Wildwood Cabinets Ltd. v. Stelor Holdings Ltd. et al., (2015) 436 N.B.R.(2d) 29 (TD)

• Judge: Walsh, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: April 17, 2015
• Jurisdiction: New Brunswick
• Citations: (2015), 436 N.B.R.(2d) 29 (TD);2015 NBQB 83

Wildwood Cabinets v. Stelor Holdings (2015), 436 N.B.R.(2d) 29 (TD);

    436 R.N.-B.(2e) 29; 1139 A.P.R. 29

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.B.R.(2d) TBEd. JN.018

Renvoi temp.: [2015] N.B.R.(2d) TBEd. JN.018

Wildwood Cabinets Ltd. (plaintiff) v. Stelor Holdings Ltd. and Hall's Landing Inc. (defendants)

(MC 0634-11; 2015 NBQB 83; 2015 NBBR 83)

Indexed As: Wildwood Cabinets Ltd. v. Stelor Holdings Ltd. et al.

Répertorié: Wildwood Cabinets Ltd. v. Stelor Holdings Ltd. et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Walsh, J.

April 17, 2015.

Summary:

Résumé:

The plaintiff Wildwood was under contract with the defendant Stelor to manufacture and install kitchen and bathroom cabinets in an apartment building being constructed by Stelor for the defendant Hall's. Asserting that Stelor had breached the contract by refusing to pay the balance owing ($57,183.84), Wildwood sued for that amount and also sought a declaration that it was entitled to a lien under the Mechanic's Lien Act on Hall's' property. Stelor and Hall's counterclaimed regarding certain alleged deficiencies and for damages of between $75,000 to $100,000.

The New Brunswick Court of Queen's Bench, Trial Division, allowed Wildwood's claim in the amount of $53,770.24 (the amount requested less a set off of $3,413.60 for deficiencies established by Stelor). Wildwood was entitled to pre- and post-judgment interest fixed at a rate of 7% per year. Wildwood's lien claim was vacated as having been filed out of time. Wildwood was awarded costs of $13,442.56. Hall's was awarded costs of $500 regarding the vacated lien claim.

Agency - Topic 1410

Authority of agent - Apparent authority - Holding out by corporation - What constitutes - The plaintiff Wildwood was under contract with the defendant Stelor to manufacture and install kitchen and bathroom cabinets in an apartment building being constructed by Stelor for the defendant Hall's - Asserting that Stelor had breached the contract by refusing to pay the balance owing ($57,183.84), Wildwood sued for that amount and also sought a declaration that it was entitled to a lien under the Mechanic's Lien Act on Hall's' property - A preliminary issue arose regarding the role of Lantz, a consultant in interior design hired by Stelor - The New Brunswick Court of Queen's Bench, Trial Division, held that Lantz had the ostensible authority to bind Stelor under the doctrine of apparent authority - Stelor held Lantz out as someone who had authority to speak for it - Wildwood's understanding that Lantz spoke for Stelor was reasonable - Throughout, Lantz had acted within the apparent scope of her authority - See paragraphs 12 to 14.

Building Contracts - Topic 686

The contract - Oral terms - Oral terms collateral to written agreement - The plaintiff Wildwood was under contract with the defendant Stelor to manufacture and install kitchen and bathroom cabinets in an apartment building being constructed by Stelor for the defendant Hall's - Asserting that Stelor had breached the contract by refusing to pay the balance owing ($57,183.84), Wildwood sued for that amount - Stelor and Hall's counterclaimed regarding certain alleged deficiencies - The New Brunswick Court of Queen's Bench, Trial Division, rejected Stelor's claim for $59,670 in damages for the cost to replace certain drawer hardware - The cabinet specifications had been verbally amended prior to the contract being awarded - Although there was no ambiguity on this aspect in the written contract, the court relied on recognized exceptions to the parol evidence rule to make the finding that the contract included the amended specification regarding the hardware, either on the basis of an oral collateral agreement or because it would otherwise constitute a material misrepresentation made by Stelor through its agent that Stelor should not be permitted to benefit from - See paragraphs 34 to 38.

Building Contracts - Topic 710

The contract - Plans and specifications - Reliance by builder on plans, etc., supplied by owner - [See Building Contracts - Topic 686 ].

