B.C.R. Construction Incorporated v. Humphrey

B.C.R. Construction Incorporated v. Humphrey

The motion judge erred in granting summary judgment dismissing the appellants' counterclaim because genuine issues for trial exist regarding the applicability of s.10(1) of the Consumer Protection Act to the handwritten estimate and whether s.2(2)(f) exempts the construction contract; those issues and any resulting refund quantum must be tried.

Citation
2009 ONCA 778
Parties
Plaintiff (respondent): B.C.R. Construction Incorporated; Defendant (appellant): Howard Anthony Humphrey; Defendant (appellant): Kimberly Ann Aus
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
6 November 2009
Procedural Posture
Civil Appeal / Appeal From Summary Judgment
Outcome
Appeal allowed; motion judge's summary judgment dismissing the counterclaim set aside in part; issues remitted for trial; costs awarded to appellants.
Legal Topics
Applicability of Consumer Protection Act S.10(1) to Estimate, Exemption Under Consumer Protection Act S.2(2)(f) for Real Estate Transactions, Summary Judgment Standard, Remittal for Trial, Costs
Source Language
English
Construction Law Consumer Protection Contract Law Real Estate Law Applicability of Consumer Protection Act S.10(1) to Estimate Exemption Under Consumer Protection Act S.2(2)(f) for Real Estate Transactions Summary Judgment Standard Remittal for Trial +1 more

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Parties

B.C.R. Construction Incorporated

Plaintiff (respondent)

Howard Anthony Humphrey

Defendant (appellant)

Kimberly Ann Aus

Defendant (appellant)

Procedural Posture

Civil Appeal / Appeal From Summary Judgment

Legal Issues

  1. 1 Whether s.10(1) of the Consumer Protection Act applies to the handwritten estimate for stage I
  2. 2 Whether s.2(2)(f) of the Consumer Protection Act exempts the construction contract as part of a real estate transaction
  3. 3 Whether the motion judge erred in granting summary judgment dismissing the appellants' counterclaim

Ratio Decidendi

The motion judge erred in granting summary judgment dismissing the appellants' counterclaim because genuine issues for trial exist regarding the applicability of s.10(1) of the Consumer Protection Act to the handwritten estimate and whether s.2(2)(f) exempts the construction contract; those issues and any resulting refund quantum must be tried.

Court Disposition

Appeal allowed; motion judge's summary judgment dismissing the counterclaim set aside in part; issues remitted for trial; costs awarded to appellants.

Orders

  • Issues of applicability of the Consumer Protection Act to the construction contract and the handwritten estimate remitted for trial
  • Appellants awarded costs of the appeal in the amount of $3,500 inclusive of disbursements and GST