McGrath v. Shah, 2012 ABQB 493

Court of Queen ’ s Bench of Alberta Citation: McGrath v. Shah, 2012 ABQB 493 Date: 20120730 Docket: 1213 00105 Registry: Ft. McMurray Between: Jerry McGrath, Crystal Electric Ltd. Plaintiffs (Appellants) - and - Ashish Shah Defendant (Respondent) _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Crystal Electric Ltd. sued Ashish Shah for the unpaid portion of a $22,000.00 contract for electrical work on a new home. Mr. Shah counterclaimed for $8,135.00 for having overpaid relative to the actual work done by the plaintiff and for the cost of having another electrical contractor finish the job. The trial judge concluded that, while Crystal Electric had not completed the work according to the original contract, it had completed some extras for which it was entitled to payment on a quantum meruit basis; however, Mr.

Shah was entitled to claim for the cost of having another contractor finish the original work. In the result, the trial judge gave judgment in favour of Mr. Shah for $2,582.75, plus interest. [ 2 ] Crystal Electric Ltd. now appeals the trial judgment on the basis that the trial judge made factual errors. In particular,

relying on Cisakowski, the appellants contend that the trial judge committed an error of fact in accepting the testimony of Mr. Shahconcerning the amount paid to finish the electrical work without any supporting evidence. [3] The appeal is denied. [4] The appellants have not satisfied the test of establishing that the trial judge committed a palpable and overriding error offact: Housen.

Even if Cisakowski could be construed as setting a standard rather than merely coming to a conclusion with respect to theevidence in a particular case, that standard has now been overtaken by the standard of review on alleged errors of fact as set by theSupreme Court. In any event, in the circumstances here, the trial judge not only had the benefit of hearing Mr. Shah’s testimony on theissue of the additional payment, but he also had an invoice for the additional electrical work undertaken: (see trial ex. 4).

The appellantshave not established that the trial judge committed any error of fact in arriving at his final judgment. Cases and authority cited [5] By the appellants: Cisakowski v Fekete (AB KB), [1985] 2 W.W.R. 691 (Alta. Q.B.); Longeuay v Thomas(1982) (ON CA), 35 O.R. (2d) 660 (Ont. C.A.); Duncan v Aldis (1983) (BC CA), 77 B.C.L.R.(2d) 122 (B.C.C.A.); Douglas v Peacock and Skene (1924) (SCC), 1 W.W.R. 597 (S.C.C.); Regina v Bolt (1958) (AB CA), 121 C.C.C. 210 (Alta. S.C.); De Paoli v Richardson (AB CA), [1936] 2 W.W.R. 183 (Alta.C.A.); Stevenson v Dandy (1920) (AB CA), 2 W.W.R. 643 (Alta.

S.C.). [6] By the court: Housen v Nikolaisen 2002 SCC 33. 1. Background [7] Crystal Electric Ltd. sued Ashish Shah for the unpaid portion of the contract entered into by the parties on July 19, 2011,for $22,000.00 plus GST for electrical work on a new home. Mr. Shah paid Crystal Electric a total of $23,000.00, but Crystal Electricclaimed additional compensation for non-contractual extras. Mr. Shah counter-claimed for $8,135.00, comprised of the fee he paidanother electrician to complete the work and the amount he had over-paid the plaintiff on the original contract.

The principal of CrystalElectric Ltd., Jerry McGrath, gave evidence on behalf of the plaintiff and Mr. Shah, and another witness, gave evidence on behalf of thecounter-claimant. In addition to testimony, Mr. Shah also provided a booklet of paper which was entered as an exhibit which bookletcontained, inter alia, the plans for the work to be undertaken and the invoice submitted by the electrician who finished the work.

Bothparties were unrepresented at trial. [8] The Provincial Court Judge concluded that Crystal Electric Ltd. had not finished the work contracted for, but that it hadperformed contract extras for which it was entitled to payment on the basis of quantum meruit. The trial judge also concluded that Mr.Shah had paid another electrical contractor to finish the work and that Crystal Electric Ltd. was responsible for that outlay. In the result,the trial judge gave judgment of $2,582.75, plus interest, in favour of Mr. Shah. 2.

Standard of review [9] The appellants base their appeal on alleged errors of fact by the trial judge: “not all of the evidence was considered orcorrectly weighed. Some of the evidence was misapprehended.” The standard of review on fact-based appeals is demanding: theappellant must establish that the trial judge committed a palpable and overriding error.

It is also useful to remind ourselves of the policythat undergirds that standard; as the Supreme Court of Canada put it in Housen The standard of review for findings of fact is such that they cannot be reversed unless the trial judge has made a "palpable and overridingerror". A palpable error is one that is plainly seen. The reasons for deferring to a trial judge's findings of fact can be grouped into three

basic principles. First, given the scarcity of judicial resources, setting limits on the scope of judicial review in turn limits the number, length and cost of appeals. Secondly, the principle of deference promotes the autonomy and integrity of the trial proceedings. Finally, this principle recognizes the expertise of trial judges and their advantageous position to make factual findings, owing to their extensive exposure to the evidence and the benefit of hearing the testimony viva voce.

