O'Connell v. Custom Kitchen & Vanity, 1986 CarswellOnt 414, 11 C.P.C. (2d) 295, 56 O.R. (2d) 57, 17 O.A.C. 157.
Ontario Divisional Court
O’Connell v. Custom Kitchen & Vanity
1986 CarswellOnt 414, 11 C.P.C. (2d) 295, 11 C.P.C. (2d) 303, 17 O.A.C. 157, 39 A.C.W.S. (2d) 326, 56 O.R. (2d) 57, 5 W.D.C.P. 455
In the Matter of the Judicial Review Procedure Act, R.S.O. 1980 c. 224 (am. 1984, c. 11)
And In the Matter of the Small Claims Court R.S.O. 1980 c. 476
And In the Matter of the Provincial Court (Civil Division) Act, R.S.O. 1980, c. 395
And In the Matter of an action commenced in the Mississauga Small Claims Court as action number 4137/85
Doug O’Connell (Plaintiff / Respondent) and Custom Kitchen and Vanity and Salvatore Tarasio (Defendants / Appellants)
Heard: July 11, 1986
Judgment: July 11, 1986
Counsel: Massimo Panicali, for Defendants / Appellants
Doug O’Connell, Plaintiff / Respondent appearing personally.
Subject: Civil Practice and Procedure; Evidence
Related Abridgment Classifications
For all relevant Canadian Abridgment Classifications refer to highest level of case via History.
Evidence --- Admissibility — Procedure — Objections — Waiver of right to object — By failing to object in timely manner
Evidence --- Hearsay rule and exceptions — Hearsay — Practice and procedure
Practice --- Costs — Costs of appeals — Persons entitled to costs — Successful party deprived of costs
Evidence — Procedure of admissibility — Effect of failure to object — Written estimate of cost of repair — Provincial Court (Civil Division) Judge having discretion to admit written witness statement even if not served on other party in accordance with r. 19.02 — Section 80 of Courts of Justice Act, S.O. 1984, c. 11, s. 80 — Ontario Provincial Court (Civil Division) Rules, r. 19.02.
Costs — Costs of appeals — Persons entitled to costs — Successful party deprived of costs — Appeal from Provincial Court (Civil Division) judgment — Respondent successfully defending appeal — Respondent not entitled to costs — Respondent not represented by counsel.
Judges and Courts — Provincial Courts — Ontario — Small claims — Trial — Evidence — Trial Judge admitting written statements into evidence notwithstanding that statements not served on defendant pursuant to r. 19.02 and defendant not objecting until making final submissions — Section 80 of Courts of Justice Act superseding r. 19.02 and providing discretion to admit hearsay — Courts of Justice Act, S.O. 1984, c. 11, s. 80 — Ontario Provincial Court (Civil Division) Rules, r. 19.02.
The plaintiff successfully sued the defendant contractor in Provincial Court for the cost of repairing the defendant’s unworkmanlike tile work. The plaintiff and his neighbour gave detailed evidence concerning the unworkmanlike quality of the defendant’s work and filed photographs of the work as exhibits. The plaintiff also filed as exhibits three written estimates of the cost of repairing the work which he had not served on the defendant in advance. The defendant did not object to the admissibility of the estimates at the time they were tendered as evidence; however, while making his final submissions to the Judge, the defendant objected to the admitting into evidence of the three estimates. Judgment was granted in favour of the plaintiff.
The appeal was dismissed.
Section 80 of the Courts of Justice Act, 1984, and r. 19.02(1) gave the Provincial Court Judge a discretion to admit into evidence a witness statement which had not been served on the defendant in advance of the trial date as provided for in r. 19.02(1). In the present case where the defendant had not made a timely objection to the admissibility of the evidence, the trial Judge properly exercised his discretion in admitting the evidence. In any event, there was ample evidence to support the trial judgment without relying on the estimates.
Table of Authorities
Courts of Justice Act, S.O. 1984, c. 11 —
Ontario Provincial Court (Civil Division) Rules —
APPEAL by defendant from judgment of Provincial Court (Civil Division).
White J. (orally):
1 This is an appeal from a judgment of Deputy Judge Watson in the Mississauga Small Claims Court made on December 4, 1985.
2 On June 8, 1985, the defendant entered into an agreement with the plaintiff to do tile work in the bathroom of the plaintiff’s property. The price was approximately $1,400 and about $400 was paid. The plaintiff, Mr. O’Connell, refused to pay the remaining $1,000 on the basis that the job was not done in a workmanlike way.
3 The plaintiff, taking a position that the job done by the defendant had to be remedied, went and obtained from other tile contractors three estimates to re-do the job. The plaintiff gave evidence before the trial Judge including a great deal of detail as to various items of improper workmanship which I shall not repeat. He, during the course of giving his evidence, filed the three estimates. He abandoned any part of his claim exceeding $1,000, the average range of the estimates in question being $1,500.
