Porter Professional Services Inc. APPELLANT And: Tabletop family chiropractic inc. FIRST Respondent And: SCOTT MACNEIL SECOND Respondent, 2019 NLSC 183

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Porter Professional Services Inc. v. Tabletop Family Chiropractic Inc. , 2019 NLSC 183 Date : October 11, 2019 Docket : 201404G0213 Between: Porter Professional Services Inc. APPELLANT And: Tabletop family chiropractic inc. FIRST Respondent And: SCOTT MACNEIL SECOND Respondent Before: Justice Frances J. Knickle On Appeal From: A Decision of the Provincial Court of Newfoundland and Labrador, File # 2014 PCNL 1412C015 dated the 20 th day of October, 2014. Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Hearing: July 8, 2019 Appearances:

Frederick R. Stagg, Q.C. Appearing on behalf of the Appellant Robby D. Ash Appearing on behalf of the First Respondent and Second Respondent Authorities Cited: CASES CONSIDERED: Fishery Products International Ltd. v. Rose , 2018 NLCA 65 ; Benhaim v. St-Germain , 2016 SCC 48 ; F.H. v. McDougall , 2008 SCC 53 ; Shears v. Shears , 2019 NLCA 40 RULES CONSIDERED: Rules of the Supreme Court , 1986, S.N.L, 1986, c. 42, Sched.

D DECISION ON APPEAL Knickle, J. : INTRODUCTION [ 1 ] This is an appeal from both the Provincial Court Trial Judge’s dismissal of the Appellant’s (Porter Professional Services Inc.) claim for breach of contract and allowing, in part, the First Respondent’s (Tabletop Family Chiropractic Incorporated) counterclaim. For the reasons that follow, the appeal is dismissed with costs awarded to the Respondents. background [ 2 ] Porter Professional Services Inc. (Porter) provides drafting services for the construction of new buildings. Harold Porter is the sole owner.

Tabletop Family Chiropractic Incorporated (Tabletop), owned by Scott MacNeil, needed the services of a draftsperson. Tabletop first sought to renovate, and then construct, new premises in which to house a new health service clinic. Porter was contracted by Tabletop to prepare construction plans for the renovations and, then, for the new building. There was no issue between the parties regarding the initial set of plans prepared for the initial renovation in mind. Those plans were prepared, and the parties agreed Tabletop has paid for those plans.

However, when the nature of the project changed to that of construction of a new building, new plans were required. It is these plans that are at the centre of the dispute between the parties. [ 3 ] Porter submitted at trial to have prepared the new plans for the new building as requested, but Tabletop has never paid for those plans. Tabletop counterclaimed it was under no obligation to pay for the plans, because the new plans not only failed to meet his specifications, but more significantly, could not be used by Tabletop to construct the new building. Tabletop argued it had to have further new plans prepared.

Tabletop was successful at trial and awarded damages for costs incurred as a consequence for the delay caused by having to have new plans prepared. Porter’s claim for breach of contract was dismissed. [ 4 ] Porter’s appeal to this Court asserts that in awarding damages to Tabletop, and dismissing Porter’s claim for breach of contract, the Trial Judge made several errors both in fact and in law. issues [ 5 ] In his Notice of Appeal, the Appellant alleged the Trial Judge committed no less than twenty-two errors. Several grounds alleged errors of fact, several of mixed fact and law, and errors of law.

The alleged errors can be grouped as follows. The Appellant asserts the Trial Judge made errors in her findings of fact, errors in her assessment of credibility, particularly of the Appellant and the Respondent, and errors of law in her application of the relevant legal principles. Before turning to the issues, it is necessary to review the standard of review on an appeal from a trial. Standard of Review [ 6 ] The standard of review on a civil appeal was recently considered by the Newfoundland and Labrador Court of Appeal in Fishery Products International Ltd. v.

Rose , 2018 NLCA 65 . “In reviewing questions of law, the standard of review is correctness” (at para. 25). However, with respect to errors of fact, or mixed fact and law, “the standard of review is that of palpable and overriding error” (at para. 25). A palpable error is one that is “obvious or clearly seen” (at para. 28).

An overriding error is an error that is “significant,” and as stated at paragraph 29 of Fishery Products International : “…goes not to just the periphery, but to the root of the challenged finding of fact, such that the fact cannot remain, survive or ‘stand’.” [ 7 ] O’Brien, J.A, speaking for a unanimous court, at paragraphs 30 and 31 of Fishery Products International further cited Wagner, J. (as he then was) in Benhaim v. St-Germain , 2016 SCC 48 . In Benhaim , at paragraphs 38 and 39 , Wagner J. described

palpable and overriding errors as “an error that goes to the very core of the outcome of the case.” It is not enough to show that there was a factual error. The error must go to the core of the outcome of the case. Otherwise, the appellate court is “highly deferential” to factual findings of the trial judge. [ 8 ] As stated in F.H. v.

