Butala v. Xia et al., 2014 ONSC 932

CITATION: Butala v. Xia et al., 2014 ONSC 932

DIVISIONAL COURT FILE NO.: 287/13

DATE: 20140211

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

Brigitte Butala

Plaintiff/Respondent

– and –

Hua Xia and Feng Chen

Defendants/Appellants

Brigitte Butala, in person

Hua Xia, in person

HEARD: February 4, 2014

LEDERMAN J.

1This is an appeal by the defendants, Hua Xia (“Xia”) and Feng Chen from the judgment of Deputy Judge, J. Hunt, of the Toronto Small Claims Court who awarded damages to the plaintiff in the amount of $6,855.68 plus costs resulting from water damage to the wooden floor in the plaintiff’s condominium unit.

2Liability was admitted at trial, the only issue being the quantum of damages suffered by the plaintiff as a result of a water leak from the defendant, Xia’s condominium unit located directly above the plaintiff’s.

3The trial judge made the following findings of fact:

(a) The renovation rules of MTCC 949 currently mandate the use of Regapol 10mm or Acousti-Tech 7000 sound proofing membrane (under pad) by all condominium owners who seek MTCC 949 approval to install or repair hardwood floors in their units;

(b) The physical damage to the plaintiff’s unit could not be repaired or remedied by partial removal of the floor when the hardwood flooring flows seamlessly throughout the hallway and the combined dining/living room of the unit;

(c) The use of new flooring materials for the entire floor was not an improvement or betterment to the plaintiff’s current floor;

(d) The damage to the hardwood floor was caused by direct exposure to the water leaked from Xia’s unit and not by the mere passage of time;

(e) The estimate given by Pacific Carpet and Flooring submitted by the plaintiff was an accurate and complete assessment of the value of the damages sustained by the plaintiff.

4On this appeal, Xia submitted that the trial judge in making these findings committed errors that were palpable and overriding and justify the overturning of this decision, namely:

(a) The trial judge failed to acknowledge the reversal in the testimony of the condominium property manager, Christian Tardiff (“Tardiff”) as to whether the use of one of the two specific brands, Regapol 10mm or Acousti-Tech 7000 under pads was a requirement or merely a recommendation; and

(b) In coming to his conclusions, the trial judge relied on previously undisclosed material introduced at trial by the plaintiff.

The Evidence of Tardiff

5In chief, Tardiff testified that only the two products, Regapol and Acousti-Tech are approved and authorized by the condominium corporation for the installation of hardwood flooring and that the four quotes presented by the defendants did not comply with these under pad requirements.

6In cross-examination, Tardiff was shown an unsigned letter, dated January 20, 2010, with his name to condominium owners advising that, with respect to installing hardwood flooring, the standard for noise insulation is a minimum of II C62 and that only two products, Regapol and Acousti-Tech, are recommended. It was suggested to him that the two products were just a recommendation, not a requirement. In response, Tardiff testified as follows:

Okay, this is not the rule. The rule is within the rule and documents. You have to refer to the rule. This is only a letter, I don’t even remember when – this is not even signed by me. It could have been drafted by somebody in my staff. It doesn’t have my signature at the bottom. But if you want to refer to the rule, the corporation, that’s what you have to do. You have to refer to the complete rule. Which is dated April 21st, 2009.

7Based on this evidence, Tardiff maintained his position given in chief. It was reasonable for the trial judge to conclude that the current renovation rules of the condominium corporation require the use of one of the two specified products and not just the generic IIC62 under pad. In doing so, the trial judge made no palpable or overriding error.

Previously Undisclosed Evidence

8Xia next submitted that the trial judge erred in concluding that there would have to be a total replacement of the hardwood floor throughout the plaintiff’s unit rather than just partial replacement of the floor where the damage was concentrated. Xia argued that the trial judge reached that conclusion by relying on material and information not previously disclosed to Xia prior to trial and accordingly, she had no opportunity to review the material or prepare a response. That evidence included physical hardwood floor samples presented to the Court, a “Kahrs Floor Care Guide and Guarantee” with warranty provisions and photographs purporting to show mould and rot extending into the dining room area.

9Xia submits that the trial judge relied upon the hardwood floor samples to conclude: that joining floors with dissimilar edge features was not technically possible and that the aesthetics of repairing the hallway were unacceptable; that he relied upon the Kahrs warranty to conclude that replacing a 7 year old floor did not constitute betterment; and relied upon the photographs to conclude that mould and rot were present in the dining room area and that they were an inevitable consequence of the original leak in the hallway.

10Early in the trial, the defendants’ representative advised the Court that the plaintiff had not delivered updated quotes prior to trial. However, no objection was taken by the defendants when this evidence was introduced. Nor did they seek an adjournment in order to consider the new information in order to be able to respond to it.

11Under s. 27 of the Courts of Justice Act, a broad discretion is given to a Small Claims Court judge to admit relevant evidence.

12In these circumstances, he was allowed to receive this evidence. He was therefore entitled to make the findings of fact that matching new flooring to the existing flooring was not possible, and that with the open concept layout of the plaintiff’s unit with hardwood floor flowing seamlessly throughout, it would make any partial repairs to the floor visible. As to the assessment of damages, the trial judge found that the valuation of damages sustained by the plaintiff amounted to $6,855.65 in accordance with the estimate of Pacific Carpet and Flooring. He preferred that estimate over the ones submitted by the defendants which failed to include a component for moving, storing and replacing furniture while the work was being done, and failed to comply with the renovation rules relating to the mandatory under pad requirements.

Conclusion

13In the end, the trial judge found that the whole floor had to be replaced. That was a reasonable conclusion based on the evidence and it was also reasonable for him to accept the estimate given by Pacific Carpet and Flooring over the others submitted by the defendants, given their deficiencies.

14In making his findings of fact on all of these matters, the trial judge had evidence before him which would support his conclusions and he made no palpable or overriding error.

15For these reasons, the appeal is dismissed.

16The plaintiff is entitled to recover her costs of this appeal and having regard to the principle of proportionality as it relates to the amount involved in this case, I fix those costs at $3,500 inclusive of disbursements and appropriate taxes, payable by the defendants.

Lederman J.