Citation and Court Information
CITATION: 575864 Ontario Ltd. v. Ridley Windows and Doors Inc., 2022 ONSC 4329
DIVISIONAL COURT FILE NO.: 901/21
DATE: 20220721
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
575864 Ontario Ltd.
Deborah Sawyer, permitted to represent the corporate Appellant
Appellant
– and –
Ridley Windows and Doors Inc.
Richard Hammond, for the Respondent
Respondent
HEARD at Toronto (by videoconference): July 21, 2022
Oral Reasons for Judgment
MATHESON J. (Orally)
[1] This is an appeal from the October 4, 2021 decision of Deputy Judge H. Perlis of the Small Claims Court. The appellant was the plaintiff in that claim, which was dismissed with costs by the Deputy Judge.
[2] Ms. Deborah Sawyer has been given permission to represent the corporate plaintiff on this appeal even though she is not a lawyer.
[3] Briefly, the appellant purchased a property in Toronto and undertook renovations with the assistance of a general contractor. The respondent, Ridley Windows and Doors Inc., was retained to install some replacement windows. A dispute arose because water was getting into the building. The appellant took the position that the new windows were the cause of the water influx and the resulting water damage.
[4] A trial took place in the Small Claims Court before the Deputy Judge who received both documentary evidence and heard from a number of witnesses.
[5] In the trial decision, the Deputy Judge held that:
(1) the appellant did not prove that the new windows were the cause of the water influx;
(2) the appellant did not prove any damages; and,
(3) in the alternative, the claim was brought late and therefore statute barred by a two-year limitation period.
[6] This appeal was then commenced. There is no issue about the standard of review. As a statutory appeal, it is as set out in Housen v. Nikolaisen, 2002 SCC 33 [2002] 2 S.C.R. 235. On questions of law, the standard is correctness, on questions of fact, the standard is palpable and overriding error and on questions of mixed fact and law, there is a spectrum. Where there is an extricable legal principle, the standard of review is correctness and otherwise there must be palpable and overriding error.
[7] The costs decision is also challenged on this appeal. The Deputy Judge awarded double the 15% formula due to an offer to settle, as well as $200 for disbursements, totaling $7,100.
[8] Leaving aside costs for the moment, I note that the appellant must show that the Deputy Judge erred in a number of determinations in order to succeed on the appeal. The appellant would have to show that the Deputy Judge erred in his finding of no causation and his finding of no damage. Even if that was accomplished, the appellant would have to show that the Deputy Judge erred in his alternative finding that the claim was brought late.
[9] I begin with the subject of damages because the Deputy Judge’s finding of no damage was not challenged on this appeal. In response to my questions, the appellant has explained that she is not seeking any monetary compensation from the respondent as a result of her appeal. She has proceeded with her appeal because, for a number of reasons, she is dissatisfied with the Deputy Judge’s approach to the evidence put forward by the appellant at the trial.
[10] Given the finding of no damage, which is not challenged on this appeal, the other issues that have been challenged will not give a remedy to the appellant even if overturned. However, given this self-represented party’s reasons for pursuing the appeal, I will briefly address the other issues that have been raised.
[11] I begin with causation. The Deputy Judge found that the appellant had not met its onus to prove that the windows were the cause of the damages claimed. The appellant has raised a number of points, submitted as errors in the Deputy Judge’s decision, all which are findings of fact.
[12] I will highlight the main submissions as follows. The appellant submits that the Deputy Judge erred in saying that Mr. Gibson’s interpretation was not based on “specific documentation” because there were a number of documents put forward in the trial record. The appellant further submits that the Deputy Judge erred in relying too heavily on the evidence of Mr. Wylde and put too much emphasis on the evidence that the appellant had not asked for recessed windows. The appellant further submits that Mr. Gibson did review the area above the windows and that the Deputy Judge should have considered other causes for water damage such as someone spilling a bucket of water. The appellant also raises the long time gap between the testimony of some of these witnesses and essentially suggests that gap resulted in the Deputy Judge failing to properly have regard for all of the trial evidence. These are all fundamentally challenges to the factual findings of the Deputy Judge, some of which are based on a perceived inadequacy in the reasons for decision of the Deputy Judge. It is not necessary for all of the evidence to be expressly referred to in the reasons for decision.
[13] I have considered all the issues raised about the evidence and find that there was evidence that the Deputy Judge could have regard for in support of all of the challenged findings of fact. Further, the appellant has not shown that the Deputy Judge made a palpable and overriding error with respect to any of these matters.
[14] I then move very briefly to the limitation defence, which was accepted as an alternative defence by the Deputy Judge.
[15] As set out in the reasons for decision, the Deputy Judge made his finding based upon a May 1, 2016, email from Ms. Sawyer to Mr. Wylde. The subject line for that email is “EEEEK! Our new windows leak!” and it goes on to explain that there were leaks observed and raises issues in that regard. There is then an email chain and there are other steps that the appellant relies on in support of the appeal on the limitation finding. That ground of appeal is partly based on subsequent evidence and also based on the decision in Brown v. Baum, 2016, ONCA 325. That decision was not put before the Deputy Judge at trial, but on this appeal the appellant seeks to analogize the plaintiff’s situation with the windows and the attempts to fix the windows to the facts in that decision.
[16] Given my findings with respect to damages and causation and given that Brown was not raised below I see no useful purpose in making a decision now with respect to the limitation issue. It will not determine the outcome of this appeal in any event.
[17] However, I do need to deal with the issue raised with respect to the costs order.
[18] In his costs order, the Deputy Judge exercised his discretion to award double costs due to an offer to settle. There is no issue that the offer to settle, which was for the payment of $4,000 by the respondent, was better than the dismissal of the claim. Therefore, there is no issue that under Rule 14.07(2) the Deputy Judge had the discretion to award up to double costs. He decided to do so. The appellant submits that there were good reasons to pursue the claim that should have been sufficient to result in an order declining double costs. I respect that the appellant has put forward reasons, but in the end the appellant is essentially saying that the Deputy Judge should have exercised his discretion differently, and has not put forward a reviewable error.
[19] I therefore conclude that this appeal is dismissed. As between the parties, there shall be a costs order in favour of the respondent in the agreed on all-inclusive amount of $5,000.
MATHESON J.
Date of Oral Reasons for Judgment: July 21, 2022
Date of Written Release: July 26, 2022
CITATION: 575864 Ontario Ltd. v. Ridley Windows and Doors Inc., 2022 ONSC 4329
DIVISIONAL COURT FILE NO.: 901/21
DATE: 20220721
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
575864 Ontario Ltd.
Appellant
– and –
Ridley Windows and Doors Inc.
Respondent
ORAL REASONS FOR JUDGMENT
Matheson J.
Date of Oral Reasons for Judgment: July 21, 2022
Date of Written Release: July 26, 2022