McDougall , 2008 SCC 53 , at paragraph 55 : An appellate court is only permitted to interfere with factual findings when “the trial judge [has] shown to have committed a palpable and overriding error or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence” ( L.(H.) v.

Canada (Attorney General) , [2005] 1 S.C.R. 401, 2005 SCC 25 (S.C.C.) , at para. 4 (emphasis deleted), per Fish J.). [ 9 ] This deference applies not only to facts as found by the trial judge, but also inferences drawn by the trial judge from established facts, as well as to assessments of credibility - of relevance on this appeal. As stated by Hoegg, J.A. in Shears v. Shears , 2019 NLCA 40 , at paragraph 34 , speaking for a unanimous court: It is well established that credibility assessments are the province of trial judges and are not to be lightly disturbed on appeal.

Trial judges see and hear witnesses and directly receive documentary evidence. Consequently, they are in a better position than appellate judges to evaluate how a witness’ evidence meshes with other trial evidence in the contact of the issues being tried. [ 10 ] This rationale for deference to a trial judge’s assessment of credibility was described in F.H. v. McDougall at paragraphs 72 and 73 : … Assessing credibility is clearly in the bailiwick of the trial judge and thus heightened deference must be accorded to the trial judge on matters of credibility. As explained by Bastarache and Abella JJ. in R. v.

Gagnon , [2006] 1 S.C.R. 621, 2006 SCC 17 (S.C.C.) , at para. 20 : Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L. , that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.

As stated above, an appellate court is only permitted to intervene when “the trial judge is shown to have committed a palpable and overriding error or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence” ( L. ( H.). , at para. 4 (emphasis deleted)). ANALYSIS Were there palpable or overriding errors of fact or mixed law and fact? [ 11 ] Applying the above analytical framework, the Appellant cannot succeed in its appeal.

The difficulty for the Appellant is that despite the numerous errors alleged in its grounds of appeal, Porter has not established any errors in the Trial Judge’s findings of fact that are “palpable and overriding.” In the absence of establishing such errors, there is no basis to interfere with the findings of the Trial Judge. [ 12 ] The Appellant’s arguments in this Court are a repetition of his submissions at trial as to what the facts should be ; not how the Trial Judge erred in the facts that she found. It is insufficient on an appeal to re-argue what “should” have been the facts of a case.

That ship has sailed. Unless the Appellant can show that the factual finding in question constitutes a palpable and overriding error, as explained above, only then will the appellate court intervene. [ 13 ] In my view, upon review of the evidence, there is only one ground raised by the Appellant where the Trial Judge’s factual finding may be in error, and not supported by the evidence. In the overview of the judgement, at paragraph 8, the Trial Judge stated that construction did not start on the new building until “soon after” September 12, 2012. The Trial Judge stated: Dr. MacNeil did not pay Mr.

Porter’s invoice for the reasons I will discuss below. On April 16, 2012 Mr. Porter had the Provincial Court of Stephenville issue a Statement of Claim against Tabletop and Dr. MacNeil. While the matter was before the court, Tabletop hired Mr. Glenn Fisher to prepare a new set of drawings for the project. According to the testimony of defence witness, Keith Abbott, a design approval technician with Government Services, Mr. Fisher’s drawings were approved by an architect on August 31, 2012. They were subsequently approved by Mr. Abbott’s department on September 7, 2012.

The construction of the building began soon after. [emphasis added] [ 14 ] If the statement “…construction of the building began soon after” represents a specific finding of fact that the construction of the new building did not commence until after September 2012, I would agree with the Appellant that this is not a finding that is supported by the evidence and is in error.

However, I am not satisfied that the above statement by the Trial Judge represents a specific finding of fact that there was no construction until September of 2012, as asserted by the Appellant. [ 15 ] This statement is made at the beginning of the judgement, in the “overview.” It does not form part of the analysis or assessment of the evidence but a

summary of the circumstances. As part of the “overview” the Trial Judge may have been paraphrasing more than making specific findings of fact. [ 16 ] The remainder of the judgement and reference to the evidence is consistent with the

interpretation that what was meant by that

statement in the overview was nothing more than paraphrasing. The ample and un-contradicted evidence from the witnesses, including Tabletop, is that at least some construction began almost a year earlier, in the fall of 2011 and the winter of 2012.

