CITATION: Velez v. Saggu, 2021 ONSC 4896
COURT FILE NO.: DC-18-054 (Brampton)
DATE: 20210709
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Dario Velez
Appellant
-and-
Kuljit Saggu
Respondent
Satish Mandalagiri, for the appellant
Kuljit Saggu, acting in person
Heard: March 26, 2021 by video conference
Chown J.
REASONS FOR DECISION
[1] This Small Claims Court appeal arises from an agreement between the parties for restoration work on a 1986 Ford Bronco. The appellant, who was plaintiff in the action, says the work was incomplete and of poor quality. He had paid a series of deposits for the work. He claimed his money back plus compensation to remedy allegedly defective and incomplete the work. The respondent brought a defendant’s claim, seeking to be paid for the balance of the contracted price.
[2] The respondent was entirely successful at trial.
Standard of Review
[3] The standard of review on a question of law is correctness: Housen v. Nikolaisen, 2002 SCC 33 at para. 8. For questions of fact, findings “are not to be reversed unless it can be established that the trial judge made a ‘palpable and overriding error’”: Ibid., at para. 10.
[4] Questions which involve applying a legal standard to a set of facts are questions of mixed fact and law. Where there is no extricable error in principle, a trial judge’s findings of this nature should not be overturned absent palpable and overriding error: Housen, at para. 36; Hryniak v. Mauldin, 2014 SCC 7 at para 81.
Grounds for Appeal
[5] The grounds for appeal are stated differently in the notice of appeal and the factum. I will group, recite and review each ground of appeal as articulated in both the notice of appeal and the factum.
Erroneous Conclusion as to Scope of Contract
[6] A primary assertion of the appellant is that the trial judge erroneously concluded that the respondent completed the contracted work. This ground of appeal is found in grounds 1 and 5 in the notice of appeal and ground (b) as listed in the factum, articulated as follows:
That the learned trial judge has made an error in law and on facts by failing to consider that the defendant has breached the contract by not performing the necessary and proper repairs required for the vehicle.
The learned trial judge has made a further palpable error when she granted for the judgment to defendant for the entire amount of the contract despite the fact that the work was not completed. [sic]
[T]here was a palpable and overriding error in fact and law made by the Deputy Judge by … Failing to evaluate the quality of work that was actually done against the reasonable expectation of Mr. Valez [sic] and representations of Mr. Saggu and the scope of the original contract.
[7] The appellant contends that, minimally, the agreement was that the vehicle would be driveable after the agreed-upon work, and the vehicle was not driveable but rather it had to be towed from the respondent’s premises back to the appellant’s premises.
[8] Mr. Mandalagiri pointed me to paragraph 12 of the trial judge’s reasons, where she said the respondent “testified at trial that there was no discussion about making the vehicle driveable or about a safety inspection.” Mr. Mandalagiri then took me to the trial transcript where the respondent acknowledged in his re-examination that “the understanding was the vehicle would be in drivable condition.” He argues that the trial judge misapprehended the evidence, and this was a palpable and overriding error.
[9] The suggestion is that there was an agreed price to make the vehicle drivable and the vehicle was not made drivable, so there was a breach of contract, and that the trial judge misunderstood this aspect of the evidence. This is an oversimplification.
[10] I have reviewed the transcript for the basis of the trial judge’s statement that the respondent “testified at trial that there was no discussion about making the vehicle driveable or about a safety inspection.” The respondent did say in his examination in chief that a safety or emissions test was not part of the agreement and was “never discussed.” He was then asked if it was expected that the vehicle would be drivable after his restoration work, and he said:
The expectation was that the scope of work that would be completed within the agreement – I’m not sure what his expectation would be on that.
[11] I accept that the trial judge misdescribed this evidence. She thought he said there was no discussion on the point, when his evidence in chief implies that he was not sure there was discussion on the point. He also later acknowledged there was an understanding that the vehicle would be in driveable condition after his work.
[12] I also accept that there is an inconsistency in the respondent’s evidence, but the discrepancy is relatively minor. After saying “the understanding was the vehicle would be in drivable condition,” the respondent immediately went on to say:
… If we were able to fulfill the contract and had agreement to the additional amounts that were required, I have no doubt that that would have been completed. The additional amount required was less than 10 percent of the – the initial quote, which I don't think is an unreasonable amount. So, but based on not being able to agree to that, we weren't able to – to complete it to his satisfaction.
Q. So, in your opinion, if you were given the funds to complete the project to its full extent, including the additional parts that you had outlined in your email, you – do you believe that the car would have been on the road in working condition?
A. Absolutely.
Q. Did you try your best to restore the vehicle to full working condition?
A. I did try to make Mr. Velez happy with the outcome of the vehicle, even if it did mean taking on additional expenses or recovering costs at my own expense, to an extent where I felt he wasn't being reasonable in his approach as well.
[13] Other evidence strongly supports that the appellant made serious efforts to make the appellant happy. In the end, the appellant took the vehicle before the work was done at a point when the respondent had done a great deal of work over a period of about a year and a half. The appellant had paid deposits totalling $17,500 when he picked up the vehicle but by that point the respondent had paid about $17,000 for parts and work that was outsourced (and which the appellant had agreed would be outsourced at his own extra expense). The appellant had approved the work from time to time as the work was done. The appellant had added extras to the work. The scope of work in the initial agreement had changed. Again, it is an oversimplification to say the respondent breached the contract by failing to make the vehicle drivable.
[14] The appellant never paid the revised agreed contract price of $20,910. He never paid for the extras that had been agreed upon. The expert report said the value of the work done was $31,100, even with deductions for the deficiencies. The appellant himself, who works in the industry, acknowledged that he would have charged $27,000 to $30,000 for the work.
