Vicon Enterprises Inc. v. Ramsay, 2017 BCSC 535

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Vicon Enterprises Inc. v. Ramsay, 2017 BCSC 535 Date: 20170331 Docket: 16-3906 Registry: Victoria Between: Vicon Enterprises Inc. Appellant And: Ken Ramsay Respondent Before: The Honourable Madam Justice Dorgan On appeal from: An order of the Provincial Court, dated August 16, 2016 ( Ramsay v. Vicon Enterprises Ltd. , Western Communities 6417) Reasons for Judgment The Appellant Appearing in Person: W. Cox The Respondent Appearing in Person: K. Ramsay Place and Date of Hearing: Victoria, B.C. November 15, 2016 Place and Date of Judgment: Victoria, B.C.

March 31, 2017 Introduction [ 1 ] Mr. Cox, on behalf of his company, Vicon Enterprises Inc. (“Vicon Enterprises”), appeals from a decision in the Provincial Court of August 16, 2016 in which the trial judge ordered Mr. Cox’s company to pay the claimant, Mr. Ramsay, $4,498.20 in damages arising from defects in the construction of a concrete patio. [ 2 ] Sections 5 and 13 of the Small Claims Act , R.S.B.C. 1996, c. 430, provide that: 5

(1) Any party to a proceeding under this Act may appeal to the Supreme Court an order to allow or dismiss a claim if that order was made by a Provincial Court judge after a trial. … 13

(1) On an appeal, the Supreme Court may do one or more of the following: (

a) make any order that could be made by the Provincial Court; (

b) impose reasonable terms and conditions in an order; (

c) make any additional order that it considers just; (

d) by order award costs to any party to the appeal in accordance with the Supreme Court Rules. [ 3 ] The trial in this matter concerned the construction and installation of a patio at Mr. Ramsay’s home by Mr. Cox and his company, Vicon Enterprises. The price paid by Mr. Ramsay to Mr. Cox and his company for the project was $4,498.20. The work was completed in May 2013. That is virtually the extent of the uncontradicted evidence. [ 4 ] Mr. Ramsay testified that approximately three weeks after completion of the work, he complained to Mr.

Cox of a crack in the patio, and of white chalk-like footprints which he said were visible on its surface. [ 5 ] Discussions between the parties ensued. Apparently, the parties arranged to meet in mid to late June 2013 for a viewing of the patio. However, Mr. Cox did not attend the pre-arranged meeting. According to the evidence of Mr. Cox, he missed the appointment as the date had not been properly entered in his calendar. [ 6 ] Eventually and in the fall of 2013, the parties discussed options such as a possible regrouting of the patio. Overall, the evidence points to this situation: Mr.

Ramsay was unhappy with the quality of the patio he paid for and Mr. Cox, while not conceding

the work was inferior, attempted to satisfy a dissatisfied customer by some remediation efforts. Further discussions between the partiesbrought no resolution. Mr. Ramsay sued Vicon Enterprises. He sought a judgment for the full amount paid, namely, $4,498.20. [7] Following an April 2015 settlement conference in the Provincial Court, remediation efforts were discussed and attempted. [8] The parties gave conflicting evidence at trial as to the terms agreed to, whether for the original patio contract or the efforts atremediation.

For example, the parties gave conflicting evidence regarding the concrete colour of the patio at the time it was originallyinstalled and as remediation attempts were made. They gave conflicting evidence about whether a crack in the patio was one whichwould be expected in the normal settling of the concrete. [9] Mr. Ramsay put in evidence photos of the defects as he perceived them. The evidence is not clear as to when each of thephotos referred to was actually taken. Mr. Cox contended the photos were misleading and not truly reflective of the state of the patioupon completion. He testified that Mr.

Ramsay had “zoomed in” on certain areas of the patio and accordingly, the photos inaccuratelydepicted the true state of the patio. [10] The parties gave conflicting evidence of what, if any, remediation Mr. Cox was obligated to undertake and they gave conflictingevidence about the nature and quality of the remediation agreed to. Overall, their evidence was in conflict as to nature of the end productwhether before or after remediation. [11] They gave conflicting evidence as to who was responsible for the “white chalk-like footprints” which Mr. Ramsay saidappeared in the patio after installation.

They gave conflicting evidence as to when these footprints in fact became visible. [12] The parties did not agree as to the appropriate sealant to be applied or when it was to be applied.

They disagreed about whetheror not spalling, that is, chipping or flaking, on the surface of the patio had indeed occurred, and if so, why it occurred. [13] No opinion evidence was tendered on issues between the parties such as the settling of the concrete, the preparation of the sitewhere the patio was installed, the type of sealant, the colour or discolouration of the concrete used, the industry standards to be met in theconstruction of such a patio, the need for remediation or the quality of remediation undertaken, or the reasonableness of the cost of theoverall job.

