Executive Summary: Key Legal and Evidentiary Issues

• Dispute centred on the existence, terms, and performance of two residential painting contracts for House #1 and House #2, including whether additional work qualified as payable “extras.”
• Appellant sought to overturn Small Claims Court factual findings by arguing that his evidence was ignored and that the contractor had not completed the work, engaging the strict “palpable and overriding error” standard on appeal.
• Allegations of undue delay and a request for dismissal for delay were weighed against Rule 11.1 of the Small Claims Court Rules and the broader scheduling context for in-person trials.
• Challenges to Fine Touch’s standing to sue, including whether the contracts were with the company or its principal personally and whether Fine Touch’s alleged inactive status barred the claim, raised evidentiary and fresh-evidence issues on appeal.
• Claims that additional property owners should have been joined as parties tested principles of privity of contract and whether the dispute could be effectively adjudicated without them.
• Objections to the quantification of extras and the Small Claims Court costs award engaged the proper treatment of payments, completion credits, and the statutory 15% costs cap under section 29 of the Courts of Justice Act.

Background and parties

This case arises from a residential construction-style dispute between homeowner Maged Girgis and Fine Touch Painting Co., operated by principal Paul Batistakis. The parties entered into arrangements for Fine Touch to perform painting work at two different residential properties, referred to as House #1 and House #2. For House #1, they had a written contract; for House #2, they proceeded under an oral agreement. There were no insurance policies or commercial policy wordings in issue. The dispute turned entirely on contract terms, performance, extras, delay, and payment, rather than on the interpretation of any insurance or similar policy clauses.

Contractual arrangements and payment history

For House #1, the Small Claims Court found that the parties agreed to a contract price of $38,000 plus HST, for a total of $42,940. Over the course of the project, Mr. Girgis paid Fine Touch $41,000. A major controversy arose over an additional $7,000 that Fine Touch characterized as “extras” for work beyond the original scope. Fine Touch claimed more than $16,000 in extras overall, but the deputy judge ultimately found that $7,000 was the appropriate amount to recognize. The homeowner, by contrast, argued that he never agreed to pay $7,000 as extras. In his account, any such payment was merely an incentive to get Fine Touch to finish the job on House #1, not a payment for additional work. He also said he had already paid $3,000 of that $7,000 and that the trial judge failed to properly credit that payment.
House #2 involved an oral contract. Fine Touch began painting work but did not complete the entire project after disputes arose between the parties. Mr. Girgis then hired another painter, paying $6,500 to finish the remaining work. The questions for the court included how much remained owing to Fine Touch on House #2 and how to treat the cost of the replacement painter when calculating the net balance.

Proceedings and findings in the Small Claims Court

Fine Touch commenced an action in the Small Claims Court seeking payment of outstanding contract balances and extras in relation to both houses. In response, Mr. Girgis defended and advanced a defendant’s claim for damages he said were caused by Fine Touch’s delay, including alleged rent or accommodation losses. He also challenged Fine Touch’s entitlement to sue at all, asserting that the real contracting party was the principal, Mr. Batistakis, and questioning the company’s corporate status.
After a three-day trial, Deputy Judge Harper largely accepted Fine Touch’s evidence and rejected key aspects of the homeowner’s position. For House #1, she accepted that the contract price was $38,000 plus HST, that $41,000 had been paid, and that $7,000 for extras was owing. In doing so, she concluded that the homeowner had been given credit for the $3,000 already paid toward those extras by treating the $41,000 as covering the $38,000 main contract and part of the extras. She then added the $7,000 in extras and HST and subtracted the full $41,000 when calculating the amount still owing.
For House #2, the deputy judge acknowledged that Fine Touch did not complete the work. She accepted that Mr. Girgis had paid $6,500 to an external painter to finish the job. That sum was deducted from the amount otherwise payable to Fine Touch, leaving a residual amount of $1,890 owing on House #2.
In total, she granted judgment to Fine Touch in the amount of $11,740. She dismissed the defendant’s claim, finding that any delay in completing the work did not attract compensable damages on the evidence and that the homeowner had not produced adequate documentation for his claimed accommodation losses.
On costs, she applied the statutory framework in section 29 of the Courts of Justice Act, which generally caps Small Claims Court costs (excluding disbursements) at 15% of the amount claimed, unless the court finds that a higher award is needed to penalize unreasonable behaviour. She stated her intention to award 15% of Fine Touch’s main claim of $19,843.50, plus $200 related to the defendant’s claim, and then added disbursements of $465, for a total costs award of $3,515 in favour of Fine Touch.

