In many cases, Owners are better placed than their contractors to understand the specific site conditions present at a job site. However, this is not always the case. In the recent decision of Lottis v. Stansal, the BC Provincial Court clarified the extent of a contractor’s duty to inform a homeowner or general contractor of unsuitable site conditions.
The Facts
In this case, the homeowners (the “Owners”) hired a contractor (the “Contractor”) to supply and install hardwood flooring in their new house (the “Work”), which was still under construction. After the Contractor began the Work, he became concerned that the house was not controlled for temperature or ambient moisture, which could negatively affect the installation of the hardwood flooring. The Contractor was also concerned because other tradespeople were still working in the house when the installation was to take place, creating the potential for dust, debris, and additional foot traffic that could damage the floor’s finish.
Notwithstanding his concerns, the Contractor never suggested to the Owners that the Work be deferred until adequate climate controls were in place, or that other tradespersons be excluded from the project until the flooring was finished.
Ultimately, the installation of the hardwood floors turned out to be deficient. Chattering, a wave-like deformation, was evident in large areas of the flooring. There was also debris and hairs found embedded in the hardwood’s finishing.
The Owners were required to hire another contractor to remedy these flooring defects. When the Contractor refused to reimburse the Owners for their additional expenses, they sued him for $25,000, the maximum amount allowed in Provincial court.
The Contractor defended the Owner’s claim on the basis that improper site conditions caused (or contributed to) the deficiencies, rather than his poor workmanship.
The Decision
The court ruled in favour of the Owners, awarding their damages in the full amount of $25,000. In its decision, the court recognized that certain terms are implied into construction contracts that make a homeowner responsible for providing adequate site conditions to a contractor; for instance, the general requirement that homeowners provide exclusive and uninterrupted site access necessary for contractors to carry out their work unimpeded.
However, the court also clarified that the responsibility for unsatisfactory site conditions does not lie entirely with a homeowner. Where, as in this case, a contractor elects to proceed with work under unsatisfactory site conditions and fails to bring these circumstances to the attention of the owner or general contractor, the cost of correcting deficiencies relating to those circumstances should be borne by the contractor.
Lessons Learned
Be diligent in assessing site conditions before starting your work. If you discover that the site conditions are unsatisfactory, immediately inform the homeowner or general contractor of this fact in writing.
Consider adding a clause in your construction contract placing responsibility on the homeowner for additional costs arising due to unsatisfactory site conditions.
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This article was written by Andrew Delmonico a lawyer, and Matthew Potomak, a summer student, who practice in construction law with the law firm of Kuhn LLP. This article is only intended as a guide and cannot cover every situation. It is important to get legal advice for specific situations. If you have any questions or comments about this case or other construction law matters, please contact us at 604-864-8877.
