Court of King’s Bench of Alberta  
Citation: Metrowest Developments Ltd v Flynn Canada Ltd, 2022 ABKB 616  
Date:  
Docket: 1601 02436  
Registry: Calgary  
Between:  
Metrowest Developments Ltd.  
Plaintiff  
- and -  
Flynn Canada Ltd.  
Defendant  
_______________________________________________________  
Reasons for Judgment  
of the  
Honourable Justice K.M. Horner  
_______________________________________________________  
Introduction  
[1]  
Metrowest Developments Ltd. (Metrowest) owns a commercial building known as  
Deerfoot Square in Calgary, Alberta. Metrowest, with the assistance of Read Jones  
Christoffersen (RJC), a consulting engineering firm, engaged Flynn Canada Ltd. (Flynn) for a  
partial roof replacement at the Deerfoot Square property. Metrowest and Flynn entered into a  
CCDC 2 Stipulated Price Contract (the Contract). Flynn completed the roof replacement between  
April and May 2013.  
[2]  
On top of the Deerfoot Square roof there are two large mechanical HVAC units, one on  
the north side and one on the south side. While originally it was contemplated that both the north  
half and the south half of the Deerfoot Square roof would be replaced, ultimately the parties  
contracted solely for the roof replacement on the north half. For the purposes of this judgment,  
references to the HVAC unit or large mechanical unit mean the HVAC unit on top of the north  
Page: 2  
side. Further, unless specified, references to the roof mean the north half of the Deerfoot Square  
roof.  
[3]  
A key issue in dispute between the parties is whether an addendum that modifies the  
scope of work, and in particular the scope of work with respect to roofing under the HVAC unit,  
forms part of the Contract. Flynn says it does; Metrowest says it does not.  
[4]  
Metrowest submits that the addendum did not form part of the Contract, and thus did not  
modify the scope of work. It argues that the Contract required Flynn to remove all the existing  
roofing assembly, including the existing roofing beneath the HVAC unit. It submits that Flynn  
breached the Contract and negligently performed its work pursuant to the Contract. Metrowest  
seeks damages for the removal and full roof replacement at Deerfoot Square, and costs incurred  
due to Flynn’s breaches of contract and negligence.  
[5]  
Flynn argues that the addendum was not listed in the Contract by mistake and submits  
that rectification is an appropriate remedy. Flynn submits that it performed its work in  
accordance with the Contract and in a nondeficient manner. It further argues that Metrowest has  
not suffered or proven any damages. Flynn seeks a dismissal of Metrowest’s action against it and  
judgment for the balance of the outstanding invoices owed to it by Metrowest.  
Procedural Background  
[6]  
On June 28, 2013, Flynn registered a builder’s lien in the amount of $167,944.36 against  
the Deerfoot Square property. Metrowest then filed an Originating Application on August 7,  
2013, disputing the validity and quantum of the lien and for counter-claims for set-off for  
deficiencies, damages and environmental liability. On August 8, 2013, Master Prowse ordered  
$217,944.26 to be paid into court, representing the Respondent’s value of the lien plus  
$50,000.00 for security for costs.  
[7]  
On April 7, 2014, Flynn filed a Statement of Claim against Metrowest for payment of  
amounts owing pursuant to the Contract (the 2014 Action).  
[8] On June 2, 2014, Metrowest filed a Statement of Defence alleging that Flynn was  
responsible for damages relating to two negligent workplace incidents, seeking dismissal of  
Flynn’s claim, or in the alternative, a set-off against Flynn’s claim in the amount of $49,326.00.  
[9]  
On December 1, 2014, Flynn was granted partial summary judgment against Metrowest  
in the amount of $71,020.41, plus pre-judgment interest and costs pursuant to Column 2 of  
Schedule C, amounting to a total of $78,620.41. Master Hanebury directed the said amount to be  
paid to Flynn from the funds in court, with the balance of the lien security to remain in court  
pending determination of the 2014 Action. The 2014 Action continued in relation to the disputed  
balance of the claim alleged by Flynn against Metrowest.  
[10] On February 22, 2016, Metrowest amended its Statement of Defence in the 2014 Action  
to include allegations for breach of contract and negligent performance of the work under the  
Contract. Metrowest further amended the Statement of Defence to include a declaration that  
Metrowest had suffered damages in the amount of $281,000.00, or in the alternative, a set-off  
against the whole of Flynn’s claim to reflect the damage suffered by Metrowest.  
Page: 3  
[11] On February 18, 2016, Metrowest filed a Statement of Claim against Flynn for breach of  
contract and negligence (the 2016 Action). An Amended Statement of Claim was filed January  
16, 2017, seeking judgment or damages in an amount of no less than $291,000.00.  
[12] The 2014 Action and the 2016 Action were consolidated by consent on October 20, 2017,  
with Metrowest as Plaintiff and Flynn as Defendant (the Consent Order). The Consent Order  
provided that while Flynn was not required to file a Statement of Defence, should it elect to do  
so the deadline was November 3, 2017.  
[13] The trial commenced March 12, 2018.  
[14] At the start of trial, Flynn brought a preliminary application to extend the time outlined in  
the Consent Order for filing a Statement of Defence in the 2016 Action. I granted the application  
for Flynn to file its Statement of Defence in accordance with rule 13.5 of the Alberta Rules of  
Court and this court’s direction on filing extensions in Condominium Corporation 9813678 v  
Statesman Corp, 2008 ABQB 495. I granted costs against Flynn with the quantum to be  
addressed at the conclusion of this trial.  
Factual Background and Evidence  
Metrowest and Deerfoot Square  
[15] Metrowest was founded by William Schwartz. Elaine Myron, Schwartz’s daughter, has  
been the president and managing director of Metrowest since 2003. She generally oversees the  
day-to-day issues with the company, including leasing, and she calls in trades as necessary for  
maintenance and or repairs. Before this, she worked part-time doing residential property  
management for three apartment buildings and some leasing.  
[16] Deerfoot Square is three stories and was built in 1981. It contains approximately 30,000  
square feet of leasable commercial space. There is one long-term tenant in the building, the  
Alberta Department of Environment and Parks.  
[17] The approximately 12,000 square foot roof is a flat roof with a concrete slab base. The  
roof is split into two sections, a north side and a south side by an expansion joint. There are two  
HVAC units on top of the roof, as noted. Each HVAC unit sits on top of two support sleepers  
that run parallel to it.  
[18] In 2001, the roof was replaced, right down to the concrete slab with a Built-Up-Roofing-  
System (BUR System).  
[19] Mrs. Myron testified that in 2009 new HVAC units were needed. Metrowest engaged  
RJC, who issued a report in December 2009 recommending the BUR System roof be replaced  
with an SBS Modified Bitumen Torch Applied Membrane. New HVAC units were installed, one  
on each of the north and south caps of the roof. Only the portion of roof beneath the new HVAC  
units was replaced; the rest of the existing roof at the time was left in place.  
November 2012  
[20] Mrs. Myron testified that in November 2012 there were complaints of water leaking into  
the building. She observed these water leaks.  
[21] Metrowest engaged Skyline Roofing Ltd. (Skyline) to investigate the north side of the  
roof. Phillip Parker, an engineer with RJC who has significant experience with roof evaluations  
Page: 4  
and roof replacement projects, testified that in November 2012, he received a call from Mrs.  
Myron indicating she was having challenges with the roof at Deerfoot Square and that a crew  
from Skyline was on site trying to diagnose the problem and or affect repairs. Mr. Parker  
testified that Mrs. Myron asked him to attend on site and make his own observations. Roger  
Hanks of Skyline performed a series of cut tests to determine the location of the leak in the  
roofing system. Mr. Hanks was not called as a witness at trial.  
[22] On November 17, 2012, Mr. Hanks emailed Mrs. Myron and Mr. Parker and indicated  
that the insulation close to the split buckle near the control/expansion joint on the north side of  
the HVAC unit was saturated. Mr. Hanks’ email recommended replacement of the roof system  
and removal and replacement of the areas of wet insulation. He attached a sketch to his email  
indicating where the 24 cut tests were performed and the approximate area where water had  
penetrated the roofing system, with the caveat that water may extend outside his indicated area.  
No cut test was performed beneath the HVAC unit. Mr. Hanks’ email stated that there was water  
in varying amounts, and at cut test 23, between the sleepers “the hydrostatic pressure was high  
enough that water in the system rose above the membrane.”  
[23] Mr. Parker concurred with Hank’s assessment that there was likely water getting into the  
membrane, but he was not aware of any water underneath the HVAC unit. He testified that while  
water in the system may extend outside of the area marked on Mr. Hankssketch, there was no  
evidence to indicate that the water actually had gone any further.  
[24] Mr. Parker testified that he could not recall seeing water physically welling up at cut test  
23. He stated that because personnel were moving around on the roof, their own weight puts  
additional pressure on the insulation and can change its behaviour. He testified that as the core  
hole was being cut, the personnel standing on the roof provide a surcharge and increase the  
hydrostatic pressure artificially by their presence. Mr. Parker stated that he did not disagree with  
Mr. Hank’s observation regarding the hydrostatic pressure, but that he did not “necessarily take  
an awful lot of umbrage with the observation.”  
[25] With regard to Mr. Hanksobservations of split buckles and his observation that the  
insulation was “saturated”, Mr. Parker testified under cross-examination that he understood Mr.  
Hanks to be using the term “saturated” in its common sense meaning that there is a  
considerable body of water in the insulation. He testified that while he could not say whether the  
insulation was “saturated” in terms of its scientific meaning of the word, he agreed that it was  
really wet.  
[26] In an email to Mrs. Myron on November 20, 2012, Mr. Parker recommended at a  
minimum to replace the north half of the roof east of the expansion joints, with a conventional  
two-ply torch on membrane assembly. He recommended that pricing be obtained for the south  
half of the roof given that both north and south sides were similar. Mrs. Myron’s reply directed  
Mr. Parker to get designs and quotes for both the north and south sides of the roof and inquired  
whether any of the HVAC units would need to be removed. Mr. Parker did not specifically  
respond to Mrs. Myron’s inquiry regarding the removal of the HVAC units. He testified at trial  
that the addendum responded to her inquiry.  
[27] While Mrs. Myron testified that she understood there to be water beneath the HVAC unit  
and probably under the sleepers, she admitted under cross examination that she was never on the  
roof at any material time; she had no personal knowledge of whether the insulation was wet.  
Page: 5  
RJC Retained by Metrowest  
[28] Metrowest retained RJC as its consulting engineer for the roof replacement project at  
Deerfoot Square after Skylines inspection in November 2012. The Engineering Services  
Proposal dated December 17, 2012, and entered as an exhibit at trial stipulated RJC’s scope of  
work in providing consulting engineering services to Metrowest in support of the planned roof  
replacement. The scope of work included preparing the designs for the new roof assembly,  
tendering the project on behalf of Metrowest to the list of invited qualified roofing contractors,  
reviewing contractor queries, issuing addenda and assistance in reviewing bid submissions, and  
generally overseeing the work by the selected contractor. Mr. Parker testified that he was  
responsible for the design of the new roof assembly.  
Tendering and Bidding for Deerfoot Square Roof Replacement  
[29] RJC on behalf of Metrowest, commenced the tendering process in accordance with the  
Engineering Services Proposal. Mr. Parker and Amanda Wojda, a restoration and building  
science technologist with RJC, prepared the tender package and delivered it to the three  
contractors invited to bid on this project Flynn, Skyline and Tru-Craft. Ultimately, only Flynn  
and Skyline submitted bids.  
[30] While the initial tender package referenced in its table of contents two drawings labelled  
SK-1 General Notes and Roof Plan and SK-2 Sections and Typical Details, these two  
drawings should have been labelled as R1 and R2. Ms. Wojda testified that this was a  
typographical error in the initial tender package. R-1 General Notes and Roof Plan comprises  
both the north and south caps of the Deerfoot Square Roof. Both R1 and R2 are dated January  
2013. As such, the bidding contractors were invited to bid on the roof replacement for the entire  
roof, meaning both the north and south caps.  
[31] On March 7, 2013, there was a pre-tender closing site meeting. The contractors intending  
to bid on the project were invited to a site meeting to inspect the site, take measurements and  
tests prior to completing their tender. Flynn, Tru-Craft, Skyline, Mrs. Myron, Ms. Wojda and Mr.  
Parker were in attendance. Mr. Parker testified that concerns arose about removing the HVAC  
unit from the roof. Following this meeting, Mr. Parker and Ms. Wojda discussed strategies and  
designs for dealing with that concern, which led to the development of Addendum 1 and Detail  
1/SK-1. I note that the terms Addenda 1 and Addendum 1 are used interchangeably in some of  
the correspondence at trial.  
[32] Addendum 1 provides the following:  
ADDENDA  
.1  
2.  
The addenda listed below was issued prior to the signing of the Agreement and  
thus will be included in the General Contractor/Owner Agreement and will  
become part of the Contract. This addenda has been included as part of this  
specification Section 00 91 13.  
Clarifications  
1.  
Curb to be installed at mechanical unit to facilitate roofing without  
removing mechanical unit. Curb is to be tied into existing roof  
under mechanical unit and to existing mechanical support sleepers.  
Page: 6  
2.  
Scupper drainage system to be installed in curb to allow for  
drainage of roof assembly under mechanical unit. Slope insulation  
to drain moisture away from curb minimum 1%.  
DRAWINGS  
.1 Detail 1/SK-1 is provided for addenda noted above.  
[33] SK-1 is a sketch dated March 12, 2013 titled Typical Control Joint at Mechanical Unit.  
The sketch has various notes on it, including one in the top corner that states “Existing  
mechanical unit to say in place.”  
[34] Ms. Wojda distributed Addendum 1 to the bidding contractors via email on March 12,  
2013 at 4:52 p.m. Both Mrs. Myron and Mr. Parker were copied on this email:  
Good Afternoon,  
Please find attached Addenda 1 as per our meeting last week. Please feel free to  
call if there are any questions or concerns regarding the above.  
