Disputes with contractors over construction, renovation, landscaping or other such work are the most common type of cases in the Small Claims Court, and their success very much depends on proper actions being taken at the very early stages of the conflict. Our practice shows that a home owner is often somewhat lost when faced with contractor work problems, such as issues of work quality or project incompletion. When such problems arise, the question becomes what should be done to try to make a contractor to fix a problem or complete the work or, at the very least, secure evidence and legal grounds to get compensation through the Small Claims Court. These instructions are intended to provide some guidance about how address contractor issues and collect evidence to be used in future litigation.
Step 1: Understand the issue
Examine the work and create a simple and accurate description of the issues which, in your opinion, must be fixed and work that must be completed. Communicate these issues to the contractor and ask him to come and fix them. Do this in writing: by registered mail, fax, email or even text message – in any way that can be easily documented and proven in court. This can be helpful because the contractor may address your concerns. If he or she does not, the notification can be used to prove that you gave your contractor the opportunity to fix any problems. In 90 per cent of cases, contractors claim that they did not know about the issues or were not allowed to come fix them, and having the notification ready will help prevent that.
Step 2: Have the work inspected
If the contractor did not respond, or refused to admit and fix the issue, engage another professional with knowledge in the area to examine any poor or incomplete work, and provide you with a credible report that can be used as evidence in the Small Claims Court litigation process. The expert may be a professional engineer in cases of serious structural issues, or just another well-experienced and qualified contractor, if the issues are less serious. In all cases, the report must be in writing, and include a precise list and description of all defects, an explanation of the defects with reference to the respective rules and regulations (Building Code, Electrical Safety Code, etc.), and a recommendation about how each defect should be fixed. There are some companies in Toronto and the GTA which specialize in the inspection of the construction and renovation work.
Step 3: Get an estimate
Invite another contractor to provide you with an estimate of how much it would cost to fulfil the recommendations of the inspection. Note that if your inspector is a contractor, rather than an engineer, it is best to get the report and estimate from different individuals. The Small Claims Court may be skeptical if the inspector and new contractor are one and the same because of the contractor’s interest in being retained to repair as much as possible. It is better yet to have two or more estimates from different contractors, since a common cause for dispute during the Small Claims Court trial is that any one estimate is unreasonably high.
Step 4: Contact the contractor
Contact your original contractor once again. This time, provide him with a copy of the inspection report and the estimate, and offer him once again to come and fix the issue. Mention that if he refuses, you will not have no other choice but to commence litigation to recover the cost of fixing the issue through the Small Claims Court procedure. Give him a fair amount of time to respond. As always, there should be solid proof of such communication: communicate in writing and with proof of delivery.
Step 5: Start a claim in Small Claims Court
If the previous four steps did not work and the contractor is still refusing to repair poor workmanship, and the project is still not completed to your satisfaction, the final step to resolve the dispute is to commence legal action in the Small Claims Court (where the disputed amount of work is $25,000 or less). Of course, taking this step must be evaluated from a financial point of view: consider the cost and time required for litigation and the amount which you can recover through the Small Claims Court, and then actually collect from the contractor. Keep in mind that other considerations may become relevant as the small claim progresses. For example, a frequent question is whether the poor or incomplete work should be fixed by another contractor before, after or simultaneously with the Small Claims Court action.
These five steps are key to dealing with a contractor problem. They may either lead to a resolution of this problem, or put you in a better legal position should you decide to commence a lawsuit in Small Claims Court.
Should you find yourself in a situation where you must deal with a contractor’s poor workmanship or similar issues, please do not hesitate to contact us for a free case assessment.