To arbitrate or litigate…that is the question

In the last decade or so, alternative dispute resolution (ADR) – mediation and arbitration – has come a long way.  In fact, a good argument can be made that the “A” in ADR could probably be dropped. Gavel

Briefly, mediation is the process of seeking a negotiated resolution/settlement to a dispute using a neutral third party to facilitate the negotiation.  There is no “decision maker” in a classic mediation.  Mediation is a process that can take place outside of litigation entirely, be engaged in the context of litigation in an attempt at pre-trial settlement, or can even take place in the context of an arbitration proceeding (Med-Arb or otherwise).

Arbitration, by contrast, is much closer to the adversarial and adjudicative process that we associate with the courts.  Sometimes arbitration is mandated by legislation or a non-negotiated contract between that parties (that one party didn’t really have any say in).  In those cases, a party might be stuck with arbitration whether it/he/she wants to be or not.  Other times, however, parties will jointly agree to forego the courts in favour of arbitration.  There are, as far as I’m concerned, only really four essential reasons that parties might opt for arbitration over litigation.

  1. Privacy – unlike court proceedings, which are public in nature, arbitration is a private process where no decisions are published and the parties can keep the evidence and outcome private.
  2. Process – parties to an arbitration normally have the opportunity to agree upon procedures and rules that are different from the Rules of Civil Procedure and thereby shape and tailor the process to suit the needs of the dispute.
  3. Speed/Cost – because an arbitration has an adjudicator hired by the parties and they are not caught in the public system “waiting their turn”, there is at least the theoretical possibility of getting a result faster than if the parties were simply to litigate (for example, in Toronto it is not uncommon to have to wait five or six months to get a 15 minute hearing for a simple procedural motion).
  4. Appeals – the parties to an arbitration can limit the rights to appeal the decision of the arbitrator.

Zafir Holdings Inc. v. Grassmere Construction Ltd., 2013 ONSC 1835 is a very recent case out of the Ontario Superior Court of Justice that demonstrates how the objectives of arbitration aren’t always satisfied in the manner that the parties may have hoped when they agreed – perhaps with flowers and butterflies floating about – to arbitrate.

Zafir Holdings was the owner and Grassmere Construction was its general contractor in relation to a large industrial construction project.  A dispute arose between Grassmere Construction and one of its subcontractors regarding some of the earthworks and that dispute percolated its way up to become a dispute between the Grassmere Construction and Zafir Holdings.  Grassmere Construction’s subcontractor got judgment at a trial against Grassmere Construction and Grassmere Construction and Zafir Holdings agreed to arbitrate the issues between them.  The arbitrator found that Zafir Holdings owed Grassmere Construction a large portion of the amount that Grassmere Construction had to pay its subcontractor (as well as other amounts in relation to other issues).  Zafir Holdings sought, and was granted, the Court’s permission (leave) to appeal the arbitrator’s decision.

In the context of this short article, this case is notable insofar as it demonstrates how the primary objectives of arbitration were probably almost entirely obliterated in the end result. Consider:

  1. Privacy – the appeal, and the very fact that I was able to read the Court’s Decision and write about it here, means that if the parties had privacy as one of their objectives (whether unilateral or mutual), that benefit of arbitration has been lost.
  2. Process – there’s no way to tell whether the parties achieved any benefit here but, insofar as the ability to modify process usually has cost as its objective, I generally doubt it.
  3. Speed/Cost – the dispute arose in 2004 or 2005 and Grassmere Construction’s subcontractor obtained its judgment in June 2010.  By contrast, Grassmere Construction and Zafir Holdings didn’t get their decision in the arbitration until November, 2012 – two and a half years later!  Given that both Grassmere Construction and Zafir Holdings were likely involved in the litigation with the subcontractor (at least to some extent) and then had to adjudicate their dispute before the arbitrator (and pay the arbitrator’s fee which was likely substantial), it’s hard to imagine how there might have been significant cost-savings in the way that it all unfolded.
  4. Appeals – Zafir Holdings has been granted leave to appeal so there was no benefit here (in fact, the motion to seek leave to appeal added a layer of cost that wouldn’t have existed if the underlying arbitration decision had been a judgment of the court).

