JUDGMENT ON APPEAL

WOODLEY J.:

Overview

[1] Amazon Hardwood Centre Inc. (the Appellant) appeals the decision of Deputy Judge Bortolussi dated April 30, 2014 that granted judgment in favour of Zuhair Qaqish (the Respondent) in the amount of $10,047.96 inclusive of HST and dismissed the Appellant’s counter-claim for payment of $904.05. The claim and counter-claim relate to the purchase of hardwood flooring installed at the residence of the Respondent.

Issues on Appeal

[2] The Appellant filed a Notice of Appeal on the following grounds:

a) No expert evidence was introduced to establish faulty workmanship or details of the allegedly defective installation, or failure to satisfy some industry standard or other standard of care.

b) The trial judge committed a fatal error in her findings of fact that the Appellant was responsible for the installation complained of.

c) The trial judge committed errors of law by failing to apply any principle of law applicable to the sale of goods through various findings of fact made by her.

d) The trial judge erred in fact by finding that the Appellant was responsible for the installation of the hardwood on the evidence before the court.

e) The trial judge erred in law by conflating and confusing attempts by the Appellant to provide after sales customer service to satisfy a customer complaint as being evidence of faulty workmanship and remedial steps taken after the fact.

f) The trial judge failed to provide sufficient reasons for her preference of the evidence of the Respondent over “uncontradicted” evidence of the Appellant disclosing a lack of appreciation or disregard of relevant evidence, constituting an error of law reviewable upon appeal.

g) The reasons for judgment do not permit an “intelligible pathway through her reasons to the conclusions given”.

h) The reasons do not deal in “any way with strong, clear and uncontradicted evidence of the witnesses” and are otherwise insufficient.

Determination of Issues

[3] For the reasons that follow I hereby dismiss the appeal.

Background Facts

[4] The trial of this small claims proceeding was held in Richmond Hill, on March 18, 2014. At trial viva voce evidence was provided by the Respondent, his son Abraham Qaqish, and the Appellant. Each of the Respondent and the Appellant introduced various documents at trial which formed the basis of trial exhibits 1 to 4 consisting of the following: (i) Appellant’s written invoice dated July 27, 2012 re sale of flooring; (ii) Appellant’s written invoice dated October 13, 2012 re sale of flooring and removal of old flooring; (iii) Respondent’s flooring estimate to replace Respondent’s floors dated January 26, 2013; and (iv) Respondent’s TD Canada Trust Bank book of the Respondent evidencing various cash withdrawals.

[5] Following the hearing the parties provided written submissions to the court which were received on April 9, 2014. The Endorsement notes that the submissions filed on behalf of the Defendant were entitled “Written Submissions of the Plaintiff” but were clearly the submissions of the Defendant/Appellant.

[6] Deputy Judge Bortolussi released her three page typed Endorsement on April 30, 2014 which granted judgment in favour of the Respondent in the amount of $10,047.96, dismissed the Appellant’s counter-claim and awarded costs to the Respondent fixed at $2,000, inclusive of disbursements and HST.

[7] The Endorsement summarizes the facts found by the Judge, which essentially prefers and accepts the evidence provided by the Respondent over the evidence provided by the Appellant with respect to all matters in issue. It is this preference and acceptance of the Respondent’s evidence that forms the basis of the within appeal. Essentially, the Appellant claims that the Judge: (i) had no basis to make the findings of fact relied upon; (ii) failed to explain inconsistencies in the evidence; (iii) failed to accept “uncontroverted” evidence of the Appellant, in coming to her decision; and (iv) awarded damages without having sufficient basis for finding negligence and without proper documentation to gauge the damages so awarded.

[8] The grounds of appeal, although repeated and re-stated using different examples throughout the Appellant’s argument, simply stated, are that the Judge misapprehended the evidence and in doing so committed a palpable and overbearing error on the face of the record. Tied to this ground of appeal is the allegation that the Judge did not provide sufficient reasons to justify her findings.

[9] As the facts are inextricably tied to the judgment rendered and the grounds for appeal raised by the Appellant, it is necessary to record the various findings of fact made by the Judge in her Endorsement:

a) The parties entered into a verbal contract regarding hardwood flooring to be installed at the home of the Respondent;

b) The parties discussed the terms of a contract in the Arabic language that included the supply and installation of approximately 2200 square feet of hardwood flooring at the home of the Respondent for $12,000;

c) The Respondent paid the Appellant $6,000 prior to installation and $4,000 on completion of the job and paid a further $2,000 to the Appellant’s installers/employees.

