Baltic Properties and Developments Inc. v. Rajbar et al., 2014 SKPC 173

• Judge: Demong, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: October 03, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKPC 173;(2014), 444 Sask.R. 106 (PC)

Baltic Prop. v. Rajbar (2014), 444 Sask.R. 106 (PC)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. OC.026

Baltic Properties and Developments Incorporated v. Maria Rajbar and Alec Kasinski

(139/12; 2014 SKPC 173)

Indexed As: Baltic Properties and Developments Inc. v. Rajbar et al.

Saskatchewan Provincial Court

Civil Division

Demong, P.C.J.

October 3, 2014.

Summary:

The plaintiff sued the defendants for monies which the plaintiff claimed were owing on a building contract for the installation of a foundation for the defendants' home. The plaintiff asserted that the contract was for the installation of the foundation and building a garage only and that the contract was unilaterally cancelled by the defendants. The defendants counterclaimed, alleging deficiencies and that the plaintiff had agreed to be a general contractor for the home construction, but had failed to act as such.

The Saskatchewan Provincial Court allowed the claim and the counterclaim. No money was due or owing to any of the parties.

Editor's Note: For a related decision, see (2014), 444 Sask.R. 96.

Building Contracts - Topic 579

The contract - Implied terms - Warranty of quality of materials and workmanship - The plaintiff sued the defendants for monies which the plaintiff claimed were owing on a building contract for the installation of a foundation for the defendants' home - The defendants counterclaimed, alleging deficiencies - The Saskatchewan Provincial Court allowed the counterclaim - The plaintiff had supplied a foundation that was structurally sound and was, therefore, prima facie entitled to the monies owing - However, in failing to place the foundation such that the windows were six to eight inches above street level, the plaintiff had breached an essential term of the agreement - Although this term was not written into the agreement, the plaintiff clearly knew its importance as an essential aspect of the contract - The plaintiff was obliged to provide its goods and services in a good and workmanlike manner - This was a long established implied term of any contract to perform work or provide services - Work that did not meet the requirements of the contract's specifications was not of reasonable quality and constituted a breach of that contract - The defendants were entitled to damages that were reasonably necessary to correct the deficiency - See paragraphs 83 to 100.

Building Contracts - Topic 585

The contract - Implied terms - Warranty of fitness of work and materials - Houses and apartments - [See Building Contracts - Topic 579 ].

Building Contracts - Topic 686

The contract - Oral terms - Oral terms collateral to written agreement - [See Building Contracts - Topic 579 ].

Building Contracts - Topic 3422

Liability of builder - Defective workmanship or design - Defective construction - [See Building Contracts - Topic 579 ].

Building Contracts - Topic 3442

Liability of builder - Defective workmanship or design - Damages - [See Building Contracts - Topic 579 ].

Building Contracts - Topic 3568

Liability of builder - Damages - Measure of - Reinstatement costs of defective work - [See Building Contracts - Topic 579 ].

Consumer Law - Topic 1745

Sale of goods and services - Deceptive acts - Misleading conduct or representations - The plaintiff sued the defendants for monies which the plaintiff claimed were owing on a building contract for the installation of a foundation for the defendants' home - The defendants counterclaimed - The Saskatchewan Provincial Court rejected the defendants' assertion that, as a supplier of goods and services, the plaintiff had committed an unfair practice as that term was defined in the Consumer Protection Act by misleading or deceiving the defendants as to what was contemplated under the contract - The defendants had failed to identify a particular act of deception - The only allegation set forth in the counterclaim was that the defendants had clearly stipulated for a basement and that the plaintiff's assertion that a foundation did not include a floor amounted to unreasonably misleading or deceiving a customer - However, the contract made no reference to a "basement", but only to a foundation - See paragraphs 79 to 82.

Contracts - Topic 1444

Formation of contract - Agreements which are not contracts - Agreements to agree - The plaintiff sued the defendants for monies which the plaintiff claimed were owing on a building contract for the installation of a foundation for the defendants' home - The plaintiff asserted that the contract was for the installation of the foundation only and that the contract was unilaterally cancelled by the defendants - The defendants counterclaimed, alleging deficiencies and that the plaintiff had agreed to be a general contractor for the home construction, but had failed to act as such - The Saskatchewan Provincial Court allowed the claim - The contract entered into between the parties and the only terms of that contract on which the parties were ad idem and for which consideration had flowed was for the installation of a foundation - At best, what the parties were left with was an understanding that, at some point, the plaintiff had promised to assist with other things for the defendants - This could best be described as an agreement to agree - See paragraphs 64 to 78.

Contracts - Topic 3523

Performance or breach - Breach - What constitutes a breach - [See Building Contracts - Topic 579 ].

Contracts - Topic 9644

Contracts for work, materials and services - Implied terms - To do work in workmanlike manner - [See Building Contracts - Topic 579 ].

Damages - Topic 6516

Contracts - Building contracts - Breach by engineer or builder - Measure of damages - [See Building Contracts - Topic 579 ].

Evidence - Topic 2401

Special modes of proof - Presumptions - Specific presumptions - Inference from failure to call or adduce available evidence - The plaintiff sued the defendants for monies which the plaintiff claimed were owing on a building contract for the installation of a foundation for the defendants' home - The defendants counterclaimed, alleging deficiencies - The Saskatchewan Provincial Court allowed the counterclaim - One of the central issues of the trial was whether or not the hole for the foundation was dug too deep - Yet, the plaintiff failed to call the one person who could have shed some light on the subject, the subcontractor who had dug the hole - The plaintiff's failure to call that person allowed the court to draw an unfavourable or adverse inference - See paragraph 90.

Cases Noticed:

Stonechild v. Westfair Foods Ltd. (2001), 212 Sask.R. 312; 2001 SKQB 466, refd to. [para. 90].

Banco de Portugal v. Waterlow & Sons, [1932] A.C. 452 (H.L.), refd to. [para. 97].

Authors and Works Noticed:

Paciocco, David and Struesser, Lee, The Law of Evidence (2nd Ed. 1999), p. 127 [para. 84].

Counsel:

Yens Pedersen, for the plaintiff/defendant by counter-claim;

Brian J. Smith, for the defendants/plaintiff by counter-claim.

This action and counterclaim were heard at Regina, Saskatchewan, by Demong, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on October 3, 2014.