4 In addition to giving his own detailed evidence as to the unworkmanlike quality of the defendant’s work, he filed photographs. At the time the plaintiff offered in evidence the three estimates no objection was made to the admissibility of those estimates by counsel for the defendant. In addition to the evidence of the plaintiff, which was graphic as to the unworkmanlike job, and the estimates which would indicate the cost of, in effect, re-doing that job, the plaintiff called a neighbour who was a real estate saleslady and in similarly graphic language she indicated that the job was a poor job. She expressed the opinion that the job was, in so many words, worth nothing.
5 Counsel for the defendant, after all the evidence was in and while making his submissions to the Judge, pointed out to the Judge that he should not have admitted into evidence the three estimates; this, notwithstanding, that he, as counsel for the defendant, had not put forward a timely objection to the admissibility as evidence of the three estimates when they were proffered to the Court. Counsel for the defendant argues on this appeal that the learned trial Judge admitted hearsay evidence, namely the three estimates and in part, based his judgment on that hearsay evidence, and that therefore this Court should correct the error of the trial Judge by setting aside the Small Claims Court judgment and referring back the action for a further trial.
6 The relevant section of the Courts of Justice Act, S.O. 1984, c. 11 which deals with the admissibility of hearsay evidence is s. 80:
80. — (1) Subject to subsections (2) and (3), the Provincial Court (Civil Division) may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in any other court,
(a) any oral testimony; and
(b) any document or other thing,
relevant to the subject-matter of the proceeding and may act on such evidence, but the court may exclude anything unduly repetitious.
8 The only rule of the Provincial Court which has been drawn to my attention which might be relevant is r. 19.02:
Written Statements and Documents
19.02(1) A written statement or document described in subrule (2) that has been served on all parties at least fourteen days before the trial date shall be received in evidence, unless the trial judge orders otherwise.
(2) Subrule (1) applies to the following written statements and documents:
1. The signed written statement of any witness, including the written report of an expert, to the extent that the statement relates to facts and opinions to which the witness would be permitted to testify in person.
2. Any other document, including but not limited to a hospital record or medical report made in the course of care and treatment, a financial record, a bill, documentary evidence of loss of income or property damage, and a repair estimate.
Name and Address of Witness or Author
(3) A party who serves on another party a written statement or document described in subrule (2) shall append to or include in the statement or document that is served the name and address for service of the witness or author.
(4) A party who has been served with a written statement or document described in subrule (2) and who wishes to cross-examine the witness or author may summon the witness or author as a witness under subrule 19.03(1).
9 It is noteworthy that r. 19.02 is not prohibitory; that is it does not prevent a document which has not been served on all parties, at least 14 days before trial date, from being admitted into evidence; it leaves a discretion in the trial judge to admit a document that has not been so served; even if the section were prohibitory, in the absence of prior service, it would seem that s. 80 of the Courts of Justice Act 1984 would supersede r. 19.02(1). It is my opinion that the learned trial Judge did have an overriding discretion under s. 80 having regard to the use of the words “may admit as evidence” as contained therein to admit into evidence the three impugned estimates.
10 If counsel for the defendant, who presumably was aware of the hearsay nature of the testimony found in these estimates had objected when they were proffered, and had he asked the opportunity of cross-examining the makers of the estimates, and had he been refused that right, by the learned trial Judge, it would be an entirely different matter, and most likely such a refusal would amount to an injustice, notwithstanding the breadth of section 80. However, counsel for the defendant chose to object, if I may use that term, to the admissibility of the estimates, not during the course of the trial, at the time they were proffered, which would be the appropriate time to object, but during submissions, and that, if I may say so with respect, is an improper practice. The time to object to testimony, that counsel considers to be inadmissible, is at the time that the evidence is offered in evidence, and not during final submissions to the Court.
11 Thus I find that the learned trial Judge did have the jurisdiction to admit the estimates into evidence, particularly in view of the way that defence counsel chose to refrain from objecting at the right time. If I may say so respectfully, the system of the Courts could not possibly work unless inadmissible evidence is objected to at the proper time.
12 In any event, there is ample evidence before the learned trial judge consisting of that of Mr. O’Connell and his neighbour, which the learned trial Judge found that he believed, which support the proposition, when coupled with the photographs, that the job was a poor job. Even if one were to ignore, for the sake of discussion, the three estimates which were admitted into evidence, there would still be sufficient evidence before the Judge to support his finding that the damages of the plaintiff were at least $1,000. The very estimate of the defendant upon which he bid the job was in the range of the three estimates that were admitted into evidence; thus, it would appear that prima facie the price of re-doing the job was at least $1,400. That, in a sense came out of the defendants’ own mouth; that was the amount of his own estimate. It is not unreasonable, therefore, to infer that the cost of re-doing the job, excluding whatever cost would be entailed in tearing out the bad work, would be similar. Therefore, in my opinion, there was evidence to support the findings of the learned Judge and in my opinion this court does not have any ground to interfere with his findings as a consequence of which he allowed the plaintiff damages of $1,000, and whereby he dismissed the counterclaim in the same amount. Therefore this appeal is denied.
13 No costs are allowable to Mr. O’Connell on the appeal notwithstanding the good effort he put forth in responding to the appeal before this Court, because he is not represented by counsel.
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