Regards,  
Amanda Wojda  
[35] Flynn and Skyline submitted bids by the closing on March 21, 2013. At 10:11 AM on  
March 22, 2013, Ms. Wojda sent Mrs. Myron an email enclosing a bid review letter that attached  
the bid submissions from Skyline and Flynn, and indicating that a hard copy had been mailed to  
Mrs. Myron for her records. The bids of both Flynn and Skyline reference Addendum 1.  
[36] Flynn’s bid at page 1 says:  
Having examined the Project site, and having carefully examined the General  
Conditions of the General Contract CCDC2 2008 as amended by Section 00  
73 00, Supplementary Conditions, the Specifications and Drawings, including  
Addenda 1 to 1 issued as supplements thereto...  
[37] Skyline’s bid at page 1 says:  
Having examined the Project site, and having carefully examined the General  
Conditions of the General Contract CCDC2 2008, as amended by Section 00  
73 00, Supplementary Conditions, the Specifications and Drawings, including  
Addenda One to N/A issued as supplements thereto...  
[38] Gary Playsted, Flynn’s roofing manager at the time and whose duties and responsibilities  
included overseeing the roofing department and the day-to-day operations regarding tendering  
procurement on site matters, testified that Addendum 1 would have been part of the documents  
used by Flynn to prepare their quote/estimate and their tender price. He further testified that  
Addendum 1 factored into the bid submitted by Flynn because it gives them instructions on how  
to facilitate the work around the HVAC unit and provides a sketch of the detailing of the work.  
His evidence was that he understood that Addendum 1 was encompassed in the work of the  
contract for the successful bidder, and that it became part of the scope of the work under the  
Contract.  
[39] Mr. Parker, Ms. Wojda and Mr. Playsted testified that Addendum 1 was not cancelled or  
withdrawn between the time it was issued until the time the tenders were received from Flynn  
Page: 7  
and Skyline on March 21, 2013. They also confirmed that it was not cancelled or withdrawn at  
any time between receiving the bids and when Mr. Playsted or Mrs. Myron signed the Contract  
on April 4 and April 11, 2013, respectively.  
[40] On March 22, 2013 at 11:40 AM, Mrs. Myron responded to Ms. Wojda’s email, seeking  
the following:  
Amanda,  
Please confirm that both contractors have bid as per the RJC requirements.  
Please send me the drawings of the areas that will be replaced and your  
recommendation as to which company to use.  
Please confirm that the insulation that was / is wet under the large mechanical  
units will be replaced and any other areas that need to be replaced on the new roof  
due to the water seeping under the new roof areas.  
...  
Thank you  
Elaine  
[41] On March 22, 2013 at 1:44 PM, Ms. Wojda replied to Mrs. Myron, advising as follows:  
Good afternoon Elaine,  
Skyline has an addition error in their bid, but both have met the requirements.  
Please find the drawings attached to this email as well as the spec package and  
addenda for the project. The intent is to replace the whole roof; however both bids  
do list separate prices for a phase 1 and phase 2 as indicated on the drawings.  
Under the mechanical units will not be replaced as the cost associated with  
removing the large mechanical units to facilitate the work is significant. The  
intent is to box them in and add a scupper for drainage if for some reason  
moisture was to make its way to those areas.  
We are waiting to hear back from the contractors on the dates and will let you  
know when we know.  
Regards,  
Amanda  
[Emphasis added]  
[42] Mrs. Myron testified at trial that the reference to phase 1 and phase 2 above in Ms.  
Wojda’s email referred to the north and south sections, respectively. Her evidence was that the  
bid package was to remove and replace the entire roof at Deerfoot Square, i.e. both the north and  
south caps, and separate prices were listed by the bidding contractors in their bids.  
[43] On March 22, 2013 at 2:11 PM, Mrs. Myron replied to Ms. Wojda, as follows:  
Skyline already confirmed that the insulation has become wet under the large  
mechanical units when the leak first became known .  
Page: 8  
What I understood is that there is room to actually remove the wet insulation  
under the hvac units and replace with new without removing the units, not just put  
a scupper there for drainage. Is this the plan? Please explain the process.  
I am confused as to why there is a quote on the whole roof when the roof under  
the hvac units was completed a few years ago.  
I cannot tell on the drawings where phase one or two is please outline clearly on  
the drawing phase one and phase two and what phase is under the hvac units.  
I would like to know why we have this pricing for under the Hvac units if you say  
the roof under the Hvac units will not be replaced?  
...  
Thank-you  
Elaine  
[Emphasis added]  
[44] On April 1, 2013 at 5:33 PM, Mrs. Myron emailed Ms. Wojda and Mr. Parker as follows:  
Amanda,  
Please send me the drawings by courier tomorrow as requested below and the  
confirmation by email that the insulation that was / is wet under the large  
mechanical units will be replaced and any other areas that need to be replaced on  
the new roof due to the water seeping under the new roof areas.  
Also, please send me a copy of the work and the drawing/plan that has been  
completed by skyline earlier in about 2006-7.  
...  
Elaine  
[Emphasis added]  
[45] The emails from March 22, 2013 make it clear that Mrs. Myron had been provided with  
Addendum 1, and understood that wet insulation under the HVAC unit would be replaced.  
[46] On April 2, 2013 at 8:23 AM, Mr. Parker responded to Mrs. Myron as follows:  
Elaine: I can confirm that the project will proceed as you have outlined.  
1. All wet or otherwise compromised roofing and insulation will be replaced  
including the insulation beneath the new mechanical unit.  
2. The work associated with Price 2 for the other half of the roof will only be  
authorized by you. Such authorization would be contingent on RJC  
confirming that the increase in scope was necessary due to irreparable  
deficiencies or moisture ingress in Roof Area 2. When Flynn are on site we  
will conduct additional investigation into Roof Area 2 and provide you with  
the report.  
With respect to the work completed previously by Skyline, attached is what I was  
able to retrieve from our files.  
Page: 9  
Updated drawings will be couriered to your office. One we have prepared the  
CCDC Contracts we will have Flynn execute them and then send them to your  
office for your review and execution.  
Regards,  
Philip Parker  
[Emphasis added]  
[47] Under cross-examination, when asked what he meant by ‘beneath’ in his April 2nd email,  
Mr. Parker testified as follows  
I meant that all of the wet or otherwise compromised roofing and insulation,  
including any that we may have found underneath the mechanical unit, would be  
replaced. So we removed all of the wet and compromised insulation. There was  
dry and uncompromised insulation under the mechanical unit that was left in  
place.  
[48] Mr. Parker stated that this was consistent with what was shown in sketch SK1 attached to  
Addendum 1. When Mr. Parker was pressed on cross-examination as to whether his evidence  
was inconsistent with the note on SK1 that says the HVAC unit would remain in place, Mr.  
Parker advised that it was not. He testified that there is simply not enough height to put a worker  
beneath the HVAC unit, but that they can remove the insulation using polesaws and rakes and  
can extend underneath the unit to remove and replace the wet insulation.  
[49] The Contract’s effective date was April 4, 2013. The Contract was signed by Gary  
Playsted of Flynn on April 4, 2013. Mr. Playsted testified that he did not notice that Addendum 1  
was not listed at the time he signed the Contract.  
[50] While it was originally contemplated by Metrowest that the entire roof would be replaced  
at Deerfoot Square, i.e. both the north and south sides, ultimately Metrowest chose not to replace  
the south half. Mrs. Myron testified that while the drawings R-1 and R-2 referenced in Article A-  
3 Contract Documents encompassed and contemplated Flynn replacing both the north and south  
sides, and that Flynn’s bid included prices for both halves, the scope of work was reduced to  
only the north side replacement. Mrs. Myron begrudingly acknowledged under cross-  
examination that arrangements were made between herself and RJC via email to remove the  
south side replacement from the scope of work under the Contract. Reluctantly, she admitted that  
there is no reference in the Contract reducing the scope of work to only the north cap and  
removing the south cap. Mr. Playsted also testified that there is no reference in the Contract that  
Flynn is only to re-roof the north half of R-1. The evidence is clear that the Contract does not  
reflect this reduction in the scope of work.  
April 5, 2013 Start-up Meeting, Notice of Proposed Change Order and Mrs.  
Myron’s Signing of the CCDC 2 Contract  
[51] On April 5, 2015, a start-up meeting took place at Deerfoot Square. Mrs. Myron, Ms.  
Wojda, Mr. Parker, and individuals from Flynn, including Brian McCaghren (the foreman on the  
Deerfoot Square project) attended. At this meeting, one of Flynn’s employees Nick Murphy  
proposed leaving the existing vapour barrier in place and adding a hot mop vapour barrier over  
top of the existing vapour barrier.  
Page: 10  
[52] Following the meeting, on April 5, 2013 at 3:40 PM Mrs. Myron emailed Ms. Wojda and  
Mr. Parker as follows:  
Amanda,  
...  
As discussed, please ensure that the labor for the change order that Flynn had  
brought to our attention today will be looked at for the cost of labor to remove  
what was in the contract to changing the scope and putting the new material over  
the existing. I want to ensure that the cost of the labour to remove the old roofing  
material will be deducted from the cost as it would be less labour intensive to just  
put down the new material over old rather than removing the old material. Flynn  
stated that this removal was very labor intensive and “impossible to do, as it  
comes off in small pieces”.  
...  
Please confirm to me that the removal and the scope of the work that RJC spec’d  
that Flynn contracted to do, cannot actually be completed on the roof and that the  
change will be agreed to by RJC and will be still under the full roof warranty.  
If this is correct, please let me know the cost savings for this change order.  
...  
Thank-you  
Elaine  
[53] Mr. Parker responded approximately an hour and a half later, indicating that “any  
changes to the project will be reviewed by RJC and from a technical standpoint must be  
acceptable to us and that they would not permit any changes that put the warranty in jeopardy.  
He further indicated that RJC would issue a Notice of Proposed Change (NOPC) to Flynn.  
[54] On the morning of April 6, 2013, Mrs. Myron responded to Parker’s email, requesting  
that other roofing companies quote the change. She also wrote I also find this change casually  
mentioned by Flynn yesterday in the meeting not just unprofessional but unethical and I cannot  
now condone and accept this change order by Flynn after they had signed the contract to do the  
work that was specified by Rjc”. On April 8, 2013 at 9:22 AM, Ms. Myron forwarded this email  
to Ms. Wojda, copying Mr. Parker.  
[55] On April 8, 2013 at 11:59 AM, RJC sent NOPC 1 to Flynn to provide pricing/credit on  
their proposal to leave the existing vapour barrier and add a hot mop vapour barrier on top of the  
existing vapour barrier. At 12:06 PM, Mrs. Myron emailed Ms. Wojda and Mr. Parker to reject  
this NOPC. In her email she wrote:  
Amanda,  
Please read the attached email to Phillip that I sent him on Saturday as well as to  
you this morning.  
I will not accept Flynn as the roofer to do any work on the government building,  
so this change order will not be agreed to as per my earlier emails.  
Page: 11  
Please have other roofing companies, Skyline and truecraft, quote if you feel this  
change is the only acceptable way to complete the roof now, which is contrary to  
the RJC specs given to Flynn and to Skyline.  
Thank-you  
Elaine  
[56] Later that same day at 1:39 PM, Mr. Parker emailed Mrs. Myron, confirming that he had  
spoken with Mr. Playsted who confirmed Flynn would complete the roof as originally specified,  
and advising Mrs. Myron to proceed with Flynn.  
[57] Mrs. Myron testified that her concern in the April 5th email was that Flynn said they were  
not going to do the work as per the Contract, and that she wanted to know that if Flynn was not  
going to do the work as per the Contract, that she would at least get a credit for the vapour  
barrier not being removed. Mrs. Myron further testified that she was not happy with Mr. Parker’s  
response, and confirmed that NOPC 1 was not approved by Metrowest. In my view, it appears  
that one of the reasons Mrs. Myron rejected NOPC 1 was because of the manner in which it was  
brought up by a Flynn employee at the start-up meeting; in her view it was “unprofessional” and  
“unethical”. She further seems very focused on Flynn performing the Contract exactly as  
specified, yet through email correspondence with RJC and without any reference in the Contract  
reduced Flynn’s scope of work to only one half of what was originally contemplated. In essence,  
she is then at the same time asking Flynn not to perform the work as the Contract specifies.  
[58] When Mr. Parker was asked regarding NOPC 1 at trial, he stated “Well, that was an  
episode”. Mr. Parker testified that at the April 5, 2013 start up meeting, one of Flynn’s  
representatives made an ill-timed, inappropriate, poor venue proposal to leave the existing  
vapour barrier on the roof assembly.Mr. Parker testified that he prepared NOPC 1 so as to  
present the proposal in the appropriate manner. He confirmed that NOPC 1 was not approved,  
and that RJC’s instructions to Flynn were to proceed as per the specifications, which included  
Addendum 1.  
[59] On April 11, 2013, Mrs. Myron sent an email to Mr. Parker stating:  
I have received the CCDC 2 contract to sign for deerfoot square, please confirm  
that the contract has no changes, as per our discussions and that the change order  
attached will not go ahead. Please confirm that the work noted in this contract is  
as per the original RJC specs quoted and signed off by Flynn Canada Ltd.  
[60] Mr. Parker responded approximately two hours later stating “Elaine: the contract cannot  
be changed in any way without your signature to authorize such a change so to date there are  
no changes. Notice of Proposed Change #1 is withdrawn. Specifications for the work remain  
unchanged at this time.” Mr. Parker testified that the reference in his email to “the specifications  
for work remain unchangedincluded reference to the Addendum 1. His evidence was that the  
work noted in the Contract as per the original RJC specs that were quoted and signed off by  
Flynn, included Addendum 1 because Flynn included Addendum 1 and noted it in their bid form.  
Mrs. Myron responded to Mr. Parker’s email indicating that “Two signed contracts will be  
couriered to Amanda today.”  
[61] Mrs. Myron signed the Contract on April 11, 2013.  
Page: 12  
[62] Flynn commenced work April 10, 2013. On May 23, 2013, Mr. Playsted signed the  
Certificate of Substantial Performance. He testified that he was certifying that Flynn’s work was  
performed in accordance with the satisfaction of the owner’s engineer.  
Issues  
[63] The issues are:  
1. Does Addendum 1 form part of the Contract? Is Flynn entitled to the remedy of  
rectification due to mistake?  
