Construction Deficiencies: Treading Lightly in the Face of Frustration in order to Preserve Your Legal Rights

By Dan Moseley & Bridget Shebib

Have you hired a contractor to perform work for you who is failing to do the job properly or in a way that meets the standards set out in your contract? If so, you might be inclined to fire that underperforming contractor, and ask them to leave the job site before they have the chance to fix the issues you have identified in their work. However, it is important that you be aware that by doing so, you yourself may be breaching the contract in such a way that could entitle the underperforming contractor to sue you, and you might be limiting the amount of money you may be entitled to collect from them in order to fix their poor work. Accordingly, it is important that you pause to ensure that you fully understand your legal rights and responsibilities before taking any action like this.

Many of our clients are surprised to learn that the law generally requires homeowners or project owners to give the underperforming contractors they’ve hired the opportunity to fix any problems that they have identified in the job the contractor is performing. The reason for this is because when you sue someone else for a wrong you believe they have committed against you, the law requires that you make efforts to mitigate or lessen the impact that the wrong has on you where possible. For example, if you want to sue someone for causing or contributing to your personal injury, the courts will expect that you work to mitigate the losses you suffer because of that injury by following doctors’ orders. If you fail to, the court will likely refuse to give you the full amount of damages you are seeking.

The same is true in the construction and building context. In the eyes of the law, because the underperforming contractor is not generally permitted to charge you for the time or money that they spend fixing work they should have done correctly in the first place, the most effective way to mitigate your losses in the context of an issue like this is to give the underperforming contractor the opportunity to fix the issues. If you hired someone else to fix the work, they would almost certainly charge you for parts and labour, and therefore, you will have exacerbated your losses.

Further, while you may be unhappy with the contractor you’ve hired and their work, you should proceed with caution before you ask them to leave the job site. Unless the contractor has done such a poor job that the issues you are seeing amount to what is called a “fundamental breach” of the contract, you are not generally permitted to kick them off the site. To do so could amount to a fundamental breach of contract by you, and subject you to a lawsuit initiated by that contractor.

While navigating and understanding your legal rights and responsibilities as a homeowner or project owner can feel overwhelming, the Dispute Resolution And Commercial Litigation Department at McQuarrie is here to help.

Please feel free to contact us with any questions or concerns you may have related to your construction project or renovation.