2013 ONSC 6989

COURT FILE NO.: 08-DV-1415

DATE: 2013/11/18

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Linhares de Sousa J.

B E T W E E N :

ANTHONY CRESSWELL-JONES and JEANNA CRESSWELL-JONES Plaintiffs (Respondents on Appeal)

– and –

RAYMOND SEGOUIN, carrying on business under the firm name and style as “About the House Home Inspection” Defendant (Appellant)

Counsel: Robert W. Baldwin, for the Plaintiffs (Respondents on Appeal) Pierre Champagne, for the Defendant (Appellant)

HEARD AT OTTAWA: September 25, 2013

REASONS ON APPEAL

M. LINHARES DE SOUSA J.

INTRODUCTION

[1] On March 26, 2008 Deputy Judge Lyon Gilbert, after a long trial involving many witnesses, rendered a judgment in favour of the Respondents, Anthony Cresswell-Jones and Jeanna Cresswell-Jones, in their action brought against the Appellant, Raymond Segouin, carrying on business under the firm name and style as “About the House Home Inspection”.

[2] The Statement of Claim in support of the action brought by the Respondents pleaded both breach of contract and negligence and alleged that the Appellant had failed in his duty of care to the Respondents in carrying out of a home inspection, in particular his inspection of the roof, prior to their purchase of the home. Specifically the Respondents alleged that the Appellant failed to include in his home inspection report that there were problems with roof of the house.

[3] The Deputy Judge found that the Respondents relied on the Appellant’s report to their detriment and assessed the total damages of the Respondents at $4,520.25.

[4] The Appellant appeals from the judgment, seeks an order setting aside the judgment of the Deputy Judge and a judgment entered in favour of the Appellant, dismissing the action and awarding the Appellant his costs of the trial and of this appeal.

[5] Alternatively, the Appellant seeks an order setting aside the judgment and an order for a new trial.

[6] The Respondents seek an order dismissing the appeal and their costs on a substantial indemnity basis.

FACTS

[7] For the most part the uncontested facts are the following. The Appellant is a professional home inspector carrying on business as “About the House Professional Home Inspection”. The Appellant is, and has been a member of the Ontario Association of Home Inspectors (“OAHI”) since the year 2000 and has performed approximately 3,000 home inspections.

[8] The Respondents were the purchasers of the townhouse bungalow located at 43 Sable Run Drive, Stittsville, Ontario (the “Property”), which they purchased through the assistance of their real estate agent on April 21, 2004. The Respondents had purchased other houses before the Property. The Property came onto the real estate market on a Friday. The Respondents saw the Property on the Saturday and then made an offer on the following Tuesday, after a second visit.

[9] The Seller Property Information Statement received by the Respondents from their real estate agent prior to the sale did not identify any cause for concern about the Property and everything appeared to be in good order. Exhibit 6 filed at the trial was a picture of the MLS listing of the Property. It apparently depicted an accurate image of the roof of the time of the sale.

[10] The Agreement of Purchase and Sale entered into by the Respondents with the vendor of the property contained a condition precedent giving the Respondents until April 21, 2004 to complete the home inspection.

[11] At trial, a statement of the vendor of the Property was admitted on consent of both parties, indicating that the vendor of the Property had never had any water infiltration during the entire time that she owned and lived in the Property.

[12] Prior to finalizing the sale, the Respondents indicated their wish for a home inspection and left it to their real estate agent to locate an experienced home inspector who would come to the Property to carry out a visual home inspection.

[13] On or about April 21, 2004, the Appellant received a request from the Respondents’ real estate agent to perform a pre-purchase visual home inspection (the “Inspection”) of the Property. No other type of home inspection was ever requested.

[14] The Inspection took place on April 21, 2004 in the afternoon. Prior to the commencement of the inspection, the Appellant produced the home inspection contract, which is the Appellant’s standard home inspection contract. Only the female Respondent filled in the client name, address, telephone number, email and fax number and signed and dated the page. Immediately prior to the signature of the female Respondent appears the following :

You should know this:

“The report is based on a visual examination of the accessible features of the property and reflects their condition on the day of the inspection.

