IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
Rumpel Construction Ltd. v. Western  
Canadian Construction Company Ltd.,  
2022 BCSC 980  
Date: 20220610  
Docket: S201310  
Registry: Victoria  
Between:  
And:  
Rumpel Construction Ltd.  
Plaintiff  
Western Canadian Construction Company Ltd.,  
WCPG Orono Lot 1 Ltd., and WCPG Orono Lot 2 Ltd.  
Defendants  
Before: The Honourable Justice B. D. MacKenzie  
Reasons for Judgment  
Counsel for the Plaintiff:  
Counsel for the Defendants:  
Place and Dates of Trial:  
J. M. Aiyadurai  
D. M. Kamachi  
Victoria, B.C.  
March 7 - 11, 2022  
Place and Date of Judgment:  
Victoria, B.C.  
June 10, 2022  
Rumpel Construction Ltd. v. Western Canadian Construction Company Ltd.  
Page 2  
Introduction  
[1]  
The plaintiff, Rumpel Construction Ltd. (Rumpel) is a framing contractor in  
Victoria, British Columbia, owned and operated by Brad Rumpel.  
[2]  
In 2018, Mr. Rumpel was approached by a representative of the defendant,  
Western Canadian Construction Company Ltd. (Western), about framing two towers  
as part of a condominium development in Langford, B.C. called “Orono Towers”  
(Orono). The parties had a positive and productive working relationship until a few  
days before the framing was set to begin, at which time Western informed Rumpel  
its services would no longer be required.  
[3]  
The other named defendants, WCPG Orono Lot 1 Ltd., and WCPG Orono  
Lot 2 Ltd. are numbered subsidiaries of Western that legally own the Orono project.  
[4]  
There is no significant dispute about the salient facts in this case. Instead, the  
parties disagree about the legal nature of their relationship. Rumpel says that it had  
a contract to frame the towers; that Western breached it; and that Rumpel should be  
entitled to damages as a result. Western says that no legally-binding agreement was  
ever reached, and that it was therefore free to choose another framing contractor  
whom they believed, at the time, would better suit their needs to frame the towers  
more quickly.  
[5]  
The end of the relationship came on the heels of many delays. What was  
initially slated as a project for 2018 ultimately began in the summer of 2019, and was  
completed, by a different framer, in mid-2020. Rumpel says that throughout these  
various delays it negotiated and re-negotiated its contract with Western in good faith  
in the face of the ever-lengthening timeframe, believing the two had a contract, and  
at the expense of Rumpel’s other business opportunities. Conversely, Western says  
the two were in a protracted, and ultimately failed negotiation, and points to the  
delays as proof that a consensus was never reached.  
[6]  
Ultimately, the only question is whether the two had a contract and if so, how  
damages should be assessed.  
Rumpel Construction Ltd. v. Western Canadian Construction Company Ltd.  
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Facts  
[7]  
The parties agree that sometime in March 2018, Blair Echlin, employed at  
that time by Western as the project manager of the Orono project, reached out to  
Mr. Rumpel about the possibility of Rumpel framing both towers, the two having  
worked together on prior projects. They had a brief discussion, and Mr. Rumpel said  
he would look at the proposed project.  
[8]  
On March 20, 2018, Mr. Echlin provided a “tender package” to Mr. Rumpel by  
email which contained detailed designs for the towers.  
[9]  
Following Mr. Rumpel’s feedback on the building design, an updated tender  
package was provided to Mr. Rumpel on April 13, 2018.  
[10] The updated tender package listed Mr. Echlin as the “tender authority” and  
contained “Bid Instructions” which stipulated the “format of tender”, along with a  
“closing date” and time of 4:30 pm on April 27, 2018.  
[11] The final page of the tender package contained the following under the  
heading “Awarding of Contracts & Contractor Qualification”:  
Award of trade and/or supplier contract will not be based on price  
alone. Awards will be based on all of the following:  
A pre-contract meeting will be held, initially with the lowest  
price bidder, to determine the contractor’s proven ability to  
perform the work, administrative sophistication, availability and  
quality of resources, ability to maintain schedule, and general  
understanding of the project.  
Supply and review of industry references, and review of similar  
project history.  
Owner’s Right of Refusal  
The Owner reserves the right to refuse any and all bids that it  
determines will not benefit the success of the project. Bids  
may be rejected, should the project be cancelled, sold or  
suspended for any reason.  
Insurance  
Insurance must be carried, and valid, per terms of the “CCA 1  
- 2008: Stipulated Price Subcontract.”  
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WorkSafeBC Standing  
The successful bidder must be found registered, and in good  
standing, with WorkSafeBC.  
Award Period  
All submitted bids, for this contract, must remain valid for a  
period of 60 days after the Closing Date.  
[12] The tender package also provided that a CCA 1 - 2008: Stipulated Price  
Subcontract will be used for this agreement”, under the heading “Form of Contract”.  
A schedule was included which provided that “Rough Framing” for Building B would  
commence December 14, 2018, and finish February 12, 2019; with Building A also  
beginning December 14, 2018 and finishing March 20, 2019.  
[13] That same day, on April 13, 2018, Mr. Rumpel emailed a “quote” with a price  
of $1,150,000 plus GST for “framing labour”, along with a list of what items the quote  
did and did not cover. The final lines stated that “All work would be completed in a  
timely manner, acting reasonably” and “Prior to acceptance of this quote, Rumpel  
Construction and the Contractor will discuss schedule.” The quote did not provide a  
deadline for acceptance. The quote was accompanied by an email which stated  
Rumpel could offer a $16,000 discount off this price if Western adopted a  
cost-savings measure which Rumpel had previously recommended.  
[14] On April 27, 2018, Mr. Echlin confirmed his receipt of the quote and instructed  
Mr. Rumpel to call him Monday or Tuesday “for results.” Mr. Rumpel testified that  
Mr. Echlin followed up as promised, but advised him that he was still presenting  
Rumpel’s bid to Western’s owners. Mr. Rumpel stated that a few days later,  
Mr. Echlin called him and stated that Western was “moving forward” with Rumpel as  
the framing contractor. Mr. Rumpel stated he took this to mean he had the contract,  
but the two discussed meeting at the site to “iron out a few things”, including the  
schedule, the scope of the job and the $16,000 discount. Mr. Echlin testified that he  
could not remember whether or not this discussion took place.  
