CITATION: Stolwyk v. Consitt, 2012 ONSC 6196
COURT FILE NO.: (Perth) 860/10
DATE: 20121031
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
Leonard Stolwyk
William Parker and Patrick Snelling, for the Appellant
Appellant (Plaintiff)
- and -
Paul T. Consitt and Secure Foundations
Pierre Champagne, for the Respondents
Respondents (Defendants)
HEARD: August 10, 2012
REASONS FOR JUDGMENT
Quigley, J.
[1] This is an appeal from a Small Claims Court decision of The Honourable Deputy Judge McNabb dated November 15^th^, 2010, at Perth, Ontario.
[2] Leonard Stolwyk (hereinafter referred to as the "appellant") was the plaintiff in an action against Paul T. Consitt and Secure Foundations (hereinafter referred to as the "respondent") as defendants.
Background
[3] In July, 2006, the appellant retained the respondent, a professional home inspector, to conduct a pre-purchase home inspection of a cottage the appellant was contemplating purchasing.
[4] The home inspection was conducted by the respondent in the presence of the appellant.
[5] A verbal and written report was provided to the appellant at that time.
[6] The appellant purchased the cottage, relying in part, he alleges, on the report by the respondent that the beams and floor joists were in good condition.
[7] Subsequently, a contractor working on the cottage, discovered rot in the beams and floor joists.
[8] The respondent re-attended on May 8, 2007 to conduct a follow-up inspection and in a letter dated May 31^st^, 2007, noted the extent and degree of wood rot that was concealed from view at the time of the July, 2006 inspection.
[9] The appellant testified at the trial that he did not see any indication of rot until it was brought to his attention by the contractor.
[10] The respondent testified at trial that he had explained to the appellant prior to the inspection that it was to be a visual inspection only and advised of the limits of such an inspection.
[11] After reviewing the evidence of both the appellant and respondent, who were the only witnesses at trial, Deputy Judge McNabb found that the appellant had failed to prove his claim and dismissed the appellant's claim, with costs payable by the appellant.
[12] In his decision, the trial judge stated as follows:
The onus is on the Plaintiff to prove his case on the balance of probabilities. To succeed in a claim of negligence by a home inspector, the plaintiff is required to lead expert evidence of a professional home inspector establishing the standard of care for the profession and establishing that the inspector did not meet the standard of care. In the case before me, the plaintiff says the inspector was negligent; the inspector says he was not. There is no evidence establishing what the professional standards are for a reasonably prudent home inspector. There is no independent expert evidence as to whether or not the defendant complied with those professional standards. The onus is on the plaintiff to prove his case. The plaintiff did not introduce such expert evidence attesting to the defendant's negligence. Without such expert evidence, the plaintiff has failed to establish negligence by the defendant. Given the existence of rot when he purchased the house, the plaintiff may have a claim but he does not have a claim against the defendant.
[13] The appellant alleges:
(i) the learned trial judge erred by misapprehending the evidence at trial;
(ii) the learned trial judge erred in law by finding there was no evidence upon which he could base a finding that the respondent breached the standard of care required by a home inspector; and
(iii) the learned trial judge erred in law by failing to consider the appellant's claim for breach of contract.
[14] The appellant alleges that photographs taken in the basement of the cottage by him on May 8, 2007 depict extensive rot on the joists supporting the main floor at the junction where they meet the supporting beam and concrete.
[15] The appellant further alleges that the rot should have been visible by the respondent on the first inspection.
[16] The appellant further relies on the respondent's evidence in cross-examination at trial that the rot that was visible in 2007 would have taken several years to occur.
[17] The respondent submits that the trial judge's finding that the appellant had failed to establish the onus on him to prove the respondent's negligence was reasonable given the evidence at trial.
[18] The respondent submits that he was only conducting a visual inspection in 2006 and that the appellant was notified, and agreed, to the limiting conditions in the contract.
[19] The respondent further submits that the rot subsequently found in 2007 was not observable by him in 2006 on the visual inspection.
[20] The respondent testified at trial that he met the standards that are required of the Standards of Practice, set out for home inspectors.
[21] The respondent further testified that his re-attendance at the property on May 8, 2007, approximately ten months after the visual inspection, was a more intrusive inspection not required, nor permitted, in the first inspection. This intrusive inspection included cutting a foam board in order to take a closer look.
Position of the Appellant
[22] The appellant asserts that the trial judge's misapprehension of the evidence and the findings he made as a result of his misapprehension amounted to a palpable and overriding error in the judgment, which should be set aside.
[23] The appellant further states that the trial judge's requirement of expert testimony by the appellant at trial was an error in law. In particular, the appellant states that the trial judge could have found a breach of the respondent's duty of care to the appellant from the evidence and exhibits presented by him at trial.
Position of the respondent
[24] The respondent submits that the trial judge's finding is not only supported by the evidence, but that an appellate court must find that the judge made a palpable and overriding error in making his decision and if there is no palpable and overriding error, an appellate court should not interfere with the trial judge's finding.
Analysis and Decision
[25] The onus was on the appellant at trial to prove:
(a) that the respondent was negligent in the oral and written report provided to the appellant in 2006; and/or
(b) that the respondent had breached his contractual obligation to the appellant by preparing an inaccurate and misleading report.
[26] In his judgment, the trial judge did an extensive review of the appellant's and respondent's evidence at trial.
[27] It is clear, in his judgment, that the learned trial judge rejected the appellant's assertion that the rot observable in 2007 by the respondent should have been detected in the earlier inspection. In this regard, the 2007 inspection by the respondent was not subject to the same constraints that he was under in the earlier inspection. The initial inspection was limited by the fact that only a visual inspection could take place in 2006.
[28] The requirement of expert testimony supporting an allegation of negligence may not be necessary in cases generally. However, expert testimony, which might have assisted the trial judge, was not presented at trial.
[29] I find that the trial judge's finding that the appellant had not satisfied the onus of proof required of him is supported, and is reasonable, based on the evidence.
[30] It is quite clear from the trial judge's decision that he accepted the respondent's testimony that the rot was not observable by the respondent in his 2006 visual inspection. In reaching that determination, he found that the photographs in 2007 were not determinative of that issue. I agree with him.
[31] I find that the judge's decision to place little weight on the May, 2007 photographs is a reasonable finding based on the evidence.
[32] Therefore, the appeal will be dismissed.
[33] If the parties cannot agree on costs, they may provide their submissions to me in writing within 30 days of the date of this judgment.
__________________________________
MR. JUSTICE MICHAEL J. QUIGLEY
Released: October 31, 2012
CITATION: Stolwyk v. consitt, 2012 ONSC 6196
COURT FILE NO.: (Perth) 860/10
DATE: 2012/10/31
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
Leonard Stolwyk
Appellant
(Plaintiff)
- and --
Paul T. Consitt and Secure Foundations
Respondents
(Defendants)
REASON FOR JUDGMENT
Quigley, J.
Released: October 31, 2012