CITATION: Eastern Restoration & Masonry Contractors Ltd. v. Joubarne, 2016 ONSC 5365
DIVISIONAL COURT FILE NO.: DC 15000700
DATE: 2016-08-25
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Ray, J
BETWEEN:
EASTERN RESTORATION & MASONRY CONTRACTORS LTD.
Respondent/Plaintiff
– and –
GRACE JOUBARNE
Appellant/Defendant
John Masterakos, for the Respondent/Plaintiff
Gordon Campbell, for the Appellant/Defendant
HEARD: August 25, 2016 at Belleville
On appeal from the decision of Small Claims Court Deputy Judge A.P. Girard, dated November 9, 2015
[1] The defendant appeals the decision of the trial judge on several grounds, including bias, and that he made errors in fact which amounted to overriding and palpable errors.
[2] The trial involved a claim by the plaintiff for the balance due and owing for work done on the defendant’s house in Belleville in the amount of $6,210.78, from a total contract of some $10,000. The defendant advanced a counter claim for remediation and damages as a result of the plaintiff’s faulty work. The defendant’s position was that the scope and quality of the work was substandard, and not what the plaintiff had agreed to do. The trial judge heard two witnesses for the plaintiff, and several witnesses for the defendant, some of whom were produced as experts, plus herself. All of the parties were represented.
[3] In detailed oral reasons, the trial judge found as follows:
a. The plaintiff was entitled to the balance owing under the contract of $6,210.78, and the defendant’s claim for damages in the amount of $4,640 was dismissed;
b. The plaintiff’s claim was straightforward but awarded court prejudgement interest, not the claim for interest as it appeared on the invoice of 2% per month;
c. The claim by the defendant that the contract was in fact for restoration of the whole house, and the plaintiff “foisted on her a sealant for the brick which was unnecessary and in fact harmful to the brick”, was not established on a balance of probabilities;
d. The witnesses’ evidence was reviewed. He found David Hartwig to be forthright, and to make sense. He had never met with the defendant. Whittaker’s evidence was satisfactory. Vern Hartwig was the principal of the plaintiff, had dealt with the defendant including the contract, and oversaw the work;
e. None of her witnesses were permitted by the defendant to meet with her proposed experts to exchange their point of view and concern. (Ultimately this made it very difficult for the defendant’s witnesses to say which portions of the brick work had been done by the plaintiff.);
f. Mr Dejong for the defendant contradicted the defendant on the question of the sealant, he said it performed, she said it did not. The defendant believed that the contract was for the whole house to be done. David Hartwig said it was only a portion of the house, and he accepted the evidence of David Hartwig based in part on the value of the contract;
g. The defendant had volunteered that she feared Vern Hartwig. The trial judge found him to be a mild mannered, gentle person, and considered her accusation unfounded;
h. The contract was clear on its face that the work to be done did not include the whole house. The witness Scheinman, with the assistance of the defendant’s representative said it would cost $40,000 to restore the whole house. That evidence was unsupported and unsatisfactory. That same witness gave evidence about the sealant on the bricks which contradicted Mr Dejong’s evidence. He rejected Mr Scheinman’s evidence;
i. The witness Krysa could not identify which work had been done by the plaintiff, and which had not. Brian Forsyth in cross-examination was unable to identify which work had been done by the plaintiff and which had not;
j. Where the evidence of the plaintiffs conflicted with the evidence of the defendant and her witnesses, he accepted the evidence of the plaintiffs.
[4] An appeal from the Small Claims Court for an award in excess of $2,500 is to be taken to a single judge of the Divisional Court. The standard of review is correctness on a question of law, and palpable and overriding error regarding findings of fact. A more stringent standard of review is applicable where the trier of fact has considered all the evidence that the law requires him or her to consider, and still comes to the wrong conclusion.[^1] Where there are claims that the trial was conducted unfairly, the standard of review is inapplicable. That enquiry is to be focussed strictly on the conduct of the trial judge and his rulings to determine if the parties had been treated fairly, particularly when one of the parties is self-represented.[^2] A judge’s reasons for decision must meet a minimum standard of adequacy that permits meaningful appellate review.[^3]
[5] The defendant contends that the trial judge permitted the appearance of bias when he acknowledged having met one of the witnesses some years previously and failed to permit the parties to make submissions. The record is clear that that was not the case. On three separate occasions, commencing at the opening of trial, the trial judge told the parties he had known David Hartig some years previously when visiting a restaurant frequently at the time, and had chatted with Mr Hartig who had been a student and a bartender at the restaurant. He made it clear that they did not have a business relationship, and that he did not consider it necessary to recuse himself. Three times he invited comments from the parties, and even suggested that he would recuse himself if they felt more comfortable. In fact, contrary to the defendant’s submissions in which he contended the representative had been ‘cowed’ into silence, the defendant’s representative spoke up and encouraged him to remain.
[6] The defendant’s allegation that “It became clear as the trial progressed that the Deputy Judge and Mr. Hartwig had spent significant time together, and that the Deputy Judge was fond of Mr. Hartwig.” is simply not supported by the record. The defendant in submissions implied that a finding by the trial judge that Vern Hartwig was a gentle person in contradistinction to the defendant saying she was afraid of him, might have been based on an out of court experience rather than during his evidence was again simply not substantiated. When questioned about the source of that allegation, counsel admitted that this was speculation on his part. Bias is a serious matter. An allegation of bias against a judge is very serious since it undermines our very system of justice. Speculation has no place in an analysis of a trial record on the issue of bias. The record discloses no appearance of bias. I am satisfied that the trial judge correctly gave the litigants several opportunities to air any concerns. Their failure to do so suggests that they were not concerned. The record supports that conclusion.
[7] The defendant in her factum contended that the trial judge had interfered unduly in the questioning of the witnesses. In argument, counsel acknowledged that the questioning was not improper, and while it interfered with the trial process, it was probably necessary for the trial judge to understand the evidence.
[8] The record makes it clear that the trial judge reviewed the evidence, alerted himself to any conflicts in the evidence and made credibility findings on the basis of the evidence, not appearances or demeanour. There was evidence before the trial judge that permitted him to make the findings that he did.
[9] The defendant confined his submissions to the bias argument and tied it to the trial judge’s findings. While other matters were raised in his factum, he did not pursue them in argument.
[10] I am not satisfied the defendant has made out a case for an appearance of bias on the part of the trial judge, and further I am satisfied the record discloses no palpable and overriding error in his findings of fact.
[11] The partied agreed to fix their costs at $7,000. The appeal is dismissed with costs payable by the defendant fixed at $7,000.
Honourable Justice Ray
Released: August 25, 2016
CITATION: Eastern Restoration & Masonry Contractors Ltd. v. Joubarne, 2016 ONSC 5365
DIVISIONAL COURT FILE NO.: DC 15000700
DATE: 2016-08-25
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Ray J
BETWEEN:
EASTERN RESTORATION &
MASONRY CONTRACTORS LTD.
Respondent/Plaintiff
-and-
GRACE JOUBARNE
Appellant/Defendant
REASONS FOR JUDGMENT
Released: August 25, 2016
[^1]: Courts of Justice Act, s. 31,; Housen v. Nikolaisen, 2002 SCC 33, [2002] 211 D.L.R. (4th) 577 (SCC), [2002] S.C.J. No. 31; Twan v. Hudson’s Bay Company, 2008 O.J. 5381, 93 O.R. (3rd) 582.
[^2]: Cicciarelli v. Cicciarelli.
[^3]: Diamond Auto Collision Inc. v. The Economical Insurance Group, 2007 ONCA 487 (OCA) paras 10 -14