QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 90 Date: 2013 03 15 Docket: Q.B.G. No. 1356 of 2012 Judicial Centre: Saskatoon BETWEEN: JAMES GLEN RICHARDSON and STEPHANIE ERIN RICHARDSON APPELLANTS (DEFENDANTS) and ROBERT WESLEY DEVLIN HANCOCK RESPONDENT (PLAINTIFF) Counsel: Davin R. Burlingham for the appellants (defendants) Robert Wesley Devlin Hancock respondent (plaintiff), self-represented JUDGMENT GABRIELSON J. March 15, 2013 Introduction [1] This is an appeal from a Small Claims Court judgment dated August 20, 2012. The grounds of appeal listed in the notice of appeal are as follows: a) That the learned Trial Judge erred in failing to weigh necessity and qualification before determining the admissibility of certain opinion evidence tendered on behalf of the Plaintiff. b) That the learned Trial Judge erred in failing to conduct the trial in reasonable and just fashion by denying the Defendants an opportunity to make objections from time to time during the trial. c) That the Learned Trial Judge made palpable and overriding error in interpretation of the evidence and calculation of damages. The Learned Trial Judge found the Plaintiff had proven liability with respect to damaged triple-ply beam, the cost of which was small part of the Claim. The Learned Trial Judge then awarded damages for repair of broken concrete grade beam and for other repairs, in an amount much higher than damages would have been for the triple-ply beam, notwithstanding that liability as to the concrete grade beam was not established at trial. [2] The respondent, Robert Wesley Devlin Hancock (hereafter “Hancock”), purchased house having the civic address 515 Avenue North, Saskatoon, Saskatchewan, from the appellants James Glen Richardson and Stephanie Erin Richardson (hereafter “the Richardsons”), pursuant to Residential Contract of Purchase and Sale (“the contract”) dated July 4, 2007. As part of the contract, the Richardsons completed document entitled “Property Condition Disclosure Statement” (“the disclosure statement”), s. 3(j) of which provided as follows: 3(j) Are you aware of any structural defects in the dwellings/improvements? Answer: Yes some cracking in the house footing on the north side of the dwelling. [3] In accordance with the contract, Hancock took possession of the house in September of 2007. [4] In June of 2010, following large rainstorm, Hancock saw that water was entering the basement of the house. When he investigated the source of the water and removed the interior north wall in the basement, he saw second wall behind the first wall. Behind the second wall he found that large chunk of the concrete footing and concrete grade beam were broken and had slid into the space behind the interior basement wall. When he sought professional’s opinion, he was advised that the appearance of the broken edges of the concrete footing appeared to be indicative of significant passage of time and that the main triple-ply wooden beam (the “wooden beam”) which had sat upon the concrete grade beam was also rotten and would have to be replaced. [5] Hancock entered into contract with Mighty Joe’s Contracting to have the north foundation replaced, including the wooden beam. The contract price was $19,265.40 plus electrical, plumbing, and insulation supplies for total cost of $19,606.74. In November of 2011, Hancock sent demand for payment of these repair costs to the Richardsons who responded indicating they were unaware of any issues beyond what was disclosed at the time of purchase and denied all responsibility for Hancock’s cost of repairs. [6] On February 15, 2012, Hancock commenced an action in the Provincial Court of Saskatchewan Civil Division in which he claimed judgment in the amount of $19,606.74 plus pre-judgment interest and costs. trial was held in Small Claims Court on May 16, 2012. In written decision dated August 20, 2012 (2012 SKPC 132 (CanLII), 403 Sask.R. 171), the Provincial Court judge (Whelan, P.C.J.) held that: (1) there was structural defect in the north basement wall of the house during the time that the Richardsons owned the house; (2) the Richardsons were aware of the seriousness of the defect; (3) the statements made by the Richardsons in the disclosure statement were misleading, and had been relied upon by Hancock to his detriment; (4) in covering the old retaining wall with new interior wall, the Richardsons had converted what was patent defect or one that was readily discoverable into latent defect; (5) the disclosure statement amounted to negligent misrepresentation; and (6) damages in the amount of $18,006.74 together with interest pursuant to The Pre-judgment Interest Act, S.S. 1984-85-86, c. P-22.2, from September 4, 2007 to the date of judgment plus costs were awarded. [7] It is from this judgment that the Richardsons have brought this appeal. Jurisdiction and Standard of Review [8] Section 39(1) of The Small Claims Act, 1997, S.S. 1997, c. S-50.11, provides that party may appeal judgment made pursuant to that Act to the Court of Queen’s Bench within 30 days after the date of the judgment. Section 40 of the Act provides that the appeal is in the form of an appeal on the record. Pursuant to s. 42, judge