Court of Appeal for Ontario

Date: 2017-11-10 Docket: C61592 Judges: Watt, Pepall and Miller JJ.A.

Parties

Between

Dan McCabe, carrying on business as Canadian Commercial Flooring Plaintiff (Respondent/Appellant by way of cross-appeal)

and

Finn Way General Contractor Inc. Defendant (Appellant/Respondent by way of cross-appeal)

Counsel

Roderick W. Johansen, for the appellant/respondent by way of cross-appeal

Hugh N. MacDonald, for the respondent/appellant by way of cross-appeal

Heard: October 27, 2017

On appeal from the judgment of Justice Alexander D. Kurke of the Superior Court of Justice, dated December 14, 2015.

Reasons for Decision

Facts

[1] The respondent, Dan McCabe, contracted with the appellant, Finn Way General Contractor Inc., to install sheet vinyl flooring at a long-term care facility in Terrace Bay, Ontario. After a dispute with the respondent, the appellant hired another contractor to complete the job. The respondent brought an action against the appellant for monies owing under the balance of the contract, and for extra work and materials not covered by the contract. The appellant counterclaimed for money it expended to hire the additional subcontractor, and for additional materials and expenses.

[2] The contract was part of a larger renovation project for which the appellant was the general contractor. The trial judge found that the respondent advised the appellant that deficiencies in the sub-floor structure prevented him from properly installing the vinyl flooring, and that he needed the appellant to rectify the deficiencies.

[3] The larger renovation project was behind schedule and under significant time pressure. The trial judge found that the appellant refused the respondent's demand that the appellant open up the flooring and resolve the issue. Instead, it directed the respondent to attempt a "quick and dirty" fix by securing the sub-floor with additional screws, and to continue laying the flooring. The attempted fix was unsuccessful, and the project architect required the vinyl flooring to be removed and replaced. The respondent was unwilling to do this unless he was paid for previous work and relieved of his warranty obligations, as the failure of the vinyl flooring was not due to his workmanship but to the condition of the sub-floor. The appellant refused and instead hired another subcontractor to finish laying the vinyl flooring.

[4] The respondent sued for breach of contract. The appellant counterclaimed, arguing that the respondent abandoned the job. It argued that the flooring installation problems were entirely due to the respondent's poor execution, as the second contractor succeeded in properly installing the vinyl flooring. The trial judge rejected the appellant's submission, found that defects in the vinyl flooring remained, and that these were attributable to the defective sub-floor.

[5] The trial judge awarded the respondent damages for breach of contract and dismissed the counterclaim.

Issues

[6] The appellant's main ground of appeal, and the only substantive ground pursued in oral argument, is that the trial judge erred in finding: (1) the respondent was unable to install the vinyl flooring because of defects in the subfloor, and (2) it was the appellant's responsibility to remedy those defects. The appellant also sought to reverse the costs award.

[7] The respondent cross-appealed on the assessment of damages.

[8] For the reasons that follow, we dismiss the appeal and allow the cross-appeal.

Analysis

[9] The appellant has not identified a palpable and overriding error in the trial judge's reasons. The appellant has essentially cherry-picked passages from documents and examination transcripts and asks this court to give them greater weight than the trial judge was willing to do. The trial judge considered the evidence, made specific findings as to the credibility of the appellant's sole witness, made specific findings of fact, and drew permissible inferences from those findings. It is not open to us to reweigh the evidence or draw different inferences. There is no basis on which we would interfere with the trial judge's findings that the subfloor was deficient and that it was the appellant's responsibility to remedy it.

[10] With respect to the issue of costs, this is again a highly discretionary determination and the appellant has not demonstrated that the trial judge committed any error. The fact that the appellant received a lower costs award in an action it brought against another contractor has no bearing on what constitutes an appropriate costs award in this action. Neither would we give effect to the appellant's argument that the award ought to have been reduced to reflect the fact that the respondent was not awarded the full quantum of damages he sought.

[11] The respondent's cross-appeal was brought with respect to the trial judge's decision that he had no authority under rule 59.06(1), after his reasons had been issued, to correct what he acknowledged to be a technical error: he inadvertently used an incorrect figure in his calculations of damages.

[12] This was an accidental slip and the trial judge might have corrected this error under rule 59.06(1). In any event, the error in the damages calculation is now properly before this court, and the amount of the judgment should be varied from $49,451.44 to $61,547.33. The cross-appeal is allowed.

Disposition

[13] The appeal is dismissed and the cross-appeal allowed, varying the judgment from $49,451.44 to $61,547.33. The respondent is entitled to costs of the appeal and the motion in the amount of $25,000, inclusive of disbursements and HST.

"David Watt J.A."

"S.E. Pepall J.A."

"B.W. Miller J.A."