As the warm weather approaches, many people begin to consider summer construction projects around their home and property. Whether you are undertaking a renovation on your own or hiring someone to do it, the recent surge of building material prices means that many home projects can carry substantial price tags. This, among other things, is an important reason to ensure that when you source out work, you have a sound contract in place outlining each party’s expectations and obligations, to mitigate the added cost of litigation.

In a recent decision from the Alberta Court of Justice, a contracting company sought to collect over $17,000 from a customer who contested the fact that there was a verbal contract in place between the parties in relation to deck construction. The customer argued that even if a contract existed, she should be entitled to collect $3,000 in damages due to construction-related issues. In this case, the Court was asked to determine whether a binding verbal contract was entered into by the parties and if so, was it breached or negligently performed.

Plaintiff Provides Defendant With Quote for Deck Removal and Construction

The matter of Dusty Deeds Done Dirt Cheap Inc. v Ost began in April 2023, when the defendant customer (the “defendant”) asked the plaintiff construction company (the “plaintiff”) to provide a quote to remove an existing deck from her property and construct a new two-tiered deck. The parties acknowledged that they engaged in a discussion with each other as well as another contractor. During the meeting, they had discussed the sizes of each portion of the deck and addressed how high the lower portion of the deck should be. The defendant stated she wanted it to be 12-14 inches off the ground, while the plaintiff argued that the defendant agreed with their recommendation to place the bottom tier two full steps from the ground. The parties also disagreed on where the stairs would be placed between tiers.


A quote was provided to the defendant which very generally outlined that the plaintiff would “build a deck “as discussed” with engineered screw piles, treated wood decking, labour, stairs and stringers and railings for the price of $16,062.00 plus the GST.” The defendant accepted this price although no written contract followed the quote.

Additional Costs Incurred by Defendant After Construction Starts

After the design meeting and the defendant’s acceptance of the quote, the plaintiff removed the existing deck and instructed a sub-contractor to attend and install the screw piles such that they came out of the ground as low in height as possible. The subcontractor suggested they be placed higher than originally planned in order to ensure there was no issue with frost. The parties agreed to follow this recommendation while keeping the lower tier as low as possible. The plaintiff claimed that, at this time, the defendant agreed that there would be three steps to reach the lower tier. The plaintiff also claimed that the defendant agreed to pay $700 for the extra material needed to follow that direction.

After the construction of the lower deck was completed, another subcontractor was brought on to install the railing, which was required when a deck is over 24 inches off the ground. The subcontractor said that he went around the deck with the defendant and explained the process, including confirmation of where the gate would be placed to allow entry onto the deck. The plaintiff and the subcontractor stated that the defendant made no mention of not being satisfied with the design plan or the work completed up to that point. They also said the defendant requested a different access door for the deck, which would cost an additional $50.


Defendant Dissatisfied With Completed Work After Receiving Final Invoice

When the deck was complete, the plaintiff issued an invoice to the defendant, totalling $17,072. This amount included $700 for the additional screw piles and $50 for the access door. It was at this point that the defendant claimed she was not happy with the height of the lower deck or the location of the stairs. She also said she was not happy with the quality of the materials that were used. Further, she was dissatisfied that there was no spacing between the deck boards, although the plaintiff noted this is common practice because the boards shrink over time and space eventually appears.

The defendant argued that there was not a sufficient meeting of the minds to form a binding contract between the parties and the essential terms of the deck design were left either uncertain or unexplained to a point where a legal contract could not have been formed. The plaintiff, on the other hand, stated that the primary terms of the agreement were sufficiently clear to constitute a binding verbal contract.

Contracts Require Certainty of Parties, Subject Matter and Price

The Court recognized that there was no written contract between the parties, and that while a written contract would have been preferred, a verbal contract can be inferred from the words and the conduct of the parties. The Court then explained the test to establish a verbal contract, noting that:

“The three hallmarks of a contract are certainty of parties, subject matter, and price. The person seeking to enforce the verbal contract has the onus of proving, on a balance of probabilities, the essential terms of the contract with a reasonable degree of certainty.” 

Each of the parties provided the court with their accounts of the negotiations, with the defendant being adamant that the deck was to be built at ground level, in part because it was her plan to be able to take a wheelbarrow across it, which is something she could not do with a deck three steps high. However, the defendant acknowledged that she had agreed to an additional step due to the piling height increasing.

Court Concludes Defendant Agreed to the Work Despite Some Ambiguities

After hearing the evidence, the Court found the parties had agreed to a basic design and price for the deck and that, while there was some ambiguity as to the location of the stairs and a misunderstanding about height, the defendant had agreed to the work. However, the Court also determined that there were many boards that had split and needed to be replaced. While the deck was structurally sound, the quality of the work was poor and had led to water pooling.

Accordingly, the Court found that it would cost approximately $3,000 to remedy the construction issues and ordered the defendant to pay $16,865, less $3,000 representing the cost of repairs.

Let the Litigation Lawyers at DBH Law in Calgary Help You Resolve Your Construction or Contract Dispute

The skilled team of Calgary construction litigation lawyers at DBH Law have the experience and technical knowledge to provide you with the legal advice needed in the modern construction industry. Whether you have questions about a contract breach or unsure of your rights and obligations under a particular contract, contact us online or by phone at 403.252.9937 to speak with a member of our team regarding your construction matter.