The same degree of deference must be paid to inferences of fact, since many of the reasons for showing deference to the factual findings of the trial judge apply equally to all factual conclusions. The standard of review for inferences of fact is not to verify that the inference can reasonably be supported by the findings of fact of the trial judge, but whether the trial judge made a palpable and overriding error in coming to a factual conclusion based on accepted facts, a stricter standard.

Making a factual conclusion of any kind is inextricably linked with assigning weight to evidence, and thus attracts a deferential standard of review. 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. 3.

Did the trial judge commit a palpable and overriding error of fact? [ 10 ] The appellants have not established that the trial judge committed a palpable and overriding error of fact. [ 11 ] The appellants ’ main argument is based on a misapprehension of the evidence led at the trial. Crystal Electric argues that Cisakowski stands for the proposition that there is an onus to adduce at least some evidence beyond a bold statement in testimony concerning the existence of a material fact. [ 12 ] With respect, I am of the view that Cisakowski does not stand for such a broad proposition.

Indeed, in para. 28 of that decision, A.C.J. Miller stated: “ Especially where there is some evidence to the contrary, I think it is crucial for a party asserting ownership of seized chattels to put forward strong evidence that should be within his knowledge, if it exists, to support his claim. ” In my view, in the decision cited, A.C.J. Miller was just referring to a much more general principle which is that what is required to prove a position in any particular case depends on all of the circumstances of that case.

For example, if the alleged victim of an unwitnessed assault testified to a degree of force that would inevitably have left visible injuries, there should be evidence of the injuries, but if the alleged assault would not have left visible injuries, then the testimony of the alleged victim, if accepted, is sufficient. In the situation with which he was dealing, A.C.J. Miller was of the view that additional evidence was required.

However, it is to be noted that, in Cisakowski there was apparently evidence to the contrary of what the tenant Fekete contended; in those circumstances, our Court was of the view that something more that a mere statement of ownership was required.. Here, the most that can be said is that Mr. McGrath expressed the view during the trial that the work that he had left undone could have been completed for a few hundred dollars. To the extent that the McGrath statement should be considered evidence as evidence contrary to Mr. Shah ’ s evidence that it cost him $5,700.00 to have the job finished, then Mr.

Shah actually produced the invoice from the electrician who completed the work. Moreover, Mr. Shah gave evidence about the timing of the events in question; in particular, he stated that the problem arose at the end of December, that it was very difficult to find trades to do work at that time, and that he was therefore not in a position to negotiate from any position of strength in attempting to have the work done in time to meet a bank draw-down deadline. In

summary, there was evidence before the trial judge about the necessity and the cost of paying for the work which Crystal Electric Ltd. had left undone. [ 13 ] In any event, the standard of review on appeals based on alleged errors of fact has, since Cisakowski , been set by the Supreme Court of Canada in Housen . Using that standard, the trial judge did not make any errors of fact, including any erroneous inferences of fact. The trial judge heard testimony from the principals of each of the parties as well as testimony on behalf of Mr.

Shah from a neighbouring property owner who also had retained Crystal Electric to perform electrical services. In addition to testimony, the trial judge also received documentary evidence which included a written outline by Mr. McGrath relating to Crystal Electric ’ s claim, an October invoice from Crystal Electric for a total of $26,927.25, the July 19, 2011 quote from Crystal Electric to Mr. Shah, and a bundle of written materials from Mr. Shah that included an outline of his concerns with the Crystal Electric invoice, a quote from another electrician who was not chosen by Mr.

Shah to do the original work but who had submitted a lower quote than Crystal Electric, copies of the cheques paid by Mr. Shah to Crystal Electric, a report of Mr. Shah ’ s complaint to the police about Mr. McGrath ’ s behaviour and a copy of the contract termination notice to Crystal Electric, the invoice from the other electrician to finish the remaining portion of the original contract, a fixtures invoice to show that the electrician who finished Crystal Electric ’ s contract did not supply parts other than bulbs which did not form part of Mr. Shah ’ s claim.

Neither party was prevented from calling evidence and none of the evidentiary initiatives undertaken by the parties was curtailed by the trial judge.

At the commencement of his decision, the trial judge noted: “ . . . we have more supporting paperwork than we generally have with respect to these matters . . . ” While he was giving judgment, there were various interruptions which apparently resulted in minor corrections to the numbers calculated by the trial judge, although the principles on which he was granting judgment did not vary. [ 14 ] In sum, the trial judge demonstrated familiarity with the evidence and the positions of the parties; his decision is entitled to deference.

4. Costs Mr. Shah has been successful on this appeal; I award him costs of $250.00. Heard on the 25 th day of July, 2012. Dated at the City of Ft. McMurray, Alberta this 27 th day of July, 2012. J.B. Veit J.C.Q.B.A. Appearances: Timothy J. Byron, Byron & Company for Crystal Electric Ltd. and Jerry McGrath/Appellants Ashish Shah, on his own behalf/Respondent