It seems almost inevitable that HVAC contractors at some time will face the wrath of dissatisfied customers, whether justifiable or not, who demand satisfaction for HVAC system poor performance, breach of contract, unprofessional conduct, permit and/or warranty problems.
As I am not a lawyer, I do not intend to offer legal advice in this article, other than to recommend consulting a lawyer whenever you or your business may be facing legal action.
Having been subpoenaed to court several times by irate consumers, and having read numerous articles on past incidents, I hope to provide some valuable lessons to help readers avoid unnecessary legal altercations with customers.
Focusing on the needs of customers is what makes any business more likely to succeed. Slogans such as “Customers are not dependent on us; we are dependent on them,” or one of the most oft repeated, “Under promise and over deliver” have been around forever.
The business relationship between HVAC contractors and their customers should be one of trading value for value—the customer’s’ dollars traded for your exceptional goods and services.
But we have seen malevolent players in our industry over the years literally shaking down homeowners with a variety of schemes designed to separate them from their cash without providing any substantial benefits. Such behaviour makes people more likely to become litigious, especially if your contract does not clearly define the scope of work in a way that minimizes the potential for misunderstandings.
In my job as a manufacturer’s field service representative, part of my responsibilities required me to assist not only contractor customers but also equipment owners when poor performance or premature failures unfortunately occurred.
In a non-judgmental way, I resolved that each occurrence had several sides: a) the end user’s side; b) the contractor’s side; and c) the equipment side. To be sure, it was a delicate process because some issues were caused by factory defects, others by improper specification, installation, or commissioning problems and, too often, end user lack of maintenance or improper operation that created hardship for the three sides.
Inevitably, extra resources that had otherwise never been included had to be employed in resolving these situations. Eventually we made the equipment side happy, sometimes the other two sides, not so much.
Small Claims Court
When consumers decide further action should be taken to satisfy what they believe is breach of contract, or some other issue related to their interests being harmed, the issue can be put before a judge in the Small Claims Court.
The court handles civil disputes involving relatively small amounts of money that vary from province to province. Ontario’s Small Claims Court has a monetary limit of $35,000. Once the plaintiff files the appropriate forms with the court, the claim is then served to the defendant. The plaintiff can also call upon witness testimony (that is where I became involved). The defendant has 20 days to respond by filing a defense. Be sure to consult your province’s court guidelines for more information. For example, Ontario’s Ministry of the Attorney General publishes a comprehensive guide to procedures in Small Claims Court.
I learned that no case is straightforward, they all seem to have extenuating, sometimes even bizarre, circumstances.
In one case, I received a call from an elderly widow living in a small bungalow. She had contracted to have a new mid-efficiency gas furnace installed to replace its defective predecessor.
Hours after the installation, near midnight, her CO alarm started blaring. After calling the contractor and receiving no answer, she called the fire department.
The firefighters turned off her gas meter and ventilated the house. Fortunately, she was not harmed, but she had to leave the house to stay with a nearby relative. As it was still early fall, the outdoor temperature had yet to go below freezing, but a neighbour put an electric heater in the basement.
I received her angry call the next day. I offered to meet her at her home with the contractor, but she would not have any further dealings with the original contractor. I had another company send along an experienced technician, and together we examined the installation.
For some reason, the outlet box that allows the vent connector to be attached to the furnace flue had been damaged and the vent connector has been improperly installed allowing flue gas to empty directly into the building.
That unit should never have been started. The tech replaced the part, inspected the rest of the installation, and found no additional problems, thus the furnace returned to service.
However, as if thankfully avoiding a potentially fatal bout of CO poisoning was not enough, the homeowner decided to sue the contractor in Small Claims Court for several other reasons unrelated to the near fatal event.
The homeowner’s small dog treated the area around the furnace as its personal rest room that, according to the contractor, had not been cleaned up as required in the contract, on installation day.
The installation crew cleaned up the mess but then, unknown to her and without permission, sprayed a chemical deodorant onto the surrounding area.
An apparent sensitivity to the chemical deodorant drove her to leave the house as she was unable to return home, even after the CO incident had been resolved, for more than a week.
She thought to sue for the emotional upset caused by the unauthorized use of the deodorant, including loss of income from her part time babysitting job and expenses incurred while out of the house.
Since I had been to the jobsite, she called me as a witness. The judge asked me what had happened and, taking the equipment’s side, I explained how the issue was resolved. As no additional fees were incurred and the homeowner expressed her satisfaction with the furnace repairs, the judge then asked the contactor for an explanation.
The contractor, who appeared without a lawyer, apologized for the CO incident and for the unauthorized use of the deodorant spray while admitting no liability. Other than time away from his business, along with a good tongue lashing administered by the judge, the contractor faced no costs as the judge decided to dismiss the case.
