CITATION: Del Mastro v. R.M. Campbell Construction Ltd., 2017 ONSC 1768
COURT FILE NO.: DC-16-85-00
DATE: 20170317
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
DAVID DEL MASTRO
Appellant
- and -
R.M. CAMPBELL CONSTRUCTION LTD. and ROBERT MARTIN CAMPBELL and ROCAN CONSTRUCTION LTD. and JANINE CAMPBELL
Respondents
COUNSEL: K. Chakraborty, for the Appellant M. Wiffen, for the Respondents
HEARD: February 24, 2017, at Brampton
REASONS FOR JUDGMENT
[On appeal from a Decision of Deputy Judge Malicki of the Small Claims Court at Brampton delivered July 18, 2016]
ANDRÉ J.
[1] Mr. David Del Mastro appeals the July 2016 decision of Small Claims Court Deputy Judge Malicki that Mr. Del Mastro was liable to pay Mr. Robert Martin Campbell the sum of $25,000 for work done in the construction of a pool in Mr. Del Mastro’s backyard. Mr. Del Mastro submits that the Deputy Judge committed a reversible error when he found that a $50,000 payment made by Mr. Del Mastro to Mr. Campbell was payment for past construction projects, rather than a deposit for the construction of the pool. Mr. Campbell’s counsel maintains that the appeal is frivolous and has no merit.
BACKGROUND FACTS
[2] Mr. Campbell is a general contractor and is the principal of R.M. Campbell Construction Ltd.
[3] Mr. Del Mastro and Mr. Campbell have known each other for over two decades. Mr. Campbell has done a number of construction projects for Mr. Del Mastro within this period.
[4] In September 2010, Mr. Del Mastro hired Mr. Campbell to renovate his backyard and to build a pool within it. The parties did not sign a written contract for this project.
[5] Two days before Mr. Campbell started to excavate Mr. Del Mastro’s backyard, he received a cheque from Mr. Del Mastro in the amount of $50,000. Mr. Del Mastro later claimed that this cheque was a down payment on the pool project while Mr. Campbell claimed that it was for past projects he had done on Mr. Del Mastro’s behalf.
[6] Mr. Del Mastro prepared a “Purchase Order dated October 14, 2010 which listed the payments made by Mr. Del Mastro towards the construction of the pool. This order did not include the $50,000 cheque paid by Mr. Del Mastro to Mr. Campbell. However, it made reference to a cheque dated October 10, 2010, in the amount of $25,000, which was described as a “deposit”.
PRIOR COURT PROCEEDINGS
First Trial
[7] There were two trials in this matter.
[8] At the first trial in June 2014, Deputy Judge G. Barycky found in favour of Mr. Campbell after reviewing a number of accounts and invoices tendered by both parties.
[9] On appeal, Mr. Del Mastro, for the first time, raised the issue of the $50,000 payment which he claimed represented a down payment on the pool project. The appeals court judge held that since the Deputy Judge had not considered this payment in his deliberations, there should be a trial to determine whether the $50,000 should be applied to the pool project. A new trial was ordered.
Second Trial
[10] In the second trial, Mr. Campbell testified that the $50,000 was payment for past projects and had nothing to do with the pool project. (Transcript of the evidence, July 8, 2016, pages 47-48; 72-74.)
[11] Mr. Del Mastro did not appear at the trial. Rather, Ms. Tori-Lyn Manchulenko, a comptroller for his companies, testified on his behalf. She had no recollection why Mr. Del Mastro asked her to issue the cheque. She assumed that it was a deposit for the pool because the digging for the pool commenced two days later. (Transcript of the evidence, July 8, 2016, at page 27).
[12] Deputy Judge Malicki found that the $50,000 payment was for prior work done rather than for the pool project. He therefore awarded Mr. Campbell $25,000 for outstanding work on the pool.
APPELLANT’S POSITION
[13] Mr. Del Mastro’s counsel submits that the Deputy Judge committed a palpable and overriding error for the following reasons:
(1) He failed to consider an invoice from G. Cooper which showed that excavation for the pool project commenced four days after issuance of the cheque for $50,000;
(2) He failed to consider Mr. Campbell’s own testimony admitting that he had received a deposit from Mr. Del Mastro in past projects.
RESPONDENT’S POSITION
[14] Mr. Campbell’s counsel submits that it was open to the Deputy Judge to find that the $50,000 payment was not a deposit for the pool project and accordingly, committed no error.
ANALYSIS
[15] This appeal raises the following three issues, namely:
(1) What is the appellate standard of review of Deputy Judge Malicki’s decision?
(2) Did the Deputy Judge’s failure to consider the G. Cooper invoice in his decision constitute a palpable and overriding error?
(3) Did the Deputy Judge’s failure to consider previous deposits made by Mr. Del Mastro to Mr. Campbell for previous projects constitute palpable and overriding error?
