CITATION: Cho v. Middleton, 2016 ONSC 7251

DIVISIONAL COURT FILE NO.: 189/16 DATE: 20161121

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

SANGHA CHO

Appellant

– and –

KEVIN MIDDLETON, ICC PROPERTY MANAGEMENT LTD. and BOARD OF DIRECTORS OF MTCC1099

Respondents

Phillip J.L. Trotter, for the Appellant

Baktash Waseil, for the Respondents

HEARD at Toronto: November 21, 2016

l.a. pattillo J. (Orally)

Overview

1Sangha Cho (the “Appellant”) appeals from the order of Deputy Judge Killian (the “Trial Judge”) dated March 21, 2016 dismissing the Appellant’s claim with costs.

2The Appellant’s claim was for $25,000 in damages arising from water damage that resulted from a leak or leaks in the units above the Appellant’s condominium. The claim as stated in the Small Claims Court Claim was to recover expenses of finding alternative accommodation while the remediation and restoration was completed.

3The Respondent ICC Property Management Ltd. (“ICC”) is the property management company retained by Metropolitan Toronto Condominium Corporation No. 1099 (“MTCC 1099”). The Respondent Kevin Middleton (“Middleton”) is an employee of ICC and the on-site property manager for MTCC 1099. Finally, the Respondent Directors of MTCC 1099 are responsible for its governance and activities.

Grounds of Appeal

4The Appellant raises two grounds of appeal:

1. Whether the Trial Judge erred in law by refusing to accept new evidence;

2. Whether the new evidence is sufficient to permit the appeal court to grant the Appellant’s claim without sending the matter back for a new trial.

5In addition, the Appellant has brought a motion to admit new evidence on the appeal. The new evidence is the evidence the Appellant submits the Trial Judge erred in not receiving.

Background

6The Appellant’s condominium suffered a water leak on December 27-28, 2014. MTCC 1099 immediately responded to the Appellant’s unit and commenced emergency drying services. The Appellant was advised by letter dated January 20, 2015 that arrangements were being made to carry out the necessary repairs to his unit. A dispute arose between the Appellant and MTCC 1099 concerning the repair and damages to his personal belongings. The Appellant moved out of the unit on May 12, 2015 to a house he owned in Kingston, Ont. On December 22, 2015, the Appellant advised the Respondents that they could not enter his unit unless he was present. He then changed the locks. MTCC 1099 eventually retained the services of a locksmith and on January 29, 2016, entered the unit in the absence of the Appellant’s permission and repaired it.

7MTCC 1099 retained a professional restoration company to carry out the repairs. The contractor testified that the repairs were done properly and completely. MTCC 1099 also retained an environmental testing laboratory to test for mould both before and after the repairs. The Respondents’ expert testified that based on tests they did, there were safe levels of mould in the unit and confirmed that the unit was habitable.

8The trial took place on February 17, 2016 and for a half day on March 21, 2016. On March 21, 2016, before the cross-examination of Middleton, the Respondents last witness, the Appellant stated that he proposed to ask him questions from an additional report. The report was entitled “Toxic Chemical Crisis In Addition to the Mould Spore Crisis” in the Appellant’s unit. There was a nine page abstract statement written by the Appellant (an engineer). In it, the Appellant set out a new breakdown of out-of-pocket expenses and took issue with the Respondents’ evidence and particularly the remediation which was carried out in the unit. He also provided a chronology. The document also contained an Assessment of Mould Test by Russell Loughrin from Just-4-You Home Inspection Inc. dated March 18, 2016 based on samples taken by EMSL Canada Inc. on February 24, 2016.

9Counsel for the Respondents indicated that he had just received a copy of the documents at the start of court that day and objected to their admission.

10The Trial Judge refused to allow the documents in on the basis that it was too late for the information. Although he said he didn’t intend to read the documents, he understood they contained an expert report that had been prepared since the last court date and were to rebut the Respondents’ evidence. He indicated that the information should have been available earlier and provided to the other side and it was unfair to bring it on the day of trial and expect the Respondents to respond, particularly given it contained an expert report. He noted that had the information been provided earlier, he would have let it in, notwithstanding the 30 day notice provision in the Rules. He told the Appellant that he could ask questions about anything in the documents but that he would not let the report in.

11The cross-examination did not last very long which then completed the evidence. Following a brief argument, the Trial Judge gave his judgment orally, dismissing the Appellant’s claim. In so doing, the Trial Judge made the following findings:

1. The Respondents were not responsible for the delay in the repairs to the Appellant’s unit. The fault, if any, was with the Appellant who refused to allow the Respondents in the unit to repair it.