[15] The trial judge did not mention the inconsistency in the respondent’s evidence in chief and in re-examination. However, the trial judge is not expected to recite every detail of the evidence or even every inconsistency in the evidence. The trial judge’s misstatement of the evidence was minor and the inconsistency in the respondent’s evidence on this point is of little significance. The trial judge was satisfied that the appellant received more than full value for the amount he paid. She said he “received much more than he bargained for.” Her conclusion is grounded in the evidence. It would be wrong for an appeal court to interfere with her decision on this basis.
Expert Report
[16] Another major assertion of the appellant is that the trial judge improperly admitted and made improper use of the expert report prepared by Dean Renwick. This ground of appeal is found in ground 3 of the notice of appeal and ground (c) in the factum, articulated as follows:
The learned trial judge has made a further error law when she considered the document supplied as an expert report without duly qualifying the expert as required in law.
[T]here was a palpable and overriding error in fact and law made by the Deputy Judge by … Allowing the submissions of an Expert Report without qualifying the Expert or hearing his testimony as an expert witness (the expert was never called).
[17] The first problem with this argument is that, at trial, the appellant did not object to the introduction of the report into evidence. In fact, it was the appellant who introduced the report.
[18] The trial judge said at para. 29 of her reasons that the report:
was prepared for the defendant and filed as part of the plaintiff’s evidence. Both parties relied on those parts of the report that they believed supported their position.
This is fully accurate. The transcript reveals that the appellant’s representative referenced the report near the beginning of the appellant’s examination in chief. He said: “I am actually relying on a – on the expert report that is being put forth by the defence, and I think it’s already filed in court, if I 'm not mistaken.”
[19] The report was presumptively admissible, and the trial judge would have needed good reason to exclude it. Small Claims Court Rule 18.02 says:
18.02 (1) A document or written statement or an audio or visual record that has been served, at least 30 days before the trial date, on all parties who were served with the notice of trial, shall be received in evidence, unless the trial judge orders otherwise.
(2) Subrule (1) applies to the following written statements and documents:
The signed written statement of any witness, including the written report of an expert, to the extent that the statement relates to facts and opinions to which the witness would be permitted to testify in person.
Any other document, including but not limited to a hospital record or medical report made in the course of care and treatment, a financial record, a receipt, a bill, documentary evidence of loss of income or property damage, and a repair estimate. [Emphasis added.]
[20] I agree with Mr. Mandalagiri that there is still a need to qualify an expert witness in Small Claims Court, and agree that a statement can only be received in evidence “to the extent that the statement relates to facts and opinions to which the witness would be permitted to testify in person.” However, at trial, the appellant did not challenge the qualifications of the expert. The qualifications of the expert are not set out in detail in the report or in a separate CV, but on its face the report indicates that the author was the president of “Antique & Classic Auto Appraisal Service,” and that the company did “insurance industry approved appraisals” and trial consultation, and was a member of the Professional Association of Vehicle Evaluators. The expert made some very detailed and substantive observations about the vehicle, fairly pointing out and agreeing with much of the list of deficiencies asserted by the apellant, as the court would expect of an expert. Bearing this in mind, and with both sides relying on the report, the trial judge was free to accept the report as being from a qualified expert and to give the report or any parts of the report the weight she considered appropriate.
[21] The appellant made a tactical decision at trial to file the report and rely on parts of it. He cannot now claim the trial judge erred by receiving it in evidence and relying on it.
Ground 4 in the Notice of Appeal and Ground (d) in the Factum
[22] The appellant makes a related but different assertion of error on the part of the trial judge, as follows:
The learned trial judge made a further error when she accepted and relied upon only one portion of the evidence of the alleged expert, that there is value for money, but she failed to appreciate the other portion of the report that clearly states that work that was confirmed to have been completed and billed by the defendant was in fact not completed and thus the trial judge has made a palpable and overriding error requiring interference by the appellate court.
[T]here was a palpable and overriding error in fact and law made by the Deputy Judge by …Only relying on part of the Expert Report rather than looking it as a whole.
[23] Juries are routinely told that they may accept all of a witness’s evidence, some of it, or none of it. The same applies to judges.
[24] There is no basis for the assertion that the trial judge “failed to appreciate the other portion of the report that clearly states that work that was confirmed to have been completed and billed by the defendant was in fact not completed.” I reviewed the evidence on this point and note that several of the items that the expert identified as not completed were addressed in the evidence of the respondent, who pointed out they were not done because they were not included in the contract. For example, at page 19 of the trial transcript from day 2 of the trial, the respondent said the bumper, mouldings, windshield spray nozzle and windshield were not part of the agreement. This evidence is consistent with the agreement.
[25] The trial judge addressed this. She said:
Mr. Renwick would not have known, nor did he offer any opinion, as to whether the deficiencies he found arose from work that was included in the contract or done by third parties, nor would he have known that Mr. Velez inspected and approved some of the work that he later claimed was deficient.
[26] The expert’s report did not specifically consider whether the items in the list of deficiencies were included in the contract. He did say he was not given information as to the standard of quality that was agreed upon. In this regard, the evidence of the expert and the evidence of the respondent matched and did not detract from the respondent’s position.
Ground 2 in the Notice of Appeal and Ground (a) in the Factum
[27] The other grounds of appeal were not developed in the materials or in oral argument, so I will not address them other than to say they have no foundation.
Disposition
[28] The appeal is dismissed. If costs are sought by the respondent, he may provide written submissions on costs within 14 days. The appellant may respond within 10 days of receiving his submissions.
“Justice R. Chown”
Released: July 9, 2021