Omer Deveau Construction v. Foster, 2012 NSSC 313

SUPREME COURT OF NOVA SCOTIA Citation: Omer Deveau Construction v. Foster , 2012 NSSC 313 Date: 20120823 Docket: Digby No. 235334 Registry: Digby Between: OMER E. DEVEAU carrying on business under the name and style of “OMER DEVEAU CONSTRUCTION ” Plaintiff and ROBERT FOSTER Defendant LIBRARY HEADING Heard: July 7 and September 7, 2011 Final Written Submissions: September 17, 2011 Counsel: Hugh Robichaud for the Plaintiff Alexander Pink for the Defendant

Summary: Robert Foster and Omer Deveau entered into an oral contract under which: Mr. Deveau was responsible for constructing a house for Mr. Foster up to the “ roof-tight ” level of completion; he was to be paid on an hourly basis; on successful completion of the project, he was to receive a bonus of 5%; and, Mr. Foster was permitted to supply as much of his own labour and materials as he chose to. Mr. Deveau had indicated he expected the completion time to be 6 to 8 weeks. Mr. Foster was of the view that was a term of the contract. Mr. Deveau indicated it was merely an estimate.

There was also a dispute in relation to whether the 5% bonus was to be based on materials only or both materials and labour.

Construction began in April 2004. Mr. Foster refused to pay a statement of account presented by Mr. Deveau in mid-August 2004, and requested further particulars. In late August, prior to full completion of the job, Mr. Deveau was off the job. He indicated that Mr. Foster ejected him from the work site and prohibited his re-entry. Mr. Foster indicated that Mr. Deveau abandoned the job. Mr. Deveau presented additional statements of account thereafter, none of which were paid. He commenced the within action to recover the unpaid amounts. Mr.

Foster alleged that: the numerous deficiencies, delay, and non-completion of the project, were breaches justifying repudiation of the contract by him; he was invoiced for items which were not supplied; and, the damages he suffered as a result of the deficiencies more than offset the unpaid amounts. Mr. Deveau conceded that Mr. Foster was erroneously charged for a double door which was installed in Mr. Deveau ’ s home. However, he alleged that: any deficiencies were either waived or minor; and, he was not given a reasonable opportunity to remedy them.

He sought payment in accordance with the terms of the contract, or, in the alternative, on a quantum meruit basis. Mr. Foster did not counterclaim; but, pled a set-off. Issues A. Credibility and Reliability of the Witnesses B. What were the express terms of the contract? C. What, if any, breaches of contract did Mr. Deveau commit? D. What, if any, breaches of contract did Mr. Foster commit? E. Was the contract repudiated and terminated? F. What amount, if any, does Mr. Foster owe Mr. Deveau? Result A. Mr. Deveau was found to be more credible than Mr. Foster. There were reliability concerns in relation to both. B.

It was not an express term of the contract that the construction would be completed within 8 weeks. The 5% bonus was to be paid on materials only. C. The only breach Mr. Deveau was proven to have committed was that he made the chimney opening too small. His use of 2 X 4 framing instead of 2 X 6 framing was an error that was accepted by Mr. Foster, who chose to use it as the base for R2000 construction. Mr. Foster ’ s non-communication, poor communication and/or changes of mind resulted in the sliding patio door being installed in locations Mr. Foster did not want. Mr.

Foster was responsible for the non-completion because he dismissed Mr. Deveau. Mr. Foster did not establish the work performed was not completed within a reasonable time, nor, apart from the chimney opening, substandard. D. Mr. Foster breached the contract by preventing access to the work site and failing to pay properly charged amounts.

E. The only unaccepted proven deficiency was the undersized chimney opening. It which only took a few hours to fix, making it a minor defect. Therefore, Mr. Foster was not justified in dismissing Mr. Deveau and repudiating the contract. Mr. Deveau offered to remedy any deficiencies. Therefore, he did not accept the repudiation and terminate the contract. F. Mr. Deveau was entitled to recover payment under the terms of the contract, including the 5% bonus. However, he failed to prove some of the amounts included in the statements of account were for materials supplied to Mr. Foster.

He also charged more for one of his workers than was agreed to, and included general tool charges not agreed to. In addition, Mr. Foster was entitled to a set-off for the cost of remedying the undersized chimney opening. Mr. Deveau ’ s claim was reduced accordingly. He was awarded $29,039.66, inclusive of pre-judgment interest, plus costs and disbursements totaling $7,356.06. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT ’S DECISION QUOTES MUST BE FROM THE DECISION, NOT THE LIBRARY SHEET SUPREME COURT OF NOVA SCOTIA Citation: Omer Deveau Construction v.

Foster , 2012 NSSC 313 Date: 20120823 Docket: Digby No. 235334 Registry: Digby Between: OMER E. DEVEAU, carrying on business under the name and style of “ OMER DEVEAU CONSTRUCTION ” Plaintiff and ROBERT FOSTER Defendant

Heard: July 7 and September 7, 2011 Final Written Submissions: September 17, 2011 Counsel: Hugh Robichaud for the Plaintiff Alexander Pink for the Defendant 1. INTRODUCTION [ 1 ] Robert Foster purchased, from Omer Deveau, a piece of land in Mavilette, Digby County, Nova Scotia, and, entered into an oral contract with him to build a house on that land. [ 2 ] The parties agree that the express terms of the building contract included that: Mr.

Deveau, as the general contractor, was responsible for constructing the home up to the “ roof-tight ” level of completion; he was to be paid for his work, and that of his assistants, on an hourly basis; he was to be reimbursed for any materials supplied by him; on successful completion of the project, he was to receive a bonus of 5%; and, Mr. Foster was permitted to supply as much of his own labour and materials as he chose to. [ 3 ] In their pre-trial submissions the parties agreed that the 5% bonus was only on materials purchased by Mr. Deveau. The post- trial submissions filed on behalf of Mr.

Deveau argue that the 5% bonus was on materials and labour. [ 4 ] Mr. Foster alleges that it was also an express term of the contract that the project would be completed within 6 to 8 weeks. Mr. Deveau alleges that he merely provided that time-frame as an estimate of how long he expected the project to take. [ 5 ] Mr. Deveau started work on the project in April 2004; and, stopped in August of 2004. The parties disagree in relation to whether Mr. Foster directed Mr. Deveau to leave the work site, or whether Mr. Deveau decided to leave. At that point, the house was not yet completely roof-tight. [ 6 ] Mr.

Foster paid all statements of account submitted by Mr. Deveau prior to August 2004. However, he refused to pay any further statements of account. Mr. Deveau commenced the within action against Mr. Foster to collect payment. [ 7 ] Mr. Foster alleges that: the numerous deficiencies, delay, and non-completion of the project, are breaches which justify repudiation of the contract by him; he was invoiced for items which were not supplied; and, the damages he suffered as a result of the deficiencies more than offset the unpaid amounts. [ 8 ] Mr. Deveau concedes that Mr.

Foster was erroneously charged for a double door which was installed in Mr. Deveau ’ s home. However, he alleges that: any deficiencies were either waived or minor; and, he was not given a reasonable opportunity to remedy them. Therefore, he is of the view that he is entitled to collect unpaid amounts in accordance with the terms of the contract. In the alternative, he alleges that he is entitled to the same amount on a quantum meruit basis.

[ 9 ] Since Mr. Foster has not counterclaimed for damages, any set-off amount would only serve to reduce any amount owing to Mr. Deveau. [ 10 ] In order to find what, if any, amount Mr. Foster owes Mr. Deveau I must determine the following points: 1. The credibility and reliability of the witnesses; 2. The express terms of the contract; 3. Whether there were deficiencies and delay amounting to breaches of contract by Mr. Deveau; 4. Whether there was nonpayment and prevention of access to the work site amounting to breaches of contract by Mr. Foster; 5. The impact of any such breaches; 6. Whether Mr.

Deveau was dismissed from or abandoned the work site; 7. Whether the dismissal or abandonment was justified; 8. Whether the circumstances surrounding the dismissal or abandonment amounted to repudiation and termination of the contract; 9. What amounts were properly charged; and, 10. What, if any, set off amount is appropriate. [ 11 ] These points will be addressed under the following issue headings. 2. ISSUES A. Credibility and Reliability of the Witnesses B. What were the express terms of the contract? C. What, if any, breaches of contract did Mr. Deveau commit? D. What, if any, breaches of contract did Mr.

Foster commit?