I’m not anti-arbitration – it certainly has the potential to be a useful alternative to litigation in certain types of cases.  However, cases such as Zafir Holdings Inc. v. Grassmere Construction Ltd. highlight the reason that I believe most parties contemplating putting a mandatory arbitration provision into an agreement, or those facing a decision whether to arbitrate rather than litigate in the face of a dispute, should very carefully and deliberately consider the potential benefits of arbitration.  In such circumstances, the question should be asked: “Is there a really compelling reason that I/we should take on the cost of an arbitrator (in addition to the cost of my/our lawyers) rather than proceed in a public forum and let my/our tax dollars pay for the judge?” More often than not, in my view, the answer will be “No”.

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An “Interest”ing Decision – A contractual interest claim gone wrong

What an awful Blog post title. My apologies.

The Decision of Madame Justice Pierce in 1188710 Ontario Ltd. v. Gartner, 2012 ONSC 6110 (CanLII) is a good reminder of how judges trying to do perceived justice between parties sometimes finds the law bent (or worse – disregarded) in favour of perceived justice.

The facts of the case aren’t particularly remarkable – contractor does work, owner takes issue with various things and doesn’t pay all invoices, contractor liens, lawsuit follows.  Same old story.  Sometimes the contractor comes out on top and sometimes it is the owner that prevails.  In this case, Pierce J. interpreted the agreement between the contractor and the owners and the evidence that was presented at trial almost entirely in favour the contractor.

The two aspects of the Decision that prompted me to write this short post are:

  1. Pierce J. found a contractual entitlement to interest and awarded the contractor interest at 5.5% per annum; and
  2. Pierce J. declared that the contractor has a lien against the Defendants’ property for an amount that includes the interest that she found to be owing.

Contractual Interest

If Pierce J. had just addressed the issue of interest as one of damages (the contractor’s losses based on interest the contractor had to pay on its line of credit or to its own suppliers) rather than as interest and if the contractor had presented better evidence on this point, I don’t think there would be an issue.  However, because Pierce J. expressly found that there was no agreement as to interest (see paras 37 & 40), I think she should have been foreclosed from awarding contractual interest.  Nonetheless, she (wrongly in my view) reasoned that a contractual obligation to pay invoices within a specified time implied an agreement to pay interest if payment was not made within that time (see para 44).  If Pierce J. were right on this, it would effectively mean that every contract that obliges a party to pay contains an implied agreement to pay interest if payment isn’t made.  I don’t think that this is the law and I don’t think this accords with longstanding jurisprudence that parties should, as a general rule, be held to their bargains – if the contractor had wanted to negotiate a contractual entitlement and rate of interest, he could easily have done so.

The next part is that there seemed to be some very loose (it seems to have been given just in oral testimony at trial) evidence that the contractor had suffered some sort of losses based on having to dip into his line of credit and charges from his own suppliers as a result of the owner not paying all of his invoices (see para 100, for example).  It was this evidence that Pierce J. used to determine the rate of “interest” that the contractor should be entitled to (5.5% was the contractor’s rate on his line of credit…so Pierce J. somehow made that the contractual rate of interest “agreed to” between the contractor and the owner).  I wouldn’t be so offended by this had Pierce J. just characterised the amount payable as damages rather than interest.  However, even then, the problem would be that she found as a fact that, “Unfortunately, there is no evidence about how much [the contractor] had to draw on his line of credit for this project, or how much interest he paid.”  In effect, she awarded damages in the absence of any evidence of the proven quantum of those damages.

I think that there should have been found to be no agreement as to interest and so only pre-judgment interest payable to the contractor pursuant to the Courts of Justice Act.  Further, should Pierce J. have been inclined to find a breach of an obligation to pay on the part of the owner, she could have still found damages to have resulted from the breach but she should have then found (on the evidence described by the Decision) that the contractor did not adduce sufficient evidence to support his claim and then awarded no damages on the basis that quantum had not been proven.  Instead we are left with, in my view, a bad Decision (on this point) that could come back to haunt other litigants arguing this sort of contractual interest dispute.

Lien for Interest

On the second point, section 14(2) of the Construction Lien Act expressly says that, “No person is entitled to a lien for any interest on the amount owed to the person in respect of the services or materials that have been supplied by the person, but nothing in this subsection affects any right that the person may otherwise have to recover that interest.”  As such, Pierce J. erred in law by including the interest she awarded the contractor in the declared amount of the lien she declared the contractor to have over the owner’s lands.  The interest should have been included in the money judgment but should not have been included in the value of the lien.