It is not a guarantee, warranty of insurance against current or future defects.

It is carried out in accordance with the Standards Practice of the American & Canadian Associations of Home Inspectors.

It is not a building code, insurance or by-law inspection.”

(See Transcripts and Exhibits Book, vol. 2, tab 1-2)

[15] In his home inspection report after his inspection, the Appellant simply noted under the title “Roofing, Flashings and Chimneys” that the sloped roof covering were asphalt shingles, that there was no chimney and that the roof inspection was from the ground. There was also no notation that the roof inspection was limited or prevented by anything.

[16] There was some dispute in the evidence relating to what the weather was that day, what the cost of the home inspection would be, what was specifically discussed between the parties concerning the home inspection contract, what opportunity the Respondents had to read and examine the home inspection contract and binder, by what personal or organizational standards the home inspection would be done and what expectations each party had of the home inspection.

[17] It is evident from his reasons that the Deputy Judge found in favour of the Respondents. For the reasons stated by him, he found, as a fact, at page 29 of his decision:

… Nothing was explained to them [the Respondents] either before, during or after as to what methods would be used to carry out the inspection. Segouin simply set about to do the inspection [as] he thought fit. He did not set out or explain the methods he was prepared to use or which might be available to them should a certain option not be palatable to him. He did not seek their instructions in any way. He decided the methods he would use. He did not tell them that the methods he chose may have been selected due to restrictions or limitations.

[18] The fee for the inspection was $300 plus GST for a total of $321.

[19] The Respondents were present throughout the home inspection carried out by the Appellant. The Appellant visually inspected the roof of the home from the ground in the front from across the street and then went around the back. The Deputy Judge found that the female Respondent and the Appellant had a discussion in the course of the inspection about the Appellant not going up to the roof to inspect it. The evidence of the female Respondent about this discussion, which the Deputy Judge accepted, was at page 10 of his decision:

When he [the Appellant] came into the house with the binder, she [the female Respondent] asked him about the roof because as she stated, “we had not seen him go on the roof.” He responded that “he didn’t generally go on roofs because people found that inspectors were damaging roofs, and that they didn’t like it, and it was better, therefore, not to do so.” She stated that she also asked what shape the roof was in. He responded that “given that the house was only five years old that there shouldn’t be any problems with a roof of that age.

[20] It should be noted that the binder does contain a section entitled “Roofing” and that the following items were checked off: that the roof was sloped, that it was covered with asphalt shingles, and that it was inspected by “from ground” (other options that could have been checked off were binoculars, ladder at eaves, and walking on). Under the heading “Roof inspection limited/prevented by” nothing was checked off. Amongst the options that could have been checked of were “wet”, “slope”, and “height”. No recommendations for action or maintenance were checked off except for the following, “ice and water shield recommended when repairing or re-roofing.”

[21] The Respondents received the home inspection report from the Appellant on the day of the inspection.

[22] The Respondents began to experience water leaks after their purchase of the home. The first appearance of water leaks was at the end of September, 2004. Water leakage worsened into the summer of 2005. The Respondents had various individuals examine the roof and do some repairs to the roof but the water leaks continued. Eventually, the Respondents hired Mr. Philip Haggar, a roofer by trade, who has been in the roofing business for 27 years, to replace the roof. It was the evidence of Mr. Haggar at the trial that the problems with the roof existed from the time it was first installed incorrectly.

[23] The OAHI, of which the Appellant is a member and referred to in his home inspection report, is subject to special legislation permitting that organization to be “incorporated for the purpose of carrying out its objects, to enable it to govern and discipline its members and to grant to its members the right to the exclusive use of the designations “Registered Home Inspector” and “R.H.I.”.” It should also be noted that the legislation clearly states that the special legislation does not affect or interfere with the right of any person who is not a member of the Association to practice as a home inspector in Ontario. (See Transcripts and Exhibit Book, vol. 2, tab 1-11.)