d) The Respondent was responsible for the removal of the carpet;

e) The Respondent and his son did not know who the installers were but only knew that they (the installers) picked the flooring up at the Appellant’s place of business, brought it to the Respondent’s home in a white unmarked van and installed the flooring over approximately 2 ½ to 3 days;

f) The Respondent’s son removed the carpet and paid the installers $2,000 in cash at the end of the job as directed by his father the Respondent;

g) The Appellant attended at the Respondent’s home on three occasions to attempt to deal with the Respondent’s complaints. The Appellant, at no cost to the Respondent, replaced the flooring in the dining room to the satisfaction of the Respondent as well as one half of the floor in the family room;

h) The Respondent did not ever receive the two invoices produced by the Appellant at trial as Exhibits 1 and 2. The Respondent was denied an invoice when requested one from the Appellant upon having paid in full;

i) The two invoices produced by the Appellant at trial being Exhibits 1 and 2, were generated after the fact;

j) The Appellant by his attempts to remedy the work for the Respondent acknowledged that the installation was done improperly;

k) The court rejected the Appellant’s evidence that the remedy work was done gratuitously solely to keep the customer happy and further rejected the Appellant’s evidence that required the Respondent to pay the second October invoice presented as Exhibit 2; and

l) The Appellant’s estimate of the work required to remedy the balance of the improper installation of the flooring presented as Exhibit 3 was accepted as evidence tendered with respect to the costs of fixing the rest of the flooring.

[10] Having reviewed the evidence the Judge stated that she preferred the evidence of the Respondent over the Appellant and granted judgment in accordance with the estimate presented as Exhibit 3.

[11] For the record, I note that counsel for the Appellant made no objection to the introduction of the estimate (Exhibit 3) and did not conduct cross-examination regarding the estimate. Instead, during submissions counsel argued that the estimate does not form the basis of an expert opinion sufficient to establish liability.

[12] Although not raised on appeal, I also note that there is an error on the face of the Endorsement at paragraph 2, lines 5 to 7, wherein the Judge transposes the actions of the “defendant/appellant” with that of the “plaintiff/respondent”. The error is obviously a transcription error and does not constitute a palpable or overriding error.

The Law

Jurisdiction

[13] Pursuant to s. 31(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43, and s. 2 of the Small Claims Court Jurisdiction and Appeal Limit, O. Reg. 626/00, the Divisional Court has jurisdiction to hear appeals from final orders of the Small Claims Court in excess of $2,500. As the judgment awarded damages in the amount of $5,085 the appeal is properly brought before this Court.

Standard of Review

[14] The Ontario Court of Appeal in Krawchuk v. Sherbak et al., 2011 ONCA 352, 106 O.R. (3d) 598, establishes that the appropriate standard of review is palpable and overriding error, which means that the trial judge’s findings of fact attract considerable deference.

[15] The Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, establishes that the appropriate standard of review for questions of law is a correctness standard;[^1] and questions of fact are reviewed on a palpable and overriding error standard.[^2] Questions of mixed fact and law fall on a spectrum: if the issues of fact and law cannot be separated, the palpable and overriding error standard applies. However, correctness applies if the question of law is extricable from the factual matrix.[^3]

[16] Several cases have expounded the meaning of the palpable and overriding error standard. In Huisman v. MacDonald, 2007 ONCA 391, 280 D.L.R. (4th) 1, a palpable error was characterized as one which is so overriding as to discredit the result.[^4]

[17] The concept of palpable and overriding errors was also discussed by the Ontario Court of Appeal in Waxman v. Waxman (2004), 186 O.A.C. 201 (C.A.):

The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result. A “palpable” error is one that is obvious, plain to see or clear: Housen at 246. Examples of “palpable” factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.

An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” error does not automatically mean that the error is also “overriding”. The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: Schwartz v. Canada, [1996] 1 S.C.R. 254 at 281.[^5]

[18] As noted above, Housen establishes that the correctness standard is only applied on questions of mixed fact and law when the law is easily separable from the facts.

[19] When the standard of review is correctness, an appellate court does not need to show deference to the trial judge’s decision. This principle is supported by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190:

When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s [court’s] decision was correct.[^6]

[20] This means that on a correctness review, the appellate judge can undertake his or her own analysis of the question, and if the appellate judge does not agree with the determination of the trial judge, the appellate judge has the power to substitute his or her view and provide the correct answer.

Special Considerations Applicable to Small Claims Court

[21] Section 25 of the Courts of Justice Act establishes that: “The Small Claims Court shall hear and determine in a summary way all questions of law and fact and may make such order as considered just and agreeable to good conscience.”

