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Daniel Freudman
Daniel Freudman, Lawyer
Category: Canada Law
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Experience:  Lawyer
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Not sure if this is Consumer Law or Business Law. Hired contractor

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Not sure if this is Consumer Law or Business Law.
Hired contractor to do waterproofing, gave deposit and half of money two weeks into the job, contractor not paid in full. Water still coming into home in two areas, contractor cracked end of driveway, company truck dripped dirty oil on driveway, excavator machine hit front of garage and damaged blocks (they are now falling out). Contractor did a underpin - floor is now heaving with a large crack. Waterproofing membrane too high in most areas for future landscaping. Contractor said he would rough in for a sump pump and that was not done. Contacted the Better Business Bureau and the contractor responded with condescending personal attacks and we find it very offensive. The Better Business Bureau has closed the file and mailed me a letter that it is unresolved. I do not want this contractor back on the property but need some advice for the money owing and what my rights are.
Submitted: 1 year ago.
Category: Canada Law
Expert:  Daniel Freudman replied 1 year ago.

As the BBB has not taken any real action, it seems up to you to resolve the matter. You can try negotiating with the contractors, and determine if the damages he has caused and the unfinished work for which he has already been paid for are roughly equal to the amount he is still owed. If such is that case you could try to agree to settle and call everything even. However, by the sounds of it, you have paid him for services which he has improperly performed, if even performed at all.

 

There seem to be are two possible courses of action you may take to try to recover this money that you have paid him but he has not truly earned.

 

First, it may be wise to send your contractor a 'Demand Letter'. A Demand Letter is a letter that demands a person take a certain action otherwise you will pursue legal action. In this case, you would demand that your contractor pay you the damages he caused to your house and/or the amounts he has collected but not properly provided services for, lest you commence legal action against him. The goal of this is to nip the issue in the bud, but resolving the matter before it has to go to court. However, if your contractor doesn't comply with the Demand Letter then you are not left with much recourse aside from commencing legal action. A Demand Letter is generally sent on your behalf by a lawyer (and on the lawyer's / firm's letterhead) and signed by the lawyer- this makes the letter more intimidating than just you asking or demanding it without the imminent threat of legal action by a lawyer.

The main benefit of the Demand Letter is that it is relatively cost effective and will lead to a prompt resolution if your contractor is agreeable and able to comply with the demand.

 

If that course of action fails, or if you don't think it will work and you just wish to skip it, then you can commence legal action against the contractor in Small Claims Court, if the amount you are claiming is under $25,000 (if it is over that amount, proceedings must be commenced in Superior Court). Small Claims Court is cost effective, as it only costs about $100 to commence an action, and you can represent yourself / needn't hire a lawyer. So, the first step would be to issue a Statement of Claim (document that sets out your legal claim against the party, and is the first document used to commence a lawsuit) against the person. Here, your claim would be for any and all costs you have or will incur/ed to remedy all the damages the contractor caused to your property, and also the amounts he billed you but never truly earned due to his shoddy work.

 

I conclusion, the best course of action would likely be as follows: Send a Demand Letter- if that is unsuccessful, commence a Claim in Small Claims Court. In this Statement of Claim, abovementioned amounts. You may also claim interests as well as the costs you incurred to file the Claim.

 

Note: if he has done awful work (which, by the sounds of it, he has), then he has effectively breached the contract with you, and you needn't pay him further. But, he may be able to argue that some of his services that he performed are worthy of payment. This is known as 'quantum meruit' whereby he can try to collect monies owing for any proper work he did / materials he provided you with, but for which he was never compensated.

 

Hopefully that is of assistance.

 

 

If you are satisfied with my answer, please provide me with a positive rating so I can receive payment. Thank you.

 

DISCLAIMER: My communication is general legal information only and is not intended to be relied upon. This information is not legal advice, nor is it a substitute for such, and if you are seeking legal advice then it is recommended that you retain an attorney. There is no guarantee as to the accuracy of this information, nor shall I be held liable for any claim, demand or damages, actual or consequential, of any kind or nature, known or unknown, arising out of or in any way connected to this information or the issue it pertains to. No solicitor-client relationship has been created by this communication.

Customer: replied 1 year ago.


Thank you for your response. The amount we owe is $10,000.00. Can the contractor put a lien on our property.


 


 

Expert:  Daniel Freudman replied 1 year ago.

If you owe the contractor money, then he can generally put a lien on your property. However, if / when he tries to enforce the lien, then you would get your chance to fight it and put forward your side of the story and all these arguments that you mentioned to me about how poor his work was and, as a result, how he should not be owed this money and rather he owes you money. If the court accepts your arguments, then they will not enforce his lien against you.

 

In the interim, the best thing you can do is take photos of all the damages he has caused to your properly and keep track of any and all invoices and payments you had to pay others to rectify his damages, as all this can be used as evidence in any later proceedings with the contractor should such arise.

 

Hopefully that answers your question.

Daniel Freudman, Lawyer
Category: Canada Law
Satisfied Customers: 783
Experience: Lawyer
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