[15] To that end, Mr. Rumpel testified he and Mr. Echlin met on site at the  
beginning of July 2018 and discussed how the project was progressing, the framing  
Rumpel Construction Ltd. v. Western Canadian Construction Company Ltd.  
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schedule, the use of framing subcontractors and how long the framing would take to  
complete, i.e. “the framing rate”. Mr. Rumpel testified that “Blair was really happy”  
with this “pace of work.” Mr. Rumpel stated the two men came up with a plan  
together, and Mr. Echlin “seemed happy” and “it was all really positive.”  
[16] Mr. Echlin also testified that the two men had a number of discussions on-site  
and by telephone about the progress and schedule but could not recall when these  
meetings took place or their precise content. However, the two never agreed on a  
finalschedule as the project was in flux.  
[17] On August 15, 2018, Mr. Echlin emailed Mr. Rumpel and other trades  
personnel further construction documents addressed to the “Langford Towers  
Team.” An attachment to the email listed Rumpel Construction under the heading  
“Trade Contractor/Supplier.”  
[18] On October 12, 2018, Mr. Echlin emailed Mr. Rumpel a “Letter of Intent.” The  
subject line of the letter was:  
Re: Rumpel Construction quote dated April 13, 2018 for Wood Framing at  
Langford Towers, 868 Orono Ave. (appended), and subsequent discussion…  
[19] The letter stated that:  
This letter is to advise you that it is the intent of Western Canadian  
Construction Company Ltd., to award the contract of “Wood Framing” at  
Langford Towers to your firm.  
This contract is conditional on the following;  
A CCA 1 - 2008 Stipulated Price Subcontract is executed prior to  
payment of the first progress claim.  
The contract value will be a lump sum amount of $1,150,000.00 +  
GST, less $16,000.00 + GST based on design team responses to  
WCCC RFI 003.  
The scope of work will be outlined in the Wood Framing tender  
package and Addendum #1 date April 13, 2018.  
A pre-contract meeting, between yourself and our project staff, is held  
to review and/or confirm the following;  
Schedule and resources,  
Scope of work and site logistics,  
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Your firms [sic] good standing with WorkSafeBC and safety  
requirements, insurance, contract administration,  
Bid amount and potential additional or deleted work, and  
costs,  
Schedule of Values; and, project document revisions.  
No major design changes are issued by the project design team, prior  
to start of work.  
[20] The letter also requested a number of documents be submitted to Mr. Echlin,  
and included the Rumpel quote as an attachment, along with the previously provided  
construction schedule showing a start date for framing of December 14, 2018. Mr.  
Rumpel said he regarded this “letter of intent” as “formally saying” he had the job,  
“even though I knew I had the job”, prior to Western’s formal acceptance of his  
quote.  
[21] On the other hand, Mr. Echlin testified that from his perspective the letter of  
intent did not necessarily mean a bid was accepted, instead stating “we [Western]  
normally approach the most likely candidate” and send them this letter.  
[22] Nevertheless, a few days later, on October 19, 2018, Western’s  
administrative assistant sent Mr. Rumpel a CCA 1 Wood Framing Contract and  
requested he review and sign the contract “as soon as possible”, along with a  
request for other documents mentioned in the letter of intent. Mr. Rumpel simply  
responded “Looks good” a few hours later. The administrative assistant followed up  
again on November 5 and 20, 2018, again requesting Mr. Rumpel return the signed  
CCA 1 contract.  
[23] Mr. Rumpel testified that shortly after he received the letter of intent he met  
with Mr. Echlin and the site superintendent. At this meeting the three men discussed  
various construction details, including that framing subcontractors were no longer  
required because delays in the project meant that Western would not be prepared to  
start framing Building A until after Building B was finished. The plan was still to start  
framing in December 2018. Mr. Rumpel was agreeable to this change of plans,  
Rumpel Construction Ltd. v. Western Canadian Construction Company Ltd.  
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noting he was pleased because he would now be able to “do the whole project  
myself.”  
[24] However, between October 2018 and July 2019, the Orono project was beset  
with numerous delays. During this time Mr. Echlin and Mr. Rumpel continued to  
communicate regarding “updatedschedules, and worked together on  
pre-construction planning details. Mr. Rumpel testified that it was Mr. Echlin who  
provided the new proposed start dates during this time, and each time he agreed to  
the new schedule. This was not seriously challenged by Western, and is supported  
by contemporaneous emails between the two men.  
[25] The initial change in plans was discussed in early December 2018. In a  
December 21, 2018 email, Mr. Echlin advised Rumpel that the new start date would  
be in January 2019. The January date was postponed, then inclement weather  
precluded a February start. The next proposed date was April 2019. The April date  
was eventually postponed.  
[26] By May 13, 2019, Mr. Echlin estimated that framing would begin in July 2019,  
another two-month delay, and in an email asked Mr. Rumpel to “Let me know how  
your schedule is keeping.” Mr. Rumpel testified he was “getting worried” but told  
Mr. Echlin “he would make it work”.  
[27] Mr. Rumpel testified that the constant delays with the Orono project caused  
him difficulty. He had to turn down work during the fall of 2018 and into the summer  
of 2019 in order to remain available for the Orono project, but the constant delays  
left his employees without work. In the documentary evidence, and according to  
witness testimony, Mr. Echlin and Mr. Rumpel had a friendly and cooperative  
approach during these delays and the two worked together to try and keep  
Mr. Rumpel’s employees working, with Mr. Rumpel “grabbing any small job I could  
pick up.”  
[28] As the revised July start date approached, Mr. Rumpel and his employees  
began more pre-construction duties within the scope of Rumpel’s quote, including  
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attending site meetings; generating a hold downor tie downplan, along with  
related installations; specifying what lumber was to be ordered and calculating  
quantities; and attending the site to complete some of these hands-on tasks. On  
June 12, 2019, Mr. Rumpel and his framers attended a site meeting to discuss  
scheduling with “all the trades”, at which time Mr. Echlin confirmed the concrete slab  
would be poured July 3, 2019 with Mr. Rumpel starting to frame immediately  
thereafter.  
