Abu-Alsaud v. Youssef, 2016 ONSC 6992

CITATION: Abu-Alsaud v. Youssef, 2016 ONSC 6992

DIVISIONAL COURT FILE NO.: 41/15

DATE: 2016/11/17

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Jehad Abu-Alsaud, carrying on business as Super Magic Painting, Plaintiff/Respondent

AND:

Noha Youssef and Ehad Qalawi, Defendants/Appellants

BEFORE: Grace J.

COUNSEL: Jehad Abu-Alsaud, self-represented

Nohad Youssef and Ehad Qalawi, self-represented

HEARD: November 9, 2016

ENDORSEMENT

[1] A dispute over painting services was the subject of a July 23, 2015 Small Claims Court trial before Deputy Judge Brenda Yeates. Short oral reasons were delivered that day. Ms. Youssef and Mr. Qalawi were found to be jointly and severally liable to Mr. Abu-Alsaud. They were ordered to pay him the principal amount of $5,000 plus pre and post-judgment interest. Ms. Youssef and Mr. Qalawi appeal pursuant to s. 31(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[2] I start with the reasons given at the conclusion of trial. The deputy judge noted that the respondent claimed two amounts: $11,081 which was alleged to be the balance owing for the work that was performed at 3556 Settlement Trail, London, Ontario (the “property”) and $5,000 for damages relating to an alleged wrongful withholding of his tools.

[3] The trial judge summarized the conflicting evidence she heard. The respondent testified that he had completed approximately ninety per cent of the required work. Primer and paint had been applied. Some things were uncompleted because the respondent had stopped working due to non-payment. A carpenter, Mr. Kerreish, testified that he saw the respondent apply primer and then paint. Those steps were required in order for Mr. Kerreish to install trim.

[4] The appellants’ testimony was to the opposite effect. They maintained that the respondent did not get past the stage of applying primer. They said the quality of the work was substandard. According to the trial judge the appellants testified that it cost Ms. Youssef $4,000 plus the cost of paint to have another painter complete the work.

[5] In the end, the trial judge held the parties had entered into a contract for services although “[i]t does not even seem there was really a good solid meeting of the minds…regarding the price that was to be charged” beyond it being less than a quote provided by another painter.[^1] The trial judge found that the appellants had breached the contract. Services had been performed which had not been fully paid for. However, the amount claimed was excessive. The sum of $5,000 was determined to be payable after taking into account expenses the appellants had incurred “to rectify a situation they were not happy with”. The claim was dismissed insofar as it related to tools that had allegedly been wrongfully withheld.

[6] Before addressing the issues raised on appeal, I turn to matters that must be borne in mind on an appeal of this kind. My task is not to retry the case. Intervention is justified in limited circumstances.

[7] Horkins J. summarized the standard of review in Chowdhury v. Satveer et al., 2016 ONSC 4319 (Div. Ct.) at para. 11:

The standard of review is governed by Housen v. Nikolaisen, 2002 SCC 33…On questions of law, the standard is correctness. On questions of fact, the standard is palpable and overriding error. On questions of mixed fact and law, there is a spectrum. Where there is an inextricable legal principle, the standard of review is correctness. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.

[8] Two notices of appeal were filed by the appellants. They rely on the one dated August 18, 2015. Five grounds were raised. One of them cannot be considered. It related to a witness statement provided three months after the trial. A motion to admit fresh evidence on the appeal was not filed.

[9] I will deal with the other issues raised. The appellants submitted the trial judge misapplied or ignored legal principles relating to quantum meruit. There is no merit to that ground. The claim filed on the respondent’s behalf sought a remedy for breach of contract only. That was the basis on which liability was imposed and damages assessed. The respondent did not seek recovery on an alternative basis and the trial judge did not import one into her analysis.

[10] Two of the grounds can be combined into one. The appellants submit the imposition of liability in the face of evidence concerning poor workmanship constituted an error in law.

[11] Four witnesses testified at trial: the respondent, the appellants and Mr. Kerreish. The appellants did not order a transcript of the evidence they gave. Only the oral testimony of Mr. Abu-Alsaud and Mr. Kerreish was transcribed. I have reviewed the record of their evidence at trial. The respondent did not waver from his position that the bulk of the task had been completed and that his invoice did not include work which remained undone. More than once Mr. Kerreish told the court the respondent had applied primer and paint. He, too, was not swayed when cross-examined by each appellant.

[12] Fact findings made at trial are to be shown considerable deference: Maple Ridge Community Management Ltd. v. Peel Condominium Corporation No. 231, 2015 ONCA 520 at para. 39. The trial judge’s conclusion that the respondent performed more work than the appellants acknowledged is well supported by the record assembled for the appeal. A palpable and overriding error has not been identified.

[13] The trial judge’s brief analysis did not end there. As noted, she concluded the respondent had been underpaid although not to the extent he alleged. In reducing the respondent’s claim from $11,081 to $5,000, the trial judge took into account and gave effect to the appellants’ reported testimony concerning the work the second painter performed at the property and why.

[14] The reduction appears to represent the vast majority of the additional costs allegedly incurred following the cessation of work by the respondent. A December 12, 2013 letter from Crystal Clear Painting was filed as an exhibit at trial. It acknowledged receipt of $4,000 for painting, staining and other services it described. It said that $2,000 had been paid to an individual it named.[^2] Proof that Dulux Paints had charged Crystal Clear Painting $1,141.53 for paint on November 14, 2013 was also filed. It is clear the appellants received credit for most, if not all, of what they claimed.[^3]

[15] Based on the limited record, appellate interference is unwarranted. The appellants bear the onus of establishing the absence of an evidentiary basis for the conclusions the trial judge reached.[^4] They have failed to meet that burden.