Appeal to the Divisional Court

Dissatisfied with the outcome, Mr. Girgis appealed to the Divisional Court. He raised numerous grounds of appeal that collectively challenged the trial judge’s factual findings, her treatment of evidence, her refusal to dismiss the action for delay, her acceptance of Fine Touch’s standing to sue, her rejection of his damages claim, and her costs ruling. He also attempted, on cross-appeal, to reframe aspects of the dispute as unjust enrichment.
The Divisional Court, per O’Brien J., started by setting out the standard of review for Small Claims Court decisions. An appellate court does not re-try the case or re-weigh the evidence. Interference is warranted only if the trial judge commits an error of law, exercises discretion on a wrong principle, or misapprehends the evidence in a way that constitutes a palpable and overriding error. The court also underscored that appellate scrutiny of Small Claims Court reasons must take into account the summary, high-volume nature of that forum, where oral reasons are common and judges are not expected to address every piece of evidence in detail.

Delay and dismissal arguments

One line of argument on appeal was that the action should have been dismissed for delay. Relying on a period of relative inactivity from January 2022 to February 2024, the appellant contended that Fine Touch failed to move the case forward and that the claim should have been struck. The Divisional Court considered Rule 11.1 of the Small Claims Court Rules, which allows the clerk to dismiss an action for delay if, among other conditions, a trial date has not been requested within two years. Here, however, the action had been set down for trial within the relevant two-year period. Subsequent delay stemmed largely from the parties’ shared preference for an in-person hearing and systemic scheduling constraints for in-person Small Claims Court trials.
The deputy judge had also noted that several adjournments were not attributable to Fine Touch alone. O’Brien J. held that in these circumstances, there was no basis to interfere with the deputy judge’s discretionary decision not to dismiss the action for delay, either under Rule 11.1 or more generally.

Standing to sue and fresh evidence issues

Another key issue concerned Fine Touch’s entitlement to sue. The appellant argued first that there was no contract with Fine Touch at all and that he contracted solely with the principal, Mr. Batistakis, personally. Second, he argued that Fine Touch was an “inactive” company and should not have been allowed to proceed in its corporate name.
On the first point, the Divisional Court observed that there was evidence before the deputy judge that the contract was with Fine Touch, including at least one email and a December 2018 invoice referencing the company name. It was thus open to the deputy judge to conclude that the contracting party was Fine Touch, and there was no palpable and overriding error in permitting the claim to be brought in that name.
On the second point, the appellant attempted to introduce a corporate search on appeal to show that Fine Touch was inactive. The court applied the fresh-evidence test from R. v. Palmer. It held that the appellant had not shown that the information could not have been obtained with reasonable diligence before or during trial. The fact that he was self-represented did not justify raising the issue for the first time on appeal or introducing new evidence at that stage. Moreover, the court noted that had the issue been raised at trial, the deputy judge could potentially have allowed an amendment. Further, Fine Touch operated effectively as a sole proprietorship, meaning there was no substantive legal difference between the business name and the individual principal in terms of liability and entitlement.

Completion of work, breach, and evidentiary disputes

Substantively, the appellant argued that Fine Touch, not he, was in breach because it failed to complete the work at both houses. With respect to House #2, the Divisional Court pointed out that the deputy judge had explicitly recognized that the work was not fully completed and had given full credit for the $6,500 paid to the replacement painter, leaving a modest balance of $1,890 owing. There was no error in that treatment.
For House #1, the completion and quality of the work were quintessential factual questions. Fine Touch, through Mr. Batistakis, testified that the project was 98% complete and at the “touch-up” phase. Mr. Girgis countered that major work remained unfinished and attempted to support his position with his own testimony, a brief contribution from his wife, and a series of photographs. The record showed, however, that the photographs were not fully canvassed with the deputy judge and were not even marked as a separate exhibit. In the context of a summary trial, the Divisional Court held that the deputy judge was not required to comment on every piece of evidence. As long as there was some evidence supporting her conclusions—which there was—an appellate court would not disturb those findings absent palpable and overriding error. On that basis, O’Brien J. upheld the finding that the work on House #1 was effectively complete from Fine Touch’s perspective and that the homeowner had breached by refusing to pay what the deputy judge determined was owed.