2. Was Flynn in breach of the Contract or negligent?  
3. What damages, if any, are payable to Metrowest?  
4. Is Flynn entitled to the balance of its outstanding invoices?  
Positions of the Parties  
i.  
Metrowest’s Position  
[64] Metrowest argues that Flynn did not install the roof in compliance with the specifications  
set out in the Contract. Metrowest takes the position that there was no mistake about the terms of  
the Contract; Addendum 1 was not part of the Contract, and Flynn should not be entitled to the  
remedy of rectification. Metrowest submits that the Contract required the removal of all existing  
roofing materials, which included removal of materials beneath the HVAC unit.  
[65] Metrowest argues that Flynn installed a fundamentally deficient and flawed roof such that  
only complete removal and replacement is appropriate. Relying on its expert evidence,  
Metrowest submits that the lack of adhesion between the roofing layers or to the concrete slab  
results in a risk of premature failure and deterioration, leakage issues and a risk of the roof  
potentially flying off during strong winds.  
[66] Metrowest argues that Flynn breached the Contract, and that the evidence at trial  
demonstrates that the roofing system at Deerfoot Square has numerous defects in its material  
installation and performance. Metrowest focused its argument on three aspects: 1) the  
installation; 2) the non-removal of the roofing material under the HVAC unit; and 3) the curbing  
in of the HVAC. Metrowest’s position is that due to these breaches, the roofing system must be  
completely removed and replaced to prevent further damage and to avoid the risk of a potentially  
catastrophic failure of the roofing system.  
[67] Metrowest argues that Flynn was negligent because it failed to act as a competent and  
careful builder would as Flynn (a) failed to comply with the design intent of the Contract; (b)  
failed to conduct moisture readings; (c) installed a defective roof that is at risk of water ingress,  
premature failure and deterioration, a reduction in lifespan, or a “complete cataclysmic event”;  
(d) followed roofing methods which caused or will cause substantial damage to Deerfoot Square  
and the HVAC unit; (e) used materials not in compliance with the Manufacturers’ specifications  
which could nullify Metrowest’s entitlement to the 10-year manufacturers’ warranty; and (f)  
installed a roof that is failing prematurely and requires replacement before the end of its natural  
lifespan.  
Page: 13  
[68] Metrowest submits that it should receive damages for a complete replacement roof, plus a  
15% contingency allowance and the amount for required engineering costs. Metrowest submits  
that the cost of a new roofing system is estimated at $451,012.58.  
[69] Metrowest takes the position that Deerfoot Square has diminished in value as a result of  
the defective roof installed by Flynn. It argues that because of the diminished value, and the  
additional costs incurred by Metrowest as a result of Flynn’s deficient installation, Flynn’s claim  
for payment of outstanding invoices should be dismissed, or alternatively, only ordered to be  
paid contingent upon the delivery of a valid 10-year systems warranty. Metrowest further claims  
for the costs incurred as a result of two incidents that occurred during Flynn’s roof installation in  
April and May 2013, being a hydraulic fluid spill and a roofing material fly off event.  
[70] Metrowest claims that the diminution in the value of the property is estimated at  
$451,012.58. It estimates the costs incurred because of Flynn’s negligence amounts to  
$26,970.50.  
ii. Flynn’s Position  
[71] Flynn submits that it was a mistake that Addendum 1 was not included in the formal  
written Contract. It submits that the Contract should be rectified to include the scope of work  
referred to in Addendum 1. Flynn argues that the evidence demonstrates that Metrowest knew  
Addendum 1 was part of the Contract, and is trying to take advantage of an oversight.  
[72] Flynn submits that it performed the work in accordance with the Contract. It denies that  
its work was deficient. Flynn states that the Deerfoot Square roof does not leak, no repairs have  
been made and it has not blown off. Flynn relies on the evidence that there had never been a leak  
in the roofing system in the five and a half year period between the roof completion and the end  
of trial. Despite significant wind storms during that time frame, there had never been a roof  
blow-off event. Flynn further submits that during that same time frame, Metrowest did not take  
any remedial steps to replace the roof despite its allegations of deficient work by Flynn and its  
alleged concern of the risk of the roof blowing off. It is Flynn’s position that Metrowest has  
failed to establish that there are any significant deficiencies that justify the claim for an entire  
roof replacement. Flynn argues that Metrowest has neither suffered nor proven any damages.  
[73] Flynn argues that it is entitled to the balance of outstanding invoices owed by Metrowest  
to Flynn, in the amount of $98,923.94, being the principal amount owing from the 2013 invoices,  
plus pre-judgment interest at the contractual interest rate. In the alternative, Flynn seeks  
judgment in the amount above, less the sum of $60,000.00, which is a reasonable amount to  
provide for an alternative ballasting methodology to address any deficiencies.  
Credibility  
[74] Before moving into my analysis of the issues, I find it necessary to comment on  
credibility, and in particular, the credibility of Mrs. Myron.  
[75] The Supreme Court of Canada in FH v McDougall, 2008 SCC 53, confirmed that the  
proof in civil cases is balance of probabilities. It confirmed that a judge should be mindful of  
inherent probabilities and improbabilities. Evidence must always be clear, convincing and cogent  
to satisfy the balance of probabilities test. Testimony must not be considered in isolation, but  
rather examined based upon the totality of the evidence. The impact of inconsistencies on  
questions of credibility and reliability must be assessed.  
Page: 14  
[76] The witnesses in this trial were credible and reliable. However, I do not find the same  
applies to Mrs. Myron. While under direct examination, Mrs. Myron generally had a good recall  
and was forthcoming with her answers. She was compliant with counsel and provided fulsome  
answers where the information was in her favour. However, under cross-examination, Mrs.  
Myron was evasive and at times, approaching argumentative. She frequently did not recall  
information that she had under direct examination. She evaded answering even simple questions  
asked by Flynn’s counsel. It gave me the impression that where an answer may help her case, she  
was forthcoming, however where an answer could be seen to hinder her position, Mrs. Myron  
was not.  
[77] This tainted Mrs. Myron’s evidence. It impacted the weight of what she had to say. I find  
that her evidence where it conflicts with other witnesses was generally unreliable.  
Issue 1: Does Addendum 1 form part of the Contract?  
[78] Flynn argues that basic contract interpretation principles considering the factual matrix,  
and in particular the email correspondence between Metrowest and RJC, establish that  
Addendum 1 forms part of the Contract. Flynn submits that the evidence demonstrates that it was  
an oversight that Addendum 1 was not listed in the written Contract. Flynn seeks rectification  
based on mutual mistake, or in the alternative, unilateral mistake, although unilateral mistake is  
not specifically plead in its Statement of Defence.  
[79] Metrowest argues that Addendum 1 is not part of the Contract. It relies in part on the  
“entire agreement” clause.  
A. Relevant Terms of the Contract  
[80] The following provisions of the Contract are relevant to the issue of mistake and  
rectification:  
ARTICLE A-1 THE WORK  
The Contractor shall:  
1.1  
perform the Work required by the Contract Documents for Deerfoot Square Roof  
replacement located at 2938 11 Street NE Calgary, AB for which the Agreement  
has been signed by the parties, and for which Read Jones Christoffersen Ltd. Is  
acting as and is hereinafter called the “Consultant” and  
1.2  
do and fulfill everything indicated by the Contract Documents...  
ARTICLE A-2 AGREEMENTS AND AMENDMENTS  
2.1  
The Contract supersedes all prior negotiations, representations or agreements,  
either written or oral, relating in any manner to the Work, including the bidding  
documents that are not expressly listed in Article A-3 of the Agreement –  
CONTRACT DOCUMENTS.  
ARTICLE A-3 CONTRACT DOCUMENTS  
3.1  
The following are the Contract Documents referred to in Article A-1 of the  
Agreement THE WORK:  
- Agreement between Owner and Contractor  
Page: 15  
- Definitions  
- The General Conditions of the Stipulated Price Contract  
*
Specification Section Name  
Page  
00 73 00  
01 10 01  
01 78 36  
06 10 00  
07 53 52  
07 62 00  
Supplementary Conditions  
9
8
2
4
General Requirements  
Warranties and Bonds  
Rough Carpentry  
Modified Bitumen Membrane Roofing 12  
Metal Flashing and Trim  
4
Drawing  
R-1  
Date  
General Notes and Roof Plan  
Typical Sections and Details  
January 2013  
January 2013  
R-2  
*
(Insert here, attaching additional pages if required, a list identifying all other Contract  
Documents e.g. supplementary conditions; information documents; specifications, giving  
a list of contents with section numbers and titles, number of pages and date; material  
finishing schedules, drawings, giving drawing number, title, date, registration date or  
mark; addenda, giving title, number, date)  
[81] Addendum 1 is not listed under Article 3- Contract Documents, section 3.1 of the  
Contract.  
B. General Principles regarding Contract Interpretation  
[82] A CCDC 2 contract is a standard form commercial contract that governs process; the  
parties negotiate substantive terms: ASC (AB) Facility Inc v Man-Shield (Alta) Construction,  
2018 ABQB 130 at para 11 [ASC]. It was developed with significant industry input. The CCDC  
2 should be read as a whole while keeping in mind the surrounding circumstances such as the  
purpose of the agreement, the nature of the relationship it creates, and the industry in which it  
was executed: ASC at para 12, citing Creston Moly Corp v Sattva Capital Corp, 2014 SCC 53  
[Sattva] at paras 47, 48.  
[83] Contract interpretation requires a practical, common-sense approach; the overriding  
concern is to determine the intent of the parties and the scope of their understanding. A decision-  
maker must read the contract as a whole, consistent with the surrounding circumstances known  
to the parties at the time of formation of the contract: Sattva at para 47.  
[84] An examination of the surrounding circumstances deepens a decision-maker’s  
understanding of the mutual and objective intentions of the parties as expressed in the words of  
the contract: Sattva at para 57. It should consist only of objective evidence of the background  
Page: 16  
facts at the time of the execution of the contract facts known or facts that reasonably ought to  
have been known to both the parties at or before the date of contracting: Sattva at paras 58, 60.  
[85] Surrounding circumstances includes “absolutely anything which would have affected the  
way in which the language of the document would have been understood by a reasonable man”.  
Whether something was or reasonably ought to have been within the common knowledge of the  
parties at the time of execution of the contract is a question of fact: Sattva at para 58.  
[86] The Alberta Court of Appeal in IFP Technologies (Canada) Inc v EnCana Midstream  
and Marketing, 2017 ABCA 157 [IFP], reiterated the principles of contractual interpretation as  
set out in Sattva, and highlighted the requirement to consider the factual matrix. At paragraph 80,  
Chief Justice Fraser stated that the courts ought to “have regard for the surrounding  
circumstances of the contract often referred to as the factual matrix when interpreting a  
written contract” because “ascertaining contractual intention can be difficult when looking at  
words on their own, because words alone do not have an immutable or absolute meaning”: IFP  
at para 80, citing Sattva at paras 46, 47.  
[87] In IFP, Chief Justice Fraser wrote:  
81  
Therefore, while the factual matrix cannot be used to craft a new  
agreement, a trial judge must consider it to ensure the written words of the  
contract are not looked at in isolation or divorced from the background context  
against which the words were chosen. The goal is to deepen the trial judge’s  
understanding of the mutual and objective intentions of the parties as expressed in  
the words of the contract. This approach is in keeping with Lord Steyn’s famous  
admonition in Regina v Secretary of State for the Home Department, Ex Parte  
Daly, [2001] UKHL 26 at para 28 that “[i]n law context is everything”.  
82  
Thus, in interpreting a contract, a trial judge must consider the relevant  
surrounding circumstances even in the absence of ambiguity. [citations omitted]  
[88] Written evidence of negotiations is far more objective evidence of the parties’ intentions  
then after the fact evidence from opposing parties about oral statements made during  
negotiations: IFP at para 85. In addition, commercial contracts should be interpreted in  
accordance with sound commercial principles and good business sense; courts should not  
interpret a contract in a way that yields an unrealistic or absurd result: IFP at para 88, affirmed in  
ASC at para 13.  
C. Authority and Role of the Consultant under the CCDC 2 Contract  
[89] The following provisions outline the authority and role of the consultant pursuant to the  
Contract:  
PART 2 ADMINISTRATION OF THE CONTRACT  
GC 2.1 AUTHORITY OF THE CONSULTANT  
2.1.1 The Consultant will have authority to act on behalf of the Owner only to the extent  
provided in the Contract Documents, unless otherwise modified by written agreement as  
provided in paragraph 2.1.2.  
Page: 17  
2.1.2 The duties, responsibilities and limitations of authority of the Consultant as set forth  
in the Contract Documents shall be modified or extended only with the written consent of  
the Owner, the Contractor and the Consultant.  
...  
GC 2.2 ROLE OF THE CONSULTANT  
2.2.1 The Consultant will provide administration of the Contract as described in the  
Contract Documents.  
2.2.2 The Consultant will visit the Place of Work at intervals appropriate to the  
progress of construction to become familiar with the progress and quality of the  
work and to determine if the work is proceeding in general conformity with the  
Contract Documents.  
...  
2.2.6 The Consultant will not be responsible for and will not have control, charge or  
supervision of construction means, methods, techniques, sequences or procedures, or for  
safety precautions and programs required in connection with the Work in accordance with  
applicable construction safety legislation, other regulations or general construction  
practice. The Consultant will not be responsible for the Contractor’s failure to carry out  
the Work in accordance with the Contract Documents. The Consultant will not have  
control over, charge of or be responsible for the acts or omissions of the Contractor,  
Subcontractor, Suppliers, or their agents, or any other persons performing portion of the  
Work.  
...  
2.2.13 During the progress of the Work the Consultant will furnish Supplemental  
Instructions to the Contractor with reasonable promptness or in accordance with a  
schedule for such instructions agreed to by the Consultant and the Contractor.  
...  
2.2.15 The Consultant will prepare Change Orders and Change Directives as provided in  
GC 6.2 CHANGE ORDERS and GC 6.3 CHANGE DIRECTIVE.  
...  
