March 2, 2014
By David I. Bristow, Q.C., LSM, C. ARB
Construction law can be quite labyrinthine and byzantine, occasionally confusing for contractors, design professionals, and owners alike. In other cases, it may appear more straight-forward.
In almost every statement of claim in a construction case, the plaintiff—whether a general contractor, installer, engineer, or architect—will state the work was done “in a good and workmanlike manner.” And, in almost every case, the statement of defence will be that the work was not done in this supposedly good and workmanlike manner. In other words, the plaintiff had breached the contract.
The contract itself does not even have to state anything about what exactly constitutes “good and workmanlike manner;” the law will imply it. In accordance with Canadian judgments, the worker employed on a job must therefore have the ordinary amount of skill possessed by those exercising the particular trade. So what does this mean at law? It means this leaves a vast amount of discretion in the hands of any trial judge.
One of the latest incidences was recently heard in a court in Moose Jaw, Saskatchewan. Trusty v Gross, 2012 SKPC 54 (CanLII) was a very small case of a bricklayer claiming a sum of $3478.35 for a contract with a homeowner. However, the finding could always have similar implications at much larger levels.
The major complaint seemed to be the owner (i.e. defendant) was not happy with the masonry work. (For his part, the plaintiff said he had heard nothing about this dissatisfaction until the Case Management Conference [CMC].) The trial judge took this as an attempt to hold the bricklayer to a ‘satisfaction-guaranteed’ standard, which the court found was not the law in this situation.
Each case must be decided on its peculiar facts, and it was obvious this trial judge did not like the defendant’s conduct. The trial judge found the defendant refused to allow the plaintiff’s expert to view the property or have pictures taken of the work. Further, the defendant used ugly expletives with the plaintiff, and said he would make arrangements for a viewing “in a month of Sundays.”
The defendant called no expert at the trial on the matter of what was good and workmanlike manner. He also testified the plaintiff took too long to finish the project, and also complained the bricklayer arrived too early in the morning, disrupting the sleep of the defendant’s wife. The plaintiff was awarded the full amount of his claim.
In conclusion, the term “good and workmanlike manner” should be carefully assessed in most of these cases. An expert on the subject is almost always very helpful, but empathy often also has a significant part in judicial judgment. What is fair and reasonable usually triumphs.
David I. Bristow, QC, LSM, C.Arb., is a member of Team Resolution, a Toronto-based alternative dispute resolution group. He is a former counsel to a national Canadian law firm, where he headed the construction law group, and is a co-author of Construction Builders’ and Mechanics’ Liens in Canada. Bristow was the founding chair of the Ontario Bar Association (OBA) Construction Law Section and a past chair of the Canadian Bar Association (CBA) Construction Law Section. In 2002, he received the Law Society of Upper Canada Medal, the Golden Jubilee Medal of Queen Elizabeth II, and the Giffin Award for outstanding service to the construction industry. Bristow can be contacted via e-mail at email@example.com.
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