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LIENS - Owner - Requirement of privity and consent - Agency situations

Wednesday, January 29, 2020 @ 8:00 AM  

Lexis Advance® Quicklaw®
Action by the plaintiff for a claim for lien and damages totaling $124,947. Counterclaim by Unifor Canada (“UCI”) for damages of $113,545 for repair and replacement costs. Between 2012 and 2014, the plaintiff provided flooring work on a commercial property owned by UCI, a subsidiary of Unifor SpA (“US”), an Italian manufacturer of office interiors. The property was leased to Italinteriors Inc., which used the property to display and sell US’s furniture. Lomax, the project manager, negotiated with the plaintiff for the provision of the flooring. A letter of intent was signed by the plaintiff and Lomax on behalf of UCI. Lomax subsequently sent the plaintiff a contract that showed US, and not UCI, was contracting with the plaintiff. The document was not signed but the work proceeded. Lomax eventually issued a purchase order for the contract, describing it as acting for US. Three of the eight invoices the plaintiff sent to Lomax were not paid. In 2014, Lomax advised the plaintiff of UCI’s concerns about orange peel surface, dust and unevenness. It subsequently advised the plaintiff to stop working. No deficiency list was ever served on the plaintiff. UCI installed a replacement floor different from that specified for the work the plaintiff completed.

HELD: Action allowed in part; counterclaim dismissed. Generally, the credibility of the plaintiff’s witnesses exceeded that of the defendants’ witnesses and their evidence was preferred. Based on the evidence, including the signed letter of intent, the plaintiff contracted with UCI. The plaintiff’s claim for breach of contract as against Lomax was dismissed. UCI, and not the plaintiff, fundamentally breached the contract by unilaterally ending the contract without payment and without allowing the plaintiff to repair any deficiencies. The plaintiff accepted UCI’s repudiation of the contract. The deficiencies proven did not undermine the foundation of the contract and did not justify contract termination. As the party who wrongfully repudiated the contract, UCI was disentitled from claiming damages for breach of contract. Extras and the costs of uncompleted work were not deducted from the plaintiff’s claim. The plaintiff’s claim was reduced by $52,862 for the installation of the wrong epoxy. The plaintiff was granted judgment of $72,085.

Mount Royal Painting Inc. (c.o.b. Epoxy Solutions) v. Lomax Management Inc., [2019] O.J. No. 6298, Ontario Superior Court of Justice, Master C.G.T. Wiebe, December 5, 2019. Digest No. TLD-January272020006