2.2.17 All certificates by the Consultant will be to the best of the Consultant’s  
knowledge, information and belief. By issuing any certificate, the Consultant does not  
guarantee the Work is correct or complete.  
[90] Contract Documents are defined in the Contract as  
consist[ing] of those documents listed in Article A-3 of the Agreement –  
CONTRACT DOCUMENTS and amendments agreed upon between the parties.  
[91] Change Directive is defined in the Contract as  
a written instruction prepared by the Consultant and signed by the Owner  
directing the Contractor to proceed with a change in the Work within the general  
scope of the Contract Documents prior to the Owner and the Contractor agreeing  
upon adjustments in the Contract Price and the Contract Time.  
Page: 18  
[92] Change Order is defined in the Contract as  
a written amendment to the Contract prepared by the Consultant and signed by  
the Owner and the Contractor stating their agreement upon a change in the Work;  
the method of adjustment or the amount of the adjustment in the Contract Price,  
if any; and the extent of the adjustment in the Contract Time, if any.  
[93] Supplemental Instructions is defined in the Contract as  
an instruction, not involving adjustment in the Contract Price or Contract Time,  
in the form of Specifications, Drawings, schedules, samples, models or written  
instructions, consistent with the intent of the Contract Documents. It is to be  
issued by the Consultant to supplement the Contract Documents as required for  
the performance of the Work.  
[94] Drawings R-1 and R-2 contain provisions with respect to the Consultant’s role:  
FIELD REVIEW BY READ JONES CHRISTOFFERSEN (RJC)  
1. Read Jones Christoffersen provides field review only for the work shown on these  
drawings. This review is not a “full time” review but is conducted with such  
frequency as RJC deems appropriate to observe various states of the work and to  
ascertain that the work is in general conformance with the plans and supporting  
documents prepared by RJC. Field review by RJC is not carried out for the  
contractor’s benefit, nor does it make RJC guarantors of the contractor’s work. It  
remains the contractors responsibility to build the work in conformance with the  
contract documents. RJC will not be responsible for the acts or omissions of the  
contractor, or for the failure of any of them to carry out the work in accordance with  
the contract documents.  
[95] With respect to the authority and role of the Consultant under a CCDC 2 contract, in ASC  
Justice Antonio made some helpful findings at paragraph 19 of her decision, which I summarize  
here. The Consultant is empowered to make decisions in real time or as close to it as possible.  
They are chosen because of their expertise in the relevant areas of a construction project. Their  
access to the work site and their expertise to evaluate the work, including the state of completion  
of the work, are essential. The Consultant has regular engagement with the owner, the contractor,  
the work performed by the contractor, and the contractual obligations: see ASC at para 19.  
[96] In this case, Metrowest engaged RJC as its consultant. The Engineering Services  
Proposal as well as the provisions in the Contract stipulate RJC’s authority and role with respect  
to the Deerfoot Square project. RJC was heavily involved in and handled the tendering and  
bidding process. RJC had access to the work site and used its expertise to evaluate Flynn’s work  
during the process of the roof replacement. Part of RJC’s role in this regard was to address any  
concerns raised by Flynn during the performance of the work under the Contract, and for Mr.  
Parker to use his knowledge and experience to determine whether any requested adjustments to  
the work arising required a change order, an NOPC or a Supplemental instruction, or whether the  
adjustment was within the specifications of the Contract, or within the contractor’s means and  
methods. RJC was responsible for site visits and preparation of the site visit reports. RJC had  
authority to act on behalf of the owner Metrowest. RJC was responsible for certifying the work  
completed by Flynn.  
Page: 19  
[97] Communication occurred between RJC and Metrowest, and RJC and Flynn. There was  
no direct communication between Metrowest and Flynn. RJC was the go-between. This is  
supported by the testimony of Gary Playsted who testified that he never had any communication  
with Mrs. Myron before the Contract was signed. When asked who Flynn dealt with when it was  
determining the scope of work under the Contract, Mr. Playsted testified “Phil Parker and  
Amanda Wojda of RJC. They were the owner’s consultant.” In my view, the evidence supports a  
finding that Flynn was entitled to rely on RJC’s representations and instructions with respect to  
the Deerfoot Square roof replacement project.  
D. Rectification for Mutual Mistake  
[98] Canada (Attorney General) v Fairmont Hotels Inc, 2016 SCC 56 [Fairmont] is the  
leading authority on rectification. At paragraph 38, Justice Brown for a unanimous Supreme  
Court of Canada summarized rectification as follows:  
Rectification is an equitable remedy designed to correct errors in the recording of terms  
in written legal instruments. Where the error is said to result from a mistake common to  
both or all parties to the agreement, rectification is available upon the court being  
satisfied that, on a balance of probabilities, there was a prior agreement whose terms are  
definite and ascertainable; that the agreement was still in effect at the time the instrument  
was executed; that the instrument fails to accurately record the agreement; and that the  
instrument, if rectified, would carry out the parties’ prior agreement. In the case of a  
unilateral mistake, the party seeking rectification must also show that the other party  
knew or ought to have known about the mistake and that permitting the defendant to take  
advantage of the erroneously drafted agreement would amount to fraud or the equivalent  
of fraud.  
[99] At paragraph 12, Fairmont states:  
12  
If by mistake a legal instrument does not accord with the true agreement it was  
intended to record because a term has been omitted, an unwanted term included, or a  
term incorrectly expresses the parties' agreement a court may exercise its equitable  
jurisdiction to rectify the instrument so as to make it accord with the parties' true  
agreement. Alternatively put, rectification allows a court to achieve correspondence  
between the parties' agreement and the substance of a legal instrument intended to record  
that agreement, when there is a discrepancy between the two. Its purpose is to give effect  
to the parties' true intentions, rather than to an erroneous transcription of those true  
intentions (Swan and Adamski, at §8.229).  
[100] Common mistake arises when both parties subscribe to an instrument under a common  
mistake that it accurately records the terms of their antecedent agreement: see Performance  
Industries Ltd v Sylvan Lake Golf & Tennis Club Ltd, 2002 SCC 19 [Performance Industries].  
[101] Rectification corrects the recording in an instrument of an agreement: Fairmont at para  
30. The purpose is “to restore the parties to their original bargain, not to rectify a belatedly  
recognized error of judgment by one party or the other”: Fairmont at para 13; Beazer v  
Tollestrup Estate, 2017 ABCA 429 at para 52, citing Performance Industries at para 31.  
[102] The Supreme Court of Canada in Fairmont cautioned that rectification should not be a  
substitute for due diligence at the time a document is signed; it is limited to cases where the  
agreement between the parties was not correctly recorded in the instrument that became the final  
Page: 20  
expression of their agreement: Fairmont at para 3, 13. Showing mere intentions is insufficient.  
The party seeking to correct an erroneously drafted written instrument on the basis of a common  
mistake must first demonstrate its inconsistency with an antecedent agreement with respect to  
that term: Fairmont at para 29.  
[103] The party seeking rectification needs to show the alleged error in the instrument and the  
way in which the instrument should be rectified to correctly record what the parties intended to  
do. It must identify the omitted or incorrectly recorded terms, which, if correctly recorded, are  
sufficiently precise to constitute the terms of an enforceable agreement: Fairmont at para 32.  
[104] The Alberta Court of Appeal in Composite Technologies Inc v Shawcor Ltd, 2017  
ABCA 160 at paragraph 129 reiterated that the law on rectification is clear, citing the principles  
set out in Fairmont.  
[105] In Chateauvert v Chateauvert, 2018 ABQB 2, Chief Justice Moreau outlined the test for  
rectification in the case of mutual and common mistake as set out in Nature Conservancy of  
Canada / Societe Canadienne Pour La Conservation De La Nature v Waterton Land Trust  
Lte, 2014 ABQB 303 at para 300:  
1. The existence and nature of a common intention by the parties prior to making of the  
document or instrument alleged to be deficient;  
2. That this common intention remained unchanged at the date that the document or  
instrument was made; and  
3. That the alleged document or instrument, by mistake, does not conform to the parties’  
prior common intention.  
[106] The standard of proof that applies to all civil cases is the balance of probabilities:  
McDougall at para 40. Evidence must always be sufficiently clear, convincing and cogent:  
McDougall at para 46; Fairmont at para 36. “Convincing proof” is required to counteract the  
cogent evidence of the parties’ intention displayed by the instrument itself: Fairmont at para 36;  
see also Performance Industries at para 41.  
[107] Metrowest argues that there was no mutual or unilateral mistake regarding the Contract.  
It states that Addendum 1 did not form part of the Contract because it was not listed in Article A-  
3 Contract Documents. Metrowest relies on the testimony of Mrs. Myron, the email  
correspondence between March 22 and April 11, 2013, and the “entire agreement” clause in the  
at 2.1 of Article A-2 of the Contract. Metrowest further asserts that Flynn has not satisfied the  
high threshold for a court to order the remedy of rectification. I disagree.  
[108] The evidence supports a finding of a prior agreement between Metrowest and Flynn.  
Metrowest retained RJC as its consulting engineer with respect to the Deerfoot Square project.  
Part of RJC’s role as consultant pursuant to the Contract was to tender the project, review  
contractor queries, issue addenda and review bid submissions. RJC was the go-between between  
the owner Metrowest and the contractor Flynn. There was no evidence provided at trial to  
indicate that there was any communication between Metrowest and Flynn all communication  
went through RJC.  
[109] RJC developed Addendum 1 following a pre-tender closing site meeting on March 7,  
2013 when concerns were raised regarding removing the HVAC unit on site. Testimony from  
Mr. Parker and Ms. Wojda indicated that lifting the HVAC unit off the roof was extremely  
Page: 21  
costly, and would necessarily have involved permission from the airport authority due to the size  
of crane required for such a large HVAC unit being in a direct flight path.  
[110] Addendum 1 was listed in the tender submitted and distributed to the bidding contractors;  
it formed part of the spec package that the bidders used to prepare their bid for the Deerfoot  
Square project. Ms. Wojda copied Mrs. Myron on the email with these documents attached on  
March 12, 2013. While Mrs. Myron testified that she had not seen the bid package that had gone  
out to the bidders prior to March 22, 2013, the emails indicate that she was copied on this email,  
and as such, would have seen it.  
[111] The bids submitted on March 21, 2013 specifically referenced Addendum 1, and the  
prices reflected Addendum 1. Ms. Wojda sent the submitted bids, and the Spec Package and  
Addendum 1 to Mrs. Myron on March 22, 2013. Mrs. Myron had ample opportunity to  
specifically address Addendum 1 and ensure it was not part of the Contract. Yet, she did not do  
so. She continued to reiterate her concern about the removal of wet and/or compromised  
insulation a concern that Mr. Parker and Ms. Wojda were aware of and acknowledged.  
[112] The subsequent conduct of RJC and Flynn is consistent with Addendum 1 forming part of  
Contract. Ms. Wojda and Mr. Playsted testified that Flynn generally performed the work in  
accordance with Addendum 1.  
[113] The agreement was in effect at the time of signing. The testimony of Mr. Parker, Ms.  
Wojda and Mr. Playsted confirm that Addendum 1 was not cancelled or withdrawn between the  
date of its issue and the date bids were received by Flynn and Skyline. Both Mr. Parker and Ms.  
Wojda testified that Addendum 1 was left off the list by mistake.  
[114] Further, I find that the email correspondence sent by Mrs. Myron to RJC indicate that her  
concern was the removal of wet and/or compromised insulation. The written evidence being the  
email correspondence between Mrs. Myron and RJC, and the inclusion of Addendum 1 in the  
tender and bidding documents are far more objective evidence than Mrs. Myron’s testimony at  
trial. Mr. Parker testified that Metrowest was a “rather engaged client” throughout the project.  
Mrs. Myron’s testimony that Addendum 1 was not part of the Contract is implausible given the  
totality of the evidence. When asked why Addendum 1 was not listed, Ms. Wojda and Mr. Parker  
testified that it was an oversight.  
[115] The Contract fails to list Addendum 1 under section 3.1 of the Contract. This is not a  
disputed fact. Rectification in this instance gives effect to the true intention of the parties, rather  
than a transcription mistake. I find that the evidence establishes that Addendum 1 was  
mistakenly left off under Article 3 Contract Documents of the Contract. The email  
correspondence between Metrowest and RJC demonstrates that Metrowest was aware of and  
agreed with leaving the HVAC unit in place. The concern was that all wet and/or compromised  
insulation was removed. The mistake here was the failure to list Addendum 1 in Article A-3  
Contract Documents due to an inadvertent oversight.  
[116] In my view, it is clear on the evidence before me that it was a mistake to not have listed  
Addendum 1 in the Contract. Rectification in this case restores Metrowest and Flynn to its  
original bargain. I find that Flynn has met the requirement of “convincing proof” such that  
rectification due to mutual mistake is warranted.  
Page: 22  
[117] Therefore, I order rectification of the Contract to include listing Addendum 1 under  
Article 3 Contract Documents. This necessarily means that the scope of work pursuant to the  
Contract includes Addendum 1.  
[118] Given my finding above that rectification is appropriate in this case of mutual mistake, it  
is unnecessary to address rectification due to unilateral mistake.  
Issue 2: Was Flynn in breach of Contract and/or negligent?  
A. Relevant Terms of the Contract  
[119] The following provisions of the Contract are relevant to the issues of breach of contract  
and negligence:  
ARTICLE A-1 THE WORK  
The Contractor shall:  
1.1  
perform the Work required by the Contract Documents for Deerfoot Square Roof  
replacement located at 2938 11 Street NE Calgary, AB for which the Agreement has  
been signed by the parties, and for which Read Jones Christoffersen Ltd. Is acting as and  
is hereinafter called the “Consultant” and  
1.2  
...  
do and fulfill everything indicated by the Contract Documents...  
ARTICLE A-2 AGREEMENTS AND AMENDMENTS  
2.1  
The Contract supersedes all prior negotiations, representations or agreements,  
either written or oral, relating to any manner to the Work, including the bidding  
documents that are not expressly listed in Article A-3 of the Agreement –  
CONTRACT DOCUMENTS.  
2.2  
...  
The Contract may be amended only as provided by the Contract Documents.  
