Ontario Superior Court of Justice

Citation: D & R Holdings (Markham) Inc v. Singer et al, 2012 ONSC 980 Court File No.: DC-11-00288-00 Date: 2012-01-10

Between:

D & R Holdings (Markham) Inc. o/a D & R Construction & Restoration o/a D & R Roofing Construction & Restoration (Appellants)

• and -

Sandra Singer, AKA Singer-Tabachneck (Respondent)

Counsel: Belinda Schubert, for the Appellants Jeffrey Silver, for the Respondents

Heard: December 7, 2011

Reasons for Decision

Edwards J.

[1] The appellants’ appeal from the judgment of Deputy Justice Stabile of the Ontario Superior Court of Justice, Richmond Hill Small Claims Court dated February 22, 2011, in which the learned trial judge found in favour of the respondents and awarded $12,608.80, plus $900.00 costs.

[2] The genesis of the appeal arises out of roofing work done by the appellants on the respondents’ house that is alleged to have been so deficient as to require the entire roof to be replaced.

[3] The primary argument of the appellant arises out of findings of the learned trial judge at paragraph 71 of his Reasons which I quote in their entirety:

Offset of shingles: I am not persuaded that the offset of the shingles, as seen in at least five (5) of the photographs, is consistent with the expected pattern or with manufacturer specifications. Shingles are installed such that following the initial row at the bottom of the roof; subsequent rows are staggered so that the cut lines are offset. To achieve this result, installers are instructed to cut certain portions from the end of the second and third rows up and then back to a full shingle on the fourth row, thereby starting the process over again. This process results in a consistent pattern pleasing to the eye. More importantly however it staggers the shingles so that water does not get under the shingles and into the roof below. It seem likely therefore that the erratic offset as seen in the photographs resulted from an error in cutting or failure to cut the first or second row of shingle following a full shingle at the edge.

[4] The appellants submit that there was absolutely no evidence before the learned trial judge to support any of the findings of fact set forth above.

[5] In argument, counsel for the respondents took me to the evidence of Bradley Wyatt at page 18 and 19 of the transcript. While Mr. Wyatt does refer to an offset of five to six inches, the balance of the evidence in no way supports the additional findings referenced in paragraph 71 above. While it is open to a trial judge to make findings of fact based on inferences to be drawn from the evidence, nowhere on the evidence that I was taken to, is there any suggestion that the learned trial judge had evidence to make the findings of fact set forth in paragraph 71 above.

[6] The appellants refer me to a decision of Haines J., R. v. Barria, 2002 CarswellOnt. 1187 (Ont. S.C.), in support of the proposition that the judgment should be set aside on grounds that the trial judge erred in law in relying on facts not in evidence. If the decision of the learned trial judge was based exclusively on the findings of facts set forth at paragraph 71 above, I would have no hesitation in agreeing that in the absence of evidence to support the aforesaid findings of fact the judgment would have to be set aside.

[7] I am satisfied however, from a review of all of the evidence that the decision of the trial judge was correct. There were many deficiencies referred to in evidence that would have justified the result in this matter. Perhaps the most significant deficiency was with respect to the overhang. In that regard Mr. Wyatt, who testified for the respondents, gave evidence that the shingles did not properly overhang the roof edge. As noted by the trial judge, this is a critical aspect of a roof installation such that the complete removal of the roof would be necessitated. That, in of itself would justify the award made by the learned trial judge in this matter.

[8] Counsel for the appellants acknowledged in argument before me that the learned trial judge did not have any evidence to the contrary that the problem with the overhang could be rectified in a manner other than by the removal of the new roof. While the learned trial judge may have been wrong in his findings of fact as they relate to those findings set forth in paragraph 71, there was ample other evidence to justify the ultimate award in this matter. The appeal is therefore dismissed with costs. I may be spoken to with respect to the quantum of costs. Counsel are requested to provide their written submissions limited to two pages in length and filed with the court within 15 days from the date of release of these reasons, if they cannot agree on costs.

Justice M. Edwards

Released: January 10, 2012