Generally, and as defined by Black’s Law Dictionary, negligence is “the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do…it must be determined in all cases by reference to the situation and knowledge of the parties and all the attendant circumstances.1 In other words, negligence occurs when a party must act, perform, or conduct itself in a specific way and it fails, neglects, or otherwise refuses to do so.

In civil and construction law, particularly when concerned with a contractor’s negligence, the following situation would be used to determine whether said negligence has arisen:

1) Did the contractor owe a duty of care to the owner, meaning did that contractor have an obligation to perform its work in accordance with generally accepted industry standards, design drawings, the law, and/or the Ontario Building Code?
 
2) If the answer to (1) is yes, did the contractor breach that duty of care by failing, neglecting, or otherwise refusing to act reasonably and, further, to have their failure result in deficiencies? 

If it can be demonstrated that a contractor had a duty of care, and subsequently that contractor breached its duty, then construction law would dictate that that contractor (generally) acted negligently to an owner and the owner would be entitled to its damages.

Types of Negligence

Typically, and as alluded in the above section, to show that a contractor acted negligently, an owner must demonstrate exactly the type of negligent conduct that occurred. The following is a short list of the common types and examples of negligent conduct by the contractors that affects owners:

• Improper, defective, deficient, and/or not-workman-like installation of materials;

• Improper use of equipment (potentially resulting in damage to that equipment);

• Failure, neglect, and/or refusal to complete the scope of contractual obligations (such as supply of labour, material, and/or equipment);

• Failure, neglect, and/or refusal to mobilize a sufficient work-force to carry out its contractual obligations;

• Delays resulting from the conduct of the contractor; and

• Failure, neglect, and/or refusal to abide by applicable laws, regulations, and industry specifications and standards.

Who is Liable for a Contractor’s Negligence?

As is with all legal questions, the most straightforward answer is—it depends. 

Before any liability may be assigned, construction law demands that 1) advises the contractor of the existence of deficiencies and that 2) the contractor is given a reasonable opportunity to correct those deficiencies.2 This opportunity to rectify the deficiencies is necessary as it entails the owner’s obligation to mitigate (or reduce) the amount of its damages. If the owner provides this reasonable opportunity and the contractor nevertheless fails, refuses, or otherwise neglects to correct its negligence, then (subject to the specific circumstances) the contractor will most likely be liable to the owner for those damages, to the extent that those damages are provable.

It is also possible that a contractor will attempt to deflect its liability onto another party. For example, a contractor may claim that its work was only deficient as a result of someone else’s negligence—such as an architect, engineer, or subcontractor. Where a contractor constructed a building, while relying on the specifications and drawings of an engineer whose drawings contained errors and mistakes, that contractor would be entitled to full or partial indemnification by the engineer. Similarly, if the contractor hires a subcontractor to perform a portion of the contractor’s work, and that subcontractor does so negligently, the contractor may be able to bring a Third Party claim as against the subcontractor to apportion and reduce its liability. 

Especially in the Greater Toronto Area, and namely Vaughan—where construction is booming and the City is growing, it is important for owners, contractors, and other parties involved on projects to consult their lawyers as to who may be liable in the event of a negligence dispute.
 
The foregoing is for informational purposes only and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of Sutherland Law's Construction Lawyers by email or telephone.

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1 Black’s Law Dictionary, online (November 2019), sub verbo “negligence”.
2 Turano’s Home Improvement Inc. v. Stern, 2018 ONSC 201 at para. 63.