By Maud Rivard, partner, and Julie Pamerleau, associate
Just recently, the Court of Appeal had to consider once again the notions of “loss of the work” and of “poor workmanship” within the meaning of Sections 2118 and 2120 of the Civil Code of Québec (“C.c.Q.”), outlining their distinctiveness1.
FACTS
In this instance, the Applicant, Société des vétérans polonais de guerre du Maréchal J. Pilsudski, alleged the existence of deficiencies and poor workmanship resulting from some work done on the brick cladding of a wall. The Applicant also sued the architect who prepared the plans and specifications, the structural engineer, and his firm, who designed and supervised the wall rehabilitation works; as well as the construction contractor specialized in masonry having executed the works.
The Applicant’s experts, an architect and an engineer, had concluded that the wall was affected by such deficiencies that it had to be demolished and rebuilt.
On July 11, 2016, Justice Pierre-C. Gagnon of the Superior Court rendered a judgment awarding damages to the Applicant against the contractor, the structural engineer and his business, and finding them jointly liable under the provisions of Section 2118 of the C.c.Q.
Prior to the hearing, the Applicant had settled the matter out-of-court with the architect. Justice Gagnon determined that the claim release given by the Applicant to the architect does not constitute, in whole or in part, a remission of the contractor’s or engineer’s liabilities. Since the architect didn’t conduct nor supervise the works, his participation was strictly limited to affix his seal on the plans, and he could not hence be held liable under the provisions of Section 2118 C.c.Q. where solidarity is provided.
The Defenders appealed that decision and the Applicant also cross-appealed the amount of damages awarded.
THE “LOSS OF THE WORK” WITHIN THE MEANING OF SECTION 2118 OF THE C.C.Q.: BEYOND THE MERE RISK
The Court of Appeal determined that the Applicant had not proven, on the balance of probabilities, that the defects identified by its experts would really cause the loss of the work and that those defects could not be remedied without having to dismantle the wall and proceed to its full reconstruction. Consequently, the trial judge made a palpable and overriding error.
According to the Court of Appeal, the mere mention of a danger to the public by reason of a potential corrosion that might trigger the possible collapse of the wall does not suffice to satisfy the application criteria of Section 2118 of the C.c.Q. It was determined that the expert evidence presented by the Applicant is [TRANSLATION] “very fragile, even hypothetical and most of all vigorously challenged by several experts” of the Defenders. Yet, the first instance decision does not consider at all the expert evidences submitted by the Defenders. Furthermore, the Court of Appeal was concerned with the fact that no evidence established an apparent and objective sign of wall degradation or corrosion since it was constructed more than eleven (11) years ago and showed no whatsoever tangible threat of collapsing. The Court, in that respect, remained sceptical towards the single expert evidence submitted by the Applicant that merely establishes long-term fears concerning a corrosion or movement risk. Incidentally, the Applicant never disclosed any danger or imminent risk to its insurer, nor to the City of Montreal.
The Court of Appeal reminded that the terms “loss of the work” are said to mean a major defect causing serious harm to the extent that the work is no longer fit for its use and requires corrective measures otherwise it would become a total loss. The liability presumption under Section 2118 of the C.c.Q. will only apply if the owner successfully establishes, on the balance of probabilities, the “loss of the work”, which is not the case in this instance.
“POOR WORKMANSHIP” WITHIN THE MEANING OF SECTION 2120 OF THE C.C.Q.: A NO-FAULT LEGAL WARRANTY REGIME
While the Court of Appeal ruled that there was no “loss of the work” under Section 2118 of the C.c.Q., the Tribunal nevertheless considered that the wall defects constituted poor workmanship within the meaning of Section 2120 of the C.c.Q. and that they were discovered within one year after acceptance of the work.
The Court of Appeal pointed out that the legal warranty regime established under Section 2120 of the C.c.Q. applies with no obligation for the client (the Applicant, in instance) to prove any fault since the only burden of proof it has to satisfy is to establish poor workmanship and the fact that it was discovered within the first year after the acceptance of the work.
In the present case, the Superior Court determined that the accepted standards or goof practices were not satisfied with regards to the insufficient number of fastenings and their spacing. The Court of Appeal is of the opinion that it is a case of “poor workmanship” and that it is appropriate to award damages.
ASSESSMENT OF DAMAGES IN APPEAL: WHERE IN ABSENCE OF DIRECT EVIDENCE THE COURT HAS TO PROCEED TO THEIR ASSESSMENT
As to pecuniary damages and considering the Tribunal’s determination with regards to Section 2118 of the C.c.Q., the Court of Appeal denied the award to the Applicant of their value as determined in first instance, being the demolition and rebuilding costs of the wall and the professional fees (architect and engineer).
Where there is no evidence as to the value of the damages that might be awarded to the Applicant for poor workmanship pursuant to Section 2120 of the C.c.Q., the Court of Appeal agreed to proceed to their assessment based on the information contained in the expert reports. The Court determined the quantum of damage based on the indications of the works’ value mentioned in the expert report with regards to the insertion of additional fastening to correct the poor workmanship and the decrease of the useful life of the wall.
RELEASE AND SOLIDARITY
As to the release granted to the architect, the Court of Appeal upheld the first instance decision. Since no fault was attributable to the architect, while the contractor did not even use the sealed plans he had delivered anyways, the defenders cannot enjoy the benefit of a remission nor of a reassessment as they are the only authors of the harm, being the poor workmanship of the work.
Finally, on another issue, the Court of Appeal noted that in contrast with Section 2118 of the C.c.Q., the liability imposed under Section 2120 of the C.c.Q. is joint and not several.
IN CONCLUSION
Where a remedy under Section 2118 of the C.c.Q. is sought, the Applicant has the burden of proving the loss of the work caused either by a major defect threatening the solidity of the work or its effective, and non hypothetical, ruin.
The non compliance of the work with some construction standards or some gaps in the best practices do not provide a sufficient basis justifying the application of the presumption under Section 2118 of the C.c.Q.
If a party doesn’t discharge its burden under Section 2118 of the C.c.Q., it might sometimes fall back on the liability established under Section 2120 of the C.c.Q. provided that the poor workmanship is discovered within one year after acceptance of the work. Said party will then only be awarded, as damages, the costs required to correct the poor workmanship, but in no case the costs of its rebuilding.
Furthermore, under Section 2118 as well as under Section 2120 of the C.c.Q., it is always best for the Applicant to provide, in the alternative, a breakdown of the damages so that the Court may determine the quantum of damages in accordance with the liability regime relied upon.
1 Construction Dompat inc. v. Société des vétérans polonais de guerre du Maréchal J. Pilsudski, 2019 QCCA 926.