[24] In accordance with the powers given to it in Section 6(1)(d) of the legislation the OAHI created Standards of Practice for its members. The OAHI also acknowledged the American Society of Home Inspectors, Inc. (“ASHI”) for the use of its members. (See Transcripts and Exhibit Book, vol. 2, tab 1-12 ).

[25] With respect to the inspection of the roof system, the OAHI established the following standard:

5. ROOF SYSTEM

5.1 The Inspector shall:

A. inspect:

1. the roof covering.

2. the roof drainage system.

3. the flashings.

4. the skylights, chimneys, and roof penetrations.

B. describe the roof covering and report the methods used to inspect the roof.

5.2 The inspector is NOT required to:

A. inspect:

1. antennae.

2. interiors of flues or chimneys which are not readily accessible.

3. other installed accessories.

(Transcripts and Exhibit Book, vol. 2, tab 1-12)

STANDARD OF REVIEW

[26] The parties agreed on the standard of review. The standard of review on appeal of a question of fact is whether the trial judge made a “palpable and overriding error or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence.” A “palpable error” is one that is clear to the mind or plain to see and “overriding” means that it discredits the result. (See H. L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401 paras. 4 and 69).

[27] Furthermore, there is no question that there is a high standard of deference awarded to a trial judge who has had the opportunity to see and evaluate the evidence of witnesses, first hand.

[28] The standard of review on appeal for a question of law is that of correctness. (See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 8).

[29] Specifically, with respect to negligence cases, the challenge they pose is that of mixed fact and law which involves applying a legal standard to a set of facts. About this, the Supreme Court, in Housen v. Nikolaisen, supra, at para. 36 had the following to say:

To summarize, a finding of negligence by a trial judge involves applying a legal standard to a set of facts, and thus is a question of mixed fact and law. Matters of mixed fact and law lie along a spectrum. Where, for instance, an error with respect to a finding of negligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness. Appellate courts must be cautious, however, in finding that a trial judge erred in law in his or her determination of negligence, as it is often difficult to extricate the legal questions from the factual. It is for this reason that these matters are referred to as questions of "mixed law and fact". Where the legal principle is not readily extricable, then the matter is one of "mixed law and fact" and is subject to a more stringent standard. The general rule, as stated in Jaegli Enterprises, supra, is that, where the issue on appeal involves the trial judge's interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.

THE REASONS AND DECISION OF THE DEPUTY JUDGE

[30] The Statement of Claim of the Respondents pled both breach of contract and simple negligence. At the end of the evidence, the Respondents included in their arguments, arguments based on negligent misrepresentation even though it was not specifically pleaded in the Statement of Claim. The Appellant’s counsel argued before the Deputy Judge that consequently the Respondents ought not to be permitted to advance any arguments grounded in negligent misrepresentation. At page 26 of his decision, the Deputy Judge refused this argument and concluded that the general and specific allegations of negligence are sufficient to have put the Defendant on notice and that it was not necessary to specifically plead legal principles.

[31] The Deputy Judge in his reasons was alive to the fact that one of the main issues before him was, “what is the standard for inspection of roofs that ought to be utilized in order to provide a valuable report on the roof’s condition to a prospective homeowner?” Was it the OAHI’s standard, as alleged by the Appellant, and which the Appellant submitted he followed, or was there another standard to be followed? (See page 26 of the Decision of the Deputy Judge).

