Defective Workmanship (Automotive)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	1790
Page Categories:	[Automotive]
Citation:	Defective Workmanship (Automotive), CLNP 1790, <4T>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2021/10/26

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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.”

Complete Access Lift & Mobility Ltd. v. Marisa Riggi and Enzo Riggi, 2010 CanLII 100648 (ON SCSM)

[131] The following statement of Deputy Judge Van Der Woerd.in the case of Campbell v. Susi [1995] O.J. No. 4606 (ON.Ct.G.D.Sm.Cl.Ct.) – a used car sales case – seems to sum up the default law as well as I’ve seen it put:

[8] ... [The Defendant’s] position is that although he may have been at fault, Mrs. Campbell ought to have accommodated him by giving him another opportunity to repair it. I know of no such obligation in law that would impose upon Mrs. Campbell that kind of obligation. This may well be the way in which minor disputes are settled between people, and it would have been wonderful if that had happened here, but it did not take place.

[132] In her arguments, the paralegal agent for the Plaintiff referred me to a British Columbia house painting case that aptly illustrates the opposite result – Knowles-Robson v. Dobbie [2001] B.C.J. No. 472 (BCProv.Ct.). The painter had done his job, was paid in full and was returning to start work on an agreed list of deficiencies. Provincial Court Judge Gove found that such a list was standard practice in the house painting business and “... that completion of the deficiencies was not part of the warranty, but Dobbie's desire to satisfy the contract.” The parties got into a argument and the homeowner first excluded the painter from the property and later sued for the (much increased) estimated cost of re-doing the defective work. In these circumstances:

[19] This case comes down to a contract to paint a house. The homeowners were not satisfied with the work done. Dobbie agrees that the work was not done as required and presented himself two years ago to complete the work. The homeowners refused to allow this to occur. It is contrary to the law of contract to allow them now to sue on the contract for damages where Dobbie was prepared to carry out the contract. The failure to complete the contract was not his doing but theirs.

[133] The key to this case is Judge Gove’s finding that the plaintiff homeowner wrongfully terminated the contract before the defendant painter could complete it. They were not justified in terminating the contract.