CITATION: Potter v. Double H. Construction Ltd., 2015 ONSC 1457
COURT FILE NO.: DC-13-0517
DATE: 2015/03/04
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Robert Potter
Respondent/Plaintiff
- and -
Double H. Construction Ltd.
Appellant/Defendant
For Appellant: B. Yellin
For Respondent: G. Falletta
Appeal from the Decision of Deputy Judge Criger
Heard: January 21, 2015
The Honourable Justice C. D. Braid
DECISION ON APPEAL
Nature of Appeal
[1] This is an appeal from a Small Claims Court judgment ordering Double H. Construction Ltd. (“Double H.”) to pay $22,208.45, plus costs, for deficient renovations that were carried out at the home of Robert Potter (“Potter”) in 2003. The award was based on two distinct categories of damages: damages to remedy a faulty foundation and damages to replace a deck.
[2] On appeal, Double H. argues that the limitation period had expired in relation to any damages for the foundation, and that Potter should not have been granted relief for deck replacement damages not pleaded in the Statement of Claim. Double H. asks that this court overturn the trial ruling as a result.
Overview of Facts
[3] In 2003, Potter hired Double H. to perform renovations on Potter’s residence, which included work on part of the roof; the installation of a foundation/storage area under the sunroom; and construction of a replacement deck. The renovations were completed in October of 2003.
[4] In the spring of 2004, Potter began to have concerns about the work. Harry DeHaan (“DeHaan”), who was the proprietor and representative of Double H., attended at Potter’s residence so that they could discuss Potter’s concerns. The substance of those discussions, and what ensued in the years that followed, were at issue in the trial.
Issues
[5] Double H. raises the following issues on this appeal:
A. Did the Deputy Judge commit a palpable and overriding error in relation to the Limitations Act issue and discoverability of foundation damages?
B. Did the Deputy Judge err in law by granting deck replacement damages that were not originally pleaded?
A. Limitations Act Issue re Foundation Damages
Position of the Appellant
[6] The appellant argues that the Limitations Act prohibited any recovery of damages related to the foundation, and that the Deputy Judge incorrectly applied the principle of discoverability. The appellant submits that, in 2004, Potter had prima facie grounds to infer that the work conducted by the appellant caused water to leak into the basement. If that is true, the appellant argues that the limitation period had expired long before the Statement of Claim was issued.
Findings of Fact in Relation to the Limitations Act Issue
[7] The Deputy Judge made the following significant findings of fact in relation to the foundation:
a) In the spring of 2004, Potter noticed some issues with the work done by Double H., including moisture inside the new foundation. Potter met with DeHaan, the proprietor of Double H.
b) Potter was apparently satisfied with DeHaan’s advices that the shingles and flashing were basically cosmetic issues, and did not pursue the issue with water in the basement, which Mr. Potter testified was not discussed during that meeting (emphasis added).
c) Nothing of significance happened until 2010, when the parties dealt with some concerns about roof shingles. During those discussions, Potter testified that there was some conversation about the water that was coming into the foundation. The Deputy Judge accepted Potter’s evidence, over that of DeHaan, i.e. that Potter asked DeHaan whether he had installed weeping tile around the foundation, and that DeHaan answered “no”.
d) The Deputy Judge accepted that, until that point, Potter had been assured that any defects were cosmetic in nature and easily remedied. Potter was given no notice that any defect complained of was a serious issue, so he had no reason to inquire or inspect.
e) Weeping tile, by its nature, is hidden from the homeowner’s view. There is no way of discovering whether or not it is present, unless the homeowner digs up the ground or obtains an admission that it was not installed.
f) Lack of weeping tile is not cosmetic. Where installation of weeping tile is required, failure to install weeping tile is an actionable omission, since a reasonable builder would install weeping tile where required.
g) The claim was issued on April 19, 2011, less than two years after Potter was informed by DeHaan that no weeping tile was installed around the foundation.
h) Potter then hired experts who discovered other deficiencies. As the claim had already been issued, the limitation period was met for all deficiencies claimed in the action.
i) The plaintiff’s expert, Ms. Orr, examined a test pit that had been dug and concluded that no weeping tile had been installed. In her opinion, weeping tile should have been installed. The Deputy Judge accepted Ms. Orr’s evidence over Mr. DeHaan’s evidence on this point, and found a direct connection between the failure to install weeping tile and the damage suffered by Potter.
[8] The Deputy Judge concluded that the claim met the limitation period as Potter sued within two years of his initial discovery of an actionable defect, namely the failure to install weeping tile.
The Law in Relation to the Limitations Act Issue
[9] The basic limitation period is two years from discovery of a claim. Section 5 of the Limitations Act sets out the test for discovery:
s.5(1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred;
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission;
(iii) that the act or omission was that of the person against whom the claim is made; and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
[10] Certainty of a defendant’s responsibility for the act or omission that caused or contributed to the loss is not a requirement for discoverability. It is enough to have prima facie grounds to infer that the acts or omissions were caused by the party or parties identified (Kowal v. Shyiak, 2012 ONCA 512, at para.18).
[11] It is a question of fact, depending on the circumstances of the case as a whole, as to when knowledge of the material facts was reasonably acquired by the plaintiff (Sabourin v. Proulx, [2012] O.J. No. 3283 (Ont. S.C.J.) at para. 15).
[12] The findings of fact made by the Deputy Judge are entitled to considerable deference. Since the issue raised is one of fact or mixed fact and law, the appellant must establish that there was a palpable and overriding error or that the lower court made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence (Housen v. Nikolaisen, 2002 SCC 33, [2002] S.C.J. No.31; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401).
