Supreme Court of Canada
Parrot v. Thompson et al., 1984 CanLII 118 (SCC), [1984] 1 SCR 57
J.E. Parrot Appellant;
and
Ronald Thompson and A.R. Monty Respondents.
1983: October 31; 1984: February 2.
Present: Dickson, Beetz, Chouinard, Lamer and Wilson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Negligence—Delictual liability—Professional liability against third parties—Land surveyor—Error with respect to the surface area of a piece of land in the book of reference—Reduction in the price of the land—Action against land surveyor based on this reduction —Causal link—Civil Code, arts. 1053, 2166, 2167, 2168, 2174, 2175.
The issue arose out of an error in calculating a surface area that occurred in the technical description of a subdivision of an original lot prepared by appellant in 1956. The description appearing in the book of reference indicated an area of 80,340 sq. ft. The actual area of this subdivided lot was only 73,659.96 sq. ft. In 1973, the respondents bought a piece of land consisting of the subdivided lot and part of two unsubdivided lots. The sale was done without any indication of the area. Respondents, in adding the area shown in the book of reference to that of the two unsubdivided lots, thought they were acquiring a parcel of 102,840 sq. ft. On learning of the error, respondents, who already had undertaken to sell one parcel of at least 40,000 sq. ft. to a first buyer and a second of at least 60,000 sq. ft. to a second buyer, found themselves unable to deliver the promised area. They negotiated the sale of a smaller area with the second buyer and consented by transaction to a reduction of the price per square foot. This reduction represented a loss of $11,844.83 for the respondents. Respondents then claimed this amount from the appellant. The Superior Court dismissed the action but the Court of Appeal set the judgment aside. This appeal is to determine if the causal link, required if art. 1053 C.C. is to apply, existed between the damages and appellant’s fault.
Held: The appeal should be allowed.
There was no causal link between the damage claimed and appellant’s error. The reduction in the price per square foot agreed on by the transaction was not a damage resulting directly from appellant’s error. In
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order to succeed in their claim based on this reduction of the price, respondents would have had to establish that but for appellant’s error, they would have obtained a higher price per square foot than the one they obtained. No such evidence was presented.
Alliance Assurance Co. v. Dominion Electric Protection Co., 1969 CanLII 48 (SCC), [1970] S.C.R. 168; J.G. Fitzpatrick Ltd. v. Brett, [1969] C.S. 144; Carbonneau v. Godbout (1920), 31 Que. K.B. 69; Côté v. McKinnon, [1959] Que. Q.B. 272, referred to.
APPEAL from a judgment of the Quebec Court of Appeal reversing a judgment of the Superior Court dismissing an action in damages for a professional fault. Appeal allowed.
Richard McLernon and Gilles Fontaine, for the appellant.
Hubert Pépin and Stephen Monty, for the respondents.
English version of the judgment of the Court delivered by
Chouinard J.—This case concerns the professional liability of a land surveyor, not to the client who retained his services but to third parties. Respondents pleaded his quasi-delictual liability rather than his contractual liability.
It is well established that an act which constitutes contractual fault as against another contracting party may also constitute delictual or quasi-delictual fault as against a third party, and so be a basis for an action under arts. 1053 et seq. of the Civil Code.
In Alliance Assurance Co. v. Dominion Electric Protection Co., 1969 CanLII 48 (SCC), [1970] S.C.R. 168, Pigeon J. wrote for the Court, at p. 173:
It is true that the existence of contractual relations does in no way exclude the possibility of a delictual or quasi-delictual obligation arising out of the same fact. However, it is necessary for this that all the elements required to give rise to such responsibility should be found. Obviously, a fault is the first of these elements. For a fault to exist, it is essential, as appears from the wording of art. 1053 C.C., that there be either a positive
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damaging and non-justifiable act or the omission to perform a duty towards the injured party.
In J.G. Fitzpatrick Ltd. v. Brett, [1969] C.S. 144, which concerned the liability of engineers, Mayrand J., as he then was, wrote at p. 149:
[TRANSLATION] No contract exists between plaintiff and defendants, so that it is natural to allege quasi-delictual fault against the latter. However, defendants committed the fault resulting in damage in the course of performing a contract. There is no doubt that with respect to their fellow contracting party, the architect Dickinson, defendants committed a contractual fault. Is plaintiff barred from relying on a contract to which he is not a party as a basis for his action? It is true that a contract is effective only between the parties: a third party cannot derive any benefit from it, except in the case of a third party stipulation. However, the act constituting contractual fault towards another contracting party may at the same time be a delictual fault in respect of a third party who suffers by it.
