Court File and Parties
DIVISIONAL COURT FILE NO.: 251/11
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
PRIMARY SEAL WINDOWS INC.
Plaintiff
(Respondent)
– and –
SVITLANA BAHDANAVA
Defendant
(Appellant)
AND BETWEEN:
SVITLANA BAHDANAVA a.k.a. SVETLANA BOGDANOV
Plaintiffs
(Appellants)
-and –
PRIMARY SEAL WINDOWS INC., SAM TONKONOG and PAUL TONK
Defendants
(Respondents)
In Person
Wade Morris, for the Respondents
HEARD at Toronto: December 11, 2012
Reasons for Judgment
LEDERER J. (orally)
Background
1This is an appeal from a judgment of the Small Claims Court.
2The respondent, Primary Seal Windows Inc. (“Primary Seal”) agreed to supply and install doors and windows in the home of the appellant, Svitlana Bahdanava. The doors and windows were installed by a representative of Primary Seal. On the day the installation was completed she signed a “Certification of Installation.” On it, under the heading “Attitude of Installer” the appellant inserted the word “perfect” and under “Comments” she wrote “very good job. We are extremely satisfied... .” (see: Primary Seal Windows Inc. v. Svitlana Bahdanava, Court File No. SC-09-92455-00 at para. 8).
3Despite this, the appellant refused to pay the price to which the parties had agreed ($9,000). Primary Seal brought the action, in Small Claims Court, for the amount that remained owing ($6,590). The appellant defended the action and brought a “Defendant’s Claim” for damages for breach of contract for “… failure to manufacture, supply and install Energy Star rated windows and doors, for faulty workmanship and damages caused during installation” (see: Primary Seal Windows Inc. v. Svitlana Bahdanava, supra, at para. 3). The appellant claimed for the full replacement of the doors and windows ($15,980.40).
4Following the Small Claims Court trial, the deputy judge awarded Primary Seal the full amount of its claim being $6,590 but set off certain amounts awarded to the defendant totalling $2,600. The appellant was left to pay the difference to Primary Seal ($3,990).
5This is the judgment from which the appeal is taken.
Analysis
6The principal issues are whether the doors and windows were Energy Star rated and damages to the home of the appellant allegedly caused during installation.
7These concerns reflect findings of fact made by the deputy judge. Absent palpable and overriding error, they cannot be overturned on appeal.
8The windows and doors that were installed are manufactured by, “Weather Seal” a company related to Primary Seal. It operates out of the same building. It manufactures doors and windows installed by Primary Seal. Weather Seal is registered and can and does manufacture Energy Star products.
9It was on this basis that the deputy judge found that “on a balance of probabilities … the [respondent] did not mislead the [appellant] about the manufacture of the product and consequently did not violate the Consumer Protection Act, 2002 S.O. 2002, c. 30, Sched. A, as was referred to by the appellant in the factum that was filed although not mentioned in her oral submissions.
10Primary Seal “insisted that … the doors and windows supplied and installed were in fact Energy Star” (Primary Seal Windows Inc. v. Svitlana Bahdanava, supra, at para. 27). The deputy judge was perplexed by the fact that the seals or stickers that confirm that doors and windows are Energy Star rated had not been affixed to those installed in the home of the appellant. Despite this, the deputy judge did not find, as the appellant suggested he did, that on a balance of probabilities the windows and doors installed were not Energy Star rated. In making this submission, the appellant relied on the following paragraph from the decision of the Small Claims Court:
The court is also not persuaded that a product without a sticker or seal affixed to it is necessarily Energy Star, since from the evidence it is impossible to identify whether the product is Energy Star rated without its seal. Further, CSA (Canadian Standards Association) requires that a seal or sticker must be affixed to every product to confirm compliance with standards. Absent such sticker, the product is not endorsed by CSA. Therefore, if a product is genuinely Energy Star there should be no hesitation in prominently labelling it as such for all to see.
