Wilson v. Hodson et al., 2011 MBQB 187

• Judge: Menzies, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: August 03, 2011
• Jurisdiction: Manitoba
• Citations: 2011 MBQB 187;(2011), 267 Man.R.(2d) 142 (QB)

Wilson v. Hodson (2011), 267 Man.R.(2d) 142 (QB)

MLB headnote and full text

Temp. Cite: [2011] Man.R.(2d) TBEd. AU.026

Terence Michael Wilson (plaintiff) v. Vince Albert Hodson and Sandra Lynn Gates (defendants)

(CI 09-02-02266; 2011 MBQB 187)

Indexed As: Wilson v. Hodson et al.

Manitoba Court of Queen's Bench

Brandon Centre

Menzies, J.

August 3, 2011.

Summary:

The plaintiff contractor sued the defendants for work done on their home.

The Manitoba Court of Queen's Bench awarded the plaintiff $8,120.31.

Building Contracts - Topic 512

The contract - Estimates - Effect of - The plaintiff contractor sued the defendants for work done on their home - Before purchasing the house, the defendants asked the plaintiff to provide an estimate of the costs of renovations including labour and materials - He did so - The Manitoba Court of Queen's Bench was surprised that the plaintiff would provide an estimate for such an extensive project without the benefit of a plan or drawings - However, the court held that the contract between the parties was based on the estimate provided by the plaintiff - The court rejected the plaintiff's argument that the contract had been varied to an hourly basis - The court considered, inter alia, that the defendants admitted receiving the invoices charged at $30 an hour, but indicated that the manner of the billing was not important to them - They were more interested in the progress being made on the house - Further, there was no evidence of any consideration flowing from the plaintiff to the defendants for the proposed change in the contract to the plaintiff's benefit - See paragraphs 13 to 27.

Building Contracts - Topic 906

The contract - Breach - Fundamental breach - What constitutes - The plaintiff contractor sued the defendants for work done on their home - Before purchasing the house, the defendants asked the plaintiff to provide an estimate of the costs of renovations including labour and materials - He did so - On January 7, 2009, the plaintiff submitted an invoice for $14,238 - The defendants responded with a $2,802.27 payment accompanied by a letter of explanation - They advised that, in their opinion, they had paid the entire cost of the contract in accordance with the plaintiff's estimate for the work completed to date and they were not prepared to pay any further monies until some of the portions of the project were completed - Despite the defendants' refusal to pay any further funds, the plaintiff continued work on the house until February 7, 2009, when the work ceased pending an inspection - Once the inspection was done, the plaintiff returned on February 25 and remained on the job until March 18, 2009 - By that date, the plaintiff had completed installing the dry wall - As a result of the defendants refusing to pay any more money on the project, the plaintiff left the job - The Manitoba Court of Queen's Bench held that the defendants' failure to pay any further funds after January 2009 coupled with a failure to undertake meaningful negotiations constituted a fundamental breach of the contract - The plaintiff did not abandon the contract until it was clearly evident that the defendants were refusing to pay any further monies - See paragraphs 28 to 33.

Building Contracts - Topic 2621

Payment - Compensation to builder - Extras - General - [See Building Contracts - Topic 2632 ].

Building Contracts - Topic 2632

Payment - Compensation to builder - Extras - Approval of - The plaintiff contractor sued the defendants for work done on their home - The Manitoba Court of Queen's Bench stated that simply because work was done outside of the contractual agreement between parties in a construction mileu did not entitle the contractor to demand payment over and above the agreed price - The nature of a contract was an understanding between parties - To demand payment for extra work done, there had to be an agreement to have the work done at the owner's cost - For example, the defendants agreed to move the furnace and hot water tank from a central room in the basement to the storage room at the plaintiff's suggestion - Once this was agreed the brick chimney was no longer required and the plaintiff removed it - The plaintiff indicated that he discussed this with the defendants and claimed an extra fee for this service - The defendants did not contest that the chimney was no longer necessary and had to be removed - However, there was no evidence that the plaintiff discussed any extra charge for removing the chimney - Absent such a discussion, the plaintiff could not charge for this work - See paragraphs 46 to 58.

Building Contracts - Topic 3546

Liability of builder - Duty to owner - Duty respecting price quotation or estimate - [See Building Contracts - Topic 512 ].

Contracts - Topic 2504

Variation or alteration - General - Requirement of consideration - [See Building Contracts - Topic 512 ].

Damages - Topic 6528

Contracts - Building contracts - Breach by owner - Measure of damages (incl. election) - The plaintiff contractor sued the defendants for work done on their home - The Manitoba Court of Queen's Bench held that the contract between the parties was based on an estimate provided by the plaintiff - The court rejected the plaintiff's claim that the contract had been varied to a $30 hourly rate - The court also found that the defendants had committed a fundamental breach of the contract to pay any further funds after January 2009 coupled with a failure to undertake meaningful negotiations - The plaintiff requested damages on a quantum meruit basis, which he claimed at $30 an hour without evidence of the value of the work - The court stated that to award $30 an hour to the plaintiff would be to rewrite the contract between the parties in a manner which was rejected by the defendants at the early stages of the renovations - This would be inequitable to the defendants - The court determined damages by reference to the estimate - See paragraphs 34 to 42.

Cases Noticed:

Beaufort Realties (1964) Inc. et al. v. Chomedey Aluminum Co., [1980] 2 S.C.R. 718; 33 N.R. 460; 116 D.L.R.(3d) 193; 15 R.P.R. 62, refd to. [para. 15].

Kencourt Interiors Inc. v. Gateway Construction & Engineering Ltd. et al. (2004), 183 Man.R.(2d) 206; 34 C.L.R.(3d) 69 (Q.B.), refd to. [para. 34].

Bonilla v. Ciurariu, [2008] B.C.T.C. Uned. 566; 74 C.L.R.(3d) 191; 2008 BCSC 925, refd to. [para. 34].

Voyager Contracting Ltd. v. Hancock (1991), 47 C.L.R. 221; 1991 CarswellNfld 158 (S.C.), refd to. [para. 34].

Longwell Enterprises Ltd. v. McGowan (1989), 37 C.L.R. 13 (B.C. Co. Ct.), refd to. [para. 41].

Hiscock v. Nolan et al. (1993), 109 Nfld. & P.E.I.R. 302; 343 A.P.R. 302; 12 C.L.R.(2d) 58 (Nfld. T.D.), refd to. [para. 44].

Obad v. Ontario Housing Corp., [1981] O.J. No. 282 (H.C.), refd to. [para. 75].

Counsel:

Kelly Dickson, for the plaintiff;

Dennis Foerster, for the defendants.

This case was heard by Menzies, J., of the Manitoba Court of Queen's Bench, Brandon Centre, who delivered the following decision on August 3, 2011.