CITATION: Kleinmintz v. Brentwood, 2014 ONSC 862

COURT FILE NO.: DC-13-0233-00

DATE: 20140205

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

LARRY IRWIN KLEINMINTZ Applicants

– and –

BRENTWOOD ROOFING & ALUMINUM WORK (2004) LTD. and BRENTWOOD ROOFING AND ALUMINUM WORKS LTD. Respondents

Self-represented

K.J. McKenzie, for the Defendants

HEARD: January 28, 2104

REASONS FOR DECISION

ON APPEAL FROM THE JUDGMENT OF DEPUTY JUDGE FISHER DATED JANUARY 31, 2013

J.R. McCarthy j.:

The Appeal

[1] The Appellants appeal to this court from the Judgment of Deputy Judge Fisher of the Barrie Small Claims Court (the trial judge) dated January 31, 2013. The grounds for the appeal as set out in the Notice of Appeal are that:

• the trial judge refused to allow the Defendant Appellant to call expert evidence after the said documentation had been filed and served by IKO Industries Ltd. who had been released by all parties in a Defendant’s Claim;
• the trial judge erred in law by awarding the quantum of damages without relevant evidence to support the decision;
• the trial judge erred in law by failing to consider the relevant jurisprudence and in failing to apply the principles of the relevant jurisprudence to this action;
• the trial judge made findings that were inconsistent with principles of the relevant jurisprudence and failed to apply the principles of fundamental justice.

[2] When the appeal came before me for argument, these grounds were supplanted by questions put to the court through the Appellant’s factum and in their oral submissions. The “issues” that the Appellant wished this court to consider are set out at Part IV of the factum and are as follows:

(a) did the trial judge err in fact and in law when he found that the area was a high wind area requiring further steps to be taken during installation of the roof without relying on expert evidence?;

(b) did the trial judge err in fact and in law when he found that the express disclaimer or exclusionary clause relating to wind is not a valid portion of the contract?;

(c) did the trial judge err in fact and in law when he found that there was a fundamental breach of the contract, that the defendant was negligent and that there was a breach of the warranty and contract.

The Facts

[3] The Plaintiff/Respondent brought an action against the Defendants/Appellants for negligence, breach of contract and breach of warranty in respect of a contract for the installation of a roof on a lake front vacation home being built by the Plaintiff. The Plaintiff was the general contractor on the project. The contract was entered into on or about April 18, 2006 and called for the Appellants to supply and install shingles, skylights, vents, valleys, soffit, facia and eaves trough. The work was completed and the Plaintiff was invoiced on May 5, 2006. The contract provided for a 5 year workmanship warranty. There was a 30 year manufacturers’ warranty on the IKO Renaissance GXL-30 shingles to be used. The contract contained an exclusionary clause which contained the following wording:

“We are not responsible for Acts of God such as wind, fire and ice backup.”

[4] In the spring of 2009, the roof sustained damage when a number of shingles were blown off by high winds. The Appellants attempted to effect repairs to the roof. The Respondent submitted a claim to IKO for replacement shingles. This warranty claim was denied on the basis that the shingles had been improperly installed. The shingles had not been “tab sealed” by the Appellant. The manufacturer’s installation specifications had called for this tab sealing to be performed in high wind areas. After some unsuccessful attempts to arrive at a resolution to the problem, the Respondent elected to replace the roof with a new and upgraded roof.

The Trial Judge

[5] The finding and conclusions of the trial judge can be summarized as follows:

• the evidence established that the location of the vacation home was a high wind area;
• the Defendants did not follow the manufacturer’s instructions to tab seal the shingles in high wind areas;
• the Defendants performed negligent workmanship;
• the Defendants breached the contract;
• the Plaintiff did not receive what he paid for, namely a 30 year roof. This amounted to a fundamental breach of the contract;
• the exclusionary clause did not apply because the wind which caused the damage was not sufficient to constitute an Act of God;
• there was no failure to mitigate on the part of the Plaintiff – had there been offer to repair the entire roof in a timely manner, the Plaintiff would have accepted that. There was no response to the Plaintiff’s December 2009 proposal to remedy the situation;
• the Plaintiff was awarded an amount ($11,000 ) based on the original cost of the roof and an amount to refund him for improper service charges levied for repair work by the Defendants ($385).

