CITATION: Brown and Brown v. Bruin, 2015 ONSC 3754

COURT FILE NO.: DC-13-126 (SIM)

DATE: 2015-06-10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Wayne Brown and Kay Brown

Respondents/Plaintiffs

– and –

Dirk Bruin

Appellant/Defendant

S. Buchanan, for the Respondents/Plaintiffs

J. Pereira, for the Appellant/Defendant

HEARD: May 14, 2015

REASONS FOR DECISION

THE HONOURABLE MR. JUSTICE D.J. GORDON

[1] Dirk Bruin appeals from the Small Claims Court judgment granted in favour of Wayne Brown and Kay Brown on November, 2013.

Overview

[2] Mr. Brown and Ms. Brown purchased a 1999 Ford Expedition vehicle in 2007. In September 2008, they entered into an oral agreement with their friend and mechanic, Mr. Bruin, owner of Dirk Bruin Automotive, to complete a gasoline to diesel engine conversion for the vehicle. The cost of the work was estimated at $7000. The job was expected to take several weeks.

[3] When the conversion had not been completed by the Fall of 2011, Mr. Brown and Ms. Brown commenced an action in the Small Claims Court at Simcoe.

Litigation

[4] In their claim, issued November 17, 2011 Mr. Brown and Ms. Brown sought damages of $25,000, apportioned as $20,000 for the value of the vehicle and $5,000 for expenses in obtaining and maintaining a replacement vehicle necessitated by the delay in the conversion job.

[5] In his defence, dated January 17, 2012 Mr. Bruin denied liability. A defendant’s claim was issued on January 20, 2012. Mr. Bruin sought damages of $12,536.50, representing the cost of parts and labour pertaining to the conversion and repairs to the replacement vehicle as well as a dryer sold to Mr. Brown and Ms. Brown. He also claimed a lien on the vehicle pursuant to the Repair and Storage Liens Act.

[6] The trial took place on November 1, 2013 before Deputy Judge Stahl.

Reasons

[7] Deputy Judge Stahl delivered oral reasons following the trial. He made the following findings:

a) the parties entered into a contract for the removal of the gasoline engine and replacing with a diesel engine;

b) Mr. Bruin advised Mr. Brown and Ms. Brown that he had ample expertise to do the job and assured them it would be done in two weeks;

c) the work commenced;

d) the vehicle remained in Mr. Bruin’s possession for five years;

e) Mr. Brown and Ms. Brown expected the cost of the work would be $7,000;

f) Mr. Brown reported the costs were going up;

g) Mr. Bruin sold part, if not all, of the engine, making completion of the job impossible;

h) completing the work is not a practical solution;

i) Mr. Brown and Ms. Brown purchased the vehicle for $16,000 two years prior to delivery to Mr. Bruin for the work;

j) the vehicle was worth $15,000 when it was delivered to Mr. Bruin;

k) it is not reasonable for Mr. Brown and Ms. Brown to take the vehicle back in its present condition; and,

l) Mr. Bruin was owed $1352.62 for other work.

[8] The Deputy Judge then awarded judgment in favour of Mr. Brown and Ms. Brown for $15,000 for the value of the vehicle. He allowed a set-off for the $1352.62 owing to Mr. Bruin for other work and assessed the same amount in favour of Mr. Brown and Ms. Brown for the loss of use of their vehicle for five years. In result, the defendant’s claim was dismissed and judgment was granted to the plaintiffs for $15,000. Costs of $1200 were awarded to the plaintiffs. Interest was also awarded from October 1, 2008. Lastly he directed the remains of the vehicle to be the property of Mr. Bruin and that Mr. Brown and Ms. Brown were to execute all documents necessary to pass title when the judgment, interest and costs were paid in full.

Appeal

[9] On November 29, 2013 Mr. Bruin served a notice of appeal. On his behalf, Mr. Pereira identifies the following issues at para. 12 of his factum:

Mr. Bruin respectfully submits that the trial Judge:

a) did not have jurisdiction to grant equitable relief by Ordering the transfer of ownership of the Expedition from the Browns to Mr. Bruin;

b) erred in awarding Judgment in favour of the Browns based on findings that the Expedition was worth $15,000.00 in September 2008;

c) erred in finding that the Browns were entitled to $1,352.62 for loss of use of the Expedition (which said amount was in addition to awarding $15,000.00 for the value of the Expedition plus interest) which setoff against $1,352.62 that was otherwise found to be owing to Mr. Bruin;

d) erred in failing to award damages in favour of Mr. Bruin in the amount of $200.00 for a clothes dryer sold to the Browns despite the fact that this amount was essentially uncontested at trial;

e) erred in failing to award any damages in favour of Mr. Bruin with respect to his Defendant’s Claim for parts and services rendered in relation to the Expedition;

f) did not provide adequate Reasons for the parties to understand the basis of His findings or for this appellate Court to have a sufficient basis for exploring the merits of this Appeal.

