CITATION: Watson Mechanical v. Behnke, 2016 ONSC 5074
PEMBROKE COURT FILE NO.: DC-14-1114
DATE: August 10, 2016
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
WATSON MECHANICAL LTD.
Mark Huckabone, for the Respondent
Plaintiff/Defendant by Counterclaim (Respondent)
- and -
JOAN BEHNKE
Russell MacCrimmon for the Appellant
Defendant/Plaintiff by Counterclaim
(Appellant)
HEARD: April 4, 2016
REASONS FOR DECISION
JAMES, J
[1] This is an appeal by the defendant, Joan Behnke, from the decision of Deputy Judge Conroy dated October 9, 2014.
[2] The trial involved a claim by Watson Mechanical Ltd. for payment of the sum of $16,005.96 (claim plus interest) relating to the supply and installation of two separate heating systems in a duplex constructed and owned by the appellant.
[3] Watson Mechanical Ltd. (the respondent on the appeal) provided a quote to the appellant dated November 2, 2009. This quote referred to the installation of one 75,000 BTU natural gas furnace complete with supply and return air duct work, piping, registers, thermostat, low voltage wiring, gas piping, venting and all labour for the sum of $12,873. The respondent also included a price for the supply and installation of one HRV system for the sum of $2,808.75, for a total of $15,681.75 for both the furnace and HRV system.
[4] In addition, the quote referred to the supply and installation of an air conditioning system but this part of the work was performed by another contractor and did not form part of the arrangement between the appellant and the respondent.
[5] The respondent proceeded to install furnaces in both sides of the duplex. No one addressed the fact that because there were two separate dwelling units, two separate heating systems were required, one for each side of the duplex. The respondent invoiced the appellant at the end of the work for an amount double the sum quoted, claiming that it was understood and agreed that two complete systems were required and that the cost of the installation would be two times the amount quoted.
[6] The appellant’s position was that the quote contained a typographical error by referring to one and not two heating systems for the indicated price. The appellant says it was understood and agreed that the respondent would supply and install two furnaces and two HRV systems for the price indicated in the quote.
[7] To further complicate matters, the respondent installed a 60,000 BTU furnace instead of the specified 75,000 BTU furnace but the appellant did not become aware of this change until after installation nor was she given an opportunity to address what impact, if any, this change should have on the pricing.
[8] In addition to the controversy whether the respondent’s quote was for one furnace or two furnaces, there were deficiencies in the respondent’s work which the trial judge determined to be valued at $5,000.
[9] The appellant was self-represented at the trial and the respondent was represented by a lawyer.
[10] The appellant raised four issues in her notice of appeal:
a) Did the trial judge commit palpable and overriding errors in the factual findings he made?
b) The trial judge failed to provide the appellant with a fair trial and made procedural rulings that were inconsistent with principles of fundamental justice.
c) The trial judge erred in law in dismissing the appellant’s/defendant’s claim without consideration.
d) The trial judge erred in law in failing to apply the provisions of the Consumer Protection Act, 2002, CSO Chapter 30, schedule A (“CPA”)
[11] In her factum, the appellant, who was represented by counsel for the purposes of the appeal, stated the issues as follows:
a) Did the trial judge commit a palpable and overriding error in deciding that the estimated price was for a single furnace only?
b) Did the trial judge commit a palpable and overriding error in concluding that a $5,000 credit was sufficient to rectify the significant deficiencies of the work and products that were provided by the respondent?
c) Did the trial judge err in law when dismissing the defendant’s claim?
d) Did the trial judge fail to provide the appellant, an unrepresented litigant, with a fair trial?
Issue 1—Did the trial judge err in finding that the respondent’s quote was for a single furnace only?
[12] The factual findings of a trial judge are entitled deference from a reviewing court and may only be disturbed on appeal after making a finding that the trial judge committed a palpable and overriding error, that is, an error that is clearly wrong, unreasonable or unsupported by the evidence.
[13] The appellant submits that the trial judge was clearly wrong in finding that the respondent’s quote was for one furnace only. I do not agree.
[14] By its express terms, the quote was for a single furnace only. The appellant alleges that the respondent made a typographical error while preparing the quote and intended to refer to two furnaces rather than one. The appellant said she had a discussion with the owner of the respondent company, Mr. Watson, after she received the quote. The appellant said in her evidence in chief that “at that time there was—my understanding of it, he was contracting for that $12,289 for two heating units, complete total duct work for two units, not individual. He said it was also a typo that the reasoning it wasn’t for two.” She said made a note of their conversation but no such note was included in the record on the appeal.