On this point, opinion evidence of industry standards is not a prerequisite, especially in a case such as this where each partyis self-represented and the likely cost of obtaining an outside admissible opinion is prohibitive in both time and money. I note theabsence of opinion evidence in this case because without such evidence, the challenge for the trial judge in sorting out the conflictingevidence as to the quality of the work undertaken was arguably made more difficult. [14] As noted above, the trial judge ordered Mr. Cox to pay Mr. Ramsay $4,498.20.

The reasons of the trial judge are reproducedbelow in their entirety: [1] THE COURT: This is an unusual situation involving the laying down of a decorative concrete patio. I took the unusual step ofviewing it with my Clerk and the parties and the Deputy Sheriff because the pictures were taken closer to the time when the work wasdone and I thought a look might assist. Unfortunately, the viewing took place over three years after the work was done. [2] The work was completed sometime in late May of 2013.

The bill was paid forthwith and very early on, within two weeks, and Iam looking at an email train June 14th, the homeowner, the claimant here, made his first complaint, “There's a crack in my new concretepatio. There are footprints beneath the sealer.” [3] Promises are made by the defendant to remediate. He meets with the homeowner. It is decided to leave it over the winter and adate is set up for June of 2014 to do the work. The claimant takes time off work. The defendant's crew is a no-show. Nobody showedup and there was no call or explanation.

Back and forth went the emails and complaints until finally in October 2014 the claimant,understandably having run out of patience, says, “Fix it or give me my money back.” Nothing is done. [4] It was not until after the first settlement conference in April of 2015 that any attempt at remediation was done, and then itresulted in a much darker patio and nothing was done with respect to the cracks, and I am satisfied further that the remediation attemptalso cut corners.

If it was as simple to remediate the slab as the defendant says it is, why did he not take the opportunity to do the workhimself? [5] I ask myself this, did the claimant get what he bargained for and what he paid $4,498.20 for, and my answer is, no, he did not. He is entitled to his money back, $4,498.20 is the amount of the judgment. To that will be added costs of filing and service fees. [REASONS FOR JUDGMENT CONCLUDED] Standard of Review [15] The appropriate standard of review where it is alleged that a trial judge made errors of fact and law was stated in Smithers PartsLtd. v. Hudson, 2009 BCSC 1645, by A. W.

MacKenzie J. as follows: [26] The standard of review on pure questions of law is one of correctness, but the standard of review for findings of fact is theycannot be reversed unless the trial judge has made a palpable and overriding error. A palpable error is one that is plainly seen: Housenv. Nikolaisen, 2002 SCC 33. An appeal court should only intervene when there is a material error, a serious misapprehension of theevidence, or an error in law: Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518 at paras. 11-12; R. v. Clark, 2005 SCC 2.

This court will only intervene in an appeal from Small Claims Court where the trial judge was clearly wrong in his apprehension of thelaw or the facts: Priority Buildings Services Ltd. v. Ali, [1999] B.C.J. No. 2820 at para. 10, and Stewart v. Strutt, [1998] B.C.J. No. 636at para. 10, both being Provincial Court decisions. [27] … I must find palpable and overriding error in order to reverse findings of fact or that the trial judge was clearly wrong in hisapprehension of the facts; thus, the rules are the same as in the British Columbia Court of Appeal on a review from a judgment of this

court. [16] This statement of the law was recently quoted by our Court in Zhu v. Beyond Beige Interior Design Inc., 2016 BCSC 2358, atpara. 4. Adequacy of Reasons for Judgment [17] It is well established law that the adequacy of reasons given by the trial judge is a threshold determination on an appeal. [18] In Gibson v. Insurance Corp. of British Columbia, 2008 BCCA 217, the court quoted the following from Tysoe J.A. in Bedwellv.

McGill, 2008 BCCA 6, for the proposition that a determination of adequacy of reasons is a threshold determination on appeal: [21] The question of whether a trial judge's reasons are adequate is a threshold issue. If the reasons are not adequate to permit properappellate review, the appeal must be allowed and a new trial ordered. Inadequate reasons do not enable the appellate court to make itsown findings of fact and conclusions of law based on those findings.

In addition, the issue of adequacy of reasons is different than theissue of whether the failure of the trial judge to address critical evidence constitutes a palpable and overriding error. [19] The Court of Appeal in Gibson goes on to state: [32] Finally and most recently in R. v. Dinardo, [2008] S.C.J. No. 24, 2008 SCC 24, the Court had occasion to again consider thesufficiency of reasons issue and to revisit Sheppard. [33] Madam Justice Charron, for the Court, writes at para. 25: Sheppard instructs appeal courts to adopt a functional approach to reviewing the sufficiency of reasons (para. 55).

The inquiryshould not be conducted in the abstract, but should be directed at whether the reasons respond to the case's live issues, having regard tothe evidence as a whole and the submissions of counsel (R. v. D. (J.J.R.) (2006), (ON CA), 215 C.C.C. (3d) 252(Ont. C.A.), at para. 32).

