Weiner v 70054232 Canada Inc. et al, 2016 ONSC 2203

CITATION: Weiner v 70054232 Canada Inc. et al, 2016 ONSC 2203

COURT FILE NO.: DC -3-14

DATE: 2016-03-31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Joseph Weiner

Appellant (Defendant)

– and –

70054232 Canada Incorporated O/A Wise Choice Renovations and Roofing

Respondent (Plaintiff)

Self-Represented

Daniel W. Veinot - Counsel for the Respondent

HEARD: March 29, 2016

The Honourable Mr. Justice J. W. Sloan

[1] This Appeal is from the Kitchener Small Claims Court and involves repairs to the roof of a house owned by the Appellant’s mother.

[2] From the evidence and pictures that I have been referred to, the shingles and other components of the roof were essentially in deplorable condition and should have been completely redone.

[3] Although this was obvious to anyone with some maintenance experience, the Appellant waited until October of the year 2012 to try to remedy some of the leaking problems his tenants were having and even when advised otherwise, he decided to try to fix the problems by only repairing a small portion of the roof.

[4] After three days of trial over a five-month period, the Trial Judge concluded that the Respondent/Plaintiff should be paid for its work, and gave Judgment for $2915.40.

[5] It is from that judgment that the Appellant has launched this appeal.

[6] He has filed two factum’s of the total length of approximately 67 pages.

[7] This Appeal was initially scheduled for half the day, however the Court allowed the Appellant from 10 o’clock to 1 PM to make his submissions.

[8] In the time allotted he raised the following points of appeal.

Was the Trial Judge Prejudiced against Him?

[9] The Appellant referred to instances in the trial transcript and suggested that they showed the Judge was biased against him.

[10] In an effort to demonstrate this, he referred the Court to several places in the transcript some of which were the Appeal Book and Compendium. At Tab 5 page 116, the Judge stated that she’s not his lawyer, she is the Judge. The Appellant suggested that she appeared angry when she told him this, however that is impossible to discern from the written transcript. I do not find that the words used by the Judge show any type of prejudice against the Appellant.

[11] The Appellant also referred me to the court transcript for the date to June 20, 2014. At page 71 between lines 10 and 20 the Judge tells him she doesn’t care what he’s been told because it is hearsay. He also alleges that this was an angry interjection by the Judge.

[12] The Appellant also referred me to the top of page 46 of the same transcript where the Judge took exception to his use of the term “unemployed itinerants” when he was referring to workmen hired by the Respondent.

[13] He also referred me to passages where there were discussions between the representative of the Respondent and the Judge and he suggests there may have been a special relationship between them.

[14] After reviewing the evidence I was referred to by the Appellant, I am unable to conclude, on an objective basis, that there was a reasonable apprehension of bias.

Invoices for Purchase of Material Were Not Made Exhibits.

[15] Two invoices were shown to an employee for the Plaintiff but were not made exhibits.

[16] The Appellant did not cross-examine on the two invoices. He stated he did not cross-examine on the invoices because he was in agreement with them, or, to put it another way, in his opinion they were favourable to his position.

[17] His position, essentially, is that because there is no purchase of plywood shown on either invoice that the Respondent did not use plywood in the repair of the flat roof.

[18] He did not ask for the invoices to be made exhibits.

[19] The Court understands that the Appellant was self-represented at the trial, however if his position was that since no plywood was purchased by these invoices the Respondent did not use any on his roof, it certainly would have been prudent to have the witness confirm that. He did not do so.

[20] I was not directed to any testimony about whether or not the Respondent kept some supplies such as plywood at its home base, other than a document stating that there would be no charge for the first two sheets of plywood.

[21] On the evidence before her the Trial Judge could conclude that the Respondent used plywood in the repair of the roof.

Photographs Served on the Day of Trial by the Respondent

[22] The Appellant alleges the Respondent served photographs approximately 11 minutes before the commencement of trial.

[23] If they were not served appropriately under the Rules they should have been.

[24] There is a lengthy discussion commencing at page 5 of the February 28, 2014 transcript about whether they were served or not.

[25] The pictures being referred to are pictures of the roof of the subject property owned by the Appellant’s mother.

[26] This entire action, of course, deals with the roof of the subject property.

[27] The Appellant says he was prejudiced because the Small Claims Court Guidebook says that he should prepare questions for witnesses and essentially he stated that without having the photographs before trial he was unable to do this.

[28] The Trial Judge was faced with conflicting evidence about whether or not the photographs were served and was faced with a scheduled court date to commence the hearing of the matter.

[29] Under the circumstances she made a decision that the Respondent could use the photographs at the trial.

[30] It should be noted that the Appellant did not ask for an adjournment and since this was the first day of what turned out to be a three-day trial, he would have had an opportunity to present whatever relevant evidence he wished to present with respect to the pictures before the trial was completed.

[31] Under the circumstances of this case I do not find any fault with the Trial Judge using her discretion to allow the photographs into evidence.

Settlement Conference

[32] The Appellant submits that the Respondent should not have referred to anything that happened at the settlement conference in front of the Trial Judge.

[33] Although it does not appear that either party told the Trial Judge what the Settlement Conference Judge said, the Respondent is alleged to have said that the Appellant suggested the Settlement Conference Judge was biased in a similar manner to which the Appellant submitted the Trial Judge was biased.

[34] The Appellant submits that because of this revelation by the Respondent to the Trial Judge, it painted him badly and his credibility shrank to zero.

