Court File and Parties

CITATION: Omorodion v. Obiozoh, 2014 ONSC 6421

DIVISIONAL COURT FILE NO.: 134/14

DATE: 20141104

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: SANDRA OMORODION, Respondent/Appellant

AND:

freddrick obiozoh, Plaintiff/Respondent

BEFORE: C. Horkins J.

COUNSEL: Sandra Omorodion, acting in person

Bola Adetunji, for the Plaintiff/Respondent

HEARD at Toronto: October 30, 2014

ENDORSEMENT

[1] This is an appeal from the decision of Deputy Judge Papageorgiou (“the trial judge”) dated February 21, 2014.

[2] The dispute arises out of the sale of a property located at 54 Foxrun Avenue (the property) that Sandra Omorodion (“the appellant”) sold to Fredrick Obiozoh (“the respondent”). The property was a residential home. Along the rear of the property was a retaining wall that had deteriorated.

[3] The parties signed an Agreement of Purchase and Sale (“Agreement”) dated March 18, 2012 for the sale of the property. The closing date was May 18, 2012.

[4] The Agreement contained the usual title conditions. The appellant was required to provide that the “title to the property [was] good and free from all registered restrictions, charges liens and covenants”. The Agreement was also subject to certain conditions, including financing and an inspection to be done by March 20, 2012. Financing was secured and the inspections were conducted on time, without revealing any deficiencies. The respondent was allowed two site visits before closing.

[5] On May 8, 2012, the City of Toronto issued an order pursuant to s. 15.22 of the Building Code (the order). The order advised the owner (the appellant), that the property did not conform with the standards prescribed by the Toronto Municipal Code and that repairs were necessary to correct the defects before June 7, 2012. The defect described in the order related to the retaining wall in the appellant’s backyard. The order states that the retaining wall “was not being maintained in a structurally sound and/or plumb condition”. The order directed the appellant to carry out repairs necessary to correct the deficiencies on or before June 7, 2012. Further, the order advised the appellant that failure to carry out the necessary repairs could result in a court action, a lien being registered against the property or the repairs being added to the property taxes.

[6] The trial judge found that the appellant knew about this order before the closing date of May 18, 2012 and never told the respondent about the order. The respondent did not learn about the order until after he had purchased the property.

[7] The respondent commenced an action in the Small Claims Court against the appellant for recovery of damages that represented the cost to replace the defective retaining wall.

[8] The Deputy Judge found that the appellant actively concealed the defect in the wall and made a decision not to tell the respondent about the order when she met with the respondent on May 12, 2012 for the final site inspection.

[9] The appellant argued at trial that she was not liable because the respondent conducted an inspection that should have revealed the defect in the wall. The appellant also claimed the inspector told the respondent about the defects in the wall.

[10] The trial judge stated that even if the inspector told the respondent about the defect in the wall this “is not the same thing as being under city order to do that work with consequences for not doing it. The city order, it is an issue of the title of the property, and even a positive inspection does not relieve the seller of its obligation to deliver good title.”

[11] The trial judge found that the order was a defect on title and under the Agreement the appellant promised to provide free and clear title to the respondent.

[12] The trial judge ordered the appellant to pay the respondent $18,546 plus disbursements and interest. The appellant appealed.

Appellant’s Request to File New Evidence

[13] The appellant filed an affidavit on this appeal that included evidence that was not before the trial judge. She did not file a notice of motion for leave to file fresh evidence. Counsel for the respondent agreed to proceed as if the appellant had served a notice of motion.

[14] Pursuant to s. 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, the Divisional Court, on an appeal, may receive fresh evidence or new evidence. Pursuant to rule 61.16(2), a motion to receive further evidence is to be heard by the panel hearing the appeal.

[15] The test for receiving fresh evidence is set out in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759 and Sengmueller v. Sengmueller (1994), 1994 8711 (ON CA), 17 O.R. (3d) 208 (C.A.). The court will consider the following criteria (as set out in Sengmueller and recently applied in Centre City Auto Sales Inc. v. Kalsatos, 2013 ONCA 373 at para. 3):

• Is the evidence credible?
• Could the evidence have been obtained prior to trial through the exercise of reasonable diligence?
• If the evidence were admitted, would it likely be conclusive of an issue in the appeal?