[32] The Appellant at trial presented an expert witness, in the person of Mr. Paul Wilson, to speak to that main issue of a standard of inspection of roofs by which the Appellant’s conduct during his inspection of the home in question could be measured or judged. As recognised by the Deputy Judge, Mr. Wilson was a home inspector qualified as a RHI and who at the time of the trial was the chair of the Ottawa Regional Meeting Group of the Canadian Association of Home and Property Inspectors (“CAHPI”). As the Deputy Judge explained, home inspections done by CAHPI associated members through CAHPI Ontario (formerly OAHI) are performed following the standards of OAHI set out in tab 1-12 of the Transcripts and Exhibit Book, vol. 2. The Deputy Judge did qualify Mr. Wilson as an expert witness, capable of providing an opinion on whether the Appellant’s conduct in inspecting the Respondents’ home met the accepted standards of the trade.

[33] Mr. Wilson’s evidence was essentially that the OAHI standards do not specifically dictate the methodology to be used in the inspection of roofs but that a visual inspection from the ground was the normal inspection practice at the time. If it was discovered from that visual that there was something unusual from the shingles such as shingles missing or cupped or curled then you would investigate further. Mr. Wilson gave the opinion that the Appellant carried out his inspection in a professional manner in accordance with the OAHI standards.

[34] For the reasons given by the Deputy Judge he rejected the evidence of Mr. Wilson. At page 29 of his decision the Deputy Judge stated that he found the evidence of Mr. Wilson to be “self-serving given for the express purpose of legitimating CAHPI and OAHI as the only legitimate representatives of the industry. He did not find Mr. Wilson’s evidence as to what standard should be followed to be of any help to the Court.

[35] At the trial the Respondents called a number of witnesses some of whom had worked on their roof, leading up to its ultimate replacement by Mr. Haggar. In particular, Mr. Lorne R. Camm was called who, the evidence showed, had worked for a number of years in the construction industry and had done several home inspections but was not registered with any home inspection association. Mr. Camm testified to how he personally inspected roofs which in his opinion could only be done properly by going up on them. He had never heard of inspecting a roof from the ground. Based on the pictures of the roof taken by Mr. Haggar when he replaced the roof, Mr. Camm expressed the opinion that the roof was not installed properly from the beginning.

[36] Objection was taken by counsel for the Appellant to the opinion evidence being given by Mr. Camm and by the other Respondents’ witnesses when they had not been qualified to give such opinion evidence by the court. At page 26 of the decision, it was the conclusion of the Deputy Judge that he would not disqualify any of the Respondents’ witnesses from giving evidence as experts and that he would give that evidence such weight as would be appropriate in the circumstances. The Deputy Judge applied the test found in R. v. Marquard, (1993) 1993 (SCC), S.C.J. No. 119, 85 C.C.C. (3d) 193, namely, does the witness possess special knowledge or experience going beyond that of the trier of fact? He concluded that the Respondents’ witnesses did have special knowledge or experience on the main issue in the case and that the court would benefit from hearing such witnesses testify. For the Deputy Judge to disallow other witnesses with special knowledge or experience in the business of construction, contracting and roofing to testify on the very matter at issue would leave the court with only one perspective and one that was self-serving. The Deputy Judge recognised that issues of expertise and admissibility are issues of law to be decided by the trial judge.

[37] Having rejected the evidence of Mr. Wilson, the Deputy Judge went on to give ordinary, “everyday dictionaries” meaning to the words found in the home inspection contract relating to how the Appellant communicated his methodology for inspecting the roof to the Respondents, namely the words “visual” and “accessible”. As a result he found that it was an implied term of his contract that required the Appellant to use a method of inspection that was both a “careful and critical examination” of the roof and “one that had the best chance of discovering apparent defects or clues which could have led to such discovery or which could have cautioned the prospective homeowner of potential problems.” (See page 29 of the Decision of the Deputy Judge.)

[38] At page 32 of his decision the Deputy Judge found the evidence of the Appellant explaining why he did not go up on the roof to inspect it and why he relied on his visual examination of it from the ground to be contradictory and unpersuasive and hence preferred the evidence of the Respondents to that of the Appellant.

[39] The Deputy Judge was also clearly persuaded by the evidence of the Respondents’ witnesses, who had been the subject of his ruling concerning whether they could give an opinion of how a roof inspection should be done. The Deputy Judge, at page 32 of this decision, states:

…However, it was Mr. Camm’s evidence that was the most persuasive on this point.

