ONTARIO

SUPERIOR COURT OF JUSTICE

PEMBROKE COURT FILE NO.: DV-10-078-AP
DATE: February 15, 2012

B E T W E E N:

WAYNE EDWARD WEITZEL

Self-Represented Plaintiff (Appellant)

Plaintiff (Appellant)

• and -

GREENWOOD PAVING PEMBROKE LTD.

Timothy J. Girard, for the Defendant (Respondent)

Defendant (Respondent)

HEARD: January 24, 2012

REASONS FOR DECISION

James J.

[ 1 ] This is an appeal by Wayne Weitzel from the decision of Deputy Judge Robert Howe released May 12, 2011 dismissing the plaintiff’s claim for compensation regarding the paving of his driveway. The work included paving an existing driveway and extending it by excavating and paving an additional area to create an enlarged parking area.

[ 2 ] The appellant says that:

i) the respondent failed to adequately prepare the sub-base and install a geotextile membrane prior to backfilling, due to the presence of clay;

ii) the driveway cracked soon after the completion of the work;

iii) there is evidence of sinking in a portion of the driveway; and,

iv) the respondent’s estimator, Alexander Plummer, breached a duty of care that was owed to the appellant in not recommending that a geotextile membrane be utilized due to the existing conditions.

[ 3 ] The respondent contends that:

i) the appellant did not prove there was clay beneath the new portion of driveway;

ii) there was no evidence of sinking or subsidence and,

iii) the warranty specifically exempted cracking.

[ 4 ] At the outset of the appeal, the appellant requested leave to permit Rosemary Hefforn to act as his agent. It is generally not permitted to allow a litigant to be represented in this court by someone who is not a lawyer. Although present at the counsel table, the appellant cited hearing difficulties and the fact that Ms. Hefforn is a co-owner of the property as factors to be considered. Mr. Girard for the respondent was not opposed to the request. Leave was granted.

[ 5 ] For the reasons that follow, I have determined that this appeal should be dismissed.

[ 6 ] The appellant testified that cracks formed within a few months. He said that in his view the cracks formed because of inadequate base preparation and “sinking” in the newly-expanded portion of the driveway. The respondent’s evidence at trial was that cracking is a normal phenomenon due to the seasonal freeze-thaw cycle and that’s why cracking is excluded from the warranty. The appellant countered that the cracking occurred within the same season so the problem must lie elsewhere than the freeze-thaw cycle.

[ 7 ] Other than the appellant’s own testimony that sinking had occurred, no evidence confirming this contention was submitted. Ms. Hefforn and the appellant’s brother-in-law, Mr. Bellefeuille, were called as witnesses. They were not asked about their observations regarding the sinking of the pavement. No measurements were provided and the appellant’s description of the sinking lacked any details regarding location, depth or size. Although the appellant had the onus of proof, he did not perform any testing or arrange for anyone to give technical evidence on his behalf.

[ 8 ] Adrien Tomasini, a foreman employed by the respondent, gave evidence in response to the appellant’s claims. Apart from a small depression about 1 inch deep and measuring about 6 inches by 12 inches in area, this witness would not agree that the driveway was sinking and testified that in his experience, driveways may form depressions but they don’t sink. Mr. Plummer, also testifying for the respondent, did not acknowledge that the driveway was sinking but did say that dips can form in driveways due to water getting in and that “clay is a really big one for sinking.” (transcript, p. 90 l. 7)

[ 9 ] The trial judge said that he was unable to conclude that the driveway had sunk. It was open to him to make this determination based on the evidence adduced at trial and the making of this finding is not a reviewable error.

[ 10 ] The appellant is strongly of the opinion that there was clay in the area that was excavated and this fact warranted the installation of a geotextile membrane. Neither the appellant nor Ms. Hefforn was present while the work was being performed and no evidence was submitted that there was clay in the area being excavated. The only person who saw the work being done who testified on behalf of the appellant was Mr. Bellefeuille and he did not refer to whether clay was present or not.

[ 11 ] Mr. Plummer testified that while there is clay in the vicinity of the work, he was present on site and did not observe any clay. He said the use of membrane would have been an unnecessary expense.

