Everyone Needs a Second Chance Sometimes: Understanding Your Right to Correct Deficient Workmanship
Even where a construction project is performed by a qualified professional contractor, it is not uncommon for some deficiencies to require correction at a project’s end. In some cases, a homeowner may ask their contractor to take less than the full amount of the contract price to account for these outstanding deficiencies. However, in the recent decision of Jozsa v. Charlwood-Sebazco, 2016 BCSC 78, the BC Supreme Court limited a homeowners’ ability to claim a reduction in a contractor’s unpaid invoices based on deficient workmanship where the homeowner had refused him the opportunity to correct his own work.
Facts
In this case, the homeowner (the “Owner”) hired a contractor (the “Contractor”) to renovate her garden and house. After the project was already underway, the Owner had another experienced contractor inspect the Contractor’s work, which resulted in 43 alleged deficiencies being identified. The Contractor willingly accepted many of these items as deficiencies and agreed to correct them. The Contractor even indicated a willingness to discuss completing the few remaining items that were not agreed to be deficient. Despite this, the Owner refused to let the Contractor back on site to finish the work and repair the deficiencies. Instead, the Owner retained a third party to complete the renovation. Ultimately, the Contractor sued for payment of his outstanding invoices and the Owner counterclaimed for breach of contract. The Owner also requested that the cost of hiring the new contractor be deducted from the Contractor’s outstanding invoices.
The Decision
At trial, the Court largely found in favour of the Contractor, holding that the Owner breached the construction contract by refusing to allow him access to the property to correct the deficient work and instead hiring a third party to finish work within his scope. In contrast, the court mostly disregarded the set-off claimed by the Owner for deficient work. The court concluded that the Contractor could have repaired most of these items had he been permitted the opportunity. As a result, the Owner had failed to reasonably mitigate their damages by denying the Contractor the right to complete his deficient work.
Lessons Learned
1. If faced with a situation where a homeowner refuses to let you back on site to repair deficient workmanship within your scope, consider submitting a written offer to repair these items. This may limit the homeowners’ ability to later claim against you for the cost of hiring a third party to repair the deficient work.
2. Do not automatically write down your invoices to account for deficient work even if the defective items are agreed to. If you are prepared to correct these deficiencies, you may be entitled to the full amounts owing on your invoices.
This article was written by Andrew Delmonico and Jay Spiro, lawyers, and Matthew Potomak, an articled student, who practice in construction law with the law firm of Kuhn LLP. This article is only intended as a guide and cannot cover every situation. It is important to get legal advice for specific situations. If you have any questions or comments about this case or other construction law matters, please contact us at 604-864-8877.
