reasons for judgment

Nature of the Appeal

[1] Florips Bajouco (“Bajouco”) appeals the decision of Deputy Judge Seeveratnam dated July 8, 2014 which found her liable for damages in the total amount of $8,800.77, plus costs of $1,515.12, for water damage done to the property of her immediate neighbour, Cindy Green (“Green”).

[2] Bajouco appeals both the trial judge’s liability findings and her assessment of damages.

Jurisdiction

[3] An appeal of a judgment of a judge of the Small Claims Court is to a single judge of the Divisional Court in accordance with s. 31 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

Standard of Review

[4] On questions of law, the standard of review is correctness. On questions of fact, the standard is palpable and overriding error. On questions of mixed fact and law, there is a spectrum. Where there is an extricable legal principle, the standard of review is correctness. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error (see: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235).

Facts

[5] The claim for damages advanced by Green as plaintiff at trial arose out of flooding to the basement of her semi-detached house at 20 Verbena Avenue in Toronto. Her property abuts the house owned by Bajouco.

[6] Flooding to Green’s basement occurred on four occasions from 2011 through 2013 which resulted in the need for repairs. Green alleged that the flooding had been caused by the periodic detachment of a downspout on Bajouco’s property which Bajouco has the responsibility to maintain.

[7] Bajouco denied that her downspout was ever detached or damaged.

[8] Green’s action for damages for negligence or, alternatively, intentional damage to property proceeded on July 8, 2014. Following the hearing of evidence from the parties and submissions from their counsel, the trial judge delivered oral reasons for judgment in favour of Green. The trial judge found that on a balance of probabilities the evidence demonstrated that a faulty connection in the downspout on Bajouco’s property had caused the flooding, and that Bajouco, therefore, was liable for the repair costs.

Discussion

[9] Although Bajouco has raised several issues on her appeal, most of them seek to impugn the trial judge’s assessment of the evidence at trial and to have this Court rehear the case. In my view, none of the points argued on behalf of Bajouco amount to demonstrating any reversible error of law or palpable or overriding error with respect to any findings of fact made by the trial judge or with respect to her application of the law to those facts.

[10] The sufficiency of reasons in the Small Claims Court context has been considered by the Court of Appeal for Ontario in Maple Ridge Community Management v. Peel Condominium Corporation No. 231, 2015 ONCA 520. The Court of Appeal observed that the Small Claims Court has a mandate under the Courts of Justice Act, R.S.O. 1990, c. C.43 to “hear and determine in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience”. The Court further stated, at paragraph 35:

…[A]ppellate consideration of Small Claims Court reasons must recognize the informal nature of that court, as well as the volume of cases it handles and its statutory mandate to deal with these cases efficiently. … Just as oral reasons will not necessarily be as detailed as written reasons, reasons from the Small Claims Court will not always be as thorough as those in Superior Court decisions. Failing to take the Small Claims Court context into account only serves to restrict access to justice by unnecessarily imparting formality and delay into a legal process that is designed to be informal and efficient.

[11] Although the trial judge did not specifically state in her reasons that a duty of care was owed by Bajouco to Green in the circumstances and that Bajouco failed to discharge that duty, the evidence tendered at trial and the trial judge’s reasons, when read as a whole, reflect that the only matter in serious issue was the cause of the flooding.

[12] It was evident throughout the proceeding that Bajouco denied that there was any defect in or detachment to her downspout that had caused the flooding. She did not dispute her duty to her neighbour to maintain her own downspout in good condition or argue that was someone else’s obligation. Bajouco’s position was that her downspout was attached and working properly, that she was thereby not negligent, and that Green’s evidence to the contrary was incorrect or false.

[13] There was evidence at trial upon which the trial judge could rely to support a finding that the downspout had become detached and had caused flooding onto Green’s property. The trial judge did not make any palpable and overriding error in her assessment of the evidence in that regard, including in her assessment of the credibility of the witnesses. It is evident from the trial judge’s reasons that Green’s evidence as to the cause of the flooding was accepted by her, and that all other possible causes of flooding and damage advanced by Bajouco were systematically analyzed and rejected.

[14] By engaging in this deductive reasoning, the trial judge did not improperly shift the burden of proof to the Defendant.

[15] The trial judge was entitled to assign no weight to the City of Toronto record tendered by Bajouco as evidence at trial. Although the document was entered as a business record, its contents were disputed by Green. Its author was not called to give evidence at trial. The trial judge did not rely on the notation on the document as to the source of the flooding and, rather, accepted Green’s evidence as being both credible and reliable on the issue. It was within the proper scope of the role of the trial judge to do so.

[16] Similarly, there was evidence adduced upon which the trial judge could rely in arriving at her assessment of damages. Various bills and estimates were tendered by Green to support the repair costs she claimed.

[17] Finally, the trial judge did not err in law by failing to apply a limitation period to all or part of the damage caused by the periodic flooding. Indeed, the limitation period argument was not seriously advanced and basically abandoned by Bajouco’s counsel in closing submissions.

Conclusion

[18] For these reasons, this appeal is dismissed.

Costs

[19] Unfortunately, counsel could not agree on costs at the hearing. If that subject cannot be agreed upon now, written submissions on that subject may be delivered by Green within 20 days of today’s date and by Bajouco within 15 days thereafter.

Stewart J.

Released: February 12, 2016

CITATION: Bajouco v. Green, 2016 ONSC 1016

DIVISIONAL COURT FILE NO.: DC-361/14

court file no.: SC-13-00027570-0000

DATE: 20160212

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

florips bajouco

Appellant

and -

cindy green

Respondent

REASONS FOR JUDGMENT

Stewart J.

Released: February 12, 2016

Bajouco v. Green, 2016 ONSC 1016

Case Summary

reasons for judgment

Nature of the Appeal

Jurisdiction

Standard of Review

Facts

Discussion

Conclusion

Costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Legal Tests 1

Legislation 1