Guineau et al v. Hickman, 2026 ONSC 4008

CITATION: Guineau et al v. Hickman, 2026 ONSC 4008

COURT FILE NO.: DC-25-3047

DATE: 2026/07/09

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

ROSALAND GUINEAU and THOMAS GUINEAU

Appellants

– and –

SUSAN HICKMAN

Respondent

Sandra White, for the Appellants

Aoife Quinn and Mahgol Taghivand, for the Respondent

HEARD: June 24, 2026

REASONS FOR DECISION

JENSEN J.

1This appeal arises from a Small Claims Court judgment awarding the respondent $10,000 following the termination of a ghostwriting contract. The appellants submit that the Deputy Judge erred in contractual interpretation, failed to consider crucial evidence, and misapplied the doctrines of quantum meruit and unjust enrichment, among other grounds.

2At first glance, this appeal concerns a commercial dispute arising from a ghostwriting contract. However, as the record makes clear, the subject matter of the contract involved highly personal and sensitive aspects of the appellant Ms. Guineau’s life, and the breakdown of the relationship between the parties has resulted in significant distress. Nothing in these reasons is intended to minimize the emotional dimension of the dispute.

3For the reasons that follow, I would dismiss the appeal. Properly characterized, the appellants’ submissions amount to a disagreement with the Deputy Judge’s factual findings and assessment of the evidence. They do not disclose an error of law or a palpable and overriding error.

Standard of Review

4The governing framework is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, where the Supreme Court confirmed that findings of fact and inferences of fact may only be disturbed upon a showing of palpable and overriding error: at para. 36. This principle has been consistently applied in appellate jurisprudence: see e.g., Hill v. Forbes, 2007 ONCA 443, 225 O.A.C. 74, at para. 4.

5In Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 50-53, the Supreme Court clarified that contractual interpretation is generally a question of mixed fact and law, attracting the same deferential standard.

6The appellants seek to characterize several issues as errors of law, including the alleged failure to consider evidence. However, as the Supreme Court has repeatedly cautioned, appellate courts must guard against recasting disagreements over factual findings or the weight of evidence as questions of law: Sattva, at para. 54. Unless an extricable legal error is established, deference is required.

Contractual Interpretation

7The appellants argue that the Deputy Judge failed to give proper effect to the contractual requirement of “delivery” of the first draft, and that payment was therefore not owing.

8The reasons do not bear this out. The Deputy Judge expressly considered the relevant provisions. At paragraph 48, he noted that payment of $10,000 was tied to delivery of the first draft. At paragraph 49, however, he turned to the termination clause, which provided that upon termination the respondent would be entitled to retain payments received and to obtain “pro rata payment” for work completed but not delivered, subject to providing evidence of that work.

9The Deputy Judge’s analysis reflects a proper application of the interpretive approach mandated in Sattva. The contract was read as a whole, with attention to the interaction between the milestone payment provisions and the termination clause. The appellants’ submission isolates “delivery” as determinative, but the contract explicitly contemplates compensation in circumstances where work has been completed but not delivered. That provision could not be ignored.

10Further, as the Deputy Judge recognized, the contract did not provide a workable mechanism for calculating the value of work completed upon termination. At paragraph 52, he concluded that even giving the contract its ordinary meaning, it did not “assist in valuing the work completed.” This reflects a factual and contextual interpretation of the agreement, not a legal error.

11The appellants’ attempt to impose a requirement that the work be “satisfactory” before payment becomes due is also unsupported. The contract does not include such language. Courts are not at liberty to rewrite agreements to incorporate unexpressed standards of performance. The Deputy Judge did not err in declining to impose such a condition.

12In substance, the appellants’ argument concerns how the Deputy Judge assessed the evidence relating to completion and delivery. That is a matter of fact or mixed fact and law and attracts deference. This, in turn, informs the appellants’ related submission that the Deputy Judge erred by failing to consider the manuscript itself.

