Rowe v. Aardvark Group Inc., 2016 ONSC 6686

COURT FILE NO.: 30/16

DATE: 20161027

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: ROGER ROWE, Plaintiff (Appellant)

AND:

AARDVARK GROUP INC., Defendant (Respondent)

BEFORE: MOLLOY J.

COUNSEL: Vusumzi M. N. Msi, for the Plaintiff (Appellant)

Howard L. Shankman, for the Respondent

HEARD: October 19, 2016 in Toronto

ENDORSEMENT

MOLLOY J.:

Introduction

[1] The plaintiff appeals from the decision of Deputy Judge P. Libman of the Toronto Small Claims Court dated December 15, 2015, dismissing the plaintiff’s action and awarding costs of $1200 to the defendant.

[2] The parties agree, as do I, that the standard of review is correctness for questions of law and palpable and overriding error for questions of fact or question of mixed fact and law.

[3] For the reasons that follow, I find no error of fact or law by the trial judge. The appeal is dismissed.

Background Facts

[4] Mr. Rowe hired Aardvark Group Inc. (“Aardvark”) to do major renovations on his home in 2002. The renovations included the installation of vinyl siding to the exterior of the home. All of the work was completed by October/November 2002.

[5] In 2012, Mr. Rowe experienced some flooding in his house, resulting in water damage to a number of rooms. He retained Mike Holmes Inspection to investigate the cause of the leakage and a report was prepared by Alrek Meirpoom. Mr. Meirpoom was called as an expert at trial.

Decision of the Trial Judge

[6] The trial judge referred to “the negligent installation of the siding” as being the “main issue” in the case. He noted that for the period between 2002 and 2012 there had been no problems of any kind with the siding. He found this particularly significant in light of the meteorological reports during that ten-year period, which showed several years where there had been much heavier rainfall than there had been in June 2012 when the first leaks occurred. He then referred to an incident in May 2012 when there had been water leakage into the house. On that occasion, Mr. Rowe called a roofing contractor. The contractor inspected the roof for the source of the leak and determined that it had been caused by a tennis ball that had become wedged in the downpipe, causing water to back up over the eavestroughs and seep into the interior. The trial judge also relied upon a report obtained by the insurance company on June 9, 2012, which noted that most of the joints in the siding had dirt or algae around them, indicating that water is washing out dirt from behind or that moisture is being trapped behind the siding. The report further stated that the leaking siding “could be as simple as caulking the window casings and checking the tops for openings.” He also took into account the evidence from the expert evidence called by the plaintiff.

[7] Taking all of these factors into account, the trial judge determined that the plaintiff had not discharged his onus of proof to prove negligence on a balance of probabilities.

[8] Having concluded that negligence had not been established, the trial judge did not find it necessary to deal with the limitations period and discoverability.

Analysis

[9] The trial judge referred to substantial portions of the relevant evidence. He clearly weighed that evidence and was concerned about what actually caused the leakage. Poor maintenance was a possible explanation. When poor maintenance and evidence that this might have caused the leakage were added to ten years of no problems with the siding, the trial judge concluded that he could not be satisfied on the balance of probabilities that negligence was proven.

[10] There were no errors of law in that analysis, nor were there any palpable or overriding errors of fact. There was other evidence that could have been cited, but the trial judge is not required to recount the totality of the evidence before him. Some of the evidence to which he did not refer would have reinforced the defence position that there was no problem with the installation of the siding.

[11] I see no basis to interfere with the trial judge’s findings on negligence.

The Claim in Contract

[12] Counsel for the plaintiff, Mr. Msi, argued that the trial judge committed legal error by focusing on whether the improper installation of the siding caused the leakage. The only claim for damages by the plaintiff was the cost of having new vinyl siding installed. Mr. Msi submitted that the plaintiff contracted for properly installed siding and was entitled to what he contracted for. The damages claimed merely put the plaintiff back to where he would have been if the contract had been properly performed in the first place with correctly installed siding. Cast in that light, Mr. Msi argues that the trial judge’s focus on the consequent damages was irrelevant, as it was not necessary to prove in contract that the leakage was caused by the improper installation of the siding.