GC 3.10 SHOP DRAWINGS  
3.10.1 The Contractor shall provide Shop Drawings as required in the Contract  
Documents.  
3.10.2 The Contractor shall provide Shop Drawings to the Consultant to review...  
...  
3.10.4 The Contractor shall provide Shop Drawings in the form specified, or if not  
specified, as directed by the Consultant.  
...  
3.10.6 The Consultant’s review is for conformity to the design concept and for general  
arrangement only.  
...  
Page: 23  
3.10.8 The Contractor shall review all Shop Drawings before providing them to the  
Consultant. The Contractor represents by this review that:  
.1 the Contractor has determined and verified all applicable field measurements,  
field construction conditions, Product requirements, catalogue numbers and  
similar date, or will do so, and  
.2 the Contractor has checked and co-ordinated each Shop Drawing with the  
requirements of the Work and of the Contract Documents.  
3.10.9 At the time of providing Shop Drawings, the Contractor shall expressly advise  
the Consultant in writing of any deviations in a Shop Drawing from the  
requirements of the Contract Documents. The Consultant shall indicate the  
acceptance or rejection of such deviation expressly in writing.  
3.10.10 The Consultant’s review shall not relieve the Contractor of responsibility for  
errors or omissions in the Shop Drawings or for meeting all requirements of the  
Contract Documents.  
[120] Shop Drawings are defined in the Contract as  
drawings, diagrams, illustrations, schedules, performance charts, brochures,  
Product data, and other date which the Contractor provides to illustrate the details  
of portions of the Work.  
[121] Section 01 10 01 GENERAL REQUIREMENTS provides:  
1.1 DESCRIPTION OF WORK  
.1  
.2  
Conduct the Work to roof at 2938 11th Street N.E. building as  
denoted on the drawings as described herein. The work outlined  
below is general in nature. For the complete scope of work, refer to  
the drawings, addenda and other sections of the specifications.  
The Work includes, but is not necessarily limited to the following:  
.1  
Demolish and remove all existing roofing materials, down  
to the structural slab.  
.2  
Supply and install new roofing assemblies as denoted on  
the drawings and in accordance with applicable  
specification sections.  
[122] Section 07 53 52 MODIFIED BITUMEN MEMBRANE ROOFING provides:  
1.1 WORK INCLUDED  
.1  
Remove the existing roofing assembly down to the structural deck  
and install new roofing assemblies, sheet metal flashings, wood  
blocking and sealants as described on the drawings.  
...  
1.9 COMPATABILITY  
.1 Compatibility between all components of roofing system is  
essential.  
Page: 24  
.2  
.3  
The Contractor shall be responsible for ensuring that all items  
elected for use are compatible with each other.  
Procure all roofing membranes from one manufacturer certified by  
them that all components are compatible with each other.  
...  
2.1 VAPOUR RETARDER  
.1  
SBS modified bitumous membrane with reinforcement to CGSB  
37-GP-56  
.2  
Manufacturer:  
.1  
.2  
Lastobond 195 or 240 by Soprema  
IKO MVP by IKO Industries Ltd.  
1.2 MODIFIED BITUMEN TORCH APPLIED MEMBRANE  
.1 Two (2) ply system made from prefabricated modified bitumen  
membranes containing minimum 15% of elastomer Styrene Butadiene  
Sytrene (SBS) and reinforced with nonflammable, fireproof and stress-  
resistant insert of glass fibre or polyester.  
...  
2.3VAPOUR RETARDER  
.1  
For Self-adhering vapour retarder.  
.1  
...  
.3  
Prime deck as recommended by manufacturer.  
Apply pressure to membrane surface to ensure adequate  
adhesion...  
[123] Section 01 78 40 WARRANTIES AND BONDS provides:  
1.2 ROOFING SYSTEM WARRANTY/GUARANTY PERIOD  
.1  
All of the Work of the Contract shall include a written joint and several  
certificate, signed by both the Manufacturer and Contractor, providing a  
ten (10) year warranty, commencing on the Final Holdback release date  
stating that all materials and labour shall be free of defects, premature  
deterioration and will not leak of a ten (10) year warranty period. Submit  
signed certificates assuring the above to the Owner.  
B. Legal principles regarding breach of contract and negligence  
[124] Justice Nielsen in Vermillion & District Housing Foundation v Binder Construction  
Limited, 2017 ABQB 365, outlines legal principles regarding breach of contract and negligence  
in construction:  
121  
A contractor must act according to the terms of the contract and the directions of  
the consultant authorized under the construction contract. In the absence of an express  
Page: 25  
provision to the contrary, a contractor is in breach of the contract if it does not carry out  
the performance obligations in the contract or if it performs work which does not meet  
the requirements of the express terms and specifications and the implied terms of the  
contract. A contractor who undertakes to carry out the work according to specifications  
must adhere strictly to all the details, and is not entitled to make substitutions or changes  
without the owner's consent. If the contractor holds itself out as qualified to do the work,  
then a failure to do so competently is a breach of contract. Whether work or material  
supplied by the contractor is defective or not is a question of fact in each case, depending  
on the proper interpretation of the specifications, and on expert or other relevant evidence  
as to what is reasonable: TG Heintzman and I Goldsmith in Heintzman and Goldsmith on  
Canadian Building Contracts, 5th ed (Toronto : Carswell, 2014-) at 4-35, 5-2, 5-5, 7-29,  
7-30, and cases cited therein.  
122  
Unless the contract or the circumstances indicate otherwise, the contract will  
contain an implied term that the work will be done in a good and workmanlike manner,  
the workmen employed on the work will possess the ordinary skill of those exercising the  
particular trade, and the materials will be of good quality and reasonably fit for the  
purpose for which they are used: Heintzman and Goldsmith at 4-50. In G. Ford Homes  
Ltd. v. Draft Masonry (York) Co. (1983), 43 O.R. (2d) 401, 1 D.L.R. (4th) 262 (Ont.  
C.A.), Cory J., as he then was, observed that a contractor undertaking to do work  
implicitly undertakes that it will be undertaken with care and skill or in a workmanlike  
manner and will be reasonably fit for the purpose for which it is required, unless the  
circumstances of the contract exclude such liability.  
121  
A contractor must act according to the terms of the contract and the  
directions of the consultant authorized under the construction contract. In the  
absence of an express provision to the contrary, a contractor is in breach of the  
contract if it does not carry out the performance obligations in the contract or if it  
performs work which does not meet the requirements of the express terms and  
specifications and the implied terms of the contract. A contractor who undertakes  
to carry out the work according to specifications must adhere strictly to all the  
details, and is not entitled to make substitutions or changes without the owner's  
consent. If the contractor holds itself out as qualified to do the work, then a failure  
to do so competently is a breach of contract. Whether work or material supplied  
by the contractor is defective or not is a question of fact in each case, depending  
on the proper interpretation of the specifications, and on expert or other relevant  
evidence as to what is reasonable: TG Heintzman and I Goldsmith in Heintzman  
and Goldsmith on Canadian Building Contracts, 5th ed (Toronto : Carswell,  
2014-) at 4-35, 5-2, 5-5, 7-29, 7-30, and cases cited therein.  
122  
Unless the contract or the circumstances indicate otherwise, the contract  
will contain an implied term that the work will be done in a good and  
workmanlike manner, the workmen employed on the work will possess the  
ordinary skill of those exercising the particular trade, and the materials will be of  
good quality and reasonably fit for the purpose for which they are  
used: Heintzman and Goldsmith at 4-50. In G. Ford Homes Ltd. v. Draft Masonry  
(York) Co. (1983), 43 O.R. (2d) 401, 1 D.L.R. (4th) 262 (Ont. C.A.), Cory J., as  
he then was, observed that a contractor undertaking to do work implicitly  
Page: 26  
undertakes that it will be undertaken with care and skill or in a workmanlike  
manner and will be reasonably fit for the purpose for which it is required, unless  
the circumstances of the contract exclude such liability.  
123  
The conduct of a contractor may constitute not only a breach of contract  
but also negligence: Heintzman and Goldsmith at 7-2. Generally speaking, there is  
a duty of care owed by a contractor to an owner: University of Regina v.  
Pettick (1991), 90 Sask. R. 241, 6 C.C.L.T. (2d) 1 (Sask. C.A.). What is  
undertaken by the contract will indicate the nature of the relationship that gives  
rise to the common law duty of care, but the nature and scope of the duty of care  
that is asserted as the foundation of the tortious liability does not depend on  
specific obligations or duties created by the express terms of the contract - the  
distinction is between what is to be done and how it is to be done: Central &  
Eastern Trust Co. v. Rafuse, [1986] 2 S.C.R. 147 (S.C.C.) at 204, [1986] S.C.J.  
No. 52 (S.C.C.).  
124  
In Fraser-Reid v. Droumtsekas (1979), [1980] 1 S.C.R. 720 (S.C.C.) at  
726, [1979] S.C.J. No. 125 (S.C.C.), Dickson J. for the majority stated the  
relevant question as being: "Did the builder act as a competent and careful builder  
would have acted in what he did or did not do?", citing Batty v. Metropolitan  
Property Realisations Ltd., [1978] 2 All E.R. 445 (Eng. C.A.) and Dutton v.  
Bognor Regis United Building Co. (1971), [1972] 1 All E.R. 462 (Eng. C.A.).  
125  
An owner may sue a building contractor alternatively or concurrently in  
contract and tort, and a contractor who is negligent in the performance of a  
contract to build is liable in tort to any person suffering resultant injury to person  
or property, unless such liability is limited by the contract: Dominion Chain Co. v.  
Eastern Construction Co. (1976), 12 O.R. (2d) 201, [1976] O.J. No. 2104 (Ont.  
C.A.), aff'd without reference to this point [1978] 2 S.C.R. 1346 (S.C.C.), Dabous  
v. Zuliani (1976), 12 O.R. (2d) 230, 1 C.P.C. 48 (Ont. C.A.), Central Trust  
Co.; BG Checo International Ltd. v. British Columbia Hydro & Power Authority,  
[1993] 1 S.C.R. 12, [1993] S.C.J. No. 1 (S.C.C.).  
C. Expert Evidence  
[125] Both Metrowest and Flynn proffered expert evidence at trial.  
[126] Metrowest obtained an expert report from Entuitive Corporation. The report was authored  
by Jonathan Bains, Senior Building Envelope Engineer, and reviewed by Brian Shedden, Senior  
Associate at Entuitive, dated December 7, 2016 (Entuitive Report).  
[127] Flynn obtained an expert report from Petra Contract Services Ltd. The report was  
authored by Jon Peat, a Registered Roof Consultant and a Registered Roof Observer, dated  
October 31, 2017 (Petra Report).  
[128] Metrowest retained EXP Services Inc. to prepare a rebuttal report to the Petra Report. Mr.  
Bains, who had left Entuitive and at that time was a Project Manager and Building Envelope  
Engineer of EXP Services Inc. authored the rebuttal report, dated January 12, 2018 (EXP  
Rebuttal Report).  
[129] Metrowest originally sought to have Dr. Muneer Matti of M&J Consulting testify,  
however Flynn objected and a mid-trial application took place. Dr. Matti inspected the Deerfoot  
Page: 27  
Square roof in 2014 and 2015, and prepared a report (M&J Report). Upon submissions from  
counsel and review of the case law, I determined that the denial of Dr. Matti’s evidence was the  
only suitable remedy due to the obvious prejudice to Flynn in not being allowed a rule 5.18  
examination of Dr. Matti that was not compensable in costs and/or additional time with which to  
cross-examine Dr. Matti. Further, I determined that Metrowest had other experts being called and  
that the denial of Dr. Matti’s evidence did not leave Metrowest in a position where its ability to  
meet its burden of proof was jeopardized. I only refer to this mid-trial application because the  
M&J Report is referenced in the expert reports admitted at trial.  
i. Entuitive Report of Metrowest  
[130] Mr. Shedden was qualified as a building envelope expert to give an opinion with respect  
to roofing systems, roofing system conditions, roofing system condition assessments and roofing  
replacement generally, and specifically in the context of the within case. Following argument by  
counsel, I ruled that Mr. Shedden was permitted to give evidence that did not overlap with the  
evidence of Jonathan Bain, a building envelope engineer, who authored the Entuitive report.  
[131] Entuitive was retained to investigate and review the north roof at Deerfoot Square. It was  
advised by Metrowest that various issues had occurred with the roof since its replacement in  
2013, including leaking, ridging and blisters, as well as wet insulation and existing roof  
membrane abandoned below a large mechanical unit. Mr. Shedden confirmed that he did not  
know whether there was any water underneath the HVAC unit; this information was provided to  
him by Metrowest’s counsel.  
[132] Entuitive’s scope of work was to review all the drawings and documentation provided by  
counsel for Metrowest (where relevant), interview on-site personnel knowledgeable about the  
current and past performance of the building envelope systems, perform a visual review of the  
existing roofing systems and perform strategic cut tests into the roof to further evaluate the  
existing condition and construction of the systems and/or diagnose known issues.  
[133] Mr. Shedden testified that during Entuitive’s visual inspection, there was localized  
bubbling in the roof membrane and some ridging telegraphing through the roof membrane. He  
explained that ridging can be caused by vapour or by a lack of adhesion. In his opinion, lack of  
adhesion was more likely the cause of the ridging because vapour usually presents as a blister.  
[134] Following the visual inspection, Entuitive performed three cut tests in the field. Mr. Bain  
selected the location of the three cut tests. Each was approximately 16 inches by 16 inches in  
size, resulting in a total of 6.75 square feet of the total 7,200 square foot area of the north section  
of the roof, or less than one percent of the north cap.  
[135] No moisture was evident in the three cut tests, although components were noted to be  
poorly adhered together, with the adhering asphalt demonstrating a shiny glaze. Mr. Shedden  
testified that this shiny glaze typically occurs when the hot-applied asphalt has cooled beyond its  
proper application level and has begun to set before being placed. Based on the three cut tests  
performed, Entuitive stated that it could reasonably infer that this condition was systematic  
throughout the roof. In my view, Mr. Shedden’s inference that the quality of adhesion at three  
cut tests that represent less than one percent of the reroofed area necessarily applies to the  
entirety of the Deerfoot Square roofing system is problematic, particularly in light of Mr.  
