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Posted on September 1, 2005 | Posted in Construction

Since the Supreme Court of Canada’s 1995 decision in Winnipeg Condominium v. Bird Construction, we have known that a contractor can be liable in negligence to a subsequent owner of a building, but only under specified circumstances. The case of Roy v. Thiessen, a 2005 decision of the Saskatchewan Court of Appeal, deals with those specified circumstances.


Husband, Thiessen, was a professional hockey player. Although hockey players know how to play hockey, this does not qualify them to build houses. The husband did not seem to understand this relatively simple concept.

The husband acted as the general contractor to build a house for his wife and him. He was such a good hockey player that he was also able to dispense with an architect. As an added bonus, the husband personally install the insulation. After all, how difficult could that be?

He arranged for some limited inspections and managed to get a certificate that the work met CMHC specifications and that the house was ready for occupancy.

The husband and the wife took possession of the house for approximately two years, but actually lived in it for only approximately one of those years. They noticed some problems with drywall tape and gaps between the ceiling and beams. The husband filled the gaps with silicon. The other people who had occupied the house in the absence of the husband and wife reported no problems with the house.


The husband and the wife (the “vendors”) sold the house to the purchasers, who relied on friends to inspect the house rather than a professional inspection company. The husband informed the purchasers about the drywall problem and that he had acted as his own general contractor.

Within a year, the purchasers experienced major moisture problems. They received expert advice that the insulation had been improperly installed leading to serious condensation that would ultimately lead to the rotting of beams and trusses.

The agreement of purchase and sale had contained a disclaimer clause stating that the vendors made no representations except those contained in the agreement. This meant that the purchasers accepted responsibility to determine the state of the house they were buying. As long as the vendors did not know of any problems, the vendors had no further responsibility for latent defects in the house.

Cause of Action 

The court held that, because of the disclaimer clause, the purchasers had no cause of action against the vendors, either in contract or for the tort of negligent misrepresentation. Accordingly, the vendors were home free in their capacity as vendors. However, the husband was not just someone who sold the house; he had also built it. If he built it negligently, he could be liable to subsequent owners, even if he had had no contract with them.

Duty of Care 

The husband argued that he had no duty of care to the purchasers because he had told them that he was his own general contractor and had had no previous building experience. The court was not impressed with that argument. If accepted, it would establish a principle of exempting people who build their own buildings from a duty of care to subsequent owners and would encourage poor construction practices. The court thought this would be bad public policy.

Standard of Care

The Supreme Court of Canada set the liability bar relatively high. A contractor who negligently constructed or designed a building would be liable to a subsequent owner in negligence only if the failure to take reasonable care would create defects that would pose a substantial danger to the health and safety of the occupants. If liable, then the contractor would be responsible for the cost of repairing the defects to put the building back into a non-dangerous state.

There was no doubt that the husband built the house negligently. Indeed, the moment that an owner can prove, as in this case, that there is a breach of the Building Code, negligence is a foregone conclusion.

The main argument of the husband was that “substantial danger” meant “imminent danger”; he argued that the assertion that danger could arise sometime down the road was insufficient.

The court held that the policy goal was to encourage owners to make necessary repairs before the problem worsened and before the danger became imminent. After all, it would make no sense to have to wait to effect repairs until the house was about to or actually did collapse because of rotting beams and columns. The court held that the owner did not have to wait for imminent danger; it was sufficient if the failure of the structure would occur sometime during the building’s lifespan. 


The court held that the husband was liable to the purchasers for the cost of all repairs. However, it held that the wife was not liable. She did not act as contractor and, therefore, could not be held responsible for the negligent construction of the house.


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