[22] In Peck v. Residential Property Management Inc., [2009] O.J. No. 3064 (Div. Ct.), Molloy J. noted that “[t]he purpose of Small Claims Court is to provide expeditious and low cost settlement of monetary disputes…this Court is reluctant to interfere with a decision of a Small Claims Court judge on judicial review unless it is an order made without jurisdiction or in breach of the principles of natural justice”.[^7] This passage was cited with approval by Wilson J. in Pardar v. McKoy, 2011 ONSC 2549, 201 A.C.W.S. (3d) 70, at paras. 3, 5.

[23] These statements indicate that the presumption is in favour of deference when reviewing a decision of a Small Claims Court judge.

Standard of Care

[24] To avoid liability in negligence, a professional must exercise the standard of care that would be expected of a reasonable and prudent professional in the same circumstances. This general standard, a question of law, will not vary between cases and there is no need for it to be established through the use of expert evidence.[^8]

[25] The translation of that standard into a particular set of obligations owed by a defendant in a given case, however, is a question of fact. External indicators of reasonable conduct, such as custom, industry practice and statutory or regulatory standard, may inform the standard. Where a debate arises as to how a reasonable professional would have conducted himself or herself, recourse should generally be made to expert evidence.[^9]

Onus

[26] As per Paradigm Quest Inc. v. Mian, the onus is on the Respondent to show that there was a certain standard of care required by the Defendant, that the standard was breached, and that the breach caused damages.[^10]

Analysis

Findings of Fact as Palpable and Overriding Errors

[27] The Appellant reviewed the transcripts of evidence and Exhibits from trial to establish the Appellant’s position that the Judge misapprehended the evidence, failed to appreciate or explain inconsistencies in the evidence, and failed to accept uncontroverted evidence provided by the Appellant in coming to her decision.

[28] The Appellant further reviewed the opening statements made by the Respondent’s counsel to establish that the Judge failed to take into account admissions and concessions which limited the relief available to the Respondent.

[29] It is my opinion that the evidence as recorded by the transcripts and Exhibits supports a finding that the evidence provided by the Respondent and his son was internally consistent. I disagree with the assertion that the Judge misapprehended the evidence, failed to appreciate inconsistencies, and failed to accept uncontroverted evidence.

[30] The Respondent’s evidence and position remained constant from the claims made by his Statement of Claim to the evidence provided at trial. I reject the Appellant’s claim that the Respondent’s evidence was unsubstantiated and/or that there were no grounds for the Judge to make the findings of fact on the basis of the record before the court. The facts accepted by the Judge fully support the conclusions reached in the Endorsement.

[31] In the circumstances I find that there were no palpable or overriding errors with respect to the Judge’s review and recitation of the facts as accepted by her.

[32] The decision to prefer the evidence of the Respondent over the Appellant was clearly based upon the Judge’s assessment of the credibility of the parties. The Judge accepted the evidence of the Respondent and his son and determined them to be credible witnesses.

[33] Although the Supreme Court in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, invites judges to make credibility findings on summary judgment motions, there is no authority to suggest that absent a palpable and overriding error that I can or should substitute my assessment of credibility with that of the trial judge. The Judge heard the evidence and viewed the witnesses testify. Based on her review she accepted the Respondent’s evidence over that of the Appellant.

[34] The credibility assessment was made within the Judge’s jurisdiction and her acceptance of the Respondent’s evidence provided during trial is in accordance with the principles of fundamental justice. The Judge’s determination of the facts and her assessment of the credibility of the parties warrant deferential treatment and I hereby defer to the Judge with respect to these issues.

[35] As for the Appellant’s submission that the opening submissions of the Respondent’s counsel were admissions and the trial judge had no evidence or authority to make findings contrary to such admissions, I reject this argument outright.

[36] The submissions made by the Respondent’s counsel do not qualify as evidence nor were they binding admissions made in the usual course of a proceeding. The submissions were intended to assist the process, to avoid or shorten the trial and to resolve the matter in a timely manner in keeping with the principles of justice applicable to small claims proceedings. The matter did not resolve and a full trial was held. The trial judge made her findings in accordance with the evidence presented at trial as was her duty and obligation to the parties. The parties are bound by her determination of the issues.

Sufficiency of Reasons

[37] The Appellant submitted that the Judge accepted the evidence of the Respondent and preferred the Respondent’s evidence without providing sufficient explanation or reasons. In support of this position the Appellant directed the court to several decisions dealing with the sufficiency of reasons in superior court criminal and civil proceedings. The Appellant made no reference to any authority regarding sufficiency of reasons in small claims proceedings.

[38] As noted by Molloy J. in Peck v. Residential Property Management Inc., [2009] O.J. No. 3064 (Div. Ct.), “[t]he purpose of Small Claims Court is to provide expeditious and low cost settlement of monetary disputes…this Court is reluctant to interfere with a decision of a Small Claims Court judge on judicial review unless it is an order made without jurisdiction or in breach of the principles of natural justice”.[^11] This passage was cited with approval by Wilson J. in Pardar v. McKoy, 2011 ONSC 2549, 201 A.C.W.S. (3d) 70, at paras. 3, 5.

