COURT FILE NO.: 02-DV-816

DATE: 2003/11/03

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

JOHN MARTA

In person

Appellant

• and -

FRANCIS HOME ENVIRONMENT CENTRE

Christopher Clermont, for the Respondent

Respondent

HEARD: November 3, 2003

Rutherford J

[1] In June of 2001 Mr. Marta contracted with the Respondent [Francis] to install a high efficiency gas furnace and an air-conditioning unit together with the necessary duct work in the single story home in which he and his brother lived. The contract price was $8506.50 and Mr. Marta paid a deposit of $1000. The installation took place in the course of the following weeks.

[2] There were a number of aspects of the work with which Mr. Marta was dissatisfied, including the location of the ductwork in the recently finished basement of the home, the location of the gas meter and the air-conditioner’s compressor, and the inadequate clean-up done by Francis. When Francis found out that Mr. Marta was not satisfied with the location of the ductwork, they came and relocated it to his satisfaction at no charge. They did not repair the holes and other cuttings that had been done for the initial installation. In this regard, I note that the contract specified that if problems are encountered requiring ductwork to be re-routed, the home-owner would be responsible for the patching of holes and other restoration required thereby.

[3] When billed for the balance owing on the contract, Mr. Marta refused to pay anything more. Francis then filed a claim in Small Claims Court for $8506.50, but at trial, conceded that the claim was actually for $7506.50 in light of the deposit that had already been paid. The trial judge found no breach of the agreement, other than perhaps that there may have been a degree of cleaning required as a result of the way the work had been done, but since no amount of damages in that regard had been proven, he gave judgment in favour of Francis for the amount claimed together with $870 in costs.

[4] I have reviewed the trial transcript in its entirety and cannot find any substantial error on the part of the Deputy judge who tried the case. He heard the evidence fully, examined all the issues and arguments and made findings and based his disposition on the evidence put before him. The core complaint of Mr. Marta is that he was not happy with the original locating of the ductwork. It was run in such a way as to run through the basement bathtub and shower at ceiling level. Running it through the bathroom was apparently done to avoid running into bulkheads. Mr. Berndt, a Francis witness testified that he is 6 ‘ 6” tall and that when he stepped into the bathtub, there was still 2 “ clearance between his head and the duct as it passed overhead. No complaint as to the ductwork location was made until sometime after it’s installation. When the Marta’s expressed dissatisfaction with the placing of the ductwork, [Mr. Marta’s mother became quite involved at this stage] the Francis employees pointed out that the re-routing the Marta’s now wanted would go through a basement cupboard making it less useable, and would require a section of a door frame to be removed, with a consequent weakening of the frame. Nevertheless, the Marta’s requested the re-routing and Francis did it without charge.

[5] The dispute as to locating the elements of the equipment and ductwork really highlights the need to make specific provision for it if it is a concern. The contract here made no provision for the specific locating of the materials. In fact, Mr. Marta testified at trial that he left it to the professionals. At page 83 of the trial transcript his evidence is as follows:

Therefore, I just assumed that they would know exactly what to do, and they were the professionals and they were the best in skill and attitude and workmanship so my -- after talking to my brother, we said, okay, we'll leave it up to them to do and if something went wrong, would go wrong, that at least we have a guarantee or guarantees to follow up on, and that's how we tackled it.

[6] I think the unfortunate and expensive lesson in the case for Mr. Marta is that if you leave it to the professionals and they do a workman-like job and you don’t contract or give clear and timely instructions to have the job done differently, you cannot expect to be able to withhold payment for the work done.

[7] I see no substantial error by the trial judge on which to justify intervening and altering the result at trial. In fact, on the evidence, I think the trial judgment is a reasonable one. The appeal therefore fails and must be dismissed. The Respondent is again entitled to an award of costs. In the Small Claims Court costs are kept to modest awards in order to make that Court accessible. A litigant who loses in the Small Claims Court and takes his opponent on appeal to the Divisional Court, however, must expect to pay more substantial costs if unsuccessful. The Respondent has again incurred expenses for a lawyer to defend his claim and the trial award is eroded to that extent. I think given the nature of the case and the half day it took to deal with in this Court alone, an award of $1500 payable by the appellant to the Respondent in addition to the costs ordered at trial is appropriate.

Judgment accordingly.

Rutherford J.

Released: February 5th, 2004