Earle v. Toro Roofing Inc., 2024 ONSC 6114

CITATION: Earle v. Toro Roofing Inc., 2024 ONSC 6114

DIVISIONAL COURT FILE NO.: 150/24

DATE: 20241115

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

Paulette Earle

Appellant

– and –

Toro Roofing Inc. and Jason Galloro

Respondents

Self-Represented Appellant

P. Bernard, for the Respondents

HEARD at Toronto: October 21, 2024

O’Brien J.

reasons for decision

Overview

1This appeal concerns a dispute arising out of a contract between Paulette Earle and Toro Roofing to replace the roof and part of the eavestrough on Ms. Earle’s house. Ms. Earle states that Jason Galloro, the owner of Toro, misled her and that the work was not satisfactory. She posted negative reviews about Toro online. She brought a claim against Toro and Mr. Galloro seeking damages in Small Claims Court. Toro cross-claimed for defamation because of Ms. Earle’s critical reviews.

2The Small Claims Court deputy judge, Deputy Judge Anschell, was not satisfied Ms. Earle had shown Toro’s roof installation constituted a breach of contract or negligence. The deputy judge considered the evidence of experts for both parties and stated she was unable to conclude the two alleged leaks in the roof and eavestrough were the result of Toro’s shingle installation. She also dismissed the claim against Mr. Galloro because he was not a party to the agreement. With respect to the defendants’ claim, the deputy judge found the negative reviews posted online were defamatory. Ms. Earle had not demonstrated any of the defences to defamation applied. Because Toro did not show any evidence of loss of business caused by the defamation, she awarded nominal damages of $500.

3Ms. Earle alleges the Deputy Judge made numerous errors. Her factum significantly exceeded the length permitted by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. This allowed her to raise more issues than was reasonable for an appeal of this kind. I understand her primary submissions to be that she was denied procedural fairness and that the deputy judge exhibited a reasonable apprehension of bias. She also made the following submissions:

1. The deputy judge erred in failing to analyze whether it was an appropriate case to award damages against Mr. Galloro individually.

2. The deputy judge erred by failing to apply the Building Code, O. Reg. 332/12 and the Consumer Protection Act, 2002, S.O. 2002 c. 30, Sched. A.

3. The deputy judge erred in interpreting and applying the contract between the parties.

4. The deputy judge erred by failing to acknowledge a breach of warranty constituted a breach of contract.

5. The deputy judge erred in failing to make credibility findings against the respondents’ expert.

6. The deputy judge failed to apply the legal test for defences to libel.

4Prior to attending her hearing in this court, Ms. Earle requested real-time closed captioning. This was provided to her during the hearing.

5For the following reasons, the appeal is dismissed.

Was Ms. Earle denied procedural fairness?

6Ms. Earle submits she was denied procedural fairness on many grounds. These include: (1) that she was not given the opportunity to re-examine herself after she was cross-examined by the respondents; (2) that she should have been accommodated with an in-person trial with real-time captioning to assist with her hearing disability; and (3) that the deputy judge did not clearly explain that she was required to enter documents she wanted to rely on as exhibits.

7I conclude the trial was not procedurally unfair. There is no dispute that Ms. Earle did not re-examine herself, but determinations of procedural fairness are context specific. The confusion about her re-examination arose after a decision was made to change the order of witnesses. The third day of trial, May 3, 2023, was supposed to start with the cross-examination of Ms. Earle. Because she was recovering from a cold and was having difficulty speaking, the deputy judge accepted a suggestion from counsel for the respondents that the parties proceed with the examination of his expert, who was supposed to proceed later in the day. After it became clear Ms. Earle was able to speak to cross-examine the expert, the trial proceeded to her cross-examination that afternoon. At the end of the day, counsel for the respondents advised that he wished to review two more documents with Ms. Earle on cross-examination when the trial resumed.

8The next trial date was over three months later. Counsel for the respondents had in the meantime decided not to ask any further questions on cross-examination and had his own witness ready to testify. The deputy judge did not specifically recall that there was no formal conclusion to Ms. Earle’s cross-examination and neither party raised it. Ms. Earle did not ask to re-examine herself at that time.

