Court of Appeal for Ontario

Citation: Moon v. Ottaway, 2015 ONCA 489 Date: 2015-06-29 Docket: C59548

Before: Hoy A.C.J.O., Sharpe and Benotto JJ.A.

Between:

Charles Moon Appellant (Plaintiff)

and

Dorothy Ottaway and Thomas Neal Respondents to Appeal (Defendants)

AND

Dorothy Ottaway Respondent to Appeal (Plaintiff by Counterclaim)

and

Charles Moon and Maia Caron Appellants (Defendants to the Counterclaim)

Counsel: Chad A. Yehia, for the appellant Charles Moon Hugh Pattison, for the respondent Dorothy Ottaway Amanda S. Gibson, for the respondent Thomas Neal

Heard and released orally: June 25, 2015

On appeal from the judgment of Justice W. Low of the Superior Court of Justice, dated October 16, 2014.

Endorsement

[1] The appellant, Charles Moon, leased a house from the respondent landlord, Dorothy Ottaway. Her real estate agent, the respondent Thomas Neal, was involved in the leasing transaction. On his own initiative, and without obtaining the landlord’s consent, the appellant undertook extensive renovations to the home. The appellant subsequently defaulted in payment of rent and the landlord sought relief at the Landlord and Tenant Board. Just before the hearing before the Board, the appellant commenced this action against the landlord for damages for breach of contract and unjust enrichment and against the real estate agent for damages for negligent misrepresentation and/or inducing breach of contract. Among other things, the appellant claimed that he was entitled to set-off the value of renovations to the house that he had undertaken. The landlord’s application before the Board was converted to a counterclaim for arrears of rent and an eviction order.

[2] After a summary/hybrid trial, the trial judge dismissed the appellant’s claims against the landlord and her real estate agent and allowed the landlord’s counterclaim.

[3] The appellant asks this court to quash the judgment of the trial judge and order a new trial. He argues that the trial judge made three errors that require this court to order a new trial.

[4] First, he says that the law did permit the trial judge to proceed by way of a summary/hybrid trial.

[5] Second, he says that his counsel should have been allowed to ask him questions covered in his affidavit prepared in anticipation of the landlord’s summary judgment motion and utilized in the summary/hybrid trial. He argues that the court was denied the opportunity to observe his demeanour as he recounted that portion of his narrative.

[6] Third, he says the trial judge erred at law when she denied his request for an adjournment to obtain an expert report relating to the increase in value of the leased property resulting from the renovation work he had done.

[7] This court will not direct a new trial unless some substantial wrong or miscarriage of justice has occurred: s. 134(a), Courts of Justice Act, R.S.O. 1990, c. C43. As we explain, the trial judge made no error and there was no miscarriage of justice.

[8] As to the first alleged error, the landlord brought a motion before the trial judge for directions to ensure the expeditious trial of the issues raised in the action and counterclaim. The trial judge ordered that the action and counterclaim proceed before her on October 6, 2014 as a summary proceeding, using the affidavit materials and cross-examination transcripts that had been prepared for use on the summary judgment motion which had been brought by the landlord but not yet heard, together with supplementary viva voce evidence. The appellant did not challenge the order when it was made or at trial. It is not open to the appellant to challenge that order at this appeal after trial: Harris v. Leikin Group Inc., 2014 ONCA 479 at para. 43. The order provided a proportionate, fair and expeditious manner of determining the matter in dispute consistent with the approach in Hryniak. The appellant was not prejudiced by the manner in which the proceeding was conducted.

[9] We also reject the appellant’s second argument. The trial judge was entitled to direct that he not repeat in his examination-in-chief evidence given in his affidavit. The court had ample opportunity to observe his demeanour in other portions of his examination-in-chief and cross-examination. The trial judge’s approach was efficient and appropriate.

[10] Finally, we see no error in the trial judge’s exercise of her discretion to deny the appellant’s request for an adjournment to obtain an expert report. The appellant had previously failed to comply with a timetabling order made by another judge. By the time of trial, the appellant had not paid rent for nine months. He was aware of the issues and had ample time to obtain an expert report. Moreover, the documentary evidence in favour of the landlord that the appellant had undertaken renovations at his own expense was overwhelming. The inability of the appellant to put evidence as to the value of these renovations before the court was of no moment.

[11] This appeal is accordingly dismissed.

[12] The landlord will be entitled to costs in the amount of $20,000, inclusive of disbursements and HST. The real estate agent will be entitled to costs in the amount of $8,000, inclusive of disbursements and HST.

“Alexandra Hoy A.C.J.O.”

“Robert J. Sharpe J.A.”

“M.L. Benotto J.A.”