An appeal based on insufficient reasons will only be allowed where the trial judge's reasons are so deficientthat they foreclose meaningful appellate review: Sheppard, at para. 25. [34] The gravamen in the reasons debate is their adequacy to permit proper appellate review. [35] The scope of that review is discussed at length in Housen v. Nicholaisen [sic], 2002 SCC 33, [2002] 2 S.C.R. 235.

It variesbetween the standards of correctness and palpable and overriding error depending on whether the question is one of law, mixed fact andlaw or, fact. [36] None of these standards can be properly applied on appellate review, in a case such as this, when the court is presented only withthe trial judge's conclusions, shorn of any indication of the reasoning process by which he or she reached those conclusions. [20] Although the appellant did not raise the inadequacy of reasons as a ground of appeal, I am satisfied that in the appropriate case,leave may be granted to amend the Notice of Appeal and deem it amended to include this ground of appeal.

See Eaglecraft Leasing Inc.v. Allpen Diving Ltd., 2008 BCSC 1428, at paras. 35-40, where Halfyard J. did just that: [35] I think it is arguable that all of this evidence might be capable of supporting the inferences that the water found in the fuel by Mr.Nelson was saltwater, that he failed to remove all of it from the fuel tanks and that some of it remained in the starboard fuel tank at thetime of sale. [36] But the trial judge does not reveal the path he took to the critical conclusion that there was saltwater in the fuel tank when theboat was sold. Moreover, he does not explain why he rejected Mr.

Nelson's evidence, or how much of it he rejected. That leaves openthe possibility that the trial judge rejected Mr. Nelson's evidence because he accepted Mr.

Brown's evidence as proving that there waswater in the fuel on December 23rd, which would seem to be faulty reasoning. [37] It is also possible that the trial judge inadvertently engaged in faulty “post hoc, propter hoc” reasoning, by concluding that thewater in the fuel tank, discovered by the appellants before sale, was saltwater, because saltwater was found in the fuel after the enginebreakdown (which occurred about a month after the sale). [38] In the end, I am unable to determine whether the trial judge's apparent misapprehension of the evidence led him to a wrongresult.

I am not saying merely that the trial judge did a poor job of expressing himself. In my opinion, the reasons are inadequate topermit meaningful consideration of the grounds of appeal. This amounts to an error of law, which can justify a new trial. See Gibson v.I.C.B.C., 2008 BCCA 217, paragraphs 20 - 23; 27 - 36. [39] Inadequacy of reasons was not raised as a ground of appeal. If I thought further argument would benefit the court in decidingwhether an amendment should be permitted, or as to whether such ground has been made out, I would request further written argument.

But I am convinced that both issues should be answered in the affirmative, and further argument will put the parties to additionalexpense. [40] Accordingly, I grant leave to the appellants to amend the Notice of Appeal to add the new ground of appeal.

The Notice ofAppeal will be deemed to be amended so as to allege inadequacy of reasons as an added ground, and it will not be necessary to file anamended document. [21] On the authorities, I am required to consider the threshold issue on this appeal, namely, whether the reasons of the learned trialjudge are adequate and therefore capable of appropriate appellate review. [22] In my view, it was incumbent upon the trial judge to resolve the conflicts in the evidence regarding the terms agreed to betweenthe parties in the original contract, the nature if any of defects which arose subsequently and when they arose, whether or not Mr.

Cox

and his company were required to remediate their work so as to bring it to the standard and terms the parties agreed upon initially, the terms of the remediation agreed to by the parties prior to it being undertaken, and the nature of and the result flowing from the remediation undertaken. [ 23 ] The reasons for judgment of the trial judge reflect conclusions reached, conclusions which a trial judge is required and expected to reach.

It is arguable that the evidence before the trial judge was capable of supporting the conclusions that were drawn, but the reasons for judgment do not reveal the path taken to reach the critical conclusion, namely, that Mr. Ramsay did not get what he paid and bargained for. In my view, and with respect, in order to reach that conclusion, the trial judge would be required to explain what evidence was accepted and what was rejected and why.

In my view, the reasons are not adequate to permit a meaningful consideration of the grounds raised in the appeal. [ 24 ] As in Allpen Diving , I have concluded that it is appropriate to grant leave to the appellant to amend the Notice of Appeal to add the new ground of appeal, namely, the inadequacy of the reasons. The Notice of Appeal is deemed to be so amended without the necessity of filing an amended document. [ 25 ] I have concluded that the new ground of appeal has been made out. Accordingly, the appeal is allowed. The remedy is to order a new trial in Supreme Court.

See Allpen Diving at paras. 49-50 and s. 13 of the Small Claims Act . [ 26 ] As noted above, s. 13(1) (

d) of the Small Claims Act allows this court to make an order for costs. Neither party made submissions in respect of costs, however, the parties have liberty to apply. “J. L. Dorgan, J.” The Honourable Madam Justice Dorgan