·' Cite as: Castlewood Building Services Ltd. v. Garson, 1992 NSCO 11 • , PROVINCE OF NOVA SCOTIA
COUNTY OF HALIFAX I N THE C OF DISTRICT NUMBER ONE BETWEEN: CASTLEWOOD BUILDING SERVICES LIMITED CRAIG GARSON David Coles, Esq., Solicitor by Cross-claim. w. Brian Smith, Esq., Solicitor for the Defendant and Plaintiff by Cross-claim. , 1992, January 8th, proceeding arises by way of Lien Act, R.S.N.S. 1989 Chap. by Cross-claim, hereinafter against the Defendant and Plaintiff by Cross-claim, hereinafter called "Garson", for the supply the renovations of a property Young Avenue, Halifax, Nova Scotia. Garson, on the other hand, Castlewood for alleged damages of in:erior work done by Castlewood, deficiencies not corrected, C.H. No.: 69608 0 U N T Y C 0 U R T Plaintiff - and Defendant f or the Plaintiff and Defendant Palmeter, C.J.C.C.: This the provisions of the Mechanics' 277. The Plaintiff and Defendant called "Castlewood" , has claimed of labour and materials for owned by Garson located at 785 has cross-claimed against suffered by him as a result
work not being done, and for economic loss suffered by Garson by failure of Castlewood to complete the project as promised, or within a reasonable period of time. The basic facts are not really in dispute. contacted Castlewood through its or about the month of September work done on the property. made by Castlewood, one for October 12th, 1989 (Exh. #2, for a rear fire exit dated October 26th, 9) • Both these proposals were of Halifax Building Permit October 5th, 1989. Work commenced October and the last work was done 1990. Some discussion regarding held between the parties prior to and accepted, but it is clear from the evidence that no formal completion date was set forth in progress of the work Garson out deficiencies or faults often to Mr. Longard but usually to one of the workmen employed by Castlewood. ·,
- 2 J Garson owner, one Don Longard, in 1989, in regard to having As a resul t two proposal s were the majority of the work dated Tab 7), and an additional proposal 1989 (Exh. #2, Tab accepted by Garson. A City (Exh. #2, Tab 5) was issued on on the project in late on or about January 17th, time of completion was the proposal s being made the proposals. During the did, f rom time to time, point in the work to Castlewood, not
, On the 19th of January Longard at the property and deficiencies and faulty workmanship. time, Longard admitted deficiencies put his best men on the job. think over the matter and would be in touch with him. Evidence indicates that Garson telephoned Mr. on January 20th, 1990 and advised were no longer required on tools. By letter dated January 21st, , Garson terminated the services of Castlewood. I have determined are as follows: 1. What is the proper amount of Plaintiff's claim? 2. Was Garson entitled contract with Castlewood because of: (a) unreasonable delay in performing the work, or (b) faulty workmanship, or , - 3 1990, Garson met with Mr. went over a large list of Apparently, at this and indicated he would Garson indicated that he would Longard him that Castlewood's forces the project and to pick up their 1990 (Exh. #2, Tab 33) that the issues in this matter to terminate the
(c) both delay and faulty workmanship. 3. If Garson was the contract, what is the damages? I will deal with each of these issues on a individual basis. 1. Plaintiff's Claim: Castlewood claims agrees that this amount would finished product, plus agreed upon extras. about this amount. Evidence indicates the contract not not done and #13. There has to be an allowance for this The cost of performing this work was in the amount of $1,100.00, which sum I accept. I find, $1,100.00 should be deducted would make a net claim of $42,493.00. 2. Termination: I have canvassed of a building contract by the owner in two recent cases, namely, ~ J. L. MacLean v. Gary Winters - 4 entitled to terminate measure of his the sum of $43,593.00 and Garson be the correct balance of the There is no dispute that there were three items in these are itemized in Exhibit work not done. therefore, that the amount of from the Plaintiff's claim which the law in regard to termination and Claire Winters, 92 N.S.R.