[16] The affidavit consists primarily of a review of evidence that was before the trial judge or evidence that the appellant could have obtained prior to trial through the exercise of reasonable diligence.

[17] This is not fresh evidence. The appellant does not have the right to try and recast her evidence on this appeal in a more favourable way or seek to file evidence that she could have obtained prior to trial.

[18] There is one piece of evidence in the affidavit that deals with events that happened after the trial. On March 26, 2014, the appellant states that she sent an email to Danny Prezioso, Municipal Standards Officer. The email states as follows:

The buyer of my house is using the order you wrote against me in court. I went to the City of Toronto to determine the status regarding the order and I was told the order was rescinded.

Sir, please I would like you to send me a letter indicating that the order has been rescinded.

[19] Mr. Prezioso replied by email on March 28, 2014 and stated that “Municipal Licensing and Standards has no Open Investigations on 54 Foxrun Avenue.”

[20] The appellant also states in her affidavit that she spoke to Mr. Williams, another officer at the City of Toronto, and he told her that the “fence had been patched up by the other owners and it is acceptable to the City and that is why the order has rescinded”.

[21] With respect to the evidence set out above in paras. 18-20, the appellant has not satisfied the test for new evidence. The evidence is not credible and if admitted, it would not likely be conclusive of the issue in this appeal.

[22] The trial took place on February 21, 2014. The trial judge asked the respondent if he had fixed the damaged wall and he said that he had not yet done so because it would cost a lot of money to repair the wall and the City had allowed him some time to take care of the repairs.

[23] This was the evidence that was before the trial judge. The order that the City made on May 8, 2012, had not been rescinded when the judge issued her judgment against the appellant in favour of the respondent.

[24] Mr. Prezioso’s email does not say that the order had been rescinded. In fact the appellant does not have a letter from anyone at the City to confirm that the order was rescinded. Although she says in her affidavit that this is what she was told, such evidence is not reliable and is not conclusive of the issue on the appeal.

[25] Even if the City order was rescinded there is no evidence to explain why it was rescinded. As of the trial, the order was still in effect and the respondent was required to repair the wall. If he has since repaired the wall then this might explain why Mr. Prezioso told the appellant that the City does not have an open investigation on 54 Foxrun Avenue.

[26] In summary, the appellant has not satisfied the test for new evidence. As a result, I deny her request to file such evidence.

The Appeal is Denied

[27] The appellant says that the trial judge erred because her decision was unreasonable. She says that it was unreasonable because the judge did not believe her and there has never been a lien registered against the property.

[28] The Supreme Court of Canada set out the standard of review applicable in appeals from judges’ orders in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235:

• on questions of law, the standard is correctness;
• on questions of fact, the standard is palpable and overriding error;
• on questions of mixed fact and law, the Court stated that there is a spectrum. Where there is an extricable legal principle, the standard of review is correctness. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.

[29] The trial judge considered the evidence and gave cogent reasons why she found in favour of the respondent and granted judgment against the appellant.

[30] The trial judge assessed the evidence and found that the appellant “actively concealed the defect in the retaining wall.” Her reasons provide clear evidence to support this finding of fact. The trial judge recognized that there was a dispute between the parties about what had happened. The trial judge accepted the evidence of the respondent and his witnesses because it was “more consistent and straightforward”. The trial judge made no palpable and overriding error.

[31] On the issue of a lien, the appellant fails to understand the basis for the judgment against her. The order stated that a lien might be registered on title if the repairs were not completed as the order directed. It was the appellant’s decision to actively conceal the order (and the consequences for not complying) from the respondent, that was the basis for the judgment against her. The respondent had until May 4, 2012 to check title and the order arose after this was done. When the appellant met with the respondent on May 12, 2012, she decided that she would not tell him about the order. As a result, the respondent did not have the opportunity to back away from the sale under the terms of the Agreement or alternatively request a discount in the purchase price to account for the cost of the mandatory repairs.

[32] In summary, the trial judge properly assessed all of the evidence and made findings of fact that support the judgment. The trial judgment correctly identified and applied the law and she made no palpable and overriding errors.

[33] The appeal is dismissed. I order the appellant to pay the respondent his costs that I fix at $1,500 all inclusive.

C. Horkins J.

Date: November 4, 2014