Mayrand J. then cited the following passage from H. and L. Mazeaud and A. Tunc, Traité de la responsabilité civile, 6th ed., 1965, No. 144-3, at p. 179:
[TRANSLATION] Third parties may rely on the existence and non-performance of a contract to which they are strangers, provided they do not in so doing seek to extend to themselves an obligation existing only between the contracting parties. Relying on the fact that someone has entered into a contract and even that the person has not performed it is merely relying on a fact which exists as such, so far as anyone is concerned.
Relying on Planiol and Ripert, Traité pratique de droit civil français, 2nd ed., v. 11, 1954, No. 947 bis, at p. 188, and H., L. and J. Mazeaud, Leçons de droit civil, 2nd ed., v. 3, 1963, No. 1364, at p. 1099, Mayrand J. wrote at p. 150:
[TRANSLATION] The liability of an engineer or architect cannot therefore be limited to the owner with whom he did business; when a professional fault committed in the exercise of his profession affects a third party, the latter can bring an action against him based on art. 1053 of the Civil Code.
Facts and Proceedings
In the case at bar, the issue arises out of an unfortunate error in calculating area that occurred
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in the technical description of a subdivision of an original lot prepared by appellant.
The error dated back 17 years, but appellant is no longer relying on prescription, which could only begin to run when the damage occurred.
The facts were not in dispute in this Court. The following summary of the chief relevant facts is taken from the submission of appellant:
[TRANSLATION] On February 10, 1973 respondents Ronald Thompson and A.R. Monty obtained from Henri Mathieu a promise to sell a piece of land consisting of lot 111-11 and of part of unsubdivided lots 111 and 113 of the official cadastre of the township of Orford; as appears from the promise of sale, this land is well described by conterminous properties, its dimensions are accurate and the promise of sale makes no mention of its area, though it mentions a total price of $100,000.00.
Appellant had prepared the description appearing in the book of reference for lot 111-11 in 1956, when this parcel of land was subdivided. The book of reference contained an erroneous calculation of the area. The plan accompanying the book of reference was accurate. The plan and the book of reference were sent to the Minister of Lands and Forests, who in accordance with the Act retained the originals at the Department and filed a true copy of the documents in the registry office for the division of Sherbrooke, province of Quebec.
Relying on this area, which showed 80,340 square feet in the book of reference—this was not mentioned in the plan—and calculating the area of the rectangle formed by the other u.s. lots 111 and 113 at 22,500 square feet, respondents assumed that the total area of the land was about 102,840 square feet.
The error in area in the book of reference dated back to 1956, when appellant, a land surveyor, at the request of his client Mathieu, respondent’s predecessor in title, had prepared, calculated and submitted to the Minister of Lands and Forests the plan and cadastral designation of this lot. Previously, appellant had correctly calculated the area at 1.691 acres; a simple error of calculation undoubtedly occurred in converting to square feet (1.691 acres x 43,560 square feet: 73,659.96 square feet).
Appellant admitted that the book of reference which he had prepared in August 1956 and filed with the
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Department of Lands and Forests on the 6th contained an error. He could not provide a definite explanation of this, for the land itself is well described by its conterminous properties, its irregular geometric shape corresponds to the reality and its linear measurements are accurate. As mentioned, he really could see only one explanation, that this error was due to the arithmetic calculation made to convert an area which was first calculated in acres into square feet. The plan accompanying the book of reference is accurate.
In March 1973, respondents gave purchase options to two other persons and accordingly undertook to dispose of all the land in two parcels as follows:
(a) by a purchase offer dated March 6, 1973 (accepted on March 9, 1973) from McDonald’s Restaurants of Canada Ltd., for a parcel of at least 40,000 square feet, of about 165 feet along King Street, and about 285 feet along Don Bosco Street, for $2.00 a square foot;
(b) by an offer of sale to Dr. G. LaSalle or his representatives, dated March 28, 1973 (accepted the following day) for a parcel of at least 60,000 square feet (in fact, the remainder of the land) for a total price of $79,520.00.
When they bought this land from Mr. Henri Mathieu, respondents had themselves calculated that they were buying 102,840 square feet, since to the aforementioned area of 80,340 square feet for lot 111-11, they added that of u.s. lots 111 and 113, forming a square with 150-foot sides (22,500 square feet).
Subsequently to this purchase offer respondents, who paid $100,000.00 for the land they bought, offered it for sale as stated above, first to McDonald’s Restaurants of Canada Ltd., and second to Dr. G. LaSalle, who was planning to build the Auberge des Gouverneurs on the adjoining lot, determining the total area themselves.