Building Contracts - Topic 1743

Completion - Substantial completion - What constitutes - The plaintiff Wildwood was under contract with the defendant Stelor to manufacture and install kitchen and bathroom cabinets in an apartment building being constructed by Stelor for the defendant Hall's - Asserting that Stelor had breached the contract by refusing to pay the balance owing ($57,183.84), Wildwood sued for that amount - Stelor and Hall's counterclaimed regarding certain alleged deficiencies - The New Brunswick Court of Queen's Bench, Trial Division, allowed Wildwood's claim in part - Wildwood had substantially completed the contract and was within its rights to demand the balance of the contract price - Stelor had established deficiencies of only $3,413.60 on a contract worth $316,000 - The cabinetry and countertops had been installed when Wildwood demanded payment - Everything else was "but the minor adjustments, alterations and corrections that would reasonably be expected before the job could be literally finished" - See paragraphs 60 to 62.

Building Contracts - Topic 2703

Payment - Compensation to builder - Deductions - Set-off and charge backs - The plaintiff Wildwood was under contract with the defendant Stelor to manufacture and install kitchen and bathroom cabinets in an apartment building being constructed by Stelor for the defendant Hall's - Asserting that Stelor had breached the contract by refusing to pay the balance owing ($57,183.84), Wildwood sued for that amount - Stelor and Hall's counterclaimed regarding certain alleged deficiencies - The New Brunswick Court of Queen's Bench, Trial Division, rejected Stelor's claim for a credit back of $13,534 for the cost of crown moulding because it was not used in the project - There were two possible interpretations that arose on the contract's face - One, as Wildwood claimed, was that the cost of crown moulding was not isolated because it was not an included item - The other was Stelor's position that it was an included item that was not isolated - Without more, resort to the contra proferentem rule favoured Wildwood's interpretation - However, the surrounding circumstances also reinforced Wildwood's position - It was known to everyone that crown moulding could not be used in the project - See paragraphs 29 to 33.

Building Contracts - Topic 2703

Payment - Compensation to builder - Deductions - Set-off and charge backs - The plaintiff Wildwood was under contract with the defendant Stelor to manufacture and install kitchen and bathroom cabinets in an apartment building being constructed by Stelor for the defendant Hall's - Asserting that Stelor had breached the contract by refusing to pay the balance owing ($57,183.84), Wildwood sued for that amount - Stelor and Hall's counterclaimed regarding certain alleged deficiencies - The New Brunswick Court of Queen's Bench, Trial Division, rejected Stelor's claim for an unspecified credit arising from the change in certain specifications due to difficulties during installation - Stelor asserted that it should receive credit because less labour and material was required due to the change - Wildwood had not breached the contract and there was no discussion or collateral agreement regarding a credit - Nor were there any concerns about unfairness - See paragraphs 44 to 53.

Building Contracts - Topic 2703

Payment - Compensation to builder - Deductions - Set-off and charge backs - The plaintiff Wildwood was under contract with the defendant Stelor to manufacture and install kitchen and bathroom cabinets in an apartment building being constructed by Stelor for the defendant Hall's - Asserting that Stelor had breached the contract by refusing to pay the balance owing ($57,183.84), Wildwood sued for that amount - Stelor and Hall's counterclaimed regarding certain alleged deficiencies - The New Brunswick Court of Queen's Bench, Trial Division, reduced Stelor's total claim of $3,860 for "site clean-up" to $1,990 - Wildwood had not fully complied with the contract regarding clean-up - The costs claimed were $420 for labour, $1,060 for dumpster fees and $2,380 for the operation of a loader - The last item was not reasonable as it was based on 28 hours at $85 per hour - The court allowed six hours as a rough estimate of the time required - See paragraphs 54 to 59.

Contracts - Topic 7401

Interpretation - General principles - Intention of parties (incl. reasonable expectations) - The plaintiff Wildwood was under contract with the defendant Stelor to manufacture and install kitchen and bathroom cabinets in an apartment building being constructed by Stelor for the defendant Hall's - Asserting that Stelor had breached the contract by refusing to pay the balance owing ($57,183.84), Wildwood sued for that amount - At issue was the meaning of "job completion" as used in the contract - The New Brunswick Court of Queen's Bench, Trial Division, concluded that "there is nothing in the language of the contract, the subject matter of the contract (cabinetry), the result intended to be achieved (its manufacture, delivery and installation), in the 'surrounding circumstances', in their post contract conduct or in the law of contract that would lead to a finding that total performance of the contract was intended before payment of the contract price would be made; quite the opposite. For these reasons, the Court interprets the words 'to complete the project' and 'job completion as found in the written contract to mean 'substantial' completion." - Further, the court would have been entitled to apply the contra proferentem rule, which would have favoured this interpretation - See paragraphs 17 to 24.

