Court of Appeal for Ontario

Date: 2003-12-22

Docket: C38458

Re: ROBERT McGUFFIN (Plaintiff (Respondent)) – and – TERRY HOWALD POOLS INC. (Defendant (Appellant))

Before: McMURTRY C.J.O., ROSENBERG and GILLESE JJ.A.

Counsel: Gary Petker, for the appellant Teresa Cheung, for the respondent

Heard: December 18, 2003

On appeal from the judgment of Justice Ronald Sills of the Superior Court of Justice dated May 29, 2002.

Endorsement

[1] In our view, the trial judge erred in holding that the measure of damages was the cost of replacement of the entire structure including a new pool and not, as he put it, a “sort of ‘patch-up’ job”. The trial judge made that finding in the face of other evidence, which he accepted, that although it was necessary to replace the retaining walls, it was only necessary to repair the pool and perform remedial work on the concrete decking.

[2] The plaintiff was entitled to be put in as good a position as he would have been in if there had been proper performance. This would not require replacement of, for example, the entire pool, especially in light of the trial judge’s finding that the existing pool remained structurally sound and functional. As was said in Ruxley Electronics and Construction Ltd. v. Forsyth, [1995] 3 All E.R. 268 (H.L.) at para. 19, if the plaintiff were to receive the cost of building a new pool and decking “he would have recovered not compensation for loss but a very substantial gratuitous benefit, something which damages are not intended to provide”.

[3] The trial judge also had to take into account that as a result of the remedial work performed by the appellant shortly after installation, the plaintiff has had use of a structurally sound and functional pool for some six (now eight) years, which would be a significant part of the expected life of the pool. The trial judge also had to take into account that replacement of the timber retaining wall with a concrete one, while necessary, would result in a significantly improved structure.

[4] Rather than sending this matter back for a new hearing for assessment of damages, and the added expense that would entail for the parties, we are of the view that there is sufficient material in the record for this court to make a reasonable estimate of damages. Using our best judgment, we would allow the appeal and reduce the damages from $54,980.34 to $25,000.

[5] This is not a case for pre-judgment interest. See Pozios v. 776575 Ont. Ltd. et al., [2001] O.J. No. 1942 at para. 14.

[6] The appellant is entitled to its costs of the appeal, which we fix at $8,000 inclusive of GST and disbursements. The trial judge awarded the respondent his costs of the trial. It may be that this award should be varied in light of our judgment. If so instructed, the appellant will have 20 days from the release of these reasons to provide brief written submissions with respect to the costs of the trial. The respondent may respond to those submissions within 10 days and the appellant may reply to thus submission within 5 days.

Signed: “R. Roy McMurtry C.J.O.” “M. Rosenberg J.A.” “E.E. Gillese J.A.”