Dennis v. Sears Canada

Dennis v. Sears Canada

The installation was left in a state that appeared sufficiently complete to permit use and no explicit warning was given; therefore Sears/Windjammer breached the contract by failing to complete the installation and failed to warn the Claimant. The Claimant did not cause the loss by failing to protect the window because there was no notice that protection was required. Damages are the cost of remedial replacement ($4,859.00) plus allowable costs ($179.35); Windjammer must indemnify Sears for the amount Sears pays the Claimant.

Citation
2011 NSSM 8
Parties
Claimant: Patricia Ellen Dennis; Defendant and Third Party Claimant: Sears Canada; Third Party Defendant: Windjammer 2000 Manufacturing Limited
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
7 February 2011
Procedural Posture
Small Claims Breach of Contract and Third Party Indemnity Claim / Final Decision (judgment)
Outcome
Judgment for the Claimant against Sears Canada; Sears entitled to indemnity from Windjammer 2000 Manufacturing Limited.
Legal Topics
Breach of Contract, Installation Defects, Mitigation of Damages, Indemnity Between Contractor and Subcontractor, Assessment of Damages, Costs Limitation (no Lawyer Fees)
Source Language
English
Contract Property Damage Subcontractor Indemnity Small Claims Procedure Breach of Contract Installation Defects Mitigation of Damages Indemnity Between Contractor and Subcontractor +2 more

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Parties

Patricia Ellen Dennis

Claimant

Sears Canada

Defendant and Third Party Claimant

Windjammer 2000 Manufacturing Limited

Third Party Defendant

Procedural Posture

Small Claims Breach of Contract and Third Party Indemnity Claim / Final Decision (judgment)

Legal Issues

  1. 1 Whether Sears and/or Windjammer breached the installation contract resulting in water damage
  2. 2 Whether the Claimant's conduct (failure to protect unfinished window) was the proximate cause of the damage
  3. 3 Whether Windjammer must indemnify Sears for amounts awarded to the Claimant

Ratio Decidendi

The installation was left in a state that appeared sufficiently complete to permit use and no explicit warning was given; therefore Sears/Windjammer breached the contract by failing to complete the installation and failed to warn the Claimant. The Claimant did not cause the loss by failing to protect the window because there was no notice that protection was required. Damages are the cost of remedial replacement ($4,859.00) plus allowable costs ($179.35); Windjammer must indemnify Sears for the amount Sears pays the Claimant.

Court Disposition

Judgment for the Claimant against Sears Canada; Sears entitled to indemnity from Windjammer 2000 Manufacturing Limited.

Orders

  • Judgment against Sears Canada in favour of Patricia Ellen Dennis in the amount of $5,038.35 (repairs $4,859.00 plus costs $179.35).
  • Windjammer 2000 Manufacturing Limited ordered to indemnify Sears Canada for $5,217.70.