Contracts - Topic 7409

Interpretation - General principles - Subsequent conduct of parties - [See Contracts - Topic 7401 ].

Contracts - Topic 7433

Interpretation - Ambiguity - Contra proferentem rule - [See first Building Contracts - Topic 2703 and Contracts - Topic 7401 ].

Contracts - Topic 7521

Interpretation - Surrounding circumstances - General - [See first Building Contracts - Topic 2703 and Contracts - Topic 7401 ].

Damages - Topic 6516

Contracts - Building contracts - Breach by engineer or builder - Measure of damages - [See third Building Contracts - Topic 2703 ].

Evidence - Topic 6202

Parol evidence rule - General principles - Exceptions - General - [See Building Contracts - Topic 686 ].

Interest - Topic 5004

Interest as damages (prejudgment interest) - General principles - Discretion of judge - The plaintiff Wildwood was under contract with the defendant Stelor to manufacture and install kitchen and bathroom cabinets in an apartment building being constructed by Stelor for the defendant Hall's - Asserting that Stelor had breached the contract by refusing to pay the balance owing ($57,183.84), Wildwood sued for that amount - The New Brunswick Court of Queen's Bench, Trial Division, having allowed Wildwood's claim in the amount of $53,770.24, held that it was entitled to prejudgment interest fixed at a rate of 7% per year - Post-judgment interest was fixed at 7% per year - While prejudgment interest was discretionary, there should be an evidentiary base to justify fixing a higher rate - Fixing prejudgment interest at 7% provided a measure of rationality in the exercise of discretion in attempting to fulfil the purpose behind s. 45(1) of the Judicature Act - See paragraphs 66 to 70.

Interest - Topic 5009

Interest as damages (prejudgment interest) - General principles - Prejudgment interest - Calculation of (incl. rate) - [See Interest - Topic 5004 ].

Mechanics' Liens - Topic 5019

Obtaining a lien - Registration or filing of claim for a lien - Time for filing - Completion or substantial completion - [See Mechanics' Liens - Topic 5055 ].

Mechanics' Liens - Topic 5055

Obtaining a lien - Vacating registered lien - Grounds for - The plaintiff Wildwood was under contract with the defendant Stelor to manufacture and install kitchen and bathroom cabinets in an apartment building being constructed by Stelor for the defendant Hall's - Asserting that Stelor had breached the contract by refusing to pay the balance owing ($57,183.84), Wildwood sued for that amount and also sought a declaration that it was entitled to a lien under the Mechanic's Lien Act on Hall's' property - The New Brunswick Court of Queen's Bench, Trial Division, held that Wildwood's lien claim was filed out of time - The contract was substantially completed in early December 2010 - The claim was not filed until March 27, 2011, well beyond the 60 days allowed under the Mechanics' Lien Act, s. 24(4) - The claim for lien was vacated - See paragraphs 71 to 76.

Mechanics' Liens - Topic 8800

Costs - General - The plaintiff Wildwood was under contract with the defendant Stelor to manufacture and install kitchen and bathroom cabinets in an apartment building being constructed by Stelor for the defendant Hall's - Asserting that Stelor had breached the contract by refusing to pay the balance owing ($57,183.84), Wildwood sued for that amount and also sought a declaration that it was entitled to a lien under the Mechanic's Lien Act on Hall's' property - The New Brunswick Court of Queen's Bench, Trial Division, having allowed Wildwood's claim in the amount of $53,770.24, awarded Wildwood costs of $13,442.56 - Wildwood's claim for a lien was vacated as having been filed out of time - Section 55(1) of the Mechanics' Lien Act was relevant regarding costs, allowing costs of the action up to 25% of the amount actually found due, which was $13,442.56 - The scales governing a regular court action reflected costs of between $4,875 and $6,825 - Here, the court chose the maximum amount allowable to provide "meaningful compensation" for Wildwood - This trial "was simply not necessary but for the unrealistic expectations of ... Stelor" - Hall's was awarded costs of $500 regarding Wildwood's vacated lien claim - See paragraphs 77 to 82.

