How Can I Sue a Waterproofing Contractor For Defects?
To Best Succeed In a Defects Case, the Property Owner Will Need Proper Evidence of Defects, As Usually Confirmed By An Expert, As Well As Proof of Offering the Contractor An Opportunity to Correct the Defects.
Understanding How to Improve Your Likelihood of Success Within a Defective Workmanship Lawsuit
Whether a property owner (or project owner) will succeed in a lawsuit that alleges flaws or defects in workmanship, or whether a contractor will succeed when defending against defective workmanship allegations can be difficult to determine due to the many nuanced facts and opinions that may be involved as well as the extent of applicable law. As with most cases, thorough evidence and witness preparation as well as detailed legal understanding will always be the approach for the best likelihood for success.
The Five Steps For How to Best Determine Who Will Likely Win In a Contractor Defects Case
- Determine Whether Defects Will Likely Be Legally Deemed As Defects;
- Determine Whether the Defects Raise a Cause of Action (a right to sue);
- Determine Who Is the Proper Party to Include In a Lawsuit;
- Determine Whether the Losses Make Suing Worthwhile; and
- Determine Whether You Can Withstand the Rigors of Litigation
Step One: Determining Whether a Defect Is Legally a Defect
Property owners may sometimes expect too much and would be wise to note that the law expects a quality of work that is less than perfection. Additionally, the quality of work required may vary depending on the nature of the project itself whereas what may deemed a defect within a multi-million dollar mansion may be viewed as charming and adding character within a lakeside rustic cabin. Obviously, if a person should expect that the law will fail to declare that work was defective, then a lawsuit alleging that work was defective should be avoided. For how to determine whether the work was legally defective, a person needs to first determine what quality level of work was required by law. To do so, determine what quality level of workmanship was required as per the applicable law by:
- Determining whether the quality of required workmanship was explicitly stated within a written contract including design drawings, among other formal documents regarding the project;
- Determining whether, in the absence of explicitly written quality specifications whether the contract, written or verbal, implied a certain quality level;
- Determining the quality level that is usual to standards of the trade for the nature of the project; and
- Determining the quality level that is required by the provincial building code as well as the local municipal building code.
When determining the quality level of work performed, it is prudent, and perhaps necessary, to obain a detailed independent third party 'expert report' containing trade explanations regarding the quality level of work performed and the quality level of work expected. Essentially, if the quality of work performed fails to meet the quality of work legally required, a defect legally exists.
While reviewing whether the quality level of work failed to meet the quality level legally required, it can be very important to appreciate that even meeting the explicit written specifications above the building code may still present as legally deficient. Extensive case law shows that, in many circumstances, a contractor holds a duty to specify and provide quality of materials and workmanship as are appropriate to the nature of the project. Furthermore, even if the property owner reviewed and approved the design, plans, specifications, among other things, the contractor may be held liable if such design, plans, specifications, among other things, fail to product the intended purpose of the project. The law deems that the contractor is the expert and owes a duty to ensure that the project design, plans, specifications, among other things, will meet the intended purpose of the project and therefore meeting that purpose becomes a legally required result. This principle applies unless it is shown that the property owner was relying upon an expert other than the contractor, such as an architect, engineer, designer, project manager, among others, rather than relying upon the contractor.
Priority of Quality Level
Once the apparent level of quality for the project is understood, the next question then comes to whether that level was actually the level required per the law. To determine which level of quality takes priority in a given situation, consider the following:
- If the contract provided an explicit quality level specification, so long as that explicit quality level is legal, meaning that the specified quality level must be at, or above, the minimum requirements of the provincial building code and the local municipal building code, then such explicitly stated quality level is the legally required quality level;
- If the contract was silent on an explicit quality level, and yet there is enough evidence to demonstrate that a certain quality level was reasonably contemplated and mutually expected by both the property owner and the contractor and as such is an implied quality level, and such an implied quality level is legal, being above the minimum requirements, then the reasonably contemplated and mutually expected quality level applies; and
- If the contract was silent on an explicit quality level, and it appears that a reasonably contemplated and mutually expected quality level appears lacking, then the law will imply that the contract required workmanship to the usual standards of the trade for the nature and character of the project.
Step Two: Determine Whether the Defects Raise a Legal Cause of Action
Generally, if it is determined that the defects will likely be legally deemed as defects, then the next question is whether what is legally a defect presents a right to take legal action as well as what type of legal action or combination of types of legal action such as breach of contract, negligence, unjust enrichment, among others.
This step also requires careful consideration of whether a legal proceeding is prudent. Of course, common sense suggests that before commencing legal proceedings, presenting the contractor who created the defect with an opportunity to voluntarily correct the defect is appropriate. In addition to common sense suggesting that an opportunity to correct the defect should be offered, in most circumstances the law requires that such an opportunity to correct be offered. Unless it is discovered that the defect is so fundamentally profound that it would be reasonable to deny an opportunity to correct the defect to the contractor, the law expects so. Of course, even if the defect is relatively minor, yet still enough of a defect as to warrant correction, an opportunity to correct the defect is unnecessary if the contractor is without legal authority to do such work. Simply stated, as an example, if an contractor performs defective electrical work and a defect is uncovered, the contractor should be offered an opportunity to correct the defect unless the defect is so serious that failing to make such an offer is reasonable or if the contractor would be acting unlawful - such as where the contractor is without a license to do electrical work.
Step Three: Determine Who to Sue
In the scheme of relations involving construction projects, there may be many involved in performance of workmanship such as the contractor with whom the property owner is contractually engaged with as well as subcontractors as well as tradespeople with whom the property owner is without any contractual relationship and perhaps even without any direct contact or even knowledge of involvement. Accordingly, who actually caused the defect, and may legally be added a party to a legal action, can extend far beyond merely the contractor with direct relation to the property owner. When reviewing who to sue consider:
- Who was contractually obligated to perform and deliver a (legally) defect free project and thereby, where defects legally exist as above, be in breach of the contractual obligations?
- Who may be vicariously liable for the negligent failures of others?
- Who negligently failed to perform?
- Who of the above will be viable targets for litigation?
Step Four: Determine Whether It Is Financially Viable to Sue
Defective workmanship litigation can be expensive. Expert witness reports, legal representation, court fees, among other things, add up; and accordingly, commencing litigation for principle or other reasons may be imprudent. Review the cost of correcting the defect with the cost of litigating. The capacity and appetite for litigation will vary depending on individual circumstances; and accordingly, there are no specific rules to follow other than your own unique circumstances and what is common sense within those circumstances.
Step Five: Determine Whether It Is Emotionally Viable to Sue
Similar to the above where it is said that defective workmanship litigation can be financially exhausting, defective workmanship litigation can also be emotionally draining. Accordingly, carefully consider whether you are truly ready for the long haul. In the end, life is short. Ask yourself, is this really worth it? If your answer is a "yes" without any doubt, then you likely are confident with where you stand. If your answer is a maybe, then be careful to consider your desire and intent. Be sure to avoid waiting to long and possibly losing legal rights; however, avoid jumping the gun as backpeddling out of a legal proceeding once started may be difficult and perhaps costly.
Like all legal matters, a defective workmanship case should be carefully considered and pursued only after careful consideration. The law involving defective workmanship cases is complex. As always, it is prudent to carefully review your legal rights, duties, and obligations, with a qualified and experienced legal advisor.