[29] On June 21, 2019, the same administrative assistant emailed Mr. Rumpel and  
reminded him to complete and sign the same CCA 1 contract that she had sent him  
in October of 2018, which included the now-long-past start and end dates for the  
framing work. On July 3, 2019, the administrative assistant again asked Mr. Rumpel  
to sign the CCA 1 contract and bring it to a scheduled meeting. Mr. Rumpel replied  
by email that he would not be able to bring the contract because “I still have to go  
through it and make sure it still works. I’ll try and find some time in the next few  
weeks to review it.” In the meantime, the foundation pourdid not happen on July 3,  
as “it didn’t work for the re-bar guys.” The new pour date was July 19, 2019 but this  
date was also re-scheduled to accommodate the project’s plumber. Mr. Echlin said  
the pour was now set for August 2019.  
[30] On July 14, 2019, Mr. Rumpel emailed Mr. Echlin a “tentative schedule” which  
showed framing for Building B commencing August 26, 2019 and finishing  
December 24, 2019; and Building A commencing January 2, 2020 and concluding  
July 21, 2020. Mr. Rumpel testified that he and Mr. Echlin had a discussion about  
the schedule the following day when he attended at the construction site.  
[31] According to Mr. Rumpel, the tentative schedule had been prepared at the  
request of Mr. Echlin so that they could co-ordinate with the chosen plumber.  
Mr. Rumpel testified that the schedule was not related to Rumpel’s resources, but  
rather his observations of how other aspects of the project appeared to be  
progressing, and what would be realistic on that basis.  
Rumpel Construction Ltd. v. Western Canadian Construction Company Ltd.  
Page 9  
[32] Mr. Echlin testified at trial but had a very limited recollection of many events,  
and did not recall much about the tentative schedule or any meetings. Conversely,  
Mr. Rumpel recalled that at the July 2019 meeting, Mr. Echlin asked him a few  
questions about the tentative schedule, and clarified that pouring the Building A  
foundation was planned for November 2019 rather than January 2020, as  
Mr. Rumpel had estimated when he prepared the updated tentative schedule.  
Mr. Echlin and Mr. Rumpel also discussed that framing on Building B would begin  
immediately after an August 6, 2019 foundation pour, rather than August 26, 2019  
as Mr. Rumpel had initially estimated.  
[33] Mr. Rumpel also recalled the two discussing other jobs he was working on  
concurrently, his intent to work Saturdays to expedite Western’s project, and  
potential sources of more framing labour with Mr. Echlin, but does not recall  
Mr. Echlin having any objection, protest or concern regarding any of these points of  
discussion. Mr. Rumpel testified that the two had previously discussed various  
schedules and timelines for the project, including the use of other framing  
subcontractors, and a change of plan from framing both towers concurrently to  
framing them consecutively. Mr. Rumpel testified that the two successfully  
cooperated on these details throughout the delays without conflict, and that timelines  
were always fluid and changing. Mr. Rumpel added that each time the schedule was  
changed he remained available to start framing the day after the foundation was  
poured.  
[34] Mr. Rumpel continued working out construction details with Mr. Echlin  
following the July 14, 2019 scheduling email, and continued to attend the  
construction site. As late as July 25, 2019, Mr. Echlin emailed Mr. Rumpel regarding  
the delivery of the lumber Rumpel would need to frame the project. Mr. Rumpel  
testified that to this point there was never any suggestion that he would not be  
framing both buildings.  
[35] However, on August 1, 2019, Mr. Echlin emailed Mr. Rumpel, stating “Please  
be advised, the October 2018 offer to you for Framingfor Langford Towers, by  
Rumpel Construction Ltd. v. Western Canadian Construction Company Ltd.  
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Western Canadian Construction Company Ltd., not signed and returned, is hereby  
retracted and revoked.”  
[36] When he received this email Mr. Rumpel was very surprised” as there was  
never any prior indication he would not be the project framer. Mr. Rumpel then  
inquired “what about the work I’ve already done on the site?” Mr. Echlin replied,  
“send me an invoice and we will pay it.”  
[37] Mr. Rumpel followed up through his solicitor on August 29, 2019, stating that  
the parties already had a “binding contract evidenced by performance of work on the  
subject lands at Western’s request and the letter of intent;” and that Rumpel was  
ready, willing and able to perform its obligations. The letter included a signed copy of  
the initial CCA 1 contract, and an invoice for work performed to that date, in the  
amount of $12,731.25.  
[38] Western had however already hired another framing contractor to complete  
the project. Documents put forth at trial showed Western began communications  
with the other contractor in July 2019. These communications reveal that Western’s  
primary motivation for retaining the other framing contractor was its assurance that it  
could complete the framing in a shorter period of time, which Western believed  
would save it money, despite the second contractor’s higher bid price of  
$1,238,432.50, the catalyst for Western’s counterclaim, which has since been  
withdrawn. Indeed, in an email, Western confirmed with the new framer that it could  
complete the same framing in just six weeks, which after all the delays, again  
through no fault of Mr. Rumpel, was very attractive to Western. This assurance  
turned out to be ill-founded. The other framer eventually completed the project in  
May or June 2020, similar to the projected completion date Rumpel contemplated in  
July of 2019.  
[39] Upon termination of the contract, Rumpel sent Western an invoice for  
$12,731.25 representing the value of work done to date. Western declined to pay  
this invoice. Rumpel then filed a builder’s lien against the Orono project for this  
Rumpel Construction Ltd. v. Western Canadian Construction Company Ltd.  
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amount, and Western subsequently paid this amount into trust in order to discharge  
the lien, pending the outcome of this trial.  
[40] Again, none of the facts outlined above are particularly controversial or were  
seriously contested at trial. Rather, the parties disagree as to their legal significance.  
Was there a contract between Western and Rumpel?  
Position of the Parties  
[41] In resisting Rumpel’s claim for damages, Western says the evidence shows  
that the parties “intended to contract”, but several of Western’s “pre-conditions” were  
never fulfilled. Further, Western says that the parties never reached consensus  
ad idem because the schedule was an essential term of the contract, and the parties  
never came to agreement on this term, as Western pushed backthe start date on  
several occasions. Finally, Western says that even if there was a valid offer made to  
Rumpel, Rumpel did not accept the offer with sufficient formality before it was  
revokedon August 1, 2019.  