E. Was the contract repudiated and terminated? F. What amount, if any, does Mr. Foster owe Mr. Deveau? 3. LAW AND ANALYSIS A. CREDIBILITY AND RELIABILITY OF THE WITNESSES (

i) Robert Foster Evasiveness [ 12 ] Mr. Foster was asked what costs he incurred as a result of the framing being 2 X 4 instead of 2 X 6. He answered evasively, stating that he wanted a home with 2 X 6 framing and he did not receive it. [ 13 ] It was pointed out to Mr. Foster that the Thomas Blinn Electrical Bill for the temporary service was dated after the final cheque he made out to Mr. Deveau; and, suggested to him that, therefore, he could not have paid for that temporary service.

He evasively answered three times that that was very clever and did not then acknowledge that he could not have paid for it. [ 14 ] After Mr. Foster answered “ yes ” to the suggestion that he chose to put the chimney up the existing opening knowing it would likely be a building code violation, it was suggested to him that it was “ his ” choice. He responded in an evasive way, stating that it was his choice to have a fireplace and Mr. Deveau lied to him about having secured a mason. [ 15 ] Mr. Foster testified that he showed Mr.

Deveau a revised plan, which included a sliding patio door, at the end of May or the 1 st of June, which was after the door had already been installed. He was then asked how Mr. Deveau could have had the revised plan before the door was installed. He evasively answered that what he may have done is change to a slider. He was brought back to the question. He responded again that he believed there was a change. His attention was brought to the question again. Still not answering the question, he responded that he believed he told Mr. Deveau about it before he arrived. Mr. Foster then asked how Mr.

Deveau knew to put the slider in. It was pointed out that he would have known because it was delivered. Only then, did Mr. Foster reluctantly admit he may not have sent the plan. Attitude [ 16 ] Mr. Foster, at times, answered cross-examination questions by asking questions. When Hugh Robichaud, while cross- examining him, suggested that the questioning would end sooner if only Mr. Robichaud asked questions, he replied, in a flippant tone, that he ’ d be happy to be there a week. [ 17 ] At Mr. Robichaud ’ s request, Mr. Foster looked at Exhibit 3 and asked flippantly what the reference to “ Meteghan House ” was.

Mr. Robichaud responded that it was a reference to Meteghan Home Hardware. Mr. Foster responded, in a sarcastic tone: “ Really, so Meteghan Home Hardware has become Meteghan House - I don ’ t understand. ” [ 18 ] Mr. Foster pointed out the invoice in Exhibit 3 which contained the charge for the double door that was not installed in Mr. Foster ’ s home. Mr. Robichaud then indicated he wanted to look at the plan. Mr. Foster asked that they stick to the double door invoice and proceeded to give more evidence relating to it. Mr. Robichaud directed Mr. Foster to Exhibit 2. Mr.

Foster stated, in an aggressive tone: “ Why don ’ t we stick to the door? ” He was being confrontational and trying to control the questioning.

[19] Alexander Pink, on behalf of Mr. Foster, argues that his upset with Mr. Deveau came across as being confrontational, andresulted in him asking Mr. Robichaud questions while being cross-examined. Inconsistencies [20] Mr. Foster initially testified that he arrived in Nova Scotia and first saw the construction of his house underway on May 21 or23, 2004. He later testified that, from April to August, he pretty much worked steadily at the house, except when he and a friend took atrip to Cape Breton. [21] Mr. Foster testified that he took the photos in Exhibit 13 after Mr.

Deveau left the job and they show that the sliding patio doorwas not installed. That is inconsistent with his evidence that, after Mr. Deveau installed that door in the wrong place the first time, he hadhim move it, only to find out he once again put it in the wrong place, then had him move it again to its final location. [22] Those are apparent, unexplained inconsistencies, as is the above referenced inconsistency in relation to showing the revisedplan to Mr. Deveau “Sense” of the Evidence [23] Mr. Foster indicated that he suspected Mr. Deveau was taking materials from his home.

Therefore, on one occasion, at somepoint in July, he stayed late. He believes he parked his car in the garage. Mr. Deveau arrived and came in to get clear spruce boards.When Mr. Deveau saw him, he was surprised. He helped Mr. Deveau load the boards and allowed him to take them. He did not sayanything to Mr. Deveau, nor ask him any questions. He explained his course of action by saying that he wanted to make the point to Mr.Deveau that he was on to him and understood his underhandedness. He added that Mr. Deveau was on his way to the Clubhouse.However, he did not explain how he knew that. [24] Mr.

Deveau denied that event happened at all, and said he did not steal anything from Mr. Foster’s home. [25] As stated at paragraph 11 of Faryna v. Chorny, (BC CA), [1951] B.C.J. No. 152 (C.A.), which has beenoften cited with approval: “[T]he real test of the truth of the story of [an interested] witness in [cases of conflict of evidence] ... must be its harmony with thepreponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in thoseconditions.” [26] This is sometimes referred to as assessing the “sense” of the evidence.

In my view, “a practical and informed person” wouldnot “readily recognize as reasonable in that place and in those conditions” the actions of Mr. Foster. He might have conveyed themessage he was purporting to convey by simply staring at Mr. Deveau if he was taking items. However, to assist him in loading theboards would, instead, convey a message that he believed he would not be charged for the boards or that he agreed with Mr. Deveautaking them. The event, as described by Mr. Foster, does not make sense. It cannot be accepted as credible.

It negatively affects hisoverall credibility. [27] On cross-examination Mr. Foster did acknowledge that Mr. Deveau did not, in effect, steal the wood. He said, that one couldsay that he gave the wood to Mr. Deveau. Minimization [28] The only things pointed out by Mr. Foster as lacking to render the house roof-tight were the sliding patio door and the shingles

on the north and south elevations. However, he stated that the job was only “ maybe ” 30% finished. In my view that is an extreme minimization. (ii) Omer Deveau Inconsistencies [ 29 ] Initially in his oral evidence, Mr. Deveau indicated that Mr. Foster threw them off the job a few days after he arrived from the United States and noted that 2 x 4 framing had been installed instead of 2 x 6 framing. [ 30 ] Then he stated that it was at least a couple weeks after the building inspector noted the inadequate chimney opening as a code violation.

He had indicated that the building inspector came after a long weekend, following the discussion he and Mr. Foster had about the wall framing and the chimney opening. He later indicated that it was a couple of days after he provided Mr. Foster with the invoices and statements of account entered as Exhibit 2. The latest date noted for the supply of labour is August 23, 2004. Therefore, Mr. Deveau ’ s evidence suggests that they were ejected from the job in late August. [ 31 ] A late August ejectment date appears to be inconsistent with an ejectment date a few days after Mr.

Foster returned from the United States and noted the issue in relation to the exterior wall framing. That would have occurred prior to Mr. Comeau inspecting the site on August 4, 2004. Consequently, the ejectment could not have been a few days after that. [ 32 ] Mr. Deveau initially testified that all of the supplies noted in the invoices contained in Exhibit 3 went on the Robert Foster Job. However, he later acknowledged there was a double door included which was not installed in the Foster House. He said his accountant must have included it.

I did not take it as a deliberate attempt to knowingly include materials not supplied. [ 33 ] Mr. Deveau testified that his crew was getting $15 or $16 per hour . The transcript of his discovery was entered as Exhibit 10. His attention was brought to page 14 where he had stated that he was paying one worker $9 per hour and the other $10 per hour for Mr. Foster ’ s project. He explained that he might have been thinking about the amount he pays the laborers who haul materials for the carpenters.

He indicated it might have been a mistake that he made at the time of discoveries, as a result of a misunderstanding on his part , because he did not have any labourers on Mr. Foster ’ s job. In my view that explains the inconsistency. [ 34 ] Mr. Deveau initially testified that he did not know that Foster wanted the exterior walls framed with 2 X 6's until after they had already framed them with 2 X 4's. However, when the building permit dated December 3, 2003, was shown to him, he acknowledged that he knew then that the exterior walls were to be framed with 2 X 6's.

Then he went on to reiterate that the plans did not specify what the exterior walls were to be framed with and that he did not know why that was on the building permit. He said there were never 2 X 6's delivered, there were 2 X 4's delivered. Page 22 of the transcript of his discovery shows that he had stated that: 2 X 6's were delivered, but were returned because of their poor condition; and, were replaced with the 2 X 4's they built the exterior walls with, which must have been his mistake. Having been shown that portion of his discovery, Mr. Deveau testified that he must have been confused.

