Losing Your Right to Recover: The Risks of Firing a Contractor for Deficient Work

By Jeremy Burgess
Categories: Blog, Construction, Litigation

In the case of Jozsa v. Charlwood-Sebazco, 2016 BCSC 78 (CanLII) the Plaintiff, Mr. Jozsa, was a very experienced landscape designer hired by Ms. Sebazco to complete landscaping at her home.

Mr. Jozsa claimed a builders’ lien against Ms. Sebazco’s property on the basis that he had completed work at Ms. Sebazco’s home and some $86,360.00 was owed for work he had already completed and taxes not paid on previous invoices.

Ms. Sebazco counterclaimed alleging 47 deficiencies, failures to perform certain parts of the contract between the parties and negligent construction. The failures and her interactions with Mr. Jozsa were alleged to cause Ms. Sebazco mental distress. Ms. Sebazco also made various allegations for missing items and improper repairs.

For his part, Mr. Jozsa alleged that he agreed to repair a number of the so-described deficiencies, but that Ms. Sebazco refused to allow him on the property to address the deficiencies. The work that Mr. Jozsa didn’t complete was eventually completed by third parties for about $84,400.00.

There were a number of unusual contracts entered into by the parties, the meaning of which was in dispute. The Court resolved each of these contracts in favour of Mr. Jozsa and found that Ms. Sebazco had paid all the amounts owing under these contracts but the $86,360.00 claimed by Mr. Josza.

Ms. Sebazco was unable to consistently articulate what deficiencies she was alleging existed and attempted to raise new allegations of deficiencies at trial. Her primary witness was misinformed about the scope of work undertaken by Mr. Josza and it became clear to the Court that Ms. Sebazco was attempting to lay blame on Mr. Josza for work he never undertook to complete and essentially was seeking to recover for a different renovation than Mr. Josza was hired for.

The common law imputes an implied condition into all construction contracts that the owner will not prevent a contractor from accessing the worksite. Where an owner denies a contractor access to the worksite, he or she is repudiating the contract, thereby releasing the contractor from any obligations under the contract which would include completing work and repairing deficiencies.

In other words, by depriving Mr. Jozsa the opportunity to remedy his work, Ms. Sebazco was depriving herself of the right to seek damages for the defective work. Generally, if an owner is dissatisfied with a contractor’s work, the appropriate course of conduct is to document the deficiencies, make a demand for the contractor to address the deficiencies and allow the contractor reasonable and necessary access to make the repairs. Likewise, a contractor should proceed with construction in a good and workmanlike fashion, properly document their construction and properly document and address any allegations of deficiencies by an owner.

Although not discussed in Jozsa v. Charlwood-Sebazco, a contractor’s work may be so negligent or the relationship between the contractor and owner may be so spoiled that an owner may be relieved from their obligation to allow the contractor to return to the worksite to complete their repairs as it would be unreasonable to impose any obligation on the owner to allow the contractor to continue its work.

With only some minor exceptions, the Court found that the deficiencies alleged would have been completed by Mr. Jozsa had his contract not been prematurely terminated by Ms. Sebazco refusing to allow him entry to the worksite. As a result, the Court accepted virtually all of Mr. Josza’s claims and rejected virtually all of Ms. Sebazco’s claims. Ms. Sebazco was ordered to pay $81,488.00 plus costs.

It is notable that the Court held that a contract-breaker is generally not liable for any distress, frustration, anxiety or aggravation which the breach may cause to the innocent party and that the law does not award damages for frustration and anger as often arise in the context of contractual disputes.

Jozsa v. Charlwood-Sebazco is illustrative of the important of properly documenting the contractual relationship between an owner and a contractor. It reaffirms some of the complicated common law concerning when a contractor and owner may get into disputes about whether work is deficient and demonstrates that certain steps taken without proper legal advice or consideration, may deny a party’s ability to recover for or defend their claims later on.

Jeremy Burgess is a litigation associate at Pushor Mitchell with experience in construction disputes and is able to assist you in your litigation matters. If you have any questions about any construction disputes whether as potential plaintiff or defendant, we’d be happy to assist you. Feel free to contact Jeremy in a confidential manner toll free at 1-800-558-1155 or at burgess@pushormitchell.com. You may also contact our construction law group.

The foregoing is for informational purposes only and is not legal advice, nor should be construed as such.