Wallis v. Gallant, 2017 ONSC 6259

CITATION: Wallis v Gallant, 2017 ONSC 6259

COURT FILE NO.: DC-13-16

DATE: 2017-10-19

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

Laurinda Wallis Plaintiff (Respondent)

– and –

Wayne John Gallant and Corinne Margot Gallant Defendants (Appellants)

Self-Represented

Self-Represented

HEARD: September 29, 2017

BEFORE: The Honourable MR. Justice James W. Sloan

REASONS FOR JUDGMENT

Jurisdiction and Standard of Review

[1] This is an appeal from the November 15, 2016, judgment of Deputy Judge Lannan with respect to the issue of damages.

[2] Both parties at this stage are self-represented.

[3] An appeal lies to the Divisional Court from a final order of the Small Claims Court. Such appeal is to be heard by a single judge: ss. 31 and 21(2)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[4] Section 2 of the Small Claims Court Jurisdiction and Appeal Limit, O. Reg. 626/00, provides that the Divisional Court has jurisdiction to hear appeals from final orders of the Small Claims Court in excess of $2,500. As the judgment awarded damages in the amount of $10,400, the appeal is properly brought before this Court.

[5] The standard of review in an appeal of an order of a Judge is set out in 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. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.

[6] The concept of palpable and overriding errors was discussed by the Ontario Court of Appeal in Waxman v. Waxman (2004), 2004 39040 (ON CA), 186 O.A.C. 201, at paras. 296-297:

The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result. A “palpable” error is one that is obvious, plain to see or clear: Housen at 246. Examples of “palpable” factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.

An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” error does not automatically mean that the error is also “overriding”. The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: Schwartz v. Canada, 1996 217 (SCC), [1996] 1 S.C.R. 254 at 281.

[7] This case had previously been tried by Deputy Judge Lannan, and was sent back to him by this Court, for him to assess damages, which he did on November 15, 2016.

[8] This case arises out of a clause in an agreement of purchase and sale dated in March 2012. The clause reads:

The Seller agrees, at the Seller’s Sole Expense to complete the following work before the completion date of this transaction.

On the west side of the property nearest the garage, Seller to have a reconnection of downspouts, removal of concrete slabs, and regrading to allow water to drain away from the house and down a properly sloped swale on the property line according to the municipal guidelines.

The Seller further agrees to have all worked in a professional workmanship manner and to allow the buyer to inspect the work upon completion.

[9] The trial judge found, that the plaintiff noticed flooding in the basement on June 1, 2012, adjacent to the area of the house where the repairs were to have been carried out, and that the defendants were liable for the damages as set out in his judgment of February 25, 2015.

[10] The September 27, 2016 trial proceeded only on the issue of damages.

[11] The appeal today therefore proceeds only with respect to the issue of damages.

[12] At the commencement of the appeal, I suggested to the parties that this court would likely have one of three options, (1) to uphold the judgment, (2) to change the quantum of damages or (3) to return the matter to the Small Claims Court either to Deputy Judge Lannan or a different Deputy Judge for a reassessment of damages.

[13] The appeal proceeded essentially on three separate issues of damages referred to in paragraph 30 of the judgment.

The T. R. West Invoices

The Appellants’ Position

[14] To assist in the appeal hearing, all items in the invoices were numbered vertically.

[15] With respect to invoice 2524, which is an invoice to remove an existing window well and window and seal the area with concrete, they state that items 1 and 2 were simply not necessary, because at paragraph 24 of the judgment, the Deputy Judge stated; “I do not believe the work on the deck, the basement, or concreting the window was necessary to fulfil the Agreement of Purchase and Sale”.

[16] They essentially have the same submission for items 3 and 4, which dealt with backfilling and compacting of the area after the window was removed and cemented in.

[17] Invoice 2524 appears to be work done, at least in part pursuant to the November 4, 2014, Boomer Creek quote, but if it is, that fact is not clear in the judgment.