[42] Conversely, Rumpel says the parties formed a contract when Western  
accepted Rumpel’s formal bid, submitted on April 13, 2018. Rumpel says that this  
acceptance was communicated orally to Mr. Rumpel, and was also confirmed  
through Mr. Echlin’s conduct, including the letter of intent. Rumpel says the terms of  
the contract can be derived from a combination of terms set out in the tender  
package and Mr. Rumpel’s bid. Importantly, Rumpel contends that the signing of the  
CCA 1 was not a condition precedent but merely a term of the contract, the  
performance of which was only required after work was commenced and prior to the  
first progress invoice, as clearly stated in the purported contract.  
Law  
[43] The Supreme Court of Canada summarized the legal principles which apply  
to the formal bid and tender process in Double N Earthmovers Ltd. v. Edmonton  
(City), 2007 SCC 3, finding that:  
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[2]  
A call for tenders involves a party’s (often referred to as the “owner”)  
requesting the submission of bids to complete a particular project. Where the  
parties intend to initiate contractual relations, a submission in response to a  
call for tenders can lead to the formation of Contract A. The call for tenders is  
the offer by the owner to consider the bids it receives and to enter into the  
contract to complete the project where a bid is accepted. A bidder accepts  
that offer by submitting a bid that complies with the requirements set out in  
the tender documents. The contractual rights and obligations of the parties to  
Contract A are governed by the express or implied terms of the tender  
documents.  
[3]  
A bid also constitutes an offer to enter into Contract B. This is the  
contract to complete the project for which bids were sought. Where a bid is  
accepted, the terms of the tender and bid documents become the terms and  
conditions of Contract B.  
[Emphasis added.]  
[44] Our Court of Appeal has found that a formal “notice of award” is not required  
to indicate acceptance of a bid. In examining whether a bid is accepted, giving rise  
to contractual relations, the surrounding circumstances must be examined, including:  
whether acceptance of a bid was conditional; the conduct of the parties; and the  
existence or absence of a “letter of intent” -- which may indicate acceptance of a bid.  
(Silex Restorations Ltd. v. Strata Plan VR 2096, 2004 BCCA 376 at para. 36.)  
[45] In Grand Sierra Construction Ltd. v Karras, 2001 BCSC 768, Vickers J. found  
that in the context of the construction industry, the term “award” generally indicates  
the creation of contractual relations between parties, rather than merely being  
synonymous with “offer.” At para. 29 the court found that “a contract is said to be  
awarded when: a) an owner or general contractor accepts, by some form of notice, a  
contractor’s bid for a contract; or b) as a result of a negotiation process, the parties  
reach agreement on the terms of a contract and enter into that contract.”  
Findings  
Tender Package, Bid and Acceptance  
[46] As a preliminary matter, it is necessary to determine if the tendering process  
had sufficient formality such that a bid made by Rumpel, once accepted, would give  
rise to a contract. Put another way, was there a Contract A? I find that there was: the  
tender package contemplated making an “award” of a contract upon certain  
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conditions; the agreed statement of facts characterized Rumpel’s quote as a “bid;”  
the tender package referred to Mr. Echlin as the “tender authority;” there was a  
formal deadline for the submission of bids; and most importantly, the tender package  
and addenda included sufficient terms and details such that a bidding party could  
make a true ‘offer’ (rather than mere estimate), which, once accepted, could form a  
complete contract, i.e. the essential terms were stipulated.  
[47] The wording of the tender package clearly contemplates a formal bid/tender  
process, but also a “pre-contract meeting” which would precede any contract award.  
[48] I find that such a meeting took place. Mr. Rumpel testified that a few days  
following the “Closing Date” Mr. Echlin told him that Western was “moving forward”  
with Rumpel, but the two needed to meet on site to formalize a few details.  
Mr. Rumpel testified that this meeting eventually occurred on site in early July 2018,  
and the two men discussed precisely the subjects contemplated in the tender  
documents: the availability of quantity of Rumpel’s framers to complete the job --  
with or without subcontractors -- and the schedule. Mr. Rumpel testified that the  
conclusion of the meeting was “all positive” and that he believed he had the contract  
for framing.  
[49] Counsel for Rumpel also argues that Western communicated its acceptance  
of Rumpel’s bid through Mr. Echlin’s conduct. I agree. In Owners, Strata Plan LMS  
3905 v. Crystal Square Parking Corp. 2020 SCC 29 the Supreme Court of Canada  
confirmed that the common law’s long adherence to the objective theory of contract  
formation continued, citing Smith v. Hughes (1871), L.R. 6 Q.B. 597 (Eng. Q.B.) at  
607, per Blackburn J; and Saint John Tug Boat Co. Ltd. v. Irving Refinery Ltd.,  
[1964] S.C.R. 614 (SCC). At para. 33 the Court explained that in examining whether  
a party’s conduct constituted acceptance of an offer, the court should consider what  
a reasonable person in the position of one party would conclude.  
[50] In the present case, Mr. Echlin’s conduct closely followed the process for  
awarding contracts set out in the tender package. I am satisfied a reasonable person  
in Mr. Rumpel’s position would conclude that following Mr. Echlin’s statement that  
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Page 14  
Western was “moving forward” with Rumpel, combined with the successful  
pre-contract meeting in July 2018, that Western had accepted Mr. Rumpel’s bid, and  
that the parties therefore had a contract at that time.  
[51] All of Western’s subsequent conduct, up to the point of purporting to “revoke”  
the contract, including the letter of intent, the parties’ subsequent meetings and  
Rumpel’s part performance of the contract, would only have strengthened a  
reasonable person’s belief that Western had accepted Rumpel’s bid and the two had  
entered into a binding contract.  
[52] Mr. Rumpel testified that the scope of work included in the initial quote  
included attending pre-construction meetings and working on a tie-down layout prior  
to the framing crew beginning their work in earnest.  
[53] Turning to the reliability of the evidence of Mr. Rumpel and Mr. Echlin, I found  
Mr. Rumpel to be a forthright and open witness with a good memory for key events.  