He usually frames with 2 X 4's. So he has no idea why it would be indicated, on the building permit, that the exterior walls were to be constructed with 2 X 6's. [ 35 ] I accept that the inconsistency was created by confusion and the effect that the passage of time has had on his memory of the events. [ 36 ] On direct examination Mr. Deveau said it took approximately 3 hours for him and his crew to move the sliding patio door a second time. However, on cross-examination, he indicated he took a maximum of two hours to remove and re-frame the door. This inconsistency appears to be the result of an effort by Mr.

Deveau to minimize the time required. Reasonable Admissions

[ 37 ] Mr. Deveau readily admitted that the 5% bonus was only to be added when the job was completed. [ 38 ] Mr. Deveau initially testified that he did not know Mr. Foster wanted the exterior walls to be constructed with 2 x 6's. However, having been shown the building permit, which indicates the exterior studs were to be 2 X 6's, Mr. Deveau readily admitted he knew, in December of 2003, that the exterior framing was to be constructed using 2 X 6 ’ s, even though he went on to express confusion over why that would be noted on the building permit, when he usually frames with 2 x 4's. [ 39 ] Mr.

Deveau readily agreed that the inconsistency amongst the job designation titles on the Home Hardware invoices made it difficult for Mr. Foster to know what was used on his property. Readiness to Make Statements Against Interest [ 40 ] Mr. Deveau was quick to say that he never used any of the materials contained in the U.J. Robichaud & Sons Woodworkers Ltd. on Robert Foster ’ s house. However, that testimony clearly arose from his confusion over the name “ Robert Fowler ” being on some of the invoices.

On redirect examination he was referred to the invoices in Exhibit 9 which refer to “ Robert Foster ” and “ Robert Foster Job ” . He then confirmed the materials on those invoices were used on Robert Foster ’ s house and explained what some of those materials were used for. He also testified that during the period of time covered by the invoices he only worked on the Foster House. [ 41 ] In my view, this shows a readiness to err on the side of caution, in the midst of confusion, and give an answer against his own interest. It shows a reluctance to mold uncertainty to support his own case.

In my view that bolsters his credibility. Invoicing for Labour of Emile Deveau, rather than Omer Deveau [ 42 ] Mr. Deveau did not explain why the invoices showed labour for Emile Deveau and not for Omer Deveau. He surmised it might be because both he and his son have “ Emile ” as a middle name and they both worked on the site. However, he confirmed that Mr. Foster was only charged for three people and there were three people working on the site. Mr. Foster did not dispute that there were three people working on the site. Therefore, I do not take Mr.

Deveau ’ s lack of explanation as detracting from his credibility as to the carpenter hours actually supplied and invoiced. (iii) Arnold Comeau [ 43 ] Arnold Comeau was the building inspector who inspected Mr. Foster ’ s home. He had no personal interest in the outcome of the proceeding. He was familiar with Mr. Deveau as a builder, from having supervised him on more than 40 jobs. However, no personal connection between them was established.

He gave his evidence in a straightforward, un-evasive fashion. (iv) General Comments on Credibility and Reliability [ 44 ] I based my assessment of credibility on the above referenced factors. [ 45 ] I found Mr. Comeau to be credible. His evidence was based, to a large extent on notes which appeared to have been made contemporaneously. Therefore, as a general comment, I found it to be reliable. [ 46 ] Overall, I found Mr. Deveau to be more credible than Mr. Foster. I found that, generally, Mr. Foster was trying to evade and

obscure points contrary to his own interest, while Mr. Deveau was too quick to make statements against his own interest. [ 47 ] Mr. Foster gave many answers without being able to provide the reasoning or support for them. In addition he was unable to clearly recall many points. That diminished his reliability. [ 48 ] Mr. Deveau expressed uncertainty and was unable to recall many points. He did not have a good grasp of the accounting used in preparing statements of account. He indicated that it was done primarily by his wife and accountant.

That diminished his reliability. [ 49 ] Generally, where the evidence of Mr. Foster conflicted with that of Mr. Deveau, I accepted that of Mr. Deveau, subject to concerns over reliability. B. WHAT WERE THE EXPRESS TERMS OF THE CONTRACT? [ 50 ] Mr. Deveau testified that, in the fall of 2003, he discussed, with Mr. Foster, the construction of a house on the land that he had sold to Mr. Foster. However, the terms of the building contract were not discussed until after Mr. Foster prepared building plans and sent them to him by mail in the spring of 2004. The plans were not detailed.

They were merely sketches of what Mr. Foster wanted. A copy of those plans was entered into evidence as Exhibit 1. [ 51 ] Mr. Deveau indicated they agreed that: he and his workers would work on building the house until it reached the roof-tight point of construction; he would be paid $18 per hour for the labour he provided and $15 per hour for the labour his helpers provided; Mr. Foster could provide whatever amount of his own labor and materials he chose to provide; and, at the end of the job, Mr. Deveau would receive a bonus of 5%. [ 52 ] Mr.

Foster also testified that the construction contract was on a cost plus basis. Upon successful completion of the project Mr. Deveau would receive a bonus of 5%. It was his understanding that: Mr. Deveau ’ s wages would be $18 per hour; and, those of the other workers would be $16 per hour. The contract was to bring the house to the point of being a “ completed frame ” , which, in the United States means that the roof is shingled and the outside is weather-tight. Mr. Deveau had no problem with Mr. Foster working with the group.

He planned to reach the completed frame stage as a cooperative effort, then do the finish work himself. [ 53 ] Mr. Foster also said he “ expected ” that would be completed in 6 to 10 weeks. [ 54 ] Mr. Deveau acknowledged he might have told Mr. Foster he estimated it would take 6 to 8 weeks to bring the house to roof- tight condition. That seemed reasonable to him. However, he said the actual time it takes to finish a job depends on a number of things, including the weather and the size of his crew. He indicated he only had 2 people working with him. [ 55 ] There was no evidence that Mr. Foster advised Mr.

Deveau that the construction had to be completed by a certain time. [ 56 ] I find that the 6 to 8 weeks was only an estimate.

[ 57 ] There is some disagreement over what the 5% bonus was to be calculated on. [ 58 ] In their pre-trial submissions the parties agreed that the 5% bonus was only to be paid on materials purchased by Mr. Deveau. The post-trial submissions filed on behalf of Mr. Deveau argued he was entitled to a 5% bonus on all the labour and materials he supplied to Mr. Foster. [ 59 ] At trial Mr. Deveau testified that the 5% bonus was to be on the total cost of materials and labour. Mr. Foster testified that it was to be on the “ project ” .

I infer he was saying it was to include the cost materials and labour. [ 60 ] However, the Omer Deveau Statement of Account, dated August 25, 2004, in Exhibit 2, relating to the bonus amounts purportedly owing, states: “ 5% of Building Materials As Agreed ” . The building materials referred to in that statement of account are materials Mr. Deveau alleged were purchased for Mr. Foster ’ s house. Neither that statement of account, nor any other statement of account in evidence, purported to charge a 5% bonus on any labour. [ 61 ] In my view, Mr.

Deveau ’ s recollection of what he agreed the 5% bonus was to be based on would, more likely than not, have been better on and before August 25, 2004, than almost seven years later at trial. I, therefore, find that Mr.Deveau agreed to a 5% bonus based on the materials he purchased for Mr. Foster ’ s house. Even if Mr. Foster thought he was agreeing to pay a 5% bonus on both labour and materials, there was only a meeting of the minds in relation to the bonus being paid on the materials. Undoubtedly, if Mr. Deveau had understood Mr.

Foster was prepared to pay the bonus on labour as well, he would have accepted that. However, I find the agreement reached was that the 5% bonus would be paid only on the materials purchased by Mr. Deveau. [ 62 ] I find that the parties expressly agreed that Mr. Deveau would build the house to the roof-tight point of construction. He would charge $18 per hour for his own labour, $15 to $16 per hour for his other workers, and for all materials he purchased. He would also be paid, on completion, a bonus of 5% of all materials purchased by him. Mr.

Foster could provide whatever amount of his own labour and materials he chose to provide. [ 63 ] I do not find that it was an express term of the contract that the project would be completed in six to eight weeks. C. WHAT, IF ANY, BREACHES OF CONTRACT DID MR. DEVEAU COMMIT? (

i) Deficiencies [ 64 ] Mr. Foster alleges Mr. Deveau caused many deficiencies, including that he: (

a) made the chimney opening too small; (

b) installed the sliding door in the wrong location; (

c) installed multiple windows in the wrong locations; (

d) constructed the outside walls with 2 X 4's, instead of 2 X 6's; and, (

e) did not complete the job.

[65] “Breaches of contract by the contractor relate almost exclusively to performance of the work, since that is his principalobligation.