hearing the appeal may allow the appeal and give the judgment that the trial judge should have given, dismiss the appeal, or order that the action be returned to Provincial Court for new trial. [9] The standard of review in respect to appeals brought pursuant to s. 39 of the Act was dealt with in the case of Kitzul v. Ungar (1991), 1991 CanLII 7678 (SK QB), 90 Sask.R. 239, [1991] S.J. No. 24 (QL) (Q.B.), where Maurice J. stated at para. [3] This Court has no power under this section to rehear or retry case; it is limited to correcting errors of law and reversing unreasonable findings of fact. Findings of fact based on the credibility of witnesses are not to be reversed unless the trial judge made some palpable and overriding error which affected his assessment of the facts. The trial judge is in privileged position as trier of fact because he has the benefit of seeing and hearing the witnesses: Lensen v. Lensen, 1987 CanLII (SCC), [1987] S.C.R. 672; [1988] W.W.R. 481; 79 N.R. 334; 64 Sask.R. 6. [10] In the case of Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] S.C.R. 235, the Supreme Court of Canada referred to the role of an appellate court which would also apply to the appeal before me. At para. 23 that court stated: 23 We reiterate that it is not the role of appellate courts to second- guess the weight to be assigned to the various items of evidence. If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference-drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion. The appellate court is not free to interfere with factual conclusion that it disagrees with where such disagreement stems from difference of opinion over the weight to be assigned to the underlying facts. As we discuss below, it is our respectful view that our colleague’s finding that the trial judge erred by imputing knowledge of the hazard to the municipality in this case is an example of this type of impermissible interference with the factual inference drawn by the trial judge. Therefore, will review the trial judge’s decision to see if there are errors of law which should be corrected and to reverse findings of fact only if the trial judge has made some palpable and overriding error which affected her assessment of the facts. Ground No. Did the trial judge err in the admission of expert evidence? [11] Hancock gave notice of intention to call and did call as an expert witness, Joey Aubin of Mighty Joe’s Contracting. Mr. Aubin had investigated the cause of the water inflow and had made recommendations concerning the repairs needed. Mighty Joe’s Contracting completed the remedial work required to repair the foundation and support beams. [12] At trial, counsel for the Richardsons raised an objection in which he submitted that although Mr. Aubin was qualified to give expert evidence concerning the foundation repair, he was not qualified to give expert or opinion evidence in “diagnosing when structural problem occurred”. The trial judge noted the objection and dealt with it in the following fashion: THE COURT: Do you know what? think it would be just simpler if we didn’t didn’t deal with this as qualification of his expertise, hear how it comes out and then we can talk about it in argument. That’s what I’m inclined to do. MR. BURLINGHAM: agree with that, Your Honour. THE COURT: Okay. All right. So that means that am qualifying you to expert or to testify in the area of foundations and structural repair. All right. And we’ll turn it over to Mr. Hancock to lead his evidence. Not lead but pursue his chief. [13] Counsel for the Richardsons referred the court to the cases of R. v. Mohan, 1994 CanLII 80 (SCC), [1994] S.C.R. 9, 114 D.L.R. (4th) 419; and Rieger v. Burgess, 1988 CanLII 209 (SK CA), [1988] W.W.R. 577, 66 Sask.R. (C.A.). Counsel submitted that until such time as the trial judge has concluded that the witness was properly qualified in respect to specific area of expertise, the witness should not have been allowed to give opinion evidence in that area. Counsel submitted that in her trial decision at para. 34, the trial judge accepted Mr. Aubin’s evidence as to the rotten condition of the wooden beam and also his estimate as to how long structural problem had existed. The trial judge stated in her decision at paras. g. While there was uncertainty about the timing of the broken concrete grade beam, Mr. Aubin testified that rotten triple-ply beam had been problem for over ten years. ... accepted the evidence of Mr. Aubin regarding his observations and his opinion regarding the seriousness of and the length of time that the structural problem had existed. While the concrete grade beam may not have been broken when Mr. Richardson looked over the five foot retaining wall, found that the triple-ply beam was rotten and observable as such. [14] In the classic case of R. v. Mohan, supra, the Supreme Court of Canada laid out the following requirements for the admission of expert evidence at page 20: Admission of expert evidence depends on the application of the following criteria: (a) relevance; (b) necessity in assisting the trier of fact; (c) the absence of any exclusionary rule; (d) properly qualified expert. At para. 25 the court also considered what