This was in contrast to Mr. Echlin who had very limited memory of the events and  
presented as a reluctant and somewhat defensive witness. As mentioned, Mr. Echlin  
stated he is no longer employed by Western, which may explain his reticence and  
lack of recall.  
[54] Mr. Rumpel’s unchallenged testimony is that he did, in fact, attend many  
pre-construction meetings, including in July 2018, a few months following his bid,  
and eventually began the tie-down work in the early summer of 2019. I was provided  
pictures of Mr. Rumpel and his crew members on-site performing this work. I accept  
that Mr. Rumpel had begun performance of the contract by this time. If nothing else,  
it would be eminently reasonable for Rumpel to conclude Western had accepted its  
bid and the two had a contract after Rumpel began performing the contract without  
any objection from Western.  
[55] Nonetheless, Western submits that the parties never reached a consensus on  
the schedule of the project, which it says was an essential term, and therefore no  
contract was ever created. To that end, Western says that while the initial tender  
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Page 15  
package included a schedule, and Mr. Rumpel made his bid on this basis, Rumpel’s  
bid was never formally accepted by Western. Western suggests that the subsequent  
letter of intent constitutes a counter-offer to, rather than acceptance of, Rumpel’s  
bid. Western says this counter-offer was also never accepted by Rumpel, and was in  
fact rejected when Rumpel made a further counter-offer by way of the July 14, 2019  
email enclosing a tentative schedule”. Finally, Western submits that Rumpels  
part-performance does not give rise to a contract per se citing Rafal (c.o.b. RJG  
Contracting and Management) v. Legaspi, 2007 BCSC 1944 and Fame Construction  
Ltd. v. 430863 B.C. Ltd., [1998] B.C.J. No. 2300.  
[56] The thrust of Western’s submission was that when its conduct is examined on  
the whole, its conduct was more consistent with, and more reasonably interpreted  
as, a (failed) attempt to continue negotiations with Rumpel rather than acceptance of  
Rumpel’s bid. Western’s submissions were general in nature, but at times counsel  
for Western seemed to suggest that both the tender package and the letter of intent  
contained conditions precedent which were never fulfilled, including the pre-contract  
meeting, signing of a CCA 1, and receipt of confirmation of Rumpel’s good standing  
with WorkSafeBC and other insurance.  
[57] As stated above, I find that the pre-contract meeting occurred in July. I will  
address the CCA 1 in more detail below. However at this point I will note that I do  
not find that Rumpel’s good-standing with WorkSafeBC and proof of insurance were  
true conditions precedent. Counsel for Western also emphasized the fact that  
Rumpel did not follow up to emailed requests from Mr. Echlin’s administrative  
assistant with regard to these documents.  
[58] The placement of the terms under the heading “Award of Contract &  
Contractor Qualifications” together with an outline of the procedure for awarding  
contracts such as the “award period” of 60 days and the owners ability to reject bids  
does not, in my view, suggest these are true conditions precedent to the  
construction contract. Instead, given the reference to “Contractor Qualifications” and  
the wording suggests the requirement for insurance and good standing with  
Rumpel Construction Ltd. v. Western Canadian Construction Company Ltd.  
Page 16  
WorkSafeBC were restrictions on who was invited to bid on the contract. The  
wording of these provisions is more akin to a representation or warranty, and simply  
state the bidder must carry insurance and be in good standing. This is different than  
a term requiring Western’s receipt of proof of Rumpel’s insurance or WorkSafeBC  
standing as a condition precedent to the contract. At the same time, there was no  
evidence to suggest that Rumpel was not in good standing with WorkSafeBC or did  
not have the necessary insurance.  
[59] Finally, in my view, the fact that Mr. Echlin’s administrative assistant followed  
up on these requests would indicate to a reasonable person that these requirements  
were of low priority to Western as they were delegated to a non-management  
employee. Had these truly been essential terms or true conditions precedent, one  
would expect Mr. Echlin to at least mention them to Rumpel at one of their many  
meetings.  
Letter of Intent  
[60] Western points to the letter of intent as evidence that it would have been  
unreasonable for Rumpel to conclude there was a contract as opposed to merely  
continuing to negotiate, such that the letter of intent was a counter-offer, with  
conditions precedent, in response to Rumpel’s bid.  
[61] I do not agree that the letter of intent is a counter-offer as it merely repeats  
terms already set out in the tender package. While some of these terms could be  
construed as conditions, by this point the only term which could be construed as a  
true condition precedent, the pre-contract meeting, had already been fulfilled. I  
conclude that the letter of intent was simply a re-statement of the tender package,  
bid, and already-agreed contract; the letter of intent appears to be created as an  
attempt by Mr. Echlin to “firm things up” before the anticipated December 2018 start  
date, and tie-up Rumpel’s services in face of mounting delays. The letter of intent  
supports Mr. Rumpel’s testimony that Mr. Echlin advised him his bid was accepted,  
and that Rumpel had been awarded the contract.  
Rumpel Construction Ltd. v. Western Canadian Construction Company Ltd.  
Page 17  
[62] It is therefore hard to conceive how the letter of intent could be a  
“counter-offer” as Western proposes. Rather, Mr. Rumpel’s testimony that he  
understood the letter of intent as merely confirming the parties’ agreement, is a  
reasonable interpretation of this document in light of the circumstances. The timing  
of the letter is also significant, it was sent on October 12, 2018, about two months  
before the framing work was scheduled to start. Mr. Rumpel testified, and I accept,  
that the parties had another pre-construction meeting to discuss schedule and  
logistics a few days following the letter.  
[63] As I have noted, the letter of intent also requested that Rumpel supply various  
documents including a certificate of insurance and a WorkSafeBC registration  
number, however these requests were not listed under the purported “conditions”  
section. Like the tender package, the letter of intent instead contemplated a meeting  
whereby various aspects of the project, including the schedule, logistics, and the  
WorkSafeBC and insurance documents would be “review(ed) and/or confirm(ed).”  
This does not have the effect of making Western’s receipt of Rumpel’s WorkSafeBC  
and insurance information a condition precedent to the contract, even if the letter of  
intent were to be construed as a “counter-offer.”  