Even in the absence of any expressed provision to that effect, there is an implied term that a contractor must carry out hiswork in a workmanlike manner ....” [Goldsmith and Heintzman , “Goldsmith on Canadian Building Contracts, Fourth Edition”(1995Thomson Canada Limited - Scarborough), at page 5-9] [66] “Work which does not meet the requirements of the specifications contained in the contract, or which, in the absence of suchspecifications is not of a reasonable workmanlike quality, is not proper compliance with the contract and constitutes a breach.”[“Goldsmith”, at page 5-11] (

a) Chimney Opening [67] “Goldsmith”, at pages 2– 10 and 2 – 11, states: “Although plans and drawings are not an essential part of any building contract, most contracts of any importance do contain some plansor drawings. ...

In so far as the drawings and plans indicate the work to be carried out, they are in the same position as the specifications, and in theabsence of any special provisions, the owner does not warrant that the work can be constructed in accordance with the drawings.” “Apart from his obligation to perform work in accordance with the terms of the contract, the contractor may have other ancillaryobligations, such as compliance with statutory rules and regulations or by-laws, the failure to observe which constitutes a breach ofcontract.” [“Goldsmith”, page 5 – 15] [68] A builder’s work must fulfill the purpose for which it was intended, irrespective of the specifications in the plans.

The builder,upon whom the owner has placed reliance, has a duty to warn the owner of the danger that defects in the plans, if implemented, couldresult in the work not fulfilling the purpose for which it was intended. [Nowlan v. Brunswick Construction Ltd. (1974), (SCC), 2 N.R. 164 (S.C.C.), at paragraph 13] [69] Mr. Deveau said he relied on the working drawings to determine what the measurements for the chimney opening were. Hemeasured the drawing and applied the scale of 1/4 inch to 1 foot, noted on the drawings. Having scaled the chimney opening out at 5feet, he constructed a 5 foot chimney opening. [70] Mr.

Deveau agreed that the plans were only a rough design of the house, with rough measurements. He knew, from page 6 ofthe plans, that Mr. Foster wanted a wood stove. The first discussion they had about Mr. Foster changing that to a fireplace, was when themason arrived. However, the building inspector, Arnold Comeau, testified that page 5 of the plans shows the outline of a fireplace.Therefore, it was available for Mr. Deveau to see also. [71] Mr. Deveau indicated he had not spoken to Mr. Foster to ensure everything was built as he wanted it built because he was notaround at the time of the construction. [72] Mr.

Deveau testified that, when he and Mr. Foster discussed the issue of 2 x 4 framing having been installed instead of 2 x 6framing, he also told Mr. Foster that the hole for the fireplace was too small. Mr. Foster replied that they would take care of that whenthey got to it. At that point, the hole was already framed and the plywood was already on the floor. [73] Mr. Foster retained the services of a bricklayer. The bricks selected to construct the chimney were larger than regular bricks.Mr. Deveau is of the view that smaller bricks would have fit. Mr.

Deveau indicated he advised Foster that they would need a 2 inchairspace going out from the brick. However, Mr. Foster decided to slide fireproof sheet rock in place, in lieu of the 2 inch airspace,

anticipating it would pass inspection. [ 74 ] However, the building inspector, Arnold Comeau, noted it as a code violation that had to be remedied. Mr. Comeau testified that he wrote up a correction notice for the chimney opening because there was less than the requisite two inch gap between the chimney and combustible materials. The bricks used for the chimney seemed oversized to him. In his view, a smaller brick might have worked. He was not surprised to see this problem because it is a common occurrence. In his view, it would take at most three or four hours to rectify.

There were no other deficiencies noted. [ 75 ] Mr. Foster submits Mr. Deveau was negligent in not contacting the mason, and/or him, to find out the exact measurements needed. [ 76 ] Mr. Deveau testified that it was never his responsibility to arrange for a mason to construct the chimney. He advised Mr. Foster that he knew a mason by the name of Lester Saulnier, not that he would arrange for him to construct the chimney. Mr. Deveau was referred to page 44 of the transcript of his discovery. It was suggested to him that he had, at that discovery, stated that he had spoken to Mr.

Saulnier and that he would do the job. However, the question put to him contained two questions. It was phrased as follows: “ And didn ’ t you tell Mr. Foster that he could do the work, he would do it actually, you ’ d spoken to him? ” Mr. Deveau ’ s response was: “ Yes. Yeah. ” It is unclear whether he was responding to the question about whether he had told Mr. Foster that Mr. Saulnier would do the work, or to the question about whether he had spoken to Mr. Saulinier. Mr. Deveau indicated that he was simply saying that Mr.Saulnier was around.

Therefore, I infer he was answering the question about whether or not he had spoken to Mr. Saulnier. That inference is further supported by Mr. Deveau stating, at discoveries, that Mr.Saulnier did not do the work because Mr. Foster never contacted him and it was not Mr. Deveau ’ s responsibility to arrange a subcontractor for the chimney. [ 77 ] Mr. Deveau agreed that he did not ask Mr. Foster, nor the bricklayer, about the size of the brick that would be used. Looking back, he indicates it would have made sense to have a mason in; but, none had been lined up. Mr. Foster was going to get one himself. [ 78 ] Mr.

Foster testified as follows. [ 79 ] The shape of the fireplace was sketched in the plans he sent Mr. Deveau. Mr. Deveau would have been privy to those plans perhaps in November, December or January. They sat down together and reviewed the plans. He did not remember when, nor where. Mr. Deveau told him, in January or February of 2004, that he had retained Lester Saulnier to do the masonry work. Mr. Foster asked Mr. Deveau three or four times where Mr. Saulnier was. Mr. Deveau did not respond. Mr. Foster called Mr. Saulnier, who advised him that he had only heard about the job once and had never promised to do it.

When the chimney was constructed . There was not enough of an opening to accommodate the additional flue required for the fireplace. Therefore, the house does not have a fireplace. Mr. Foster is of the view that that would not have been the case had Mr. Deveau secured Mr. Saulnier in advance, and consulted with him prior to cutting the chimney openings. He ultimately hired Mark Thibault to build the chimney. [ 80 ] The building inspector was scheduled to attend at the house to inspect the chimney. He believes it was scheduled for August 24. It was a couple of weeks after Mr.

Deveau gave him the bill for $17,032, on August 3 or 4. Mr. Foster asked Mr. Deveau if he had completed the repairs around the chimney. Mr. Deveau ’ s response was that Mr. Foster had better get started because it would take him all day. He ultimately hired Louis Comeau, who repaired the chimney opening before the final inspection in October of 2004. [ 81 ] Mr. Foster was easy to get a hold of. He “ imagined ” that he had heard from Mr. Deveau at some point; but, he did not recall that occurring. [ 82 ] The two photos at the bottom of Exhibit 13 show the chimney framing problem. Mr.

Foster also suggests that they show sloppiness. However, he did not specify what, in particular, was sloppy. In addition, that part was only at the roughed-in stage. It was not at the finished stage.

[ 83 ] On cross-examination he acknowledged that: Mr. Thibault had warned him that it would be tight; and, he chose to put the chimney in the existing hole knowing it would likely be a building code violation. He denied that Mr. Deveau had told him the opening was too small for a fireplace. [ 84 ] He agreed that it was only a 3 hour job to rectify the clearance issue for the chimney that was installed. However, he felt it would be very expensive to rectify the deficiency to have a chimney that would accommodate a fireplace because a second opening and the trusses would also be wrong.

He did not particularize the alleged deficiency in the trusses. He did not even say he measured the trusses to confirm they would have been off. In my view, he was only guessing at that. Further, he did not have the information required to say how much it would have cost to change the construction to fit a chimney that would accommodate a fireplace. [ 85 ] He only agreed that it was, in part, his choice to not install a fireplace in the end. He blamed the lack of a fireplace on Mr. Deveau not having lined up a mason and on the additional cost of fixing the chimney opening deficiencies.

However, he secured a mason himself and he could not say how much it would cost to fix those deficiencies to install a chimney with fireplace. [ 86 ] I find that Mr. Deveau had an obligation to ensure the chimney opening was large enough for a chimney that would accommodate the woodstove and fireplace noted in the plans. It was not enough for him to simply measure the opening shown on the rough drawing and apply the scale noted on the plans to arrive at the measurement for the opening. He had an obligation to obtain the information needed to determine the proper size for the opening.