[18] With respect to both invoices, no one from TR West testified.

[19] With respect to invoice 2525 both parties agreed that the tree removal is not something that the appellants should be responsible for.

[20] With respect to items 1 and 2, the appellants point to paragraph 16 of the judgment which states that the path was removed and regraded to an acceptable degree.

[21] With respect to items 4 and 5, they refer to paragraph 24 of the judgment where it seems to indicate that work on the deck was not necessary.

[22] With respect to items 6 & 8, they refer to paragraph 25 of the judgment which states that the Deputy Judge did not believe the driveway needed to be repaired “to the extent” suggested by the respondent. The judgment does not indicate to what extent the driveway did need to be repaired.

[23] With respect to item 9, the judgment does not seem to refer to the pressure-treated lumber, however the appellants led the court through some testimony of one of respondent’s witnesses who is not an expert, that a retaining wall may not have been necessary.

The Respondent’s Position

[24] With respect to invoice 2524, she submits that if paragraph 16 of the judgment deals with the window well, it is incorrect because water was entering the house. She therefore submits that items 1 and 2 were absolutely necessary.

[25] If items 1 and 2 were absolutely necessary, which she submits they were, then it follows that items 3 and 4 regarding backfill, compacting and regrading were also necessary.

[26] With respect to invoice 2525, they submit;

a) number 1 was necessary to deal with water seeping into the house;

b) number 2 which is filter cloth, was necessary so that dirt would not flow into and clog the aggregate;

c) number 3 was necessary, to repair the conduit to carry the water away from the house;

d) numbers 4 and 5 were necessary because the appellants had previously piled topsoil under the deck and it had to be removed;

e) numbers 6 and 8 were necessary, because the asphalt came to the edge of the property and it had to be cut to allow for a pipe to be buried; and

f) number 9 was necessary, because there was no swale to take the water away from the home and a short wall was more economical than trying to fashion a swale.

Boomer Creek Quotes

The Appellants’ Position

[27] To assist with the appeal hearing all of the bullet points in the November 4, 2014, quote were numbered vertically 1 through 9. Both parties agree that bullets 8 and 9 would likely not have been taken into account by the Deputy Judge.

[28] With respect to bullets 1 and 7, the appellants state, that the Deputy Judge could not have awarded any damages pursuant to this invoice based on paragraphs 16, 19, 20 and 21 of his judgment, which states, “that the expectation of the parties was that the concrete pathways would be removed and “regrading to allow water to drain away from the house…””. He then goes on to state, that the path was removed and regraded to an acceptable degree.

[29] With respect to bullets 4 and 5, they also argue that the Deputy Judge could not have awarded any damages, since he stated at paragraph 24, that he did not believe concreting the window was necessary to fulfil the agreement of purchase and sale.

[30] With respect to bullets 2, 3 and 6, they state that this would waterproof the entire west side of the foundation which was not called for in the agreement of purchase and sale, and there was no evidence provided that the foundation was leaking and there was no expert evidence that any foundation or drainage work was necessary.

The Respondent’s Position

[31] The respondent submit that she had to seal the window to prevent further water from entering the house and causing further damage.

[32] She argues that bullets 4 and 5 were necessary to restore the window to its former position/condition. She points to paragraph 8 of the judgment which states that on June 1, 2012, she found flooding in the basement area she thought had been repaired, and paragraph 22 which states the plaintiff (respondent) had the side window closed off by concrete because of water leaking in to the home at that location.

[33] In fact they argue, that all bullets 1 through 7, were necessary procedures to restore the window, which had to be completely filled in to prevent further water damage, because of the appellants’ poor/negligent attempt to fix the water problem.

[34] Although objected to by the appellants, she stated that “blueskin” membrane is what is now used on foundations, rather than tar and it was necessary after the window was recut.

J. Selkirk’s Bill

Appellants’ Position

[35] J. Selkirk is the husband of the respondent. He rendered two invoices, one for $3,250 to install a retaining wall to create a swale and one for $1,050 to gut the room under the garage and remove wet insulation, etc.

