Prohaska v. Howe, 2016 ONSC 48
CITATION: Prohaska v. Howe, 2016 ONSC 48
DIVISIONAL COURT FILE NO.: DC-14-000114-00
DATE: 2016 01 04
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LeMay J.
BETWEEN:
John William Prohaska
Appellant
– and –
James Howe
Respondent
J. Winny, Counsel for the Appellant
N. Lovell, Counsel for the Plaintiff
HEARD: December 4, 2015
Reasons for Decision
[1] In 2005, Mr. John Prohaska (“the Appellant”) contracted with James Howe (“the Respondent”) to have some work done on the Appellant’s cottage. Some work was performed, including digging a foundation for the basement. The Appellant claims that the foundation was dug improperly, in that it is below the water table, and the basement floods every spring. The Appellant claimed damages to repair the basement in the sum of $10,000.00.
[2] The Respondent claimed that the Appellant owed an additional $3,000.00 for unpaid fees for the work that the Respondent had performed. This claim was commenced in April of 2008.
[3] After three days of trial, Deputy Judge G. Barycky rendered an oral decision on October 22nd, 2014 dismissing both the Appellant’s claim and the Defendant’s claim. The Respondent does not appeal the dismissal of its Defendant’s claim.
[4] The Appellant appeals Deputy Judge Barycky’s decision on the following grounds:
a) The trial judge erred in law by ruling that expert evidence was inadmissible in Small Claims Court in the absence of prior service of an expert’s report.
b) The trial judge exceeded his jurisdiction by adjourning the trial and ordering the Plaintiff to obtain and serve an expert report.
c) The trial judge failed to apply section 27 of the Courts of Justice Act when he ruled that the Plaintiff’s expert evidence was inadmissible.
d) The trial judge’s costs award was excessive because he misinterpreted Rule 14.07 of the Small Claims Court Rules and violated section 29 of the Courts of Justice Act.
[5] I did not call on the Respondent with respect to the first two issues. My reasons for dismissing the appeal on those grounds are set out below. I would also dismiss the appeal on the issue of whether the trial judge erred in failing to apply section 27 of the Courts of Justice Act. I would allow the appeal on costs to the extent that I would reduce the amount of costs payable by the Appellant to the Respondent for the trial by the sum of $1,715.00 to $2,780.95. These costs are due and payable within 30 days of the release of these reasons.
[6] Before I turn to the facts, I should address one matter that arose at the outset of the appeal