His failure to do so was a breach of contract. [ 87 ] I find, however, that: Mr. Deveau did advise Mr. Foster, on multiple occasions, that the opening was too small for a chimney that would accommodate a fireplace; Mr. Foster replied that they would take care of it when they got to it; and, when Mr. Foster asked Mr. Deveau if he had completed the repairs around the chimney, Mr. Deveau responded that he had not and that Mr, Foster better get to it because it would take him all day. [ 88 ] I infer that: Mr. Deveau understood Mr. Foster ’ s comment that they would take care of it when they got to it to mean that Mr.

Foster would look after it; and, Mr. Foster understood that Mr. Deveau would make the required alterations. I find there was a general lack of clear communication between the parties which resulted in that misunderstanding. [ 89 ] I find that Mr. Deveau did not expressly agree to secure a mason, nor advise Mr. Foster that he had secured one. Had Mr. Deveau been totally responsible for hiring all subcontractors required to bring the construction to the roof-tight stage, there may have been an implied term that he would arrange the mason to construct the chimney. However, Mr.

Foster acknowledged he himself arranged for some of the subcontractors and building materials. [ 90 ] I accept that an undersized chimney opening is a common occurrence and that it was only a three hour job to fix the problem. [ 91 ] I find that Mr. Foster, having been made aware the opening was too small, chose to have a chimney constructed, with oversized bricks, which would not accommodate a fireplace. He could have insisted that Mr. Deveau readjust all chimney openings and trusses required for a chimney that would accommodate both a wood stove and a fireplace. He did not do so. Instead he had Mr.

Thibault install the chimney as it is, and, hired Louis Comeau to fix the one opening that did not meet code with the chimney he chose to have installed. In so doing, he accepted the deficiency as it was, with the exception of the opening fixed by Louis Comeau. (

b) Sliding Door/Main Entrance [ 92 ] “ [I]n a building contract there is, in the absence of any express provision, an implied term that the owner ... will do everything reasonable to enable the contractor to complete the work, such as making available ... any required plans within a reasonable time. ” [ “ Goldsmith ” , at page 1 – 43]

[ 93 ] Mr. Deveau testified that a sliding patio door, which Mr. Foster had bought, was delivered at a time when Mr. Foster was not present. The plans did not show where the patio door should be installed. Therefore, Mr. Deveau simply installed it on the south elevation where the plans had indicated that a three-foot door should be installed. When Mr. Foster noted the location where the sliding patio door had been installed, he asked that it be moved to a location on the western elevation. Mr. Deveau did that. It took him and his crew approximately 3 hours to change the location of that door. Mr.

Foster decided he did not like the location where the door had been installed on the western elevation. He asked that it be moved to the other corner of the western elevation. Mr. Deveau moved it again. He said it took approximately 3 hours for him and his crew to move it this second time. However, on cross-examination, Mr. Deveau indicated he took a maximum of two hours to remove and re-frame the door. [ 94 ] Page 1 of the plans in Exhibit 1 shows a single door in the center of the south elevation. That is where Mr. Deveau had initially framed for the sliding patio door.

That had to be re-framed to fit the smaller single door. [ 95 ] Mr. Deveau agreed that it would have saved time and money if he had spoken to Mr. Foster before installing the door. [ 96 ] Mr. Foster indicated he first saw the construction on May 21 or 23, 2004. That is when he noticed that the sliding glass door had been framed on the south side, which was not where he wanted it. However, he acknowledged that the location for the sliding door was not on plans he prepared that was entered as Exhibit 1. That plan called for two separate patio doors, approximately three feet in width; not a slider.

He changed his mind and decided to install a slider instead. He could not recall when he communicated that change to Mr. Deveau. He indicated the location for the sliding patio door was noted on revised drawings that he said he prepared and made available on the construction site, but did not produce at trial. He first testified that he believed Mr. Deveau was shown those revised drawings. He “ imagined ” that he showed them to him. He said it must have been at the end of May or the 1 st of June. It was pointed out that would have been after the slider was already installed.

He then indicated he believed he told Mr. Deveau, prior to his arrival, that the slider was going in. He did not say he told Mr. Deveau where to put the slider. He reluctantly admitted he may not have sent the plan. [ 97 ] Mr. Foster had testified that Mr. Deveau was privy to everything. [ 98 ] Mr. Foster indicated the drawings entered as Exhibit 1 were working drawings provided to Mr. Deveau so that he would understand what Mr. Foster wanted to build. He didn ’ t expect that Mr. Deveau would build a house exactly as shown on the drawing. [ 99 ] Mr. Foster indicated that he told Mr.

Deveau, on May 23 rd , where the patio door was to go. However, in his view, Mr. Deveau failed for a second time to put it in the correct location, and had to change it again. Mr. Foster indicated that there was a carrying stick from the second floor on the header. [ 100 ] I find that, prior to Mr. Deveau installing the sliding patio door the first time, Mr. Foster had not provided him any revised plan showing the location of the patio door and had not told him where to put it. I accept that Mr. Foster was not around. Rather than hold up construction until he could speak with Mr. Foster, Mr.

Deveau installed the sliding patio door on the south elevation, at the same location shown on the plan for a smaller swing-open patio door. In my view that was a reasonable location for the slider. The reasonableness of Mr. Deveau ’ s approach is further supported by Mr. Foster ’ s view that he did not expect the construction to reflect exactly what was shown on the plans. There was an expectation of some flexibility in the construction. [ 101 ] In my view, it has not been shown that Mr. Deveau committed any breach by installing the sliding patio door in the locations that he did.

The wasted work was the result of Mr. Foster changing his mind and, first, not informing Mr. Deveau, then when not happy with the placement of the door, either not clearly informing him where he wanted it, or again changing his mind. (

c) Windows

[ 102 ] In Mr. Deveau ’ s view, there was no issue in relation to the installation of the windows. As far as he knew, they were “ perfect ” . He put them in according to the plans, by measuring from each corner of the house. However, he acknowledged that Mr. Foster changed the windows around himself. [ 103 ] Mr. Foster indicated some of the windows were not installed in the proper locations. However, provided no particulars of how the windows were not in conformity with the plans or the contract. [ 104 ] I find that he has not established any defect or breach of contract in relation to the windows. I accept Mr.

Deveau ’ s evidence that the windows were installed where specified in the plans he was provided. (d) 2 x 4 Instead of 2 x 6 Wall Construction [ 105 ] The plans did not indicate the materials to be used. In particular, it did not specify whether the framing should be with 2 X 4's or 2 X 6's. Mr. Deveau indicated that, therefore, he prepared a material list which was in accordance with the building code in effect at the time. He framed the outside walls using 2 X 4's, as he usually did. [ 106 ] Mr. Foster was still in the United States at the time.

After the framing was completed, he arrived at the house and noticed that it was with 2 X 4's. He informed Mr. Deveau that he had ordered windows for 2 X 6 framing. Mr. Deveau suggested ripping 2 x 4's and nailing them to the existing framing to create 2 X 6 framing. Mr. Deveau indicated that: Mr.

Foster initially agreed with that approach; but, later indicated he wanted to convert to R2000 construction, which required the installation of a second wall with 2 X 4's placed horizontally instead of vertically, thus requiring no change to the existing framing. [ 107 ] The application for a building permit indicates the exterior studs will be 2 X 6's. It was entered into evidence as Exhibit 7. It is dated December 3, 2003, and signed by Omer E. Deveau. The building inspector, Arnold Comeau, testified that: the information on the building permit was in his handwriting; but, the information came from Mr. Deveau.

Having been shown the building permit, Mr. Deveau agreed that he knew, in December of 2003, that the exterior framing was to be constructed using 2 X 6 ’ s. [ 108 ] Then he went on to reiterate that the plans did not specify what the exterior walls were to be framed with and that he did not know why that was on the building permit. He said there were never 2 X 6's delivered, there were 2 X 4's delivered.

Page 22 of the transcript of his discovery shows that he had stated that: 2 X 6's were delivered, but were returned because of their poor condition; and, were replaced with the 2 X 4's they built the exterior walls with, which must have been his mistake. Having been shown that portion of his discovery, at Mr. Deveau testified that he must have been confused. He usually frames with 2 X 4's.

So he has no idea why would indicate, on the building permit, that the exterior walls were to be constructed with 2 X 6's. [ 109 ] He acknowledged that he did not have a discussion with Foster about using 2 X 4's on the exterior walls, he just automatically used them. [ 110 ] Mr. Deveau agreed 2 X 6's were stronger than 2 X 4's. [ 111 ] Mr. Foster testified that he made it very clear to Mr. Deveau that he wanted the exterior walls framed in 2 x 6's. [ 112 ] He also testified that he decided to “ accept ” the 2 x 4 construction because he did not want to spend additional money re-framing it.