Standard of Review

[10] The standard of review regarding an alleged error in fact is “reasonableness”, on findings of law “correctness” and with respect to interpretation of evidence as a whole “palpable and overriding error”. See Housen v. Nikolaisen, 2002 SCC 33.

Sufficiency of Reasons

[11] The primary issue on appeal is with respect to the sufficiency of the reasons by the Deputy Judge.

[12] The Deputy Judge delivered an oral decision following the trial. His reasons were brief, being four pages in the transcript. The appellant complains, saying he cannot understand why he was unsuccessful at trial, no findings of credibility were rendered, conflicting evidence was not analyzed and no explanation was offered on the calculation of damages. The respondent says the reasons are not so insufficient to understand how the decision was made and that such are supported by the evidentiary record.

[13] Insufficient reasons is an error of law. The function of reasons is to:

a) tell the parties why the decision was made;

b) provide public accountability of the judicial decision; and

c) permit effective appellate review.

More is required than deficient reasons. A review of the evidentiary record must occur to determine if it supports the conclusions. Only if the reasons are inadequate and inscrutable is a new trial required. See: R. v. Sheppard, 2002 SCC 266; and R. v. Gagnon, 2006 SCC 17.

[14] The Deputy Judge neglected to conduct a comparative analysis of the conflicting evidence and made no findings on credibility. He did not consider exploring the various options for damages. The reasons do not meet the initial component of the Sheppard test. However, a review of the evidentiary record indicates the basis for his conclusions and permits appellate review.

[15] The Deputy Judge clearly accepted most of the evidence of Mr. Brown and Ms. Brown and rejected that of Mr. Bruin. The evidentiary record shows why such occurred, supported by the findings previously mentioned. The vehicle had been in the possession of Mr. Bruin for five years. The work was expected to take several weeks. Regardless of any explanation for this significant delay, the passage of time revealed Mr. Bruin’s inability to complete the job he agreed to perform. Hence, his evidence lacked credibility and was rejected. While the Deputy Judge was brief in his analysis, Mr. Bruin should be able to see why he lost.

Equitable Relief

[16] In submissions, Mr. Pereira conceded the Small Claims Court now has jurisdiction to grant equitable relief.

Damages

[17] The second major complaint of the appellant is with the methodology and calculation of damages. The submission here is that the evidence did not support the award and that an incorrect formula was followed. Consideration of evidence is a factual issue subject to the standard of reasonableness. The formula, or methodology, is a legal issue subject to the standard of correctness.

[18] I see no error in the reasons of the Deputy Judge. There was evidence as to the vehicle value at the time of delivery, having regard to the purchase price previously paid. As previously stated, Mr. Bruin’s evidence was obviously rejected. The vehicle, at the time of trial, had no engine and, hence, could not be used. Mr. Brown and Ms. Brown went five years without the use of their vehicle. Lastly, there was conflicting evidence regarding payment of the dryer, and as such was not referred to in his reasons, obviously the Deputy Judge concluded a setoff was not required.

[19] The calculation of damages is not based on a rigid formula. Here, there were several options available to the Deputy Judge. He could have directed return of the vehicle to Mr. Brown and Ms. Brown and awarded damages for depreciation, cost to do the work correctly and loss of use. However, the methodology chosen was within the range of reasonableness and, in my view, the logical and correct path to follow. Mr. Bruin was not entitled to compensation for the work he did given his breach of contract. I would also add that Bruin did receive the benefit of a low assessment on the loss of use. Clearly, the Deputy Judge was looking for the fairest and most expeditious way to finalize the case.

[20] The vehicle has no value to Mr. Brown and Ms. Brown in its present condition. Forcing them to rectify Mr. Bruin’s mistakes would be unfair. Compensating them for the value of the vehicle and loss of use was the logical method. In so doing, Mr. Bruin acquires the vehicle and can mitigate his loss by repairing it and putting it up for sale.

[21] Prejudgment interest follows the award and compensates for the loss of use of their money.

[22] For the foregoing reasons, the appeal is dismissed. If the parties are unable to agree on the issue of costs after discussion between counsel, brief written submissions are to be delivered to my chambers in Cayuga within 30 days.

The Honourable Mr. Justice D.J. Gordon

Released: June 10, 2015

Brown and Brown v. Bruin, 2015 ONSC 3754

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Wayne Brown and Kay Brown v. Dirk Bruin

REASONS FOR JUDGMENT

D.J. Gordon

Released: June 10, 2015