CITATION: Sun Steel Fabricators Ltd. v. Tremonte Manufacturing Limited, 2016 ONSC 1580
DIVISIONAL COURT FILE NO.: 849/15 DATE: 20160303
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, THORBURN AND LEMAY JJ.
BETWEEN:
SUN STEEL FABICATORS LTD.
Plaintiff
(Respondent)
– and –
TREMONTE MANUFACTURING LIMITED and 1082955 ONTARIO LIMITED
Defendants
(Appellants)
Licio E. Cengarle, for the Plaintiff (Respondent)
Michael A. Handler, for the Defendants (Appellants), Tremonte Manufacturing Limited
HEARD at Toronto: March 3, 2016
SACHS J. (ORALLY)
[1] This is an appeal form the decision of Sosna J. dated March 5, 2014 granting judgment in favour of the respondent in the amount of $96,580.24, plus interest and costs.
[2] The appellant was the subcontractor for the supply and installation of structural steel in the construction of the Ajax Convention Centre. The appellant subcontracted its obligations to the respondent. At the end of the project the General Contractor owed the appellant $107,081.49 under its bid for the project that it did not pay. The appellant in turn refused to pay the respondent all the amounts it claimed it was owed for its work on the project. In the action giving rise to this appeal both parties claimed against each other for breach of contract.
[3] At the trial of this matter the trial judge found in favour of the respondent with respect to the matters at issue between them. In doing so the trial judge made it clear that the principals of both parties had given contradictory evidence on all the issues and that “findings of credibility and reliability are central factors on … all … issues at trial.” With respect to every issue raised, the trial judge preferred the evidence of the principal of the respondent to that of the principal of the appellant.
[4] On this appeal the appellant raises the following issues:
(a) The trial judge undermined the fairness of the trial by allowing the respondent to split its case (the “Case Splitting Issue”).
(b) The trial judge made palpable and overriding errors of fact when he accepted the respondent’s evidence about the causes of the delay in completing the work contracted for and in concluding that the delay did not cause the appellant to suffer any damages (the “Delay Issue”).
(c) The trial judge erred in applying a different standard when he dismissed the appellant’s claim for labour or material because it did not produce sufficient documentary evidence to support those claims, while at the same time he accepted the respondent’s claims when it produced no documents to support its claims and had submitted no invoices to the appellant for its subcontract work (the “Appellant’s Claims for Labour or Material Issue”).
(d) The trial judge erred when he found that the consent order did not limit the respondent’s claim to $50,000 (the “Consent Order Issue”).
(e) The trial judge’s interventions at the trial gave rise to a reasonable apprehension of bias on his part (the Bias Issue”).
[5] I will deal with each of these issues in turn.
The Case Splitting Issue
[6] This issue concerns the fact that after stating that it was not going to call a witness known as “Vince” during its case in chief, the respondent was allowed to call Vince in reply and the trial judge relied on Vince’s testimony in coming to the conclusions that he did about the issues that divided the parties. According to the appellant, by allowing the respondent to call Vince in reply the trial judge improperly allowed the respondent to split its case.
[7] As the Supreme Court of Canada made clear in R. v. Krause, [1986] 2 S.C.R. 466, generally a plaintiff will not be allowed to split its case. This means that generally a plaintiff is required to produce and enter in its own case all the clearly relevant evidence that it has or intends to rely upon. Thus, it will not be allowed to call in reply evidence what it could have called in chief, unless the defence has raised a new matter.
[8] The intent of the rule is to prevent the unfair surprise, prejudice and confusion that could result if the plaintiff was allowed to put in part of its evidence, close its case and then, after the defence has completed its case, the plaintiff was permitted to add further evidence to bolster the position it had originally advanced.
[9] In this case, during the course of the trial, counsel for the appellant sought to have admitted for the truth of their contents various statements attributed to Vince when neither party had called or was intending to call Vince as a witness. The trial judge expressed his preliminary view that these statements were hearsay and could not be admitted for the truth of their contents. He further expressed the view that since Vince was available to testify, the statements would be unlikely to satisfy the necessity component of the principled exception to the hearsay rule.
[10] After this issue had arisen many times, the trial judge asked for submissions on the issue and those submissions take up forty-two pages of the transcript. At the end of those submissions counsel for the respondent indicated that Vince might be available and if he was, that he was prepared to call him as a witness. The trial judge then determined that if Vince was available to testify, then any ruling about hearsay would either be premature or unnecessary, to which counsel for the appellant agreed.
[11] Since Vince was available, the respondent called him. At the commencement of Vince’s testimony counsel for the appellant raised a concern about case splitting to which the trial judge replied that Vince’s testimony would allow the appellant to address the issues that it was seeking to address through what might well have been hearsay evidence.
[12] It is clear from the record that the trial judge was alive to the benefits to the interests of justice that could be achieved by allowing Vince to testify. This would allow both sides to explore in the most reliable way possible what Vince did or did not say. It is also important to note that it was the appellant, not the respondent, who was seeking to have the evidence concerning Vince before the court. Thus, far from undermining the fairness of the trial by permitting the respondent to call Vince, the trial judge was promoting trial fairness by allowing the appellant to hear from Vince in the most reliable way possible.
[13] For these reasons I see no merit to the appellant’s first ground of appeal.
The Delay Issue
[14] The appellant submits that, given the clear language of the contract as to when the respondent was to complete his work and the undisputed fact that that work was completed much later, the trial judge committed an overriding and palpable error when he accepted the respondent’s explanations for the delays.