(Primary Seal Windows Inc. v. Svitlana Bahdanava, supra, at para. 38)
11This paragraph does not reflect a finding that the windows and doors purchased by the plaintiff and installed in her home were not Energy Star rated. Rather, it refers to the difficulties the deputy judge had in understanding why the respondent had failed or refused “… to affix the appropriate stickers to prove, as required by the authorities, the authenticity of the product” (see Primary Seal Windows Inc. v. Svitlana Bahdanava, supra, at para. 31).
12While it might have been better if the deputy judge had made a specific statement as to the determination that the product installed was Energy Star rated, there was evidence that supports this conclusion and statements in the decision which confirms that this was the determination of the deputy judge. In his reasons he awarded $1,000 for general damages for the failure of the plaintiff to provide or affix the Energy Star labels on the products sold to the defendant prior to installation (see: Primary Seal Windows Inc. v. Svitlana Bahdanava, supra, at para. 53(c)). In the same vein the deputy judge exercised his discretion not to award costs due to the fact that the plaintiff “… failed to affix the stickers denoting Energy Star authenticity on the products installed” (see: Primary Seals Windows Inc. v. Svitlana Bahdanava, supra, at para. 56). It is not an error or mistake to fail to affix the seals to products which do not qualify as being Energy Star rated. Thus, penalizing the respondent by an award of damages and refusing, on the same basis, to grant costs serves to demonstrate that these were products to which the seals should have been attached and, accordingly, were Energy Star rated. A finding that the windows and doors which were installed in the home of the appellant were rated as Energy Star is the only finding that would be consistent with the remainder of the decision.
13In her factum, the appellant submitted that in installing the windows and doors, the plaintiff caused damages to the window casings and walls which Primary Seal refused to repair. Nothing was said about this in her oral presentation to the court. Nonetheless, this was the second principal area of appeal and some comment is warranted. Primary Seal took the position that damages to the walls were unavoidable and incidental to the installation. Those who gave evidence on behalf of Primary Seal also said that they had attended at the premises to repair some of the damage but were not allowed in the house of the appellant. On this basis, it was argued that the appellant had accepted responsibility for at least some of the damages. The deputy judge confessed to being “puzzled” by the submissions (see: Primary Seal Windows Inc. v. Svitlana Bahdanava, supra, at para. 41). The deputy judge observed that “common sense would dictate that any such incidental damages caused during installation should be repaired by the installer who caused it in the first place” (see: Primary Seal Windows Inc. v. Svitlana Bahdanava, supra, at para. 41). This was confirmed by an expert called by Primary Seal. There is nothing in this that could be said to demonstrate a palpable and overriding error.
14Based upon these facts, the deputy judge was unprepared to agree with the appellant that there was a “total failure consideration” but went on to say that Primary Seal was liable for some of the damages caused (see: Primary Seal Windows Inc. v. Svitlana Bahdanava, supra, at para. 44).
15Based on these findings, the deputy judge considered the value of the damage. He accounted for the failure of the appellant to mitigate. No submissions were made and there is no basis apparent for overturning or amending the award that was made.
Conclusion
16For the reasons I have reviewed, the appeal is dismissed.
COSTS
Costs
17The appellant shall pay costs to the respondents in the amount of $3,327.41 plus HST.
LEDERER J.
Date of Reasons for Judgment: December 11, 2012
Date of Release: December 12, 2012
CITATION: Primary Seal Windows Inc. v. Bahdanava, 2012 ONSC 7080
DIVISIONAL COURT FILE NO.: 251/11
DATE: 20121211
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERER J.
BETWEEN:
PRIMARY SEAL WINDOWS INC.
Plaintiff
(Respondent)
– and –
SVITLANA BAHDANAVA
Defendant
(Appellant)
AND BETWEEN:
SVITLANA BAHDANAVA a.k.a. SVETLANA BOGDANOV
Plaintiffs
(Appellants)
-and –
PRIMARY SEAL WINDOWS INC., SAM TONKONOG and PAUL TONK
Defendants
(Respondents)
ORAL REASONS FOR JUDGMENT
LEDERER J.
Date of Reasons for Judgment: December 11, 2012
Date of Release: December 12, 2012