Practice - Topic 7109

Costs - Party and party costs - Special orders - Discretion to exceed scale of costs - [See Mechanics' Liens - Topic 8800 ].

Practice - Topic 7110.1

Costs - Party and party costs - Special orders - Increase in scale of costs - Conduct of opposite party - [See Mechanics' Liens - Topic 8800 ].

Construction - Cote 686

Le contrat - Clauses verbales - Clauses verbales accessoires á l'entente écrite - [Voir Building Contracts - Topic 686 ].

Construction - Cote 710

Le contrat - Plans et spécifications - Le constructeur s'est fié aux plans, etc., fournis par le propriétaire - [Voir Building Contracts - Topic 710 ].

Construction - Cote 1743

Achèvement des travaux - Quasi-achèvement - En quoi consiste - [Voir Building Contracts - Topic 1743 ].

Construction - Cote 2703

Paiement - Dédommagement du constructeur - Déductions - Compensation et paiements en souffrance - [Voir Building Contracts - Topic 2703 ].

Contrats - Cote 7401

Interprétation - Principes généraux - Intention des parties - [Voir Contracts - Topic 7401 ].

Contrats - Cote 7409

Interprétation - Principes généraux - Conduit subséquente des parties - [Voir Contracts - Topic 7409 ].

Contrats - Cote 7433

Interprétation - Ambiguïté - Règle dite contra proferentem - [Voir Contracts - Topic 7433 ].

Contrats - Cote 7521

Interprétation - Circonstances entourant la conclusion du contrat - Généralités - [Voir Contracts - Topic 7521 ].

Dommages-intérêts - Cote 6516

Contrats - Contrats de construction - Violation par l'ingénieur ou l'entrepreneur - Base d'évaluation - [Voir Damages - Topic 6516 ].

Intérêts - Cote 5004

Intérêts accordés à titre de dommages-intérêts (intérêts avant jugement) - Principes généraux - Pouvoir d'appréciation du juge - [Voir Interest - Topic 5004 ].

Intérêts - Cote 5009

Intérêts accordés à titre de dommages-intérêts (intérêts avant jugement) - Principes généraux - Intérêts avant jugement - Calcul (y compris le taux) - [Voir Interest - Topic 5009 ].

Mandats - Cote 1410

Pouvoirs du mandataire - Pouvoirs apparents - Corporation qui laisse croire - En quoi consiste - [Voir Agency - Topic 1410 ].

Preuve - Cote 6202

Règle d'exclusion de la preuve extrinsèque - Principes généraux - Exceptions - Généralités - [Voir Evidence - Topic 6202 ].

Privilège de constructeur - Cote 5019

Obtention de privilèges - Enregistrement ou dépôt d'une revendication de privilège - Délai pour le dépôt - Exécution ou exécution substantielle - [Voir Mechanics' Liens - Topic 5019 ].

Privilège de constructeur - Cote 5055

Obtention de privilèges - Annulation d'un privilège enregistré - Motifs - [Voir Mechanics' Liens - Topic 5055 ].

Privilège de constructeur - Cote 8800

Dépens - Généralités - [Voir Mechanics' Liens - Topic 8800 ].

Procédure - Cote 7109

Dépens - Dépens entre parties - Ordonnances spéciales - Discrétion permettant de dépasser l'échelle des dépens - [Voir Practice - Topic 7109 ].

Procédure - Cote 7110.1

Dépens - Dépens entre parties - Ordonnances spéciales - Majoration dans l'échelle des dépens - Conduite de la partie adverse - [Voir Practice - Topic 7110.1 ].

Words and Phrases

Job completion - The New Brunswick Court of Queen's Bench, Trial Division, considered the meaning of the phrase "job completion" as used in a building contract - See paragraphs 17 to 24.

Cases Noticed:

Tombill Gold Mines Limited v. Hamilton et al., [1956] S.C.R. 858, refd to. [para. 8].

Creston Moly Corp. v. Sattva Capital Corp. (2014), 461 N.R. 335; 2014 SCC 53, refd to. [para. 8].

Irving Oil Ltd. v. S & S Realty Ltd. (1983), 48 N.B.R.(2d) 1; 126 A.P.R. 1 (C.A.), refd to. [para. 13].