Suppliers and contractors beware! – Owner’s own defective specification triggers supplier’s warranty obligation

Hypothetical contractual provision and scenario:

“The contractor shall supply and install 8” widgits as required by the owner.  The contractor warrants that the 8” widgits will be fit for their intended purpose and that the 8” widgits will be free from all defects arising at any time from faulty design in any part of the 8” widgits.”

After the 8” widgits are supplied and installed, it turns out that 8” widgits are too long to serve their purpose and 6” widgits should have been used.  The 8” widgits have to be replaced with 6” widgits at a cost of $3,000,000.

On these limited facts, do you think a court would make the contractor or the owner bear the cost of replacing the 8” widgits with 6” widgits?

The recent decision of the British Columbia Court of Appeal in Greater Vancouver Water District v. North American Pipe & Steel Ltd. serves as a serious warning to suppliers and supply contractor about the risks that can attach to an unqualified warranty against design defects, even when the manufactured product is supplied in compliance with the owner’s (or some other third party’s) specifications.

The case arose from a contract for the supply of water pipe to the Greater Vancouver Regional District (the owner).  The owner’s specification required that the pipe have a seal coat over a fibre mat over-wrap.  The contract between the owner and the pipe supplier included provisions that the supplier:

  • “…warrants … that the Goods … will conform to all applicable Specifications … and, unless otherwise specified, will be fit for the purpose for which they are to be used. …and
  • “…warrants and guarantees that the Goods are free from all defects arising at any time from faulty design in any part of the Goods.”

The pipe was manufactured according to the owner’s specifications.  However, following the supply of the pipe, the seal coat on the pipe began delaminating.  The owner sued under the warranty for the repair costs for the defective pipe.  The pipe supplier defended itself, arguing that its warranty should be restricted to its own design or manufacture errors (not defects arising from the owner’s own specifications).

The trial judge agreed with the pipe supplier and found the above provisions to be inconsistent with one another.  She reconciled the inconsistency by resort to the rules of contractual interpretation and determined that the parties did not intend that the supplier’s guarantee and warranty (the second provision above) would extend to cover defects arising from the owner’s own specifications.  On the basis of the expert evidence presented, the trial judge found that the defect in the pipe was caused by the owner’s specifications (i.e. not some other manufacturing defect) and dismissed the owner’s claims in respect of the defective pipe.  The owner appealed.

The Court of Appeal disagreed with the trial judge and found that the contract was clear and the warranty applied regardless of whose design gave rise to the defects. The Court of Appeal found an old Supreme Court of Canada case to be applicable and determinative of the appeal.  The Court of Appeal reversed the Judgment of the Court below and found in the owner’s favour.

It’s an interesting Decision but the nub of the caution to be taken from it is found in Justice Chiasson’s closing remarks:

[Warranty clauses such as the one here] distribute risk. Sometimes they appear to do so unfairly but that is a matter for the marketplace, not for the courts. There is a danger attached to such clauses. Contractors may refuse to bid or, if they do so, may build in costly contingencies. Those who do not protect themselves from unknown potential risk may pay dearly. Owners are unlikely to benefit from circumstances where suppliers and contractors are faced with the prospect of potentially disastrous consequences. Parties to construction or supply contracts may find it in their best interest to address more practically the assumption of design risk. To fail to do so merely creates the potential for protracted and costly litigation.

This is another example of the courts deciding a contractual dispute between two parties on the basis of, “a deal is a deal even if it’s not a very fair deal” rather than on the basis of what many might consider to be the more “fair” or the “correct” outcome.

If you are a supplier or supply contractor (or even a trade or general contractor for that matter), this case gives good cause for you to pay very close attention to the warranty requirements when responding to a tender call or reviewing an owner’s proposed form of contract.  If the proposed contract requires you to manufacture or install in accordance with someone else’s specifications/instructions and the warranty/guarantee provisions then make you responsible for any defects, you might very well be responsible for the owner’s (or other third party’s) own defective specification.  Coming full circle to my opening scenario – if you are that contractor, you better be sure that the 8” widget is manufactured and installed properly and that the 8” widget is the right size or you might be $3,000,000 lighter in the pocket!