Alleged Failure to Consider Crucial Evidence

13The appellants’ central submission is that the Deputy Judge erred in failing to consider the manuscript itself.

14As the Supreme Court explained in Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, an error of law may arise where a decision-maker fails to consider evidence that must, as a matter of law, be taken into account: at para. 39. Similarly, a finding on a material issue made in the absence of any evidentiary foundation may disclose an error of law. By contrast, challenges to the sufficiency or weight of the evidence do not raise questions of law: see also R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 25 and 29.

15The present case does not fall within those limited categories. The Deputy Judge did not ignore the absence of the manuscript; he considered its absence and moved forward. He acknowledged it expressly and addressed its significance within the broader evidentiary context. The issue, therefore, is not whether the manuscript existed, but whether the evidentiary record was sufficient to permit findings in its absence.

16At paragraphs 44 and 45, the Deputy Judge relied on extensive documentary evidence showing that work had been performed over a prolonged period and that the appellants had received multiple submissions. The appellants’ own chart confirmed that seven deliveries were made following the last payment. He also relied on the respondent’s viva voce evidence, which he found to be clear and credible.

17At paragraph 46, the Deputy Judge directly addressed and rejected the appellants’ position that the manuscript could not have been completed, accepting the respondent’s explanation that any missing information could be incorporated during editing. He ultimately found, at paragraph 55, that the first draft had been completed.

18Those findings were supported by evidence. The manuscript itself would have been direct evidence, but it was not the only evidence capable of supporting a finding of completion. The appellants’ argument is, in essence, that the Deputy Judge should not have accepted the respondent’s evidence without reviewing the manuscript. That submission challenges the sufficiency of the evidence and the weight assigned to it. It does not establish an error of law.

19This is not a case in which the Deputy Judge overlooked or failed to advert to potentially determinative evidence. Rather, he recognized the absence of the manuscript and concluded that the existing evidentiary record was sufficient to resolve the issues before him.

20The Deputy Judge also addressed the manuscript in the context of mitigation, concluding that its production would not have assisted either party in demonstrating compliance with the contract. That conclusion reflects a considered assessment of its probative value, not a failure to consider it.

Unjust Enrichment

21Although the parties framed aspects of their submissions in terms of unjust enrichment, the Deputy Judge’s analysis is more directly grounded in quantum meruit principles.

22I find that the Deputy Judge’s treatment of unjust enrichment reflects established principles. In Peel (Regional Municipality) v. Canada, 1992 CanLII 21 (SCC), [1992] 3 S.C.R. 762, the Supreme Court recognized that enrichment may take the form of the saving of an expense: at pp. 794-800. That principle was reaffirmed in Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629, where the Court identified the three elements of unjust enrichment: enrichment, corresponding deprivation, and absence of juristic reason: at para. 30 The Deputy Judge’s finding that the appellants were enriched by avoiding payment for work performed falls squarely within this framework.

Quantum Meruit

23The appellants argue that the Deputy Judge failed to properly apply the doctrine of quantum meruit.

24The reasons demonstrate otherwise. At paragraph 54, the Deputy Judge identified the essential components of the analysis. He found that the respondent performed work with the expectation of compensation, that the appellants expected to pay for that work, and that a benefit was conferred.

25These findings correspond to the established requirements for recovery on a quantum meruit basis, namely that the services were performed at the defendant’s request or acquiescence, were not intended to be gratuitous, and that payment would be reasonably expected.

26At paragraph 55, the Deputy Judge made the critical finding that the first draft had been completed and that some additional work had been performed. While the evidence did not support the full amount claimed for later stages, he concluded that the amount not awarded “fairly counterbalance[d]” any deficiencies.

27This approach is consistent with 936464 Ontario Ltd. v. Mungo Bear Ltd., 2003 CanLII 72356 (ON SCDC), 74 O.R. (3d) 45 (Div. Ct.), where the Divisional Court held that in Small Claims Court, judges are entitled to grant quantum meruit relief based on the evidentiary record, even if the doctrine is not formally pleaded, and that rigid adherence to doctrinal formality is inappropriate: at pp. 46 and 56-57.