Parker’s evidence.  
Page: 28  
[136] Mr. Parker testified that there would naturally be some variances in the degree of  
adhesion through the roof. Based on his experience, he stated that he would expect 90 cut tests if  
he were asked to test the performance of the roof design. Even if conducting 90 cut tests is  
considered excessive, it is noteworthy that when Mrs. Myron retained Skyline to investigate the  
roof initially, Skyline conducted 24 cut tests to determine its performance as of November 2012.  
While I appreciate that Mr. Shedden qualified his opinion regarding adhesion by stating that it  
was “likely systematic” throughout the roof, in my view, this inference is neither persuasive nor  
conclusive.  
[137] The Entuitive report notes that the sketch provided by RJC in Addendum 1 document  
illustrates that the existing material is isolated from the balance of the roof via liquid membrane.  
Mr. Shedden acknowledged that the best opportunity to observe whether in fact the area under  
the HVAC unit is wet was when the roof was being taken off. He stated that the design with  
curbs beneath the HVAC unit satisfied him that no water can get underneath the HVAC system  
and that this would mean it was properly enclosed or encapsulated. Entuitive opined that if the  
insulation was dry beneath, there would be no issue, however if the material was wet, then it  
would need to be removed to ensure no leak into the interior and no continued deterioration. Mr.  
Shedden confirmed at trial that the only issue from his perspective was whether there was wet  
material there when the curbs were built and the roof was redone. I accept Mr. Shedden’s  
opinion on this point. Based on the evidence put before me, I find that there is agreement that if  
wet material is in the roofing system, it could cause problems. However, the key issue here is  
whether wet material was actually left in the roofing system. The evidence does not bear this out.  
[138] Entuitive made the following conclusions and recommendations: the individual  
components of the roof met the design requirements; the as-built condition did not meet the  
design and performance requirements; a lack of adhesion of the components compromised wind  
uplift resistance of the roofing system and would likely lead to premature failure, at an  
unspecified time. It recommended a full roof replacement with an approximate cost of at  
$180,000 to $200,000 plus roof consulting costs.  
[139] Mr. Shedden testified that generally a roofing system is designed to provide the following  
four performance requirements: (1) to prevent water ingress into the building; (2) to resist wind  
uplift, which is especially important in Calgary because wind is a significant factor; (3) to  
prevent vapour drive (warm moist air) from entering into the roofing assembly where it  
condenses and causes problems; and (4) to perform for an anticipated lifespan. However, under  
cross-examination, he acknowledged that these represent general performance requirements on  
what a roof is generally designed to do. They were not the performance requirements specified in  
the Contract, one of which is that the roof shall not leak.  
[140] With respect to Entuitive’s conclusion regarding lack of adhesion, Mr. Shedden testified  
that the primary risk with lack of adhesion is a failure of the roof assembly due to wind uplift  
because the forces of wind both externally and internally from within the building have the  
potential to dislodge the roof assembly. He stated that no timeline could be placed on how the  
lifespan of the roof would be impacted by the lack of adhesion.  
[141] While Entuitive concludes that the lack of adhesion of the components compromised  
wind uplift resistance, no wind uplift testing was conducted. Mr. Shedden testified that  
Entuitive’s standard protocol for investigative roof work was to perform cut tests, not wind uplift  
tests. Further, Entuitive qualified its opinion that the lack of adhesion may lead to premature  
Page: 29  
failure. No evidence was put before me that in the years between the roof completion and the  
time of trial, there was any failure of the roofing system at Deerfoot Square as a result of the  
alleged lack of adhesion issues. There was no evidence to suggest that the Deerfoot Square roof  
leaks. Nor was any evidence provided to indicate that a wind blow off event had occurred in this  
same time frame.  
[142] Further, Entuitive recommends a full roof replacement, without providing any  
recommendations of remedial work that could be completed to render the roof assembly more  
compliant with the design intent. Mr. Shedden acknowledged under cross-examination that  
alternate measures could be taken to ballast, or weigh down, the roof to alleviate this concern. I  
take from Mr. Shedden’s testimony that his opinion that the whole roof needs replacing because  
of what he described was “widespread” adhesion issues was due to the fact that the original  
intent was to have an adhered system, which could not be addressed through repairs. He testified  
that the basis of Entuitive’s recommendation for replacement was that the roof was not fully  
adhered.  
ii.  
Petra Report of Flynn  
[143] Flynn retained Petra Contract Services Ltd. (Petra) to observe and review the  
performance of the roof system when conducting wind uplift testing, using a negative pressure  
wind uplift chamber and to provide an opinion on the results. Jonathan Peat was qualified as an  
expert in the impact of wind pressure and wind uplift testing.  
[144] Mr. Peat described Deerfoot Square roof was a “low-slope” roof. He opined that low-  
slope roofs can be adhered, mechanically secured, and/or ballasted to keep the components of the  
system in place. Often a combination of these methods is used.  
[145] Mr. Peat explained that a roof assembly is in danger of becoming dislodged from a  
building when a wind pressure occurs that is greater than the roof assembly attachment to the  
structure. As wind passes over a roof edge, it creates an uplift force referred to as negative  
pressure as it pulls away from the structure, and the same wind impacting the walls of the  
building will penetrate the interior of the building resulting in positive pressure. The perimeters  
and corners of a roof have additional fastening and securement to resist wind forces. To address  
the variance in wind pressure at different locations of the roof, Mr. Peat undertook testing at  
three distinct locations: the corners, the perimeter and in the field.  
[146] Mr. Peat testified that the ASTM International E907 test method was selected and used  
for the three test areas. The ASTM E907 is a standard test method for field testing uplift  
resistance of adhered membrane roofing systems, developed in 1983 and last updated in 2004. In  
the Petra Report as well as at trial, Mr. Peat explained that while the ASTM E907 has been  
withdrawn, it is still functional for testing pressures on roofs. Mr. Peat testified that the ASTM  
requires a minimum of 4 test locations and that he wanted to conduct six but was only given  
permission to do no more than three tests.  
[147] The Petra Report sets out the 2010 National Building Code wind pressures for either a 1  
in 10 year or a 1 in 50 year occurrence. For Calgary, the 1 in 10 year occurrence is 0.37kPa and  
the 1 in 50 year is 0.48 kPa. The roof designer would select which wind pressure to be used and  
complete calculations with modifying factors such as building height and importance and  
provide the final wind uplift pressure required of the roof components to resist the wind forces.  
Page: 30  
[148] Based on the test results, each of the three permitted wind uplift test locations met and  
exceeded the requirements of the National Building Code. While cut test #2 found two individual  
components that were not adhered, similar to the findings presented by M&J and Entuitive, these  
partial adhesion issues did not impact the wind uplift results. The uplift performance of the roof  
system exceeded the requirements to remain in place by almost 300%.  
[149] With regards to adhesion, Mr. Peat acknowledged that there was no adhesion at some  
locations and excellent adhesion at other locations, which led to him describing the roof as semi-  
adhered or partially adhered. He further acknowledged that at each of the seven cut tests  
performed poor adhesion was noted. Mr. Peat stated that the purpose of a design requirement for  
adhesion is so that the layers of the roof assembly secure themselves to each other and resist the  
wind uplift forces that the building is going to require.  
[150] Mr. Peat testified that the wind uplift test results assisted him in substantiating his  
opinion that the roof was not in danger of blowing off. He also stated that when he conducted his  
testing in May 2017 four years after the completion of the Deerfoot Square roof there had  
been wind speeds in Calgary of 90 kilometres or more as reported by Environment Canada, and  
no blow off event had occurred. While he acknowledged that there is a risk of blow off if  
pressures exceed what was tested and gave an example of a hurricane going through Calgary,  
Mr. Peat testified that he had “no doubt of the performance of the roof”. In his opinion, no  
remedial action is necessary. Mr. Peat stated that the prescriptive remedial work was provided to  
alleviate the concerns of others. I accept Mr. Peat’s opinion that remedial work is not required at  
the Deerfoot Square roof because the tests confirmed that even where there was poor adhesion,  
the wind uplift tests confirmed that the roof was performing properly.  
[151] While the Petra Report agreed with the M&J and Entuitive Reports that having voids in a  
roof assembly can be detrimental to its performance, it stated that such anomalies present on top  
of the roof membrane can be repairable. The Petra Report opined that adhesion issues with the  
vapour retarder membrane at the bottom of the roof system and interplay blistering in a modified  
bitumen membrane assembly could be rectified with mechanical fastening.  
[152] The Petra Report states that the results of the wind uplift testing surpassed the required  
uplift pressures for the building. If concerns remained about the risk of a blow off event, the  
Petra Report stated that the main components of the roof could remain in place and be salvaged  
with the implementation of a design for the roof remediation. It recommended mechanically  
securing through all the layers using screws with 3” galvanized stress plates or aluminum  
termination bar, and installing new cap sheet membrane and metal flashings as required to  
complete a waterproof assembly eligible for the warranty requirements, with an estimated cost in  
the range of $60,000 to $70,000.  
iii.  
EXP Rebuttal Report of Metrowest  
[153] Jonathan Bain of EXP authored a rebuttal report concluding that Petra’s solution of  
mechanical fastening does not meet the original design intent and rejected it as the best remedial  
solution for Metrowest. Mr. Bain testified that adhering is preferable to mechanical fastening  
because it minimizes the required labour to install into the concrete, alleviates the need for  
fastener design and reduces noise and impact on the tenant space during construction. Mr. Bain  
further opines that mechanical fastening does not account for the condition of the structural  
concrete deck nor the thickness of the as-built roof system.  
Page: 31  
[154] Mr. Bain further states that the Petra solution only addresses the components above the  
vapour retarder, leaving a vapour retarder that lacks consistency of the installation and/or  
adhesion to the substrate below, which is contrary to the design intent. EXP states that the cost  
set out in the Petra Report does not likely include any costs for damaged insulation or coverboard  
to be replaced. As previously indicated, I do not find the inference of significant adhesion issues  
throughout the roof based on three cut tests persuasive, and I accept Mr. Parker’s evidence that  
there would naturally be variances in the adhesion throughout a roof assembly.  
[155] I also find it noteworthy that Metrowest’s EXP Rebuttal Report does not meaningfully  
comment on the performance of the Deerfoot Square roof in the wind uplift tests conducted by  
Mr. Peat. Nor did it provide remedial solutions.  
D. Analysis of Flynn’s Alleged Breach of Contract and Negligence  
i.  
Installation of the roofing system and removal of the existing vapour  
barrier  
[156] Brian McCaghren, the foreman on the Deerfoot Square project, testified for Flynn. He is  
an employee of Flynn, having worked there for 22 years, with the last 12 years as foreman in the  
roofing division at the time of trial. Mr. McCaghren was a very clear, honest and straightforward  
witness. He conceded points on cross examination as appropriate. He had very good recall of the  
Deerfoot Square project.  
[157] Mr. McCaghren attended the start-up meeting on April 5, 2013, and stated that the  
purpose of this meeting was to schedule the duration of the job. He testified that at this meeting,  
Flynn was still planning to remove the existing vapour barrier down to the concrete slab.  
[158] Mr. Parker testified that the existing vapour barrier is the lowest level of the roof  
assembly and as such its condition cannot be ascertained beforehand with any degree of certainty  
because it is concealed.  
[159] Under cross-examination McCaghren was asked about Mr. Murphy’s comment at the  
start-up meeting to not remove the existing vapour barrier. Mr. McCaghren testified as follows  
on this point:  
Nick was just bringing up the fact, the possibility of it happening. We’re roofers.  
We’ve done a million roofs. We can foresee a lot of problems before they are  
problems, so he was just bringing up a possibility of something that might happen  
in the future.  
[160] McCaghren testified that Flynn suspected the existing vapour barrier was going to be  
difficult to remove due to it being on top of concrete.  
[161] Although Flynn brought up the potential difficulty of removing the existing vapour  
barrier at the start-up meeting, I do not find that this had any deceitful intent or that it was an  
attempt to get out of what was described at trial as difficult and labour-intensive work. The  
evidence does not support such a finding. While perhaps ill-timed and not the most appropriate  
avenue to raise such a concern, I accept Mr. McCaghren’s evidence that it was merely a Flynn  
employee mentioning a potential issue that may arise based on general roofing experience.  
Page: 32  
[162] In response to Flynn’s concern raised at the start-up meeting, RJC prepared NOPC 1. As  
outlined earlier in this decision, NOPC 1 asked Flynn to provide pricing/credit on their proposal  
to leave the existing vapour barrier and add a hot mot vapour barrier on top of the existing. Mrs.  
Myron did not approve of NOPC 1, and RJC withdrew it.  
[163] On April 10, 2013, Flynn commenced work removing the existing roofing assembly by  
manually scraping it off. McCaghren testified that Flynn understood that every effort was to be  
made to remove all the existing vapor barrier down to the structural slab. During the manual  
scaping process, Mr. McCaghren testified that Flynn encountered difficulties due to the  
remaining residual material of the existing vapour barrier being so well adhered to the structural  
concrete slab. Mr. Parker’s evidence aligned with Mr. McCaghren’s on this point.  
[164] Flynn contacted RJC to advise of these difficulties. Mr. Parker testified that Ms. Wojda  
reported to him that Flynn was having extreme difficulty in removing the existing vapour barrier.  
Mr. Parker testified that he directed Ms. Wojda to instruct Flynn to continue its efforts to remove  
all the existing vapour barrier. Ms. Wojda confirmed this evidence.  
[165] Following RJC’s instructions, Flynn continued with efforts to remove all the existing  
vapour barrier using both manpower and equipment called a Roof Rhino. Mr. McCaghren  
testified that they were trying remove as much of the existing vapour barrier as possible, but it  
was causing serious damage to the concrete structural slab. Both Mr. Parker and Mr.  
McCaghren’s evidence align on the fact that Flynn removed a substantial amount of the vapour  
barrier where it was loosely adhered or loosely bonded to the structural deck, but encountered  
difficulties where the remaining residual material was well adhered. I accept their evidence on  
this point.  