[ 12 ] The appellant attempted to rely on the fact that the respondent’s workers were not called to give evidence at the trial. If they had, Ms. Hefforn argued, they would have had to testify that clay was present. This type of presumptive reasoning does not assist the appellant and cannot be used to shift the onus of proof to the respondent. It is not the respondent’s obligation to demonstrate the absence of clay when the appellant has not adduced insufficient evidence to the contrary.

[ 13 ] When the respondent obtained a core sample of the asphalt in advance of trial and the appellant realized that the sample did not extend into the sub-base, he elected not to obtain his own sample or seek to adjourn the trial in order to secure evidence of what lay beneath the paved surface. Ms. Hefforn stated that this decision was based in part on the appellant’s belief that he had an alternate argument that the respondent had breached its “duty of care” to the appellant. She explained that in the view of the appellant, Mr. Plummer was an expert who knew or ought to have known that the soil beneath the driveway contained clay and ought to have recommended the use of a membrane to prevent contamination of the sub-base material. This basis of liability was not well developed by the appellant at trial and only appears in a brief passage when the appellant testified in rely after the close of the respondent’s case. He said that “Mr. Plummer’s expertise is sort of what I’ve relied on when I got him to check out my driveway and clay is predominately around our property. ” (transcript, p. 112, l. 15) . While a party can be concurrently liable in both breach of contract and negligence, I had the impression that Ms. Hefforn was attempting to establish liability on some other basis, something akin to negligent misstatement. The problem remains, however, the appellant has not proved that clay was present where the work was performed. Hence there is no factual basis to support an allegation that there was a breach of the duty of care.

[ 14 ] The appellant also relies on some misstatements of evidence by the trial judge in his reasons for judgment. They include the following:

i) That the respondent’s estimator initially recommended that both the existing and new sections of the driveway be excavated;

ii) The cracks that formed after the paving work were restricted to the area of the original driveway; and

iii) That the repair estimate included re-paving the entire driveway.

[ 15 ] In my view, these errors do not affect the validity of the judge’s findings. He found that crack formation in asphalt is common, even inevitable, and the mere presence of cracks is not evidence of shoddy work.

[ 16 ] There is a dispute in the evidence regarding the applicability of the warranty exemption regarding cracking but the scope of the warranty is not determinative. It may well be that this exemption was not part of the contract between the parties. The issue is whether the respondent fell below an acceptable standard of workmanship and on this essential question, the trial judge held that the appellant failed to prove his case. Because of this, the trial judge determined that it was unnecessary to decide whether the cracks formed within a few months or after the winter of 2008-2009.

[ 17 ] During his evidence in chief the appellant sought to introduce a photograph taken the morning of the trial that had not been previously disclosed. Its admission into evidence was opposed by counsel for the respondent and the trial judge did not permit it to be marked as an exhibit. The rules of court require advance notice of such evidence and the trial judge’s refusal to grant leave for the photograph to be admitted on short notice was within his discretion to decide.

[ 18 ] A trial judge is entitled to deference on an appellate review and an appeal court is not allowed to substitute an alternate conclusion for that of the trial judge unless he or she has committed a reviewable error that may have affected the outcome of the trial. In this case there was evidence to support the findings of the trial judge. Whether the result might be different if the appellant is given a second chance to present his case with different or additional evidence is not a relevant consideration.

[ 19 ] The respondent has submitted a costs outline claiming costs of $15,652.75. No costs outline was provided by the appellant. As the appellant has not had an opportunity to make any arguments regarding costs, the appellant shall have 10 days to deliver a response to the respondent’s claim for costs. These submissions may be mailed or delivered to the court with a copy to the respondent.

Mr. Justice Martin James

DATE RELEASED: February 15, 2012

PEMBROKE COURT FILE NO.: DV-10-078-AP
DATE: February 15, 2012

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: WAYNE WEITZEL Plaintiff (Appellant) - and – GREENWOOD PAVING PEMBROKE LTD. Defendant (Respondent) REASONS FOR JUDGMENT Mr. Justice Martin James

DATE RELEASED: February 15, 2012