



COURT OF APPEAL FOR ONTARIO

CITATION: Moon v.
    Ottaway, 2015 ONCA 489

DATE: 20150629

DOCKET: C59548

Hoy A.C.J.O., Sharpe and Benotto JJ.A.

BETWEEN

Charles Moon

Appellant (Plaintiff)

and

Dorothy Ottaway and Thomas Neal

Respondents to Appeal (Defendants)

AND

Dorothy Ottaway

Respondent to Appeal (Plaintiff by Counterclaim)

and

Charles Moon and Maia
    Caron

Appellants (Defendants to the Counterclaim)

Chad A. Yehia, for the appellant Charles Moon

Hugh Pattison, for the respondent Dorothy Ottaway

Amanda S. Gibson, for the respondent Thomas Neal

Heard and released orally: June 25, 2015

On appeal from the judgment of Justice W. Low of the Superior
    Court of Justice, dated October 16, 2014.

ENDORSEMENT

[1]

The appellant, Charles Moon, leased a house from the respondent landlord,
    Dorothy Ottaway.  Her real estate agent, the respondent Thomas Neal, was
    involved in the leasing transaction.  On his own initiative, and without
    obtaining the landlords consent, the appellant undertook extensive renovations
    to the home.  The appellant subsequently defaulted in payment of rent and the
    landlord sought relief at the Landlord and Tenant Board.  Just before the
    hearing before the Board, the appellant commenced this action against the
    landlord for damages for breach of contract and unjust enrichment and against
    the real estate agent for damages for negligent misrepresentation and/or
    inducing breach of contract.  Among other things, the appellant claimed that he
    was entitled to set-off the value of renovations to the house that he had
    undertaken.  The landlords application before the Board was converted to a
    counterclaim for arrears of rent and an eviction order.

[2]

After a summary/hybrid trial, the trial judge dismissed the appellants
    claims against the landlord and her real estate agent and allowed the
    landlords counterclaim.

[3]

The appellant asks this court to quash the judgment of the trial judge
    and order a new trial.  He argues that the trial judge made three errors that
    require this court to order a new trial.

[4]

First, he says that the law did permit the trial judge to proceed by way
    of a summary/hybrid trial.

[5]

Second, he says that his counsel should have been allowed to ask him questions
    covered in his affidavit prepared in anticipation of the landlords summary
    judgment motion and utilized in the summary/hybrid trial.  He argues that the
    court was denied the opportunity to observe his demeanour as he recounted that
    portion of his narrative.

[6]

Third, he says the trial judge erred at law when she denied his request
    for an adjournment to obtain an expert report relating to the increase in value
    of the leased property resulting from the renovation work he had done.

[7]

This court will not direct a new trial unless some substantial wrong or
    miscarriage of justice has occurred:  s. 134(a),
Courts of Justice Act
,
    R.S.O. 1990, c. C43. As we explain, the trial judge made no error and there was
    no miscarriage of justice.

[8]

As to the first alleged error, the landlord brought a motion before the
    trial judge for directions to ensure the expeditious trial of the issues raised
    in the action and counterclaim.  The trial judge ordered that the action and
    counterclaim proceed before her on October 6, 2014 as a summary proceeding,
    using the affidavit materials and cross-examination transcripts that had been
    prepared for use on the summary judgment motion which had been brought by the
    landlord but not yet heard, together with supplementary
viva voce
evidence.  The appellant did not challenge the order when it was made or at
    trial.  It is not open to the appellant to challenge that order at this appeal
    after trial:
Harris v. Leikin Group Inc.
, 2014 ONCA 479 at para. 43. 
    The order provided a proportionate, fair and expeditious manner of determining
    the matter in dispute consistent with the approach in
Hryniak
.  The
    appellant was not prejudiced by the manner in which the proceeding was conducted.

[9]

We also reject the appellants second argument.  The trial judge was
    entitled to direct that he not repeat in his examination-in-chief evidence
    given in his affidavit.  The court had ample opportunity to observe his
    demeanour in other portions of his examination-in-chief and cross-examination. 
    The trial judges approach was efficient and appropriate.

[10]

Finally,
    we see no error in the trial judges exercise of her discretion to deny the
    appellants request for an adjournment to obtain an expert report.  The
    appellant had previously failed to comply with a timetabling order made by
    another judge.  By the time of trial, the appellant had not paid rent for nine
    months.  He was aware of the issues and had ample time to obtain an expert
    report.  Moreover, the documentary evidence in favour of the landlord that the
    appellant had undertaken renovations at his own expense was overwhelming. The inability
    of the appellant to put evidence as to the value of these renovations before
    the court was of no moment.

[11]

This
    appeal is accordingly dismissed.

[12]

The
    landlord will be entitled to costs in the amount of $20,000, inclusive of
    disbursements and HST.  The real estate agent will be entitled to costs in the
    amount of $8,000, inclusive of disbursements and HST.

Alexandra
    Hoy A.C.J.O.

Robert J. Sharpe
    J.A.

M.L. Benotto J.A.