He opted to go with the R2000 construction, which required the addition of: custom milled horizontal members of approximately two inches thickness; vapor barrier in the center; and, insulation on both sides of the vapor barrier, all of which was quite an expense. However, he did not quantify the expense. He simply stated that it took him and a helper a couple of months, working regularly. [ 113 ] As stated in Enfield Hardware Ltd. v. DeGier , 2002 NSSC 164 , at paragraph 9 :

“National Building Code violations may be evidence of a deficiency in the contract, which may in fact result in a breach of contract, but the reverse is not true. Compliance with the building code is not evidence of compliance with the contract. The contract rules the relations between the parties.” [ 114 ] “ Goldsmith ” , at page 5-12, states: “An owner who has accepted the work does not thereby necessarily lose his right to claim damages for defective work, unless the defects have been expressly approved, or unless approval of them can otherwise be inferred from the owner’s conduct.” [ 115 ] Mr.

Pink argues conversion to R2000 construction was done in mitigation of losses, not as a waiver of the requirement for 2 X 6 framing. [ 116 ] There was insufficient evidence to determine the difference in value between an R2000 home built on 2 x 4 framing and a home with 2 x 6 framing using standard insulation methods. In addition, there was insufficient evidence to determine the difference in the building costs associated with these two types of construction. [ 117 ] I accept that Mr. Deveau usually built with 2 X 4 framing and that it satisfied the building code at the time.

Therefore, it would not make sense that he would indicate on the building permit that the framing was to be with 2 X 6's unless Mr. Foster had asked for 2 X 6 framing. Consequently, I find that: Mr. Foster did specify he wanted 2 X 6 framing; and, between December 3, 2003, when Mr. Deveau submitted the application for a building permit, and April of 2004, or later, when he started framing, he forgot that Mr. Foster had requested 2 X 6 framing. [ 118 ] However, having discovered the ease of converting the construction to R2000, Mr.

Foster decided to do that instead of altering the structure to obtain the 2 X 6 construction he initially requested. In my view, it was another change of plans which reflected his flexible approach to the construction. [ 119 ] He could have insisted on 2 X 6 framing. He chose an alternate approach which, in my view, is at least equally as desirable because of its energy efficiency. Mr. Foster is now saying he settled for R2000 construction to avoid the additional cost of re-framing. I reject that. The additional cost would have been Mr. Deveau ’ s loss had Mr.

Foster insisted on what he requested. [ 120 ] I infer, from Mr. Foster ’ s change of choice to a more energy efficient construction system, after learning about the easy conversion to R2000, that he approved the 2 X 4 construction, even though it was not what he requested. Therefore, he cannot now claim a set-off for the framing defect. (

e) Non-completion [ 121 ] “ Goldsmith ” , at page 5-10, states: “The obligation of the contractor is to do all the work under the contract unless some circumstance has arisen which excuses him from performance. Failure to complete will not be a breach of contract where performance has become impossible as a result of some act by or on behalf of the owner, or if circumstances have arisen to frustrate the contract.” [ 122 ] For reasons which I will outline in

Section D. (

i) below, I have found that Mr. Foster ejected Mr. Deveau from the work site and did not allow him to return to work there. Therefore, his failure to complete all of the work agreed to is not a breach of contract.

(

f) Other Alleged Deficiencies [ 123 ] Mr. Foster testified that all of Mr. Deveau ’ s work was sub-standard. He gave the following examples. The cellar floor was wavy suggesting he had not rented a floor leveler. He had not poured a pad to support the weight of the chimney, claiming that the concrete basement floor was sitting on the ledge. Mr. Foster did not believe that claim. [ 124 ] Mr. Deveau indicated that his work was not substandard. [ 125 ] Expert evidence is “ critical ” to establishing that the builder ’ s work was sub-standard. [ Force Construction Ltd. v.

Campbell , 2008 NSSC 149 , at paragraph 12] [ 126 ] There were no photos of the wavy floor. Mr. Foster was still in possession of the house and could easily have taken such photos. There were no particulars provided as to the degree of alleged waviness. There was no evidence as to how level a cellar floor has to be to satisfy the industry standard. There was an invoice for finishing the basement floor. I find that Mr.

Foster has not established a deficiency in the cellar floor. [ 127 ] Similarly, there was no expert evidence to establish that a chimney pad was required, even if the cellar floor was not sitting on bedrock. Further, Mr. Foster ’ s belief that it was not sitting on bedrock is based only on his distrust of Mr. Deveau. It is not based on having observed the excavation prior to the pouring of the floor. Therefore, I cannot find that Mr.

Foster has established there was a deficiency in not having a chimney slab. [ 128 ] Even if he had established both deficiencies, there is insufficient evidence to determine what, if any, set-off he would be entitled to as a result of such deficiencies. (ii) Delay [ 129 ] “ If there is no completion date in the contract, there is an implied term that the work will be completed within a reasonable time and without undue delay, having regard to the particular circumstances of the case. ” [ “ Goldsmith ” , page 1 – 45] [ 130 ] “ Goldsmith ” , at pages 5-13 and 5-14, states: “An owner is entitled to have his work completed within the time specified in the contract, or within a reasonable time if no specific time is provided for.

A contractor who delays completion beyond such period is guilty of a breach of contract, and may be liable for substantial damages. A sufficient delay will enable the owner to terminate the contract. ...

If the delay is due to the fault of the contractor, an owner is under no obligation to grant any extension of time for completion; and if such delay amounts to repudiation of the contract, the owner may terminate the contract for inexcusable non-performance and have the work finished by others.” [ 131 ] I have already found it was not an express term of the contract that the construction would be completed in 6 to 8 weeks. [ 132 ] In addition, Mr. Foster testified that he revised the construction plans in the course of the construction. For instance, he added a sliding patio door and a porch roof.

Such changes would also, reasonably, lengthen construction time.

[ 133 ] Does the evidence establish that the time-frame in which the construction occurred was unreasonable? [ 134 ] Mr. Deveau agreed that: he had likely been working on the home from April to August; and, it would probably take four additional months, at the rate he had been going, to complete the construction. However, in his view, the house was “ tight ” .

Therefore, his comment that it would take four additional months to complete the construction, more likely than not, meant completing it to the point where it was fully finished, not to the roof tight point of construction. [ 135 ] I have looked at Exhibit 13, and considered the evidence of Mr. Foster and Mr. Deveau in relation to the changing of the location of the sliding patio door and what remained to be done to bring the house to roof-tight.

Based on these pieces of evidence, I find that all that remained to be done to make the house roof-tight was to finish shingling the western and eastern elevations, which were the two ends of the house. I find that the sliding patio door had already been installed. Therefore, I also find that the photos in Exhibit 13 showing the opening for the sliding patio door boarded over was taken before Mr. Deveau vacated the premises, not after. [ 136 ] In my view, the little there was left to do to bring the house to roof-tight ought to have taken less than a week.

Weather permitting, it, more likely than not, could have been completed by the end of August. [ 137 ] On cross-examination, Arnold Comeau testified that it did not surprise him to see that the house had only reached the level of construction he observed when he visited the site for inspection purposes. His first visit was August 4, 2004. [ 138 ] Mr. Foster felt Mr. Deveau intentionally prolonged work to increase costs and, thus, revenue. [ 139 ] Mr. Deveau did agree that it would cost more to construct the home over eight months than it would over two to two and a half months.

However, he reiterated that the time it takes to construct a building depends on the crew that you have. He did not add that a larger crew would complete the work more quickly, but would also incur labor costs more quickly.

However, in my view, that is a reasonable inference to draw. [ 140 ] There was insufficient evidence to determine whether, with a three person construction crew, in the circumstances of the construction in question, from some time in April, to the end of August, is within a reasonable time to complete the construction in question, and does not amount to undue delay. [ 141 ] The primary evidence available is the estimate provided by Mr. Deveau and Mr. Foster ’ s view, based on that estimate, that matters were proceeding too slowly. There is no evidence of what size crew Mr. Deveau based his estimate on.

There is insufficient evidence to assess the effect of weather and material availability on the actual construction time. [ 142 ] More importantly, there is no expert evidence of industry standard against which to gauge the reasonableness of the construction time. [ 143 ] Mr. Foster also testified that Mr. Deveau was working at the Clubhouse on the Cape St. Mary ’ s wharf at the same time as he was working on Mr. Foster ’ s home. He said he observed Mr. Deveau installing a floor there in July. He said that around July 4 or 5, Mr. Deveau disappeared from his job for a couple of weeks, and he would see Mr.

