Brar v. Landview Homes Ltd., 2011 ABQB 625

Court of Queen ’ s Bench of Alberta Citation: Brar v. Landview Homes Ltd., 2011 ABQB 625 Date: 20111012 Docket: 1103 03629 Registry: Edmonton Between: Gamdur Singh Brar and Satvir Kaur Brar Appellants (Plaintiffs) - and - Landview Homes Ltd. Respondent (Defendant) _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice D.L. Shelley _______________________________________________________ Appeal from the Decision by The Honourable Judge J.L. Skitsko Rendered the 4 th day of February, 2011 Background [ 1 ] Mr. and Ms.

Brar sued Landview for $20,000.00 for alleged deficiencies and non-completion of work which they said was not completed in accordance with a Real Estate Purchase Contract that they asserted they had entered into on September 4, 2004 with

Landview. [2] Landview defended and counterclaimed, denying that there were any deficiencies or incomplete work under the Contract andalleging that the Brars owed $10,272.00 for extras, $5,887.85 in respect of a GST rebate that Landview was unable to collect due to theactions of the Brars, and $5,320.00 for a credit given to them in error. [3] A trial was held on November 29th and 30th, 2010 in Provincial Court. In addition to Mr. and Ms. Brar and Mr.

Gill (asprincipal and representative of Landview), both parties called expert witnesses in relation to the alleged deficiencies. [4] The Trial Judge awarded $21,000.00 to the Brars in respect of deficiencies, together with costs of $650.00. He awarded$16,950.00 in favor of Landview, characterizing it as the “cost of the GST rebate granted to the builder”. The awards were set off againstone another, resulting in a net Judgment of $4,700.00 in favor of the Brars. [5] The Brars filed a Notice of Appeal on February 11, 2011, in relation to the amount of the set-off awarded to Landview.

Theysought leave to introduce new evidence in relation to the GST amount and rebate rate. Issues [6] The issue raised in the Notice of Appeal and therefore the issue before the Court on appeal is whether the Trial Judge erredin calculating the amount of the GST rebate and, as a result, whether he overcompensated Landview for the loss of the rebate thatresulted when the Brars failed to sign the GST rebate forms. [7] At the appeal hearing Landview raised the issue of the $5,200.00 credit which it had claimed in its counter claim but whichwas not awarded by the Trial Judge.

It is therefore a procedural issue as to whether Landview, having failed to file a counter appeal, canraise this issue in response to the issue raised by the Brars on appeal. Standard of Review [8] The standard of review in relation to a question of law is correctness. The standard of review on an issue of fact is palpableand overriding error. Where the issue is one of mixed fact and law, the standard of review is palpable and overriding error unless theerror is in relation to an extricable principle of law, in which case the standard of review is correctness (Housen v. Nikolaisen, 2002 SCC33 , [2002] S.C.J.

No. 31 and Nagy v. Canada, 2006 ABCA 227). [9] A palpable error is one that may be plainly seen, where an overriding error is one that will change the result (Nagy at para.14). [10] A reviewing court must show deference to the trier of fact on findings of fact (H.L. v. Canada (Attorney General), 2005 SCC25). A trail judge’s findings of fact should be disturbed only where the reviewing court can explain “why or in what respect theimpugned finding is unreasonable or unsupported by the evidence” (at para. 56 of H.L.).

The reviewing court must also be satisfied thatthe impugned factual finding would have affected the result. [11] Nagy confirms (at para. 15) that findings of credibility by a trial judge are entitled to a high standard of deference, since a trialjudge is better situated to make factual findings than a reviewing court.

Analysis [ 12 ] Although Mr. Brar sought to introduce new evidence concerning the amount of the GST payable on the house purchase and the GST rebate rate applicable at the relevant time, I find it unnecessary to have regard to his purported “new evidence”. This was not admissible evidence in any event, since it consisted of his recollections of a telephone conversation he had with a person he described as a “representative of the government”. However, the GST rate and the rebate rate in effect in the applicable time period is a matter of law.

Pursuant to the Excise Tax Act , RSC 1985, cE-15, the GST rate was 7% and the rebate rate was, where the purchase price was $349,999.00 or less (which is the case here), the lesser of $8,750.00 and 36 %. This accords with the rate information provided by Mr. Brar in his Notice of Appeal and orally at the appeal hearing. [ 13 ] While the Trial Judge calculated the GST amount at the correct rate, he made an error, which is clear on the face of the record, in calculating the rebate amount. Rather than calculating the rebate at 36% of the GST payable, he credited Landview with the full amount of the GST.

If the GST was $16,950.00, as the Trial Judge found it to be, then the rebate amount was $6,102.00. [ 14 ] I am satisfied that the Trial Judge made an error in law when he failed to reduce the total amount of the GST by the applicable rebate rate. Rather than awarding $16,950.00 in favor of Landview, he ought to have awarded $6,102.00. [ 15 ] When Landview, at the appeal hearing, raised again the matter of the alleged erroneous credit of $5,320.00, the Brars argued that they did not receive such a credit.

They attempted to introduce into evidence their copy of the statement of adjustments which disclosed a credit of $1,515.20, which was the typed amount on the exhibit which was entered at trial. The trial exhibit had a number of written changes on it, including a change to the GST rebate credit. If Landview wished to appeal the trial judgment on the basis of the alleged erroneous credit, it ought to have filed a cross appeal on that basis. [ 16 ] Moreover, Landview raised this issue at trial and the Trial Judge received considerable evidence concerning this issue, most of it from Mr. Gill.

In the face of this evidence the Trial Judge chose not to make an award in favor of Landview. Although he does not specifically address why he rejected this claim of Landview’s, I consider the following passage from his Judgment to be relevant to this issue: In the end, some of the evidence between Mr. and Mrs. Brar and Mr. Gill was diametrically opposite. Where there was a difference in his evidence, I found the evidence of Mr.

Gill to be less worthy of acceptance than that of the evidence presented by the Plaintiffs, for the most part. [ 17 ] Accordingly, I reject Landview’s attempt to raise on appeal the issue of the alleged erroneous credit for two reasons: 1. Landview did not appeal the decision on that basis; and 2. The Trial Judge’s credibility findings are entitled to significant deference and, given conflicting positions of the parties on this issue, the Trial Judge’s decision not to award an amount for this item can be explained by his credibility findings.

Conclusions [ 18 ] As a result, the amount awarded in favor of Landview is changed from $16,950.00 to $6,102.00. Accordingly, the award in favor of the Brars (of $21,000.00 in deficiencies plus $650.00 in costs) will be reduced by the setoff amount of $6,102.00, resulting in a net judgment of $15,548.00.

Heard on the 22 nd day of September, 2011. Dated at the City of Edmonton, Alberta this 12 th day of October, 2011. D.L. Shelley J.C.Q.B.A. Appearances: G. S. Brar for the self-represented Appellants R. Bhalla for the Respondent Landview Homes Ltd.