Court File and Parties
CITATION: City Water International Inc. v. Wellness Beauty Spa, 2015 ONSC 1070
DIVISIONAL COURT FILE NO.: 148/10
DATE: 20150217
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
CITY WATER INTERNATIONAL INC.
Appellant
(Plaintiff)
– and –
WELLNESS BEAUTY SPA
Respondent
(Defendant)
Augusto Sanchez, agent (by leave), for the Appellant (Plaintiff)
No One Appearing, for the Respondent (Defendant)
HEARD at Toronto: February 17, 2015
Oral Reasons for Judgment
LEDERMAN J. (ORALLY)
[1] The appellant, City Water International Inc. appeals the judgment of the Deputy Judge of the Small Claims Court, dismissing its claim for damages arising from an alleged breach of contract and unpaid account relating to the rental of a water filtration system.
[2] The trial judge found that:
(a) the 61 month or 5 year term had not been explained to Ms. Gulelat, the principal of the respondent and that Ms. Gulelat was an unsophisticated consumer, whose first language was not English. She testified that she was told by Mr. Fleishman, the principal of the appellant, that the rental term was for only one year.
(b) that the respondent experienced many difficulties with the system and in particular that hot water was never provided satisfactorily; and
(c) that the appellant failed to comply with the quarterly payment arrangement and withdrew $406.12 from the respondent’s chequing account in a single transaction which amounted to a full annual payment.
[3] The standard for review of findings of fact or mixed fact and law of the trial judge is to ask whether she made any palpable and overriding error.
[4] As to whether Ms. Gulelat understood that the rental term was 5 years, the rental agreement itself refers in the top portion of the document to a term of 61 months and to 5 consecutive annual payments.
[5] Mr. Fleishman testified that he told Ms. Gulelat it was to be 5 consecutive annual payments. Further, it is clear from the transcript of evidence that Ms. Gulelat understood and could communicate in English. Nevertheless, the trial judge preferred the evidence of Ms. Gulelat with no explanation as to why that was so. No reasons are given to resolve the conflict in the evidence as to what Ms. Gulelat knew about the rental term.
[6] As for the alleged deficiencies in the water filtration system, the trial judge did not refer to the witness statement of Bin Ye, the technician who checked on the hot water problem. He states that the problem was fixed by simply turning the hot water valve on.
[7] The trial judge did not mention this evidence or why she concluded in the face of that evidence, that the hot water was never provided satisfactorily.
[8] Further, it is apparent from the evidence, that the withdrawal of a full annual amount rather than a quarterly payment from the respondent’s bank account was simply an accounting error that was rectified immediately. This technical issue cannot amount to a fundamental breach excusing the respondent from its further obligations under the contract.
[9] The trial judge thereby misapprehended the evidence before her relating to the issues and thereby committed palpable and overriding error.
[10] In the end, this is a straightforward commercial contract between two businesses. The evidence does not raise any defences as to why the contract and its termination provisions should not be honoured.
[11] The appeal is allowed. The trial judgment is set aside and the appellant will have judgment against the respondent for $1,929.08.
[12] I have endorsed the Record, “For oral reasons delivered, the appeal is allowed. The trial judgment is set aside and the appellant will have judgment against the respondent in the amount of $1,929.08.”
___________________________ LEDERMAN J.
Date of Reasons for Judgment: February 17, 2015
Date of Release: February 19, 2015
CITATION: City Water International Inc. v. Wellness Beauty Spa, 2015 ONSC 1070
DIVISIONAL COURT FILE NO.: 148/10
DATE: 20150217
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
CITY WATER INTERNATIONAL INC.
Appellant
(Plaintiff)
– and –
WELLNESS BEAUTY SPA
Respondent
(Defendant)
ORAL REASONS FOR JUDGMENT
LEDERMAN J.
Date of Reasons for Judgment: February 17, 2015
Date of Release: February 19, 2015