CITATION: Blunt v. Woody’s Trailer World Ltd., 2018 ONSC 7250
DIVISIONAL COURT FILE NO.: DC-18-0009
DATE: 2018-12-04
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
DONNA BLUNT AND NORMAN BLUNT
V. Popescu, for the Plaintiffs (Appellants)
Plaintiffs (Appellants)
- and -
WOODY’S TRAILER WORLD LTD.
R. Bodnar, for the Defendant (Respondent)
Defendant (Respondent)
HEARD: December 3, 2018 at Thunder Bay, Ontario
Madam Justice J.A. Thorburn
Reasons For Judgment
NATURE OF PROCEEDING:
[1] The Appellants appeal the Order of Deputy Judge Young (the “Deputy Judge”) delivered orally on April 19, 2018, following a Small Claims Court trial held on April 18, 2018. The Deputy Judge dismissed the Appellants’ action for breach of contract and negligence against the Respondent.
[2] The Appellants claim the Deputy Judge:
a) Misapprehended the evidence and improperly limited the scope of the contract;
b) Failed to apply the provisions in the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A (the “CPA”) and/or the Sale of Goods Act, R.S.O. 1990, c. S.1 (the “SGA”);
c) Failed to recognize that the Respondent breached its duty of care to the Appellants; and/or
d) Failed to recognize a fundamental breach of the written repair contract.
BACKGROUND:
[3] The Appellants own a motorhome. In June 2016, the Appellants observed water leaking into the motorhome and in July 2016, brought the motorhome to the Respondent for inspection and a quotation to fix the leak.
[4] The Deputy Judge accepted that the Appellants had brought the motorhome in because there were leaks in the roof and that, “what motivated bringing the RV in was the fact that there was leakage”.
[5] The Respondent provided a quotation on July 7, 2016, for repair work to be done in the amount of $7,054.93. Among other things, the quotation provided for removal and installation of a rubber roof, a rubber membrane, and laying down 10 pieces of 4’ x 8’ plywood. On July 12, 2016, the Appellants agreed that the Respondent would also install a new skylight.
[6] The invoice given to the Appellants, states that 38 hours were spent to do:
“… labour/removal of all roof vents, vent/fan lids, A/C unit, skylite, TV antenna, satellite dish flat mouldings, rubber membrane, rotten plywood. Replaced rotten plywood with new, layered down glue and rubber membrane, installed new flat mouldings, re installed all roof vents, rvent/fan lids, A/C/ unit, new skylite, TV antenna, satellite dish re sealed around everything on roof with Dicor…cleanup of wet plywood, as well as drying out unit underneath wet plywood.” [Emphasis added]
[7] Only four half size sheets of plywood were used covering one fifth of the roof. The Respondent claims it did so because the Appellants agreed.
[8] The Respondent completed the work on August 24, 2016, and sent the Appellants an invoice. The Appellants paid the invoice in full.
[9] Shortly thereafter, the Appellants took issue with some of the repairs. The Respondent agreed to clean up messy caulking and replace certain damaged parts. The Respondent also offered a one year warranty with respect to roof leakage to commence on September 14, 2016.
[10] On September 13, 2016, the Appellants sent a demand letter through their lawyer requesting that the Respondent remedy a number of deficiencies caused by what the letter describes as the Respondent’s “unworkmanlike repairs.”
[11] In the letter, the Appellants’ legal counsel advised that,
“They chose your business due to your reputation. Accordingly, they expected the work to be completed in a workmanlike and satisfactory manner. The work…has fallen well short of that standard.
If these deficiencies are not rectified by Woody’s at no additional cost, my clients will seek the services of another dealer to complete the repair work”.
[12] The Respondent claims the repairs to the roof were properly completed and refused to do any further work on the vehicle.
[13] The Appellants then retained Al’s RV Service & Repairs (“Al’s”) to work on the motorhome, replace the roof, repair the leaks, and replace and extend the rubber membrane on top and at the top side. It was discovered that the leak emanated from the antenna. The owner of Al’s testified as follows:
Q: Is it possible to determine where the water is leaking in by just looking at the motorhome without taking the plywood off or dismantling?
A: About 99% of the time no. You have to take things off and then try and find the water track unless you can see physical damage where there is a hole.”
