Defective Workmanship

Wheeler v Belmar Roofing Inc., 2015 CanLII 34095 (ON SCSM)

10. I also find it clear that Belmar’s workmanship could have caused the water intrusion. That workmanship was defective in a variety of ways as canvassed in the evidence of Mr. Diplock and Mr. Coffin, and as corroborated by the extensive photographic evidence. But there is no direct evidence whatever to support any specific theory of the mechanics of the water intrusion discovered in January 2014, nor whether it was different than that which caused the prior problem.

11. A court is entitled to make findings of fact based on inferences from the evidence. The key distinction is between reasonable inferences based on the evidence, and mere speculation or guesswork: As Watt J.A. said in R. v. S.(T.) (2012), 2012 ONCA 289 (CanLII), 290 O.A.C. 1 (C.A.), at para. 62:

62. A trier of fact may draw inferences of fact from evidence adduced at trial. An inference is a deduction of fact that may be logically and reasonably drawn from another fact or group of facts established in the proceedings. Absent an objective evidentiary basis from which to infer the facts a party seeks to establish, no inference is available, only impermissible speculation and conjecture: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 209.

12. In this case, I find there is reliable evidence to suggest that the water intrusion could have been caused by pre-existing problems and could have been caused by defective workmanship for which Belmar would be responsible. I find there is no evidence to establish any specific theory of the mechanics of the intrusion or even where the water entered. If all things were otherwise equal, it might be open for the court to draw an inference that, on a balance of probabilities, defective workmanship caused the intrusion even if the court were uncertain which of several possible forms of defective workmanship was responsible. That might well be a close call but it might nevertheless be a logical and reasonable inference that was objectively supported by the evidence.