Doiron v. Manufacturers Life Insurance Co. et al. (2003), 339 A.R. 371; 312 W.A.C. 371; 2003 ABCA 336, refd to. [para. 13].

Wagg v. Boudreau Sheet Metal Works Ltd., [1959] N.B.J. No. 19 (C.A.), refd to. [para. 17].

McClelland and Stewart Ltd. v. Mutual Life Assurance Co. of Canada, [1981] 2 S.C.R. 6; 37 N.R. 190, refd to. [para. 24].

Mayberry v. Hampton Golf Club Ltd. (2009), 345 N.B.R.(2d) 65; 889 A.P.R. 65; 2009 NBQB 154 (T.D.), refd to. [para. 24].

Toronto-Dominion Bank v. Griffiths, Johns and Williams, [1988] 1 W.W.R. 735 (B.C.C.A.), refd to. [para. 36].

Gallen v. Butterly (1984), 9 D.L.R.(4th) 496 (B.C.C.A.), refd to. [para. 36].

Diotte v. Consolidated Development Co. (2014), 425 N.B.R.(2d) 271; 1107 A.P.R. 271; 2014 NBCA 55, refd to. [para. 39].

Raynard and Raynard v. O'Blenis and Barton (1978), 21 N.B.R.(2d) 425; 37 A.P.R. 425 (C.A.), refd to. [para. 39].

Double Dutch Construction Inc. v. Colwell, [2012] N.B.R.(2d) Uned. 83; 2012 NBQB 317, refd to. [para. 39].

Robichaud v. Didiodato (2015), 431 N.B.R.(2d) 6; 1124 A.P.R. 6; 2015 NBQB 65, refd to. [para. 40].

Nowlan v. Brunswick Construction Ltd., [1975] 2 S.C.R. 523; 2 N.R. 164; 8 N.B.R.(2d) 76, refd to. [para. 53].

Preston v. Lionel LeBlanc & Son Ltd. (1975), 11 N.B.R.(2d) 231; 7 A.P.R. 231 (C.A.), refd to. [para. 59].

Fundy Ventilation Ltd. v. Brunswick Construction Ltd., Fraser Co. and Minister of National Revenue (N.B.) (1982), 40 N.B.R.(2d) 484; 105 A.P.R. 484 (C.A.), refd to. [para. 60].

Power, Dempsey & Cooper v. Wearing, [1999] N.B.R.(2d) Uned. 171 (T.D.), refd to. [para. 66].

LeClerc v. Sunbury Transport Ltd. and Risteen (1996), 184 N.B.R.(2d) 1; 469 A.P.R. 1 (C.A.), refd to. [para. 67].

Brunswick Construction Ltée v. Villa Des Jardins Inc. (1977), 17 N.B.R.(2d) 107; 23 A.P.R. 107 (C.A.), refd to. [para. 69].

McDonald v. Migliore and Migliore (1985), 64 N.B.R.(2d) 431; 165 A.P.R. 431 (C.A.), refd to. [para. 69].

Emco Ltd. v. Sobeys Inc. et al. (1997), 194 N.B.R.(2d) 1; 496 A.P.R. 1 (C.A.), refd to. [para. 70].

A.L. Gullison & Sons Ltd. v. Corey; Corey v. A.L. Gullison & Sons Ltd. (1980), 29 N.B.R.(2d) 86; 66 A.P.R. 86 (C.A.), refd to. [para. 70].

Iller Door Systems Ltd. v. Saint John Transit Commission et al., [2010] N.B.R.(2d) Uned. 86; 2010 NBQB 279, refd to. [para. 75].

Doucet et al. v. Spielo Manufacturing Inc. et al. (2011), 372 N.B.R.(2d) 1; 961 A.P.R. 1; 2011 NBCA 44, refd to. [para. 80].

Authors and Works Noticed:

Fridman, G.H.L., The Law of Contract (5th Ed.), pp. 443 to 452 [para. 36]; 453, 454 [para. 19].

Fridman, G.H.L., The Law of Contract (6th Ed.), p. 464 [paras. 57, 66].

McCamus, J.D., The Law of Contract (2nd Ed.), pp. 203 to 209 [paras. 8, 36].

Counsel:

Avocats:

Tracy Peters, for the plaintiff;

Rick F.T. Nesbitt, for the defendants.

This action and counterclaim were heard on February 17-19, 2015, by Walsh, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, who

delivered the following judgment on April 17, 2015.