Maisonneuve et al. v. Burley,

• Jurisdiction: Saskatchewan
• Judge: Dawson, J.
• Neutral Citation: 2001 SKQB 407
• Citation: (2001), 211 Sask.R. 100 (QB),2001 SKQB 407,2001 FCA 407,[2002] 1 WWR 111,[2001] SJ No 520 (QL),108 ACWS (3d) 280,13 CLR (3d) 186,211 Sask R 100,211 SaskR 100,[2001] S.J. No 520 (QL),(2001), 211 SaskR 100 (QB),211 Sask.R. 100
• Date: 05 September 2001
• Court: Court of Queen's Bench of Saskatchewan (Canada)

Maisonneuve v. Burley (2001), 211 Sask.R. 100 (QB)

MLB headnote and full text

Temp. Cite: [2001] Sask.R. TBEd. SE.019

Mona Maisonneuve and Jill Fogel (plaintiffs) v. Dennis Burley (defendant)

(1999 Q.B.G. No. 3079; 2001 SKQB 407)

Indexed As: Maisonneuve et al. v. Burley

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Dawson, J.

September 5, 2001.

Summary:

Cottage owners contracted with Burley to stop a hill from eroding. Burley constructed retaining walls. One of the walls began to bulge. The owners sued Burley for damages for breach of contract and negligent construction.

The Saskatchewan Court of Queen's Bench allowed the action in contract and negligence and assessed damages accordingly.

Building Contracts - Topic 579

The contract - Implied terms - Warranty of quality of materials and workmanship - Cottage owners contracted with Burley to stop a hill from eroding - The owners knew that Burley's business involved labour and odd jobs - Burley recommended retaining walls and misled the owners into believing that he had experience in constructing retaining walls - Burley constructed the walls - One wall began to bulge - An engineer testified that the wall was under-designed, movement would continue to occur and the wall might eventually collapse - The Saskatchewan Court of Queen's Bench held that the contract implied that Burley would build the wall in accordance with the standard of a general labourer/contractor - The workmanship was not of reasonable workmanlike quality - The wall was defective in construction and not fit for the purpose of protecting the property - Burley breached implied warranty of fitness for purpose - See paragraphs 26 to 30.

Building Contracts - Topic 3347

Liability of builder - Negligence - Lack of skilful performance of contract - Cottage owners contracted with Burley to stop a hill from eroding - Burley's business involved labour and odd jobs - Burley recommended retaining walls and misled the owners into believing that he had experience in constructing retaining walls - In constructing the walls, Burley often delegated the building and design to workers with less experience than himself - Burley failed to use long enough railway ties and used no tie backs in portions of the wall - Undersized spikes were used - The method used to tie the railway ties was not rigid enough - The back fill was not compacted - One wall began to bulge - An engineer testified movement would continue to occur and the wall might eventually collapse - The Saskatchewan Court of Queen's Bench held that Burley had constructed the wall in a negligent manner and did not meet the minimum level of performance of a general labourer - See paragraphs 31 to 37.

Building Contracts - Topic 3424

Liability of builder - Defective workmanship or design - Negligence - [See Building Contracts - Topic 3347 ].

Building Contracts - Topic 3568

Liability of builder - Damages - Measure of - Reinstatement costs of defective work - Burley, whose business involved labour and odd jobs, constructed a retaining wall in a negligent manner and in breach of his contract - The owners, who had purchased the property in 1997 for $30,000, admitted quotes of $68,000 and $73,459 for removing and rebuilding the wall in accordance with an engineer's specifications - The engineer's drawings and supervision would cost an additional $5,000 - The Saskatchewan Court of Queen's Bench awarded the owners $23,500 for the cost of replacing the wall - The owners knew that Burley was not a professional contractor and were not entitled to the cost of having the wall built by a professional contractor in conformity with the specification and under the constant supervision of an engineer - Even if the amount claimed was the cost of performance (i.e. the cost of bringing the wall up to the standard originally intended), it was not reasonable, exceeded the property's value and was wholly disproportionate relative to the value of what might be achieved - See paragraphs 38 to 45.

Contracts - Topic 9644

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

Contracts - Topic 9646

Contracts for work, materials and services - Implied terms - Implied warranty as to fitness of purpose - [See Building Contracts - Topic 579 ].

Damages - Topic 4343

Torts affecting land and buildings - Cost of reinstatement - Where applicable - [See Building Contracts - Topic 3568 ].

Damages - Topic 6512

Contracts - Building contracts - Breach by engineer or builder - Restoration costs - [See Building Contracts - Topic 3568 ].

Damages - Topic 6516

Contracts - Building contracts - Breach by engineer or builder - Measure of damages -[See Building Contracts - Topic 3568 ].

Torts - Topic 37

Negligence - Standard of care - Particular persons and relationships - Contractors - [See Building Contracts - Topic 3347 ].

Cases Noticed:

Mack v. Stuike (1963), 43 D.L.R.(2d) 763 (Sask. Q.B.), refd to. [para. 26].

SEDCO et al. v. Kelly (William) Holdings Ltd. et al., [1990] 4 W.W.R. 134; 83 Sask.R. 33 (C.A.), refd to. [para. 31].

Hofstrand Farms Ltd. v. B.D.C. Ltd., [1986] 1 S.C.R. 228; 65 N.R. 261; 26 D.L.R.(4th) 1, refd to. [para. 32].

Anns v. London Borough Council of Merton, [1978] A.C. 728; [1977] 2 W.L.R. 1024; [1977] 2 All E.R. 492 (H.L.), refd to. [para. 32].

University of Regina v. Pettick et al. (1991), 90 Sask.R. 241 (C.A.), refd to. [para. 33].

Blyth v. Birmingham Waterworks Co. (1856), 11 Ex. 781; 156 E.R. 1047, refd to. [para. 35].

Kaufman v. Toronto Transit Commission, [1960] S.C.R. 251, refd to. [para. 36].

Hadley v. Baxendale (1854), 9 Exch. 341; 156 E.R. 145, refd to. [para. 38].

Ross v. Barry (1890-91), 19 S.C.R. 360, refd to. [para. 38].

Owners of Condominium Plan No. 782 1326 v. Jodoin Developments Ltd. (1984), 53 A.R. 155; 30 Alta. L.R.(2d) 388 (Q.B.), refd to. [para. 40].

Wood v. Grand Valley Railway Co. (1915), 51 S.C.R. 283, refd to. [para. 44].

Authors and Works Noticed:

Goldsmith, I., and Heintzman, T.G., Canadian Building Contracts (4th Ed. 1988) (1998 Looseleaf Update, Release 2), pp. 5-11, 5-12 [para. 27].

Halsbury's Laws of England (3rd Ed. 1955), vol. 3, para. 818 [para. 26].

Snyder, R.M., Damages for Breach of Contract (2nd Ed. 1989) (2000 Looseleaf Update Rel. 2), p. 2-5 [para. 39].

Counsel:

Ian D. McKay, Jr., for the plaintiffs;

J. Niel Halford, for the defendant.

This action was heard by Dawson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on September 5, 2001.