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Damages – Proof

Posted on July 19, 2016 | Posted in Construction, Five Liners

Kenora Flooring Centre Inc. v. Degagne 2016 Ont SCJ

General contractor sued for money due on contract. The owner counterclaimed for deficiencies in the flooring, claiming in essence that because of the deficiencies all of the vinyl flooring had to be replaced at a cost far in excess of the amount owing. The owner provided evidence of the cost to replace all of the flooring and evidence of the deficiencies. The owner did not provide evidence of the cost to fix the deficiencies, taking the position that the flooring had to be replaced in full. The court concluded that there were deficiencies but that all of the flooring need not be replaced. The court denied both the claim and the counterclaim. The court denied the counterclaim because the owner had put forward no evidence of the cost to repair the deficiencies. It denied the contractor’s claim because there were deficiencies, but no evidence of the repair cost and therefore no means to determine exactly how much the contractor was owed on contract. As an aside, we do not agree with this portion of the decision. It was up to the owner to prove the quantum of deficiency repair, not the contractor.


Jonathan Speigel


Written by Jonathan Speigel Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.



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