JRSB205 (summer 2010)
Topic 2, Lesson 2, Activity 1: Civil Litigation - Provincial Court
Group C
In participating:
Hernandez, Gustavo
Scenario:
Le Petit has singed a contract with Open Ceiling Inc. for the local renovation. Part of this renovation is the improvement of the ceiling. The contract specifies the schedule and scope of the works. Le Petit organized its employees and every task for minimizing the impact in the business. The contract says that the work takes around 60 days; but after five months, the works were not finished; at the sixth month, Le Petit signed a contract with other company who finished the works in 36 days.
Le Petit declared the contract to be terminated and will sue for damages for a fundamental breach. Le Petit wants to start a civil trail to Open Ceiling Inc. for damages considering a compensable delay, breach of contract, and general losses caused by the breach.
Preparing the Civil Claim:
Statement of Claim
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Between: Le Petit Coin de la Loi Familiale Ltd. |
Plaintiff |
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And: Open Ceiling Inc.
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Defendant |
Statement of Claim
1. The Plaintiff, Le Petit Coin de la Loi Familiale Corp. (Le Petit) is a Company incorporated under the laws of Alberta with registered office located in 9559 109 St, Edmonton, Alberta.
2. The Defendant, Open Ceiling Inc. (Open) is a Company incorporated under the laws of Alberta with registered office located in 9449 105 St, Edmonton, Alberta..
3. Le Petit hired a Consultant for dealing with major reparation at Le Petit restaurant. On October 7, 2009 Le Petit developed a bidding process agreed with Open to develop the works for the term of 60 days at the cost of $1,000,000
5. The contract has a very specific schedule because of the nature of the business.
6. The contract has contractor-caused delay clauses about penalties for delay when Open has a delay of more than 10% of the agreed schedule. These penalties are as percentage of the agreed cost till the 40%; then, Le Petit has the right to finish the contract.
7. The works started on November 7, 2009.
8. On November 20, 2009, Open was notified of the delay in the works, and the consequent application of the contract-cause delay clause.
9. On November 28, 2009, Open was notified that it has incurred in a fundamental breach. Le Petit has suffered damages considering a compensable delay, breach of contract, and general losses caused by the breach. Le Petit
10. To reestablish the works again through a new bidding process took around of five months during those which Le Petit has incurred in losses due:
1. impossibility to develop the business;
2. employees salaries, taxes, services;
3. loss of income;
4. higher bid cots;
5. Losses in the market share;
6. General losses caused by the breach.
11. Le Petit hired other company who finish the remaining work, estimated in the 40% of the work with an amount equivalent to the 60% of the contract with Open Ceiling Inc. Three companies have presented a proposal for developing the works; all of them have agreed that the work remaining was around the 60% of the initial foreseen works.
12. Pictures were taken of any stage of the project.
13. Le Petit present an expert witness, he is one of the companies who has issued a bid for finalizing the works.
14. The claim is for $350,000:
1. $250,000 = 5 months (the final delay) by $50,000; 50,000 is the average monthly income for Le Petit;
2. $50,000 in lost market share;
3. $100,000 in advanced money to Open Ceiling Inc. The contract with Open Ceiling Inc. was for 1,000,000; Le Petit advanced $500,000 (50%) but the works developed by Open Ceiling was the 40%; so, Le Petit should recover $100,000 of this advanced money.
4. $50,000 in higher bid cost, the new contract was for $650,000 (60% plus $50,000)
5. Minus $200,000 performance bond.
15. Original documentation is presented.
May 26, 2010
Statement of Defense
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Between: Le Petit Coin de la Loi Familiale Ltd. |
Plaintiff |
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And: Open Ceiling Inc.
|
Defendant |
Statement of Defense
2. The Defendant, Open Ceiling Inc. (Open) is a Company incorporated under the laws of Alberta with registered office located in 9449 105 St, Edmonton, Alberta.
3. Item fourth; Le Petit has a delay delivering the area of the work according to the contract schedule.
4. Item eighth, Open has answered the Le Petit request considering that this delay is considered an excusable delay due to external causes. This delay was caused by municipal workers working in the area; they close the access to Le Petit for three days.
5. Item ninth, Open considers that Le Petit has unilaterally terminated the contact.
6. Item tenth, it was a decision of Le Petit not to proceed with the contract to its finalization. Le Petit decided to hire other subcontractor and company. Open has not liability in these actions.
7. Item eleventh, it was a decision of Le Petit not to proceed with the contract to its finalization and to incur in more delay and costs.
8. Item fourteenth, Open denies this claim.
May 27, 2010
[1] The Alberta Courts, Retrieved May 26, 2010, from http://www.albertacourts.ab.ca/ProvincialCourt/CivilSmallClaimsCourt/CivilClaimProcess/PreparationfortheHearing/tabid/188/Default.aspx
