Overview

[1] This is an appeal by the appellant/defendant Windsor Wall Forming Ltd., pursuant to s. 31(a) of the Courts of Justice Act,[^1] to a single judge of the Divisional Court, from the judgment of Deputy Judge K.F. Dycha of the Windsor Small Claims Court dated February 8, 2019, in which the court awarded damages of $14,300 to the respondent/plaintiff, RVR Concrete Inc.

[2] The claim arises out of a construction project.

[3] Mid-South Development, a land holding and development company (the “Developer”), owned a parcel of real property that it intended to develop for use as a new Chrysler minivan assembly plant. This building became known as the “TRW Building,” and the construction project to renovate the building became known as the “TRW Project.”

[4] In March 2015, the appellant/defendant Windsor Wall Forming Ltd. (“Windsor Wall”) successfully bid on a job to provide the footings, foundation walls, rebar, and concrete for the floor of the TRW Building.

[5] In turn, Windsor Wall approached and subcontracted with the respondent/plaintiff (that is, plaintiff by counterclaim), RVR Concrete Inc. (“RVR”), for the installation, finishing, and cutting of the main floor of the TRW Building.

[6] Windsor Wall also contracted with Essex Readymix Inc. (“Essex Readymix”) for the supply of concrete at the TRW Building.

[7] Litigation subsequently developed. In November 2015, Essex Readymix commenced an action against RVR in the Windsor Small Claims Court for amounts owing with respect to the supply of concrete.

[8] RVR then commenced what the Rules of the Small Claims Court[^2] call a “defendant’s claim” – that is, a counterclaim – against Essex Readymix and Windsor Wall. The judgment under appeal was made in determination of that defendant’s claim by RVR.

[9] In short, RVR provided a quote to install the cement floor at the TRW Building for $0.63 per square foot. The quote was not based upon taking extra or special measures to protect the substrate (i.e., the subgrade foundation). The Developer subsequently insisted upon the use of an alternative means for completing the job to protect the substrate. The alternative means included employing the use of slower, more costly motorized buggies, along with increased manpower. This demand was made on RVR after the job was quoted and the work had begun. RVR attempted to recover those costs from the Developer but to no avail.

[10] In a nine-page handwritten decision, the trial judge found that these additional costs had to be paid by Windsor Wall, who had contracted with RVR, and he granted judgment on RVR’s claim against Windsor Wall.[^3]

[11] The trial judge found there was no evidence of a contractual relationship between RVR and Essex Readymix, and he dismissed the defendant’s claim against Essex Readymix.[^4]

[12] Windsor Wall now appeals. Essex Readymix is not a party to this appeal.

[13] For the reasons that follow, I would dismiss the appeal of Windsor Wall.

Factual Background and Decision of the Trial Judge

[14] There is little disagreement between the parties on the actual underlying events in question, although there is some disagreement as to the characterization to be given to some of the events and the trial judge’s findings.

[15] At some point in March 2015, there was an initial meeting between the parties to discuss the terms of Windsor Wall’s subcontract with RVR. The trial judge found that this initial meeting took place in March 2015 at a Boston Pizza restaurant. It appears that Mr. Mario Liburdi attended on behalf of RVR, Mr. Chris Thompson attended on behalf of Windsor Wall, and Mr. Ross Coupe represented Essex Readymix.

[16] It is common ground that the parties entered into an oral agreement as to the essential terms of the subcontract with RVR at that initial meeting in March 2015. It is also common ground that the agreement was never reduced to writing.

[17] It was a term of the agreement that RVR would be paid $0.63 per square foot of concrete provided. The trial judge found that RVR “sought 68¢/square foot, but after negotiation, the parties agreed on 63¢.”[^5]

[18] Significantly, the trial judge made the following important findings of fact:

What is important to note is that neither party testified that at that initial meeting, there were any concern expressed about not being able to put cement trucks on the substrate. To put it another way, none of the parties suggested that the substrate had to be protected while the cement floor was being poured.

I find as a fact that the contract to install the floor for 63¢/square foot was not based on the fact that extra or special measures would be needed to protect the substrate.[^6] [Underlined emphasis in original.]

[19] The respondent states that in or about the week of April 13, 2015, it was learned that the substrate upon which the concrete was to be poured was frozen and supersaturated. As such, it appears that, due to the condition of the substrate, motorized concrete buggies would need to be used to adequately pour the cement and apply the proper finish.

[20] Accordingly, a subsequent meeting was held in mid-April 2015 to discuss the new method in which the concrete would need to be poured. That meeting was well attended. It appears that, among others, Mr. Mario Liburdi attended on behalf of RVR, Mr. Chris Thompson attended on behalf of Windsor Wall, Mr. Dino Maggio attended on behalf of the Developer, and Mr. Ross Coupe represented Essex Readymix.