[15] The principal of the respondent gave explanations for the delays that the trial judge accepted. The appellant asserts that these findings were in error because the evidence of the respondent’s principal was not corroborated by any other evidence. Further, the unbiased witness (Bruno) testified that, contrary to the respondent’s principal’s evidence, the site was ready for the respondent to start its work.
[16] It is not an overriding and palpable error for a trial judge to accept the uncorroborated evidence of a witness whom he finds to be reliable and credible. It was also not a palpable and overriding error for the trial judge to refuse to accept the evidence of Bruno that the site was ready to accept steel when the basis for this evidence was that he had not received any notices from the appellant that the site was not ready.
[17] The appellant also argued that the trial judge erred when he found that the delay in construction did not cause the appellant any damages since it was clear that the General Contractor had refused to pay the appellant $107,000 that it was entitled to. Further, Bruno testified that this was because of the delays in installing the steel.
[18] On this issue the trial judge found that the respondent completed the work, that there was no evidence that it had been completed inadequately and that there was no evidence that any back charges had been imposed because of the delay. He also had before him the evidence of the principal of the appellant that he did not know why the $107,000 had been withheld. Although the appellant pointed to Bruno’s knowledge as evidence, this knowledge was based on what he had heard from the principal of the appellant. In the face of this evidence or lack of evidence, it cannot be said that the trial judge made a palpable and overriding error when he found that he was not satisfied that the delay had caused the appellant any damages.
Appellant’s Claims for Labour and Material Issue
[19] The appellant made a number of claims against the respondent for costs that it said it had incurred that were the responsibility of the respondent. The trial judge rejected these claims, primarily because of the fact that he found the evidence of the respondent’s principal on these issues to be more credible than the evidence of the appellant’s principal. A trial judge’s findings of credibility and reliability are entitled to deference from this court.
[20] It is true that in rejecting the appellant’s principal’s evidence the trial judge did advert to the fact that there were no documents to support the claim that it was the appellant who had done the work or supplied the material that the respondent was supposed to. According to the trial judge, if this was the case he would have expected to see some invoices for labour or material. In my view, this was an entirely reasonable expectation.
[21] With respect to the fact that the trial judge did not find that the respondent’s principal’s credibility was undermined because it did not supply invoices to the appellant, the trial judge accepted the explanation that this mode of doing business was consistent with the past practices of the respondent who had worked with the appellant before. It is also important to note that there was no issue that the work that the respondent was contracted to do was completed. This is in contrast to the appellant’s claim for work and materials, which was a claim relating to work and materials that it was the respondent’s obligation to perform. In such a situation one would expect to see some documentation to support the allegation that the appellant performed the respondent’s obligation.
[22] With respect to the engineer’s invoice, the trial judge was entitled to find that the person responsible for the invoice was the person to whom, it was sent, especially in view of the fact that the appellant waited over two years to seek compensation from the respondent for this invoice.
The Consent Order Issue
[23] The appellant argues that the trial judge erred when he found that a consent order entered into by the parties on January 10, 2010 that dismissed the action against the Owner and the General Contractor and disbursed monies held into court with $50,000 to be held by the appellant’s lawyer did not limit the respondent’s claim to $50,000.
[24] There is no merit to this argument. On this issue the trial judge accepted the evidence of the respondent’s principal and rejected the evidence of the appellant’s principal, finding it to be contradictory and illogical. These findings of credibility are entitled to deference, especially in the face of the fact that there is nothing in the consent order or any other document or correspondence from counsel for either side confirming that the respondent’s claim was to be limited to $50,000.
Bias Claim
[25] Having reviewed all of the portions of the transcript that the appellant relies upon to support its claim for a reasonable apprehension of bias, I find unequivocally that there is no basis to support this claim. What the transcript reveals is that the trial judge started out with a concern about a potential lack of co-operation between counsel that could unduly lengthen the trial and brought that concern to the attention of both counsel. He also experienced a concern based upon the body language and attitude of appellant’s counsel. Instead of keeping quiet about that concern he raised it with counsel and accepted counsel’s explanation that he did not in any way intend to show any disrespect to the court. The other interventions occurred when the trial judge felt that appellant’s counsel was seeking to lead inadmissible evidence, was seeking to raise matters during a witness’s examination in chief that should be explored during cross-examination or was seeking to explore a matter that was not raised in the pleadings. These interventions were not numerous and, with one exception (that was not raised as a separate ground of appeal) were entirely appropriate. Even in the absence of an objection from counsel for the other side, a trial judge has an obligation to ensure that a trial is conducted fairly and appropriately.
Conclusion
[26] For these reasons the appeal is dismissed.
Costs
[27] I have endorsed the back of the Appeal Book, “For reasons given orally by Sachs J. this appeal is dismissed. The respondent is entitled to its partial indemnity costs of this appeal, which we fix in the amount of $10,000.00, all inclusive.”
___________________________ SACHS J.
THORBURN J.
LEMAY J.
Date of Reasons for Judgment: March 3, 2016
Date of Release: March 7, 2016
CITATION: Sun Steel Fabricators Ltd. v. Tremonte Manufacturing Limited, 2016 ONSC 1580
DIVISIONAL COURT FILE NO.: 849/15 DATE: 20160303
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, THORBURN AND LEMAY JJ.
BETWEEN:
SUN STEEL FABICATORS LTD.
Plaintiff
(Respondent)
– and –
TREMONTE MANUFACTURING LIMITED and 1082955 ONTARIO LIMITED
Defendants
(Appellants)
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: March 3, 2016
Date of Release: March 7, 2016