The Delano (Vancouver): The rain fell and the wind blew; lowest bidder did not tarp properly during construction by Polygon


L&S Stucco v. Polygon




2000 BCSC 304



Registry: Vancouver












Counsel for Plaintiff

P. Selinger

Counsel for Defendant

B. Ingram

Date and Place of Hearing/Trial:



July 20, 21, 22, 26 & 27, 1999


Vancouver, BC


[1] The Plaintiff has requested Reasons for Judgment for the decision I have delivered in this matter, the decision being that the action is dismissed with costs.

[2] On or about December 10, 1995, the Plaintiff, L & S Stucco Ltd., entered into a Contract with Polygon Construction Ltd., the agent of the Owner/Defendant, now called Polygon Delano Development Limited, to supply all labour, materials, supervision and equipment, including scaffolding, for a complete stucco installation for 122 condominium units, then being constructed on West 4th Avenue in Vancouver. The Plaintiff was required to stucco three buildings, A, B and C, and the Contract price was $374,565.00. The work commenced in late January, 1996 and was completed in June, 1996.


[3] On August 27, 1996, the Plaintiff commenced a Builders’ Lien action against the Defendant in the amount of $173,092.23, for work done and materials supplied pursuant to the Contract dated December 10, 1995. Approximately three years later, on June 2, 1999, an Amended Statement of Claim was filed, which changed the action to one for Contractual Extras, and for damages for negligent or fraudulent misrepresentation. By then the claim was reduced to $133,147.17. The claims put forward then are described in the following paragraphs of the Amended Statement of Claim:

7. During the term of the Contract, the Defendant requested and the Plaintiff agreed to provide additional labour and material resources to address delays caused by unfavourable weather conditions and site problems beyond the control of the Plaintiff. The Defendant agreed to pay the costs of the additional expenses incurred by the Plaintiff as a result of providing the additional resources (the "Extras").

8. The agreement by the Defendant to pay to the Plaintiff the costs of the Extras was a term of the Contract or, alternatively, represented a collateral Contract between the parties (the "Collateral Contract").

9. The Plaintiff has issued invoices to the Defendant for the Extras in the aggregate amount of $133,147.17.


 12. In the alternative, the Defendant, through its agent, negligently misrepresented to the Plaintiff its intention to pay for the Extras.

13. In the further alternative, the Defendant fraudulently misrepresented to the Plaintiff its intention to pay for the Extras.

[4] I observe that it is of some significance that the claims advanced then were confined to extra work and materials supplied during the term of the Contract, as a result of delay due to bad weather and site problems beyond the Plaintiff’s control, and which it is alleged the Defendant agreed to pay; that the agreement to pay was either a term of the Contract, or represented a collateral Contract. It will be seen that in my opinion the Plaintiff is not entitled to recover these monies as an extra to the Contract, and that the convincing evidence required to establish a collateral Contract was never forthcoming. In fact, a collateral Contract was not argued by Counsel for the Plaintiff.

[5] Further, the claims with respect to negligent or fraudulent misrepresentation, are related to the Defendant’s intention to pay for the Extras claimed. Finally, and even of more significance, is the fact that the Amended Statement of Claim does not plead that the Contract between the parties was made partly oral, nor does it even refer to pre-tender agreements and representations which Mr. Kjosness says were made by the Defendant’s, Mr. Campbell, with regard to the work Schedule, the work sequencing, the time frame, the kind of scaffolding to be used, the necessity of hoarding and so on, and which seemingly now are fundamental to the claims being advanced by the Plaintiff.

[6] The Plaintiff’s claims now are for a declaration that it is entitled to a Builder’s Lien in the amount of $130,662.31, the formalities of which are not in dispute, and for damages in that amount for breach of the Contract. There is an alternative claim for damages for negligent misrepresentation. The claim for damages for fraudulent misrepresentation was withdrawn by the Plaintiff at the close of its case. The Plaintiff also seeks pre-Judgment interest and costs.