CITATION: 2021 ONSC 6105

DIVISIONAL COURT FILE NO.: 617/19

DATE: 20210915

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

FOCAL ELEMENTS LTD.

Plaintiff/Respondent

– and –

BOBAK ALVAND and PARISA ALVAND

Defendants/Appellants

Adam Wainstock, for the Plaintiff/Respondent

Steven K. Stauffer, for the Defendants/Appellants

HEARD: in Toronto by videoconference on September 13, 2021

PENNY J.

REASONS FOR JUDGMENT ON APPEAL

Overview

[1] This is an appeal from the judgment of deputy judge C.L. Bucci of the Small Claims Court. Focal Elements advanced a claim for payment under a contract to perform construction services, specifically, the framing work for the defendants’ home. The Alvands counterclaimed for deficiencies in work performed.

[2] Following a 9 day trial, the trial judge allowed the Focus claim and allowed the deficiency claim in part. The net result of the judgment was an award in favour of Focus of $18,328.52 and an award in favour of the Alvands of $2,360, for a net award to Focus in the amount of $15,968.52. The trial judge awarded costs to Focus in the further amount of $5,703 inclusive of fees, disbursements and taxes.

[3] The Alvands retained the services of Focal to provide framing materials and labour for a construction project on property owned by the Alvands. A written agreement was signed on March 19, 2015 for a total contract price of $112,520 plus HST. Focus agreed to perform the following work:

supply of labour and materials to rough-frame the residence as per the drawings, inclusive of trusses; supply and install structural steel, inclusive of posts, as per the plan; supply all fasteners; supply lift equipment and material handling.

In addition, the contract provided that all “extra” work requested was to be agreed upon, in writing, prior to the commencement of such work.

[4] It was not in dispute that the Alvands had paid a total of $116,000 to Focal by the time the contract was terminated.

[5] The parties’ relationship broke down. Focal sued for $18,328.52 consisting of the balance of the contract price, $11,028.52 (this was not in dispute), and for three “extras” (form footings - $ $3,970; window angle iron - $ 2,570; and re-framing of coffered ceiling - $940) totalling $7,300. The Alvands counterclaimed for deficiencies in excess of $40,000 but, at trial, capped the amount claimed at $25,000 due to the Small Claims Court monetary jurisdiction.

[6] The main issue on the “extras” was whether they were included in the contract price or not. In finding that the extras were not included in the contract, the trial judge accepted the evidence of the contractor, Mr. Tawachi, and rejected the evidence of the Alvands. Although these items were not the subject of individual written agreements (as contemplated by the contract), the trial judge nevertheless found as a fact that the work was agreed to, was performed and that the amounts claimed by Focal were reasonable in the circumstances.

[7] The main issues regarding the deficiency claims of the Alvands were: a) whether there were deficiencies in the performance of the work; and b) whether, in any event, the Alvands damages claim resulting from these deficiencies had been proven. The trial judge rejected the evidence of the Alvands with respect to the bulk of the deficiencies and found that most of the alleged damages had, in any event, not been proved. The trial judge did allow certain elements of the Alvands’ deficiency claim totalling $2,360, to be set off against the amount awarded to Focal.

[8] The Alvands assert three errors in the trial judge’s conclusions:

(1) the trial judge erred in law by placing the burden of proof on the Alvands in connection with Focal’s claim for extras;

(2) the trial judge ignored important evidence in support of the Alvands’ position on the extras and the deficiencies and analyzed the evidence according to inconsistent standards; and

(3) the trial judge’s findings of credibility were not supported by appropriate analysis and again relied on the application of an inconsistent standard.

Standard of Review

[9] The standard of review on appeal set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 applies. Errors of law are reviewed on the correctness standard. Errors of fact, and mixed fact and law, are reviewed on the standard of palpable and overriding error, unless there is an inextricable issue of law, in which case that issue of law is reviewed on a correctness standard.

Burden of Proof

[10] The Alvands focus on one sentence from para. 17 of the trial judgment where the trial judge stated, “I am not satisfied on a balance of probabilities that the cost [of the extras] was included in the original code signed a contract.” The Alvands argue that by formulating the question this way, the trial judge inverted the burden of proof. Focal was the plaintiff asserting a claim for payment based on additional work in excess of that included in the contract. The burden was, therefore, on Focus to prove that the extras were not included in the contract; the burden was not on the Alvands to prove that they were.