( 2d ), 214 and Sharon Monett Siding and Carpentry Ltd., District #2) unreported. In Monett I stated at p. 7: "Suffice it to say, a building contract SUbstantial breach of which amounts to repudiation the builder. (See: Goldsmith on Canadian Building Contracts 4th Ed. p. p. 6-4 states: 'An owner is a contract if it before the commencement during the course is not in substance perform the work. ,
contracts contain enti tling the owner of the contractor's the contract in Sometimes the certif icate of or engineer, certifying [sic] inability complete, is required precedent to such exercising such must comply strictly the contract, or the contract by preventing the from completing. work will not, owner to terminate contractor's work defective as to to a failure or refusal contract work, repudiation. ' " Accordingly, Garson could only terminate the contract if there was a substantial breach of the contract by Castlewood, amounted to repudiation of the contract by Castlewood. - 5 and Gary Monett v. All Seasons 1990, C.BW. No. 7578 (County Court that an owner can terminate where there has been a the contract by the builder of the contract by 6-3. Goldsmith, supra, at enti tIed to terminate is clear that either of the work, or of it, the contractor able or willing to Frequently building an express clause to take the work out hands, and forfeit certain circumstances. the architect the contactor's or unwillingness to as a condition right. An order a right or forfeiture with the terms of he may himself breach contractor Mere bad or defective in general, entitle an a contract, but the may be so bad or so amount, in substance, to carry out the and thus amount to which
(a) Allegations of Unreasonable Delay: There was no completion date set forth in the formal contract. Both parties testified that there were discussions about the length of time it might take to complete the work. Mr. Longard testified that Castlewood eight to nine weeks for the project. hand, testified that there was weeks, with eight weeks being the outside maximum. Garson further testified the new units by January 1st, to be out by Christmas of 1989, of thi s. I am not satisfied, that there was any oral agreement the work would be completed prior to January 1st, 1990. In my opinion, where out in the contract, a contractor must complete his work within a reasonable amount of time. Contracts 10 Ed. at p. 609 states: " .•. that, as a eff iciency, there must in building and that the contractor reasonable diligence and expedition." - 6 had a chart indicating Garson, on the other a graph showing six to eight that he wanted to rent 1990 and that Castlewood was and that Castlewood was aware on a balance of probabilities, between the parties that a completion date is not set Hudson's Building and Engineering rna tter of business be an implied term engineering contracts will proceed with
, GOldsmith on Canadian Building Contracts at p. that an owner is entitled to a reasonable time if no specific time is provided for. The implied provision reasonable time to be implied considered with approval in the case of Pilcher v. Alcan Design Homes Limited (1976 ), 13 N. S • R • J. adopted the following proposi tion Practice of Buildinq Contracts: "If no time is specified of the contract completion will be reasonable time is If no time is specified used such as 'as 'within a reasonable time', it is a question of construction for completion." In the case before by the civil burden of proof, evidence, that Castlewood caused to enable Garson to treat damages. With deference to submissions by counsel for Garson, the evidence adduced does probabilities that there was - 7 5 - 13 indicates have his work completed within of completion within a in a building contract was ( 2d ) 546 . At P • 562 Jone s , from Keatinq's Law and for completion a reasonable time for implied. What is a a question of fact. but words are soon as possible' or to determine the time me the Defendant must establish that is by a preponderance of unreasonable delay such as the contract at an end or claim not satisfy me on a balance of any unreasonable delay on the
part of Castlewood. I accept that there were some minor delays ~ caused by other subcontractors and extras to the work requested caused some minor delays, satisfies me that Castlewood expedience in light of all the circumstances. I also find that Castlewood to proceed with leads me to believe that Garson speed of the work during the time in question. worried about other matters this decision. I, accordingly, find that delay on the part of Castlewood such as to cause a substantial breach of the contract and therefore. The economic claim apartment units not being available for rental as 1st, 1990. I disallow such a claim~ (b) Faulty Workmanship I accept the evidence first class workmanship on communicated to Castlewood - 8 and there were some changes by Garson which could have but on the whole the evidence proceeded with reasonable Garson did not continually press greater speed and the evidence was not worried about the He was more which I will consider later in the:r:e was not any unusual allow Garson to claim damages of Garson is based on the of January of Garson that he expected the project and that this was through its agent Longard. The
property was in a prime residential area apartment units to be constructed find that Castlewood promised project, being aware of what was expected. Goldsmith on Canadian at p. 6 - 4 states: "An owner is entitled contract if it is clear that either before the commencement the course of it, in substance able the work. Frequently contain an express ,