[166] Mr. McCaghren testified that Flynn advised RJC that their ongoing removal efforts were  
damaging the concrete structural slab. As a direct result of the damage occurring, Flynn proposed  
priming with hot asphalt and using a one ply glass felt mat to help with adhesion. Mr.  
McCaghren testified that the glass ply was necessary as a transition to bond everything together  
because of the remnants of pre-existing vapour barrier.  
[167] On April 12, 2013, Supreet Kapur, Project Coordinator Roofing Systems for Flynn, sent  
an email to Ms. Wojda on as follows:  
Hi Amanda,  
Our intent is to provide the client an upgrade product at no upcharge by putting  
down 1 ply hot mopped VB with Lastobond 240 self-adhered Vapour barrier. If  
the client does not wish to proceed this way we will stop this combination right  
away.  
Please advise.  
Respectfully,  
Supreet Kapur  
Project Coordinator, Roofing Systems  
[168] Mr. Parker and Ms. Wojda testified that upon learning that Flynn was pulling up pieces  
of the concrete slab, ongoing removal efforts would have caused more damage than good. I have  
no reason to doubt that this was the case.  
Page: 33  
[169] Mr. Parker testified that RJC did not have any technical objections to Flynn’s proposal.  
Given the damage occurring, at that point RJC instructed Flynn that they did not need to proceed  
with any further removal of the existing vapour barrier. Mr. Parker and Ms. Wojda testified that  
RJC instructed Flynn to integrate whatever was left into the new assembly. Ms. Wojda testified  
that these instructions were given to Flynn after visiting the site and speaking with Mr. Parker. In  
my view, this is an example of the consultant RJC making decisions in real time based on its  
expertise in the area of roof replacement. As such, Flynn followed RJC’s instructions to leave the  
portions of the existing vapour barrier that were well bonded in place to avoid damage to the  
concrete structural slab.  
[170] Mr. Parker testified that this involved priming the structural deck to receive the new  
vapour barrier by installing a flood coat of hot asphalt and then the specified new vapour barrier  
material over top of it. This was the method used for the rest of the roof replacement.  
[171] Mr. McCaghren testified that the process Flynn undertook involved putting the hot mop  
asphalt on the concrete structural deck and then directly installing the glass felt mat into the  
asphalt, followed by applying Elastocol (a primer adhesive) and then the Lastobond membrane.  
He confirmed that remnants of the existing vapour barrier that could not be removed were  
beneath the asphalt layer.  
[172] Mr. Playsted testified regarding both Elastocol Stick primer and Lastonbond 240. His  
evidence was that the Elastocol Stick primer is a cold application used on the structural deck  
before the peel and stick Lastobond 240 is applied.  
[173] Mr. Parker testified that the use of felts was done at Flynn’s request. His evidence was  
that pursuant to the Contract, the contractor needed to prime the structural deck as recommended  
by the manufacturer, so that the surface would accept the new vapour barrier. He testified that  
Elastocol Stick is one of the Soprema primers that can be used for Lastobond, but that it can also  
be used for other products. Under cross-examination, he denied that the only reason Flynn used  
the hot asphalt was because of the use of glass felt mat. Mr. Parker’s evidence was that the  
specifications from Soprema on the website for Lastobond 240 were for new construction  
projects, but that Deerfoot Square had hot asphalt that had seeped into the pores of the structural  
deck from the 2001 re-roof. Under cross-examination, Mr. Parker confirmed that the Soprema  
manufacturer’s representative had no issue with Flynn’s proposal and that they would continue  
to warrant the deck and the roof assembly. I accept Mr. Parker’s evidence.  
[174] On April 16, 2013, Mr. Parker emailed Mrs. Myron to advise her that the concrete deck  
was being primed with fresh asphalt before the new vapour barrier is installed, and that this  
material was an improvement on the roofing system proposed by Flynn at no additional cost to  
the Contract. His email further stated as follows:  
[...]This priming with asphalt will improve the adhesion as well as smooth out  
minor surface imperfections resulting in a better, more durable roof.  
As there is no cost or schedule implication and the specified roofing materials  
remain unchanged, this does not constitute a change in the contract. Rather, this is  
the contractor’s means and methods of work.  
Phillip  
[Emphasis added]  
Page: 34  
[175] Mr. Parker testified that asphalt was being put down, with the new vapour barrier placed  
on top of the asphalt. He confirmed that under the original specifications, no fresh asphalt was to  
be put down before the new vapour barrier was put on. He stated that the asphalt would, to a  
degree, act to retard the transmission of water vapour. His testified that asphalt is not considered  
in and of itself on its own as a vapour barrier without the addition of roofing felt plys or some  
other form of reinforcement to give it some structural capacity.  
[176] Mr. Parker testified as follows regarding the April 16 email:  
...Flynn came came to us and said, We would like to do this work in this  
manner. And the specifications already essentially permitted them to do that. The  
specifications also, while they were a set of rules, they also afford some latitude to  
the trades to exercise their trade craft in the manner they feel is appropriate. And  
so essentially Flynn wanted to do this thing, and we had no technical objections to  
it. It didn’t result in a contract change in terms of cost or schedule. It utilized  
materials that were already permitted to be used by the specifications, and it was  
well within accepted trade craft, so we had no objection to it.  
[177] In my view, Mr. Parker’s email is clear – the change in materials resulted in an  
improvement of the roofing system and was not a change in the Contract. Under cross-  
examination he reiterated that that both felts and hot asphalt used by Flynn were listed in the  
specification, and it was within their purview under the contractor’s means and methods.  
[178] Mrs. Myron responded to Mr. Parker’s April 16th email requesting photos showing that  
the original membrane was removed off all of the roof, and stating “As we discussed you would  
ensure that all the old membrane would first be removed before any other material like this  
asphalt goes on.”  
[179] Metrowest submits that Flynn’s failure to not remove all of the existing vapour barrier  
and the change in materials used breaches sections 01 10 01 and 07 53 52 of the Contract. In my  
view, Flynn did not breach the Contract. While Flynn suspected that they may encounter issues  
with the removal of the existing vapour barrier, neither Metrowest, RJC nor Flynn could have  
known the true extent of adhesion and seepage of the prior hot asphalt into the concrete slab  
before Flynn got to this stage in its performance of the work. The evidence demonstrates that  
Flynn made every effort to remove the existing vapour barrier, but upon encountering issues and  
realizing that its efforts were actually causing additional damage to the Deerfoot Square roof,  
Flynn properly sought instructions from RJC. The reality of the situation necessitated an  
adjustment to the original plan. RJC was called upon to use its expertise and make decisions in  
real time. There is necessarily latitude given to RJC to make decisions within its role as required  
based on the on the ground reality of the Deerfoot Square project. In this case, RJC instructed  
Flynn to cease its removal efforts due to the damage it was causing, and Flynn appropriately  
followed RJC’s instructions.  
[180] Metrowest further submits that Flynn breached the Contract by installing a one-ply glass  
felt mat and a one-ply peel and stick Lastobond membrane which was not in accordance with the  
application specified in the Contract, and by not priming the deck in accordance with the  
manufacturer’s specifications. Metrowest submits that it was a further breach of Contract  
because no Notice of Proposed Change or a Change Order signed by either Mrs. Myron or RJC.  
Page: 35  
[181] In my view, Mr. Parker’s evidence addresses the argument that Flynn did not prime the  
deck as recommended by the manufacturer. I accept Mr. Parker’s evidence on this point. Further,  
the use of glass felt mat was in part necessitated by the inability to remove the existing vapour  
barrier due to the extent of adhesion and seepage of the hot asphalt in a prior re-roof. I have  
already found that Flynn properly followed RJC’s instructions in that regard. I accept Mr.  
Parker’s evidence that no NOPC or change order was required because it was within the  
contractor’s means and methods under the Contract. His email correspondence and testimony  
was clear. In the event that I am wrong and Flynn did breach the contract by not submitting a  
Notice of Proposed Change or a Change Order with respect to the use of 1-ply glass felt mat, I  
fail to see how damages arise from such a breach.  
[182] With respect to expert evidence, the main point that I draw from Mr. Shedden’s report is  
that the individual components meet the design requirements, but the as-built condition does not  
meet the design and performance requirements. I take from Mr. Shedden’s report that the salient  
issue is lack of adhesion of the roofing components which may compromise the wind uplift  
resistance of the roof and may lead to premature roof system failure. I reject the notion that  
perfect adhesion throughout the roof is required. Mr. Parker testified that 2.3 Vapour Retarder  
under section 1.6 of the specs of the Contract referencing adequate adhesion means that there is  
sufficient adhesion to ensure that the vapour barrier is supported by the structural deck/roof  
structural slab. His evidence is that there would naturally be some variances in the degree of  
adhesion through the roof.  
[183] While I accept Mr. Shedden’s finding that there was a shiny glaze (an indicator of lack of  
adhesion) at the three cut tests performed, I do not find Mr. Shedden’s inference that this would  
be consistent throughout the entire roof persuasive. His opinion in this regard is qualified, with  
the Entuitive Report stating “it can reasonably be inferred that this condition is likely systemic  
throughout the MB roof system.” While there may be adhesion variances throughout the roof, I  
accept the findings in the Petra Report that the wind uplift resistance tests demonstrated that the  
Deerfoot Square roof wind uplift resistance is not compromised. The Petra Report, while noting  
an adhesion issue at his cut test #2, found that at this location, the wind uplift test demonstrated  
that the roof performed well in excess of the required standard. There is no demonstrated need  
for remedial action either by way of mechanical fasteners or otherwise.  
ii.  
Removal of wet and/or compromised insulation and installation of the  
curbs  
[184] Metrowest submits that Flynn’s failure to remove all the roofing material under the  
HVAC unit breached the Contract. Based on my earlier finding that Addendum 1 forms part of  
the Contract, this argument fails. Addendum 1 was clear that the HVAC would not be removed,  
necessarily leading to the conclusion that roofing beneath it would not be removed.  
[185] Regarding Metrowest’s allegation that Flynn failed to remove all the wet and/or  
compromised insulation, the evidence indicates that they took this concern seriously and in fact  
removed the wet and/or compromised insulation. Mr. Parker testified,  
It was abundantly clear that there -- there was a concern around that area. We took  
that area very seriously. She -- she wanted to know that the insulation that was --  
is wet under the large mechanical unit would be replaced. And we understood  
that, understood that was a concern. We made sure that that took place.  
Page: 36  
[186] Mr. McCaghren testified that he was involved in removing the existing roof at the HVAC  
unit and installing the curb. He acknowledged that the HVAC unit was not lifted, and thus the  
roofing materials underneath it were not removed. Mr. McCaghren confirmed that the HVAC  
unit was never lifted, but that they opened up the roofing and there was no sign of moisture. His  
evidence was that everything was “bone dry” and so he felt very comfortable blocking in the  
curb.  
[187] Mr. McCaghren testified that SK-1 indicated how to waterproof the outside of the  
sleepers to stop moisture from getting underneath the unit. SK-1 calls for the installation of a  
scupper or drain. He testified that he installed the curbs at the HVAC units in accordance with  
the Alberta Roofing Contractors Association and their best practices and general experience. He  
testified that there were no drawings for the installation of the curbs. His evidence was that he  
used wood and covered it with a Peel-n-Stick, Sopraflash Flame stick and then applied a cap  
sheet. Under cross-examination, Mr. McCaghren’s evidence was that no one ever spoke to him  
about installing a scupper or drain at the HVAC unit. Flynn did not install one.  
[188] Ms. Wojda testified that any wet insulation was removed, using numerous tools. She  
stated that she was involved in the decision-making process of where to place the curbs. The  
decision regarding placement occurred once Flynn had already started the removal of wet  
insulation; numerous factors were considered in determining the location of the curb. Ms. Wojda  
testified that once it was determined there was no wet insulation left, the curb was placed few  
feet back from that point. Mr. Parker also testified that the curb was placed adjacent to dry  
insulation. Ms. Wojda’s evidence was that the insulation was not wet where the curbs were  
installed underneath the HVAC unit.  
[189] Mr. Parker’s evidence was that the insulation under the mechanical unit was dry and  
uncompromised, so it was left in place. While Mr. Parker conceded under cross-examination that  
it was possible that water could have gone further than cut test 23, he reiterated that had any wet  
insulation been found beyond the location of cut test 23, it would have been removed. He  
confirmed that once the insulation was found to be sound and dry, RJC directed Flynn to install  
the curb at that point. As previously stated, Mr. McCaghren testified he felt comfortable  
installing the curb because the insulation in the install location was “bone-dry. It is worth  
repeating that Mrs. Myron was never up on the roof and did not inspect the insulation beneath  
the HVAC unit.  
[190] While Ms. Wojda conceded under cross-examination that no moisture testing was done  
underneath the HVAC unit, on re-direct, she testified that at any point after the curb had been  
installed, it could be removed and testing could be completed beneath the HVAC unit and the  
curb could be reinstalled. I find Ms. Wojda’s evidence on this point particularly compelling –  
had Metrowest had a genuine concern that the insulation was wet and compromised, it could  
have removed the curb and conducted further testing but this was not done. I do not find that  
there was a positive obligation on Flynn to conduct moisture testing beneath the HVAC unit. The  
evidence before me indicates that Mrs. Myron’s concerns regarding wet and/or compromised  
insulation were taken seriously, and before installing the curb, RJC and Flynn were satisfied that  
the insulation was dry at the location at which the curb was installed.  
[191] With respect to the lack of scupper or drain installation by Flynn, this issue is resolved  
through the evidence of Mr. Parker and Ms. Wojda. His testified that while initially there was a  
concern about itinerant water leakage through the HVAC unit itself, or as the result of process  
Page: 37  
water generated by the HVAC unit, Mr. Parker received information that the HVAC unit was  
sealed, and had an internal condensation collection system and weep tub. This was confirmed by  
Ms. Wojda, as she testified that the scupper was initially there because they were unsure of the  
drainage system of the HVAC unit, but that the scupper was eliminated once they learned that  
the HVAC unit had an internal condensation gutter. Even if the failure to install the scupper or  
drain breached the Contract, there is no evidence that Metrowest suffered any damages as a  
result.  
iii.  
