Auciello v. Sanchez, 2016 ONSC 6104
CITATION: Auciello v. Sanchez, 2016 ONSC 6104
DIVISIONAL COURT FILE NO.: 414/15
DATE: 20160930
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
VITO AUCIELLO
Appellant (Plaintiff)
– and –
STIVEN HERNAN SANCHEZ, AKA, STEVEN SANCHEZ
Respondent (Defendant)
Self-represented
Self-represented
HEARD at Toronto: September 28, 2016
REASONS FOR JUDGMENT
VARPIO J.
[1] This Plaintiff/Respondent brought this claim for $1347.50 in unpaid wages for carpentry work done on the Defendant/Appellant’s property. The Appellant admits that the Respondent did the work in question and attempted to pay the Respondent with an NSF cheque. However, the Appellant counter-claimed for $5000.00 since the Respondent’s work was allegedly deficient and required repair.
[2] The Appellant advances a number of arguments regarding the Small Claims Court Judge’s reasons. I need only deal with the issue of the Appellant’s evidence in support of his counterclaim.
[3] The Small Claims Court Judge rejected the Appellant’s evidence dealing with the nature and value of the repairs. The Small Claims Court Judge stated:
The Defendant attempted to establish himself as an expert in relation to the work performed by the Plaintiff, as a result of him being a realtor, and an architectural designer. However, he was not qualified by the Defendant’s paralegal as an expert. In any event, I am not satisfied that as an architectural designer, that the Defendant is an expert in determining deficiencies other than those that would be readily apparent to the ordinary man, and not in a position to establish the cost to rectify any of the deficiencies.
[4] As per R. v. Mohan 1994 80 (SCC), [1994] 2 S.C.R. 9 and the subsequent cases dealing with expert testimony, certain forms of opinion evidence require expert qualifications. The trial judge required the Appellant be so qualified. He was not. Furthermore, the trial judge indicated that, even if he were to consider the Appellant’s background in architecture, he did not believe that said qualifications allowed the Appellant to testify as to the nature of the deficient work as well as the value of the repair.
[5] It is clear to me that the nature of the allegedly faulty work is not the kind of evidence about which the average person can testify. This kind of evidence requires expert opinion. The Appellant’s paralegal did not tender the Appellant as an expert. The trial judge was permitted to require the Appellant to be so qualified prior to considering his evidence in this regard.
[6] Further, the Appellant unsuccessfully attempted to bring a second witness to trial to give expert testimony that the Respondent’s work was deficient. The Appellant had no expert report from this witness. The Appellant had no receipts, cheques or estimates describing the amount of money required to fix the allegedly deficient work. Simply put, the Appellant had no admissible evidence to support his set-off claim. The counterclaim was doomed to fail irrespective of the validity of any of the other arguments advanced on this appeal.
[7] Accordingly, the appeal is dismissed.
___________________________ VARPIO J.
Date of Release: September 30, 2016
CITATION: Auciello v. Sanchez, 2016 ONSC 6104
DIVISIONAL COURT FILE NO.: 414/15
DATE: 20160930
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
VITO AUCIELLO
Appellant (Plaintiff)
– and –
STIVEN HERNAN SANCHEZ, AKA, STEVEN SANCHEZ
Respondent (Defendant)
REASONS FOR JUDGMENT
VARPIO J.