28The appellants’ challenge again focuses on the absence of the manuscript and the alleged inability to conduct a proper valuation. That submission engages the weight and sufficiency of the evidence, not the legal correctness of the analysis. The Deputy Judge’s valuation reflects a factual determination within the scope of his discretion.

Mitigation

29The appellants submit that the respondent failed to mitigate her loss by refusing to provide the manuscript in the manner requested and by delaying in offering to produce it. They argue that, had the respondent acted reasonably, any damages would have been reduced or eliminated.

30I do not accept that submission.

31The governing principles of mitigation are well established. As the Supreme Court of Canada confirmed in Janiak v. Ippolito, 1985 CanLII 62 (SCC), [1985] 1 S.C.R. 146, at pp. 163-5, the reasonableness of a plaintiff’s conduct in attempting to reduce their loss is a question of fact for the trial judge. The assessment requires a contextual evaluation of the available options, the risks associated with those options, and the consequences of pursuing or refusing them.

32The duty to mitigate does not impose a standard of perfection. Rather, it requires only that a plaintiff take reasonable steps to limit their loss. As Ontario appellate authority has repeatedly stated, damages are reduced only to the extent that loss could have been avoided through reasonable efforts; the plaintiff is not required to take extraordinary or impractical steps: Saramia Crescent General Partner Inc. v. Delco Wire and Cable Limited, 2018 ONCA 519, at para. 80.

33Further, the burden of establishing a failure to mitigate rests on the defendant. As the Supreme Court held in Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51, [2012] 2 S.C.R. 675, at para. 24, the defendant must prove both that the plaintiff failed to take reasonable steps and that mitigation was possible. This principle has been consistently applied in Ontario jurisprudence.

34In this case, the Deputy Judge addressed the mitigation argument directly and rejected it. At paragraph 53, he concluded that he was “not convinced” that the respondent’s conduct in relation to the production of the manuscript caused or contributed to her loss. He found that significant evidence of work performed was already available to the appellants and that none of that evidence persuaded them that payment was owing.

35That conclusion reflects a factual determination squarely within the Deputy Judge’s purview. He considered the competing positions of the parties regarding how the manuscript could be viewed and determined that the dispute over the manner of production did not bear on the ultimate issue of entitlement. In doing so, he implicitly rejected the appellants’ position that earlier or different production would have altered their refusal to pay.

36The appellants’ argument on appeal is, in substance, that the Deputy Judge should have found the respondent’s conduct unreasonable and should have concluded that mitigation would have reduced the loss. That submission invites this court to substitute its own assessment of the evidence for that of the trial judge.

37In addition, the appellants’ reliance on the respondent’s delay and the conditions imposed for viewing the manuscript must be assessed in context. The record demonstrates that there were efforts to provide access to the work product, albeit on terms that were disputed. The Deputy Judge considered these circumstances and concluded that neither party’s position materially advanced the question of compliance with the contract. That finding is entitled to deference.

38Finally, the appellants’ argument that the respondent’s proposed method of production failed to accommodate Ms. Guineau’s disability was not advanced at trial. The Deputy Judge cannot be faulted for failing to consider an argument that was not before him. In any event, the duty to mitigate remains an objective inquiry focused on reasonableness in the circumstances, and the Deputy Judge’s conclusion that the respondent’s conduct did not contribute to her loss falls well within that framework. Even if considered as part of the factual context, nothing in the record compels the conclusion that the respondent’s conduct fell outside the range of reasonable responses available to her.

39In the result, the appellants have not demonstrated any error in the Deputy Judge’s mitigation analysis. The finding that the respondent acted reasonably, and that her conduct did not cause or contribute to her loss, was open to him on the evidentiary record and attracts appellate deference.

Procedural Fairness

40The appellants submit that they were denied procedural fairness because the Deputy Judge relied on the doctrine of quantum meruit, which was not expressly pleaded, and because they were not given an opportunity to address that legal framework.

