The appellants appealed a Small Claims Court judgment awarding the respondents $25,000 in damages for a defectively installed stamped concrete driveway and sidewalk.
The trial judge found that the colour and design were essential terms of the contract and awarded damages based on the cost to remove and replace the concrete.
On appeal, the appellants argued damages should have been assessed based on diminution of value.
The Divisional Court found no palpable and overriding error in the trial judge's choice of the measure of damages, given the factual finding on the importance of aesthetics.
However, the court reduced the damages to $17,200 to account for the $9,000 already paid by the respondents, preventing a windfall.
