T-1680-77
Alftar Construction Inc. (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Dubé J.—Montreal, December 11,
1979; Ottawa, March 18, 1980.
Crown — Contracts — Plaintiff claiming an amount for
additional costs and loss of time from the performance by it of
a public works contract — Ambiguity of contract with respect
to work on ceiling interpreted in plaintiffs favour but unfair
and unproved accounts disallowed — Plaintiffs claim for
additional costs of conduits for the telephone system that were
not shown on the plans was dismissed as it was industry
practice not to show such detail except in specifications —
Claim for time lost and loss of earnings dismissed because
they were neither established nor the financial responsibility of
the owners — Interest allowed on the $5,000 awarded the
plaintiff pursuant to formula provided in the contract —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 35.
ACTION.
COUNSEL:
R. Talbot for plaintiff.
J. Ouellet, Q.C. for defendant.
SOLICITORS:
Mercure & Côté, Laval, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following is the English version of the
reasons for judgment rendered by
Dust J.: Plaintiff ("Alftar") is claiming from
the Department of Public Works the total amount
of $43,237.09 in additional costs and loss of time
resulting from the performance by it of a public
works contract, for work to be done on a Canada
Manpower Centre inside a federal building in
Chicoutimi, Quebec.
The contract, with plans and specifications, was
concluded on August 30, 1976, in the amount of
$100,690.
The claims based on additional work relate to
two different heads: unforeseen demolition of the
existing ceiling ($34,306.93) and installation of
unforeseen telephone conduits ($4,851.33).
1. Demolition of the existing ceiling
Alftar alleged that neither the plans nor the
specifications contained any specific and special
provision that the work to be done included demo
lition of the existing ceiling. Defendant admitted
that the demolition was not indicated in the plans
and specifications, but maintained that the necessi
ty for such a demolition was obvious since the
contract provided for a new ceiling 8'S" from the
floor, while the elevation of the old ceiling was
between 8'6" and 8'7 1 / 4 ".
Plaintiff maintained that it expected to suspend
the new ceiling from the old; according to the
expert witness for plaintiff, this was a plausible
and practical solution, while the architect for the
Department, who drew up the plans and specifica
tions himself, considered that such a solution could
not be used in this location.
The ceiling in question was 10,000 sq. ft. of
plaster, weighing some sixty tons. The ceiling
included various trapdoors, and there was a space
of 15" between the ceiling and the beams, allowing
for the installation of air intakes and electrical
conduits. According to the president of Alftar and
the engineer called as an expert witness, this space
was more than sufficient to allow the new ceiling
of acoustical tiles to be attached. It was admitted
that such a working method is currently used when
space permits.
The list of the work to be done is found in clause
1.2.301 of the specifications and contains twenty-
one different items. It includes demolition of the
existing partitions, but not demolition of the ceil
ing in question. In clause 2.1.301, titled [TRANS-
LATION] "Extent of the Work" there is a reference
to [TRANSLATION] "complete demolition of the
interior partitions" and also to the demolition of
[TRANSLATION] "all wires, intakes, plumbing and
electrical and ventilation equipment not required
in the new plan". There is no specific reference to
the ceiling.
The specifications in question were general
specifications used as a basis for similar renova
tions inside various federal buildings. According to
the engineer called by the Department, for there to
have been a precise provision requiring demolition
of the ceiling with reference to the Chicoutimi
building, a complete survey of the building would
have been necessary. In his view, the size of the
contract did not justify such an undertaking.
In my opinion, a specific provision would have
avoided any ambiguity and alerted the contractor.
In some buildings the existing ceilings must be
retained while in others they have to be demol
ished: persons preparing specifications cannot
assume that the general contractor will necessarily
draw the conclusions appropriate to his contract
without further clarification. Moreover, under the
Civil Code and at common law, in the event of an
ambiguity the contract is generally interpreted
against the person making the stipulation and in
favour of the one undertaking the obligation.
In all justice and equity, therefore, Alftar must
be compensated for this unforeseen work, which
was indeed performed under protest. However, I
find the claim of $34,306.93 to be at the very least
exorbitant. The list of costs included in plaintiff's
statement of claim contains items which are mani
festly unacceptable, such as [TRANSLATION] "air
travel, $2,069.70", "restaurant and hotel expenses,
$1,478.05". The other amounts claimed for
[TRANSLATION] "labour and fringe benefits",
"repairs to plaster", and so on, were not proved to
have been expenses incurred for demolition of the
ceiling in question.
I find to be much more realistic the very impar
tial expert opinion of the firm J. Euclide Perron
Ltée of Chicoutimi, as presented by the engineer
Georges H. Perron of that city. This local engineer
benefits from more than twenty-five years of
experience in similar work. At the time in ques
tion, he would have accepted the demolition con
tract for the ceiling at 25¢ a square foot, that is
exactly $2,891 for an area of 11,564 feet.
However, the Court must take into consider
ation that Perron would have been bidding in ideal
circumstances. Plaintiff, on the other hand, was
taken unawares and had to reorganize its resources
a considerable distance from its base of operations
in Montreal. Allowance must also be made for the
fact that, under the agreement, the entire premises
was not released when the contract began. Alftar
had to work with great care. In the circumstances,
I think it would be reasonable to allow plaintiff a
more generous sum for demolition of the ceiling,
namely the arbitrary amount of $5,000.