Notice (Still) Means Notice: Ontario Court of Appeal upholds dismissal of contractor’s claim for failure to provide notice of the claim to the owner as required by the contract

Hot off the presses is Technicore Underground Inc. v. Toronto (City) in which the Ontario Court of Appeal has upheld the lower Court’s decision to dismiss a contractor’s (Clearway) claim against the owner (City of Toronto) as a result of Clearway’s failure to give the City of Toronto notice of its claim within 30 days “…after completion of the work affected by the situation” as was required by the contract between the parties.

Clearway gave the City of Toronto notice for part of its claim within the 30 day period required by the contract but didn’t give notice of another, much larger, component of its desired claim until more than three years later and within the context of the litigation that was commenced following the initial notice was given.  The City of Toronto brought a motion for partial summary judgment to dismiss the portion of Clearway’s claim for which notice had not been given within the required 30 days.  The motions judge granted partial summary judgment and dismissed the bulk of Clearway’s claim (more than $2.1M) for failure to give notice as required by the contract.

On appeal, Clearway argued that:

  • the notice provision was merely procedural and required “failing which” (or my preferred, “or else…”) language to have the drastic effect of permitting the dismissal of the claim;
  • in the absence of prejudice to the City of Toronto arising from the failure to give notice, the failure to give notice should not be fatal;
  • the City of Toronto’s own failure to comply with a different provision of the contract should disentitle it from relying on the notice provision;
  • portions of the claims for which no/late notice was given were really just extensions of the parts of the claim for which notice was given; and
  • the City of Toronto waived its right to rely on the notice provision.

The Court of Appeal rejected all of Clearway’s arguments and dismissed the appeal.  In so doing, the Court relied heavily on the Supreme Court of Canada Decision in Corpex (1977) Inc. v. The Queen in right of Canada (and the BC and Ontario Decisions in Doyle Construction Co. v. Carling O’Keefe Breweries of Canada Ltd. and Bemar Construction (Ontario) Inc. v. Mississauga (City of)).  I’m not going to repeat or summarize the Court’s reasoning but, if you are so inclined, it is worth the 15-20 minute read.

For contractors and owners, the primary take-away from this Decision is the reminder of how critical it is to know what is in your contract, understand what is required in various situations, and if the contract requires that you do something – to do it!  The consequences of failing to follow the requirements of your contract are not always this dramatic (and sometimes there will be some fact or event that can relieve you from a failure to comply) but why take the chance?

For fellow lawyers, aside from the substantive utility and importance of this Decision, I think we can all take note of the increasingly obvious reality that one of the most effective, appropriate, and useful applications of the new Rule 20 regime for summary judgment motions is the early and inexpensive resolution of claims that can be determined on the basis of the interpretation of contractual provisions (and their application to uncontroversial facts).

“I said ¾ of an inch. Look – it’s right there in the contract”

D’Urzo Demolition Inc. v. Damaris Developments Inc., 2012 ONSC 1912 (CanLII), released by the Ontario Superior Court of Justice on March 26, 2012, serves as a good reminder to owners and contractors of the importance of ensuring a mutual understanding of the specifications and other requirements of the work and then properly incorporating those documents and requirements into the construction contract.  For litigation lawyers, it also serves as a good reminder of the importance of ensuring that adequate and flexible evidence of damages (whether Plaintiff’s damages or a Defendant’s claim for set-off) is obtained and brought to trial.

Basic Facts

In a nutshell, D’Urzo Demolition Inc. (“D’Urzo”) was the successful bidder to demolish structures on a property in Toronto and then mechanically reduce the rubble into smaller crush.  The owner, Damaris Developments Inc. (“Damaris”), took the position that the contract required D’Urzo to crush the concrete to ¾ inch and to also demolish curbs and asphalt and remove same from the site. D’Urzo took the position that it only had to reduce the rubble to size of 3 inches (and that a smaller crush would constitute an extra) and that demolishing the asphalt and curbs and removing same from the site was not included in the scope of work and, again, constituted an extra.  At the end of the day, D’Urzo was substantially successful at trial – Damaris succeeded only in achieving a finding that the asphalt and curbs had to be demolished – D’Urzo succeeded in convincing the Court that the contract only required a 3 inch crush, that the asphalt should not have been required to be removed from the site and disposed of, and that Damaris was in breach of the contract for failing to pay.

