C O N S T R U C T I O N L AW
The Right to a Reasonable
Opportunity to Repair
By Marco Baldasaro, McLennan Ross LLP
Consider this scenario: a homeowner hires a contractor
to perform a number of renovations to a residence.
During construction, the homeowner grows frustrated
with the contractor’s performance and terminates the
contract. The contractor asks for the opportunity to address
the issues but the homeowner, frustrated with the performance
to date, declines. To complete the work, the homeowner
hires a new contractor, who tears down the original
work before completing the renovation. The original contractor
issues their bill. The homeowner refuses to pay on the
basis that the cost of completing the teardown offsets any
amounts which could be owing. The original contractor sues
the homeowner seeking payment. Is the original contractor
likely to succeed? The answer may surprise you.
In a recent Alberta decision, the court ruled in favour of
the original contractor and awarded judgement against the
owner. By depriving the contractor a reasonable opportunity
to “cure” problems with the workmanship, the homeowner
failed to mitigate its losses and was precluded from setting
off the costs of rectifying the renovations against the unpaid
bill. As a result, the homeowner was obliged to pay for the
renovations – twice!
artisticco/123RF
ALBERTA HEAVY Quarter 2 2021 61