owner to take contractor's hands, and forfeit the contract in certain circumstances. certificate of the architect or engineer, certifying the contactor IS of unwillingness to as a condition precedent An order exercising forfeiture must comply terms of the contract, breach the contract contractor f rom or defective work enti tIe an owner to terminate but the contractor's or so defective as to amount, in substance, to a failure or refusal to carry out contract work, repudiation." In my opinion, if a breach enough as to amount to repudiation, is for damages and he cannot invoke termination. - 9 of Halifax and the would be prime units. I excellent workmanship on the Building Contracts, 4th ed. to terminate a of the work, or during the contractor is not or willing to perform building contracts clause entitling the the work out of the Sometimes the (sic) inability complete, is required to such right. such a right of strictly with the or he may himself by preventing the completing. Mere bad will not, in general, a contract, work may be so bad the and thus amount to by a contractor is not serious the owner I s only remedy
As indicated by Goldsmith, work will not, in general, In this case, was the work of Castlewood so bad and so defective as to technically amount to distinction to be made between what deficiencies in a building workmanship. Normally, where deficiencies occur, must be given a reasonable agrees to do so. In the case before me the contract was really at an end other than for correction of alleged serious negligent workmanship. Evidence adduced before the faulty workmanship complained deficiencies. In my opinion the work or defective, it was negligent. Plaintiff agreed to come back complained of, I am not convinced necessary to do the proper in substance, Castlewood was based on the evidence before me. There was some question raised as to whether Garson acted precipitously ~erminating not allowing Castlewood to certainly would have been preferable to have had more in writing from Garson to Castlewood, - 10 mere bad or defective entitle an owner to terminate. repudiation? There is also the could normally be called contract and serious negligent a contractor time to correct the same if he def iciencies and the me indicates that most of of was more than mere ~ was more than mere bad Even if I accept that the and correct all of the work that it had the forces work and repair. I find that, not able to perform the work the contract as he did and have attempted to complete. It itemizing his complaints during ~
, the course of the construction, that Garson did make continuous forces on the job and that was not happy with the workmanship. had no alternative, under did. 3. Measure of Damages: Once a breach of repudiation by Castlewood to recover from Castlewood the cost of completing and repairing the project. At p. 585 of as follows: "In those cases contract, the work has been left incomplete, whether by abandonment, otherwise, or containing direct measure of difference between to the employer of or completing the any sums paid by the contract, and have been payable by him under the contract if it had been (Where the former latter, only nominal recoverable, and where the contract have where a contractor has completed and defects or omissions are after final payment, is, of course, repair simpliciter. ) clearly recoverable within the first branch of the rule in Hadley v. as likely to arise of things from the breach." - 11 but I accept the evidence complaints to Castlewood's Castlewood was· aware that Garson In my opinion Garson the circumstances, to act as he the contract has been proven and established, Garson is entitled Pilcher, supra, Jones J. states where, in breach of termination, or defects, the damage will be the the reasonable cost repairing the defects work, together with or due from him under the sums which would properly carried out. does not exceed the damages would be the sums due under been paid in full, as discovered at some time the direct measure the reasonable cost of Such damages are Baxendale, supra, in the usual course
- In McGregor on Damages 15th Ed. it states at paragraph 1086, p. 673: "The normal measure cost .to the owner of completing the building in a reasonable manner price, and possibly, value of the use by reason of the of cost of completion less contract price is laid down by the Mertens v. Home Freeholds Co., be regarded perforce since it proves to be the only one dealing with this issue." Goldsmith, supra, at p. 6 - "If the breach defective work, the be the reasonable defects, which may an engineer to investigate the deficiencies; and damages may inconvenience, loss indirect costs which prevented. An owner to have such defects extent as to conform of the contract, additional work or work of a higher quality; but he is entitled remedied as soon the attention of the contractor. who alleges that the materials supplied, must provide proper evidence of which his ~amages can be assessed." 12 of damages is the less the contract in addition, the of the premises lost delay. This measure Court of Appeal in which must as the leading case 8 and 6 - 9 states: consists merely of damages will usually costs of remedying the include the costs of also be awarded for of enjoyment and could have been is entitled only remedied to such to the requirements but not to require to have any defects as they are brought to An owner the work performed, or are defective on the basis
Exhibit #13 basically cross-claim in this matter and includes not only cost of repair but an economic loss claim determined that there was Castlewood, the claims for due to decreased rents will claim for newspaper advertising. I will deal with all of #13 leaving the claim relating to Inkpen Constractors Limited to the last. 1. MacWilliams Engineering in the amount of $999.70 because Garson to obtain professional considerable moisture in the Also this company corroborated as suspected by Garson. 2. Metro Renovations claim in the amount of $2,918.00 as being the amount actually expended by Garson on part of the repairs. 3. Wayne Dingle Painting the amount of $400.00. This to correct deficiencies. - 13 quantifies the Defendant's as well. As I have already not unreasonable delay caused by rental income due to delay and not be allowed, as well as the the other items on Exhibit - I will allow this claim I find it was necessary for advice as it related to the dwelling during construction. the poer quality of the work and Repairs - I will allow this - This claim is allowed in was actually expended by Garson
