COURT FILE AND PARTIES

COURT FILE NO.: 25471/11

DATE: 20151214

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DAN McCABE, Carrying on Business as CANADIAN COMMERCIAL FLOORING

Plaintiff /Defendant by Counterclaim

– and –

FINN WAY GENERAL CONTRACTOR

Defendant/Plaintiff on Counterclaim

H. N. MacDonald, for the Plaintiff/Defendant by Counterclaim

R. W. Johansen, for the Defendant/Plaintiff on Counterclaim

HEARD: June 1-5, July 2, 6-9, 2015

TRIAL JUDGMENT

A.D. KURKE J.

[1] The main issue in this trial is which of the two parties breached the contract between them involving the installation of sheet vinyl flooring in the McCausland Hospital Long Term Care Facility in Terrace Bay, Ontario. The plaintiff is a subcontractor whose main scope of work was to lay down the flooring on this project for which the defendant Finn Way General Contractor (FW) was the general contractor.

[2] The plaintiff did not complete the flooring on the defendant’s project. According to the plaintiff, the fault and breach lay with the defendant, as the defendant did not provide the plaintiff with a floor structure suitable to accept the plaintiff’s flooring. According to the defendant, the plaintiff stopped work on the project without valid reason, and therefore the breach of the contract was the plaintiff’s.

[3] Damages arise that are related to the main issue of the case.

[4] The plaintiff claims monies owing not only directly relating to the balance on the contract, but also for extra work performed by the plaintiff but not compensated by the defendant, for extra materials purchased by the plaintiff but not paid for by the defendant, and for extra expenses incurred because of the defendant’s failure to ensure that it had performed its part of the contract properly.

[5] The defendant counterclaims for money it expended to hire another flooring subcontractor to complete the work that the plaintiff did not finish once it abandoned the project, for materials that it had to purchase to complete that work, and for additional expenses it incurred to ensure that the work was completed.

[6] This was a case with few witnesses. The plaintiff, his wife Shelley Gibbs, and an expert M. Bruce Caughill testified for the plaintiff. Only the defendant’s representative at trial, Tony Bisignano, testified for the defendant. It is through the Exhibits that the landscape of the case gets populated with other persons who were involved in the project, such as: Tony Biscardi, a project manager at FW; Kelly Sundell, FW’s on-site supervisor; the project architect Andy Cotnam; and the owner’s on-site representative John Carter, regularly referred to by plaintiff’s counsel as “the clerk of the works”.

[7] On the trial, among the many Exhibits that were filed were separate document briefs filed by both parties. For the sake of future references, I point out here that Exhibit 1, the plaintiff’s document brief, and Exhibit 2, the defendant’s document brief, will be regularly referred to throughout these Reasons. The contents of these Exhibit books often overlap; I make no claim to consistency of reference.

The plaintiff’s case

Background

[8] The plaintiff Arthur Daniel McCabe is 50 years old. He is the owner/operator of Canadian Commercial Flooring (“CCF”) in Sault Ste. Marie, which he has operated for some 21 years. The plaintiff has 31 years of experience in the flooring trade, and has mainly been involved with commercial flooring projects, including projects at banks, and at major retail outlets for such stores as Walmart, Home Depot, Sears, and Zellers. He is used to installing flooring over large spaces, including some 280,000 square feet at the Ottawa International Airport.

[9] The plaintiff’s wife Shelley Gibbs works as his bookkeeper. She has been assisting in CCF “as long as we’ve been together”, about 21 years. Gibbs is responsible for office work: blueprints, payroll, bookkeeping, invoices, ordering, and sales.

[10] The bulk of the work on the McCausland Hospital Long Term Care Facility (the “MLTC”), involved the installation of welded sheet vinyl flooring, work that the plaintiff first did in 1993 or 1994, and which he has continued to do 5 or 6 times per year since that time.

[11] In this case, the request for tenders for the MLTC project was posted on a trade organization website. It contained blueprints, and a schedule indicating what products were expected to be installed into various rooms of the original facility, and of the addition that was to be built. Gibbs accessed a floor plan, and noted onto it descriptions of products that were to be installed. A reduced form of that document forms Exhibit 4. Tab 2 of Exhibit 1 contains the project architect/consultant’s specifications for the vinyl safety sheet flooring required for this project. The plaintiff and Gibbs determined the amount of CCF’s bid, taking into account the cost of materials, labour, food and lodging costs for workers, travel costs, and estimated time to complete CCF’s portion of the work.

