Q. I paid a roof contractor $10,000 to do work to my roof. It was supposed to be under a 10 year warranty. Last year it began leaking. Now he is refusing to honour the guarantee and will not return my calls. Help!
Unfortunately, failing to honour warranties is a common dispute in Small Claims Court.
I would need to understand the roofer’s position, but I assume in this case he has not provided that to you, instead simply refusing to do the work.
I also assume that there was an initial contract where the warranty is explained or at least stated. If not, then it becomes a matter of your word against his, and while it is not impossible to win in Small Claims Court in such a situation, it makes it much more difficult.
Presuming there was a contract, have a look and check if the issue you are claiming is definitely something that is supposed to be covered by the warranty. Sometimes, there are various exclusionary clauses in the back of the contract or on fine print which you may not have noticed when signing the contract. As unfair as it is, if the roofing contractor excluded warranty on the issues you are complaining of, then chances are he could successfully defend against your claim. (Note, there are arguments such that you did not understand what you were signing, etc. but these claims are rarely successful in Small Claims Court. A full discussion of this is beyond the scope of this article.)
If there is no such wording, but the contract does state a blanket 10 year warranty for all work performed, then you’re in business. You should then work to gather evidence for your case. Evidence in this case means the documents you need to prove your claim.
You should obtain at least 1 quote, though ideally 2 or 3, from another roofer to see what the cost to fix the roof would be. Ideally, you should ask the roofer to state in his quote precisely what the problems are with the current roof. Not every roofer, however, will be willing to do that, particularly if he knows you need this for litigation which he would rather avoid.
You should also take photographs of the problem areas of the roof. Again, if the roofer is already giving you a quote, from a sheer practical standpoint it makes sense to ask him to take the pictures, but if you feel able or safe enough, it is likely better for you to do it so that you can give first hand testimony in court as to what you saw.
You should also document how the roof leaking has caused you damages in other ways. For instance, has water leaked onto your couch or other household items? If so, you can claim for damages in this respect. Again, you should document this by taking photographs and determining precisely how much damages you have suffered in terms of monetary amounts. If you have to move out of your home while the roof is being fixed, then your cost of dwelling elsewhere is something you can claim as well. Ensure to keep all receipts as evidence for your claim.
Once you have all the necessary evidence, you should meet with a legal professional to discuss the prospects of going to Small Claims Court. I always recommend using a professional rather than doing things yourself because of the complexity of a lawsuit. Remember, you can seek reimbursement of legal fees and expenses.
Note, there is a limitation period to sue. Generally, the limitation period is Ontario is 2 years from discovery of the claim. So if you find it is taking too long to get the evidence together and the 2 year period may pass, but you know 100% you will get it shortly after the 2 year period, issue your claim with the Small Claims Court prior to the 2 year period and then serve the evidence to the Defendant and file it with the court as soon as you can obtain it. You have 30 days prior to trial to serve and file your evidence unless ordered sooner by a judge at the settlement conference.
Remember, anything can happen in court but by taking the necessary steps to do things correctly, you are putting yourself in that much better of a position to win.
Small Talk™ is a syndicated column representing questions submitted to Jordan Farkas at www.MrSmallClaimsCourt.ca. Small Talk™ pertains to the Ontario small claims court only. The answers are for general guidance and are not to be construed as legal advice. We recommend contacting a legal professional for specific legal advice.
Jordan Farkas is an expert small claims court lawyer and legal solutions consultant. Mr. Farkas is founder of www.MrSmallClaimsCourt.ca.
©Jordan Farkas 2011 all rights reserved.
