Wallis v. Gallant et al., 2015 ONSC 5866

CITATION: Wallis v. Gallant et al., 2015 ONSC 5866

COURT FILE NO.: CDC 12-355

DATE: 2015-09-22

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

Laurinda Wallis

Plaintiff (Respondent in Appeal)

– and –

Wayne John Gallant and Corrine Margot Gallant

Defendant (Appellant in Appeal)

James Selkirk - Agent for the Respondent

Nathan Martin - Counsel for the Appellant

HEARD: September 21, 2015

The Honourable Justice James W. Sloan

Introduction

1This is an appeal from the Judgment of the Deputy Judge Michael Lannan dated February 15, 2015. The trial took place on November 28, 2014.

2This action arises out of an amendment to an agreement of purchase and sale for residential property.

3James Selkirk is the husband of the plaintiff Laurinda Wallis. Ms. Wallis appears as plaintiff because the property is registered in her name.

4Under these circumstances I allowed Mr. Selkirk to act as agent for his wife, Ms. Wallis, in this appeal.

5After a home inspection, the plaintiff requested and received an amendment to the agreement of purchase and sale which reads:

“The Seller (Appellants) Agrees, at the Seller’s Sole Expense to complete the following work before the completion date of this transaction.

On the west side of the property nearest to the garage. Seller to have a Re-connection of the down spouts, removal of concrete slabs, and regarding to allow water to drain away from the house and down a properly sloped swale on the property line according to municipal guidelines.

The seller further agrees to have all work done in a professional workmanship manner and to allow the buyer to inspect the work upon completion.”

6On the June 1, 2012 closing date there was water in the basement area which appeared to have come in through a basement window near the area where the above remediation was to have been carried out.

7There was conflicting evidence before Deputy Judge Lannan as to whether the work done in accordance with the amendment to the real estate agreement of purchase and sale was or was not done in a good and workmanship like manner.

8He then went on to assess damages.

9This appeal essentially has two parts.

10One part is that the appellant’s submit that the trial before Justice Lannan was to be bifurcated and that Justice Lannan was to decide liability first and depending on whether or not the plaintiffs were successful there may have been a second trial with respect to damages.

Bifurcation - Damages

Bifurcation - Damages

11On the evidence before me, it appears that the trial proceeded on liability only.

12Unfortunately, the initial part of the trial was not recorded and so what was said by the respective lawyers does not appear on the transcripts.

13There is however, virtually no discussion and certainly no argument at the end of the trial about the quantum of damages.

14The trial judge accepted a quote from Boomer Creek dated November 4, 2014 in the amount of $13,051.50 without further comment.

15The trial judge did not make any comment on why the items in this quote or the quantum were appropriate.

16The amendment set out in Paragraph 5 above simply calls for a grading work and reconnection of drainage pipes to be done.

17The Boomer Creek quote in question, talks about removing a 4’ by 15’ section of sidewalk, excavating part of the foundation, laminating a rubber membrane to the excavated portion of the foundation, cutting the concrete foundation and installing a 24 x 36” basement window and then the pouring and finishing a 4’ by 15’ section of sidewalk.

18There is evidence that on June 1, 2012, there was no sidewalk and there are no reasons from the trial judge as to why he allowed damages to remove and replace a sidewalk and also to cut the concrete foundation.

19In addition, the Trial Judge does not comment on why the remainder of the damages contained in the Trial Exhibit 7 are not appropriate.

Bifurcation – Liability

Bifurcation – Liability

20The appellant states that the trial judge made the following factual errors:

21The appellants state that the first error occurs in Paragraph 12 of the Reasons for Judgment. At Paragraph 12 the Trial Judge states, Mr. Ivancic testified, that the flexible hose (big ‘O’ pipe) attached to the spout didn’t go into any drain and that the water flow was not diverted away from the house.

22The appellant directed the court’s attention to page 60 of the transcript where in the last line on the page, the court asked “Was that pipe connected to anything?” The answer from Mr. Ivancic was “It was actually – well, actually I can’t tell because it was just put in the ground. I didn’t actually see if it was connected to anything.”

23But later, after further questioning from the court, where a big ‘O’ pipe is being discussed, Mr. Ivancic replies to a question about the end of the big ‘O’ pipe that was not connected to the downspout, stating “it was in the ground. Okay, it was just in the ground.”

24Mr. Ivancic worked for a company known as First Response Restorations Inc. His report dated June 22, 2012 was filed as Trial Exhibit 8.

25Without his report specifically stating what First Response Restorations Inc. does, it appears from Mr. Ivancic’s brief report, that he is/was an estimator for a company that primarily responds to insurance claims and does restoration work.

26Although not an expert with respect to grading and drainage, his evidence that the window well was full of water and that there appeared to be a little run off from that particular side of the house is something most people could give evidence about without being experts.

27In his report, Mr. Ivancic states that the big ‘O’ pipe was attached to the downspout of the eve trough system but then was buried just below the surface of the ground. There are pictures at pages 6 and 7 of Trial Exhibit 8, being the part of Mr. Ivancic’s report, that clearly show that that the big ‘O’ pipe was dug up after being buried to just below the ground.

28What is not clear on the evidence is whether or not the big ‘O’ pipe extended from the downspout to the swale between the two properties as shown on page 6 of the Ivancic report.

29What is clear on page 6 of the report is that the neighbouring home has a big ‘O’ pipe which discharges water from its downspout into the swale between the two homes.

30There is no evidence to assist the Court with respect to why the discharge of water from the subject property would not have been dealt with in the same way.

31The evidence seems to be that the big ‘O’ pipe from the subject property running from the downspout was buried just below the surface of the grass. As stated in the paragraph above there is no evidence to suggest that a water entering the big ‘O’ pipe discharged into the swale between the two properties.

32The appellant states that the second error occurs in paragraph 16 of the judgment.

33The Trial Judge states in paragraph 16 that Mr. Schaus helped the appellant/defendant and that he had been there when “the Defendant pulled the hose out of the ground leaving the downspout not connected.”

34At page 76 of the Trial Transcript when asked in-chief, “On your sheet that was June 11, 2012, does it not state that you reconnected the downspout?” Mr. Schaus answered “Yeah, it was never connected so that’s a misprint.”

35However in cross-examination, when discussing the black pipe which is clearly visible in the picture marked Trial Exhibit 9 and when asked “You guys dug a hole and basically connected that to another pipe that was in the ground, near the middle of the property.” Answer: “Yeah, I don’t know if it was that exact pipe.”

36While the trial judge never discusses what may be two contradicting answers, there is also no demonstrative evidence in the form of pictures to prove that there was the existence of some type of a pipe/conduit leading from the end of the big ‘O’ pipe to somewhere presumably the front Street.

37What is clear from the evidence is that the subject window well filled up with water and the water leaked/flowed into the basement after the remedial work had been done by the defendants.

38What is also clear from the pictures, which were entered as exhibits, is that there appears to be little, if any, slope in the topography between the house and the swale.

39Without some evidence that there was a conduit from the end of the big ‘O’ pipe to an appropriate discharge location, or some other evidence that the basement would’ve flooded no matter what remedial work had been done, the trial judge was entitled on the basis of res ipsa loquitur (the thing speaks for itself) to determine “that the repairs that were done to the house in accordance with the terms contained in the amended agreement of purchase and sale were not done in a good and workmanship like manner”.

Disposition and Costs

40I therefore dismiss the appeal with respect to liability and order a new trial on the issue of damages.

41Since success on the appeal has been divided I make no order as to costs.

James W. Sloan