Court of Appeal for Ontario

CITATION: Evans v. Snieg, 2014 ONCA 661

DATE: 20140924

DOCKET: C58249

Juriansz, LaForme and Lauwers JJ.A.

BETWEEN

Laura Anne Evans and Michael Adam Lydan

Plaintiffs/Respondents

and

Stanislaw Snieg and Maria Snieg

Defendants/Appellants

Alan S. Price, for the appellants

Peter K. Krysiak, for the respondent

Heard and released orally: September 18, 2014

On appeal from the final order of Justice Peter H. Howden of the Superior Court of Justice, dated December 27, 2013.

ENDORSEMENT

[1] The motion before the motion judge was to consider the plaintiffs/respondents request for increased funds to be paid by the defendants/appellants to build a retaining wall. The differential between the estimated and actual cost was about 25 percent. After taking the motion under reserve the motion judge instructed the parties to file affidavits from their engineers addressing the reasons for the cost differential. The motion judge ordered the appellants to pay the full increased cost of building the wall.

[2] The appellants argue that the motion judge made two errors. First, he did not permit them to cross-examine the respondents’ expert on the second report, which explained the reason for the increased costs, and did not give counsel the opportunity to make further oral submissions.

[3] Second, the appellants argue that the motion judge effectively turned the motion into one for summary judgment. In the circumstances, they submit that he ought to have ordered a mini-trial or some other relief under Rule 20.

[4] They ask that the order compelling them to pay the increased cost be set aside, to permit cross-examinations and further submissions.

[5] We dismiss the appeal for the following reasons:

[6] First, the appellants filed a factum but did not seek the opportunity to cross-examine on the expert’s second report. Nor did they serve appointments for that purpose as they were entitled to do on the rules. Nor did they seek an opportunity to make further oral submissions in the factum or in some other proper way. This complaint has no merit.

[7] Second, the motion judge found that the appellants’ expert did not contradict the respondents’ expert, who said that the cost increases were due to poor soil conditions found during construction that were not known beforehand. The motion judge found this to be an adequate explanation for the increased costs. This finding is entitled to deference.

[8] The appeal is dismissed. Costs will be fixed in favour of the respondents in the amount of $8,500.00 all inclusive.

“Russell G. Juriansz J.A.”

“H.S. LaForme J.A.”

“P. Lauwers J.A.”