Take Away Notes

Of note for contractors and owners – the work was put out for tender, there were competitive bids, and the parties used a standard form (CCDC2) contract and they still ended up in protracted litigation (the lien was filed in May, 2007 and trial did not conclude until December, 2011 – almost 5 years!) arising from a failure to clearly and properly set out what work was required by the contract.  If you are going to go to the trouble of putting a job out for tender and then use a detailed and established form of contract, spend the time and money to make sure that the specifications and drawings that establish the scope of work are both clear and properly incorporated by the contract.

Of note for lawyers – Damaris claimed $50,400.00 as its back charge to remove and dispose of the asphalt and curbs and provided evidence that this was what it cost.  But Master Albert found at trial that D’Urzo only had to remove the asphalt, not dispose of it.  Because Damaris’ evidence didn’t breakdown the back charge between removal and disposal, Master Albert had only D’Urzo’s evidence that the cost to remove the asphalt was $2,643.75 and he awarded that amount. This outcome highlights the risk of evidence limited to global amounts that aren’t broken down into component parts in case of divided findings at trial.

Top 10 (or 11) Suggestions for Homeowners Considering a Renovation or Residential Construction Project

For most people, long gone are the days where a house is purchased in early adulthood and is lived in, virtually unchanged, for 20, 30, even 40, years.  We are, more and more, a society and culture that encourages “upgrading” and “improvement”.  Many of us will, at some point, hire a contractor to carry out some kind of construction project – whether for a small bathroom renovation all the way up to a large six figure renovation.

There are a lot of fantastic contractors and builders out there that do excellent work and this article is, in no way, a slag on contractors generally.  Unfortunately, when trying to tell the good from the bad, one thing you can count on is that they will all – good ones and bad ones – tell you how skilled, professional, and “detail” and “quality” oriented they are.  However, another thing you can count on is that, when it’s your home and hard earned money is at risk, a two month delay, a 30% or 40% budget overrun, or an un-level floor/poor paint job/etc. (you get the idea), will test your anger management limits.  If the contractor then refuses to acknowledge the problem and stops communicating with you, you’ll quickly see those limits as little dots in your rear-view mirror.

Seasoned and experienced owners or developers undertaking large construction projects or working in new construction usually take steps to get the proper “legalities” taken care of – they negotiate contracts that are either standard form or are drafted by their lawyers, they hire consultants to oversee and review the work as it progresses, they make sure they are complying (more or less) with the Construction Lien Act, and so on. However, on smaller projects and renovations, and for less experienced homeowners, these safeguards and up-front precautions are far too often overlooked and it amazes me how little legal protection and planning many people seek even when there are tens or hundreds of thousands of dollars at stake.

Sometimes a project goes well and the homeowner gets what he or she bargained for without any conflict. These are the happy stories. However, too often, homeowners are getting into costly disputes with their contractors and either get a poor finished product or spend a small fortune in legal fees fighting for what they feel they are entitled to.  Fortunately, while construction can be a risky game for the uninformed and uninitiated, there are some things that homeowners can do to reduce the chances of things going sideways and improve their position if they do.

If you are a homeowner and are considering embarking on a renovation or construction project, the following are a few things you should think about before you sign on the so-called “dotted line”:

