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PAYMENT - Quantum meruit claims - Measure of compensation

Monday, November 25, 2019 @ 9:31 AM  

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Appeal by the plaintiff from trial judgment dismissing its claim for payment for remedial work done and finding the appellant and respondent equally liable for deficiencies. The appellant subcontractor was retained by the respondent general contractor to pour cementitious based self-levelling concrete. After completion of the subcontract work, it became evident that some remedial work was necessary. The appellant performed the remedial work. Each day that the remedial work was being done, the respondent’s on-site supervisor signed off on the labour and materials used. The respondent then determined that further remedial work was necessary and, unbeknownst to the appellant, contracted Tile Master to finish the remedial work. The respondent denied liability for the remedial work performed by the appellant and did not agree with the rates the appellant charged for the remedial work.

HELD: Appeal allowed in part. The cost of the remedial work payable to the appellant was $158,740. Based on the correspondence between the parties, they agreed that the party responsible for the deficiencies in the subcontract would pay in proportion to its degree of fault. The respondent’s not agreeing to pay was simply it disputing liability at this time. It was plain that the parties had an agreement to do the remedial work on a time and materials basis to be paid by the party at fault in proportion to its fault. The fact that the parties did not agree on the price did not mean there was no contract. Since the trial judge found that both parties agreed that the appellant would do the remedial work on a time and materials basis, the appellant had a good claim in contract or on a quantum meruit basis. There was ample evidence that the work was done, and the number of hours for labour and the materials supplied were approved. The respondent’s agreement on the amount to be paid to the labourers, as well as the number of hours the labourers worked, the failure to dispute the costs of any materials, and the rates that the respondent proposed substantiated the fact that a considerable amount of money was expended by the appellant in doing the remedial work. The best evidence before the trial judge was that a reasonable sum for the work done was the amount claimed by the appellant. The overwhelming evidence was that the floor topping did not cure properly due to environmental conditions such as pouring in winter in adverse conditions, cold temperatures and a failure to protect the floors after they were poured. As both parties were responsible for these issues, a finding of equal liability was not unreasonable.

Ellerdale Investments Ltd. v. University of Prince Edward Island, [2019] P.E.I.J. No. 61, Prince Edward Island Court of Appeal, D.H. Jenkins C.J.P.E.I., M.M. Murphy and J.K. Mitchell JJ.A., October 18, 2019. Digest No. TLD-November252019001