Shop Drawings  
[192] Metrowest submits that Flynn breached the Contract by failing to prepare shop drawings  
in accordance with the Contract. Under GC 3.10 of the Contract the contractor, in this case  
Flynn, was required to prepare and provide shop drawings. Mr. McCaghren’s evidence  
demonstrated that aside from a slope drawing, and drawings R-1 and R-2, no other shop  
drawings were prepared. This was supported by Mr. Parker’s testimony that the only shop  
drawing provided was the slope drawing. Mr. Parker testified that the R1 and R2 drawings were  
marked as “Issued for Construction”, and that they are design drawings only and not necessarily  
suitable for use as shop drawings. He could not recall whether RJC ever provided Flynn with  
written permission to use R1 and R2 as base drawings for shop drawings, nor could he recall  
whether R1 or R2 were ever marked as issued for construction.  
[193] The Contract requires the Contractor to prepare shop drawings, as per GC3.10. The  
evidence supports a finding that Flynn breached the Contract by failing to prepare shop  
drawings. However, this breach of contract is minor, and Metrowest has failed to demonstrate  
how it suffered any damages as a result of this breach.  
iv.  
Safety Incidents  
[194] Metrowest submits that the two safety incidents that arose during Flynn’s reroofing of  
Deerfoot Square support its position that Flynn did not perform the work or act as a careful and  
competent roofer would have.  
[195] On April 16, a hydraulic oil spill occurred. Flynn reported the incident to RJC via email.  
Flynn contacted the Calgary Fire Department, who attended to assist with containment and clean  
up. The City of Calgary attended to assist with clean up of impacted snow and ice.  
[196] On April 20, 2013, unsecured roof materials blew off the Deerfoot Square roof. Carleen  
Jenkins, an employee with the Department of Environmental and Parks who worked in the  
Deerfoot Square building was called as a witness. She testified that on Saturday April 20, 2013,  
she was working overtime at Deerfoot Square. She recalled a bunch of noise and then looked out  
and saw debris including tarpaper, plastic and Styrofoam flying off the roof and into the parking  
lot, across the street and hitting the fence. Another colleague of hers called Metrowest and the  
Calgary Fire Department to notify them.  
[197] A meeting was held on April 22, 2013 regarding the April 20 safety incident. Mr.  
Playsted recalled attending this meeting. His evidence was that Flynn’s safety officers spoke to  
OH&S, and reports were done, but no further orders or actions were required. He also testified  
that no charges were laid against Flynn. His evidence was that Flynn’s safety officer contacted  
the City of Calgary Fire Department to review the incident, but that nothing further was required  
of Flynn. He stated that Flynn did not report it directly to the City of Calgary safety codes  
department. Mr. Parker was not directly involved in the OH&S incidents. He testified that he was  
Page: 38  
monitoring the situation to ensure Flynn’s response was sufficient and in keeping with industry  
practices.  
[198] I decline to place as much emphasis on these two incidents as Metrowest suggests that I  
should. I reject Metrowest’s argument that Flynn took “minimal interestin ensuring appropriate  
steps were taken following the safety incidents. I accept Mr. Playsted’s evidence that Flynn’s  
safety officers spoke with OH&S and the City of Calgary. There is no evidence before me that  
Flynn did not follow the advice of either of the entities following the April 20 incident. There is  
further no evidence before me to suggest that Flynn did not comply with requests or conditions  
of OH&S or the City, if indeed any such requests or conditions were even mandated.  
v.  
Warranty & Builder’s Lien/Payment  
[199] Following the completion of the work in May 2013, Flynn rendered invoices to  
Metrowest. Metrowest did not pay Flynn’s invoices for the work completed, even after Flynn  
registered a builder’s lien against Deerfoot Square. As is outlined under the heading Procedural  
Background, Flynn subsequently brought a summary judgment application that was partially  
successful, resulting in $71,000.00 plus accrued contract interest and costs awarded to Flynn, and  
the remainder claimed by Metrowest for deficiencies to be held in court pending trial.  
[200] Metrowest submits that Flynn has never provided Metrowest with a valid warranty as  
required by the Contract. It further submits that the materials used by Flynn were not in  
compliance with the manufacturers’ specs and nullify the 10-year manufacturers warranty.  
[201] I find that Mr. Playsted’s evidence answers these allegations against Flynn. Mr. Playsted  
testified that he confirmed with Soprema’s technical representative and obtained acceptance of  
the upgraded two-ply asphalt-adhered vapour barrier under the warranty. Mr. Playsted’s  
testimony is supported by a letter drafted by Flynn to Metrowest dated June 27, 2013 attaching a  
10 Year Soprema Platinum Warranty which was entered as an exhibit at trial. While Soprema  
provided the 10 year warranty to Flynn, Mr. Playsted testified that this warranty was not  
provided to Metrowest because it is standard procedure to not provide it until after they are paid.  
vi.  
Alleged Negligence of Flynn  
[202] Metrowest argues that Flynn owed it a duty of care based on the contractual obligation. It  
submits that Flynn breached the duty of care and fell below the standard of care through their  
negligent performance of the contractual obligations, and as a result, Metrowest suffered  
damages. Metrowest asserts that Flynn did not act as a competent and careful builder would  
have, and that in addition to negligent performance of the contractual obligations, the safety  
incidents further demonstrate Flynn fell below the requisite standard of care.  
[203] In negligence, the standard of care defines the content of the duty of care and assists the  
court to determine whether a defendant’s act or omission breached the duty of care owed: Ryan v  
Victoria (City), [1999] 1 SCR 201 at para 25.  
[204] The standard of care required of a professional is a question of fact: Firman Sales &  
Services Ltd et al v Winnipeg Building and Decorating Ltd, 2017 MBCA 120 [Firman] at para  
6.  
[205] There is “strong presumption that expert evidence is required to prove the standard of  
care expected of a professional”: Canadian Natural Resources Limited v Wood Group Mustang  
(Canada) Inc (IMV Projects Inc), 2018 ABCA 305 at para 31. However, expert evidence may  
Page: 39  
not be necessary where the matter is “‘fraught with obvious risks’ such that anyone is capable of  
finding it negligent”, “non-technical or within the common understanding of an ordinary  
person”, or the standard is otherwise revealed by “external indicators of reasonable conduct, such  
as custom, industry practice, and statutory or regulatory standard”: ter Neuzen v Korn, [1995] 3  
SCR 674 at para 54; Krawchuck v Scherbak, 2011 ONCA 352 at para 132, leave to appeal to  
SCC refused; Power v Goodram, 2012 ABQB 50 at para 50.  
[206] In Firman, the Manitoba Court of Appeal agreed with the trial judge that the standard of  
care required of a roofing contractor was sufficiently technical to require the assistance of an  
expert: at para 8. This matter is likewise sufficiently technical to place the skills and expertise  
required of Flynn beyond the understanding of an ordinary person. Metrowest led no expert  
evidence on the standard of care of a roofing contractor. In its brief, Metrowest outlined examples  
of what a competent and careful roofing contractor would have done to juxtapose Flynn’s alleged  
failures in reroofing Deerfoot Square. However, these examples were not supported by any expert  
evidence as to what that standard of care should be, as none was led. The within matter is  
sufficiently technical that a standard of care expert was required. Given the foregoing, Metrowest’s  
negligence claim against Flynn fails.  
Issue 3: What damages, if any, are owing to Metrowest?  
[207] Metrowest sought the following damages:  
i)  
$364,359 plus GST for breaches of contract and/or negligence of Flynn;  
ii)  
$451,012.58 for a new roofing system, or in the alternative for the  
diminution in value of the Deerfoot Square property;  
iii)  
$26,970.50 for additional costs incurred comprising of $4,660 for  
Metrowest’s additional administration costs, $6,115.50 for RJC’s  
additional expenses for work relating to safety issues and $16,195 in legal  
fees for legal advice and representation in respect of the safety issues.  
[208] Where a breach of contract or negligence occurs, a plaintiff must prove its damages. As  
outlined in this decision above, any breaches of the Contract by Flynn were minor in nature, and  
were not substantial enough to warrant a full roof replacement. I find that Metrowest has not  
proven its claim for damages. At the time of trial, no issues had occurred with the roof. It was  
performing as required. There was no evidence that the Deerfoot Square roof had any actual  
leaks or wind uplift incidents. There was also no evidence to establish a diminution in value of  
Deerfoot Square because of the potential for premature failure or risk of a blow off event.  
[209] In the event that I am wrong and Flynn did breach the contract, the breaches of contract  
would be minor, and the issue still remains that Metrowest has not proven that it suffered  
damages as a result thereof.  
[210] With respect to Metrowest’s claim for additional costs incurred, I further find that  
Metrowest has not proven these damages. At trial, Metrowest also sought damages in the amount  
of $4,660 for Metrowest’s additional administration costs in relation to the safety incidents.  
Metrowest sought reimbursement for Mrs. Myron’s time at $400.00 per hour. Clear and cogent  
evidence for these damages was lacking. With regards to the legal fees, no clear explanation or  
evidence was put forward of what amount of time and corresponding legal fees incurred were in  
Page: 40  
fact in relation to the safety incidents. Under cross-examination, Mrs. Myron reluctantly  
admitted that portions of the legal fee time entries being claimed were for unrelated work. I find  
that it is inappropriate, and verging on disingenuous, to put forward invoices claiming legal fees  
incurred when the time spent and corresponding fees reflect unrelated matters. Mrs. Myron also  
confirmed that Metrowest did not actually pay her $400.00 per hour for her alleged personal time  
spent in relation to the safety incidents. Based on the totality of the evidence before me and my  
finding that Flynn was not negligent, the evidence does not support Metrowest’s claim for these  
additional costs.  
Issue 4: Is Flynn entitled to the balance of its outstanding invoices?  
[211] Based on my conclusions above, I find that Flynn is entitled to the balance of its invoices  
in the amount of $96,923.94, plus interest pursuant to the terms of the Contract. I direct that the  
principal amount of $96,923.94 and the accumulated contract interest be paid from the funds  
held in court to the credit of this action to Flynn forthwith. Upon Flynn’s receipt of payment of  
the balance of its invoices, accumulated contract interest and costs, as discussed below, Flynn is  
directed to provide Metrowest with the 10 year warranty as outlined earlier.  
Costs  
[212] As Flynn has been entirely successful, it follows that costs are awarded in its favour  
pursuant to Column 4 of Schedule C of the Rules of Court Schedule of Costs. If the parties  
cannot agree on the costs payable by Flynn for its late application to amend its Statement of  
Defence, the parties have leave to speak to these costs as noted at paragraph 14 herein if  
necessary.  
Heard on March 12-16 and November 6-8, 2018.  
Additional Written Submissions filed November 30, December 3, 14 and 20, 2018.  
Dated at the City of Calgary, Alberta this 14th day of September, 2022.  
K.M. Horner  
J.C.Q.B.A.  
Appearances:  
Ariel Breitman and Kate Millar  
for the Plaintiff  
James P. Flanagan  
for the Defendant  

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CIC Management Services Inc. v City of Toronto | Jul 21, 2022
Bonterra Energy Corp v Rosells’ Enterprises Ltd | Aug 31, 2022
WCAT Decision A2100606 | Aug 17, 2022
Leffler v Aaron Behiel Legal Professional Corporation | Jun 30, 2022
Espartel Investments v. MTCC No. 993 | Aug 19, 2022
Onespace Unlimited Inc. v. Plus Development Group Corp. | Sep 19, 2022
Professional Institute of the Public Service of Canada v. Canada Revenue Agency | Jun 23, 2022
Community Savings Credit Union v. Bodnar | Jul 29, 2022
Galperti SRL v F.I.A.L. Finanziaria Industrie Alto Lario S.P.A | Jun 30, 2022
WCAT Decision A2102352 | Jul 6, 2022
WCAT Decision A2102306 | Jul 25, 2022
Thrive Capital Management Ltd. v. Noble 1324 Queen Inc. | Jul 12, 2022
Questor Technology Inc v Stagg | Sep 8, 2022
MediPharm v. Hexo and Hwang | Jul 25, 2022
Immunization rates & vaccine hesitancy | Aug 17, 2022
Morabito v. British Columbia Securities Commission | Aug 12, 2022
Killeleagh v Mountain View County (Development Authority) | Aug 24, 2022
Quality Control Council v Stanley Inspection Canada Ltd. | Sep 9, 2022
British Columbia Investment Management Corporation | Aug 17, 2022
Abbeylawn Manor Living Inc. v Sevice Employees International Union, Local 1 Canada | Jul 5, 2022
Windrift Adventures Inc. et al. v. Chief Animal Welfare Inspector | Aug 18, 2022
Irani and Khan v. Registrar, Motor Vehicle Dealers Act | Jul 14, 2022
CP REIT Ontario Properties Limited v City of Toronto | Aug 12, 2022
Potash Corporation of Saskatchewan Inc. v. The Queen | Jul 7, 2022
Wong v. Pretium Resources Inc. | Jul 22, 2022
Labourers' International Union of North America, Local 183, Union v Mulmer Services Ltd. | Aug 5, 2022
City of Mississauga v. Hung | Sep 22, 2022
Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association (28 September 2022)
Orewa Community Church v Minister for Covid-19 Response (16 August 2022)
Yeshiva College Bondi Limited v NSW Education Standards Authority (15 August 2022)
Moreland Planning Scheme Amendment C208more | Heritage Nominations Study | Panel Report | 15 July 2022
New Zealand Tegel Growers Association Incorporated | 2 August 2022
Farrow-Smith and Comcare (Compensation) | 26 September 2022
Evolution Fleet Services Pty Ltd v Allroads Plant Pty Ltd | 14 September 2022
656621 B.C. Ltd. v David Moerman Painting Ltd. | Sep 27, 2022
Fraser Valley Packers Inc. v Raiwal Holdings Ltd | Sep 26, 2022
Parmar v Tribe Management Inc. | Sep 26, 2022
DES Studio inc. c. Shuchat | Sep 26, 2022
Van-Kam Freightways Ltd. v Teamsters Local Union No. 31 | Sep 28, 2022
Rogers Communication Inc. v British Columbia | Sep 28, 2022
Alderbridge Way GP Ltd. | Sep 28, 2022

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