2. There was mould in the unit.

3. Based on the evidence of the Respondents’ expert witness which he accepted, the unit was repaired and is not a risk to the Appellant. There was no evidence to the contrary.

4. The Respondents were justified in hiring a locksmith and entering the Appellant’s unit to do the repairs which they were obligated to do under the Condominium Act.

5. The Appellant’s claim for rental of another unit was disallowed because he didn’t rent another unit.

6. The Appellant’s claim for out-of-pockets (his monthly condominium fees) was disallowed because the delay was as a result of the Appellant and not the Respondents.

7. None of the parties sued are liable. The liability would be that of MTCC 1099 and it was not made a party although the Appellant was given an opportunity to amend his claim.

Motion to Admit New Evidence

12At the outset of the argument, I advised the Appellant that I did not consider the motion to admit new evidence to be appropriate. The evidence in issue was before the Trial Judge and he refused to admit it. The question in my view is whether the Trial Judge erred in not admitting the evidence produced by the Appellant on the morning of March 21, 2016 when the trial resumed. Accordingly, the motion to admit new evidence is dismissed.

Analysis

13Rule 18.02(1) of the Small Claim Court rules provides in part “A document or written statement or an audio or visual record that has been served, at least 30 days before trial, shall be received in evidence, unless the Trial Judge orders otherwise.”

14The Rule applies to expert reports.

15The Rule clearly gives the Trial Judge discretion. In order to reverse a discretionary decision, the court must have misdirected itself or come to a decision that was so clearly wrong that it amounts to an injustice or have given either no weight or insufficient weight to relevant considerations: Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 at para. 27.

16In my view, given the circumstances and the reasons of the Trial Judge, his decision to refuse to permit the Appellant to enter his documents was not so clearly wrong so as to amount to an injustice nor did the Trial Judge fail to consider and give sufficient weight to the relevant considerations.

17The Appellant had already closed his case. The documents he wished to produce for the truth of their contents were only served on the Respondents the morning of the resumption of the trial. While the Trial Judge said he didn’t intend to read them, he was aware of their contents and specifically that they contained expert reports about mould. The Trial Judge noted that the report could have and should have been prepared and served earlier and that if that had happened he would have permitted them to be admitted. In the circumstances, however, it would have been unfair to the Respondents to allow the documents in without the Respondents having had an opportunity to review and respond.

18The Appellant submits that the Trial Judge’s refusal was unfair to him given that the Respondents served their experts report on him on the morning of the first trial. The difference is, however, that the Respondents had their expert present and he gave testimony at the trial and the Appellant was able to cross-examine him.

19Under the Small Claims Court rules, parties are permitted to file expert reports if served 30 days in advance in lieu of calling the expert (R. 18.02(1)). Rule 18.02(4) provides that if a person served wishes to cross-examine the witness or author of the report they may serve that person with a subpoena. However, if a party wishes to call the expert as a witness, he or she can do so without serving a report. Either way, the party opposite has an opportunity to deal with the evidence.

20The Trial Judge was sensitive to the unfairness of allowing the evidence in without the Respondents having any chance to respond to it or cross-examine. Given the circumstances, I cannot find that the Trial Judge’s refusal to admit the evidence was clearly wrong or that he failed to give sufficient weight to the relevant circumstances.

21I note as well that at no point did the Appellant ask the Trial Judge for an adjournment so he could call his expert evidence in reply.

22In light of my conclusion that the Trial Judge did not err in refusing to admit the Appellant’s new evidence, I do not have to address the Appellant’s second ground of appeal.

23The Trial Judge’s findings which formed the basis of his dismissal of the Appellant’s claim were supported by the evidence before him. The Trial Judge made no palpable and overriding error in reaching his decision.

24In particular, the Trial Judge found that the proper defendant was MTCC 1099 and not the Respondents. The Appellant was given an opportunity by the Trial Judge to amend his claim and failed to do so. Before me, the Appellant does not dispute that finding by the Trial Judge. That finding alone is fatal in my view to the Appellant’s appeal.

Conclusion

25The appeal is dismissed.

COSTS

Costs

26I have endorsed the Motion Record as follows: “For oral reasons given in court today, the motion to admit fresh evidence is dismissed.”

27I have endorsed the Appeal Book & Compendium as follows: “For oral reasons given in court this day, the appeal is dismissed. Based on costs outlines/bills of cost submitted the partial indemnity rates for the Respondents is at $9,000 and the Appellant at $6,000. The issue on appeal was specific. The motion for new evidence did not raise the cost. Given the issue and the fact that this was an appeal from Small Claims Court, proportionality is an important consideration. I asses the Respondents’ costs of the appeal at $7,500 inclusive of disbursements and taxes.”

___________________________ L.A. PATTILLO J.