[14] The Appellants note that the owner of the Respondent testified that,
“I know from my past experience sometimes on front caps and that where they have clearance lights and things like that, water can get in through. Or if there’s antennas or anything like that. Usually, it’s the clearance lights or anything that’s on the caps….I did not investigate any of those items …We were not asked to.”
[15] Contrary to this assertion, it is clear from the quotation rendered by the Respondent that the Respondent did do work around the antenna.
[16] The owner of Al’s redid work on the roof. He was the only witness to see the roof before the second repairs were done by Al’s. He noted that after the Respondent’s repairs were done and while still under warranty, he noticed the following defects and took photos of them that were marked as exhibits at trial. He listed those deficiencies as follows:
a. There was bubbling indicating that the rubber was not pulled tight at the corner and some of the side sealant at the mouldings contained gaps which could cause leaks if the water pools down the edges (p. 57);
b. There were open gaps next to the moulding (p. 58);
c. The glue would initially stick if there was mould or decay or wet wood underneath the plywood itself underneath the rubber membrane but would not stay remain stuck (p. 58);
d. Water damage or deterioration was apparent when the rubber roof was lifted on some of the other sheets (p. 60);
e. There were areas of rot around some of the other vents and skylight area (p. 60);
f. At various spots, the insulation was damp (p. 61); and
g. At the front, there were signs of leakage including water getting in under the rubber and deteriorating, getting past the moulding and the sealant and getting into the plywood and starting to deteriorate the plywood (p. 62).
[17] The Appellants issued their claim for breach of contract and negligence against the Respondent on November 15, 2017.
THE RESPONDENT’S POSITION:
[18] The Respondent admits that “finding and repairing any or all leaks” was “a motivation for having the roof repaired.” (Respondent’s Factum at para. 12).
[19] The Respondent submits however, that the Appeal should be dismissed because:
a. The contract with the Appellant was to “replace the roof of the Appellants’ motor home to its factory condition” not anything else. The Respondent provided a one year warranty guaranteeing that the work performed on the roof would be watertight and leak free;
b. After paying the Respondent’s invoice, leaks persisted but the leaks did not stem from the roof but rather from the antenna at the side of the motor home;
c. The Appellants’ agreement with a second garage was for a more costly repair which cost $11,678.95. This included replacing all 10 pieces of plywood and extending the rubber membrane past the side (which is different from the factory build.) While this fixed the leak, this was not what was offered or agreed to by the Appellants;
d. Lastly, while the Respondent offered a one year warranty on the work it performed on the roof, and would have honoured that agreement, the Appellants chose to have the work done by a third party. The Respondent claims that to the extent any further repairs were done to the roof, it was prevented by the Appellants from honouring the warranty. (The Respondent conceded in oral submissions that they in fact refused to do any further work as requested by the Appellants’ counsel.)
THE DEPUTY JUDGE’S REASONS
[20] The Deputy Judge accepted that, “what motivated bringing the RV in was the fact that there was leakage”.
[21] In his reasons, the Deputy Judge held that the quotation and the invoice pertained to the repair of the roof membrane and he must “consider any collateral information” to the written contract in order to determine whether the Appellants had made out their claims for breach of contract and negligence. He held that, “It appeared that there was an addition to that contract [quotation] from discussions from the 12th July 2016”.
[22] He held that, “there was no guarantee as part of the contract that all leaks would be found. The only guarantee would pertain to areas where there was work done.”
[23] The Deputy Judge determined that the terms of the contract only covered leaks coming from the roof. Because he held the leak came from an antenna, there was no breach of contract.
[24] The Deputy Judge found that any guarantee only pertained to areas where the Respondent had actually performed repair work. He concluded that the Respondent had performed the work in a sufficiently workmanlike manner.
[25] The Deputy Judge dismissed the Appellants’ claims for negligence and breach of contract.
COURT’S JURISDICTION:
[26] The Divisional Court has jurisdiction to hear the appeal of a Small Claims Court final decision provided the amount at issue is more than $2,500.00 excluding costs, by virtue of section 31 of the Courts of Justice Act, R.S.O. 1990, c. C.43. (Action Auto Leasing & Gallery Inc. v. Robillard, 2011 ONSC 3264 (Div. Ct.)).