[16] Ms. Youssef raised an additional ground. During the course of her reasons the trial judge said “the contract between the parties was breached by the” appellants. Ms. Youssef argued there was no foundation for a finding that she was a party to a contract with the respondent.

[17] At first sight, there is force to Ms. Youssef’s position. The invoice sent by the respondent named Mr. Qalawi alone. Mr. Qalawi’s cross-examination of the respondent yielded this exchange:

Q. Did you discuss your hiring terms with anybody else except me?

A. No.

[18] If that was all the record contained there would be no factual or legal basis for finding that Ms. Youssef was a party to, let alone breached, a contract. Caution must be exercised on this appeal because the evidentiary record is incomplete. As mentioned, beyond the trial judge’s short summary I do not know what Ms. Youssef said when giving evidence. It was not transcribed.

[19] Ms. Youssef denied being a party to any contract with the respondent in the defence she filed. However, Ms. Youssef said she would “be suing…for damages/delay costs/ruined materials in home” in the very next paragraph.

[20] She was not a bystander at trial. Ms. Youssef was an active participant. The cross-examinations she conducted may well have foretold the evidence she gave. When questioning the respondent she said “we had to hire another painter”. Later she asked whether the respondent was supervising his workers “when we did the deposit of $2,500”. She referred to the property as “our house” during the cross-examination of Mr. Kerreish. A copy of a charge/mortgage of land was entered as an exhibit. It showed that Ms. Youssef was, indeed, an owner of the property.

[21] The respondent explained why he had named Ms. Youssef as a party in cross-examination. He thought the respondents were spouses. Ms. Youssef was involved in the project.

[22] Those observations explain why the trial judge told Ms. Youssef “you are a part of this” when asked to clarify her reasons.

[23] An incomplete transcript does not allow me to reach the conclusion Ms. Youssef advocates. In fact, the trial judge’s determination is supported by the limited record filed on the appeal.

[24] While not raised by Ms. Youssef one other issue bears mention. She asked the trial judge to explain her inclusion in the judgment because the trial judge had initially given no explanation.

[25] In order to permit appellate review a trial judge’s reasons must set forth not only what was decided but why: D.M. Drugs (Harris Guardian Drugs) v. Barry Edward Bywater (Parkview Hotel), 2013 ONCA 356, at para. 35; F.H. v. MacDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at paras. 97-101.

[26] The Small Claims Court is a statutory court with a limited monetary jurisdiction. The process is designed to ensure a fair but expeditious and inexpensive result. That court’s mandate must be borne firmly in mind on appeal. As Hourigan J.A. wrote in Maple Ridge Community Management Ltd. v. Peel Condominium Corporation No. 231, 2015 ONCA 520 at para. 35:

Reasons from the Small Claims Court must be sufficiently clear to permit judicial review on appeal. They must explain to the litigants what has been decided and why…However, appellate consideration of Small Claims Court reasons must recognize the informal nature of that court, as well as the volume of cases it handles and its statutory mandate to deal with these cases efficiently. In short, in assessing the adequacy of the reasons, context matters... Just as oral reasons will not necessarily be as detailed as written reasons, reasons from the Small Claims Court will not always be as thorough as those in Superior Court decisions. Failing to take the Small Claims Court context into account only serves to restrict access to justice by unnecessarily imparting formality and delay into a legal process that is designed to be informal and efficient.[^5]

[27] If a deputy judge’s reasons are inadequate on their face, it is incumbent on this court to determine if the reasons meet the basic requirements when the record assembled at trial is considered in its entirety: Maple Ridge Community Management Ltd. v. Peel Condominium Corporation No. 231, supra at para. 30.

[28] Ms. Youssef initiated an exchange which resulted in her being told why liability was imposed. While thin, the reason given was sufficient. Put in context, the trial judge concluded that Ms. Youssef was a party to the contract because of the nature and level of her involvement with the respondent and the property. I am unable to say this finding is affected by a palpable and overriding error.

[29] Dissatisfaction with the state of the evidentiary record provided by the self-represented parties was expressed by the trial judge. She said there “was a lack of good evidence”. “Some of the evidence was difficult to follow and quite disjointed” she added later. Other pieces “did not help me much.”

[30] The portion of the transcript available for review supports those comments. Goods had been delivered. Services had been supplied. The trial judge had to determine whether any amount was left owing and if so, by whom based on the evidence presented. In my view, the trial judge performed a difficult task adequately in the circumstances she faced. The quality of the final product was affected by the ingredients at hand.

[31] The appeal is dismissed.

[32] The parties shall bear their own costs of the appeal. The respondent filed no materials. His submissions occupied very little time.

“Justice A. D. Grace”

Justice A. D. Grace

Date: November 17, 2016

[^1]: In the context of the sale of goods, a buyer is obligated to pay a reasonable price if not negotiated or established by a course of dealing: Sale of Goods Act, R.S.O. 1990, c. S.1, s. 9.

[^2]: I could not tell why payment was made in that fashion.

[^3]: As noted, the trial judge acknowledged the $4,000 paid to Crystal Clear Painting and an additional cost for paint.

[^4]: Hughes v. Waterloo Region District School Board, unreported endorsement released November 6, 2002, Ontario Court of Appeal docket C38193.

[^5]: See, too, Massoudinia v. Volfson, 2013 ONCA 29 at para. 9.