  1. Budget some amount of money for legal advice and assistance when you are in the early stages of planning your project.  The amount of your budget will probably depend on the overall cost and nature of the project.  You should consider this as part of the actual construction budget. If things go well (the happy story) and some of this money doesn’t get used,  great!  However, if things begin to capsize (the unhappy story), you’ll be glad to have the funds available to deal with the problem.
  2. Research the contractor(s) you are considering using.  The internet is a great resource for this (Google, chat rooms, the Better Business Bureau, etc) and your lawyer can also carry out searches to investigate whether there has been past litigation involving the contractor. Ask the contractor for two or three references for previous clients and call them (before agreeing to anything) – if people were unhappy, they’ll be eager to tell you about it.  If the contractor can’t (or won’t) give you a reference, run, don’t walk.
  3. Make sure that you have a well drafted contract in place that clearly sets out each party’s rights and obligations. There are many different project delivery methods available (fixed price, cost plus, project management, and so on), each with its own advantages and disadvantages. Regardless of which delivery method you choose, it should be clear as to who does what and when and for how much, and what the consequences will be if things that have been agreed upon do not happen.  Note: “well drafted” does not necessarily mean “long” or “complicated”.  Depending on the type and size of the project, an adequate contract might only be a page or two long.
  4. Consider having a schedule to the contract (unless it is set out right in the body of the contract) that clearly expresses exactly what is (and is not) included in the price. Too frequently, disputes arise because the homeowner thinks she is getting, for example, premium quality paint in an eggshell finish and the contractor plans on using standard builders’ grade flat paint.  If the contract is silent on this, the contractor is going to charge the homeowner more to use the paint that she thought was included.  A contract that sets these sorts of things out in detail can avoid this very, very common problem.
  5. Once you have that well drafted contract in place, follow it!  If a dispute arises, it is more difficult to earn the sympathy of the court if the other party is not the only one that has not abided by the agreed terms.  More than one lawsuit has been lost because both parties completely disregarded the terms of their contract.
  6. Get some advice on your rights and obligations under the Construction Lien Act. In many cases, knowing (and following) what the Construction Lien Act says about what you have to do (i.e. retaining a proper holdback for the appropriate amount of time and performing some due diligence searches before releasing the money) can save you from significant liability at the end of the project if workers, suppliers, or trades are not paid (whether directly by you or by your contractor).  This legislation is there, in part, to protect owners.
  7. If the size of the project warrants it, either work some terms into your contract(s) for third party reviews of the work and spend a bit of money on a consultant (i.e. an architect or engineer) to do periodic reviews to point out any deviations from the specifications, design, or the Building Code, or hire someone to do this outside the contract but for your own benefit and protection.  If a dispute arises, this third party can provide valuable evidence. If no dispute arises, the third party reviews can provide you with almost as valuable peace of mind
  8. Make sure that either you or the contractor is taking care of whatever permits are required. building permits add to the cost and “red tape” of the project but for many projects they are required and, for the most part, they are there to protect you. That said, do not assume that the building permit or inspection process will act as a general quality control for the work being done.  Inspectors are generally only inspecting for general compliance with the Building Code’s minimum standards – not to ensure that everything is being done properly or in accordance with the contract. There’s a big difference.
  9. Consider whether you want a dispute resolution clause in your contract. Sometimes there is no such clause, sometimes there is a mandatory mediation or arbitration clause, and sometimes there is a clause making mediation or arbitration optional. I am generally not a fan of mandatory arbitration clauses for smaller projects primarily because of the potential cost involved, but there are times where it might be appropriate. This is something to raise and discuss with your lawyer.
  10. If you have a lawyer retained from the outset of the project, he or she will be familiar with the project and contract and, in the event that a dispute arises, will be able to jump right in without nearly as much briefing to assist in resolving things. Let your lawyer know if you sense that a problem might be on the horizon (i.e. if your contractor seems to be falling behind, the materials on site don’t match what you requested, etc). Sometimes an early letter can help keep things on the rails when they might otherwise go off (potentially saving you a lot of money if a full-scale dispute can be averted).
  11. Most construction litigation is won and lost on the “paper trail”.  Keep a very accurate and complete project file where you keep everything to do with the project (i.e. contracts, drawings, quotes, documents supporting agreed changes to the scope of work, etc). Where things are discussed orally on site or in meetings, confirm what was discussed or agreed in writing (the speed and ease of e-mail makes this a no brainer). Keeping a comprehensive project file will:
    • keep you better organized in dealing with the contractor(s) and other involved parties throughout the project (never a bad thing);
    • only take a little more time than not doing it; and
    • if a dispute arises during the course of the project and arbitration or litigation is required, possibly mean the difference between winning or losing the dispute and will invariably save you money in legal fees because your lawyer will have better evidence to work with.

While I strongly believe that the above suggestions can go a long way toward reducing problems and putting you in a better position if problems arise, they will not guarantee you 100% protection.  Even where sophisticated owners and contractors make heroic efforts to protect themselves and negotiate detailed contracts believed by everyone to be clear and  bullet-proof, long and costly litigation can still occur.

Taking the time to follow the above suggestions and, perhaps, investing couple of thousand dollars for legal advice and services at the outset of a smaller project may be a hard pill to swallow for the eternal optimist who can’t imagine that a serious dispute could arise on his or her project (“My contractor seems like a really nice guy. I trust him.”), but most clients that I’ve represented over the years, after things went wrong and where they didn’t exercise this sort of up front effort and diligence, would almost certainly say that, with the benefit of hindsight, they would have done things differently.