Court of Appeal for Ontario

Date: 2018-01-29 Docket: C63161 Judges: Sharpe, LaForme and van Rensburg JJ.A.

Between

Robert C. Allingham, carrying on business as R.C. Allingham Construction Plaintiff (Respondent)

and

Robert Perrault and Paula Perrault Defendants (Appellants)

Counsel

Clinton H. Culic, for the appellants

Colin E. Wright, for the respondent

Heard and released orally: January 29, 2018

On appeal from: the judgment of Justice Alan D. Sheffield of the Superior Court of Justice, dated November 29, 2016.

Reasons for Decision

[1] This appeal is entirely fact-driven. The appeal raises questions of contractual interpretation, credibility and reliability of witnesses, and the admissibility and weighing of expert evidence, which are all within the province of a trial judge and entitled to deference on appeal.

[2] The appellant acknowledges that the core issue on appeal is responsibility for and alleged deficiencies in the finishing of the drywall, and that substantially all of the damages claimed in the counterclaim, which was dismissed, was in relation to the cost of replacing the drywall.

[3] The trial judge's determination that responsibility for the drywall installed by the third parties was assumed by the appellant, Mr. Perrault, was fully supported by the evidence. The trial judge rejected the argument that although Mr. Perrault hired and paid the drywallers the respondent remained responsible for the quality of the drywall installation. This conclusion, which is unassailable, disposes of all issues with respect to the drywall. As such, any concerns about the qualifications of the respondent's expert and the determination of the admissibility of further expert evidence of the appellant's expert, Mr. Welch, are irrelevant to the disposition of the appeal.

[4] As for the argument that the appellant ought to have been credited at a higher rate for his labour, we see no error in the trial judge's assessment of the evidence and his conclusion on this issue.

[5] For these reasons, the appeal is dismissed. Costs to the respondent fixed in the amount $25,000, inclusive of disbursements and HST.

"Robert J. Sharpe J.A."

"H.S. LaForme J.A."

"K. van Rensburg J.A."