constituted properly qualified expert: [25] Finally the evidence must be given by witness who is shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify. [16] I am satisfied from my review of the transcript beginning at pages 91 to 96, that Mr. Aubin had the necessary experience in respect to foundation and structural repair that he could give expert evidence as to not only the type of structural repair but also the need for structural repair. Notwithstanding counsel’s objection to Mr. Aubin’s ability to diagnose when structural repair occurred, once qualified as an expert in the area of foundations and structural repair, Mr. Aubin could testify as to the nature of the foundation’s problems, including the wooden beam. The cause of the failure of foundation is not such specialized field as to need expertise beyond that of someone who is experienced in investigating, diagnosing and repairing foundations. Mr. Aubin had many years of experience in doing so. This is not case such as that referred to in Rieger v. Burgess, supra, where evidence of special form of injury known as post-concussive syndrome was found to be beyond the expertise of general surgeon even though he had some additional courses in trauma and orthopaedic surgery. [17] It must also be noted that Mr. Aubin testified not only as an expert witness but also as the person who carried out the investigation and repair of the foundation, including the wooden beam. As such, he was entitled to give evidence as to what he saw and did. Clearly he could give evidence as to an observation that he found that the wooden beam was rotten. He referred to the beam as “extremely rotten”. (page 101, transcript). He stated that to be rotten to that extent, “we’re talking 20 years of exposure. There’s no doubt in my mind.” (page 107, transcript). There was no evidence that something had happened which could have caused the wooden beam to become rotten or to fail in the years between when the house was sold by the Richardsons to Hancock (2007) and the time that the damage was discovered (2010). [18] I am satisfied that Mr. Aubin was an expert who was properly qualified by virtue of his years of experience and that the trial judge was entitled to accept his evidence as to the state of the foundation and how long it had been in such a state. Accordingly, I dismiss this ground of appeal. Ground No. Did the trial judge conduct the trial in reasonable and just fashion? [19] Counsel for the Richardsons submitted that the trial judge failed to allow the Richardsons’ counsel to register objections and also that the trial judge gave assistance to Hancock throughout the trial. Counsel submitted that the trial judge’s actions were improper and gave rise to reasonable apprehension of bias. Counsel referred the court to the cases of Brophy v. Hutchinson, 2003 BCCA 21 (CanLII), 27 C.P.C. (5th) 14; Vasdev v. Décor Home Enterprises Ltd., 2012 BCSC 420 (CanLII), [2012] B.C.J. No. 572 (QL); James v. Canada (Minister of National Revenue M.N.R.) (2000), 266 N.R. 104, [2000] F.C.J. No. 2135 (QL) (F.C.A.); and Miglin v. Miglin, 2003 SCC 24 (CanLII), [2003] S.C.R. 303. [20] Counsel for the Richardsons referred to four instances which counsel submitted were indicative of the trial judge’s bias. They were as follows: (a) At page 44, beginning at line 25: MR. BURLINGHAM: address the Court, Your Honour, he’s getting into speculation here. THE COURT: I’m going to let him continue. Thank you. MR. BURLINGHAM: Your Honour. THE COURT: He’s only really saying what we’re all wondering. Who put it there. And I’m going to let him continue, Mr. Burlingham. MR. BURLINGHAM: But THE COURT: can sift out what is not evidence and what is. MR. BURLINGHAM: To just going forward, Your Honour, am permitted to make objections to the plaintiff’s testimony? THE COURT: Certainly. (b) At page 53, beginning at line 21: MR. BURLINGHAM: Yes, it’s all contentious. This is do object to the hearsay being entered here. Can just note for the record also, with the greatest respect, it the Court is asking Mr. Hancock an awful lot of questions and it seems to be ensuring that all of this evidence gets in with the maximum possible elaboration. confess have not have not been in trial before with self-represented litigant. This is new to me. haven’t done this before but this this seems like something need to object to which is that the court is leading to ensure every bit of the evidence making sure he gets in everything. THE COURT: think you’re incorrect about that. MR. BURLINGHAM: Thank you. THE COURT: indicated at the outset that would ask questions by way of clarification. MR. BURLINGHAM: But this is what it seemed like THE COURT: But your objection is noted. MR. BURLINGHAM: But just my objection to clarify to clarify my objection, it seems like the Court is doing the examination-in-chief here, not just clarification but that’s with the greatest respect and have not done this type of trial before. (c) At page 77, beginning at line 10: MR. BURLINGHAM: Just answer my question. You didn’t know how big the crack was. THE COURT: He is answering your question. MR. BURLINGHAM: With respect, Your Honour, this THE COURT: Answer the