It should not come as a surprise to anyone that the terms of a
contract matter. Courts, however, are sometimes inclined to base
the obligations of contracting parties on what the court perceives
to be "reasonable" or "fair" rather than on
what the terms of the contract actually say. But a recent decision
of the Divisional Court confirms that a party should not be held to
account for obligations it did not accept, especially where such
obligations conflict with what the parties have expressly agreed to
In Zimon v Turnbull, a homeowner hired an interior designer and
project manager to design and oversee renovations to her home. The
parties put their contract in writing. In the written contract, the
parties agreed that no warranty would be provided against defects
in products and workmanship supplied by contractors to the
The homeowner, Turnbull, refused to pay Zimon the $20,000
balance owing at the end of the $40,000 renovation. She was
dissatisfied with some of the work and complained that the door of
a custom-built armoire did not close properly and that one of the
contractors had damaged certain carpet.
Zimon sued for the balance owed. Turnbull counterclaimed for the
cost of the repairs.
The decision at trial
The trial judge dismissed both the claim and the counterclaim.
She acknowledged that both parties agreed that Zimon did not
warrant the supplied products or contractors' work. However,
the trial judge implied a term into the contract requiring Zimon to
provide warranties and information about the contractors to
Turnbull. She held that Zimon breached the contract when he failed
to provide this information, which would have enabled Turnbull to
seek remedies under contracts made directly with the
The trial judge rationalized her decision as follows:
An appropriate result in this
proceeding, in my view, is that the plaintiff receive no further
money and that the defendants not be compensated in damages. I find
that neither party has necessarily behaved in a reasonable
The decision on appeal
The Divisional Court set aside the trial decision.
A unanimous Court held that it was an error in law to imply a
term into the contract requiring Zimon to provide information about
the contractors to Turnbull in face of clear language in the
written agreement indicating that Zimon was not providing any
warranty himself. Zimon was therefore entitled to be paid.
Zimon was awarded judgment for the unpaid balance of $20,000
plus pre- and post-judgment interest.
Contractual relationships are governed by the terms of the
This case serves as a reminder that the terms of a contract
cannot be ignored. Along with the freedom parties have to govern
their relationship by the terms of a contract should come some
certainty that a court will enforce those terms. The result in
Zimon v Turnbull bolsters that certainty. Courts are unlikely to
weigh into a contract's perceived substantive fairness except
in special cases, none of which appear to have been present
1 Zimon v Turnbull, 2012 ONSC 6650.
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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