For example, there was un-contradicted evidence that the foundation was poured in the fall of 2011, and throughout January and February 2012 the walls, some roofing, and even some shingling were completed. [ 17 ] According to the testimony of Tom O’Brien, the Mayor at the time, it was precisely because of this unauthorized and continued construction that the Town issued a “stop work order,” and then even charged the Respondent with violating that stop work order. That there was construction during the winter of 2012, formed a substantial part of the evidence tendered by the Appellant.

Indeed, at trial, the Appellant made a point of tendering the record of conviction registered against the Respondent for violation of this stop work order. The evidence was clear that construction stopped in April of 2012 when the charges were laid.

The evidence was also clear that after September 2012, construction re-commenced in earnest in accordance with regulatory requirements. [ 18 ] Given the above, I am not prepared to find that the impugned statement in the overview represents a specific finding of fact by the Trial Judge that there was absolutely no construction before September 12, 2012. [ 19 ] Even if the statement is an indication of a misunderstanding by the Trial Judge as to when construction of the building occurred, and an error in fact, as it cannot be supported by the evidence, it is not in my view an error that is palpable and overriding that goes to the “root” of the outcome of the case. [ 20 ] The significance of the date of September 12, 2012, for the Trial Judge was not that it represented the point at which construction “began,” but that it represented the end point as to how long it took for the new draftsperson, Glenn Fisher, to prepare the replacement plans, a period of about seven months (Decision of Trial Judge at para. 54).

This period was significant for the Trial Judge, because the Respondent claimed damages as a result of the delay by having to obtain new plans.

Having accepted the Respondent’s argument that the delay was caused by the failure of the Appellant to provide his plans in a timely way, it was necessary for her to ascertain the appropriate duration of that delay. [ 21 ] It was on the basis of this seven-month period it took for Glenn Fischer to prepare replacement plans that the Trial Judge (fairly in my view) calculated by analogy that the Respondent could have expected the Appellant to have completed his plans and gained the necessary approval in seven months.

Finding as a fact that the Appellant commenced his plans “no later than” August 11, 2011, the Trial Judge then calculated the Respondent reasonably could have expected to have those plans seven months later, by the end of February, 2012.

Damages accrued after that date until the new plans by Glenn Fisher were prepared and the necessary approval completed in September 2012. [ 22 ] Whether the construction began for the first time “soon after” September 2012, or re-commenced with the proper permits “soon after” September 12, 2012, was immaterial to the Trial Judge’s determination of when damages began to accrue for the Respondent.

What mattered was not that this date represented when construction re-commenced, but when the plans were completed and the necessary approvals were obtained. [ 23 ] Given the above, even if I were to accept that the Trial Judge made a factual error (and I am not persuaded by this argument) in finding that construction of the building began after September 2012, it was not an error that went to the “core of the outcome of the case.” The Trial Judge’s Assessment of Credibility [ 24 ] The Appellant submits the Trial Judge erred in her assessment of the credibility of the Appellant.

As stated earlier, a very high level of deference is accorded to the Trial Judge’s assessment of credibility. The Trial Judge thoroughly reviewed the testimony of the Appellant and the Respondent, and gave detailed reasons as to why she did not accept the Appellant’s evidence; particularly where it differed from the Respondent. She also found that while the Respondent was corroborated by other evidence, the Appellant was in fact contradicted. I see no error in her application of the appropriate principles.

The phone call evidence [ 25 ] The Appellant maintains the Trial Judge placed too much weight on an audio recording of a phone call between the Appellant and the Second Respondent. The Appellant submitted that because the audio recording did not record the entire phone call, it may not accurately reflect what happened between the Appellant and the Respondent and thus should not have been relied upon by the Trial Judge to assess the credibility of the Appellant.

I disagree. [ 26 ] While I accept that an audio recording of an incomplete conversation warrants careful scrutiny in determining its probative value, if any, I see no error in the way in which the Trial Judge relied upon the recording. The Trial Judge found the recording probative in two ways. Firstly, the recording contradicted the Appellant’s testimony that the Respondent was the person who was aggressive and argumentative. The Trial Judge listened to the call and formed the opinion that the Appellant’s description was contradicted by what she heard.

The Trial Judge stated at paragraph 34 in the last “bullet: ” Mr. Porter testified that during a phone call with Dr. MacNeil on January 31, 2012, Dr. MacNeil was aggressive and was yelling at him. After hearing the recorded call, it is clear that Mr. Porter’s description of Dr. MacNeil’s demeanour is completely inaccurate and self- serving. His evidence in this regard demonstrates a carelessness with the truth. [ 27 ] In so doing, the Trial Judge relied on the Appellant’s manner of speaking as heard in the audio recording.