For Mr. Camm, the bottom line is that you simply cannot detect existing or potential problems with a roof unless you are on it. Given his extensive credentials and experience in the construction industry, I find his evidence to be the most credible and persuasive on this point. … Mr. Camm went on to state that if he encountered any impediments to his being up on the roof he would notify the homeowner cautioning that there were limitations and providing options and alternatives.

[40] The Deputy Judge went on to find that the Appellant had more efficacious methods of inspecting the roof available to him but did not use them. The Deputy Judge also found that the Appellant did not qualify his opinion that the roof was fine based on what he observed. His inspection was therefore flawed and he failed to report to the Respondents on problems with the roof or clues which could have led to problems developing in the future.

[41] The Deputy Judge concluded that the Appellant failed in his duty of care to the Respondents. He breached his contractual obligations to them and was also liable to them for the tort of negligent misrepresentation.

POSITION OF THE PARTIES

[42] Counsel for the Appellant raises a number of grounds for the appeal. He argues that the Deputy Judge erred in law and also committed a palpable and overriding error in his apprehension of the evidence. Counsel for the Appellant submits that it is an error that has serious implications for the integrity of home inspectors’ work in general.

[43] Firstly, counsel for the Appellant argues that the Deputy Judge erred in accepting the evidence of a witness (Mr. Camm), without having him properly qualified as an expert witness beforehand, even in the face of counsel objection, then accorded that witness expert witness status and gave excessive and undue weight to the testimony in coming to his conclusion.

[44] Secondly, counsel for the Appellant argues that the Deputy Judge mischaracterized the evidence of Mr. Wilson, the only qualified expert witness on home inspection practices and standards, as “self-serving”. Counsel for the Appellant argues that there is no justification on the evidence for coming to that conclusion and consequent rejection of the evidence. Mr. Wilson’s experience in the home inspection field and his associations with the CAHPI and OAHI organizations and standards is what qualified him to speak as an expert witness on the issue before the Court. Such witnesses have repeatedly been called and accepted by courts across the country to be expert witnesses in home inspection cases. Counsel for the Appellant made reference to a number of these cases in his argument and Factum at paragraph 66.

[45] Thirdly, counsel for the Appellant argues that having rejected the only admissible expert evidence as to the failure of the Appellant to conduct a reasonable and appropriate home inspection, the Deputy Judge lacked the evidentiary foundation for a finding in negligence. Consequently, the Respondents’ action must necessarily fail.

[46] Counsel for the Appellant argues that, effectively, the Deputy Judge concluded that the Appellant was required to walk on the roof if he was to meet the standard of care expected of a reasonably prudent home inspector, thus creating a new and unproven standard of care. This is not supported by the case law dealing with home inspection cases nor is it supported by the recognised OAHI and CAHPI which permit visual inspections of roofs.

[47] Finally, counsel for the Appellant argues that the Deputy Judge erred in concluding that the Appellant breached his contract to the Respondents by failing to report that there were latent problems with the roof. The contract signed by the Respondents contractually bound them to the application of the CAHPI and OAHI standards which provided for a visual examination of the roof. The contract itself provided for a “visual examination of the accessible features of the property”. The Respondents were present throughout the inspection and were well aware of the fact that the conclusions of the Appellant were based on a visual examination of the roof from the ground and in fact had a discussion about this. Based on the Respondents’ own evidence the damage to the roof were all latent defects that were beyond the scope of a non-intrusive visual home inspection contracted for.

[48] Counsel for the Respondents argues that the Deputy Judge did not err in law or in fact. As was the prerogative of the trial judge he thoroughly examined all of the evidence and accorded different weight to pieces of the evidence.

