Judge erred by implying and then enforcing term of contract

IMPLIED TERMS

Judge erred by implying and then enforcing term of contract

Appeal from order dismissing action to collect amount outstanding under renovation contract. Respondent homeowners retained appellant to design and oversee home renovations. Appellant agreed in writing to purchase supplies and obtain services of subcontractors to carry out work, and specifically did not warrant products or work. Appellant incurred expenses of $32,077 and charged $7,635 for professional services. Respondents paid $16,985 prior to completion of work then refused to pay anything further claiming dissatisfaction with various aspects of work. Appellant filed lien and commenced action to collect outstanding $22,727. Respondents counterclaimed, seeking $50,000 for repairs and $15,000 for punitive damages. Trial judge found appellant breached contract by failing to provide existing warranties and information that would have allowed respondents to pursue remedies directly against suppliers and sub-contractors in timely fashion. Judge found claims offset each other and neither party entitled to any amount. Appeal allowed. Trial judge erred by failing to enforce terms of contract, specifically term excluding any warranty for products or work. Judge also erred by implying and then enforcing term requiring appellant to provide existing warranties and information. Term not part of contract and not pleaded. Judge also erred by finding respondents entitled to claim breach of warranty for products or work not paid for. Appeal should be allowed and judgment below set aside. Making order that should have been made, appellant entitled to judgment for $22,727 plus interest and counterclaim dismissed.
Zimon v. Turnbull (Dec. 19, 2012, Ont. S.C.J. (Div. Ct.), Swinton, Matlow and Aston JJ., File No. DC-10-241) 223 A.C.W.S. (3d) 953.