4. ~tro Electric amount of $700.00. 5. Byrne Architects amount of $1,262.24. Because was necessary for Garson to the extent of the problems. 6. David Heiland - This claim in the amount of $108.00 for cleanup of garbage is allowed. 7. R. F. Walsh Plumbing claim of $79.84 for removal is allowed. 8. Inkpen Contractors #2 Tab 53) is listed in the total includes G.S.T. This claim to be done relative to the alleged failure install insulation in the and the National Building Code. with roof insulation as a are certain items in the be quantified and are required as workmanship or non-completion by Castlewood. - 14 I will allow this claim in the This claim is allowed in the of the state of the work it retain an expert to determine and Heating Limited This of gyprock in the kitchen sink Limited This estimate (Exh. sum of $31,622.82 which also relates to work proposed of Castlewood to roof area according to the plans It is my intention to deal separate matter, however, there Inkpen estimate which can easily a result of the negligent
(a) Bathroom door. and cannot be corrected. a new door has claim is in the Castlewood states repaired at a cost accept that repairs allow the estimate $1,262.00. (b) Plastic laminate work was negligently says that repairs amount of $300.00. work has to be completely allow this estimate $1,146.00. (c) Hardwood top. estimate in the amount of $127.15. (d) Back fire escape. and the pictures convince me that done and is not - 15 This work was faulty I accept that to be installed. This amount of $1,262.00. that the door can be of $200.00. I do not can be made. I will in the amount of in kitchen. This done. Castlewood could be made to the I accept that this redone. I will in the amount of I will allow this The evidence given adduced as exhibits the work was improperly acceptable. There are
three estimates for molding in the amount of concrete footings, estimate for option $120.14, and replacing amount of $275.00. three estimates. (e) Work in rooms unrelated to insulation. Evidence indicates done due to the of Castlewood. It is extremely difficult to quantify the value on the estimate allow the amount of together with an taping and painting. (f) Basement kitchen was negligently repaired. I will in the amount of agrees that this work has to be redone. (g) Repair of window allow this estimate in the amount of $87.00. - 16 this claim, namely, of $497.40, repair of which I accept #2 in the amount of pavement in the I will allow these other work has to be negligent workmanship of thi s work based of Inkpen but I would $480.00 for this work, amount of $500.00 for floor. This work done and needs to be allow this estimate $1,495.00. Castlewood estimate is fair if the over door. I will
( h ) Wainscoating this damage was I will allow this estimate of $156.00. (i) Repair base, tighten look. agrees that this acceptable to repair allow the sum of $360.00. Accordingly, the total amount allowable on the Inkpen estimate exclusive of insulating $6,961.15, including G.S.T. anything for repair or replacement for sliding door repairs me, on the balance of probabilities, the responsibility of Castlewood. The last matter to the roof insulation. Garson has of probabilities, that Castlewood did not install the insulation according to the architect's plans or according to the National Building Code. I accept that no tru-vent was used as specified for the roof insulation and ventilated. - 17 repair. I accept that caused by Castlewood. in the amount Castlewood cost estimate would be this work. I will would be the amount of of $455.40. I decline to award of doors to the eves or because Garson has not convinced that these items are be determined is the matter of convinced me, on the balance that the roof was not properly
- There was some conflicting experts for Garson and for improper installation and ventilation damage to the roof and, accordingly, I have difficulty in making this determination because impressed with the evidence of both Mr. The question which there was a breach of the contract by Castlewood in this regard. I have no hesitation in finding Castlewood did not do what was required and expected by Garson relative to the roof insulation and ventilation. In dealing with the 53) it would appear that Inkpen estimates the sum of $24,661.77, including G. S. T., to tear out all the insulation and vent the and the National Building Code. basis of the evidence presented, Garson has not convinced me, that this is the reasonable cost which the whole work had to be replaced. 18" evidence between the Castlewood as to whether this would, in fact, cause would have to be redone. I was Byrne and Mr. Grimby. I have to determine is whether that there was a breach, Inkpen estimate (Exh. #2 Tab the exi sting work and replace same according to the plans In my opinion, and on the this sum is excessive and on the balance of probabilities, would be incurred if
- I have great difficulty and, accordingly, I have determined to allow the on an award of general damages relating to the roof insulation and ventilation. Garson the amount of $14,000.00 regard. Accordingly, I will allow Garson the sum of $13,428.87 in special regard to general damages, will have his costs under Tariff "A" Scale 3 based on an amount of $30,000.00 together with will also be entitled to pre-judgment of $27,428.87 at the rate of of April 1990 to the date hereof. Castlewood, on the Garson the sum of $42,493.00 together with costs which I fix in the sum of $2,325.00, disbursements together with pre- judgment interest at the rate of 10% per annum on the sum of March 1990 to the date to Garson in the preceeding paragraph hereof. A Judge of the of District Number One 19 in quantifying this claim claim based for the breach of contract I will award as general damages in this on his cross-claim damages and $14,000.00 in for a total of $27,428.87. He all proper disbursements. He interest on the sum 10% per annum from the 11th day other hand, will recover from hereby together with all proper of $15,064.13, from the 2nd day hereof, less all amounts awarded <unty Court
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