasons the finding that the job expanded. I have already commented that he was in error in finding that the reason for expansion included a colour change recommended by the home-stager. Nevertheless, his finding that the job expanded was supported by the evidence and I therefore have no reason to substitute my opinion.
[10] At 3D, the next ground put forward by the Appellant was that Deputy Judge Symons asked the opinion of an unqualified witness. As developed, this ground is based on the idea that Mr. Munshaw, a general contractor, was not independent of the Respondent.
[11] There was evidence for the trial judge to assess as to the nature of the relationship between contractor Munshaw and painter Simpson. Munshaw had supplied the Appellant with Simpson’s name as they have done work together in the past and Mr. Simpson did do painting at Munshaw’s relative’s home. The evidence of potential bias was there for the trial judge to assess but he makes a finding that Munshaw constituted an independent witness. He did not rely on him for expert testimony. It is within the purview of the trial judge to assess the extent to which he accepts the evidence of any witness and he found Mr. Munshaw’s evidence to be helpful.
[12] The next ground of appeal at 3E was that Deputy Judge Symons did not take into consideration the length of time to complete the job. This is not so. The delay was considered and the Trial Judge found it was not due to the Respondent, but rather the condition of the Appellant’s home that needed to be addressed before paint could be applied. It was open to the trial judge to find, as he did, that the repairs were not the responsibility of the painter.
[13] The final ground for appeal at 3F was that Deputy Judge Symons did not apply the Consumers Protection Act which requires Mr. Simpson (contractor) to provide a written estimate for his work. The Trial Judge found that the Consumers Protection Act did not apply to this oral contract.
[14] The Appellant cited the flowing sections:
PART I INTERPRETATION AND APPLICATION
Interpretation
- In this Act,
“consumer agreement” means an agreement between a supplier and a consumer in which the supplier agrees to supply goods or services for payment; (“convention de consommation”)
Application
- (1) Subject to this section, this Act applies in respect of all consumer transactions if the consumer or the person engaging in the transaction with the consumer is located in Ontario when the transaction takes place. 2002, c. 30, Sched. A, s. 2 (1).
Consumer agreements
- A consumer agreement that meets the criteria of more than one type of agreement to which this Act applies shall comply with the provisions of this Act and of the regulations that apply to each type of agreement for which it meets the criteria, except where the application of the provisions is excluded by the regulations. 2004, c. 19, s. 7 (5).
PART II CONSUMER RIGHTS AND WARRANTIES
Estimates
- (1) If a consumer agreement includes an estimate, the supplier shall not charge the consumer an amount that exceeds the estimate by more than 10 per cent. 2002, c. 30, Sched. A, s. 10 (1).
Ambiguities to benefit consumer
- Any ambiguity that allows for more than one reasonable interpretation of a consumer agreement provided by the supplier to the consumer or of any information that must be disclosed under this Act shall be interpreted to the benefit of the consumer. 2002, c. 30, Sched. A, s. 11.
[15] The Appellant basically asserted the Act should be applied to protect him. I inquired what remedy he sought. He did not answer but I infer from the section 10(1) cite, that he may wish a limitation to the original $1,200 estimate plus 10%. This would bring the painting contract price to a maximum of $1,320 of which $600 is paid and subject to the portion of the contract left uncompleted.
[16] The Trial Judge gave reasons for not applying the Act:
And with respect to the Consumer Protection Act, I’m aware that the Act provides for direct sales contracts and executor contracts which are to be in writing and there, in some cases, there are detailed requirements as to what needs to be in the written contract and, if that were the case here, then the action would fail for that reason. However, this is an oral or verbal contract that you reached between the two of you. I find that it’s not a direct sales contract or an executor contract, something that’s to be performed after the fact of signing the contract but rather it’s worked on by Mr. Simpson and id to the fair value of the work that he did and the question then roils down to, you know, what the fair value is and, you know, what should he have been entitled to in the first place and has he been paid, is there any money owing to him at the present time.
[17] The trial judge then went on to address those issues, finding, in effect, that the Act did not apply. After completing his oral judgment, the trial judge was brought back to the subject of the Act:
Mr. Fazari, I explained to you why I was not prepared to deal with the matter on that basis. The Consumer Protection Act, as I’ve said, covers certain types of contractual arrangements. Not all and I don’t believe that it has any application in this case.
[18] An executory contract, as defined in Black’s Law Dictionary, is:
A Contract that remains wholly unperformed or for which there remains something still to be done on both sides, often as a component of a larger transaction and sometimes memorialized by an informal letter agreement, by a memorandum, or by oral agreement.
[19] The intended application of the Consumer Protection Act is informed by Part IV of the Act which specifies certain types of contracts:
PART IV RIGHTS AND OBLIGATIONS RESPECTING SPECIFIC CONSUMER AGREEMENTS
Time Share Agreements
Personal Development Services
Internet Agreements
Direct Agreements
Remote Agreements
[20] I consider whether the Trial Judge misapprehended the scope of the legislation. Clearly, it does apply to “executory contracts” as explained by the Trial Judge:
20.(4) The Consumer Protection Act, as it existed immediately before its repeal under the Consumer Protection Statute Law Amendment Act, 2002, continues to apply to executory contracts entered into before its repeal. 2002, c. 30, Sched. A, s. 21 (4).
[21] I examined particularly whether the contract in this case may be described as a “direct agreement”. Definitions in Part IV assist in my interpretation:
- (1) In this Part,
“direct agreement” means a consumer agreement that is negotiated or concluded in person at a place other than,
(a) at the supplier’s place of business, or
(b) at a market place, an auction, trade fair, agricultural fair or exhibition; (“convention directe”)
[22] This is subject matter quite different than an established painting contractor, which the Respondent is, who is contacted and hired on the recommendation of the general contractor, in this case Munshaw. Construction contracts are not generally governed by Consumer Protection Act legislation though a door to door offer of construction services could, on the particular facts of the circumstance, fall under its provisions.
[23] I find that the Trial Judge’s reasons, using executory contract as an example of the application of the Act, were incomplete but not incorrect in finding that the Act did not apply to the painting contract in the present case.
[24] For the reasons set out in paragraph 6 herein, I vary the judgment of the Trial Judge to find that the total price based on work done was $2,080 less the $600 payment for an amount owing of $1,480.
[25] The appeal is granted to set aside the judgment as entered and replace it with judgment for the Plaintiff (Respondent herein) against the Defendant (Appellant herein), Silvano Fazari, in the amount of $1,480, costs of $400.00, prejudgment interest from March 16, 2010 at the Courts of Justice Act rate and post-judgment interest at the Courts of Justice Act rate.
[26] The parties may deliver written costs submissions of no more than 1 page to the S.C.J. judicial secretaries by November 1, 2011.
EBERHARD, J.
Released: October 11, 2011