Mohamed v. Abdulkadir, 2012 ONSC 6180

KITELEY J. (ORALLY):

Background

1This is an appeal from the decision of Deputy Judge Martial dated November 15, 2011, in which he awarded judgment in favour of the plaintiff for $5,287.22 less $650 to replace the countertop, less $500 to replace 11 floor tiles, leaving a net of $3,818.22 plus costs of $750.

2The appellant takes the position that the plaintiff, Mr. Mohamed, was required to have a license as a building renovator. The evidence was that he did not have a licence. The appellant takes the position that the contract was illegal and unenforceable as a result of Mr. Mohamed not being licenced.

Standard of Review

3Neither the appellant nor the respondent is represented on this appeal. Neither has dealt with the Standard of Review on an appeal such as this.

4I can only interfere with the decision of the trial judge if I am satisfied that the trial judge erred in law or in fact. According to Housen v. Nikolaisen, I may overrule the trial judge if he failed to apply the law correctly. I may overrule the trial judge on his findings of fact if I am satisfied that he made a palpable and overriding error. On questions of mixed fact and law I have the jurisdiction to overrule based on a spectrum between correctness and palpable and overriding error.

Analysis

5The appellant makes reference to both building permits and licences. The only issue in the appeal is the licence. At p.131 the trial judge held that there were deficiencies. He went on to say “the issue then becomes whether the requirement that the contractor be licenced has not been established to the satisfaction of the Court”.

6I infer from that ruling that he held that the defendant had not established that the plaintiff was required to be licenced pursuant to the Toronto Municipal Code. This is a finding of fact as to whether the nature of the work done fell within the definition in the Toronto Municipal Code.

7The evidence is that the plaintiff did not hold a licence pursuant to s.545-2 of the Toronto Municipal Code which says as follows:

(52) Every person engaged in the business of altering, repairing or renovating buildings or structures or constructing radiation fallout structures, other than building contractors whose principal business is the construction of buildings or structures.

At paragraph 53:

There shall be taken out by the following persons the licence from the Municipal Licensing and Standards Division authorizing them respectively to carry on their several trades, businesses and occupations in the City of Toronto for which licence the person obtaining the same shall pay to the Municipal Licensing Standards Division at the time of taking out such licence the fee fixed by this chapter, and no person shall, within the City of Toronto carry on or engage in any of the said trades, businesses or occupations until he or she has procured such licence so to do.

8The trial judge heard evidence from the plaintiff and from the defendant as to the nature of the work that was done. He heard evidence from a home inspector which he rejected for the reasons indicated. He heard submissions that a licence was required and that the contract was illegal because the contractor had no licence. He was referred to Chung v. Idan, [2006] O.J. No. 299 and Kocotis v. D’Angelo, [1958] O.R. 104-127.

9The defendant had raised as a defense at the trial that the plaintiff was not licenced. The burden was on her to satisfy the Court that the nature of the work that was done meant that the plaintiff required a licence.

10The appellant firmly believes that Mr. Mohamed was engaged in the kind of work that required a licence, but her firm belief does not mean that I must overturn the decision. On this record I am not persuaded that the trial judge made a palpable and overriding error of fact.

Disposition

11The appeal is dismissed.