[21] The trial judge made specific findings of fact concerning this subsequent meeting in mid-April 2015, as follows:

Importantly, there was a subsequent meeting in mid-April where the parties to this action, along with the general K’ter [contractor], and others met to discuss the job further. I find that time was running short. Mr. Thompson, on behalf of Windsor Wall Forming, testified that the means and method of installing the concrete was to be other than using trucks on the substrate. Mid-South, the developer, was insistent that such trucks not be used. Mr. Liburdi says that the rationale for making that decision was because the substrate was saturated. The rationale is not particularly important to the Court. What is important is that the Court accepts that this was the first time that [RVR] was told of this. The Court concludes that this is a material change in the methodology. Mr. Thompson admitted that using buggies would be a more expensive process. Common sense dictates that the most efficient and cheapest way of pouring the floor would be to have the trucks drive on the substrate and deliver it directly. Common sense would also dictate that the use of motorized buggies, which is how this job was completed, would be slower, more costly, in terms of manpower, and the additional expenses related to the buggies themselves.[^7] [Emphasis added.]

[22] Again, the terms of the parties’ understanding and agreement at this second critical meeting were not reduced to writing.

[23] The trial judge also made an express finding of fact that there was no complaint made by any party as to the quality or workmanship of the services provided by RVR, as follows:

It is important to note that the work of [RVR] was done to everyone’s satisfaction.[^8]

[24] To summarize the trial judge’s reasons: extra work was requested of the subcontractor; the subcontractor performed the extra work requested; the extra work was performed by the subcontractor to everyone’s satisfaction; but the subcontractor was not paid for the extra work that it had been requested to perform.

[25] Windsor Wall takes the position on this appeal, as it did at trial, that it is not obliged to pay RVR for the extra work that was requested of RVR and that was performed by RVR without complaint.

Standard of Review

[26] As reflected in para. 31 of Windsor Wall’s factum, there is no issue here concerning the applicable standard of review on appeal.

[27] It is trite law that the factual findings made by the trier of fact at first instance should not be overturned unless the appellant demonstrates that the trial judge committed some “palpable and overriding error.”[^9] As the Supreme Court of Canada said in its seminal decision in Housen v. Nikolaisen, the “palpable and overriding” benchmark is a “more stringent standard of review” requiring an appellate court to afford the trial judge a “high degree of deference.”[^10]

[28] Our Court of Appeal has explained the palpable and overriding error standard in the following terms:

The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result. A “palpable” error is one that is obvious, plain to see or clear: Housen at 246. Examples of “palpable” factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.

An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” error does not automatically mean that the error is also “overriding.” The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error[.][^11]

[29] In Kucyi v. Kucyi, as in other cases, our Court of Appeal provided an explanation of the rationale for why appellate courts ought to show deference to findings of fact made by the trial judge, as follows:

While counsel on an appeal rightly invite the court to carefully examine isolated parts of the evidence, it is the judge at first instance who saw and heard the whole of the narrative who is in the best position to make an assessment of whether an adjournment was sought. To paraphrase this court’s decision in Waxman v. Waxman, 2004 39040 (ON CA), [2004] O.J. No. 1765 (Ont. C.A.) at paras. 291-92, strong deference to the factual findings of the trial judge best strikes the balance between the goal of achieving individual justice and the need to preserve the overall effective administration of justice. Merely because an appellate court might view the evidence differently from the trial judge and make different factual findings is not a basis for concluding that the appellate court’s findings will be more accurate and its result more consistent with the justice of the particular case than the result achieved at trial. Thus, appellate courts must defer to all findings of fact drawn by the judge at first instance unless the court is satisfied that the finding was the product of a “palpable and overriding” error. That deference equally applies to inferences from the evidence: See L. (H.) v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401 (S.C.C.).[^12]

[30] The standard of review on a pure question of law is correctness. That is, on a pure question of law, “the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace the opinion of the trial judge with its own.”[^13]

[31] A question of mixed fact and law is also subject to the deferential palpable and overriding error standard, subject to the limited exception of whether an extricable error of pure law can be identified.[^14]

[32] Further, a case that turns on contractual interpretation involving questions of mixed fact and law engages the standard of palpable and overriding error.[^15]

Issues

[33] The appellant raises the following issues on appeal:

a. Did the trial judge err in finding liability on a ground that was not pleaded or advanced by the parties?

b. Did the trial judge err by failing to determine the issues raised in the pleadings?

c. Did the trial judge err in his assessment of damages?

Analysis

Did the trial judge err in finding liability on a ground that was not pleaded or advanced by the parties?

[34] In paras. 33-56 of its factum, Windsor Wall submits that the trial judge erred “by finding liability based on a ground that was neither pleaded nor advanced by the parties, … when he found that RVR Concrete was entitled to damages because of a ‘material change in the methodology.’” In particular, the appellant submits that the trial judge made an error of law “in finding liability based on a novel theory that was not pleaded, namely, a ‘material change in the methodology.’”

[35] There is no merit in this submission. Indeed, respectfully, the appellant’s argument fundamentally misapprehends the reasoning of the trial judge.