Deveau drive by his place to get to the Clubhouse. [ 144 ] He presented photos purportedly taken at the Clubhouse, during the period of time in which Mr. Deveau was working on his house, showing a black and red checkered jacket which he indicated was that of Mr. Deveau. They were marked Exhibits 5 and 6. [ 145 ] I infer Mr. Foster was suggesting that Mr. Deveau spreading his time over multiple jobs exacerbated the delay.

[ 146 ] Mr. Deveau denied working at the Clubhouse, and at any other jobs, while he was working on Mr. Foster ’ s job. He indicated he finished working at the Clubhouse the fall of 2003 or in the winter following it. It was while Mr. Foster had returned to the United States following their discussions about selling him land and building him a house ; but, before Mr. Foster provided the plans for the house. [ 147 ] Arnold Comeau also testified that he did not recall Mr. Deveau being involved in any other projects at the time. [ 148 ] Mr.

Foster did not testify that he took the photos for the purpose of documenting that Mr. Deveau was working at the Clubhouse while working on his house. If that had been the case, one would expect him to take a photo which included Mr. Deveau, not just a jacket that was similar to his. [ 149 ] Mr. Foster indicated it was at the Clubhouse, in the fall of 2003, that he first met Mr. Deveau. That was before he even bought the property on which he had the house built. [ 150 ] In my view, it makes more sense that Mr.

Deveau would have completed the Clubhouse project that he was working on in the fall of 2003, before the spring of 2004. He testified that that project involved remodeling a bar into a kitchen and making the facility wheelchair accessible. More likely than not, that is not a project which would have carried him past the winter of 2003 – 2004. [ 151 ] The photographs entered as Exhibits 5 and 6 show part of the construction being a partially completed wheelchair ramp, and the windows, doors and siding being unfinished. In my view, more likely than not, Mr. Foster was mistaken, and took those photographs when Mr.

Deveau was building the wheelchair ramp and remodeling the bar into a kitchen. [ 152 ] I find that Mr. Foster was either mistaken as to when he took the photos, or the jacket did not belong to Mr. Deveau. I also find he was mistaken as to when he observed Mr. Deveau installing the floor at the Clubhouse. I accept Mr. Deveau ’ s evidence that he did not work at the Clubhouse, nor at any other job site, while he was working on Mr. Foster ’ s house. [ 153 ] I find that Mr.

Foster has not established a delay constituting a breach of contract, nor one that is sufficient to permit him to repudiate or terminate the contract. D. WHAT, IF ANY, BREACHES OF CONTRACT DID MR. FOSTER COMMIT? (

i) Preventing Access to Work Site [ 154 ] “ Either expressly or by implication, an owner must not make it impossible or unduly difficult for a contractor to perform his work. He must make the site available to him, and must not interfere with his operations to an extent beyond that expressly permitted by the contract; nor must he delay the contractor in the performance of his work. ” [ “ Goldsmith ” , at pages 5-2 and 5-3] [ 155 ] “ An owner who wrongfully dismisses a contractor, i.e. purports to terminate the contract without being entitled to do so, is guilty of a breach of contract.

This situation usually arises where an owner wrongly believes that the contractor has committed some breach of contract which entitles the owner to terminate the contract, when in fact no such right has arisen. For example, if an owner purports to exercise his right to forfeit the contract without being entitled to do so, the contractor is entitled to damages for wrongful dismissal. [ “ Goldsmith ” , at page 5-8] [ 156 ] Mr.

Foster submits that, after the construction had dragged on for 5 months he recognized that he could not afford the extra costs associated with the construction delay and the errors he encountered along the way.

[ 157 ] I have already discussed the inconsistencies in Mr. Deveau ’ s evidence in relation to when he was ejected from the worksite and my conclusion that it would have been in late August. [ 158 ] Mr. Deveau testified that Mr. Foster told him “ to get the ‘ F ’ off the job ” . Then, the police arrived at Mr. Deveau ’ s home and told him he could not go back on the project. He informed the police that he still had his tools there. The police contacted Mr. Foster and accompanied Mr.

Deveau to the property, where he retrieved his tools from the worksite. [ 159 ] He also testified that he has not had any difficulties on past construction projects that he has been unable to discuss with the owner and remedy. He said he asked Mr. Foster twice what he had done wrong and offered to fix whatever it was. [ 160 ] Mr. Foster testified that he never told Mr. Deveau to “ F-off ” . He never swore at him. He treated him as a friend. He said it was Mr. Deveau who vacated the job, of his own volition, he thought around August 24. However, he also testified that, on August 23, when he asked Mr.

Deveau if he had corrected the problem with the chimney opening, Mr. Deveau made a wisecrack. I infer that wisecrack was that it would take Mr. Foster all day to fix it so he better get to it. At that point, Mr. Foster “ emotionally lost it ” . He told Mr. Deveau that he thought he had been working with a friend; but, had discovered that Mr. Deveau was simply trying to get as much money as he could, out of him. [ 161 ] In my view, in the circumstances described by Mr.

Foster, given his admission that he “ emotionally lost it ” , it does not appear reasonably probable that he would limit his comments to those he stated he made. In my view, more likely than not, in his state of emotional upset, he did tell Mr. Deveau to leave the worksite, and used foul language in doing so. [ 162 ] I also find that Mr. Foster contacted the police and advised them that Mr. Deveau and his crew were not permitted on the property. Following that the police did accompany Mr.

Deveau to the site to retrieve his tools. [ 163 ] The retrieval of the tools is something that would have been more significant to Mr. Deveau, than to Mr. Foster. I accept that Mr. Deveau accurately remembers that point. [ 164 ] I infer that Mr. Deveau ’ s wisecrack arose from his

interpretation of Mr. Foster ’ s earlier comment that they would deal with the chimney opening problem when they got to it. At that point Mr. Foster had Mr. Thibault working on the chimney. Viewing Mr. Deveau ’ s wisecrack in that light, and in spite of it, I accept that Mr. Deveau did ask Mr. Foster what was wrong and offered to fix whatever it was. [ 165 ] In my view, telling Mr. Deveau to vacate the job, and advising the police that he and his crew were no longer permitted on the property, amounted to dismissing Mr. Deveau and purporting to repudiate or terminate the contract. Mr.

Foster was no longer making the site available to Mr. Deveau, and his actions made it impossible for Mr. Deveau to continue the construction. In my view these circumstances constitute a breach of contract by Mr. Foster. (ii) Nonpayment [ 166 ] “ Goldsmith ” , at pages 3-1 to 3-3, states: “In the absence of some express provision to the contrary, a contractor who does not carry out that which he has undertaken to perform is not entitled to payment, and in addition, failure to perform is a breach of contract which may entitle the owner to sue for damages.

Accordingly, if the contract is an entire contract, a contractor is not entitled to payment unless he has performed all the work under the contract, and this is so whether the contract is one for lump sum or is a unit price contract, or whether some other method of payment, eg, cost plus, has been provided. As it is sometimes put, performance is a condition precedent to payment.

However, minor defects in completion will not prevent a contractor from establishing that he has in substance fulfilled the condition precedent, and what is generally known as ‘substantial completion’ is sufficient compliance with the obligation to complete. Accordingly, an owner will not be liable to resist payment because of some minor or inconsequential failure to complete, although he may have a counter-claim against the contractor for damages for non-completion, which will generally be the cost of completing the non-completed items or remedying any defects.

Where, however, a contractor has failed substantially to complete a contract, he will not be entitled to any payment, unless he can establish that under the specific terms of the contract he is entitled to be paid for such parts of the work as he has actually completed. The owner may, however, accept the work done, or waive further completion, in which case an implied promise to pay for the work actually done may arise if no specific payment is expressly agreed upon. Failure to complete implies that the contractor has not been excused from further completion either by

an act on the part of the owner rendering completion impossible, or by some outside act which has frustrated the contract. Although the mechanics of payment, whether under a lump sum, unit price or cost plus contract, may provide for periodic payments - eg, either progress payments based on quantities or payments based on percentage of completion - the general rule as to necessity of performance applies equally to all types of contracts.

Since the right of payment, however, depends on the terms of the contract, it may be possible to find in the contract an expressed and implied obligation to pay for work actually done, irrespective of total completion, particularly in the case of unit priced contracts. In the case of a lump sum contract, where completion is a condition precedent to the right to payment, no such terms will generally be implied, although there may be an expressed provision entitling the contractor to payment on completion of certain parts of the work.

