Court of Appeal for Ontario

CITATION: B.C.R. Construction Incorporated v. Humphrey, 2009 ONCA 778

DATE: 20091105

DOCKET: C50339

Laskin, Armstrong and Lang JJ.A.

BETWEEN

B.C.R. Construction Incorporated

Plaintiff (Respondent)

and

Howard Anthony Humphrey and Kimberly Ann Aus

Defendants (Appellants)

Counsel:

Ian A. Johncox, for the appellants

Joseph Villeneuve and Daniel Fiorita, for the respondent

Heard: October 30, 2009

On appeal from the order of Justice Myrna L. Lack of the Superior Court of Justice dated March 20, 2009.

APPEAL BOOK ENDORSEMENT

[1] In our view, the motion judge erred in granting summary judgment dismissing the appellants’ counterclaim. In the light of Article A-6 of the construction contract, the question whether s. 10(1) of the Consumer Protection Act (CPA) applies to the handwritten estimate for stage I raises a genuine issue for trial. If the Act does apply, then the amount of any refund is also an issue for trial.

[2] Equally, the question whether section 2(2)(f) of the CPA exempts the construction contract from the Act because it is part and parcel of a real estate transaction also raises a genuine issue for trial.

[3] Accordingly, the appeal is allowed and the issues of the applicability of the CPA to the construction contract and to the handwritten estimate are remitted for trial. The appellants are entitled to their costs of the appeal in the amount of $3,500, inclusive of disbursements and GST, and their costs of the motion before Lack J. also in the amount of $3,500, inclusive of disbursements and GST.