Judgment will therefore be given for plaintiff in
the amount of $5,000.
2. Additional costs for unforeseen telephone
conduits
The problem relating to this claim concerns the
interpretation of the first paragraph of clause
16.2.22 of the specifications, which reads as
follows:
[TRANSLATION] 16.2.22 System of non-loaded conduits for
telephones
This section includes the supplying and installation of a
system of non-loaded conduits, pull boxes, junction boxes,
output terminals and everything required for the installation of
a telephone system, as indicated in the plans.
Under this heading, the subcontractor Grimard
Electrique Inc. submitted to Alftar a bill for
$2,875 for the addition of a two-inch telephone
conduit. Alftar maintained that no provision was
made for such a conduit in the clause cited above
or in the plans. The electrical engineer Alban
Normand, whose firm participated in preparing
the plans and specifications for the Department,
explained to the Court why it is not necessary to
draw the conduits on the plan. They only need to
be indicated in the specifications.
The first paragraph of the clause of the specifi
cations cited above does stipulate that the contrac
tor shall provide and instal a network of non-load
ed conduits, and so on, and everything necessary
for the installation of a telephone system. Alftar
alleged that the phrase [TRANSLATION] "as
indicated in the plans" does not apply only to the
[TRANSLATION] "telephone system" but to the
entire paragraph, and that therefore the conduits
should have been indicated on the plans.
The telephone system indicated on the plans
showed an equipment room and thirty-nine local
ized telephone terminals on the floor.
The expert witness for the Department stated
that it was not necessary to show conduits on the
electricity plans, as the latter were subject to very
specific requirements by telephone companies, and
any qualified contractor would be familiar with
these requirements. The specifications called for a
complete telephone system with conduits, boxes
and so on. The plans indicated the extent of the
system and the location of terminals, without
necessarily showing all components of the system.
The expert witness considered that it was not
necessary to indicate conduits on the plans, just as
all the screws, nuts, bolts and metal parts are not
indicated.
This expert opinion by the engineer Alban Nor-
mand seemed to be clear, precise and accurate.
The plans and specifications cannot spell out
everything to the smallest detail. After all, indus
try practice and the competence of the contractor
are also involved.
In the case at bar, it would appear that the
electrical subcontractor made an error in its bid. It
misinterpreted the plans and specifications and
accordingly submitted an additional claim to
Alftar, which incorporated this into its claim
against the Department.
This claim cannot be allowed.
3. Claim for time lost and loss of earnings
An agreement was concluded on July 12, 1976
regarding release of the premises, as reproduced in
this letter.
[TRANSLATION] Further to our visit to the office with Mr.
R. Girard on the aforementioned project, it is agreed that the
premises will be released entirely in the first week of August
1976, except for documentation and the conference room,
which will not be released until September 1: the whole condi
tional on awarding of the contract on July 16, 1976; at no
charge to the Department, and only on the aforesaid terms.
Alftar maintained that this date was not
observed. Jean Houle, who was in charge of the
project for the Department, went to Chicoutimi on
August 10 to meet with the site foreman for
Alftar, Marcel Legros, with respect to release of
the premises. He returned on August 16, and at
that time only the two rooms mentioned above had
not been released. There was no direct evidence as
to the exact date of release of the principal area
between August 10 and 16, or as to the date of the
eventual release of the two rooms. Plaintiff did not
call its foreman Legros to establish these dates.
In addition, clause 2.1.303 of the specifications
provides for any financial claim with respect to
delay. The clause reads:
[TRANSLATION] 2.1.303 Delay
The demolition contractor may in no way hold the owner
financially liable for delays or impediments resulting from
whatever cause during the performance of any part or the
whole of the work.
However, if the delay was attributable to an act or omission
of any kind on the part of the owner, the latter shall allow the
contractor sufficient time for completion of the work to offset
the delay, but shall in no way be financially liable for delays
which may be caused by his own fault. Any delay in this sense
shall be determined by the engineer, who shall be responsible
for supervising the work.
This claim is accordingly dismissed.
Plaintiff is further claiming interest from the
date of the work. According to the provisions of
section 35 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, the Court only awards interest
on an action against the Crown if there is a
contract or statute providing for interest in such a
case. Alftar submitted its claim for interest in
accordance with clause 6 of the heading regarding
methods of payment contained in the contractual
document. The clause reads as follows:
[TRANSLATION] 6. Delay in payment
A delay by Her Majesty in making a payment when it
becomes due and payable under the methods of payment shall
be deemed not to be a breach of contract by Her Majesty, but
such a delay, if the payment in question is due under paragraph
(4) of clause 4 of the methods of payment, and if the delay is in
excess of fifteen days, shall entitle the contractor to interest on
the amount in arrears, and when Her Majesty pays the amount
in arrears she shall pay the contractor interest on the said
amount, calculated for the period of the said delay at the rate
of 1 1 / 2 % plus the rate of bids accepted for three-month Treasury
bills of the government of Canada, in accordance with the
announcement made each week by the Bank of Canada on
behalf of the Minister of Finance, the said average rate to be
that which is announced immediately before the date when
payment was first due to the contractor.
Alftar must therefore be awarded interest on the
amount of $5,000 calculated in accordance with
the foregoing formula.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.