41I do not accept that submission.

42The duty of procedural fairness is grounded in the principle that a party affected by a decision must have a meaningful opportunity to present their case and respond to the case against them. As the Supreme Court explained in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, the content of that duty is flexible and context-specific, but its core purpose is to ensure “an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker”: Baker, at para. 22.

43It is equally well established that procedural fairness does not require a decision-maker to provide advance notice of the precise legal characterization that will ultimately be applied to the facts, provided the parties have had a fair opportunity to present the factual foundation relevant to that determination.

44This principle has particular force in the context of Small Claims Court proceedings. In Mungo Bear, the Divisional Court emphasized that a liberal and flexible approach must be taken to pleadings in that forum, where litigants are often self-represented. The court held that a trial judge may grant relief based on a legal doctrine not expressly pleaded where the facts necessary to support that doctrine are before the court, subject only to considerations of fairness and the absence of prejudice.

45The court in Mungo Bear went further, observing that it is not the role of the Small Claims Court to be constrained by technical pleading requirements where doing so would impede the proper adjudication of claims. Rather, where the evidence establishes facts giving rise to a recognized cause of action, the court is entitled—indeed required—to grant the appropriate remedy, provided the opposing party is not taken by surprise or deprived of the opportunity to respond: at pp. 56-57.

46Those principles apply directly here. The central question at trial was whether the respondent had performed work for which she had not been compensated and, if so, what amount was owing. The evidentiary record bearing on that issue—including the nature and extent of the work performed, the parties’ communications, and the circumstances of termination—was fully explored at trial. The appellants had a complete opportunity to challenge that evidence and to advance their position on entitlement and valuation.

47The Deputy Judge’s reliance on quantum meruit did not introduce a new factual issue or shift the case onto a fundamentally different footing. Rather, it represented a legal characterization of the same factual matrix that had been the subject of the trial. As the Divisional Court recognized in Mungo Bear, the evidentiary record relevant to a contractual claim for payment for services will ordinarily be the same as that relevant to a restitutionary claim for the value of those services.

48There is also no indication of prejudice. The appellants do not identify any evidence they would have called, or any different line of argument they would have pursued, had the doctrine of quantum meruit been expressly identified in advance. Their submission is, in essence, that they would have placed greater emphasis on the alleged deficiencies in the work. However, that issue was already squarely before the court and was addressed in the evidence and submissions.

49Finally, it bears repeating that the duty of procedural fairness is context-dependent. In a relatively informal forum such as the Small Claims Court, where efficiency and accessibility are central objectives, the procedural requirements are correspondingly less exacting than in more formal adjudicative settings. The process must be fair, but it need not be procedurally elaborate.

50In all of the circumstances, I am satisfied that the appellants were afforded a full and fair opportunity to present their case. The Deputy Judge’s reliance on quantum meruit did not give rise to procedural unfairness.

Contra Proferentem

51The doctrine of contra proferentem applies only where a contractual provision is ambiguous and competing reasonable interpretations exist: Jakab v. Clean Harbors Canada, Inc., 2023 ONCA 377, at paras. 12 and 20.

52The Deputy Judge did not identify such ambiguity. Instead, he found that the contract did not provide a mechanism for determining compensation upon termination. In the absence of competing interpretations, there was no role for the doctrine to play.

Conclusion

53The Deputy Judge carefully considered the evidence, interpreted the contract as a whole, and applied the relevant legal principles. The appellants’ arguments do not disclose an error of law or a palpable and overriding error. They amount to a request that this court revisit findings that were plainly open on the record.

54The appeal is dismissed.

Costs

55Ms. Hickman was successful on the appeal and is therefore presumptively entitled to her costs. Ms. Hickman’s counsel has uploaded a Costs Outline to Case Center. I would encourage the parties to come to an agreement with respect to costs, failing which they may make an appointment with trial coordination to appear before me for half an hour to argue the issue.

Jensen J.