STANDARD OF REVIEW:
[27] On a pure question of law, the standard of review is correctness. An appellate court is free to replace the opinion of the trial judge with its own: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8.
[28] Legal errors made in the course of contractual interpretation include “the application of an incorrect principle, the failure to consider a required element of a legal test, or the failure to consider a relevant factor”: Creston Moly Corp v. Sattva Capital Corporation, 2014 SCC 53 (SCC) at para. 53. Findings of fact by contrast, are not to be reversed unless the trial judge made a “palpable and overriding error”: Stein v. The Ship “Kathy K”, 1975 146 (SCC), [1976] 2 S.C.R. 802; Housen, at para.10.
[29] Contractual interpretation however is considered to be a question of mixed fact and law to be reviewed on a standard of palpable and overriding error: Sattva at para. 50 and Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Corp., 2016 SCC 37, [2016] 2 S.C.R. 23 at para. 21 and Sattva Capital Corp. v. Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633 at para. 50.
[30] A palpable and overriding error is one that is clearly wrong, unreasonable or unsupported by the evidence. (Irvine (Litigation guardian of) v. Seipt, 2017 ONSC 2551 (Ont. Div. Ct.), at para. 11.)
ANALYSIS AND CONCLUSION:
[31] The trial judge accepted that, “the parties came into this, and what motivated bringing the RV in, was the fact that there was leakage.”
[32] The Respondent garage was in the business of repairing motor home leaks and agreed to fix the leaks. The Respondent prepared a quotation to replace and repair the rubber roof of the Motorhome and what was underneath it.
[33] The Respondent claims the work was restricted to fixing leaks on the roof and making the roof factory new. (This is disputed by the Appellants.)
[34] It is agreed that the Appellants paid the full invoice but complained about the work. Their legal counsel gave the Respondent an opportunity to fix the problems with the roof work pursuant to the warranty.
[35] The Respondent conceded in oral submissions that they did not perform any of the repairs referred to in the September 14, 2016 letter such that the Appellants went to a third party to fix the leaks.
[36] The second garage charged $11,678.95 for the work done, which was more extreme as the roof membrane extended over the sides of the roof.
[37] The third party who worked to repair the damage in the fall of 2016 provided uncontroverted evidence and brought photographs. He testified that there were many signs of ongoing leaks into the roof, under the roof, in the insulation, under all 10 plywood panels, as well as deteriorating sealant and insulation damage all of which are inconsistent with fixing the roof such that there were no leaks into or emanating from the roof.
[38] There is no dispute that:
a. The Appellants relied on the Respondent’s expertise to identify and fix the leaks in the roof;
b. The contract provided that the Respondent was to repair leaks on and under the roof;
c. After the Respondent completed its work on the roof, there was ongoing water damage from water getting into the roof such that the roof and material under it had to be replaced; and
d. The Respondent was not prepared to do any more work on the vehicle and the Appellants therefore had no choice but to take the repairs to a third party.
[39] It was therefore a palpable and overriding error on the part of the Deputy Judge to hold that the Respondent was not liable for breach of contract to return the money the Appellants paid the Respondent.
[40] Moreover, the Appellants’ decision to engage a third party to fix the leaks was not a failure to mitigate their damages as the Respondent indicated it would do no more work on the Appellants’ vehicle.
[41] Even if the Deputy Judge accepted that the leak did not emanate from the roof, there is no dispute that water leaked into and under the roof after the Respondent’s work was completed.
[42] For these reasons the Appeal is granted and the Respondent is ordered to pay the Appellants $7,054.93 plus prejudgment interest and fees in the amount of $2,200.00 plus disbursements and HST.
The Hon. Madam Justice J.A. Thorburn
CITATION: Blunt v. Woody’s Trailer World Ltd., 2018 ONSC 7250
DIVISIONAL COURT FILE NO.: DC-18-0009
DATE: 2018-12-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DONNA BLUNT AND NORMAN BLUNT
Plaintiffs (Appellants)
- and -
WOODY’S TRAILER WORLD LTD.
Defendant (Respondent)
REASONS FOR JUDGMENT
Thorburn J.
Released: December 4, 2018
/sab