question, please, sir. MR. BURLINGHAM: Just can make my can make my point? THE COURT: No, he’s going to answer the question. MR. BURLINGHAM: Objection. THE COURT: You have tendency to interrupt him. want to hear him fully. MR. BURLINGHAM: want to make my objection about that THE COURT: You made your objection. Answer the question. MR. BURLINGHAM: haven’t yet. THE COURT: Mr. Burlingham, that’s enough. Answer the question. (d) At page 78, beginning at line 14: MR. BURLINGHAM: If could just say what was trying to say, Your Honour. THE COURT: No. Just move on. You’re being very argumentative. Move on, please. You’re not here to argue with the Court, you’re here to get the truth out. Just proceed with your cross-examination. MR. BURLINGHAM: do have an objection would like to state for the record. THE COURT: Move on, Mr. Burlingham. Move on. know what your objection is. Go forward. MR. BURLINGHAM: haven’t stated it yet. THE COURT: We’re adjourning until 2:00 p.m. [21] In Miglin v. Miglin, supra, the Supreme Court outlined the test when it is alleged that the trial judge was biased. At para. 26, the court stated: 26 The appropriate test for reasonable apprehension of bias is well established. The test, as cited by Abella J.A., is whether reasonable and informed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would conclude that the judge’s conduct gives rise to reasonable apprehension of bias: .... finding of real or perceived bias requires more than the allegation. The onus rests with the person who is alleging its existence .... As stated by Abella J.A., the assessment is difficult and requires careful and thorough examination of the proceeding. The record must be considered in its entirety to determine the cumulative effect of any transgressions or improprieties. We see no reason to interfere with the Court of Appeal’s assessment of the record, nor with its conclusion that although the trial judge’s comments were intemperate and his interventions at times impatient, they do not rise to the level necessary to establish reasonable apprehension of bias. [22] There is strong presumption of impartiality on the part of trial judge. In the case of Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), [2003] S.C.R. 259, at para. 59, the court stated: 59 ... As was noted by L’Heureux-Dubé J. and McLachlin J. (as she then was) in S. (R.D.), supra, at para. 32, the presumption of impartiality carries considerable weight, and the law should not carelessly evoke the possibility of bias in judge, whose authority depends upon that presumption. Thus, while the requirement of judicial impartiality is stringent one, the burden is on the party arguing for disqualification to establish that the circumstances justify finding that the judge must be disqualified. [23] In the case of Sloboda v. Sloboda, 2007 SKCA 15 (CanLII), [2007] W.W.R. 440, the Saskatchewan Court of Appeal also reviewed the law regarding trial unfairness in the civil context. At para. 54, the court stated: 54 ... It is clear from the case law that trial judges do not rest mute. They are entitled to, and must, seek appropriate clarification and give direction and, in certain cases, disclose tentative conclusions as means of ensuring proper understanding of the case. [24] It must be remembered that this was small claims proceeding and that Hancock was self-represented. The somewhat unique nature of small claims proceedings where often one or both of the parties are self-represented, was aptly described by Preston J. in the case of Garry v. Pohlmann, 2001 BCSC 1234 (CanLII), 12 C.P.C. (5th) 107 at para. 52 The frequency of the trial judge’s interventions and the tone that he adopted in some of his statements lead to some concern. However, the proper test is whether his conduct denied the defendant fair trial or gave rise to reasonable apprehension of bias as that term is defined at law. Those questions must be answered in the context of the facts of the particular case. In small claims cases when litigants are unrepresented some will require more direction than others; sometimes that direction will have to be more forceful than at others; some litigants will require more assistance than others. The decisions concerning the manner in which individual proceedings are conducted are best left to the trial judge. The questions for court on an appeal of this nature are questions of trial fairness and the reasonable apprehension of fair-minded persons concerning the impartiality of the tribunal. These questions are to be answered upon an examination of the proceedings as whole. [25] In my opinion the trial judge’s comments and interventions did not go beyond the nature of a legitimate attempt to ensure that all of the evidence regarding the matters at issue was before the court and was of sufficient clarity so that the trial judge could understand it. As Hancock was self-represented, more questions of him were required than may have been appropriate or necessary in traditional civil trial. However, in my opinion, the Richardsons have not met the high onus of establishing that reasonably informed person would have an apprehension of bias on the part of the trial judge or reasonable belief that they