Extras, quantification, and alleged contradictions

On the $7,000 of extras for House #1, the appellant reiterated that he had not agreed to pay that amount as extras and that any such payment was an incentive to complete work on the house. The deputy judge’s reasons reflected a careful weighing of the evidence: she rejected Fine Touch’s higher extras claim of more than $16,000 on the basis that the contractor should have bid higher at the outset instead of “low quoting” and adding a long list of extras at the end. Nevertheless, she accepted that the evidence supported a figure of $7,000 for extra work. The Divisional Court held that this was an available factual conclusion.
The appellant further argued that the deputy judge failed to deduct the $3,000 he had already paid toward the $7,000 extras, but the Divisional Court rejected this. O’Brien J. explained that the deputy judge had effectively accounted for that payment by acknowledging that $41,000 had been paid against a $38,000 contract price, which necessarily meant that $3,000 had gone toward extras. The ultimate calculation added the contract sum plus $7,000 in extras, applied HST, and then subtracted the full $41,000; there was no demonstrable error.
For House #2, the appellant claimed that the deputy judge contradicted herself by criticizing low quoting and refusing to award all claimed extras on House #1, yet crediting $3,000 of extras on House #2. The Divisional Court clarified that the low-quoting discussion pertained solely to House #1. The deputy judge was entitled to treat the $3,000 paid for House #2 as genuine extras in light of the evidence and amounts actually paid.

Delay damages, unjust enrichment, and joinder of other owners

The appellant’s claim for damages arising from delay—essentially rent or accommodation costs allegedly caused by late completion—was also revisited on appeal. The Divisional Court noted that it was implicit in the deputy judge’s reasons that she did not accept that Fine Touch had caused compensable delay. Instead, she found that the breakdown in the relationship and the homeowner’s refusal to pay undercut the contractor’s ability to complete final touch-ups, and that any delay in finishing the remaining portion of House #2 was reflected in the credit given for the external painter. The lack of documentation to support the claimed accommodation losses was also fatal to the defendant’s claim. The appellate court identified no error in that analysis.
On cross-appeal, the appellant tried to assert unjust enrichment. Because unjust enrichment had not been pleaded or argued at trial, the Divisional Court held that it could not properly be raised for the first time on appeal. In any event, the court noted that the existence of enforceable contracts and an adjudicated breach constituted a juristic reason justifying the monetary award, thereby precluding an unjust enrichment remedy.
The appellant also contended that other owners, such as the co-owner of House #1 and the owners of House #2, should have been joined as parties. The Divisional Court rejected this, pointing to the evidence of a direct contractual relationship between Fine Touch and Mr. Girgis. Under principles of privity of contract, naming the homeowner alone as defendant was sufficient. The court was not persuaded that it could not “effectively and completely” adjudicate the dispute without adding the other owners.

Costs on appeal and final outcome

The Divisional Court additionally considered a challenge to the Small Claims Court costs award. The appellant argued that the trial costs exceeded the statutory 15% cap in section 29 of the Courts of Justice Act. O’Brien J. concluded that the deputy judge had structured her award to stay within that limit for non-disbursement costs and then added permissible disbursements. Given that the trial lasted three days, the resulting $3,515 costs award was a reasonable exercise of discretion and raised no basis for appellate intervention.
After hearing the appeal, the court allowed the appellant to make brief supplementary submissions on a discrete question he felt he had not fully answered, but these submissions largely attempted to re-argue factual points already resolved by the deputy judge, particularly regarding the completeness of work at House #1. They did not alter the court’s analysis.
Ultimately, the Divisional Court dismissed the appeal in its entirety. It upheld the judgment and costs order made by the Small Claims Court in favour of Fine Touch Painting Co. and then ordered that Mr. Girgis pay additional costs of $7,500 to Fine Touch for the appeal and cross-appeal. Accordingly, in the appellate decision itself, the successful party is Fine Touch Painting Co., and the total amount ordered in its favour by the Divisional Court is $7,500 in costs.