9Ms. Earle did attempt to raise the issue with the deputy judge after the evidence of all the witnesses was completed and the deputy judge was asking the parties about the time needed for closing submissions. Ms. Earle was having difficulty expressing clearly what she was requesting, and it appears the deputy judge did not understand. Ms. Earle asked for the opportunity for “rebuttal.” The deputy judge understood it as a request to lead rebuttal evidence, which she denied.

10I appreciate that Ms. Earle ultimately did not have the opportunity to re-examine herself. This was not a breach of procedural fairness in all the circumstances. The trial was scheduled for one day but took four days. Ms. Earle’s evidence took 2.5 of those days. She had ample opportunity to present her case. She did not raise any complaint about an inability to lead important evidence in closing submissions. Re-examination is a narrow opportunity to respond to new issues raised in cross-examination that could not have been anticipated. Ms. Earle has not described any re-examination evidence she wanted to introduce that would have been admissible and important. This ground of appeal is dismissed.

11Ms. Earle also submits the trial was unfair in that she was not provided with an in-person trial with real-time captioning. This was not a breach of procedural fairness nor a failure of the duty to accommodate Ms. Earle’s disability. The first day of the trial was conducted in-person, without any real-time captioning. Ms. Earle did not raise any complaint then. When the parties returned for the second day of trial, she requested real-time captioning. The deputy judge advised the technology was not available in the courthouse that day and ordered the next trial day to proceed by Zoom so real time captioning could be provided. There is no transcript from that discussion but nothing in the deputy judge’s endorsement suggests the move to Zoom was against the plaintiff’s wishes. When the next day of trial was started on Zoom, Ms. Earle was provided with closed captioning. She did not raise any complaint or concern with the process, nor has she pointed this court to any situations where she had difficulty understanding during the trial. A conversion to Zoom with closed captioning was a reasonable accommodation in the circumstances.

12I also reject Ms. Earle’s submission that the deputy judge breached procedural fairness by not clearly explaining she was required to enter any documents she wanted to rely on into evidence as an exhibit. In my view, the deputy judge did explain this. In response to a question from Ms. Earle, the deputy judge stated that Ms. Earle should not read any documents into the record because the deputy judge could read them on her own. But she also advised Ms. Earle she should refer to the document and explain why she had included it. Ms. Earle appeared to understand this explanation because she said she would “go through what [she had] in the binder.” The deputy judge then gave Ms. Earle a break to organize her remaining testimony. The deputy judge explained that Ms. Earle would be required to point to documents she relied on and there was no breach of procedural fairness.

Did the proceedings give rise to a reasonable apprehension of bias?

13One of Ms. Earle’s overriding submissions during the hearing in this court was that the deputy judge demonstrated a reasonable apprehension of bias. She argued the deputy judge made various findings against her and applied an unfair burden of proof because she was biased. Ms. Earle further submits that because she is a person of colour, the deputy judge deliberately inserted roadblocks into her case and intentionally failed to apply the law in a fair manner.

14There is no foundation for these allegations in the record. Judges are presumed to be impartial. The presumption is not easily displaced. The test for a reasonable apprehension of bias is objective and requires cogent evidence that a reasonable person apprised of all the relevant circumstances would conclude the judge failed to decide the issues impartially: Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 257, at para. 22. The test is not informed by whether a litigant subjectively feels aggrieved. The nature of litigation is that one side often is unhappy with the result and disagrees with the judge’s conclusions. Although Ms. Earle has pointed to many parts of her decision where the deputy judge made findings against her, this does not demonstrate bias.

15There is no basis for the specific allegation that the deputy judge applied the wrong standard of proof. The deputy judge expressly stated at para. 104 of her decision that she was reaching her conclusion on a balance of probabilities.

16There is also no foundation for Ms. Earle’s very serious allegations that the deputy judge discriminated against her on the basis of race. Ms. Earle points to a passage in the transcript where the respondents’ expert inappropriately called Ms. Earle’s questions on cross-examination “stupid.” The deputy judge reacted swiftly and forcefully to the expert’s lack of respect. She immediately intervened, advising the witness that his comments would not be tolerated, that he was not to insult Ms. Earle, and that he was required to answer her questions. She asked the witness to apologize to Ms. Earle and adjourned the hearing for a few minutes to allow the respondents’ counsel to speak to the witness about his behaviour. This was an entirely appropriate response to the expert’s improper behaviour and does not demonstrate racism on the part of the deputy judge. Ms. Earle has not pointed to any other basis that could support her position that race was a factor in the deputy judge’s conduct or findings.