[36] As the contract between the appellant and respondent was never reduced to writing, the evidence before the trial judge as to the terms of the oral agreement was critical. At the trial of the action, three witnesses gave evidence before the deputy judge: Mr. Liburdi on behalf of RVR, Mr. Thompson on behalf of Windsor Wall, and Mr. Coupe on behalf of Essex Readymix. The trial judge had the benefit of hearing the witnesses’ viva voce testimony.

[37] In the course of his nine-page handwritten decision, the trial judge reviewed the two critical meetings when work to be performed by RVR was discussed and the parties’ understanding of what was to happen was shaped. The three witnesses who testified before the trial judge were all present at both of the two critical meetings.

[38] As reviewed above, the trial judge found that during the initial meeting in March 2015, the parties agreed that RVR was to be paid $0.63 per square foot of concrete. The trial judge expressly found that at the time the parties came to the agreement on the rate of payment to RVR, “none of the parties suggested that the substrate had to be protected while the cement floor was being poured,” and, as a result, the $0.63 per square foot of concrete rate to be paid to RVR was “not based on the fact that extra or special measures would be needed to protect the substrate.” The trial judge went out of his way to bring this point home in his decision, saying, that “what is important to note is that” none of the witnesses who testified before him said that there was any concern expressed at that initial meeting “about not being able to put cement trucks on the substrate.”

[39] To emphasize, the trial judge made a specific finding of fact that the price initially agreed upon was not based on any extra or special measures being needed to protect the substrate. There was an abundance of evidence before the trial judge to support that express finding of fact. It is entitled to high deference, and it has not been established, nor even suggested, by the appellant that the trial judge made any palpable and overriding error in making that finding of fact.

[40] However, as it turned out, precisely those conditions that the trial judge found did not underpin the agreement as to the price to be paid to RVR did, in fact, come to fruition. As it turned out, extra or special measures were in fact needed to protect the substrate. The Developer insisted on them at the second critical meeting, in mid-April 2015. It is clear that Windsor Wall agreed. Again, the trial judge made an express finding about the position taken by Windsor Wall at the second meeting. The trial judge found that: “Mr. Thompson, on behalf of Windsor Wall Forming, testified that the means and method of installing the concrete was to be other than using trucks on the substrate.”

[41] The trial judge, rightfully, was of the view that this was a significant change in the parties’ understanding of what was to happen. Again, he went out of his way to make clear to the parties that this was a significant change in the parties’ understanding, compared to their understanding at the time of contract formation. The trial judge expressly said: “[w]hat is important is that the Court accepts that this was the first time that [RVR] was told of this.” The original price was not based on any special measures having to be taken but, as it turned out, that was exactly what was thought to be needed – RVR was not to be permitted to use trucks on the substrate. Instead, the more expensive process of using motorized buggies was to be used. And it was in that vein that the trial judge concluded that, “this is a material change in methodology.”

[42] I would also pause to note that the trial judge made an express finding that Windsor Wall was well aware that this change in method would be a more expensive process. Again, Mr. Thompson testified on behalf of Windsor Wall at trial. The trial judge expressly found that, “Mr. Thompson admitted that using buggies would be a more expensive process.”

[43] Accordingly, the trial judge referred to the “material change in methodology” only to describe the significance of the change in the events, the parties’ understanding, and their agreement. He was in no way suggesting any novel theory of liability, as the appellant contends. It is not a “theory of liability” at all, novel or otherwise. It is not a cause of action. It is a description of the facts by the trial judge. It is the trial judge’s expression of the change in factual circumstances that occurred at the second critical meeting, in April 2015, as compared to the initial meeting. It is not a theory of liability; it is a description by the trial judge of the evidence before him. In short, it is a finding of fact.

[44] As I have said, in my view, the appellant’s argument, that is, that the trial judge’s finding that there was a “material change in the methodology” constitutes some theory of liability, fundamentally misapprehends the trial judge’s reasons for judgment.

[45] Given that the trial judge’s reference to the “material change in the methodology” was not some theory of liability or cause of action, it was not something that RVR was required to plead in its claim.

[46] Further, in considering Windsor Wall’s claim that the particulars of this claim were not specifically pled by RVR, I am mindful of the line of cases that have consistently held that a liberal and non-technical approach should be taken to pleadings in the Small Claims Court.

[47] Specifically, the courts have held that the rules surrounding parties’ pleadings in the Small Claims Court are less strict than those in other courts. In Kelava v. Spadacini, our Court of Appeal held that, “with respect to the pleadings, it has long been the case that a liberal, non-technical approach should be taken to the pleadings in Small Claims Court.”[^16]

[48] Our courts have also said that requiring “strict adherence to the rules of pleadings would be contrary to the role of the Small Claims Court in the administration of justice.”[^17] Our courts have instructed that a “liberal, non-technical approach should be taken to pleadings” in the context of the Small Claims Court.[^18]

[49] In 936464 Ontario Ltd. v. Mungo Bear Ltd., the court rejected the defendant/appellant’s argument that it was an error in law for a deputy judge of the Small Claims Court to have granted judgment based on quantum meruit when the claim, as pleaded, was one for breach of contract. In dismissing the appeal, Heeney J. of the Divisional Court very clearly said that the higher standards of pleading required in the Superior Court of Justice are simply unworkable in the Small Claims Court:

