What is the test for establishing a set-off for delay in allowing a contractor to complete a project?
British Columbia, Canada
The following excerpt is from Franssen v. Wilkinson, 2019 BCCRT 903 (CanLII):
23. To establish a set-off, the burden shifts to the respondent to establish her loss on a balance of probabilities (see for example Nowak v. Scott Russel Watch (Doing Business As Van Green Flooring), 2018 BCCRT 704). I find she has not met this burden. Apart from stating that she potentially lost rent, the respondent provided no evidence to show she could have rented the suite, the market rental rate, or that the respondent’s delay caused her loss. Further, even if the respondent did not know the extent of the applicant’s limitations, her submissions show she had some idea and yet, she still agreed to allow him to finish to job. Accordingly, I find the respondent has not established that she is entitled to any set-off for delay.
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