[35] I agree, that matters that take place at the Settlement Conference should not be revealed to the Trial Judge at any time before Judgment is rendered, however the main reason for this rule, is so that the parties at a Settlement Conference and the Judge can have a full and frank discussion about the strengths and weaknesses of each party’s case, in an effort to resolve the entire matter or reduce the issues for trial.

[36] While it would have been better if the Trial Judge had not been apprised of this fact, I do not find anything in her Judgment to suggest that this influenced her Judgment in any way.

Did the Trial Judge Refuse to Accept the Pictorial Evidence of the Respondent’s Incompetence.

[37] The Appellant referred the Court to page 135 of the Appeal Book and Compendium and in particular, a picture labelled plaintiff’s picture # 11007.

[38] The picture appears to be a relative close-up of part of a flat roof with some ponding on it.

[39] The Appellant submits, that there is an obvious gap shown in the picture and essentially submits that because of this gap, most of the damage was caused to the interior of the building on November 22, 2012.

[40] It was the Appellant’s position both at Trial and on this Appeal, that picture # 11003 at page 133 of the Appeal Book and Compendium and picture # 11007 were pictures of the same area of the roof, however the Trial Judge indicated she was not sure that the pictures were of the same part of the roof.

[41] Based on the pictures she was entitled to make that comment.

Did the DeputyJudge Err in Her Conclusion That There Was Insufficient Rain on the Morning of November 23 to Account for the Leak in the Manner Proposed by the Appellant.

[42] On the night in question there was apparently 1.8 mm of rain measured at the Waterloo Regional Airport.

[43] The Trial Judge questioned whether the conditions at the airport corresponded with the conditions at the subject property.

[44] The Appellant also submits that the Trial Judge did not take into account that runoff from a sloped part of the roof would accumulate on the flat part of the roof.

[45] Again there was no expert evidence to assist the Trial Judge who made her decision that she felt that 1.8 mm of rain was not a lot of rain.

Did the DeputyJudge Err in Concluding That the Respondent Had Not Been Permitted to Finish the Job Despite Many of the Plaintiff Statements that the Job Was Finished.

[46] While there are some emails from the Respondent indicating that the work was finished there is also no doubt that when the Respondent arrived to view the leak on November 23 they were told to leave the Appellant’s property.

The Trial Judge Erred in Her Conclusion That the Respondent Was Unaware of the Condition to the Second Contract at the Time They Started the Job.

[47] To a great extent this is a red herring.

[48] The job was started, there was a rainfall, there was a leak and when the Respondent showed up at the property on November 23, they were told to leave.

Sad Tale

[49] By all accounts, both pictorially and from the evidence of the Appellant’s tenants, and others, the subject roof was in a sad state of disrepair and had been for some time.

[50] Everyone with any knowledge of roofing was of the opinion that the entire roof should have been redone at one time. This included the advice that the Respondent gave to the Appellant.

[51] Despite this advice and knowledge that his tenants were complaining of water dripping into their apartments and having to use pails to catch the water when it rained, he chose to be his own roofing foreman, and requested that only part of the roof be repaired.

[52] Given the advice that he was receiving and what he personally knew about the roof, this certainly appears to be a case of “penny wise and pound foolish”.

[53] In addition, no expert was retained in an effort to determine the exact cause of the leak on November 23, which would have assisted the Court.

[54] I am cognizant of the fact that this was $2900 problem and the Appellant may not have wanted to spend the money to retain such an expert.

[55] He now, however, wants the court to conclude that he is correct and the Respondent is wrong.

[56] The Appellant called Mr. Price to give evidence on his behalf and at page 90 of the transcript of April 3, 2014, Mr. Price was asked the question: “So do you have any thoughts to what was causing the leak?”

[57] In answer to the question, Mr. Price replied: “If I had to guess, the termination, so how they finish the flat roof material to the wall. It was probably done wrong or it could have been the seal at the seam but without taking that flashing completely off, which would have taken some work, I can’t be 100% sure.”

[58] The Trial Judge was also faced with evidence called by the Appellant and in particular Mr. Sprenger, a tenant, who testified to the damp and damaged shingles, that plywood was visible on the roof, that moisture caused paint to flake and stain the plaster inside his apartment and that three years before the event when paint began flaking off the ceiling he covered it with tongue and groove wood.

[59] He testified that in his unit there were leaks at two different sloped roofs and that the roof could have been leaking for months or years before the effect could be seen inside. He also agreed that the water could come from any area because the roofs are interconnected. All of this testimony related to facts before November 2012.

[60] To say the least, the evidence that was presented by the Appellant, and the way it was presented at trial made an already difficult task for the Trial Judge more difficult.

[61] The Factum on the appeal was at least three times as long as it should have been and the presentation of the Appeal was somewhat rambling.

[62] Based on the foregoing reasoning I am unable to conclude that the Trial Judge showed any bias against the Appellant or made any overriding and palpable errors.

[63] I therefore dismiss the Appeal with costs.

[64] If the parties are unable to agree on costs, Mr. Vienot shall forward his brief submissions on costs to me by April 8, 2016. Mr. Wiener shall forward his brief response to me by April 13, 2016. Mr. Vienot shall then forward his reply, if any, to me by April 15, 2016. Cost submissions may be sent to my attention by email, care of Kitchener.Superior.Court@ontario.ca

J. W. Sloan J.

Released: March 31, 2016