Slimmon v. Precision Fitting Ltd., 2012 ABQB 771, a Queen's Bench appeal from a Provincial Court decision, is an interesting case. It confirms what many lawyers might have expected – an "utter and substantial" breach is not a separate or unique category of breach of contract.
The case involved a couple, the Slimmons, who had hired Precision Fitting Ltd. to build a retaining wall. The work exceeded the initial quote given and the Slimmons were dissatisfied with the quality of work done by Precision. Indeed, the trial judge described the work as follows: "in 12 years I've been sitting on this bench, this is one of the worst jobs I've ever had the privilege of watching be completed." Given the volume of similar cases this Provincial Court Judge must have seen in his career, this is quite a statement.
The Slimmons refused to pay the remainder of the bill, and Precision sued. The Slimmons counterclaimed for the cost to repair the retaining wall.
Interestingly, the Trial Judge described Precision's work as an "utter breach of contract" and "a substantial breach of contract." As much as I understand those terms in a factual sense, I'm not sure I understood what he meant in a legal sense. It sounds like a fundamental breach of contract, however, the Trial Judge went on to award damages to Precision for its unpaid invoices. If there's a fundamental breach of contract, there is no contract upon which Precision could successfully sue the Slimmons. I presume, based on the poor quality of work that there could be no claim for unjust enrichment. It would seem, then, that utter and substantial breach of contract would be another, different degree of breach of contract that still leaves the contract enforceable!
To my great relief, on appeal, Madam Justice Bensler held that "utter" and "substantial" breach of contract is the same as fundamental breach of contract, and therefore allowed the Slimmons' appeal on Prestigious' claim.
Damages in Small Claims - Section 36 of the Provincial Court Act
Also of interest, at trial the Slimmons provided an estimate of the cost to repair the retaining wall, provided by a third party. They did not, unfortunately, offer the author of the estimate as a witness. The Trial Judge admitted the estimate, but gave it no weight because it was hearsay. Without evidence of quantum of damages, despite the judicial finding of "utter" and "substantial" breach of contract, and the Trial Judge's comments with respect to the horrible quality of work, Prestigious successfully claimed non-suit against the Slimmons' counterclaim. The Trial Judge's decision to dismiss the Slimmons' counterclaim was upheld on appeal. Without the author available to testify as to his opinion, the estimate was not reliable, and the Slimmons did not demonstrate the necessity of admitting the estimate without a witness.
Perhaps because of section 36 of The Provincial Court Act, which relaxes the law of evidence at Provincial Court small claims, there is sometimes confusion as to what evidence might be admissible. This decision should serve as a warning to plaintiffs to put their best foot forward in proving their damages at Provincial Court.
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