CCA 1  
[64] Western also submitted that the only truecontract was the CCA 1 and that  
its communications with Western, including the letter of intent, were merely  
negotiations aimed at the eventual signing of the CCA 1, which never occurred, or  
only occurred after Western had withdrawn its offer.  
[65] I do not accept that a reasonable person would view Western’s conduct as  
part of the negotiation process aimed at the eventual signing of a CCA 1. For  
reasons already stated above, a reasonable person would have viewed Western’s  
conduct as consistent with the acceptance of Rumpel’s initial bid.  
[66] Further, both the tender package and letter of intent contemplate the CCA 1  
as a condition which must be fulfilled only “prior to the first progress invoice”, which  
would occur after performance of the contract had already begun. The only way to  
Rumpel Construction Ltd. v. Western Canadian Construction Company Ltd.  
Page 18  
interpret the reference to the CCA 1 in both the tender package and the letter of  
intent is as a non-essential term of the contract.  
[67] As an alternative argument Western appeared to suggest the signing of the  
CCA 1 was a condition precedent to either their acceptance of Rumpel’s bid or  
Rumpel’s acceptance of their counter-offer. I reject these submissions because a  
true condition precedent would not have a deadlinefor satisfaction at some point  
after performance of the contract had already begun.  
[68] Rumpel’s conduct was consistent with the statements in the tender package  
and letter of intent. When Rumpel was prompted to sign the CCA 1 in July 2019 by  
the administrative assistant, Mr. Rumpel indicated he did not intend to sign the  
CCA 1 immediately, even though the performance of the contract had already  
begun. His statement that he had to go through the contract to “see if it still works”  
was not a repudiation of the parties’ contract, and in fact very reasonable, given that  
the CCA 1 contained dates for performance which had long since passed.  
[69] Further, there is no evidence that Mr. Echlin, listed as the “tender authority” in  
the tender package, ever mentioned the CCA 1 to Mr. Rumpel until he purported to  
“revoke the contract” on August 1, 2019. If the execution of the CCA 1 was required  
to form the contract, or a true condition precedent, I am satisfied Mr. Echlin waived  
this requirement when he allowed Mr. Rumpel to begin performing work on site  
without requiring him to sign this document, or even mentioning it.  
[70] The fact that the procuring of Mr. Rumpel’s signature appeared to be the  
exclusive purview of Western’s administrative assistant demonstrates that Western’s  
operating mind or agents did not consider the execution of the CCA 1 to be essential  
in any way. Instead, Mr. Echlin’s reliance on the CCA 1 to “revoke the contract” on  
August 1 2019 appears to be an unsupportable technical excuse, with no basis in  
law, to relieve Western of its contractual obligations when Western believed it could  
obtain the services of another framer who could do the job much faster than  
Rumpel -- a promise which failed to materialize.  
Rumpel Construction Ltd. v. Western Canadian Construction Company Ltd.  
Page 19  
Effect of Delays and July 14, 2019 Email  
[71] Finally, Western points to the many delays in the project as evidence that the  
parties could not have reached consensus ad idem. Western says that the start date  
and timeline for performance would have been essential terms of any contract, and  
the parties never reached an agreement on these terms. Western submits that the  
letter of intent could have been an offer to Rumpel to frame the towers, but that  
Mr. Rumpel’s July 2019 email with a proposed framing schedule was a counter-offer  
which “killed” any offer contained in the letter of intent.  
[72] I do not accept Western’s submissions. As stated above, I find that Rumpel  
and Western entered into a contract in July 2018 after the successful  
pre-construction meeting was held, as was contemplated in the tender package. At  
this time, the terms of the contract were those set out in the bid and tender package:  
the price was $1,150,000 plus GST, less a $16,000 discount; the scope of work was  
as stipulated in the tender package; and the start date and schedule were those set  
out in the tender package, i.e. commencing December 2018, with completion in  
March 2019. Western affirmed these terms in the October 2018 letter of intent.  
[73] Mr. Rumpel testified that as it became clear the December 2018 start date  
was not realistic, Mr. Echlin proposed various revised start dates and schedules,  
each of which he accepted. I accept Mr. Rumpel’s testimony, and find that Western  
proposed these contractual modifications which were accepted by Mr. Rumpel on  
each occasion.  
[74] To repeat, I find that it was Western, not Mr. Rumpel, who proposed various  
modifications to the start date and schedule terms, and Mr. Rumpel accepted these  
contractual modifications. This includes the July 2019 start date. Mr. Rumpel  
testified that Mr. Echlin proposed the July 2019 start date in the spring of 2019. This  
was also evident in a May 2019 email sent by Mr. Echlin to Mr. Rumpel setting out a  
July 2019 start date and asking Mr. Rumpel to “Let me know how your schedule is  
keeping.” I take this statement to indicate Western’s flexibility and willingness to  
Rumpel Construction Ltd. v. Western Canadian Construction Company Ltd.  
Page 20  
work with Rumpel on a new schedule in the face of delays, none of which were  
occasioned by Rumpel.  
[75] In submissions, Western referred to Rafal and Fame and the issue of  
part-performance and a timeline for completion. However, the statements in Rafal  
and Fame regarding timelines for completion were specific to the facts of those  
cases. What will be an essential term in one contract, may not be essential in  
another. While I find that Rumpel and Western had a contract which included a start  
date and timeline which was modified from time to time by the agreement of both  
parties, I do not consider it an essential term of the contract.  
[76] I say this for a few reasons. Firstly, Mr. Echlin’s conduct, and the terms of the  
tender package itself, which contemplated a pre-contract meeting to confirm” the  
schedule, would leave a reasonable person to conclude that the schedule term was  
subject to modification upon agreement by the parties. Mr. Echlin’s conduct in  
repeatedly altering the start date and proposed schedule, along with his willingness  
to work collaboratively with Rumpel on a new schedule, demonstrates a good-faith  
attempt to re-negotiate a non-essential term of the contract, rather than repudiate  
the contract or rejecta counter-offer” by Rumpel. Therefore Mr. Rumpel’s  
July 14, 2019 email with a tentative schedulecannot be interpreted as a  
counter-offer but instead was part of the on-going collaboration between the parties  
to come up with a workable plan.  