[15] During his examination in chief, Mr. Watson said he installed two complete heating systems, one for each side of the duplex. He agreed that the quote referred to one furnace only. He denied discussing the price with the appellant after providing the quote and he denied that the appellant indicated that she was unclear or didn’t like the price that had been quoted (transcript page 6). Mr. Watson offered an explanation why he quoted for one furnace only:
Q. Yes. How many systems got installed?
A. Two.
Q. Right.
A. So one on each side.
Q. Did you give her a quote for each side then?
A. This was the quote here, just …
Q. Okay.
A. … you know, I’ve been in a situation where we’ve done duplexes and the customer only did one side at a time…
Q. Okay.
A. …I don’t know if it was financial restraints or what it was but this is just – just the way I’ve done it.
Q. Okay, so have you suggested that you’re supplying more than one furnace for this place?
A. No.
Q. Does the quote say one furnace?
A. Yes.
Q. How many—and how many furnaces were you asked to install totally in the unit?
A. One per unit. It was a duplex so two in total.
Q. Okay, so is it correct—is this quote for one half of the building?
A. One half of the building? For one side, Albert Street A and Albert Street B, so one side, yes.
(Transcript pages 4 and 5).
[16] On the issue of whether there was a discussion with the appellant after the quote was provided but before the work started, Mr. Watson was asked and answered the following questions at page 6 of the transcript:
Q. Okay, and prior to you being hired to do the job, did she talk about the price per unity of the furnaces?
A. No, there was no discussion about the price.
Q. Okay, did she at any time prior to hiring you to do the work suggest she was unclear or didn’t like your price?
A. No.
[17] The appellant presented a purported quote prepared by another firm (Valley Refrigeration quotation, trial exhibit number 8) that she said was for the same work. This document referred to two Carrier 60,000 BTU gas furnaces and two Carrier 24,000 BTU air conditioners for the total sum of $17,629. The furnaces and the air conditioners were not quoted as separate amounts. The document also contained a price for an HRV system for “2792.00 plus GST per unit”.
[18] This quote was undated. It did not specify a location for the work. The person who prepared the quote was not called as a witness. The respondent did not have an opportunity to conduct any cross-examination of the person who prepared the quote. There are obvious questions that arise upon reviewing the Valley Refrigeration Limited quote. For example, is the scope of work the same? What is meant by the phrase, “note: electrical by others?” Is the quality of the equipment comparable? When was the quote prepared? Is it authentic?
[19] The trial judge did not accept the appellant’s submission that the plaintiff’s price was for two furnaces. This is a finding he was entitled to make because there was evidence given at the trial to support it. The trial judge also concluded that the appellant’s explanation as to how she arrived at the amount she was prepared to pay was inconsistent with the theory of her case. The amount the appellant willingly paid to the respondent was $12,873 for the furnaces and $5,617.50 for the HRV systems for a total of $18,490.50. In his reasons for decision, the trial judge queried why the appellant apparently was willingly to pay double the quoted price for the HRV units but not double for the furnace?
[20] There was evidence available to the trial judge to support the finding that the respondent’s quote represented the cost of one unit and that the parties agreed that two units were to be provided, hence double the price.
[21] I would not give effect to this ground of appeal.
Issue 2—Adequacy of the $5,000 Credit
[22] At the hearing, counsel for the appellant advised that he was not pursuing the claim that $5,000 was inadequate compensation for deficient and incomplete work.
Issue 3—Dismissal of the appellant’s/defendant’s claim
[23] The appellant claimed the return of monies paid, $18,498.50, plus rescission of the contract. Payment of damages and an order of rescission are mutually exclusive remedies. Rescission is generally available when the parties are in a position to restore matters to how they were at the outset of their dealings. Rescission is impractical in the circumstances here. For example, the duct work was installed before the interior finishes and are now covered over (see section 18(2)(a) CPA).
[24] Ms. Behnke’s defendant’s claim was premised upon the assumption that the quote from Watson Mechanical was for two heating systems, not one, and the trial judge found against Ms. Behnke upon this issue.
[25] When the reasons for decision are considered as a whole, the explanation as to why the trial judge did not allow the defendant’s claim may be inferred from the judge’s findings.