Where a contractor, by reason of his failure to perform, has lost his right to payment under the contract, he may nevertheless be entitled to recover something for the work actually done by him and accepted by the owner under a fresh implied promise to pay on a quantum meruit basis.” [ 167 ] And at page 5-3: “A contractor is not, in the absence of some expressed provision in the contract, entitled to payment until substantial completion of the work. On completion, however, and on the proper fulfilment of any conditions precedent provided for in the contract, the owner must pay the agreed price.

In the case of defects in the work, he may have a right to set up a counterclaim for damages to remedy the defective work, but he cannot escape liability for payment of the price agreed upon. Whether the owner is entitled to setoff a counterclaim against his obligation to pay the contractor will depend on whether the two claims are inextricably entwined and it would be unfair to permit the contractor to be paid in the absence of a reduction to allow for the counterclaim.” [ 168 ] Mr. Deveau testified about the $27,960.12 amount shown on the first page of Exhibit 2.

That represented the total amount of the last bill submitted to Mr. Foster. When Mr. Deveau gave Mr. Foster the bill, Mr. Foster asked him if it included the trusses. Mr. Deveau responded that it did. Mr. Foster did not pay anything on that amount. In addition, on redirect examination, he indicated that there were no materials in the statements of account entered as Exhibit 2 that were not used in Mr. Foster ’ s house. [ 169 ] Mr.

Deveau initially indicated that all of the supplies noted in the invoices contained in Exhibit 3 were used on the Robert Foster job. [ 170 ] The invoices in Exhibit 3 represent amounts paid to the Meteghan Home Hardware, $10,293.97 of which were included in the statements of account contained in Exhibit 2. [ 171 ] Mr. Foster testified that, on August 3 or 4, Mr. Deveau presented him a bill for an amount, he believes to be $17,032. He thinks he had received a bill for around $14,000 only two weeks prior; and, little had happened. He no longer trusted Mr. Deveau .

Therefore, he wanted to see a breakdown of the bill, not just the totals for materials and labour. So he returned the bill to Mr. Deveau the following day. He agrees he never paid that invoice. [ 172 ] He indicated that Exhibit 14 shows cheques he made to Mr. Deveau totaling $40,592.75. He thinks there are other cheques he was unable to find proof of, and that he probably paid Mr. Deveau more; however, that is probably the bulk of what he paid. [ 173 ] He acknowledged he did not pay the invoice which included the cost of finishing the basement floor.

[ 174 ] It is clear that there are invoiced amounts which remain unpaid by Mr. Foster. [ 175 ] Mr. Deveau did not construct the house to completely “ roof-tight ” as agreed. However, I have already found that his failure to do so was the result of Mr. Foster ejecting him from the work site and preventing any further access to it, except for Mr. Deveau to retrieve his tools. [ 176 ] Further, the only thing remaining to be done was to finish installing cedar shingles on each end of the house.

Therefore, in my view, the job was substantially complete in any event. [ 177 ] The only remaining unaccepted deficiency which has been proven, and for which Mr. Deveau was responsible, was the chimney opening. That is only a three hour job for the three person crew. It is a common deficiency. In my view it is a minor defect. It entitles Mr. Foster to set-off the cost of repair; but, does not entitle him to repudiate or terminate the contract by dismissing Mr. Deveau. [ 178 ] In my view, even if the contract had been for a lump sum price, Mr.

Foster would be responsible for paying the full price, less a set-off for the cost of remedying the chimney opening and finishing the shingling. [ 179 ] In the case at hand, the contract was a cost plus contract, under which Mr. Foster could provide whatever labour and materials he wanted, and there have been periodic payments. In my view, in the circumstances, there is an implied obligation to pay for the work that was done, irrespective of the level of completion. [ 180 ] Therefore, Mr. Foster ’ s non-payment of properly charged amounts is a breach of contract. E. WAS THE CONTRACT REPUDIATED AND TERMINATED? (

i) Was Mr. Deveau Dismissed From or Did He Abandon the Work Site? [ 181 ] I have already found that Mr. Foster told Mr. Deveau to vacate the job, and advised the police that he and his crew were no longer permitted on the property, which amounted to dismissing Mr. Deveau from the work site and purporting to repudiate or terminate the contract. [ 182 ] Having accepted Mr. Deveau ’ s evidence that he asked what the deficiencies were and offered to fix them, I find that Mr.

Deveau did not abandon the job. (ii) Was the Dismissal or Abandonment Justified? [ 183 ] “ Goldsmith ” , at pages 1 – 52 and 1 – 53, states: “A breach of contract never terminates the contract as such. However, depending on the nature of the breach, it may either give the other party the right to rescind the contract, ie, to treat it as having been discharged; or the breach may merely give rise to an action for damages. If the breach is so serious and fundamental as to go to the root of the contract, the other party may elect to treat the contract as at an end.

If, however, the breach is not so fundamental, it will only entitle the other party to claim such damages as he has suffered as the result of the breach, but will not enable him to escape from his own obligations under the contract. In defining a fundamental breach Wilson J. cited with approval the formulation of Lord Diplock that a fundamental breach occurs ‘where the event resulting from the failure by one party to perform a primary obligation has the effect of depriving the other party of substantially the whole benefit which it was the intention of the parties that he should obtain from the contract’.”

[ 184 ] And at pages 6-4 to 6-5, states: “An owner is entitled to terminate a contract if it is clear that either before the commencement of the work, or during the course of it, the contractor is not in substance able or willing to perform the work. ... Mere bad or defective work will not, in general, entitle an owner to terminate a contract, but the contractor’s work may be so bad or so defective as to amount, in substance, to a failure or refusal to carry out the contract work, and thus amount to repudiation. ...

If an owner clearly repudiates a contract, the contractor may accept the repudiation and terminate the contract. He may then also sue for any damages which he has suffered as the result of the repudiation. ... As in the case of a contractor, the question whether anything done by an owner amounts to a repudiation of the contract, or merely to a breach giving rise to a claim for damages, is in every case a question that must be determined in the light of the terms of the contract.

Once a contractor has terminated a contract, the owner is excused from any further obligations thereunder; but he will be liable to pay for work performed by the contractor to the date of such termination on a quantum meruit basis.” [ 185 ] G.C. Cheshire et al., “ Law of Contract, Eight Edition ” (Butterworths, 1972) at page 563, states that: “[T]he right of a party to treat a contract as discharged arises only in two types of case. Firstly, where the party in default has repudiated the contract before performance is due or before it has been fully performed.

Secondly, where the party in default has committed what in modern judicial parlance is called a fundamental breach. A breach is of this nature if, having regard to the contract as a whole, the promise that has been violated is of major as distinct from minor importance .” [ 186 ] “ Cheshire ” , at page 564, states: “A repudiation is implicit where the reasonable inference from the defendant’s conduct is that he no longer intends to perform his side of the contract.” [ 187 ] Mr.

Foster submits that the circumstances surrounding the undersized chimney opening, framing with 2 X 4 instead of 2 X 6, and installing a door in the wrong location, show that Mr. Deveau ’ s work was substandard. [ 188 ] He further testified about alleged defects in the cellar concrete work, including a wavy floor and the failure to install a chimney pad. [ 189 ] In addition he indicated that the delay was making it too costly to continue with Mr. Deveau as his contractor. [ 190 ] I have already found that: Mr. Foster accepted the 2 X 4 framing; the door being installed in the wrong location resulted from Mr.

Foster ’ s non-communication or poor communication; and, Mr. Foster failed to establish the cellar concrete work was substandard and the delay was undue. [ 191 ] The only remaining deficiency is the undersized chimney opening. I have already found that is a minor defect. It is not a fundamental breach. It did not entitle Mr. Foster to repudiate, nor terminate the contract, and dismiss Mr. Foster.

[ 192 ] Mr. Deveau did err in framing with 2 X 4's. However, Arnold Comeau, the building inspector, saw no problems with his work, apart from the undersized chimney opening, and Mr. Foster accepted the 2 X 4 framing. In my view, it has not been established that Mr. Deveau ’ s work was so defective as to amount to a failure to carry out the work. [ 193 ] Therefore, the dismissal was not justified. (iii) Finding on Whether the Contract Was Repudiated and Terminated [ 194 ] In light of the foregoing, I find that Mr. Foster repudiated the contract without justification. However, Mr.

Deveau still asked what the defects were and indicated he would fix them. He did not accept the repudiation and terminate the contract. His failure to complete resulted from being barred from the work site. F. WHAT AMOUNT, IF ANY, DOES MR. FOSTER OWE MR. DEVEAU? (

i) Were the Invoiced Amounts Properly Charged? (a

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