[13] It is not necessary for me to deal with the merits of that argument. It is not an argument that was put to the trial judge and, therefore, not surprising that he made no reference to it.

[14] The plaintiff’s claim, which frames the issues at trial, is cast in negligence. Paragraph 1(a) claims damages for “the cost of repairing negligently installed aluminum siding.”[^1] There is a reference in paragraph 3 of the claim to the plaintiff having “contracted” with Aardvark in 2002 for the installation of siding, but there is no other reference to contract or breach of contract in the pleading. Rather, the pleading goes on to state that leakage occurred in 2012 and that this was caused by improper installation of the siding by Aardvark. In paragraph 9, the plaintiff alleges that he was required to remove the “negligently installed siding” to prevent further damage and to have new siding installed.

[15] Although counsel for the plaintiff asserts in his factum that “the issue before Justice Libman had always been a breach of contract” and repeated that argument in his submission before me, breach of contract was never pleaded. Counsel for the defendant was adamant that this argument was never made at trial, and Mr. Msi candidly admitted that he did not recall advancing the argument in this manner.

[16] The trial judge in this case did not err by failing to decide the case based on breach of contract. On the contrary, had he decided the case on that basis, he would have been committing reversible legal error because this was not an issue raised by the pleadings, nor even the arguments at trial. As the Ontario Court of Appeal held in Grass (Litigation Guardian of) v. Women's College Hospital:[^2]

I recognize that in complicated negligence actions, like this case, the parties' positions are often refined, clarified and sometimes augmented over time during the pre-trial discovery and production processes and at trial. Thus, the issues framed by the pleadings in such actions do not always reflect the developed positions of the parties or the precise issues as articulated and pursued at trial. Nevertheless, at the end of the day, the issues between the parties are defined by and confined to those pleaded. In this case, the respondents' pleading supports the conclusion that the parties did not join issue on the "risks management" theory of negligence and the Transfer Option relied upon by the trial judge. On the basis of the pleadings, it cannot be said that they were live issues in this action in any meaningful sense.

Conclusion and Order

[17] The appeal is dismissed.

[18] The successful party is entitled to its costs. Mr. Shankman, for the defendant, seeks costs of $8002.80, of which approximately $5100 is a counsel fee to the date of the appeal and $1750 is the estimated counsel fee for the appeal itself, the balance being disbursements and HST. In my view, the counsel fee claimed is somewhat high given the nature of the matter and the relative lack of complexity. In my view, a counsel fee of $6500 is reasonable. The plaintiff can hardly claim that this claim would not be within his reasonable expectation as Mr. Msi’s bill of costs claimed a total of $6000 for fees. Accordingly, costs are awarded to the defendant in the amount of $6500 (plus HST) for fees, and $251 in disbursements, as claimed, payable forthwith.

MOLLOY J.

Date: October 27, 2016

[^1]: It was clarified at trial and confirmed by the trial judge that the reference to aluminum siding was an error; both the siding installed in 2002 and the new siding installed in 2012 were vinyl.

[^2]: Grass (Litigation Guardian of) v. Women's College Hospital (2005), 2005 11387 (ON CA), 75 O.R. (3d) 85, [2005] O.J. No. 1403 (C.A.), leave to appeal to S.C.C. refused [2005] S.C.C.A. No. 310 at para. 53. See also: Labatt Brewing Company Limited v. NHL Enterprises Canada, L.P., 2011 ONCA 511 106 O.R. (3d) 677; Strong v. Kisbee (Estate Trustee) 2000 16831 (ON CA), 50 O.R. (3d) 70 (C.A.); Rodaro v. Royal Bank of Canada (2002), 2002 41834 (ON CA), 59 O.R. (3d) 74, [2002] O.J. No. 1365 (C.A.),