



COURT OF APPEAL FOR ONTARIO

CITATION:
    Sharafbayani v. Jackson Roofing Corporation, 2014 ONCA 271

DATE: 20140407

DOCKET: C55932

Cronk, Gillese and Strathy JJ.A.

BETWEEN

Mansoor Sharafbayani

Plaintiff (Respondent)

and

Jackson Roofing Corporation

Defendant (Appellant)

Michael R. White, for the appellant

William D. Dunlop and Shayna A. Beeksma, for the
    respondent

Heard: April 3, 2014

On appeal from the judgment of Justice Gisele M. Miller
    of the Superior Court of Justice, dated July 18, 2012.

ENDORSEMENT

[1]

This appeal arises from a simplified proceeding under Rule 76. In 1999
    the respondent contracted with the appellant to install a new roof on his
    multi-unit residential building.

[2]

The appellant moved for a non-suit at the conclusion of the respondents
    case. In her ruling on the procedure to be followed on the non-suit motion,
    reported at 2011 ONSC 2707, the trial judge held that in an action under the
    simplified rules, a defendant moving for a non-suit is required to elect
    whether to call evidence, in the manner described by Laskin J.A. in
FL
    Receivables Trust 2002-A (Administrator of) v. Cobrand Foods Ltd.
(2007),
    85 O.R. (3d) 561 (C.A.), at paras. 12-14. Following this ruling, the appellant
    withdrew its non-suit motion, abandoned its counterclaim on its invoice, and
    elected to call no evidence.

[3]

In the result, the trial judge was left with only the respondents
    evidence, which included the evidence of an expert whom the trial judge found
    qualified to testify on the subject of roof installation and maintenance: see
    2010 ONSC 3496. The trial judge accepted the respondents evidence that:

·

there had been no complaints by tenants of leaks in the 12 years
    before the replacement of the roof;

·

the appellant gave a 10 year warranty on its work;

·

beginning in 2005, within the warranty period, the roof leaked
    persistently;

·

the appellant returned on numerous occasions, pursuant to its
    warranty and at no charge, to attempt to correct the problem, without any
    success;

·

in spite of the installation of a new roof membrane by the
    appellant in 2006, the roof continued to leak, notwithstanding further
    attendances and repairs by the appellant, pursuant to its warranty; and

·

in March 2007, the appellant denied responsibility for any more
    repairs and sent the respondent an invoice for $24,035.50 for its efforts to
    address what it claimed were condensation problems outside its control.

[4]

Based on these and other findings of fact, the trial judge found the
    appellant liable for breach of contract for failing to fulfill its warranty.

[5]

In our view, the trial judges findings of fact are supported by the
    evidence and the appellant has demonstrated no palpable and overriding error in
    her assessment of the evidence. Nor are we persuaded that there was error in
    the legal conclusions flowing from that evidence. The trial judge was entitled
    to find that a new roof is not supposed to leak and that the appellants
    warranty work did not correct the problem. In the absence of evidence from the
    appellant, demonstrating that the persistent leaking after the installation and
    repair of the roof was due to circumstances outside its control, the trial
    judge was entitled to find that the appellant had failed to fulfill its
    contractual warranty. The appellant having abandoned its efforts to resolve the
    problem pursuant to its warranty, the respondent was entitled to claim damages
    arising from the leaking of the roof and the cost of installing a properly
    constructed roof.

[6]

We note that a number of the appellants complaints are tort-based.
    Liability is this case was founded on breach of contract and breach of
    warranty.

[7]

The appellant asserts, as it did before the trial judge, that the
    respondent failed to establish causation. The findings of fact referred to
    above, coupled with the observations of the trial judge at paragraphs 60 and 61
    of her reasons, provide a basis for her conclusion that the respondents
    damages were caused by the appellants breach of contract and breach of
    warranty. The appellant having elected to call no evidence, this conclusion was
    clearly open to the trial judge.

[8]

The appellant claims that the trial judge erred in finding that the action
    was not time-barred. We disagree. When the appellant refused to honour its
    contractual warranty, the respondent was entitled to sue for damages. Accordingly,
    the respondent commenced its action within the limitation period.

[9]

In the absence of any evidence from the appellant as to the costs of
    repairing the damage and replacing the roof, the trial judge was entitled to
    accept the respondents evidence on those costs. We are not persuaded that the
    trial judge made a reversible error in the assessment of damages.

[10]

For
    these reasons, the appeal is dismissed, with costs to the respondent fixed at
    $10,000, inclusive of disbursements and all applicable taxes.

E.A. Cronk
    J.A.

E.E.
    Gillese J.A.

G.R.
    Strathy J.A.