[77] This is supported by Mr. Rumpel’s testimony that the “tentative schedulewas  
for the reference of a third-party plumber and for planning purposes, and was based  
on his observations of the state of the project on that date, rather than the availability  
of his employees. By this time Western had proposed many unrealistic schedules  
which had long since passed. I take Mr. Rumpel’s testimony to mean that he was  
relying on his extensive knowledge of the construction industry to provide a realistic  
timeline to aid both the plumber and Mr. Echlin, since Mr. Echlin’s previous  
estimates had proved unreliable.  
Rumpel Construction Ltd. v. Western Canadian Construction Company Ltd.  
Page 21  
[78] Moreover, there is no evidence that Mr. Rumpel rejected a schedule  
proposed by Mr. Echlin based on his inability to complete the job in a timely manner,  
as Western suggests. To the contrary, Mr. Rumpel testified that in response to  
Rumpel’s tentative schedule, with an August 26, 2019 start date, Mr. Echlin  
suggested an earlier start date of August 6, 2019 which Rumpel readily agreed to.  
[79] Further, counsel for Rumpel drew my attention to an alternativeschedule  
prepared by Western at the time of the tender package, with a later start date, which  
was not provided by Western until the discovery stage of this proceeding. Counsel  
for Rumpel suggested that this secret scheduledemonstrated the tentative nature  
of Western’s initial December 2018 start date and schedule, and thus undermined  
the essentiality of this term to the contract. I accept this submission.  
[80] Mr. Rumpel further testified that very shortly after he received the letter of  
intent which confirmed the December 2018 start date, he had a meeting where  
Mr. Echlin proposed a later start date and longer timeline for completion. This, along  
with the secret schedule, suggest that the letter of intent was an attempt by  
Western to firm upor lock inRumpel as the framing contractor in the face of  
mounting delays. Mr. Rumpel had already showed his willingness to work with  
Western on a flexible basis. All of which leads me to conclude that it was  
advantageous for Western to lead Mr. Rumpel to believe the two had a contract so  
that Rumpel would turn down other work in order to remain available to frame the  
Orono project when it eventually began.  
[81] This is indeed what Mr. Rumpel testified transpired. Mr. Rumpel turned down  
other work to remain available to fulfill his obligations to Western.  
[82] The clear advantage Western derived from having the start date and  
schedule remain a flexible or tentative term of the contract, up for re-negotiation,  
strongly undermines Western’s contention that the start date and schedule were  
essential terms upon which the parties never reached an agreement.  
Rumpel Construction Ltd. v. Western Canadian Construction Company Ltd.  
Page 22  
Conclusion  
[83] In my view, the wording of the tender package clearly indicates Western’s  
intent to conduct a formal tender and bid process. Mr. Rumpel’s “quote” in response  
to the tender package therefore constituted an offer to enter into a contract for the  
wood framing. I accept Mr. Rumpel’s testimony that Mr. Echlin, as agent for  
Western, indicated Western’s acceptance of Rumpel’s bid orally and through his  
subsequent conduct, and a contract was entered into at that time. The terms of the  
contract were substantially those contained in the tender package and Mr. Rumpel’s  
quote, including the scope of work and price contained therein. The initial schedule  
with a start date of December 14, 2018 was a non-essential term of the contract, and  
one which was re-negotiated between the parties as Rumpel’s performance became  
impossible due to Western’s delays. It was therefore not open to Western to “revoke  
the contract” on August 1, 2019. I am satisfied Rumpel has established that this was  
a breach of the partiesagreement.  
Damages  
[84] Given Western’s breach of its contractual obligation, Rumpel is entitled to  
damages to put itself in the same position as if the contract had been performed.  
The onus is on Rumpel to prove its loss on a balance of probabilities standard. In the  
case of contractual breach, a party is expected to attempt to mitigate its losses to a  
reasonably possible extent, but the onus is on the party advancing the argument to  
show a failure of mitigation.  
[85] However, Western argued that Rumpel did not prove its loss, and therefore  
did not advance the argument that Rumpel failed to mitigate. In any event, there was  
no evidence that Rumpel failed to mitigate. To the contrary, evidence showed  
Rumpel had a good reputation in the construction business, and its services were  
therefore in high demand both before and after the Orono contract was breached.  
Rumpel turned down many projects while waiting for Orono to begin. Once Rumpel  
was told its services were no longer required, Mr. Rumpel immediately looked for  
new work, which he successfully obtained.  
Rumpel Construction Ltd. v. Western Canadian Construction Company Ltd.  
Page 23  
[86] Instead of arguing a failure to mitigate, Western suggested that Rumpels  
failure to lead expert evidence from accountants or other financial experts is fatal to  
its claim for damages. I do not accept this proposition, as no legal authorities were  
cited in support of this suggestion. Requiring expert authorities to prove financial  
losses would impede access to justice for individuals and small businesses in civil  
cases. Further, I am unsure what additional information an expert would have been  
able to provide in this case. I am satisfied Mr. Rumpel knows his business better  
than anyone else and is acutely aware of the usual profit he can expect from any  
given project, given the many projects he has framed in the past.  
[87] I do not accept Western’s submission that Rumpel has failed to produce  
sufficient evidence to prove its lost profit and substantiate its claim for damages, in  
the absence of “financial documents to show profit and loss.” On this point, as  
Rumpel was prevented from completing the project it was contracted to perform,  
there are obviously no specific documents pertaining to the Orono project. As a  
result, the only alternative was for Mr. Rumpel to rely on past projects to estimate  
Rumpel’s loss on the Orono project.  
[88] In this regard, Rumpel’s primary evidence of loss was the testimony of  
Mr. Rumpel. As I noted above, I found Mr. Rumpel to be a forthright and credible  
witness with a good memory of the events in question. He told the court that his  
profit was typically 40% of the total quoted price for a job. In support of this figure,  
Rumpel provided documentary evidence showing the financial breakdown of other  
projects. Mrs. Rumpel, Mr. Rumpel’s wife, also testified. She is the bookkeeper for  
Rumpel. She testified as to the hourly wages of Rumpel’s crew at the time,  
permitting Mr. Rumpel to estimatewhat his labour costs on Orono would have  
been if he was permitted to fulfill the contract.  