On May 2, 1973, Dr. LaSalle (through his son Jean LaSalle) registered on the lots in question the offer of sale which respondents had made to him on March 28, 1973.
Examining the plans attached to the offers of sale, Jean LaSalle, the son of Dr. LaSalle, realized that the land offered did not have the area mentioned in the offers, and this is why he hastily registered by memorial the offer which his father had received from respondents, as he did not want the latter to sell the larger area to McDonald’s, against his own interests.
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Respondents then learned of the existence of the deficiency in area on lot 111-11, amounting to some 6,680.04 square feet. The actual area of this lot was 73,659.96 square feet, instead of 80,340 square feet as indicated in the technical description in the cadastre.
When this registration was made by Mr. Jean LaSalle, the son of Dr. LaSalle, and respondents learned of the deficiency in area, respondents went to their land surveyor Jean-Marc Nadeau, and the check made by the latter established that there was in fact a difference of 6,894.4 square feet between the actual area and that indicated in the plan of lot 111-11.
Respondents then negotiated with McDonald’s Restaurants and the LaSalle family, and it was finally agreed that instead of selling 102,840 square feet for a total amount of $165,787.86, they were in fact selling 95,945 square feet for $144,668.00.
In fact, the sale to McDonald’s was concluded in accordance with the promise of sale made to it, and this sale is not at issue in this appeal.
Bernier J.A., giving the unanimous judgment of the Court of Appeal, explained what happened regarding Dr. LaSalle as follows:
[TRANSLATION] As appellants were unable to deliver the 100,000 square feet which they had undertaken to sell, the area granted to McDonald’s being a minimum needed for the latter’s purposes, they were obliged to negotiate a compromise with Dr. LaSalle, for whom the new parcel represented only an expansion for the inn he was building on the adjoining lot, which he owned. With the advantage of the promise of sale which he had had registered Dr. LaSalle, after several meetings, indicated through his son that he was willing to accept a parcel reduced by the amount of the deficiency in area, provided that appellants reduced the selling price on the basis of converting their purchase price into a unit price, namely $1.00 a square foot, plus the expenses incurred up to that time, making a unit price of $1.096 a square foot, and appellants accepted this.
Accordingly, respondents agreed by a transaction to reduce from $1.3233 to $1.096 per square foot the price for the 52,111 square feet which, according to them, they have in fact sold to Dr. LaSalle. This reduction represented $11,844.83, respondents estimated the damages which they had suffered at this amount, and it was this amount which appellant was ordered to pay them
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by the judgment of the Court of Appeal. I note, as Bernier J.A. pointed out, that no question was raised about the price determined by this transaction.
It is very doubtful that respondents could have brought an action against their seller Mathieu as a consequence of the shortage in lot 111-11. Articles 1501, 1502 and 1503 C.C. apply in such cases:
- [If an immoveable be sold with a statement, in whatever terms expressed, of its superficial contents, either at a certain rate or by measurement, or at a single price for the whole, the seller is obliged to deliver the whole quantity specified in the contract; if such delivery be not possible, the buyer may obtain a diminution of the price according to the value of the quantity not delivered.
If the superficial contents exceed the quantity specified, the buyer must pay for such excessive quantity, or he may at his option give it back to the seller]
[In either of the cases stated in the last preceding article, if the deficiency or excess of quantity be so great, in comparison with the quantity specified, that it may be presumed the buyer would not have bought if he had known it, he may abandon the sale and recover from the seller the price, if paid, and the expenses of the contract, without prejudice in any case to his claim for damages]
[The rules contained in the last two preceding articles do not apply, when it clearly appears from the description of the immoveable and the terms of the contract that the sale is of a certain determinate thing, without regard to its quantity by measurement, whether such quantity is mentioned or not]
The sale of lot 111-11 by Mathieu to respondents was made without a statement of superficial contents. When a lot is designated by its cadastral number, as was the case here, there is a sale of a certain determinate thing within the meaning of art. 1503 C.C. See Faribault, Traité de Droit civil du Québec, v. 11, p. 223, No. 248; Thérèse Rousseau-Houle, Précis du droit de la vente et du louage, Presses de l’Université Laval, Quebec City, 1978, at p. 84.
In any case, the relations between respondents and their seller Mathieu are not at issue in the case at bar.
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However, the situation was quite different between respondents and Dr. LaSalle. By their promise to sell of March 28, 1973, respondents had undertaken to sell a lot with a minimum area of 60,000 square feet. Articles 1501 and 1502 C.C. apply here.
Dr. LaSalle could have refused to buy if the shortage was so large that he would not have bought if he had known of it. That is not the case.