[49] Counsel for the Respondents argues that because home inspectors in Ontario do not require credentials or a licence from any association to carry out home inspections, evidence of home inspection standards and what might constitute a reasonable home inspection may also logically come from witnesses such as those presented by the Respondents, Mr. Radbourne and Mr. Camm.

[50] Counsel for the Respondents also submits that the Deputy Judge gave logical and cogent reasons for rejecting the evidence of Mr. Wilson as to the standard to follow.

[51] Counsel for the Respondents argues that there are two exceptions to the general rule that expert evidence is required to determine the question of professional negligence as established in the Ontario Court of Appeal decision, Krawchuk v. Scherbak, [2011] ONCA 352 at paras. 132-133 and 135. These are firstly, those cases in which it is possible to reliably determine the standard of care without the assistance of expert evidence, those cases where an ordinary person may be expected to have knowledge. Secondly, there are the cases where the conduct of the defendant in question is so egregious that it is obvious that his or her conduct has fallen short of the standard of care, even without knowing precisely the parameters of that standard. (See paragraph 70 of the Respondents’ Factum.)

[52] Counsel for the Respondents argues that the facts of this case clearly fall into both exceptions. Furthermore, counsel for the Respondents argues that, given the fact that the Deputy Judge relied on the home inspection contract, the OAHI standards and the evidence of all of the witnesses, he was well positioned to determine the question of negligence without the assistance of expert evidence.

[53] Counsel for the Respondents argues that the Deputy Judge applied the correct standard as to what would constitute a “reasonable visual inspection”, as the Deputy Judge so found as using a method that would result in a “careful and critical examination” of the roof. If there were to be any limitations the Appellant ought to have informed the Respondents of this in the contract, which he did not.

[54] Finally, counsel for the Respondents argues that his clients’ failure to plead negligent misrepresentation is not fatal to their claim. He argues that the Deputy Judge concluding that the Respondents, having pleaded negligence in a general manner, put the Appellant on sufficient notice of the claim. Furthermore the Deputy Judge correctly identified in law the five elements for negligent misrepresentation, all of which applied to the facts of this case.

[55] According to counsel for the Respondents, the Deputy Judge correctly identified the causal link between the damages suffered by the Respondents in having to replace their roof and the negligent actions of the Appellant in conducting the home inspection.

ANALYSIS

[56] With respect to the question raised in the last submission of counsel for the Respondents, as to whether the Deputy Judge erred in permitting the Respondents to make submissions on the tort of negligent misrepresentations in the case of where they had only plead negligence in a general manner, I can find no error in the Deputy Judge’s decision to permit the arguments to be made by Counsel for the Respondents.

[57] Based on a reading of Respondents’ Statement of Claim, the Deputy Judge was correct in finding that there were sufficient material facts pleaded to put the Appellant on notice that the tort of negligent misrepresentation was a live issue to the Respondents. In Small Claims Court it is not necessary to specifically plead specific legal principles to put the Appellant on notice. His Fresh As Amended Statement of Defence reflects that he was well aware of all of the Respondents’ claims against him. This was particularly so since both parties to the action had legal representation throughout.

[58] What is more problematic, however, and the ground on which this appeal must succeed, is the Deputy Judge’s decision and treatment of expert evidence.

[59] The transcripts of the evidence (Transcripts and Exhibit Book, vol. 1, tab 1-C) indicate that the witness called by the Respondents, Lorne F. Camm, was questioned about his knowledge of home inspections. He indicated that he was familiar with the way he did home inspections and what his personal standards were and proceeded to give evidence on his practice. The evidence showed that Mr. Camm had a degree in architectural technology from Algonquin College, had worked in the construction industry in various roles for a number of years, and operated his own construction management company. Mr. Camm had also done several home inspections, although it was not his choice of profession. He did not belong to any home inspection associations.

[60] When Mr. Camm began to testify to his own standards that he used in conducting home inspections, counsel for the Appellant objected submitting that counsel for the Respondents was attempting to establish through expert evidence a standard of house inspections, namely, by way of a witness who was not qualified, nor sought to be qualified, as an expert witness to give such opinion and without notice to the Appellant.