Analysis
[13] The appellant argues that the Deputy Judge was clearly wrong when she found that Potter testified the issue with water in the basement was not discussed during the 2004 meeting with DeHaan. The appellant says that this was an overriding and palpable error, and this adversely affected later findings of fact regarding the discovery of the cause of action in 2011. I do not accept this proposition.
[14] Potter testified that he brought up the issue of water in the basement in 2004 but that it was “somewhat ignored” and that “it wasn’t addressed”. Although the issue of water in the basement was raised by Potter, it was not discussed since DeHaan essentially walked away when Potter mentioned it (emphasis added).
[15] The Deputy Judge found that the actionable defect was not discovered until Potter learned of the failure to install weeping tile. The Deputy Judge recognized that Potter had noticed moisture in the foundation in 2004, but found that Potter did not discover the actionable defect until 2010.
[16] The decision on the start of any given limitation period is a finding of fact best made following the hearing of all of the evidence. The reasons, when read in their entirety, demonstrate that the Deputy Judge had a clear understanding of the evidence and made findings of fact that cannot be said to contain any palpable or overriding error. I would therefore dismiss the appeal on this issue.
B. Deck Replacement Damages Not Pleaded
Position of the Appellant
[17] The appellant submits that the Statement of Claim did not include a claim for damages as a result of work done on the deck. The appellant argues that, by granting damages for the deck replacement, the Deputy Judge committed an error in law.
Facts in Relation to the Deck Pleadings Issue
[18] The Statement of Claim sought damages in relation to “contracted renovations” to Potter’s home in 2013. The claim stated that “parts of renovation failed due to not being done to building code and manufacturer’s specifications.” The initial Statement of Claim was issued on April 20, 2011 and sought damages of $11,500; on May 28, 2012, Potter amended the claim to increase the amount sought to $25,000. The Deputy Judge noted that the attachments to the claim, in the form of Double H. invoices, referred to the back porch (deck), although the deck was not mentioned in the handwritten portion of Potter’s pleadings.
[19] Well in advance of the trial, Potter provided Double H. with cost estimates for the deck replacement and gave notice of Charles MacPhail’s proposed expertise regarding the deck. During the first day of the four-day trial, counsel for Double H. objected to MacPhail’s expert evidence. Counsel argued that the court should not hear the evidence because a claim for the replacement cost of the deck had not been specifically pleaded. At that point in time, Potter (who was self-represented) advised the court that the claim regarding the deck was meant to be included in the $25,000 amended claim amount.
[20] The Deputy Judge acknowledged that the deck issue was not pleaded. However, after hearing submissions on the point, the court stated that the issue did not need to be strictly pleaded as the defendant had notice that it was an issue in the lawsuit. The Deputy Judge recognized that the rules regarding pleadings deserve some flexibility in Small Claims Court, especially when the defendant has notice and has had time to prepare the issues.
Law in Relation to the Deck Pleadings Issue
[21] In Small Claims Court (where claimants are often unrepresented) a liberal, non-technical approach should be taken to the pleadings to ensure that access to proper adjudication of claims is not prevented on a technicality. The court has a duty, on being presented with facts that fall broadly within the umbrella of the circumstances described in the Statement of Claim, to determine whether those facts constitute a cause of action. However, if the case takes a turn completely different from that disclosed or inferentially referenced in the Statement of Claim, thereby causing prejudice to the other side in being able to properly prepare for or respond, the court may decline to give relief or allow further time to respond (Popular Shoe Store Ltd. v. Simoni (1998), 24 C.P.C. (4th) 10 (Nfld.C.A.)).
[22] The Small Claims Court can grant relief that was not pleaded, but they should do so only if supporting evidence is not needed beyond what was adduced at trial in support of the relief, and, in all of the circumstances, it is not unfair to grant such relief (Salamon v. Toronto, [2011] O.J. No.6251 (Ont.Div.Ct.) and Brighton Heating & Air Conditioning Ltd. v. Savoie, [2006] O.J. No.250 (Ont.Div.Ct.)).
Analysis
[23] As noted above, Double H. received notice that Potter intended to call evidence at trial regarding the deck deficiencies and the cost of deck replacement. After the initial challenge to the deck replacement claim was raised, the trial continued for three further days and concluded approximately four and a half months later.
[24] It cannot be said that Double H. was caught off guard by the claim for deck replacement damages, and it did not seek an adjournment when the issue was raised. The issue was raised early enough in the proceedings so as to allow Double H. the opportunity to fully cross-examine and to call evidence on the issue.
[25] The Deputy Judge considered the circumstances of this particular case. Although the court did not expressly address the issue of fairness, it is clear that she considered the fact that Double H. had been given notice (well in advance of trial) that Potter wished to pursue the deck replacement damages. Although the handwritten portion of the claim did not include a specific reference to deck replacement, the attached invoices listed the renovations completed by Double H. in 2003, which included construction of the deck. It was within the jurisdiction of the trial court to permit some flexibility with the pleadings. I would not give effect to this ground of appeal.
Disposition
[26] For all these reasons, I would dismiss the appeal.
Costs
[27] In the event that counsel cannot agree as to costs, they are directed to provide written submissions as to costs. Each submission shall be no longer than five typed pages, and shall be provided within 30 days of the release of these reasons.
Braid J.
Released: March 4, 2015
CITATION: Potter v. Double H. Construction Ltd., 2015 ONSC 1457
DIVISIONAL COURT FILE NO.: DC-13-0517
DATE: 2015/03/04
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Braid J.
B E T W E E N:
Robert Potter
Respondent/Plaintiff
- and –
Double H. Construction Ltd.
Appellant/Defendant
DECISION ON APPEAL
Braid, J.
Released: March 4, 2015