More important, though, is the fact that the case at bar was litigated in the Small Claims Court. The higher standards of pleading in the Superior Court are simply unworkable in the Small Claims Court, where litigants are routinely unrepresented, and where legal concepts such as the many varieties of causes of action are completely foreign to the parties. Essentially, the litigants present a set of facts to the Deputy Judge, and it is left to the Deputy Judge to determine the legal issues that emerge from those facts and bring his or her legal expertise to bear in resolving those issues.[^19]

[50] Relying on the Newfoundland Court of Appeal in Popular Shoe Store Ltd. v. Simoni, Heeney J. adopted that court’s “practical approach to the manner in which justice is and must be dispensed on a day-to-day basis in our Small Claims Court,” as follows:

A Small Claims Court judge has a duty, on being presented with facts that fall broadly within the umbrella of the circumstances described in the Statement of Claim, to determine whether those facts constitute a cause of action known to the law, regardless of whether it can be said that the claimant, as a matter of pleading, has asserted that or any other particular cause of action. Subject to considerations of fairness and surprise to the other side, if a cause of action has been established, the appropriate remedy, within the subject-matter jurisdiction of the court, ought to be granted.[^20]

[51] In any event, I find that RVR did in fact specifically plead these factual circumstances in its defendant’s claim. They are expressly laid out in paras. 19-24 of RVR’s pleading. In para. 20 of its pleading, RVR alleged that: “[d]ue to the condition of the subgrade, concrete buggies would need to be used to adequately pour the cement and apply the proper finish.” Paragraph 21 of the claim speaks to a meeting of the parties, i.e., the second critical meeting in April 2015. In para. 22, RVR alleges that it “advised all parties as to the additional costs that would be required to complete the concrete flooring under the new conditions.” [Emphasis added.] And in para. 23, RVR alleges, inter alia, that Windsor Wall approved the new fee schedule and agreed to compensate RVR accordingly.

[52] As such, there is no basis – at all – for Windsor Wall’s claim that it did not know of these allegations. There is no basis for Windsor Wall to claim that there was some fundamental unfairness in the process or that it was “denied the right to know the case it had to meet,” as it does in paras. 40-42 in its factum.

[53] In sum, the trial judge found that there was a “material change in the methodology” to be employed by RVR in the completion of its work under the contract. There was an abundance of evidence before the trial judge to support that finding of fact. As such, it is entitled to a high degree of deference. The appellant has not established that the trial judge’s finding was infected with palpable and overriding error, requiring an appellate court to intervene.

Did the trial judge err by failing to determine the issues raised in the pleadings?

[54] As reflected in paras. 55-100 of the appellant’s factum, the second issue raised on appeal is Windsor Wall’s argument that the trial judge erred in law by failing to determine the central issues raised in the pleadings.

[55] Specifically, the appellant contends that the trial judge “failed to determine whether, when the extra work was done, a new contract to pay for that work was arrived at or whether [Windsor Wall] was liable to pay for the extra work on the basis of quantum meruit or unjust enrichment.”

[56] I am not persuaded by the appellant’s arguments on this issue.

[57] It is clear from a reading of the deputy judge’s reasons that the trial judge found that the use of the motorized buggies and related costs was an “extra” – that is, as the appellant says in para. 59 of its factum, “extra work outside of the scope of the contract, for which an additional charge is made by the subcontractor.”[^21]

[58] It is telling that the trial judge referred to “such extras” and expressed the court’s disappointment about the lack of information about how such extras were to be treated under the contract between Windsor Wall and the general contractor. The trial judge said:

The Court notes that it does not have the benefit of the contract between the Windsor Wall and the General to determine, specifically how such extras were to be handled.[^22] [Emphasis added.]

[59] The trial judge went on to observe:

Moreover, the failure of all the parties to document what the Court accepts as extras, is the reason why we have this dispute.[^23] [Emphasis added.]

[60] In para. 60 of the appellant’s factum, Windsor Wall submits that, in “determining liability for the cost of extra work, the [courts] have been clear that an agreement, either express or implied, must be made between the contractor and the subcontractor and, in this case, between [Windsor Wall] and [RVR] for the performance and payment of any work not comprised in the [subcontract agreement with RVR].” [Emphasis added.]

[61] But, in my view, that is exactly what the trial judge found in this case.

[62] Tellingly, the appellant goes on, in para. 61 of its factum, to submit that:

Conversely, when the subcontractor does work not called for by the contract without instructions, express or implied or without the consent of the other contracting party, the Subcontractor is not entitled to charge for the additional work or materials. [Emphasis in the original.]

[63] For present purposes, I take no issue with the statement of law set out in para. 61 of the appellant’s factum. But the point is: that is exactly what did not happen in this case.