Why? Because the Small Claims Court is not the place to sue for emotional distress. Also, the homeowner could not demonstrate any loss of wages, and since she stayed with a relative, she had no receipts for additional expenses.
Poor Performance Goes to Court
It is not unusual to have hot humid days throughout the summer, especially during July, in Toronto. In a second case involving a different contractor, I was asked to visit a jobsite near downtown Toronto to help determine why a newly installed cooling unit could not provide adequate cooling to the second floor of an old row house that was once heated by a gravity system.
Together with the contractor’s technician we found several commissioning issues, not to mention the wonky duct system that had been modified by another contractor in days gone by. No argument, the main bedroom facing south was poorly served. The contractor promised to amend all the issues; plus, he tried to improve the airflow up to the second floor.
A few weeks later, the same homeowner came to my office and served me with a subpoena to appear as a witness in the Small Claims Court. The homeowner claimed the poor cooling performance issue had not been resolved to his satisfaction and made a list of compensatory demands the contractor had rejected during a settlement conference scheduled by the court to resolve the dispute without going to trial.
I went to court twice, neither time did the judge call upon me to present my equipment side’s evidence.
At the second court appearance, after an additional settlement conference, the contractor informed the judge he had reached an agreement with the plaintiff and the claim was thus resolved.
The contractor did not have a lawyer present; however, I do know that he agreed to remove the equipment and refund the purchase price. A stressful and time-consuming event resulting from poor planning and sad second-rate implementation.
The Case of Too Many Candles
I accompanied a contractor’s service technician to a house in a newly constructed subdivision north of Toronto. The house had been occupied for just over a year. The homeowner claimed the furnace had malfunctioned and caused black soot to spread all over the house.
Indeed, there was soot accumulation everywhere, the white carpet had small soot marks shaped like lightning bolts regularly spaced along the carpeted hallways. Soot had accumulated on the curtains, walls, picture frames and on top of kitchen cabinets and appliances. What a mess.
The tech and I examined the dual piped high efficiency gas furnace and found a considerable amount of soot on the air filter and a lesser amount on the blower assembly.
The technician inspected the heat exchanger and the venting system, and then he checked the gas pressure (static, working, and manifold) and clocked the gas meter. Test results proved the furnace was operating normally and fit for purpose.
The technician provided the homeowner with a copy of the data and advised a thorough furnace and duct cleaning be completed as soon as possible.
Where could the soot be coming from?
Candles, three-inch diameter candles, nine of them were burning as we noted upon our arrival. Candles produce prodigious amounts of soot and should only be used in emergency situations.
However, the homeowner roundly disputed our contention stating that candles had been used in their previous household with no such trouble. Yet, the last house turned out to be a leaky old relic, no comparison to the newly built better sealed house truly incapable of dealing with sooty candles.
Unsurprisingly, the homeowner filed an insurance claim. Several months later, our office received a registered letter addressed to me.
The bulky envelope contained an invoice from the homeowner’s insurance company seeking compensation for the significant costs incurred to clean up the sooty mess that included all new carpeting and repainting the entire upper living areas.
Known as subrogation, it is a process where an insurance company seeks reimbursement from a third party allegedly responsible for causing a loss for which they have paid compensation.
Included with the invoice was a photocopy of a page out of an old textbook describing numerous industrial devices capable of creating soot. This document was provided by the fire and restoration company hired by the insurer.
Among the list of potential culprits, the word “furnace” was highlighted in yellow. Using that document and without acknowledging my evidence submitted to the homeowner, the invoice demanded payment of just over $25K.
In a phone conversation I had with the insurance company’s agent, I noted that the invoice did not include a charge for replacing the furnace or cleaning the ductwork. “Surely you are not leaving behind a faulty product that caused all this damage only to have it soot up the house all over again?” I asked. He simply replied: “You have to pay!” and hung up.
In the end, I passed along the invoice and my data to my employer’s corporate lawyer and that was the end of it for me. I do not know how the issue was resolved.
Final Thoughts
Providing top-drawer HVAC installations that foster long-lasting customer relationships are paramount. However, contractors must also be vigilant about seemingly minor jobsite oversights.
Unusual odours, loud music, not obtaining permission to use the driveway, parking on the lawn, unauthorized trimming of shrubbery, and failing to protect carpets or flooring can all escalate into serious issues, potentially leading to a court summons.
By addressing these details proactively, HVAC contractors can mitigate risks and maintain their reputations for excellence.
Ian McTeer is an HVAC consultant with over 35 years of experience. He was most recently a field rep for Trane Canada DSO. McTeer is a refrigeration mechanic and Class 1 Gas technician. He can be reached at imcteer@outlook.com.
