Court of Appeal for Ontario

Citation: Sharafbayani v. Jackson Roofing Corporation, 2014 ONCA 271

Date: 2014-04-07

Docket: C55932

Before: Cronk, Gillese and Strathy JJ.A.

Between:

Mansoor Sharafbayani Plaintiff (Respondent)

and

Jackson Roofing Corporation Defendant (Appellant)

Counsel: Michael R. White, for the appellant William D. Dunlop and Shayna A. Beeksma, for the respondent

Heard: April 3, 2014

On appeal from the judgment of Justice Gisele M. Miller of the Superior Court of Justice, dated July 18, 2012.

Endorsement

[1] This appeal arises from a simplified proceeding under Rule 76. In 1999 the respondent contracted with the appellant to install a new roof on his multi-unit residential building.

[2] The appellant moved for a non-suit at the conclusion of the respondent’s case. In her ruling on the procedure to be followed on the non-suit motion, reported at 2011 ONSC 2707, the trial judge held that in an action under the simplified rules, a defendant moving for a non-suit is required to elect whether to call evidence, in the manner described by Laskin J.A. in FL Receivables Trust 2002-A (Administrator of) v. Cobrand Foods Ltd. (2007), 2007 ONCA 425, 85 O.R. (3d) 561 (C.A.), at paras. 12-14. Following this ruling, the appellant withdrew its non-suit motion, abandoned its counterclaim on its invoice, and elected to call no evidence.

[3] In the result, the trial judge was left with only the respondent’s evidence, which included the evidence of an expert whom the trial judge found qualified to testify on the subject of roof installation and maintenance: see 2010 ONSC 3496. The trial judge accepted the respondent’s evidence that:

• there had been no complaints by tenants of leaks in the 12 years before the replacement of the roof;
• the appellant gave a 10 year warranty on its work;
• beginning in 2005, within the warranty period, the roof leaked persistently;
• the appellant returned on numerous occasions, pursuant to its warranty and at no charge, to attempt to correct the problem, without any success;
• in spite of the installation of a new roof membrane by the appellant in 2006, the roof continued to leak, notwithstanding further attendances and repairs by the appellant, pursuant to its warranty; and
• in March 2007, the appellant denied responsibility for any more repairs and sent the respondent an invoice for $24,035.50 for its efforts to address what it claimed were condensation problems outside its control.

[4] Based on these and other findings of fact, the trial judge found the appellant liable for breach of contract for failing to fulfill its warranty.

[5] In our view, the trial judge’s findings of fact are supported by the evidence and the appellant has demonstrated no palpable and overriding error in her assessment of the evidence. Nor are we persuaded that there was error in the legal conclusions flowing from that evidence. The trial judge was entitled to find that a new roof is not supposed to leak and that the appellant’s warranty work did not correct the problem. In the absence of evidence from the appellant, demonstrating that the persistent leaking after the installation and repair of the roof was due to circumstances outside its control, the trial judge was entitled to find that the appellant had failed to fulfill its contractual warranty. The appellant having abandoned its efforts to resolve the problem pursuant to its warranty, the respondent was entitled to claim damages arising from the leaking of the roof and the cost of installing a properly constructed roof.

[6] We note that a number of the appellant’s complaints are tort-based. Liability is this case was founded on breach of contract and breach of warranty.

[7] The appellant asserts, as it did before the trial judge, that the respondent failed to establish causation. The findings of fact referred to above, coupled with the observations of the trial judge at paragraphs 60 and 61 of her reasons, provide a basis for her conclusion that the respondent’s damages were caused by the appellant’s breach of contract and breach of warranty. The appellant having elected to call no evidence, this conclusion was clearly open to the trial judge.

[8] The appellant claims that the trial judge erred in finding that the action was not time-barred. We disagree. When the appellant refused to honour its contractual warranty, the respondent was entitled to sue for damages. Accordingly, the respondent commenced its action within the limitation period.

[9] In the absence of any evidence from the appellant as to the costs of repairing the damage and replacing the roof, the trial judge was entitled to accept the respondent’s evidence on those costs. We are not persuaded that the trial judge made a reversible error in the assessment of damages.

[10] For these reasons, the appeal is dismissed, with costs to the respondent fixed at $10,000, inclusive of disbursements and all applicable taxes.

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”

“G.R. Strathy J.A.”