Court File and Parties

COURT FILE NO.: DC-3/05 DATE: 2006-11-22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mark Renner and Cara Renner v. 1260933 Ontario Inc. O/A Riviera Pools

BEFORE: The Honourable Mr. Justice P.J. Flynn

COUNSEL: Nicole C. Jedlinski, for the Plaintiffs (Respondents in Appeal) Glenda D. McLeod, for the Defendants (Appellants in Appeal)

HEARD: October 16, 2006

ENDORSEMENT

[1] This is an appeal under the provisions of s. 31 of the Courts of Justice Act of a Judgment in respect of two separate claims in the Small Claims Court.

[2] On July 21, 2005, Deputy Judge Breithaupt, at the end of a trial in which two separate actions between the parties were tried together, gave oral reasons granting the Respondents judgment for $6,400.87 (in claim 660/04) and dismissed the Appellant’s claim (in claim 748/04).

[3] The Judgment amount was derived when the trial judge awarded the Respondents the sum of $10,000 for the completion of a swimming pool at their home and deducted the Appellant’s claim for extras.

[4] At the commencement of the hearing of this appeal, I highlighted for counsel several concerns raised by their materials, including my concern with counsels’ understanding of my role as an Appellate Court. I pointed out to them, for example, that I was not a trier of fact.

[5] I also pointed out that neither of their factums had addressed the question of whether the trial judge’s reasons were adequate enough for appellate review.

[6] At the end of the hearing, I reserved my decision, but warned counsel that my Ruling might bring about a result neither one of them wanted. I urged them to use the following week to come to some agreement on their own. Apparently they have not done that.

[7] What I was warning counsel about was my authority or power under s. 134(1)(b) of the Courts of Justice Act to order a new trial, even as that power is limited by the prohibition in s. 134(6). For the brief reasons that follow, that is exactly what I must do in this case.

[8] The Appellant asks me to set aside the trial judge’s Judgment and in its place to make the order it says ought to have made, namely:

(i) a finding that the Respondents breached their contract (in claim 748/04);

(ii) granting Judgment in favour of the Appellant in the amount of $9,099.13;

(iii) dismissing the Respondents’ clam in action 660/04; and,

(iv) granting the Applicant’s costs on a substantial indemnity basis.

[9] The Respondents, of course, want the Judgment(s) to stand and ask that this Appeal be dismissed.

[10] Ms. McLeod, for the Appellant, concedes that the trial judge made no palpable or overriding errors on any factual issue. Indeed, she accepts all of the trial judge’s factual findings. What Ms. McLeod argued was that the trial judge erred when he applied the law of contract to the facts he found and that his reasons do not meet the required standard of correctness. She argued that he did not apply the correct legal test and came to the wrong legal conclusions.

[11] In the main, she pinned her argument to the trial judge’s finding “that the Plaintiff did not give a fully reasonable opportunity for the Defendant to complete this project”. She said this amounted to a legal conclusion that the Respondents breached the contract and that to have awarded judgment to the Respondents as he did, meant that the trial judge had really concluded in law that the Appellant had breached the contract. Of course, those are impossible legal conclusions from the same facts.

[12] However, Ms. McLeod was not able to point to the trial judge’s reasons to show any legal analysis leading to his ultimate conclusion. She argued that he did not make a proper legal analysis but she is not able to demonstrate a legal flaw in his reasoning. Indeed, she is not able to show me in his reasons a pathway to his conclusion. At the end of the day she conceded that she could not point to the exact path in the trial judge’s reasoning to demonstrate the legal principles which he applied.

[13] She says that nothing in his reasoning points to the conclusion that or how the Appellant breached the contract. And any suggestion that the Appellant breached the contract also flies in the face of the trial judge’s order that the Respondents were required to pay for the extras claimed by the Appellant.

[14] Ms. McLeod concluded her argument with the very seductive proposition that when the reader absorbs the factual findings of the trial judge, he or she expects a judgment opposite to that which is actually rendered.

[15] The Respondents also have some difficulty in this appeal. They argue that because the Appellant concedes no palpable and overriding error – the proper standard of review in this case – due deference must be given to the trial judge and the appeal must be dismissed. Ms. Jedlinski, for the Respondents, argued that because the trial judge found that the Respondents’ sign did not go up until after the ten days set out in their solicitor’s letter had passed, that the Appellant could have completed the pool in late June, and that the Appellant was not actually excluded from the property until July, this resulted in a legal conclusion that the Respondents had not interfered with the Appellant’s performance of the contract. In other words, that they had not breached the contract themselves.

[16] On the other hand, Ms. Jedlinski says that there were factual findings which would allow the trail judge to conclude, as he must have, that the Appellant had breached the contract.

[17] But she too concedes that the trial judge’s reasons are not completely adequate in that any legal analysis seems to be entirely missing.

[18] Ms. Jedlinski further argued that the Appellant’s factum does not point out the actual legal test which the trial judge should have employed and that that means that the Appellant cannot demonstrate that the trial judge arrived at an incorrect decision.

[19] She was candid in conceding that when one reads the trial judge’s finding that the Respondents “did not give a fully reasonable opportunity for the (appellant) to complete this project”, a reader could be surprised by the ultimate conclusion reached by the trial judge.

[20] And Ms. Jedlinski could not map out for me the legal path taken by the trial judge to reach his conclusion.

[21] It is not enough for her to say that the appeal must fail because the Appellant cannot point to the legal test used by the trial judge. She herself must be able to point to such a test and show that it has been correctly applied – especially in a case where the reader is surprised to reach the final destination in the judgment.

[22] I have tremendous sympathy for the workload burdens faced by frontline Deputy Judges in our Region’s Small Claims Court. Deputy Judge Breithaupt has extensive experience as a trial judge. But he shares the same obligation as all trial judges do – to give reasons adequate enough for appellate review. Here, he missed the mark. His reasons contain no legal analysis, nor do they demonstrate the application of the proper legal principles.

[23] The Appeal is dismissed and a new trial is ordered. A reader could rightly conclude – as I have – that a substantial wrong or miscarriage of justice has occurred. And I must further conclude that this situation can only be righted by ordering a new trial. Both actions (660/04 and 748/04) are to be tried together with the Respondents as Plaintiffs and the Appellant as Defendant. The claim by the Defendant in claim 748/04 shall be treated as if it were a defence and counterclaim.

[24] Neither side asked for this relief. Accordingly, it seems appropriate to me in the circumstances to make no order as to costs.

P.J. FLYNN J.

DATE: November 22, 2006