[11] While that sentence is infelicitously worded, it is clear, reading the judgment as a whole, that there was no inversion of the burden of proof. The trial judge’s analysis of the evidence shows clearly that the trial judge found that Focal proved that the extras for which it claimed payment were not included in the contract. The trial judge did not require the Alvands to prove that they were not.

[12] Virtually all the Alvands arguments on this point are devoted to a re-argument of whose evidence ought to have been accepted and what weight ought to be placed on the parties’ evidence. That is not the role of the court on appeal. Absent palpable and overriding error, the appellate court cannot overturn a trial judge’s findings on credibility or weight. There was ample evidence to support the trial judge’s findings that: a) the extras were not listed as work to be done in the original contract; b) the extras were agreed to orally; and c) the amounts claimed for this work were reasonable in the circumstances.

[13] The main focus of the Alvands’ oral submissions on this issue was that the amount charged for the extras was never agreed to in advance by the Alvands, contrary to the contract. The parties, therefore they say, were never ad idem.

[14] The amount to be charged for the extras was not an issue argued at trial. The Alvands’ position was that these improvements were already included in the total price under the contract. The trial judge disagreed. The Alvands advanced no alternative argument that if they were liable to pay for the extras, Focal had charged too much. In any event, the trial judge assessed the value of the extras, not only based on Focal’s standard rates, but on an assessment of quantum meruit. Counsel for the Alvands did not take the position on this appeal that the trial judge had no legal authority to determine value on this basis and, as noted, there was evidence to support the trial judge’s findings.

Misapprehension of Evidence

[15] As the Supreme Court emphasized in Housen, failure to discuss a relevant factor in depth, or even at all, is not itself a sufficient basis for an appellate court to reconsider the evidence. An omission is only a material error if it gives rise to the reasoned belief that the trial judge ignored or misconceived the evidence in a way that affected the ultimate conclusion. Further, the weight to be assigned to various pieces of evidence is essentially the province of trier of fact.

[16] In this case, the trial judge’s reasons contain a thorough summary of the viva voce evidence on the material points. She was in the best position to make factual findings and draw inferences and other factual conclusions from the evidence. I can find no basis for the conclusion that, in reaching the conclusions that she did, the trial judge made any palpable and overriding error of fact.

Credibility

[17] Of all the factual issues determined by a trier of fact, findings of credibility attract the greatest deference. Findings of fact grounded in credibility assessments are, therefore, particularly difficult to disturb on appeal. Credibility assessments are inherently partly subjective and reflect the life experience of judges and their own perceptions. Credibility assessments are also grounded in numerous, often unstated, considerations which only the trial judge can appreciate and calibrate: Waxman v. Waxman at para. 359.

[18] The trial judge’s reasons show that she was aware of the competing versions of events and that she considered all the evidence when making her credibility assessments and assigning the weight to be given to the evidence.

[19] I do not think the trial judge applied a different standard in her evaluation of the evidence. Rather, she merely evaluated different evidence from different witnesses and documents, having regard to those documents, the testimony of other witnesses, the inherent logic and plausibility of the evidence and the relative experience and reliability of the witnesses, given their unique circumstances.

[20] I cannot find that the trial judge applied inconsistent or unfair stands to the evidence, or that she made any palpable and overriding errors in her assessments of credibility.

Conclusion

[21] For these reasons, the appeal is dismissed.

Costs and other Matters

[22] The parties agreed that $10,000 to the successful was the appropriate amount of costs of the appeal. Costs are, therefore, ordered payable by the Alvands in the amount of $10,000 (all inclusive).

[23] The amounts ordered to be paid to Focal, with interest etc., shall be paid out of the funds held in trust by Focal’s counsel. The remaining funds shall be paid out to the Alvands.

Penny J.

Released: September 15, 2021

CITATION: 2021 ONSC 6105

DIVISIONAL COURT FILE NO.: 617/19

DATE: 20210915

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

FOCAL ELEMENTS LTD.

Plaintiff/Respondent

– and –

BOBAK ALVAND and PARISA ALVAND

Defendants/Appellants

REASONS FOR JUDGMENT on appeal

Released: September 15, 2021