17Finally, Ms. Earle’s allegation that the deputy judge should not have presided over the defamation claim because she herself had received negative reviews online has no merit. This allegation was not raised before the deputy judge. There is no evidence that the deputy judge was aware of any such reviews, nor is there evidence of the reviews themselves. In any event, the existence of a negative review would not be a basis for an objective observer to conclude the deputy judge had a reasonable apprehension of bias.

Did the deputy judge err in failing to analyze whether Mr. Galloro should be held personally liable for fraudulent misrepresentation?

18Ms. Earle asserts the Deputy Judge erred by failing to analyze whether Mr. Galloro could be held personally liable. She relies on WS Leasing Ltd. v. Platinum Equipment Ltd., 2012 BCSC 558, 3 B.L.R. (5th) 156, where the court found two officers and directors committed the tort of deceit by making fraudulent misrepresentations.

19In her closing submissions to the deputy judge, Ms. Earle made passing reference to her allegation that Mr. Galloro misrepresented his credentials. But she then argued she relied on the terms of the contract. She did not argue that she relied on the misrepresentation, nor did she state what the precise misrepresentation was or how it was fraudulent.

20The court is entitled to rely on the submissions as framed by the parties. A party cannot assume the court will undertake a full analysis of concepts that were mentioned in passing but not explained.

21Although the deputy judge’s reasons on this and some of the other issues raised by Ms. Earle were brief, this was appropriate not only because of the limited emphasis placed on the issue by Ms. Earle, but also given the Small Claims Court context. Section 25 of the Courts of Justice Act, R.S.O. 1990, c. C.43 specifically authorizes the Small Claims Court to determine the issues before it in a summary way. In Maple Ridge Community Management Ltd. v. Peel Condominium Corporation No. 231, 2015 ONCA 520, 389 D.L.R. (4th) 711 at para. 35, the Court of Appeal cautioned against assessing the adequacy of reasons without taking the Small Claims Court context into account, stating that “[A]ppellate consideration of Small Claims Court reasons must recognize the informal nature of that court, as well as the volume of cases it handles and its statutory mandate to deal with these cases efficiently.”

22Given Ms. Earle’s evidence that she relied on the terms of the contact, and considering Mr. Galloro was not a party to the contract, the trial judge did not err in briefly dismissing the claim against Mr. Galloro.

Did the deputy judge err by failing to apply the Building Code or the Consumer Protection Act, 2002?

Ms. Earle submits the deputy judge erred by failing to apply the Building Code, which specifies rules for how roofs should be constructed. She also submits the deputy judge erred by failing to apply s. 14 of the Consumer Protection Act 2002, c. 30, Sched. A, which makes it an unfair practice to make a false, misleading or deceptive representation.

Ms. Earle did not plead the Consumer Protection Act, 2002, nor raise it in her submissions before the deputy judge. The deputy judge therefore was not required to consider it.

23While Ms. Earle’s claim contained one sentence about the Building Code, the expert reports did not address compliance with the Building Code. The experts only mentioned the Building Code in passing in their testimony and neither expert opined that Ms. Earle’s roof was not in compliance with it. In these circumstances, the deputy judge was not required to address this claim.

Did the deputy judge err in interpreting and applying the contract between the parties?

24Ms. Earle asserts that the deputy judge erred in interpreting and applying the contract between the parties. She argues for example that, contrary to the contract, evidence of old shingles was left on the roof, metal flashing had not been replaced, and debris was left behind. She submits that, even if there was no leak in the roof, the deputy judge failed to address these issues.

25The crux of Ms. Earle’s closing submissions was that after the respondents’ inadequate work, the roof or eavestrough leaked on two occasions. The respondents refused to repair the roof contrary to the warranty in the contract. Ms. Earle did not separately emphasize the submissions she now makes nor quantify the damages she would claim if there was no leak but other instances of inadequate work. The deputy judge is not required to identify every possible alternative argument Ms. Earle might wish to make. She did make the clear finding that the respondents’ performance of the agreement was not negligent nor in breach of the contract. In the circumstances, there was no error in the deputy judge not expressly addressing the more detailed claims Ms. Earle now raises.