[61] Without hearing from counsel for the Respondents, the Deputy Judge ruled on the objections. I understand his ruling to be that it was not a question of admissibility of expert evidence, hence, presumably not a question of the admissibility or inadmissibility of a qualified expert witness to give an opinion but rather lay evidence of someone who has done home inspections whose testimony would be weighed along with all the other evidence. Counsel for the Appellant accepted the ruling and proceeded to cross-examine Mr. Camm accordingly. The gist of Mr. Camm’s evidence was that one cannot possibly do a proper roof inspection without going up onto the roof.

[62] Upon reading the reasons of the Deputy Judge, what he concluded relating to Mr. Camm’s and Mr. Radbourne’s evidence was, in my view, something substantially different in law. At pages 26 and 27 of his decision the Deputy Judge states:

As the trial proceeded, the Defendant challenged that each of the Plaintiff’s witnesses were not properly qualified as expert witnesses and as such their evidence should not be admitted. It should be noted that the Plaintiffs did not object to the Defendant’s witnesses being qualified as experts. I did not disqualify any of the Plaintiff’s witnesses giving evidence as experts, and I chose to caution that I would accord such weight to their evidence that I thought would be appropriate in all the circumstances.

The issue of whether or not the witness is qualified to give an opinion on the subject is governed by the test in R. v. Marquard, (1993) 1993 (SCC), S.C.J. No. 119, 85 C.C.C. (3d) 193: does the witness possess special knowledge or experience going beyond that of the trier of fact? This is decided on the balance of probabilities: R. v. Terceira, (1998) 1998 (ON CA), O.J. No. 428 (C.A.).

In each case, I was satisfied that the witness testifying had special knowledge or experience on the main issue in the case and that the court would benefit from hearing such witness testify. One of the main issues in this case is: what is the standard for inspection of roofs that ought to be utilized in order to provide a valuable report on the roof’s condition to a prospective homeowner? The Defendant’s position throughout was that the standard to be followed is the OAHI’s and that he followed that standard. The issue becomes: is that the standard or is there another standard that ought to be followed? To disallow others with special knowledge or experience in the business of construction, contracting and roofing to testify on the very matter at issue would leave the court with only one perspective and one that could be characterized as being self-serving.

The issues of expertise and admissibility are issues of law to be decided by the trial judge. The issue may be capable of determination at the outset of the expert’s testimony or even before the evidence begins (Dulong v. Merrill Lynch Canada Inc., 2006 (ON SC), [2006] O.J. No. 1146 80 O.R. (3d) 378 (S.C.J.) at para. 6 ff), but may have to await later evidence which reveals the strategy of the opposing party: R. v. K. (A.), 1999 (ON CA), [1999] O.J. No. 3280 (C.A.).

In accordance with these principles, I allowed these witnesses to testify with a view to hearing and analyzing what each had to say, and then according to their testimony such weight appropriate in all the circumstances.

[63] Firstly, whether the Respondents challenged the Appellant’s request to have their expert witnesses qualified or not is irrelevant to the objection raised by counsel for the Appellant regarding the nature of Mr. Camm’s evidence. Secondly, the Deputy Judge in stating how he dealt with Mr. Camm’s evidence referred to the test established in the case of R. v. Marquard, supra, and applied that test to conclude that Mr. Camm had special knowledge on the main issue before him which was the standard for inspection of roofs that ought to be expected of a home inspector for the purpose of evaluating the Appellant’s conduct in this case. The Deputy Judge was without a doubt treating Mr. Camm’s evidence as that given by an expert witness without having qualified him as an expert entitled to give an opinion about what standard ought to be applied to the circumstances of this case, in response to the objection raised by counsel for the Applicant. In the result, what the Deputy Judge indicated at trial relating to how he would treat the witness Mr. Camm was substantially and legally different than what he ultimately stated in his reasons. What he did was an incorrect application of the law relating to expert witnesses.

