Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
BETWEEN:
SHANE DANIEL PRETTO Respondent (Appellant by Cross-Appeal)
– and –
MANDY RAE ALMGREN and JODY RAYMOND BELLEMARE Appellants (Respondents by Cross-Appeal)
Natalie J. Gerry, for the Respondent
Nicole Rea, for the Appellants
HEARD: at Thunder Bay by videoconference, September 25, 2020.
REASONS FOR JUDGMENT
Mr. Justice W. D. Newton
Overview
1The Appellants appeal from a judgment of Deputy Judge R.A. Young of the Small Claims Court in which the Respondent was awarded $10,501.25 for damages and $4,403.53 for costs. The damages arose from a claim for a negligent misrepresentation which was made by the Appellants in the sale of their rural residential property to the Respondent in the summer of 2018. The Appellants had warranted and represented that the septic system had been and would be in good working order on the date of closing. Shortly after taking possession, however, the Respondent began experiencing issues with the system, eventually culminating in the need for a replacement, and prompting the legal action in the court below.
2At the trial, the Deputy Judge ultimately accepted the evidence of an expert witness in septic systems, Mr. Allan Vibert, to find in favour of the Respondent. Mr. Vibert had dug up and inspected the system approximately four months after the Respondent had taken possession of the property. During this inspection, Mr. Vibert found various signs in the surrounding soils which indicated to him that the septic system had been failing for at least two years prior to his inspection. Based on the materials and dated methods used in its construction, he also opined that this particular septic system had likely been constructed in the 1960s or 1970s.
3The Appellants now submit the trial judge erred in admitting and relying upon the expert evidence of Mr. Vibert, the trial judge improperly applied the law of negligent misrepresentation, and the trial judge improperly weighed the evidence when he found that a negligent misrepresentation had been made for which the Appellants would be liable. The Respondents, by way of Cross-Appeal, submit the trial judge erred in fixing a discount for the Respondent’s betterment at 50% of the damages originally claimed. For the reasons that follow, I would not interfere with the judgment of the court below and dismiss both appeals.
Analysis
4Both parties agree that the appropriate standard of review is the one articulated by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. Namely, questions of fact and questions of mixed fact and law where there is no readily extricable legal issue will be reviewed on a standard of palpable and overriding error, while questions of pure law will be subject to a standard of correctness. The Court in Housen, at para. 36, instructed in particular that, “where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error”.
5In my view, the trial judge made no error in admitting and relying on Mr. Vibert’s opinion evidence with respect to the failure of the septic system. The expert’s report, while short, was sufficient to put the Appellants on notice as to the nature and extent of the expert’s evidence, as well as the observations upon which the expert based his conclusions. In any event, strict adherence to the rules regarding the form and content of an expert’s report is not required in the Small Claims Court: see Richard v. 2464597 Ontario Inc., 2019 ONSC 2104 (Div. Ct.), at para. 50. Furthermore, it is clear from s. 27 of the Courts of Justice Act, R.S.O. 1990, c. C.43, that the Small Claims Court has considerable discretion to admit and act upon any oral or documentary evidence, whether or not it is sworn, affirmed, or admissible in any other court. As the evidence on the record before me is sufficient to support the trial judge’s findings, I see no reason to interfere with trial judge’s discretion to weigh the evidence as he did.
6Similarly, I am not persuaded that the trial judge committed a palpable and overriding error in fixing a discount for betterment at 50%. There was evidence before the trial judge which allowed him to assess any betterment the Respondent received. The Respondent expected to receive a septic system of indeterminate age and condition when he purchased the home. He is now in possession of a new and modernized septic system which was a considerable improvement, both in form and function, over what he expected to receive. The trial judge correctly distinguished Fors v Overacker & Mallon, 2014 ONSC 3084, from the facts of the case before him. I am therefore not persuaded that the trial judge committed any overriding error in this regard.
Costs
7Given that the Appellants were unsuccessful in the main appeal, there is no reason to disturb the original order for costs. With respect to the costs of this appeal, the parties were unable to agree on a particular figure. The Appellants submitted that $6,000 in costs would be reasonable if they were successful on appeal. The Respondent has asked for a little over $14,000. While both parties have clearly invested time in the preparation of their materials, regard must be had to the fact that this is ultimately an appeal from an award of $10,501.25 in the Small Claims Court. Costs are therefore awarded in favour of the Respondent in the amount of $5,000.00, inclusive of HST and disbursements.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: November 13, 2020
CITATION: Pretto v. Almgren, 2020 ONSC 6966
COURT FILE NO.: DC-19-006-00/DC-19-006-C1
DATE: 2020-11-13
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
B E T W E E N:
SHANE DANIEL PRETTO
Respondent (Appellant by Cross-Appeal)
– and –
MANDY RAE ALMGREN and JODY RAYMOND BELLEMARE
Appellants (Respondents by Cross-Appeal)
REASONS FOR JUDGMENT
Newton J.
Released: November 13, 2020