26With respect to Ms. Earle’s additional arguments about the quality of work on the roof, she had not established the deputy judge committed any palpable and overriding errors.

Did the deputy judge err by failing to acknowledge a breach of warranty constituted breach of contract?

27Ms. Earle submits that the Deputy Judge erred by failing to acknowledge that a breach of warranty constituted a breach of contract. She submits the deputy judge misapprehended the evidence and should have found that the respondents were responsible for the leaks.

28The deputy judge was not persuaded on a balance of probabilities that the leaks were the result of Toro’s shingle installation. She noted that Ms. Earle’s expert made positive comments about shingles being laid in “straight clean lines,” stating that this was the work of “an experienced shingle.” The respondents’ expert stated there was a part of the roof where “someone else put shingles on the roof after Toro and in doing so the integrity of the roofing job ha[d] been compromised.” The respondents’ expert specifically stated that “the warranty in the area would not be valid.” On the evidence, it was open to the deputy judge to reach the conclusion she did. There was no palpable and overriding error.

29It followed from the finding that Toro was not responsible for the leaks that there was no breach of warranty. This ground of appeal is dismissed.

Did the deputy judge err in failing to make credibility findings against the respondents’ expert?

30Ms. Earle submits that the deputy judge should have made an adverse credibility finding against the respondents’ expert. She notes for example that the expert was not sure whether he had gone on the roof himself and taken pictures. She also points to the disparaging comments he made about her.

31I disagree that the deputy judge was required to directly address the expert’s credibility. It is clear she accepted his evidence and found him to be credible. The expert explained in his cross-examination that he was an inspector, not a roofer. He had brought a roofer with him to assist with the inspection. He could not recall whether he himself or the roofer had been on the roof and taken the pictures. It was open to the deputy judge to find the expert credible in the context of this evidence.

32With respect to the expert’s comment about the questions being “stupid,” the deputy judge specifically warned him that disparaging comments could impact his credibility. It is therefore evident she turned her mind to the issue. Overall, the deputy judge was not required to make an adverse credibility finding and was entitled to find the expert credible on the record before her.

Did the deputy judge fail to apply the defences to libel?

33Ms. Earle submits that the deputy judge erred in finding Ms. Earle liable for libel.

34I disagree. The deputy judge found Ms. Earle liable because her online reviews criticized Toro’s work and personally attacked Mr. Galloro. She stated Ms. Earle’s comments would lower their reputations. She also expressly rejected the defence of justification, stating that, given her findings that Toro’s work did not cause the leaks, she was satisfied that the reviews contained untrue information about the quality of Toro’s work.

35The deputy judge also stated that Ms. Earle had not demonstrated any other defences to defamation applied. This conclusion was available to her. She was not required to provide more detailed reasons given that Ms. Earle did not expressly rely on any other defence to defamation in her submissions to the deputy judge. To the extent Ms. Earle now raises new defences, such as that notice was not given under the Libel and Slander Act, R.S.O. 1990, c. L.12, assessing this defence would require findings and analysis at first instance by the deputy judge. It cannot be raised for the first time on appeal.

36Finally, the deputy judge was not required to expressly rule on Ms. Earle’s defamation claim against the respondents. Ms. Earle’s opening statement was very brief and did not mention defamation. Although Ms. Earle claimed in her closing submissions that Mr. Galloro posted defamatory comments about her by accusing her of blackmail, these submissions were made in the context of defending the claim for defamation against her. Ms. Earle did not explain how she had made out a claim for defamation or identify what damages she was claiming for defamation. This again was a situation in which the claim was not clearly framed to the deputy judge. There was no error in the deputy judge not ruling on it.

Disposition

37The appeal is dismissed. Ms. Earle shall pay costs of $5,000, all inclusive, to the respondents.

___________________________ O’Brien J.

Released: November 15, 2024

CITATION: Earle v. Toro Roofing Inc., 2024 ONSC 6114

DIVISIONAL COURT FILE NO.: 150/24