received an unfair trial, would therefore dismiss this ground of appeal. Ground No. Did the trial judge err in the calculation as to damages? [26] Counsel for the Richardsons submitted that notwithstanding that the trial judge only found that the wooden beam was rotten and observable as such, that she awarded damages for all of Hancock’s losses, including the cost of repair of the cement foundation. Counsel referred to para. 34 of the trial judge’s reasons for decision where she stated the following: ... While the concrete grade beam may not have been broken when Mr. Richardson looked over the five foot retaining wall, found that the triple-ply beam was rotten and observable as such. Mr. Richardson constructed new walls in the basement, covering the old wall left in place on the north wall. In doing so he concealed structural defect. [27] find counsel’s submission in this regard to have no basis. The cause of action in this case was one of negligent misrepresentation. The trial judge found that the Richardsons were aware of structural defect which they covered by retaining wall, thereby converting patent defect into latent defect. The trial judge made finding of both fraudulent and negligent misrepresentation and her findings in this regard have not been challenged. [28] In cases of fraudulent misrepresentation, the proper measure of damages is that amount of money required to put the plaintiff in the position that the plaintiff would have been occupied not if the statement had been true but if the statement had not been made. See S.M. Waddams, The Law of Damages, 2nd ed., looseleaf (Toronto: Canada Law Book, 2009) at 5-19, para. 5.460. [29] In this case, had the state of the foundation and/or the wooden beam not been covered by the interior wall built by the Richardsons, the defect in the foundation, which included not only the rotten wooden beam, but also the cracks in the foundation, could have been discovered by Hancock or by his property inspector. Hancock may then have elected not to proceed with the purchase contract or alternatively remedied the defect before the wall collapsed inward. There is no evidence that the amount of work done was not necessary to repair the damage done when the foundation caved in and water entered the basement. [30] In my opinion, the trial judge made no palpable and overriding error regarding the calculation of damages and I would therefore dismiss this ground of appeal as well. Conclusion [31] This appeal is dismissed with costs of the appeal to the respondent. J. N.G. GABRIELSON
The appellants appealed a small claims judgment. The judgment had found the appellants liable for damages after the respondent, who had purchased a house from the appellants, discovered that water was entering his basement. When the respondent investigated the source of the water, he removed the interior wall of the basement and discovered that there was a second wall behind the first one. He also discovered that a large chunk of the concrete footing and concrete grade beam were broken and had slid into the space between the interior basement wall. The respondent obtained a professional opinion that suggested that the problem had been there for a significant period of time and that the wooden beam that sat on the concrete grade beam was rotten and would have to be replaced. The respondent was awarded judgment in the amount of the repair. The appellant appealed on the basis that the trial judge should not have considered the respondent's expert's opinion about the age of the defect, that the trial judge had crossed a line in assisting the self-represented plaintiff at the trial and that the trial judge erred in calculating damages. HELD: The appeal was dismissed. The respondent's expert was qualified as an expert concerning foundation repair and had the necessary experience to give expert evidence on the type of structural repair and the need for structural repair. Once qualified as an expert in the area of foundations and structural repair, he could testify on the nature of the foundation's problems, including the wooden beam. The witness was also the person who actually carried out the repair to the foundation and was entitled to give evidence on what he saw and did. The witness was properly qualified by virtue of his years of experience and the trial judge was entitled to accept his evidence as to the state of the foundation and how long it had been in such a state. The trial judge's intervention and comments to the appellant's lawyer at the trial did not go beyond the nature of a legitimate attempt to ensure that all of the evidence regarding the matters at issue was before the Court with sufficient clarity to allow the trial judge to understand it. The cause of action in this case was negligent misrepresentation. The trial judge found that the appellants were aware of the structural defect and had covered it up. The proper measure of damages is the amount of money required to put the plaintiff in the position he would have occupied if the negligent misrepresentation had not been made. In this case, the judge made no palpable or overriding error in calculating damages at the amount it cost to fix the foundation.