



COURT OF APPEAL FOR ONTARIO

CITATION: McCabe (Canadian Commercial Flooring) v. Finn Way
    General Contractor Inc., 2017 ONCA 867

DATE: 20171110

DOCKET: C61592

Watt, Pepall and Miller JJ.A.

BETWEEN

Dan McCabe, carrying on business as Canadian
    Commercial Flooring

Plaintiff (Respondent/

Appellant by way of
    cross-appeal)

and

Finn Way General Contractor Inc.

Defendant (Appellant/

Respondent by way of
    cross-appeal)

Roderick W. Johansen, for the appellant/respondent by
    way of cross-appeal

Hugh N. MacDonald, for the respondent/appellant by way
    of cross-appeal

Heard: October 27, 2017

On appeal from the judgment of Justice Alexander D. Kurke
    of the Superior Court of Justice, dated December 14, 2015.

REASONS FOR DECISION

[1]

The respondent, Dan McCabe, contracted with the appellant, Finn Way
    General Contractor Inc., to install sheet vinyl flooring at a long-term care
    facility in Terrace Bay, Ontario. After a dispute with the respondent, the
    appellant hired another contractor to complete the job. The respondent brought
    an action against the appellant for monies owing under the balance of the
    contract, and for extra work and materials not covered by the contract. The appellant
    counterclaimed for money it expended to hire the additional subcontractor, and
    for additional materials and expenses.

[2]

The contract was part of a larger renovation project for which the
    appellant was the general contractor. The trial judge found that the respondent
    advised the appellant that deficiencies in the sub-floor structure prevented
    him from properly installing the vinyl flooring, and that he needed the
    appellant to rectify the deficiencies.

[3]

The larger renovation project was behind schedule and under significant time
    pressure. The trial judge found that the appellant refused the respondents demand
    that the appellant open up the flooring and resolve the issue. Instead, it
    directed the respondent to attempt a quick and dirty fix by securing the
    sub-floor with additional screws, and to continue laying the flooring. The
    attempted fix was unsuccessful, and the project architect required the vinyl
    flooring to be removed and replaced. The respondent was unwilling to do this unless
    he was paid for previous work and relieved of his warranty obligations, as the
    failure of the vinyl flooring was not due to his workmanship but to the
    condition of the sub-floor. The appellant refused and instead hired another
    subcontractor to finish laying the vinyl flooring.

[4]

The respondent sued for breach of contract. The appellant
    counterclaimed, arguing that the respondent abandoned the job. It argued that
    the flooring installation problems were entirely due to the respondents poor
    execution, as the second contractor succeeded in properly installing the vinyl
    flooring. The trial judge rejected the appellants submission, found that
    defects in the vinyl flooring remained, and that these were attributable to the
    defective sub-floor.

[5]

The trial judge awarded the respondent damages for breach of contract and
    dismissed the counterclaim.

Issues

[6]

The appellants main ground of appeal, and the only substantive ground
    pursued in oral argument, is that the trial judge erred in finding: (1) the respondent
    was unable to install the vinyl flooring because of defects in the subfloor,
    and (2) it was the appellants responsibility to remedy those defects. The
    appellant also sought to reverse the costs award.

[7]

The respondent cross-appealed on the assessment of damages.

[8]

For the reasons that follow, we dismiss the appeal and allow the
    cross-appeal.

Analysis

[9]

The appellant has not identified a palpable and overriding error in the
    trial judges reasons. The appellant has essentially cherry-picked passages
    from documents and examination transcripts and asks this court to give them
    greater weight than the trial judge was willing to do. The trial judge
    considered the evidence, made specific findings as to the credibility of the
    appellants sole witness, made specific findings of fact, and drew permissible
    inferences from those findings. It is not open to us to reweigh the evidence or
    draw different inferences. There is no basis on which we would interfere with
    the trial judges findings that the subfloor was deficient and that it was the
    appellants responsibility to remedy it.

[10]

With
    respect to the issue of costs, this is again a highly discretionary determination
    and the appellant has not demonstrated that the trial judge committed any
    error. The fact that the appellant received a lower costs award in an action it
    brought against another contractor has no bearing on what constitutes an
    appropriate costs award in this action. Neither would we give effect to the
    appellants argument that the award ought to have been reduced to reflect the
    fact that the respondent was not awarded the full quantum of damages he sought.

[11]

The
    respondents cross-appeal was brought with respect to the trial judges decision
    that he had no authority under rule 59.06(1), after his reasons had been
    issued, to correct what he acknowledged to be a technical error: he
    inadvertently used an incorrect figure in his calculations of damages.

[12]

This
    was an accidental slip and the trial judge might have corrected this error
    under rule 59.06(1). In any event, the error in the damages calculation is now
    properly before this court, and the amount of the judgment should be varied
    from $49,451.44 to $61,547.33. The cross-appeal is allowed.

DISPOSITION

[13]

The
    appeal is dismissed and the cross-appeal allowed, varying the judgment from
    $49,451.44 to $61,547.33. The respondent is entitled to costs of the appeal and
    the motion in the amount of $25,000, inclusive of disbursements and HST.

David Watt J.A.

S.E. Pepall J.A.

B.W. Miller J.A.