[64] Furthermore, it is evident from the Deputy Judge’s reasons that the evidence of Mr. Camm was pivotal to his conclusions concerning the standard and duty of care ultimately imposed on the Appellant. This was not simply a consideration of lay opinion evidence. It was the basis for his finding of negligent misrepresentation against the Appellant.

[65] I agree with the submissions of counsel for the Appellants that in order to come to his conclusions about the negligence of the Appellant, the Deputy Judge required some accepted expert evidence as to the failure of the Appellant to conduct a reasonable home inspection for the Respondents to succeed in their action. (See Rayne v. Martin, [2006] B.C.J. No. 2040 and LeBoutillier v. Jacobs, [2008] O. J. No 4065 (Ont. S.C.J.).) In rejecting the only expert evidence he had on a standard of care for home inspectors, the Deputy Judge did not have the necessary evidence to come to the conclusions which he did. He had before him evidence of the contractual reference to the OAHI and the CAHPI standards which permitted visual inspections of a roof.

[66] I can take no issue with the Deputy Judge’s prerogative in deciding what evidence to accept or reject. In this task he is to be accorded appropriate deference. For the reasons given by him he rejected the evidence of the Appellant and his expert evidence Mr. Wilson. There is no question that there are aspects of the testimony of these two witnesses that can be characterized as “problematic”.

[67] Nonetheless, a finding that a witness’s evidence is “self-serving” is a strong statement and ought to be supported by specific reference to the evidence. This was not done by the Deputy Judge. Nor can my examination of the Appellant’s evidence and that of Mr. Wilson persuade me of that apprehension of their evidence. The testimonies of the Applicant and of Mr. Wilson were clearly in support of a particular conclusion, namely that the standard to be applied to the facts of the case ought to be those endorsed by the OAHI and the CAHPI. Both these witnesses had an association with these organizations. They were testifying for one side of this litigation as were the witnesses presented by the Respondents. This alone, in my view, does not reasonably lead to the conclusion that their evidence is “self-serving”.

[68] The position advanced by the Appellant at the trial has found favour with other courts which extends beyond the individual interests of the Appellant in this case. As counsel for the Appellant submitted the standard advanced by the witnesses for the Appellant, namely that in certain circumstances visual home inspections are an acceptable standard to be imposed has been raised and accepted in other cases. (See Brownjohn v. Ramsay, 2003 BCPC 2, [2003] B.C.J. No. 43 (Prov. Ct.); Rayne v. Martin, supra, and Biggs v. Harris (c.o.b. Harris Homes Inspections), [1999] O.J. No. 4831 (S.C.J). The Deputy Judge does not seem to have given any consideration to this.

[69] In the final analysis, because of this, I am not persuaded that the Deputy Judge’s conclusions about what standard the Appellant ought to have followed, and the Appellant’s failure to conduct a reasonable home inspection are correct and fair.

CONCLUSION

[70] For all of these reasons I would allow the appeal.

[71] An order will go setting aside the judgment inclusive of the costs award with an order that judgment be entered in favour of the Appellant, dismissing the action.

[72] Counsel have agreed that costs should be fixed at $5,000 and be awarded to whoever succeeds on this appeal. There will, therefore, be an order awarding costs to the Appellant payable by the Respondents, fixed in the amount of $5,000.

M. Linhares de Sousa J.

Released: November 18, 2013

2013 ONSC 6989

COURT FILE NO.: 08-DV-1415

DATE: 2013/11/18

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Linhares de Sousa J.

BETWEEN :

ANTHONY CRESSWELL-JONES and

JEANNA CRESSWELL-JONES

Plaintiffs (Respondents on Appeal)

– and –

RAYMOND SEGOUIN, carrying on business under the firm name and style as “About the House Home Inspection”

Defendant (Appellant)

REASONS ON APPEAL

M. Linhares de Sousa J.

Released: November 18, 2013