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Construction Deficiencies

How long does a contractor have to correct deficiencies?

Mistakes happen, even in construction. While contractors and tradespeople are highly diligent professionals, errors can occur in a job at any stage. Sometimes these are mistakes in measurements and calculations, other times the errors are simply human, but deficiencies in construction work can have a major impact on a construction project.

If mistakes are caught during the progress of a construction project, they may be easy to rectify. What happens, however, when defects are only realized after a project has been mostly completed? What opportunity should property owners give contractors and construction workers to make things right?

There are standard expectations in the law for how long contractors should have to reasonably correct their mistakes. If deficiencies are not corrected in time, then owners may have an opportunity to make a claim against contractors for their mistakes. 

What the law says about correcting deficiencies

There is an implied term within construction projects that the work will be done well, and that the end result will be delivered on time and in good working order. As Courts have cited from the text Canadian Building Contracts

Unless the contract or the circumstances indicates otherwise, the contract will contain an implied term that the work shall be done in a good and workmanlike manner, that the workmen employed on the work will possess the ordinary skill of those exercising the particular trade and that the materials will be of good quality and reasonably fit for the purpose for which they are used.

In short, contractors are expected to do their jobs properly and deliver work as promised. 

For their part, when deficiencies do occur, property owners need to give construction teams a reasonable opportunity to correct these deficiencies. As the Court stated in a 2008 case called C.S. Bachly Builders Ltd. v. Lajlo, 2008 CanLii 57444, “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.”

The wording here is key. First, project owners need to provide workers with a reasonable opportunity to correct the deficiencies and fix any mistakes. Not only is this the appropriate thing to do, but it helps minimize any of the damages incurred before the owner begins a claim before the court.

The Court has said clearly that a property owner cannot sue on a defective project without giving the team a reasonable opportunity to correct their work. If deficiencies are corrected, this will minimize or even eliminate the monetary damage of any claim. Otherwise, such lawsuits would be an exercise in suing people for their mistakes before they had a chance to fix them. 

The primary exception is one of fundamental breach. If the deficiency goes to the very root of a project, and is one that is almost unfixable, such as one of the parties being unable to deliver on the contract, then the breach is so fundamental that there does not need to be an opportunity for them to try and fix things. 

Can property owners hire someone else to correct deficiencies?

If a property owner believes that work was done deficiently, they may be inclined to not pay the contractor who did the work, and instead hire a third-party to come in and fix any mistakes. This is often the root of most litigation in these situations – a contractor will sue for unpaid invoices, and the owners will counterclaim for the costs of hiring the third party. 

However, if the matter comes before a court, then timing might come into question. Just as a contractor needs a reasonable amount of time to be able to correct deficiencies, a property owner needs to behave reasonably as well. If they are taking no steps to fix the problem at all and then claiming for money, a court will most likely take notice. 

In Lido v. Joy, 2012 ONSC 5058, for example, a cabinet designer and installer in Toronto was claiming against a couple for an unpaid invoice for designing and installing custom kitchen cabinetry, and the homeowners were counterclaiming against the designer for deficiencies in the work. The amount owed to the designer was just over $11,000.

The homeowners counterclaimed for $25,000 for deficiencies. The Court found that there was some miscommunication between the designer and the homeowners, which was partly the fault of the designer. However, despite the homeowner’s claims that they were builders themselves, the Court found that they did not properly document instructions to the designers, and other errors were as a result of their own tradespeople.

On one portion of the claim for defects, the Court found that “in almost two years the Joys have taken no steps to effect the repairs about which they complain. They have not obtained quotes from independent contractors, nor have they undertaken any repairs for which they could provide evidence of payment.” 

This delay further weakened their financial claim, as they provided financial estimates that were not supported by any evidence. Without any evidence that any financial award from the Court would be put towards the repairs, it appeared highly likely that the property owners would never get around to the repairs, and instead pocket the cash. 

Regarding a countertop, the issue appeared to be a height difference that occurred when a contractor employed directly by the homeowners installed a granite countertop. The installers had offered to re-install the countertop, and even offered to replace the granite if it broke during the process, but the homeowners refused any reasonable solution put forth.  

The Court ruled that “the Joys failed to reasonably mitigate their claim. They are holding Lido to a standard of perfection, but they did not contract for perfection. They contracted with Lido for high quality cabinetry manufactured and installed according to the approved design. From the photographs it appears to me that Lido supplied a beautifully designed and manufactured, high quality kitchen.” 

The counterclaim was dismissed, and the homeowners were ordered to pay the outstanding balance with interest. 

Final Thoughts

A homeowner or property owner would be understandably upset if a construction project has not been completed to their expectations, or if there are still a series of defects in the final product. However, just as it is reasonable to expect a contractor to correct those defects, the owners also have to provide a reasonable opportunity for them to do so.

Our construction law group regularly supports property owners as well as contractors and tradespeople in helping to resolve these issues, either through negotiation and reaching an agreement out of court, or through litigation when necessary. Contact our office today to set up a consultation.