Defective Workmanship (Automotive)

Duguay v Gallo, 2015 CanLII 31951 (ON SCSM)

[129] While factually I have found for Duguay on this matter, the case law leads to the same conclusion. C.S. Bachly Builders Ltd. v Lajlo, 2008 CanLII 57444 (ON SC) is a decision of Hill J. By coincidence, it was also a roofing claim. Lajlo, the homeowner, was dissatisfied with the job. The roofer sued on the contract. Hill J dealt with the legal background as follows:

“[82] An implied condition of the defendant’s contract with Bachly required the contractor’s work be done in a workmanship manner. While there is no doubt that aspects of the work of Bachly’s roofing sub-trade were deficient, I am not satisfied, on the whole of the evidence I accept, that the entirety of that work was so defective as to go to the root of the contract such as to amount to a fundamental breach by the plaintiff. This is essentially a fact-driven determination. Nor does the evidence support any intention by Bachly to no longer be bound by the contract.

[84] ‘Mere bad or defective work will not, in general, entitle an owner to terminate a contract’: I. Goldsmith, Canadian Building Contracts (4th ed.), p. 6-4 (passage approved in Argiris (c.o.b. Atlas Painting) v Calexico Holdings Inc., [1998] O.J. No. 6291 (Gen. Div.) at para. 12;….

[86] While the state of the roof repairs by Bachly amounted to a breach of contract on its part, ‘breach of contract is a long way from repudiation of contract’: Argiris, at para. 10. The condition of the roof work in this case was not so bad or defective as to deny the defendant the substance of the benefits of the contract and did not amount in substance to a failure or refusal to carry out the contract work and thus amount to repudiation. It is the defendant who failed to fulfil her contractual obligations and thus repudiated the contract. Without justifiable cause, Ms. Lajlo denied the [plaintiff] access to the work site and the opportunity for Bachly’s performance to the completion of the contract.

[87] Although the defendant may be entitled to a set-off for that roof work which was defective, in the absence of a fundamental breach by Bachly, she was obliged in mitigation of her damages to provide the plaintiff a reasonable opportunity to correct its own work….In these circumstances, the defendant is not entitled to damages on her own costs of correction:…Argiris, at para. 22.”