Doe et al. v. Canadian Surety Co.

Doe et al. v. Canadian Surety Co.

Majority: Contractor’s liability is confined to the Sept. 28 undertaking and the contractual reservation in Article 16; plaintiffs failed to prove that directions under the undertaking were given and disobeyed and failed to prove that faulty materials or workmanship “appeared” within one year and to quantify damages under the correct measure; plaintiffs’ unilateral acts (anticipatory payments, paying subcontractors, obtaining a different undertaking) and non‑disclosure released the surety under established authorities on alteration of risk and lack of consent by the surety, so action against surety dismissed.

Citation
[1937] SCR 1
Parties
Plaintiffs/appellants: The Reverend E.G. Doe (Trustee) and the Roman Catholic Episcopal Corporation of the Diocese of London, Ontario; Contractor/defendant/appellant: B. Blonde; Defendant/respondent (surety): The Canadian Surety Company
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
27 November 1936
Procedural Posture
Building Contract; Action for Damages; Surety Bond / Appeal to Supreme Court of Canada From Court of Appeal for Ontario; Final Judgment on Appeals
Outcome
Majority dismissed plaintiffs’ appeal against the surety and allowed contractor Blonde’s appeal; judgment against Blonde set aside with liberty for plaintiffs to retry issues arising under Article 16; action against The Canadian Surety Company dismissed and judgment of Court of Appeal in its favour affirmed.
Legal Topics
Interpretation of Contract Terms, Architect’s Supervisory Duties, Appearance of Defects Clause (one‑year Limitation), Alteration of Contract and Surety Discharge, Non‑disclosure to Surety, Measure of Damages for Construction Defects
Source Language
English
Contract Law Suretyship Construction Law Civil Procedure Damages Interpretation of Contract Terms Architect’s Supervisory Duties Appearance of Defects Clause (one‑year Limitation) +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 9 Party arguments 2 Amounts and remedies 6
Sign in to unlock

Parties

The Reverend E.G. Doe (Trustee) and the Roman Catholic Episcopal Corporation of the Diocese of London, Ontario

Plaintiffs/appellants

B. Blonde

Contractor/defendant/appellant

The Canadian Surety Company

Defendant/respondent (surety)

Procedural Posture

Building Contract; Action for Damages; Surety Bond / Appeal to Supreme Court of Canada From Court of Appeal for Ontario; Final Judgment on Appeals

Legal Issues

  1. 1 Whether contractor liable after final certificate and full payment given the September 28 undertaking and Article 16 reservation
  2. 2 Scope and effect of the contractor’s September 28, 1931 undertaking
  3. 3 Whether alleged faulty materials or workmanship “appeared” within one year under Article 16

Ratio Decidendi

Majority: Contractor’s liability is confined to the Sept. 28 undertaking and the contractual reservation in Article 16; plaintiffs failed to prove that directions under the undertaking were given and disobeyed and failed to prove that faulty materials or workmanship “appeared” within one year and to quantify damages under the correct measure; plaintiffs’ unilateral acts (anticipatory payments, paying subcontractors, obtaining a different undertaking) and non‑disclosure released the surety under established authorities on alteration of risk and lack of consent by the surety, so action against surety dismissed.

Court Disposition

Majority dismissed plaintiffs’ appeal against the surety and allowed contractor Blonde’s appeal; judgment against Blonde set aside with liberty for plaintiffs to retry issues arising under Article 16; action against The Canadian Surety Company dismissed and judgment of Court of Appeal in its favour affirmed.

Orders

  • Judgment against contractor Blonde set aside; appeal by contractor allowed
  • Liberty granted to plaintiffs to proceed to a new trial limited to the issues arising out of Article 16