Court File and Parties
CITATION: Bowen v. Tannis, 2014 ONSC 3024
COURT FILE NO.: 13-DV-1919
DATE: 20140515
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Bowen & Associates Inc., Plaintiff (Respondent on Appeal)
- and –
Fred Tannis, Defendants (Appellant on Appeal)
BEFORE: Hackland R.S.J.
COUNSEL: Ernest G. Tannis, for the defendant (Appellant on Appeal)
Terri H. Semanyk, for the plaintiff (Respondent on Appeal)
ENDORSEMENT
[1] This is an appeal from a Deputy Judge of the Small Claims Court in which he awarded the respondent the sum of $6,945.18 for services rendered pursuant to a contract for services, signed by each of the parties.
[2] The appellant, who suffers from a sleep disorder that can affect his concentration, signed the contract to allow the respondent to remove a large quantity of waste and other items that were on his property, which removal was at the insistence of municipal authorities.
[3] The appellant admits to being "a hoarder" and has had issues with the city in this regard on previous occasions.
[4] It is conceded that all of the work was completed properly and appropriate accounts were rendered. The Deputy Judge stated that the issue raised before him was the narrow one of whether the appellant was lawfully required to pay any amount in excess of what he would obtain by way of tax refund when applying for a disability tax credit. The evidence indicates that the appellant eventually did receive such a tax refund in the sum of $1,528.13, which was eventually paid over to the respondent.
[5] It was argued before the Deputy Judge, and before this court, that the contract required the appellant to pay for the respondent's services only the amount that he would receive as a tax refund in connection with his disability tax credit.
[6] It is acknowledged that the contract does not specifically say this, but such an interpretation is advocated by the appellant on the basis of alleged misrepresentations emanating from the respondent or upon application of the contra proferentem rule of contractual interpretation.
[7] The Deputy Judge arrived at the following conclusion:
On a fair and strict interpretation of this paragraph, I find nothing in the language, substance or context of this paragraph which ties payment of the plaintiff's account to the service to Mr. Tannis in obtaining the Disability Tax Credit. In my view, it merely provides that the plaintiff will assist Mr. Tannis in applying for the tax credit to which he may become entitled. Thus I cannot give effect to counsel's submissions or submission that payment of the plaintiff's account depended upon Mr. Tannis receiving the Disability Tax Credit, which in any event I understand he did receive but did not remit to the plaintiff. I cannot conclude these reasons by observing that in my opinion and upon hearing Mr. Tannis give his evidence, that he was fully attuned to the nature and consequences of the contract he entered into and in my view adopted a deliberate course of action to avoiding paying his legal obligations under that contract.
[8] The Deputy Judge had before him evidence that the contract was carefully reviewed, paragraph by paragraph, before the appellant signed it. There was no evidence of misrepresentation whatsoever. There was no ambiguity in the contract to justify the appellant's personal belief that he should not have to pay directly for the services, beyond handing over his tax refund. There was no lawful basis, in the absence of ambiguity, for application of the contra proferentem rule. I observe as well that the Deputy Judge made certain findings of credibility adverse to the appellant, and it was within his legitimate purview to do so. He had the benefit of listening to the viva voce evidence.
[9] It is well settled law that as a court sitting on appeal, my jurisdiction to interfere with a trial judge's findings, particularly when they are findings of mixed fact and law based at least in part on assessment of credibility, is restricted to intervening on the basis of identifying overriding and palpable errors, see 2066209 Ontario Inc. v. Tannis, 2012 ONSC 6665(Aitken J.).
[10] On my review of the Deputy Judge's Reasons, and upon review of the trial transcript, I am not persuaded that the Deputy Judge made any overriding and palpable error with respect to the issues raised on this appeal. In particular, there is no evidentiary basis to substantiate the allegations of misrepresentation, nor is the contract ambiguous in such a way as to invite an application of the contra proferentem rule.
[11] For the foregoing reasons, this appeal is dismissed.
[12] The respondent is entitled to its costs of this appeal which are fixed in the sum of $2,000 inclusive of disbursements and H.S.T., which is payable by the appellant to the respondent forthwith.
Mr. Justice Charles T. Hackland
Released: May 15, 2014
CITATION: Bowen v. Tannis, 2014 ONSC 3024
COURT FILE NO.: 13-DV-1919
DATE: 20140522
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
Bowen & Associates Inc.
- and –
Fred Tannis
ENDORSEMENT
HACKLAND R.S.J.
Released: May 15, 2014