[64] That is, this is certainly not a case where, to track the language of para. 61 of the appellant’s factum, RVR went off “without instructions, express or implied or without the consent of the other contracting party” and decided on its own initiative to use the motorized buggies for the completion of its work under the subcontract. On the contrary, RVR was specifically instructed not to use trucks driving over the substrate. RVR was instructed to use the motorized buggies. Again, the trial judge expressly found that Mr. Thompson on behalf of Windsor Wall directed “that the means and method of installing the concrete was to be other than using trucks on the substrate.” The trial judge expressly found that the Developer “was insistent that such trucks not be used.”

[65] As such, the instant case is not one, contemplated by para. 61 of the appellant’s factum, where the subcontractor went off on a frolic of its own and performed gratuitous work without the express instructions of the other contracting party and/or the consent of the other contracting party. RVR performed the work as it was directed to do by both Windsor Wall and the Developer.

[66] And the trial judge expressly noted that Windsor Wall fully understood that the extra work “would be a more expensive process.”

[67] In para. 62 of the appellant’s factum, Windsor Wall submits, inter alia, that:

Thus, in determining extras, the threshold issue is whether RVR Concrete’s work “changed so fundamentally” that the price in the Subcontract Agreement was no longer applicable to the services provided. The courts must then determine whether there was an “express or implied agreement” for RVR Concrete to supply the services and materials claimed as extras.

[68] On the former point, it is clear from the trial judge’s reasons that he considered that the initial agreement of the parties was “changed so fundamentally” that the price in the original agreement was no longer applicable to the subsequent services provided. The trial judge made a specific finding of fact that the original contract price was not based on RVR having to adopt any extra or special measures that would be needed to protect the substrate. And, as reviewed above, he made a subsequent specific finding of fact that there was “a material change in the methodology” that was required of RVR, at the direction of Windsor Wall and the Developer.

[69] On the latter point, in my view, it is clear that the deputy judge was satisfied there was, at least, an implied agreement for RVR to perform the work claimed as an extra. It is true that the deputy judge never made an express finding to that effect, but, in my view, when one reads the deputy judge’s reasons as a whole, that is the conclusion that emerges. He made express findings that RVR was directed to do the extra work by Windsor Wall and the Developer, and he concluded that Windsor Wall was responsible for payment. He noted that RVR – at the request of Windsor Wall[^24] – attempted to recover the costs of the extra from the Developer, but to no avail. The deputy judge refrained from speculating as to why Windsor Wall “would prefer that methodology, but when [the Developer] failed to pay for that extra, the Court is of the view that the additional cost was to be [borne] by the party who had contracted with [RVR], namely Windsor Wall.”[^25]

[70] The appellant is critical of the deputy judge for what it believes to be the judge’s failure to undertake a full analysis of, for example, whether the work in issue was properly characterized as an extra in relation to Windsor Wall according to the authorities upon which it relies.

[71] However, it is well settled, at both the trial and appellate levels, that reasons for judgment issued by deputy judges of the Small Claims Court need not be as detailed as those in the Superior Court of Justice. Our courts have acknowledged the informal nature of the Small Claims Court and the volume of cases that come before it.[^26] In A. Breda Ltd. v. Perse Auto Sales Inc., the Divisional Court held that “[i]t would be an error to expect that reasons for judgment in small claims matters are as detailed, thorough and formal as the decisions in trial matters before the Superior Court.”[^27]

[72] In the same vein, in Maple Ridge Community Management Ltd. v. Peel Condominium Crop. No. 231, the Court of Appeal for Ontario considered the statutory and practical context in which the Small Claims Court operates and addressed the sufficiency of reasons in that context, as follows:

The Supreme Court of Canada has recognized that access to justice is a significant and ongoing challenge to the justice system with the potential to threaten the rule of law. …

The Small Claims Court is mandated under s. 25 of the Courts of Justice Act, R.S.O. 1990, c. C.43, to “hear and determine in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience.” The Small Claims Court plays a vital role in the administration of justice in the province by ensuring meaningful and cost effective access to justice for cases involving relatively modest claims for damages. In order to meet its mandate, the Small Claims Court’s process and procedures are designed to ensure that it can handle a large volume of cases in an efficient and economical manner.

Reasons from the Small Claims Court must be sufficiently clear to permit judicial review on appeal. They must explain to the litigants what has been decided and why: Doerr v. Sterling Paralegal, 2014 ONSC 2335 (Ont. Div. Ct.), at paras. 17-19. However, appellate consideration of Small Claims Court reasons must recognize the informal nature of that court, as well as the volume of cases it handles and its statutory mandate to deal with these cases efficiently. In short, in assessing the adequacy of the reasons, context matters: Massoudinia v. Volfson, 2013 ONCA 29 (Ont. C.A. [In Chambers]), at para. 9. Just as oral reasons will not necessarily be as detailed as written reasons, reasons from the Small Claims Court will not always be as thorough as those in Superior Court decisions. Failing to take the Small Claims Court context into account only serves to restrict access to justice by unnecessarily imparting formality and delay into a legal process that is designed to be informal and efficient.[^28] [Emphasis added.]

