Defective Work
The well-known saying, “A person’s home is their castle,” highlights the significance of a home as a sanctuary of individual privacy and safety. However, beyond being a haven, a home is also a significant financial asset. For the vast majority of people, their home is the most substantial investment they will ever make. Consequently, safeguarding and preserving the property is vital to maximize its worth and guarantee that it provides a sound return on investment.
Defective work litigation is a legal process that arises when an individual or organization suffers harm as a result of a defect in a product or service. This type of litigation is typically associated with construction and renovation projects, where defects in the work can cause property damage or sometimes bodily injury.
What legally is defective Workmanship?
Deciding whether a defect is present can be subjective and dependent on personal opinion. Property owners who hold themselves to high standards may be more critical when evaluating the quality of work, while contractors who believe they have met or exceeded the contractual requirements or the standard of good and workmanlike conduct, as expected by negligence law, may have a different interpretation from the owner. This means that what is considered a defect can vary based on the perspective of the person involved.
After a construction project is finished, the property owner expects that the work will be executed flawlessly and in accordance with the agreed-upon standards. However, if any defects are found, the owner may choose to file a lawsuit against the responsible contractor or subcontractor. These legal actions may request compensation to cover the expenses of fixing the defect, as well as any additional costs resulting from the defect.
Sometimes, a contractor may mistakenly assume that complying with the required standards of workmanship, as outlined in legislation such as the Building Code Act or local by-law standards, and obtaining approval from the building inspector is satisfactory. However, in legal proceedings, it is the judge who ultimately determines whether something constitutes a defect.
There are instances where contractors mistakenly believe that their legal responsibilities are confined to adhering to the contract’s specifications. This perspective can lead to legal action being taken against them for failing to deliver work that is durable or suitable. When a contractor agrees to provide materials and/or carry out work, an implied term is included in the contract that necessitates the materials and work to be reasonably durable and appropriate for the intended use. In other words, contractors have a legal obligation to ensure that their work meets both durability and suitability standards beyond what is explicitly stated in the contract.
Duty to warn
Contractors are responsible for more than just fulfilling the design requirements set out by the client; they also have a duty to produce work that is fit for the intended purpose. This obligation includes a requirement to inform the client if the contractor is aware, or should be aware, that the design, plan, or project specifications are inadequate. In simpler terms, contractors are accountable for identifying and conveying any potential concerns or limitations with the client’s design or plan to guarantee that the final product is appropriate for its intended use.
What is the evidence required?
Determining whether a construction project has a defect is typically left to a judge’s discretion; however, the judge often requires expert testimony to aid in the decision-making process. In cases where the defect is noticeable and apparent, the judge can declare it without the need for expert witnesses. An expert witness can offer their professional opinion on whether the workmanship met the standard of care and may also estimate the cost of repairing the defect or evaluate whether the cost estimates and other evidence presented by the parties are reasonable. It is important to note that expert witnesses are obligated to provide impartial evidence and testimony as a friend of the court, regardless of which party calls or compensates the witness.
What are the duties of the property owner?
In the event of a breach or defect, the property owner has a “duty to mitigate,” meaning they are obligated to minimize any resulting harm or losses. This duty involves taking reasonable and prudent steps to decrease the damages. Essentially, the owner must act responsibly to prevent the situation from worsening and to limit the potential impact. If the owner fails to fulfill this duty, they may be barred from recovering certain damages or held partially accountable for the damages that arise from the breach or defect.
If a contractor is performing poorly, a property owner may be tempted to terminate the contract immediately. However, taking such action could be considered a breach of contract and may result in the owner losing certain legal rights. Instead, the owner must provide the poorly performing contractor with a reasonable opportunity to rectify any defective workmanship. This opportunity must be in line with any warranties specified in the contract. By giving the contractor a chance to correct their work, the owner can avoid any unnecessary disputes and ensure that their rights are protected in the event of legal action.
Who should the homeowner sue?
In contracting, the property owner often employs a general contractor, who then hires subcontractors. This structure can lead to a lack of direct communication between the property owner and the various parties involved in producing the work. This raises the issue of who is ultimately accountable for repairing any defects or damages caused by the work of a subcontractor. In such situations, determining liability can be complex and may hinge on a variety of factors, such as the contractual terms, relevant laws and regulations, and the type and extent of the defect or damage.
Homeowners can take comfort in knowing that under the principle of non-delegable duty, the general contractor who was contracted by the homeowner is held responsible for any substandard work produced by the subcontractors and tradespeople involved in the project. This means that the homeowner can hold the general contractor liable for any damages or defects that arise due to the work of the subcontractors. This principle is in place to ensure that property owners are not left without a remedy if the work performed by a subcontractor or tradesperson results in harm or damage to their property.
In which court are disputes regarding defective work held?
Lawsuits related to defective workmanship are frequently seen in Small Claims. Typically, when homeowners jointly own a property and are involved in a dispute related to defective work, they may file a claim in Small Claims Court. As the jurisdiction of the court allows for claims of up to $35,000 per plaintiff, the couple may be able to claim up to $70,000 or more if additional parties are involved by commencing separate claims in Small Claims Court. It is common to see such disputes involving married couples who jointly own the property affected by the defective work.
If you are experiencing issues related to defective workmanship or are facing legal proceedings related to such issues, we encourage you to schedule a free confidential consultation with Paragon Paralegal by contacting us. We provide you with valuable guidance, help you identify potential weaknesses in the opposing side’s argument, and position you for a positive outcome when possible. We work collaboratively with both parties, leveraging our knowledge to identify and exploit any weaknesses in the opposing side’s case, and positioning you for a strong position when possible.