Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230721 DOCKET: C70922

Miller, Harvison Young and Favreau JJ.A.

BETWEEN

Vangar Properties Inc. Plaintiff (Respondent)

and

Belmar Roofing Inc. Defendant (Appellant)

Counsel: Brian R. Kelly and Philip Moser, for the appellant Matthew T. Kelly, for the respondent

Heard: July 19, 2023

On appeal from the judgment of Justice Ian Smith of the Superior Court of Justice, dated June 22, 2022, with reasons reported at 2022 ONSC 4258, and from the costs endorsement, dated August 8, 2022.

Reasons for Decision

[1] The appeal was dismissed following the appellant’s oral submissions, with reasons to follow. These are the panel’s reasons.

[2] The appellant contracted with the respondent to repair the roof of a residential apartment building owned by the respondent. The appellant performed the work, but within months the roof was leaking and failing to adequately channel rainfall. Eventually a portion of the roof collapsed and several apartments sustained water damage.

[3] The respondent retained an engineer to inspect the roof and provide a report. The engineer concluded that the roof was defective in both design and installation. In addition to the problem of inadequately discharging rainwater to the ground, the engineer concluded that the roof was not properly attached and was at risk of blowing off in the wind. He concluded that the roof posed an immediate risk to the safety of the building occupants and the public and should be immediately replaced.

[4] The respondent brought an action for breach of contract and negligence. The appellant was found liable.

[5] The appellant appealed on the basis that the trial judge erred in finding that the roof posed immediate danger to anyone. The roof had not leaked since some comparatively inexpensive remedial measures had been put in place, and neither had it blown off. The appellant argued that the trial judge was erroneously led to an incorrect conclusion by relying on the evidence of the respondent’s engineer. The trial judge ought not to have put any weight on the engineer’s opinion, the appellant argued, because the opinion contained in his final expert report was contradicted by the first draft of his report.

[6] In the draft, the engineer stated that the roof presented an immediate danger to the public, and that it was his professional duty as an engineer to report the problem to the City of London. The final version of the report was identical to the draft, with the exception that it did not contain the statement that the engineer had a professional duty to report the problem to the City. The appellant argued that the deliberate omission of this statement, coupled with the fact that the roof had not failed in the years since the draft was written, meant the engineer had exaggerated the problems with the roof and that his evidence should not have been relied on.

[7] We do not agree with this submission. The trial judge made no error in not finding a contradiction between the two drafts, in not drawing the inference that the engineer was embellishing his evidence, and in not finding that the roof was in fact structurally sound. There was ample evidence to support the trial judge’s conclusion that the roof was not properly installed and posed an immediate hazard. The engineer explained in his testimony at trial that his reason for omitting the statement about his obligation to report was that he did not believe that the scope of his professional reporting obligations were of interest to the court; statements about his professional duties would not help the court come to a conclusion about the condition of the roof. He specifically maintained his opinion that the roof was at risk of blowing off in a severe storm and required immediate correction. The trial judge made no error in accepting this evidence and reaching the conclusions he did. There is no basis for this court to interfere.

[8] Although the appellant also appealed the trial judge’s assessment of damages, this ground of appeal was not pursued in oral argument. In any event, we see no basis to interfere with the trial judge’s determination.

Disposition

[9] The appeal is dismissed with costs payable to the respondent in the amount of $13,500 inclusive of disbursements and HST, as agreed by the parties. Leave to appeal the costs order below is denied.

“B.W. Miller J.A.”

“A. Harvison Young J.A.”

“L. Favreau J.A.”