Issue No. 1: Standard of Appellate Review
[16] The applicable standard of review of factual findings of a trial judge is one of strong appellate deference. Such factual findings are not to be reversed, absent palpable and overriding error. This standard applies to all factual findings whether based on credibility assessments, weight of competing evidence or drawing of inferences from primary facts: see Omcon Investments Ltd. v. 1100828 Ontario Ltd., 2012 ONCA 154, [2012] O.J. No. 1034 at para. 2; Housen v. Nikolaisen, 2002 SCC 33, [2002 2 S.C.R. 235.
Issue No. 2: Did the Deputy Judge’s failure to consider the G. Cooper invoice in his decision constitute a palpable and overriding error?
[17] The G. Cooper invoice relates to Mr. Del Mastro’s rental of equipment used by Mr. Campbell to excavate Mr. Del Mastro’s backyard for the building of the pool. It indicates that the excavation equipment was rented on September 14, 2010, some four days before the work commenced on the pool project.
[18] The Deputy Judge’s failure to consider this invoice does not constitute reversible error for the following reasons. First, the Deputy Judge was not obligated to detail his findings on each piece of evidence, so long as the findings linking the evidence to the verdict can be logically discerned: see R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 20. Second, the G. Cooper invoice is not particularly helpful in discerning whether the $50,000 cheque was a deposit on the pool project or payment for past work in light of other findings made by the Deputy Judge. Third, the Deputy Judge considered Ms. Manchulenko’s testimony that the $50,000 cheque was issued two days before digging on the pool started but did not consider this evidence as determinative of the issue relating to the purpose of the $50,000 cheque. Instead, the Deputy Judge accepted Mr. Campbell’s evidence that the cheque was not a down payment for the building of the pool. The G. Cooper invoice would not have affected this decision in any way shape or form, given that the Deputy Judge essentially found that the timing of the construction was not determinative of the issue.
[19] Finally, Mr. Campbell gave uncontradicted testimony that he told Mr. Del Mastro that if he caught up on his outstanding payments, Mr. Campbell would start working on the pool soon after. Therefore, there was clearly an evidentiary basis for the Deputy Judge’s factual finding that the $50,000 payment related to the outstanding payments for work done rather than for the construction of the pool.
[20] For the above reasons this ground of appeal must fail.
Issue No. 3: Did the Deputy Judge’s failure to consider previous deposits made by Mr. Del Mastro to Mr. Campbell for previous projects constitute palpable and overriding error?
[21] Mr. Del Mastro’s counsel submits that the Deputy Judge’s failure to consider Mr. Campbell’s own evidence regarding deposits he received from Mr. Del Mastro for a cabana project constitutes palpable and overriding error.
[22] In my view, this ground of appeal has no merit. It was open to the Deputy Judge to accept some, all or none of the evidence of any witness. The Deputy Judge accepted Mr. Campbell’s evidence that the $50,000 was payment for past work rather than a deposit for the pool project. It was open to him to do so. My function as an appellate court, as the Court of Appeal noted in Omcon Investments Ltd. v. 1100828 Ontario Ltd., at para. 2, “is not to retry a case or substitute its view of the evidence for those of the trial of fact”.
[23] For the above reasons, this ground of appeal must fail.
[24] Mr. Del Mastro’s appeal is dismissed.
COSTS
[25] Mr. Del Mastro seeks costs in the amount of $2,888.28 on a full indemnity basis and $1,444.14 on a partial indemnity basis.
[26] Mr. Campbell seeks costs of $2,926.18 on a full indemnity basis and $1,978.69 on a partial indemnity basis.
[27] In considering the quantum of costs which may be considered fair and reasonable in this appeal, I consider the following factors:
(1) Mr. Campbell prevailed in the appeal.
(2) The appeal had little or no merit.
(3) The issues in the appeal were not complex.
(4) There was no conduct which extended the litigation in this matter.
[28] In my view, a consideration of all of these factors justifies a conclusion that costs in the amount of $1,700 is fair and reasonable.
[29] Consequently, Mr. Del Mastro will pay costs in the amount of $1,700 inclusive, to Mr. Campbell within thirty (30) days of today’s date.
André J.
Released: March 17, 2017
CITATION: Del Mastro v. R.M. Campbell Construction Ltd., 2017 ONSC 1768
COURT FILE NO.: DC-16-85-00
DATE: 20170317
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
DAVID DEL MASTRO
Appellant
- and –
R.M. CAMPBELL CONSTRUCTION LTD. and ROBERT MARTIN CAMPBELL and ROCAN CONSTRUCTION LTD. and JANINE CAMPBELL
Respondents
REASONS FOR JUDGMENT
ANDRÉ J.
Released: March 17, 2017