[26] On the issue of the heating capacity of the furnaces that were actually installed versus what was quoted, the appellant did not lead evidence that established a) the furnaces (as opposed to the duct work) provided inadequate heating capacity or b) that there was a significant price difference between a 75,000 BTU unit and a 60,000 BTU unit. Without in any way excusing the respondent’s failure to promptly notify the appellant regarding the change of specifications for the furnace, there was no evidence that the system performed inadequately as a result of the supply of furnaces with less heating capacity. It was incumbent upon the appellant to demonstrate that the error respecting the capacity of the furnaces resulted in a real rather than apparent loss. In fact, there was evidence on behalf of the respondent that a 60,000 BTU furnace was adequate to heat each half of the duplex. Certainly the appellant was entitled to the actual difference in price between the 75,000 BTU furnace as quoted and the 60,000 BTU furnace as installed but there was no evidence that the difference amounted to more than a few hundred dollars per unit or that this difference was not adequately accounted for in the $5,000 credit.
Issue 4— Apprehension of Bias and Trial Fairness
[27] The appellant advances a two-pronged approach under this heading. Firstly, she alleges the presence of a reasonable apprehension of bias with respect to the conduct of the trial judge. This issue was not raised as a ground of appeal in the notice of appeal.
[28] Secondly, the appellant submits that the trial judge failed to ensure that the appellant was provided with adequate procedural fairness.
[29] The appellant says that the trial judge showed clear bias and was unfair to the appellant. Example 1: Transcript, page 5 and 6. I do not agree with the submission that this sequence of questions and answers amounts to excessive leading when considered in context. Example 2: Transcript, page 189, line 26. I disagree that this passage is indicative of the trial judge seeking “permission” from the respondent’s counsel. Instead, I view this comment as a verbalization of the trial judge’s thought processes respecting the appellant’s entitlement to conduct appropriate re-direct examination. The re-direct examination procedure was explained to the appellant by the trial judge and she used this as an opportunity to adduce further evidence on her behalf. Example 3: I agree that the objections on pages 32 and 38 had the effect of interfering with the appellant’s cross-examination. Example 4: This exchange appears to focus on disclosure issues and the scope of undertakings. It is arguable that the question that prompted the objection at the top of page 30 was improper as being too widely cast and was therefore unfair to the witness. Examples 5 and 6: There are aspects of the cross-examination that contain unfair and gratuitous commentary by the cross-examiner fueled in part by the realization that the appellant was tendering quotes that were completely unrelated to this project as evidence that the respondent’s pricing was excessive. This evidence was immaterial and not probative of any issue in lawsuit. There were instances where it would have been preferable to permit the witness to finish articulating her point before the cross-examiner asked the next question although in most cases the witness was able to complete the point she wanted to make. Example 7: Because the trial judge accepted that the quote was for one furnace only, it is apparent why he did not find that the CPA had been violated. Example 8: I do not agree the indicated passages demonstrate a lack of even-handedness in applying rules of evidence. Example 9: I do not find that the comment on page 74 is indicative of pre-judgment of issues and the exchange on page 192 was at the conclusion of the appellant’s evidence. It led to the request by the trial judge for submissions by way of summing up the evidence and the comment by the trial that final submissions would be helpful. Example 10: The use of the term “unjust enrichment” in this context was misleading. It is clear that the trial judge was attempting to convey the notion that the appellant derived a benefit from having the use of the furnace. In fact he uses the word benefit a few lines above. Nothing turns on the trial judge’s use of this expression.
[30] I agree with the submission of the appellant that there are instances where the trial judge could have done more to manage the trial process, in particular the interruptions of counsel for the respondent during the cross-examination of Mr. Watson by the appellant. As well, there were instances where the cross-examination of the appellant was aggressive and confrontational. In the final analysis, however, I am unable to say that there is a reasonable basis for the appellant’s allegations of bias against the trial judge in the context of how the litigation was conducted on both sides. In addition, while a litigant is entitled to a fair trial, the standard is not the fairest of all possible trials. The appellant was able to present her case in response to the respondent’s claim but it was not accepted by the trial judge.
[31] In the result, the appeal is dismissed.
[32] On the issue of costs, the parties have provided me with their costs outlines. Any further submissions respecting costs are to be delivered within 30 days on a schedule agreed to by counsel.
Mr. Justice Martin James
DATE RELEASED: August 10, 2016
CITATION: Watson Mechanical v. Behnke, 2016 ONSC 5074
PEMBROKE COURT FILE NO.: DC-14-1114
DATE: August 10, 2016
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
WATSON MECHANICAL LTD.
Plaintiff/Defendant by Counterclaim
(Respondent)
- and –
JOAN BEHNKE
Defendant/Plaintiff by Counterclaim
(Appellant)
REASONS FOR DECISION
Mr. Justice Martin James
DATE RELEASED: August 10, 2016