[6] I note that the trial judge turned his mind to the quantum of damages claimed and arrived at the conclusion that the Plaintiff was not entitled to the cost of the new roof because of the concept of betterment.

Standard or Review

[7] The applicable standard of review on matters of law is one of correctness. The standard for review on questions of fact is one of palpable and overriding error. Questions of mixed law and fact call for review along a spectrum. If a legal question can be separated out, the review will remain based on correctness but otherwise, questions of mixed fact and law will not be overturned in the absence of palpable and overriding error. (see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.)

Analysis

[8] I am not prepared to disturb the findings of the trial judge on either law or fact or on mixed questions of law or fact for the following reasons.

1. High Wind Area

[9] It was entirely proper for the trial judge to make a factual finding of what constituted a high wind area. “High wind area” is not a legal term; nor is it defined anywhere in the manufacturer’s specifications for installation of the shingles. It appears to be nothing more than a term of the trade in roofing. The court did not hear from a climatologist or any other expert. Nor was it suggested by any witness that a technical classification was common place or necessary in order that a roofer should adhere to the recommendation for tab sealing the shingles. The court heard evidence from the Mr. Phee and Mr. Audia that the vacation home was located in a high wind area. The trial judge assessed that evidence as credible and reliable which he was entitled to do. I am unable to find any palpable or overriding error in the trial judge’s finding of fact.

[10] I am unable to agree with the Appellant that the court declined to hear the evidence of an expert on the subject. There was no evidence that the technical director of IKO, Andy Lodge, had expressed an expert opinion or that he could even be qualified to give such an opinion. Only a portion of a statement that was ascribed to Lodge was put to a witness in cross-examination and that portion does not clearly touch on the question of whether the location was a high wind area. It is not for the court to speculate on what a witness might have said if he had been called to testify. Had the Defendants thought enough of the evidence of Mr. Lodge on the subject, they should have taken appropriate steps under the rules to serve and file the statement or call the statement maker to trial to give viva voce evidence.

2. Fundamental Breach of Contract

[11] I find that it was open to the trial judge to conclude that the failure to employ adequate nails and apply tab sealant constituted negligence and breach of contract on the part of the Defendants. These were conclusions of mixed fact and law but there was evidence upon which the trial judge could, and did, make that determination. There was no error in the application of legal principles. Findings of negligence and breach of contract by a sub-contracting roofer would naturally flow from factual findings that the roofer failed to install shingles according to manufacturer’s specifications and that damage was incurred as a result.

[12] The appeal focused on the finding of fundamental breach of contract which, of course, brings with it a host of remedies including the right of the aggrieved party to vitiate the contract and seek damages in line with the contract price. I find that the trial judge did not err either in his appreciation of the evidence or his application of the law to the facts of the case. He found that the Plaintiff bargained and contracted for a roof that, if properly installed, would carry a manufacturer’s 30 year warranty on the shingles used. By failing to install the shingles according to manufacturer’s specifications, the Defendants deprived the Plaintiff of the substantial benefit of that contract. The trial judge heard and accepted evidence that the manufacturer’s warranty was compromised as a result of faulty workmanship.

[13] The trial judge also found that the Defendants breached the warranty under the contract by charging the Plaintiff for repairs within the 5 year warranty period. While the trial judge lamented the fact that these modest charges might have been the catalyst for the disintegration of the relationship between the parties which followed, this should not detract from his finding that the failure to honour that warranty constituted a breach.

3. The Disclaimer Clause

[14] I cannot accept that the trial judge erred in his interpretation of the disclaimer clause. It is not that the trial judge ruled that the disclaimer was not part of the contract; rather, his finding was that the disclaimer in question did not apply to the particular weather event that caused the damage. While his analysis may have been more colloquial than legalistic, it was open to him to conclude that a severe wind sufficient to damage shingles on a lake front home was not an “act of God”. In the case of McQullain v. Ryan (1921), 64 D.L.R. 482, 50 O.L.R. 337 at 348, the Ontario Court of Appeal considered what meaning could be given to “an act of God” in a wind case:

The wind in question was not ‘an act of God’ in any admissible sense of that term as it is used in the cases….but, whatever definition is accepted, it must relate to an event which cannot be foreseen, or which if it can be foreseen cannot be guarded against. The wind, as shewn here, was undoubtedly severe, but it was not in any sense something that ought not to have been expected. It was just the kind of wind which was bound to occur, and to occur frequently….what came to pass here is in no sense an inevitable accident, but just that which ought to have been expected and ought to have been guarded against.