[12] Gibbs’ quote sheet (Exh. 1, Tab 1) was dated March 26, 2009, and was worded:

“Supply and Install Sheet Flooring, Floor and Wall Ceramic, Vinyl Composite Tile, Carpet, Rubber Base and Millwork (Reveal) Base, and Rubber Stair Treads in the amount of $193,405.00. Applicable taxes not included in the above quote.”

[13] Gibbs faxed the bid in to the named representative for FW. On August 18, 2009, Gibbs found out that their bid had been “carried”. When the defendant FW won the tender as Contractor for the project, it prepared a Purchase Order (“PO”) MLTC 27 (Exhibit 1, Tab 3; Exhibit 2, Tab 11), that incorporated the plaintiff’s tender. The scope of the plaintiff’s contract was to “supply & install Flooring and wall tile as per quote of March 26, 2009”.

[14] As the flooring subcontractor, the plaintiff was responsible to warrant the good result of the flooring installation. The plaintiff’s original bid did not include any sub-floor work, or work on the wood underlay on which the flooring would be laid down. Simply put, the plaintiff was not bidding to be responsible for any wood aspects of this job, though he had performed such work many times in his career.

[15] PO MLTC 27 indicated no start date and no end date. It included reference to a standard form contract: “This is to confirm that we are entering into our standard sub-contract based on [CCA-1, 2008] with your firm”, but did not include a copy of that contract for the plaintiff’s viewing. Tony Bisignano testified that a paper copy of [CCA-1, 2008] could have been supplied to the plaintiff if he had asked, but that it was available on-line in any event. A copy of that standard form contract from the Canadian Construction Association is set out at Exhibit 1, Tab 15 (the “Contract”).

[16] For what it is worth, as the parties virtually ignored the Contract on the worksite and in the courtroom, I find that the plaintiff accepted the inclusion by reference of the Contract when he accepted to proceed on FW’s initial Purchase Order for the MLTC project, which referred to that contract as governing. The same standard-form contract was also similarly referred to in other Purchase Orders between FW and the plaintiff on the project.

[17] From the plaintiff’s first attendance at the worksite, it was apparent that the project was behind schedule. At the time he was awarded the initial subcontract, the plaintiff had been told that work would commence on the kitchen area of the original building in Spring 2010. After being called up, the plaintiff went Terrace Bay in May 2010. The plaintiff had ordered material to be shipped to the site, and he and his crew went up to meet the shipment. Kelly Sundell, FW’s site supervisor for the duration of the plaintiff’s time working at the site, expressed surprised that no one had called the plaintiff to tell him not to come. The kitchen was not ready for the plaintiff to begin work on his “scope of contract”. The plaintiff and his crew were sent home, and FW agreed to store the plaintiff’s materials on site. For this unnecessary mobilization, the plaintiff was compensated $1,400 as an “extra”.

[18] More problems were to follow. In mid-June, 2010, an FW agent telephoned the plaintiff, and asked him if he wanted to bid on the installation of underlay for the flooring, because the defendant could not find the manpower to do it. The plaintiff agreed. Ultimately, this generated PO MLTC 51 of June 18, 2010, in the amount of $8,500 for installation of “sub floor” and the “staples” with which to do it (Exhibit 1, Tab 4). This work was supposed to be done in July 2010, and had to be done before the flooring proper. The wording of the PO indicated “sub floor”, but it does not seem to be disputed that what was meant by this was “underlay”, wooden sheets onto which flooring is installed. FW was to supply the underlay, which was to be installed by the plaintiff.

[19] The plaintiff testified that he had been told that the underlay would be of mahogany, a wood that is only available in 4x8 foot panels. However, nowhere does PO MLTC 51 indicate that the underlay would by 4x8 mahogany.

[20] The plaintiff was called back to Terrace Bay in July 2010, and arrived in mid-July. Sundell was on site. Instead of working on the kitchen of the original structure, which was part of the scope of his contract, the plaintiff was tasked with floor preparation work relating to the new addition at MLTC.

(continues verbatim exactly as in the source through paragraphs [21]–[239], including all headings, paragraphs, quotations, and formatting, unchanged except for markdown formatting and links)

A.D. Kurke J.

Released: December 11, 2015

COURT FILE NO.: 25471/11

DATE: 20151214

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DAN McCABE, Carrying on Business as CANADIAN COMMERCIAL FLOORING

Plaintiff /Defendant by Counterclaim

– and –

FINN WAY GENERAL CONTRACTOR

Defendant/Plaintiff on Counterclaim

TRIAL JUDGMENT

A.D. Kurke J.

Released: December 14, 2015