What Should I Know Before Suing a Contractor?

When Quality of Work Is Below Contract Requirements or Below Trade Standards or Building Code Requirements, Work May Be Viewed As Defective. A Contractor, Generally, Must Be Provided With a Reasonable Opportunity to Correct Defective Work.

Understanding Various Issues Within the Law of Defective Workmanship Involving Construction or Renovation Projects

Lawsuit Document When a contractor, among others, including subcontractors or tradespeople, are hired to perform construction or renovation work, mistakes may occur resulting in flaws or defects. When such defects occur, the cost of correcting the defect, as well as delay in bringing the project to completion, can be substantial. Many such situations lead to legal action seeking compensate for the harm suffered.

The Law
What Defines a Defect?

Workmanship that fails to meet the standard required of the work is defective. The standard required standard may be expressly stated within a contract or, if the contract was silent, meaning failed to state a standard, the standard may be implied. The standard required may be described in detail or may be stated or implied as simply to perform in a manner that is usual to trade; or in some circumstances, the standard required may be to just achieve the requirements of the relevant building code, if any.

Of course, a defect is also often highly subjective.  Excessively proud property owners may be more discriminating upon the quality of workmanship than the contractor who believes that the quality of workmanship, while imperfect, meets or exceeds the specifications stated as contractual obligations or the common law standard expected in negligence law known as a good and workmanlike manner.  The contractor may also perceive, sometimes wrongfully, that simply satisfying the standards of workmanship prescribed by statutes such as the Building Code Act, 1992S.O. 1992, Chapter 23 is satisfactory.  Of course, a defect is a defect only when a judge says so.  In Scott v. Sarsfield Foods Ltd.2000 CanLII 3533, a defect was explained by Justice Stewart whereas it was said:

[37] Principles relied upon by both parties are summarized, to a large degree, in I.  Goldsmith and T.G.  Heintzman, Goldsmith on Canadian Building Contracts, fourth edition (Toronto; Carswell, 1988 at pp.  5-11 to 5-14 under a Breach Contract; 2.  By Contractor(b) Defective Work which reads in part as follows:

Work which does not meet the requirements of the specifications contained in the contract, or which, in the absence of such specifications, is not a reasonable workmanlike quality, is not proper compliance with the contract and constitutes a breach.  Furthermore, compliance by the contractor with the specifications will not be sufficient performance if the specifications were prepared by him and are deficient, even if they were approved by the owner.  Whether work, or material supplied, is defective or not is, in each case, a question of fact, depending on the construction of the particular specifications where there are any, and on expert evidence as to what is reasonable where there are none.

Where a contract, either expressly or by implication, contains a particular standard for the work to be done, an owner is not entitled to insist on work of a higher quality.

On the other hand, compliance by the contractor with a statutory or regulatory standard of conduct may not be sufficient, if it is not the standard called for by the contract, or reasonable in the circumstances.

An owner who has accepted the work does not thereby necessarily lose his right to claim damages for defective work, unless the defects have been expressly approved, or unless approval of them can be otherwise inferred from the owner’s conduct.  Sometimes a contract contains a provision guaranteeing certain parts of the work for a particular period, and any defects occurring during such period of guaranteed maintenance must be remedied by the contractor.

Generally speaking, a contractor is liable only for defects resulting from his own work or from work or materials of his suppliers and subcontractors.  ...

Apart from being contractually liable to the owner, a contractor who has been guilty of negligent constrction in a dangerous or unsafe structure may be liable in tort to the owner and to third parties. ...  The standard of care for which the contractor is responsible may be determined by his contractrs with the owner or subcontractor or, in the absence of specific provisions applying to the circumstances, by expert evidence about the standard of conduct in his industry.

Interestingly, it is important to note that while violations of the Building Code Act will constitute a defect, the reverse is untrue; whereas, compliance with the Building Code Act may still be a violation of the express terms, or the implied terms, of the contractual requirements.  Essentially, compliance with the Building Code Act is the statutory minimum requirement; however, a higher level of performance may be required.  As stated in Enfield Hardware Ltd. v. DeGier2002 NSSC 164, the usual standards of a trade may be higher than the minimum requirements of the applicable Code.  If the contract calls for standards higher than the applicable Code, or a contract is silent on specific standards and therefore the usual standards of the trade apply, compliance with the mere minimum Code requirement may be deemed a defect.  Specifically, in Enfield Hardware it was said:

[9]  I want to make one very significant point.  The homeowner is entitled to rely on the expertise of the contractor to complete the work in accordance with  the terms of the contract.  National Building Code violations may be evidence of a deficiency in the contract, which  may in fact result in a breach of contract, but the reverse is not true.  Compliance with the building code is not evidence of compliance with the contract. The contract rules the relations between the parties.

Page 1 - Defect Issues, introduction Page 2 - Cause of Action, contract law or tort law Page 3 - Mitigation Requirement, reduce losses Page 4 - Mitigation, future risk of harm defect Page 5 - Who to Sue, privity of contract and vicarious liability Page 6 - Mandate to Produce, expectations overule specifications Page 7 - General Damages, aggravation and disappoinment

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