[36] The appellants submit there was no evidence given at the trial, that a retaining wall was necessary, and the Judge at paragraph 23 of his judgment stated that the room under the garage was unfinished and there was little if any damage.

Respondent’s Position

[37] The respondent submits that the whole issue revolves around water entering the basement of their home, that a swale was absolutely necessary and the short retaining wall was the cheapest way to keep excess water flowing away from the home.

Findings

[38] This case has unfortunately had a torturous journey through the court system.

[39] Judgments are to be written, so parties to an action can appreciate that their evidence was heard and that their submissions were taken into account. This is especially important for the losing party, however in this case since the damage award was less than the respondent wanted, both parties may feel to some extent that they lost, at least part of the case.

[40] While both parties would like the matter to be over and while the court urged them at a break to see if they could come to a resolution, no resolution was reached and I find myself unable to resolve the matter on a final basis.

[41] While I am sure there was a lot of work sorting through the evidence of this acrimonious situation between the parties, the reasons for judgment leave me in a quandary as to how the trial judge arrived at his decision.

[42] Although the Deputy Judge in paragraph 13 states that the amendment to the agreement of purchase and sale is clear on its face, he does not state in his findings what should have been done, notwithstanding the obvious differences of opinion of the respective parties.

[43] He did not state with any clarity in his judgment, what he found the appellants undertook to do and were therefore obligated to do.

[44] He did not state with any clarity in his judgment what “construction steps/repairs” the appellants should have undertaken to comply with their contractual obligation, or alternatively what “construction steps/repairs” the respondent was entitled to undertake in accordance with the contract.

[45] The judgment refers to damages for work either done or quoted on by TR West, Boomer Creek and J. Selkirk.

[46] It does not comment on other damages claimed by the respondent which are set forth at Tab 4 of the exhibit book (Exhibit 7 in the trial). In that document damages were claimed for seven other entities which are not referred to in the judgment.

[47] The total damages claimed by the respondent total $39,468.88 which of course is above the Small Claims Court limit.

[48] There is nothing in the judgment to state why these other damages were not allowed.

[49] If the respondent wished to appeal the quantum of the damages, she would have been in a difficult position, since many of her claims for damage were not addressed in the judgment.

The Three Invoices/Quotes Addressed by the Trial Judge

[50] The two invoices of TR West can be broken down into 13 line items. Unfortunately this was not done by the Deputy Judge. The two invoices add up to $4,616.05, however the Deputy Judge allowed $3,200 without saying how he arrived at that figure. He also made no mention of whether or not a particular line item is appropriate and if so why it is appropriate, and if not appropriate, why it is not appropriate.

[51] The same observation is made with respect to his treatment of the Boomer Creek quote. This quote can be broken down into nine line items. The total quote adds up to $11,550 however the Deputy Judge has only allowed $6,000 without saying how he arrived at this figure. As with the TR West invoices he makes no mention of whether or not a particular line item is appropriate or not appropriate and the reason for same.

[52] He deals with the J. Selkirk invoices which total $4,300 in the same manner. He has only allowed $1,200 without explaining how he arrived at that amount.

[53] Under the circumstances as I have found them, I set aside the judgment of Deputy Judge Lannan dated November 15, 2016, and order a new trial on the issue of damages before a different Deputy Judge.

[54] Although both parties seek costs, based on the facts as I have found them, neither party was successful on this appeal.

[55] I therefore decline to order costs.

“J.W. Sloan”

James W. Sloan, J.

Released: October 19, 2017

CITATION: Wallis v Gallant, 2017 ONSC 6259

COURT FILE NO.: DC-13-16

DATE: 2017-10-19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Laurinda Wallis Plaintiff (Respondent)

– and –

Wayne John Gallant and Corinne Margot Gallant Defendants (Appellants)

REASONS FOR JUDGMENT

J.W. Sloan, J.

Released: October 19, 2017