Hugh's Contracting Ltd. v. Stevens et al., (2015) 381 B.C.A.C. 33 (CA)

• Judge: Newbury, Willcock and Savage, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 10, 2015
• Jurisdiction: British Columbia
• Citations: (2015), 381 B.C.A.C. 33 (CA);2015 BCCA 491

Hugh's Contracting Ltd. v. Stevens (2015), 381 B.C.A.C. 33 (CA);

    659 W.A.C. 33

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. DE.003

Hugh's Contracting Ltd. (appellant/respondent on cross appeal/plaintiff) v. Laurie Stevens (respondent/appellant on cross appeal/defendant) and Hugh Astrope (defendant by counterclaim) and Aviva Insurance Company of Canada (third party)

(CA42299; 2015 BCCA 491)

Indexed As: Hugh's Contracting Ltd. v. Stevens et al.

British Columbia Court of Appeal

Newbury, Willcock and Savage, JJ.A.

December 4, 2015.

Summary:

Stevens retained Hugh's Contracting Ltd. (HCL) to fix fire damage to her home. The contract described the scope of insured work and allowed for additions to the work on the execution of written change orders. Significant extra work was undertaken but, with one exception, the parties did not draft or sign change orders. A dispute arose over the cost of extras and work on the project came to a halt. HCL sued for payment of the unpaid work. Stevens counterclaimed for breach of contract and sought the additional costs incurred to complete the insured work that HCL had contracted to do.

The British Columbia Supreme Court, in a decision reported at [2014] B.C.T.C. Uned. 1904, found that HCL had repudiated the contract by making completion of the work conditional upon satisfaction of an unjustified demand for payment for extras and Stevens had accepted that repudiation. The court determined that the contract did not provide a means of assessing the value of the extra work done by HCL and calculated the value of that work on a contractual quantum meruit basis. HCL appealed, asserting that the amount due could and should be calculated by reference to the terms of the contract. Stevens cross-appealed, asserting that the court properly assessed HCL's claim on the basis of contractual quantum meruit, but erred in two other respects: (1) in relation to the claim, by considering some work that was within the scope of the fixed-price contract to have been extras; and (2) in relation to the counterclaim, by erroneously calculating the additional costs of completion.

The British Columbia Court of Appeal dismissed the appeal and allowed the cross-appeal. The trial judge erred by ordering Stevens to pay the costs of a fireplace that was included in the scope of the insured work; in failing to award Stevens the cost of flooring that she paid for and which was kept by HCL; and in deducting an insurance payment from Stevens' counterclaim. As the reasons for judgment did not provide a firm basis for the court to substitute its own assessment of the counterclaim, the court remitted the assessment to trial to be determined without any deductions for payments made by the insurer with respect to the cost of the insured work.

Building Contracts - Topic 577

The contract - Implied terms - Price - See paragraphs 25 to 36.

Building Contracts - Topic 2624

Payment - Compensation to builder - Extras - What constitutes an extra - See paragraphs 37 to 41.

Building Contracts - Topic 2626

Payment - Compensation to builder - Extras - Whether extra work was done pursuant to the terms of the original contract - See paragraphs 25 to 36.

Building Contracts - Topic 3573

Liability of builder - Damages - Measure of - Cost of completion where work abandoned - See paragraphs 42 to 49.

Building Contracts - Topic 4002

Quantum meruit claims - Circumstances where doctrine applied - See paragraphs 25 to 36.

Building Contracts - Topic 4063

Quantum meruit claims - Extras - What constitutes an extra - See paragraphs 37 to 41.

Contracts - Topic 2056

Terms - Implied terms - Compensation for work, materials or services - See paragraphs 25 to 36.

Damages - Topic 1745

Deductions for payments or assistance by third parties - Contractually - Insurance - General - See paragraphs 42 to 49.

Damages - Topic 6505

Contracts - Building contracts - Breach by engineer or builder - Failure to complete - See paragraphs 42 to 49.

Practice - Topic 8808

Appeals - General principles - Duty of appellate court respecting conclusions or interpretation of trial judge (incl. contractual interpretation) - See paragraph 38.

Restitution - Topic 784

Benefit acquired from the plaintiff - Recovery based on quantum meruit - Work performed or goods provided - See paragraphs 25 to 36.

Restitution - Topic 2505

Benefit acquired at defendant's request - Recovery based on quantum meruit - Work or services performed - General - See paragraphs 25 to 36.

Cases Noticed:

Smith (C.J.) Contracting Ltd. v. Kazem-Pour et al., [2014] B.C.T.C. Uned. 689; 2014 BCSC 689, refd to. [para. 26].

Infinity Steel Inc. v. B & C Steel Erectors Inc. et al. (2011), 304 B.C.A.C. 227; 513 W.A.C. 227; 2011 BCCA 215, refd to. [para. 26].

CH2M Hill Energy Canada Ltd. v. Consumers' Co-operative Refineries Ltd. (2010), 362 Sask.R. 104; 500 W.A.C. 104; 2010 SKCA 75, refd to. [para. 26].

Fairwood Construction Ltd. v. Lin, [1997] B.C.T.C. Uned. 666; 33 C.L.R.(2d) 111; 1997 CanLII 4292 (S.C.), refd to. [para. 26].

Barenco Inc. v. Ottawa Carleton Regional Transit Commission, [1999] O.T.C. Uned. 698, 48 C.L.R.(2d) 200 (Sup. Ct.), refd to. [para. 26].

Creston Moly Corp. v. Sattva Capital Corp., [2014] 2 S.C.R. 633; 461 N.R. 335; 2014 SCC 53, refd to. [para. 28].

Infinity Steel Inc. v. B & C Steel Erectors Inc. et al., [2009] B.C.T.C. Uned. 1053; 87 C.L.R.(3d) 149; 2009 BCSC 1053, varied (2011), 304 B.C.A.C. 227; 513 W.A.C. 227; 99 C.L.R.(3d) 6; 2011 BCCA 215, refd to. [para. 33].

Malik Estate v. State Petroleum Corp. et al. (2009), 278 B.C.A.C. 160; 471 W.A.C. 160; 2009 BCCA 505, refd to. [para. 33].

Way v. Latilla, [1937] 3 All E.R. 759 (H.L.), refd to. [para. 34].

Noh v. Plaza 88 Developments Ltd. et al., [2011] B.C.A.C. Uned. 140; 2011 BCCA 461, refd to. [para. 35].

Nance v. British Columbia Electric Railway Co., [1951] A.C. 601 (P.C.), refd to. [para. 35].

Kerr v. Baranow, [2011] 1 S.C.R. 269; 411 N.R. 200; 300 B.C.A.C. 1; 509 W.A.C. 1; 274 O.A.C. 1; 2011 SCC 10, refd to. [para. 35].

Counsel:

F.A. Schroeder, for the appellant;

J.A. Bird, for the respondent.

This appeal was heard at Vancouver, British Columbia, on November 10, 2015, by Newbury, Willcock and Savage, JJ.A., of the British Columbia Court of Appeal. Willcock, J.A., delivered the following reasons for judgment for the court on December 4, 2015.