[73] Similarly, in Davis v. Sutton, the Divisional Court held that: “Reasons for Judgment in Small Claims court matters are not expected to meet the level of detail in Superior Court.”[^29]

[74] As well, in Chieffallo v. Ghuman, the Divisional Court held that, in deciding cases in the Small Claims Court, “it is not expected that the reasons for judgment articulate the judge’s entire thought process,” as follows:

In a busy high volume court such as Small Claims Court in which deputy judges are expected to act efficiently and generally give oral judgments, it is not expected that the reasons for judgment articulate the judge’s entire thought process. In any court, it is sufficient if the reasons are responsive to the live issues and the parties’ key arguments. Reasons must be sufficient to demonstrate why the decision was arrived at when read in the context of the evidence and arguments before the court. Reasons are not inadequate simply because with the benefit of hindsight the judge might have done a better job of expressing himself and in any event the adequacy of reasons is not in itself a free standing basis for appeal.[^30]

[75] The reasons of the deputy judge here are responsive to the live issues raised by the parties and their key arguments, and they certainly permit appellate review. To impose the same standard of detail championed by the appellant is exactly what our appellate courts have repeatedly held should not be done. This ground of appeal must be dismissed.

Did the trial judge err in his assessment of damages?

[76] As set out in paras. 101-116 of its factum, the appellant also claims that the deputy judge erred in his assessment of damages.

[77] The appellant argues that the deputy judge erred by awarding damages without first finding a legal basis to do so; Windsor Wall says that there was no legal basis for damages. In my view, that argument has more to do with liability, i.e., the basis of the defendant’s liability, than it does with the assessment of damages per se. As I have reviewed above, the trial judge found Windsor Wall liable for RVR’s claim for extras. In short, the trial judge found that RVR was directed by Windsor Wall and the Developer to perform certain work that was not contemplated by the original agreement; there was at least an implied agreement that RVR would be paid for the extra work; RVR completed the extra work to the satisfaction of all parties; but Windsor Wall has failed to pay its subcontractor.

[78] However, the appellant also argues that the deputy judge erred in the quantification of damages.

[79] While para. 102 of the appellant’s factum acknowledges the standard of review applicable to a trial judge’s assessment of damages, the point bears elaboration. The Supreme Court of Canada has said that a trial judge’s quantification of damages attracts significant deference. In de Montigny v. Brossard (Succession), the Supreme Court explained that:

Because of the essential factual assessment required by this task, an appellate court must take a highly deferential approach to varying the quantum of compensatory damages awarded by the trial judge. The “palpable and overriding error” standard applies to findings and inferences of fact concerning the assessment of such damages[.][^31]

[80] Our Court of Appeal has reiterated the principle that “a trial judge’s assessment of damages attracts great deference from an appellate court.”[^32] It is well settled that appellate interference with a damages award at trial is justified “only where the trial judge made an error in principle, misapprehended the evidence, failed to consider relevant factors, considered irrelevant factors, made an award without any evidentiary foundation, or otherwise made a wholly erroneous assessment of damages.”[^33]

[81] This same principle applies to appellate consideration of damage awards made by deputy judges of the Small Claims Court.[^34]

[82] In the instant case, the deputy judge dealt with the quantification of damages as follows:

Turning to the issue of damages, as indicated above, the court accepts that [RVR] incurred additional expenses, but the next question turns to quantification. Certainly the 68¢/square feet contained a labour component, it just was not explained by [RVR]. He said that he rented one buggy [and] used two of his own for the job. He paid $2,000 for the rental, and presumably, that would have included a profit element for the renter. It is unfortunate that the Court has to rely on mere estimation, but assuming that the [RVR]’s cost/buggy would be less, I allow the rental cost @ $2,000 [and] $1,500 each for its two machines for a total of $5,000.

I accept that there would be fuel costs, but it would be speculative to add anything more than a token figure, given the lack of specifics. I add a total of $300 for fuel for the machines.

I accept that there would be additional time required to pour the floor using such an indirect means as a buggy. The invoice to Mid-South suggests an acceptable hourly rate of $65/hour. [RVR] claims the extra pour time @ $80/hour and provided no testimonial proof for the amount of time. Using the formula in the claim, but at $65/hour, I am willing to accept the additional pour time @ $9,000. There was no explanation given as to how the process would result in extra finish time, as the same amount of concrete was being finished. That head of damages is not proven.

[RVR]’s total damages are, therefore, assessed at $14,300.00.

[83] Here, the evidence that the deputy judge had before him with respect to damages was somewhat scant. The deputy judge had the oral testimony of Mr. Liburdi on behalf of RVR and the documents referred to. That said, as our Court of Appeal has observed, trial judges are required to do the best they can to quantify the damages with the evidence available.[^35]

[84] In my view, the trial judge’s assessment of the damages was fair and reasonable and conducted on a principled basis. The deputy judge was careful in his assessment and mindful of the limitations of the evidentiary record before him; hence, he disallowed the claim for one head of damages (extra finish time) and was careful to limit his assessment in another (fuel costs). There was sufficient evidence before the trial judge to provide the foundation for his assessment of damages. Deference to the trial judge’s finding on the evidence, especially when he has seen and heard the witnesses in person, is required.