I see no error in her use of the audio recording in this way, and do not see that the fact not all of the recording was available undermines this reliance. [ 28 ] Secondly, the Trial Judge found the audio recording contradicted the Appellant because, contrary to the testimony of the Appellant, the recording captured the Respondent raising issues with the new plans. These statements by the Respondent contradicted the Appellant because the Appellant testified that he was not aware of any dissatisfaction by the Respondent with the plans until after he commenced litigation in April of 2012.

The phone call occurred at the end of January 2012.

[ 29 ] In my view, it was open to the Trial Judge to rely on the statements by the Respondent in the phone call as evidence that contradicted the Appellant’s testimony. I see no error in the Trial Judge’s reliance on the phone call in her assessment of credibility of the Appellant.

I would give no effect to this ground of appeal. [ 30 ] Finally, the Appellant asserted that in assessing the credibility of the Respondent, the Trial Judge made no mention of the fact that the Respondent pursued the construction of his new building in the absence of the proper permits and was convicted of a regulatory violation by so doing. [ 31 ] The Trial Judge made no mention of this evidence in her judgement. I do not see the absence of reference to this evidence as indicative of a failure on her part to consider this evidence.

A Trial Judge does not necessarily commit an error by failing to refer to every piece of evidence in a judgement. It is the duty of a Trial Judge to consider all the evidence and determine what evidence is accepted. [ 32 ] The Trial Judge did describe the testimony of the Respondent as “forthright” and “dispassionate,” “did not exaggerate,” and showed “absolutely no animosity or vindictiveness toward Mr. Porter” (Decision, at paragraph 36).

While it may have been helpful for her to explain what significance she placed on the evidence of the Respondent having been convicted of a regulatory offence, if any, in assessing his credibility, the fact that she did not mention the evidence, standing alone, does not mean she was not aware of these facts or did not take them into account. [ 33 ] I see no basis to interfere with the Trial Judge’s assessment of the credibility of either the Respondent or the Appellant and would dismiss this ground of appeal.

The Trial Judge’s Application of the Law [ 34 ] While not argued at the hearing, in his factum the Appellant submits that the Trial Judge failed to apply the doctrine of “substantial compliance” in determining the contract had been breached by the Appellant. The Appellant has failed to establish that the Trial Judge committed any error by failing to consider the doctrine of substantial compliance.

It is clear from the decision that the Trial Judge found the Appellant’s breach of the contract was fundamental to the contract because however complete were the plans provided by the Appellant, they were plans that the Respondent could not use. In dismissing the Appellant’s claim, the Trial Judge concluded, at paragraph 39: “In the end, I am not satisfied that Porter Professional provided Tabletop with what it had contracted for.” [ 35 ] There is no basis to overturn the decision on this ground. conclusion [ 36 ] The Appeal is dismissed.

There is no basis to overturn the decision on the basis of errors of fact, or in law, or mixed errors of law and fact. There is no basis to interfere with the assessment of credibility, and there is no basis to support that there was a misapplication of the proper principles. [ 37 ] Costs are awarded to both the First and Second Respondents under Column III of the Rules of the Supreme Court , 1986, S.N.L, 1986, c. 42, Sched. D .

Counsel who appeared for both the First and Second Respondent seeks costs for the Second Respondent to be taxed under Column VI, on the basis that the Second Respondent should not have been included in the appeal. Counsel submitted it has been the position of both the parties that the Second Respondent played no role in the trial. [ 38 ] I see no basis to award costs to the Second Respondent at a higher amount than the First Respondent.

I accept that at trial, the parties agreed that the Second Respondent played no role in the proceedings, and if liability were to be found for the Appellant, it would be as against the First Respondent only. Likewise, while named in the Appeal, the Second Respondent played no role except that counsel, who appeared for the First Respondent, also appeared on behalf of the Second Respondent. However, the Second Respondent also filed no factum and had no involvement in the proceedings. [ 39 ] I am not satisfied that the Second Respondent was “unnecessarily” named in the Appeal, as asserted by counsel.

The First Respondent and the Second Respondent are interconnected. The First Respondent is the corporation run by the Second Respondent. Whatever was agreed at trial, there was never any formal application to remove the Second Respondent as a party.

Had the Appellant been successful, this may have had a practical impact for the Second Respondent. [ 40 ] Given this, while I am prepared to award costs to the Second Respondent, they will be in the usual course, and the same as awarded to the First Respondent. [ 41 ] In conclusion, the following is ordered by the Court: 1) The appeal is dismissed. 2) The Respondents are awarded costs on a Party and Party basis as per Column III of the Rules . _____________________________ Frances J. Knickle Justice