[39] The authorities cited by the Appellant regarding the sufficiency of reasons are not directly applicable to small claims court proceedings. While reasons must be sufficient to allow a party to understand the reasoning for any ruling, in the present case the Judge set out the facts that were accepted by her in reaching her decision, preferred and accepted the evidence of the Respondent, and rejected that of the Appellant. I find that no palpable and overriding errors were made on the facts and the reasons are sufficient in the context of the small claims proceedings.

Negligence and Damages

[40] No expert evidence was provided by the Respondent which would establish the appropriate standard of care to form the basis for breach of any duty or a finding of negligence. However, expert evidence is not always required.

[41] The Supreme Court of Canada has held that expert evidence is only admissible when necessary.[^12] To this end, Krawchuk establishes that there are two situations where it is acceptable to determine professional negligence without the benefit of expert evidence: (a) where there are non-technical matters of which an ordinary person may be expected to have knowledge; and, (b) where the matter is so egregious that the negligence is obvious.

[42] In the present case the Judge found that the Appellant’s attendance at the home many times and their remedy of several complaints supports the Respondent’s position that the Appellant was responsible for the installation and problems arising from the improper installation. Although not specifically stated it is apparent in the terms of the reasoning that the repeated attendance and attempts to remedy the installation complaints also provided sufficient evidence to the Judge to determine external indicators of reasonable conduct, such as custom, industry practice and statutory or regulatory standard, to inform the standard of care. In other words there was sufficient evidence before the court to inform as to the standard of care and to conclude in the circumstances, through external indicators and the estimate that the standard of care had been breached.

[43] Further, I note that the issue of the proper installation of the flooring involves non-technical matters of which an ordinary person may be expected to have knowledge. The floors were alleged to “squeak” and were alleged not properly secured to the subfloor. The test sought to be completed by the Appellant to determine whether the floors were properly installed was to walk on the floors to see if they squeaked. One would expect a layperson to possess the requisite knowledge to complete such a test and make a determination. In the present case, recourse to expert evidence was not required in order to arrive at a finding of negligence.

[44] As for the determination of damages, the estimate that was admitted into evidence as Exhibit 3 formed a sufficient basis upon which the trial judge could assess and award damages. There was no error whether palpable or overriding and determination of the issue of negligence and damages in the circumstances was correct.

Disposition of the Appeal

[45] On the basis of the reasons outlined herein, I dismiss the appeal and confirm the validity of the Endorsement and judgment of Deputy Judge Bortolussi dated April 30, 2014.

[46] If the parties are unable to agree on costs, the Respondent shall have until August 30, 2016 to file costs submissions and the Appellant shall have until September 12, 2016 to file a response. Any reply by the Respondent shall be filed by September 20, 2016. The submissions, response and reply shall not exceed three pages in length (each). If no submissions are filed by August 30, 2016, no costs shall be payable.

Madam Justice S. J. Woodley

Date: August 10, 2016

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Zuhair Qaqish

Plaintiff/Respondent

-and-

Amazon Hardwood Centre Inc.

Defendant/Appellant

JUDGMENT ON APPEAL

Madam Justice S.J. Woodley

Released: August 10, 2016

[^1]: Housen at para. 8. [^2]: Housen at para. 10. [^3]: Housen at paras. 36-37. [^4]: Huisman at para. 56. [^5]: Waxman at paras. 296-297. [^6]: Dunsmuir at para. 50. [^7]: Peck at para. 4. [^8]: Krawchuk v. Sherbak et al, 2011 ONCA 352, 106 O.R. (3d) 598 [^9]: Krawchuk at para. 125. [^10]: (2010) 190 A.C.W.S.(3d) [^11]: Peck at para. 4. [^12]: R v. Mohan, [1994] 2 S.C.R. 9, 114 D.L.R. (4th) 419; R. v. Abbey, [1982] 2 S.C.R. 24, 138 D.L.R. (4th) 666.

Zuhair Qaqish v. Amazon Hardwood Centre Inc., 2016 ONSCDC 5100

Case Summary

JUDGMENT ON APPEAL

Overview

Issues on Appeal

Determination of Issues

Background Facts

The Law

Jurisdiction

Standard of Review

Special Considerations Applicable to Small Claims Court

Standard of Care

Onus

Analysis

Findings of Fact as Palpable and Overriding Errors

Sufficiency of Reasons

Negligence and Damages

Disposition of the Appeal

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 2

Legal Tests 3

Legislation 3