Joslyn & Olsen Contractors Ltd. v. Board of Education of East Smoky School Division No. 54, Bouey and Bouey, (1976) 2 A.R. 18 (CA)

• Judge: Sinclair, Lieberman and Prowse, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 12, 1976
• Citations: (1976), 2 A.R. 18 (CA)

Joslyn & Olsen v. East Smoky School Bd. (1976), 2 A.R. 18 (CA)

MLB headnote and full text

Joslyn & Olsen Contractors Ltd. v. Board of Trustees of the East Smoky School Division No. 54 and Bouey and Bouey (third parties)

Indexed As: Joslyn & Olsen Contractors Ltd. v. Board of Education of East Smoky School Division No. 54, Bouey and Bouey

Alberta Supreme Court

Appellate Division

Sinclair, Lieberman and Prowse, JJ.A.

October 12, 1976.

Summary:

This case arose out of the plaintiff contractor's claim for extras arising out of the construction of a building. The third party architects designed a school for the defendant school board, which was constructed in 1968-69. The original plans called for the school to be built at a certain elevation, but it was subsequently decided to build the school nine inches lower than the plans stipulated. Two years later the architects were hired to design an addition to the school, which was to be constructed on the same level as the existing one. However, in designing the addition the architects took the elevation from the original plans of the existing school and consequently the plans for the addition called for an elevation nine inches too high. After the building contract was tendered and let, the plaintiff contractor discovered the error, which required considerably more work in excavation and earth removal. Under the building contract the plaintiff could claim for such extras, but was obliged to carry out the work. However, the plaintiff delayed in carrying out the work until freezing weather arrived which further increased costs. The plaintiff brought an action against the defendant for compensation for the extra work. The defendant added the architects as third parties and claimed indemnity from the architects.

The Trial Division allowed the plaintiff's action and awarded the plaintiff $20,241.51 for the extra work. The Trial Division held that the third party architects were bound to indemnify the defendant. The architects appealed.

The Appellate Division allowed the appeal in part. The Appellate Division held that the contractor was entitled to compensation for the extra work caused by the architects' error. However, the Appellate Division held that the contractor was not entitled to the additional costs caused by freezing conditions, since it was responsible for the delay in carrying out the contract.

The Appellate Division held that the architects were negligent in their error.

However, the Appellate Division awarded the owner only nominal general damages of $100.00, because if the error had not been made, the additional work would have been included in the contract price and therefore did not increase the cost of construction.

Building Contracts - Topic 2628

Compensation to builder - Claim for extras - Circumstances reducing builder's claim - Delay - The plaintiff contractor discovered an error in the plans for a building, which increased the amount of work required by it - Under the building contract the contractor could claim for the extra amount, but was bound to carry out the work - The contractor delayed until freezing weather caused further increased work and cost - The Alberta Court of Appeal allowed the contractor to recover the amount extra which it would have cost, if it had proceeded without delay and avoided the increased cost from freezing conditions - See paragraphs 23 to 26.

Building Contracts - Topic 3429

Liability of builder - Defective workmanship or design - Duty of builder respecting owner's plans and design - The architect of a new addition to a school stipulated that the addition was to be on the same level as the old building, but in error the architect's plans stated that the old building was nine inches higher in elevation than it actually was - The contractor discovered the error, which resulted in additional work for it and a claim for the extra work - The Alberta Court of Appeal held that the contractor was not obliged to check the accuracy of the architect's plans with respect to elevation in bidding for a contract - See paragraphs 14 to 17.

Building Contracts - Topic 5502

Architects and engineers - Duties to owner respecting design - An architect's plans for a school stipulated that it was to be built at a certain level, but it was decided to build the school nine inches lower than the plans provided - Two years later the architect was hired to design an addition to the school, which was to be built at the same level - The architect took the level from the original plans and accordingly the plans for the addition called for an elevation nine inches too high - The error was discovered by the contractor after the contract was tendered and let - The Alberta Court of Appeal held that the architect was negligent in its error and liable for damages - See paragraphs 27 to 28.

Building Contracts - Topic 5557

Architects and engineers - Liability to owner - Damages - The architect of a new addition to a school stipulated that the addition was to be on the same level as the old building, but in error the architect's plans stated that the old building was nine inches higher in elevation than it actually was - The contractor discovered the error, which resulted in additional work for it and a claim for the extra work - If the error had not been made, the additional work would have been included in the contract price in any event - The Alberta Court of Appeal held that, since the error did not increase the cost of the construction, the owner was only entitled to nominal general damages of $100.00 for the negligence of the architect - See paragraphs 29 to 34.

Contracts - Topic 3525

Performance or breach - Breach - Whether breach caused damage - The architect of a new addition to a school stipulated that the addition was to be on the same level as the old building, but in error the architect's plans stated that the old building was nine inches higher in elevation than it actually was - The contractor discovered the error, which resulted in additional work for it and a claim for the extra work - The building contract required the contractor before tendering to visit the site, which the contractor did not do - The Alberta Court of Appeal stated that a visit to the site would not have revealed the error and that the breach of the duty to visit the site did not cause the damage and was not actionable - See paragraphs 18 to 19.

Cases Noticed:

Columbus Company Limited v. Clowes, [1903] K.B. 224, appld. [para. 33].

Authors and Works Noticed:

Hudson, Building and Engineering Contracts (10th Ed.), p. 145 [para. 31].

Counsel:

J.R. Patrick, for the respondent Joslyn & Olsen Contractors Ltd., A.H. Lefever, for the respondent Board and School Division;

T.A. Edwards, for the appellants.

This case was heard at Edmonton, Alberta, before SINCLAIR, LIEBERMAN and PROWSE, JJ.A., of the Alberta Supreme Court, Appellate Division.

On October 12, 1976, PROWSE, J.A., delivered the following judgment of the Appellate Division