[85] In my view, the same analysis and conclusion that was reached by the Divisional Court in Curran v. Queen Milling, which was also an appeal from a decision of a deputy judge of the Small Claims Court in a construction case dealing with a claim for extras, applies equally to the circumstances of the instant case:

I would not interfere with that approach. The trial judge was permitted in the circumstances of this case, having found that the defendant agreed to the extra work, to determine a reasonable and fair amount to award for the work he found was done. The trial judge was required to do the best he could to quantify the monetary damages to which the plaintiff was entitled[.][^36]

[86] In the result, the appeal must be dismissed.

Costs

[87] To their credit, the parties and their counsel came to an agreement on the issue of costs in advance of the hearing. They agreed that if the appellant were successful, the respondent would pay costs fixed in the amount of $6,000, all inclusive. If the respondent were successful, they agreed that the appellant would pay costs fixed in the amount of $4,000.

Conclusion

[88] For these reasons, the appeal is dismissed with costs, fixed in the amount of $4,000, all inclusive, payable by the appellant to the respondent within 30 days.

Original signed by Justice J. Paul R. Howard

Howard J.

Date: August 3, 2022

[^1]: Courts of Justice Act, R.S.O. 1990, c. C.43. Clause 31(a) of that Act provides that an appeal “lies to the Divisional Court from a final order of the Small Claims Court in an action, ... for the payment of money in excess of the prescribed amount, excluding costs.” Subsection 2(1) of the Regulations re Small Claims Court Jurisdiction and Appeal Limit, O. Reg. 626/00, provides that for “the purposes of clause 31(a) of the Act, the prescribed amount is $3,500.”

[^2]: Rules of the Small Claims Court, O. Reg. 258/98, rule 10.01.

[^3]: Appeal Book and Compendium of the Appellant, dated June 3, 2019 [“Appeal Book”], Tab 4, Reasons for Judgment of Deputy Judge K. Dycha dated February 8, 2019 [“Trial Judge’s Decision”], at pp. 16-24. [All page references to Appeal Book.]

[^4]: Appeal Book, Trial Judge’s Decision, at pp.16 and 23.

[^5]: Appeal Book, Trial Judge’s Decision, at p. 16.

[^6]: Ibid., at pp. 16-17.

[^7]: Ibid., at pp. 17-19.

[^8]: Ibid., at p. 19.

[^9]: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, 211 D.L.R. (4th) 577, at paras. 5, 6, 10, and 29-20.

[^10]: Ibid., at paras. 10 and 30.

[^11]: Waxman v. Waxman, 2004 39040 (ON CA), [2004] O.J. No. 1765, 186 O.A.C. 201, 44 B.L.R. (3d) 165 (C.A.), at paras. 296-297, citing Schwartz v. R., 1996 217 (SCC), [1996] 1 S.C.R. 254 (S.C.C.), at 281; leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 291, [2005] 1 S.C.R. xvii (note). See also R. v. T.(D.), 2014 ONCA 44, 305 C.C.C. (3d) 526, at para. 80; Austin v. Bell Canada, 2020 ONCA 142, 150 O.R. (3d) 21, 1 B.L.R. (6th) 165, at para. 24; Vanier v. Vanier, 2017 ONCA 561, 28 E.T.R. (4th) 200, at para. 68; and R. v. Tiffin, 2008 ONCA 306, 90 O.R. (3d) 575, 232 C.C.C. (3d) 303, at para. 41.

[^12]: Kucyi v. Kucyi, 2007 ONCA 758, 45 R.F.L. (6th) 1, at para. 22.

[^13]: Ibid., at para. 8.

[^14]: Ibid., at para. 8.

[^15]: Windsor-Essex Catholic District School Board v. 2313846 Ontario Limited o/a Central Park Athletics, 2022 ONCA 235, 27 B.L.R. (6th) 163, at para. 10.

[^16]: Kelava v. Spadacini, 2021 ONCA 428, 459 D.L.R. (4th) 344, 67 C.P.C. (8th) 229, at para. 22; leave to appeal to S.C.C. refused, 2022 CarswellOnt 2532.

[^17]: Hydro One Networks Inc. v. Yakeley, 2010 ONSC 4770 (S.C.J.), at para. 19.

[^18]: Chovaz v. 7120761 Canada Inc., 2020 ONSC 1811 (S.C.J.), at para. 25, citing Brighton Heating & Air Conditioning Ltd. v. Savoia (2006), 2006 1667 (ON SCDC), 79 O.R. (3d) 386, [2006] O.J. No. 250, 49 C.L.R. (3d) 235 (Div. Ct.), at para. 40.

