CITATION: Window and Door Centre Inc. v. Pine Lake, 2015 ONSC 7239
DIVISIONAL COURT FILE NO.: 14-2067
DATE: 20151117
ONTARIO
SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, J. HENDERSON AND TAUSENDFREUND JJ.
BETWEEN:
The Window & Door Centre Inc.
Plaintiff (Respondent)
-and-
Pine Lake Properties Inc. and Middlesex Condominium Corporation No. 185
Defendants (Appellants)
SACHS J. (ORALLY)
) P. Dobbie, for the plaintiff/respondent
) W. Sarasin, for the defendants/appellants
) HEARD at London: November 17,
) 2015
[1] The appellant has brought a motion to admit fresh evidence regarding repairs that have taken place at two unit locations due to siding coming loose. In our view this evidence does not meet the test for the admission of fresh evidence for several reasons.
[2] First, there was evidence before the trial judge about the loosening of the siding at one unit that the appellant says it has had to repair. Thus, the evidence with respect to this unit is not fresh.
[3] Second, the evidence with respect to repairs at both units is not credible nor reliable enough to be admitted on this appeal. There is no evidence from the owner at one of the units as to when or how the loosening occurred, nor was the respondent given an opportunity to inspect what had happened prior to the repairs at both units. Further, with respect to the other unit, there was an admission by the appellant's expert at trial that his assistant (who is not an expert vinyl siding installer) had removed a large section of siding to test the site, which had then been reattached. The loosening occurred just seven or eight months after this was done, raising the real possibility that this could have been the cause of the loosening.
[4] Third, the evidence would probably not have had an important influence on the result at trial. The evidence only speaks to a loosening at 2 units out of I 08 that were resided pursuant to the contract at issue. Thus, the new evidence does not rise to the level of a pervasive problem. Further, the trial judge contemplated the possibility that there might be problems that would arise after trial and, in that regard, found that the appellant had an ability to claim for these repairs on the I 0 year warranty the respondent had given them.
[5] On the merits of the appeal, we disagree with the appellant's framing of the major issue. The appellant framed the major issue in the following manner: Did the respondent contract to supply siding that would be defective? In our view, the appropriate framing of the main issue on this appeal is as follows: Was there a contractual obligation on the part of the respondent tore-sheath?
[6] In this regard, the trial judge looked to the express terms of the contract which carefully specified what the respondents were to do. Re-sheathing was not included. The trial judge found that there was no ambiguity in the contract and thus the doctrine of contra preferentum does not apply.
[7] The trial judge then asked himself the question whether any terms should be implied into the contract. In this regard, he found that a term that required the respondent to re-sheath was inconsistent with the factual circumstances surrounding the negotiation of the contract and with one of the most important terms of the contract, namely price. We see no error in his reasoning on this point.
[8] With respect to the counterclaim, the trial judge recognized that there were instances where the spacing and placing of nails did not comply with the Building Code. However, he also found that the appellant had "conceded that these transgressions were minor" and that there was no evidence before him as to the costs of rectifYing these "transgressions". In view of this lack of evidence, the trial judge correctly concluded that he was unable to award the appellant any damages on its counterclaim.
[9] For these reasons the appeal is dismissed. I have endorsed the back of the appeal book as follows: For reasons given orally, the motion to admit fresh evidence is dismissed, and the appeal is dismissed. The respondent is entitled to its cost of this appeal which we fix in the amount of$14,000, all inclusive.
Date of Reasons for Judgment: November 17,2015 Date of Release: _
CITATION: Window and Door Centre Inc. v. Pine Lake, 2015 ONSC 7239
DIVISIONAL COURT FILE NO.: 14-2067
DATE: 20151117
ONTARIO
SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, J. HENDERSON AND TAUSENDFREUND JJ.
BETWEEN:
The Window & Door Centre Inc.
-And-
Plaintiff (Respondent)
Pine Lake Properties Inc. and Middlesex Condominium Corporation No. 185
Defendants (Appellants)
ORAL REASONS FOR JUDGMENT
Date of Reasons for Judgment: November 17,2015 DateofRelease: DeceHJt)eV 31 2015·