[89] Rumpel therefore says its expected profit from the Orono project would have  
been $532,959. Rumpel bases this projection on its profits and costs of another,  
similar-sized project it had recently completed at Cook Street, prior to contracting to  
frame the Orono project. Mr. Rumpel provided a detailed break down of the Cook  
Rumpel Construction Ltd. v. Western Canadian Construction Company Ltd.  
Page 24  
Street project, showing how many square feet an average framer could complete per  
day, material costs, labour costs, other employee costs, etc., and applied these  
numbers to the Orono project to arrive at a total cost and profit estimate. Mr. Rumpel  
also provided detailed breakdowns of other similar projects to support this estimate.  
In his testimony, Mr. Rumpel explained the assumptions he used in these  
calculations, and how he applied these to the Orono project, all of which I found to  
be straightforward and reasonable. Mr. Rumpel was not seriously challenged on his  
profit estimates based on prior projects similar in size to the Orono project.  
[90] However, when pressed in cross-examination about what Rumpel’s “true  
losswas, Mr. Rumpel estimated it at $440,000. While this conclusion was not  
clarified by either side, this may have been in light of arguments made by Western  
that only net profit, and not gross profit, should be compensated, and that overhead  
items which normally come from gross profit including staff CPP premiums, office  
expenses etc. should not be included as compensable damages.  
[91] At the same time, Rumpel introduced documents that suggested that it had  
been awarded a contract to frame a building for Abstract Developments at 1201 Fort  
Street, which was set to start in the fall of 2019. Emails between Rumpel and  
Abstract suggest that before Western breached the Orono contract, Rumpel may  
have offered, or was “open to” terminating this contract by agreement in order to  
allow Abstract to find a framer who could start the job sooner. At that time, Rumpel  
was not in a position to frame Fort Street given the Orono schedule, and would not  
be able to start the job until mid-2020, even if Abstract delayed the start date.  
However, because of Western’s contractual breach, Mr. Rumpel was available to  
frame Fort Street during the Fall of 2019.  
[92] In considering an appropriate amount of damages, I accept the long-standing  
legal proposition that, as in this case, where a breach of contract allows an individual  
to take on new business that they would not have otherwise been able to undertake,  
this substitutebusiness must be accounted for when assessing their losses. On the  
other hand, other business which would have been performed in any event,  
Rumpel Construction Ltd. v. Western Canadian Construction Company Ltd.  
Page 25  
regardless of the contractual breach, forms no part of the damages assessment, and  
will not reduce the amount of damages occasioned by the breach: Karas v. Rowlett;  
[1943] S.C.J. No. 46.  
[93] In this case, the evidence does show that Rumpel had the Fort Street contract  
prior to the Orono breach, but that Abstract was intent on moving forward before  
Rumpel would be available. However, due to Western’s breach, Rumpel was able to  
frame Abstract’s Fort Street project once Western breached its contract with  
Rumpel, as well as freeing Rumpel to take on new business in 2020. In fact,  
Mr. Rumpel testified that his business was growing and did well during 2020. He  
estimated his 2019 profit to be about $300,000 or $325,000; and in 2020, “I’m  
guessing around $500,000.”  
[94] Therefore, Rumpel’s profits at Fort Street have to be taken in account when  
assessing the appropriate amount of damages. Mr. Rumpel testified that his profit on  
the Fort Street project was “200 and change.”  
[95] In light of Mr. Rumpel’s statement that his “true loss” was $440,000, and  
because he was available to frame the Fort Street project and make a profit of  
$200,000, I consider an appropriate award of damages to be $240,000, representing  
Rumpel’s loss as a result of Western’s breach of contract.  
[96] There is also the matter of the unpaid invoice of $12,731.25. Rumpel is only  
entitled to recover its actual costs, since its overall loss of profits has already been  
accounted for in the damages award. Counsel for Rumpel therefore conceded that  
Rumpel’s actual costs were $3,516.41, exclusive of Mr. Rumpel’s own time. While  
counsel for Western conceded that Mr. Rumpel should be compensated for his time  
and the whole amount is payable, I interpret this concession on Western’s part to be  
contingent on their position that no damages are otherwise owed for loss of profits.  
[97] Be that as it may, I see no reason not to follow counsel’s submission that the  
amount owing for work done prior to Western’s breach as outlined on the unpaid  
invoice is $3,516.41. Rumpel is therefore awarded damages totalling $243,516.41.  
Rumpel Construction Ltd. v. Western Canadian Construction Company Ltd.  
Page 26  
Punitive Damages and Costs  
[98] In addition to damages for loss of profit, Rumpel submits that punitive  
damages should be awarded based on Western’s bad faith conduct”, including  
unreasonably withholding payment of the $12,731.25 invoice and the filing of a  
counterclaim, where Western sought the difference between what it paid to the  
framer who finally did the framing and Mr. Rumpel’s quote to frame the project. In  
other words, as counsel for Rumpel pointed out, the withdrawn counterclaim, filed by  
counsel other than trial counsel, in fact acknowledged Western had a valid contract  
with Mr. Rumpel.  
[99] Notwithstanding the inconsistent position initially advanced in the ill-conceived  
counterclaim, given the totality of the circumstances and the fact that counsel agreed  
the $12,731.25 invoice should be reduced, I do not consider Western’s conduct to  
be harsh, vindictive, or demonstrating contempt such that a punitive damages award  
would be justified. I am also not satisfied there is sufficient evidence to establish a  
breach of any duty of good faith to Rumpel.  
[100] Turning to the question of costs, counsel for Mr. Rumpel submitted that  
Western’s last minute breach of its contractual obligations was reprehensible and  
flagrant conduct worthy of condemnation by way of special costs. As in the case of  
punitive damages, I am not persuaded that Western’s conduct was so high-handed  
or reprehensible that it is deserving of rebuke, thereby justifying a special costs  
award. Rumpel has however been successful and is entitled to its costs on Scale B,  
as well as appropriate interest.  
“B. D. MacKenzie J.”  
The Honourable Justice B. D. MacKenzie  



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