[15] If the Defendant had sought to avoid liability for any wind event, it could have simply inserted “wind damage” or “damage caused by wind” in their disclaimer. They did not. Nor did the Defendants lead any evidence that the damage causing wind was in any way extraordinary, unforeseeable or overwhelming. This was a question of mixed fact and law. It was open to the trial judge to interpret the disclaimer in a reasonable way in light of the factual findings he made. In my view, he did so in a reasonable and correct fashion.

Other Grounds for Appeal

[16] The Appellant set out additional grounds for appeal in the Notice of Appeal but did not address those grounds extensively in the factum or in argument. For the sake of completeness, I will address them here.

(a) Quantum of Damages:

I see no error in the award of damages. Given that there was a finding of fundamental breach and that, by the time the matter reached trial, the Plaintiff had replaced the roof at his own expense, awarding damages based upon the cost of repairs was not open to the trial judge. As well, the trial judge took into account the principle of betterment in declining to award damages based upon the cost of replacement. In my view, the trial judge chose to award an appropriate quantum of damages by refunding the cost of the original contract to the Plaintiff plus inappropriate charges levied under the warranty. Given that there was a finding that the Plaintiff did not receive the substantial benefit of the contract, this was a reasonable disposition on that issue.

(b) Principles of Relevant Jurisprudence:

I can find no error in the trial judge’s reasons. In deciding that the Plaintiff did not get what he bargained for in the contract (ie a roof with shingles that would carry a 30 year manufacturer’s warranty), the trial judge concluded that this amounted to fundamental breach of the contract. This is similar to finding that the breach went to the very root of the contract or that the outcome was totally different from that which the contracting parties contemplated. On the evidence before him, the trial judge was entitled to make that finding of mixed fact and law and to assess damages based upon fundamental breach.

(c) Principles of Natural Justice:

This ground of appeal was only vaguely elaborated on in the factum and in submissions. The Appellant asserts that the trial judge shut down the line of cross-examination of witness Phee as it pertained to a letter from Andy Lodge. The record does not support this assertion. It is clear that the court merely asked whether the line of questioning was appropriate given that the maker of the letter was going to be called (see pages 163-164 of the transcript of evidence dated March 29, 2012). Mr. Koza for the Defendants elected to rephrase his question and carried on. The Defendants could well have made arrangements to retain an expert on the issue of wind but chose not to. The transcript contains a confusing exchange between Mr. Koza (agent for the Defendants), the self-represented Plaintiff and the trial judge which goes on for several pages (pp. 207-210). To the extent that the thread of Mr. Koza’s position can be followed, he purports to have available an “expert” from IKO who would testify on the issue of “high wind area.” There was no such expert. There was absolutely no evidence put before the trial judge, beyond a passing suggestion and an attempt to have a witness adopt a statement made in a letter, that Andy Lodge was an expert or expressed an expert’s opinion. There was no evidence put before this court that a signed written statement from Mr. Lodge was ever served in accordance with Rule 18.02 of the Rules of the Small Claims Court, O. Reg. 258/98. The letter itself did not form part of the Appeal Book and Compendium. Under Rule 61.10(1)(i), an Appellant is required to provide the court with, “… a copy of any other documents relevant to the hearing of the appeal that are referred to in the appellant’s factum.” Leaving out the document upon which a claim for denial of natural justice is based is oblique in the extreme. I can find no denial of natural justice or breach of procedural fairness on the record before me.

Disposition

[17] For the foregoing reasons, the Appeal is dismissed. In the event that the parties are unable to agree on the issue of costs, the Respondent may serve and file costs submissions in writing, limited to three pages, by no later than February 28, 2014. The Appellant shall have until March 14, 2014 to make responding submissions, limited to two pages. The Respondent shall have until March 21, 2014 to make reply submissions, if any, limited to one page.

J.R. McCARTHY J.

Released: February 5, 2014