[^19]: 936464 Ontario Ltd. v. Mungo Bear Ltd. (2003), 2003 72356 (ON SCDC), 74 O.R. (3d) 45, [2003] O.J. No. 3795, 258 D.L.R. (4th) 754 (S.C.J.), at para. 45. See also Sable Offshore Energy Inc. v. Bingley, 2003 NSSC 20, 211 N.S.R. (2d) 15, at para. 29.

[^20]: Ibid., at paras. 46-47, quoting Popular Shoe Store Ltd. v. Simoni (1998), 1998 18099 (NL CA), 163 Nfld. & P.E.I.R. 100, 24 C.P.C. (4th) 10 (Nfld. C.A.), at paras. 24-25. See also Hodgins v Amlap Corp, 2015 68140 (Ont. Div. Ct.), at para. 21, and Rosic v. Mayer, [2005] O.J. No. 3539 (S.C.J.), at para. 9. However, issues that are not pleaded may not be permitted, even in the Small Claims Court, where they would result in unfairness: McCracken v. Jacan Investments, 2018 ONSC 4212, [2018] O.J. No. 3664 (Div. Ct.), at para. 34.

[^21]: In paras. 65-70 of its factum, the appellant takes the curious position that while, admittedly, the use of the motorized buggies and related work was an extra to the Developer, it was not an extra to Windsor Wall. I disagree. It was an extra from both perspectives. The appellant argues that there was no “additional benefit” from the use of the buggies and that, in the end, the benefit to Windsor Wall by RVR’s performance of the subcontract “was exactly what it had bargained for, and nothing more.” I disagree. The trial judge made an express finding of fact that the parties’ original agreement and the contract price was not based on RVR adopting any special measures to ensure that the substrate was protected. The “additional benefit” was that the work was performed in a (more costly) manner that ensured that the substrate was not damaged. No doubt that, had the work been performed as was originally contemplated and agreed, and had the substrate been damaged, the Developer would have held Windsor Wall responsible. There was a clear benefit to Windsor Wall, and the Developer, by having RVR perform the work using those special measures, which were not contemplated by the original agreement, and which were adopted by the subcontractor because both Windsor Wall and the Developer directed it to do so.

[^22]: Appeal Book, Trial Judge’s Decision, at p. 19.

[^23]: Ibid., at pp. 19-20.

[^24]: I am advised that Mr. Thompson, the principal of Windsor Wall, was the brother-in-law of Mr. Maggio, the principal of the Developer.

[^25]: Appeal Book, Trial Judge’s Reasons, at p. 20.

[^26]: See, for example, Hickson v. Thompson, 2015 ONSC 7946 (Div. Ct.), at para. 12.

[^27]: A. Breda Ltd. v. Perse Auto Sales, 2017 ONSC 241 (Div. Ct.), at para. 15.

[^28]: Maple Ridge Community Management Ltd. v. Peel Condominium Corp. No. 231, 2015 ONCA 520, 389 D.L.R. (4th) 711, 76 C.P.C. (7th) 36, at paras. 33-35.

[^29]: Davis v. Sutton, 2017 ONSC 2277, 40 C.C.L.T. (4th) 21 (Div. Ct.), at para. 30 per Ricchetti J.

[^30]: Chieffallo v. Ghuman, 2017 ONSC 1569 (Div. Ct.), at para. 18 per MacLeod J.

[^31]: de Montigny v. Brossard (Succession), 2010 SCC 51, [2010] 3 S.C.R. 64, at para. 27.

[^32]: Magnussen Furniture Inc. v. Mylex Ltd., 2008 ONCA 186, 89 O.R. (3d) 401, at para. 71.

[^33]: TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1, 40 R.P.R. (5th) 171, at para. 60; and Huang v. Fraser Hillary’s Limited, 2018 ONCA 527, 47 C.C.L.T. (4th) 70, at para. 45. See also Woelk v. Halvorson, 1980 17 (SCC), [1980] 2 S.C.R. 430, at p. 435; Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58, [2001] 2 S.C.R. 943, at para. 80.; Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at para. 158.

[^34]: See, for example, Morrison v. Rose, 2018 ONSC 3635 (Div. Ct.), at para. 8; and Marieiro v. Czyzycka, 2003 11262 (ON SCDC), [2003] O.J. No. 4944, 179 O.A.C. 165 (Div. Ct.), at para. 16.

[^35]: Aluma Systems Inc. v. Resolute FP Canada Inc., 2020 ONCA 792, at paras. 10 and 13.

[^36]: Curran v. Queen Milling, 2021 ONSC 2731 (Div. Ct.), at para. 47, citing Aluma Systems Inc. v. Resolute FP Canada Inc., ibid.

RVR Concrete v. Windsor Wall Forming, 2022 ONSC 4535

Case Summary

Overview

Factual Background and Decision of the Trial Judge

Standard of Review

Issues

Analysis

Did the trial judge err in finding liability on a ground that was not pleaded or advanced by the parties?

Did the trial judge err by failing to determine the issues raised in the pleadings?

Did the trial judge err in his assessment of damages?

Costs

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 2

Legal Tests 1

Legislation 3