That’s Totally Deficient
There are at least three certainties in every contractor’s life: death, taxes, and disputes around construction deficiencies.
Disagreements over whether work is, in fact, deficient, can be difficult to resolve. It is not uncommon for homeowners to have unrealistic expectations of perfect construction practices. At the same time, there is almost always some number of actual deficiencies in a construction project.
There is no surefire way of preventing these disputes. However, adopting clearly defined and pre-established standards or guidelines on the expected quality of workmanship can seriously mitigate against the complexities of future disputes. In turn, this can help contractors get paid faster and in full.
In the recent case of Sran v. Pond, 2022 BCCRT 432, the B.C. Civil Resolution Tribunal (the “CRT”) dealt with a dispute between a contractor (the “Contractor”) and a homeowner (the “Owner”) to determine whether a certain concrete pad installation was deficient.
In this case, the Owner retained the Contractor to construct a concrete slab on the Owner’s property. There was no written agreement documenting the terms of payment and standard of workmanship.
The Owner promptly paid the Contractor $600 in cash for the materials and later provided a cheque for the balance ($1,800) of the agreed upon price of $2,400. The Owner admitted that she intentionally cancelled the $1,800 cheque because she felt that the concrete pad was deficient.
The Contractor commenced a CRT complaint against the Owner for the unpaid invoices plus an additional amount for extra work.
The Owner counterclaimed against the Contractor, claiming that the concrete slab was deficient due to an uneven sloping of the slab that resulted in a “huge dip in the centre”. The Owner alleged that the cost to fix this deficiency is greater than the amount of $1,800 that is owed to the Contractor. Therefore, the Owner claimed she did not owe the Contractor any money.
The central issue in this dispute was whether the Contractor’s construction of the concrete slab was deficient.
The decision maker reiterated the law that when a party alleges that a contractor’s work is deficient, the onus is on that party to show that the work completed was below the agreed or a “reasonable standard” of quality. This typically involves retaining an “expert opinion” to provide evidence as to (i) what a reasonable standard of quality looks like; and (ii) an opinion on whether the work completed met or fell short of that reasonable standard. The exceptions to this requirement include if the deficiency is not technical in nature or where the work is obviously substandard.
In this case, the Owner did not present the decision maker with any expert evidence. The Owner presented photos showing a significant amount of water pooling in the middle of the concrete slab. However, the decision maker could not tell whether the water was pooling from a defective slope created by the Contractor’s workmanship.
The Owner also presented a witness statement from her tenant who swore that he witnessed the Contractor construct the slab and that he did not level it correctly. However, the decision maker found that the witness did not have expertise on concrete slab construction and therefore the evidence was of no value.
The decision maker ultimately found that there was no evidence of a defect with the concrete slab built by the Contractor. Further the decision maker found that whether the concrete slab was constructed properly was technical in nature and therefore, an expert report would have been required to prove that the concrete slab was constructed improperly.
Ultimately, the decision maker held that the Contractor was owed $1,800, plus pre-judgment interest and the Tribunal fees associated with the claim.
- Contractors wishing to protect themselves from disputes around construction deficiencies should adopt, in writing, clearly defined and pre-established standards or guidelines on the expected quality of workmanship. For residential construction, many contractors incorporate BC Housing’s Residential Construction Performance Guide into their agreements as this provides for a consistent standard for determining what will amount to a deficiency.
- If you find yourself in a situation where you are debating whether you will be required to correct a deficiency or where payment is being held back, it is best to get a legal opinion early in the process to help understand your rights and obligations.
This article was written by Matthew T. Potomak and Liam M. Robertson, who are lawyers that practice in construction law with the law firm of Kuhn LLP. This article is only intended as a guide and cannot cover every situation. It is important to get legal advice for specific situations. If you have any questions or comments about this case or other construction law matters, please contact us at 604-864-8877 (Abbotsford) or 604-684-8668 (Vancouver).