He could also have obtained a reduction in price proportional to the quantity which could not be delivered, and this was done for the missing area. This reduction in the price, amounting to some $9,000, was claimed by respondents at the outset. In the Court of Appeal, they quite properly withdrew this claim, as Bernier J.A. explained, for they could not claim for an area which they had never had.
However, as the general rule of art. 1065 C.C. authorized him to do, Dr. LaSalle also claimed damages. These were fixed by a transaction between respondents and himself in the aforementioned amount of $11,844.83, representing the reduction in price per square foot for the land in fact sold.
The Court must determine whether these damages which were assumed by respondents can be claimed by them from appellant, and in particular, whether there exists between the damages and the fault of appellant the causal link required if art. 1053 C.C. is to apply.
The Superior Court held that the link does not exist, but its judgment was reversed by the Court of Appeal, which as we have seen ordered appellant to pay respondents $11,844.83. With respect, I consider that the Superior Court was correct for the reasons which follow.
The Official Cadastre and the Land Surveyor
In Le droit civil canadien, v. 9, Mignault writes concerning the official plan and book of reference, at p. 304:
[TRANSLATION] The provisions which follow are very important, for they have made a radical change in our legislation on immovables. Formerly, immovables were described by mentioning their conterminous properties.
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This system had the disadvantage of making the identification of an immovable very difficult: adjoining immovables, which formed its conterminous properties, could only be described by their owners’ names, and as properties often change hands, and the names of former owners may be forgotten, it was very difficult to follow an immovable through the various transfers affecting it. It was therefore decided in 1860 to give each immovable a distinctive number, and for this it was necessary to prepare the cadastre of all immovables in the province. This cadastre consists of two essential parts. First, there is a plan of each parish, village, town, and sometimes each ward of a town, indicating all immovables found there by series numbers which identify them. Accompanying this plan is a register called a “book of reference”, containing a special entry for each number, where the immovable is described by its dimensions and its conterminous properties.
Articles 2166 and 2167 C.C. provide:
The Ministre de l’énergie et des ressources furnishes each registry office with a copy of a correct plan, made in conformity with the provisions of section 2 of the Cadastre Act, (Revised Statutes, 1941, chapter 320), showing distinctly all the lots of each city, town, village, parish, township, or part thereof, comprised within the division to which such office belongs.
Such plan must be accompanied by a copy of a book of reference in which are set forth:
A general description of each lot shewn upon the plan;
The name of the owner of each lot, so far as it can be ascertained;
All remarks necessary to the right understanding of the plan.
Each lot shewn upon the plan is designated thereon by a number, which is one of a single series, and is entered in the book of reference to designate the same lot.
The general description mentioned in para. 1 of art. 2167 consists of [translation] “a listing of the boundaries by conterminous properties, dimensions and area in English or French measure”. See Paul Laquerre and Jean-Claude Marcotte, “L’enregistrement des droits immobiliers et l’examen des titres immobiliers”, C.F.P.B.Q., 1983-84, vol. 6, title XX, at p. 197.
Paragraph 3 of art. 2174 C.C. provides that:
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No right of ownership can be affected by any error in the plan or book of reference, nor can any error of description, dimensions or name be interpreted to give any person any better right to the land than his title gives him.
Marler, Law of Real Property (Quebec), Burroughs and Company Limited, Toronto, 1932, writes at p. 566, No. 1138:
- THE CADASTRAL SYSTEM:—The System of Official Plans and Books of Reference, commonly called the Cadastral System, prevails throughout the greater part of the Province. A plan of a district or city is officially prepared, on which the holding of every proprietor is indicated by a number, and a description of the land corresponding with that number is given in the accompanying book of reference. These descriptions make no pretension to extreme accuracy; no right of ownership is affected by any error in the plan or book of reference, nor is any error of description, dimensions or name to be interpreted to give any person any better right to the land than his title gives him, C.C. 2174. Errors are readily corrected on the application of an interested party, and the necessary alterations made on the plan and book of reference by marginal entries thereon.
Similarly, Marie-Louis Beaulieu, in an article titled “Effets du cadastre”, (1936) 38 R. du N. 407, writes at p. 407:
[TRANSLATION] One of the sources of information for a surveyor, as we have said, is the cadastre, the plans and books of reference; but their significance should not be misunderstood. The plans and books of reference serve to identify properties, to give them a name, the cadastral number, to establish their situation in relation to their true neighbours, and to make known their description, but do not in any way determine their contents or fix their boundaries. The cadastre does not create any right of ownership.
Reference is frequently made also to the following passage from the reasons of Sir Mathias Tellier—dissenting, it is true, but not on this point—in Carbonneau v. Godbout (1920), 31 Que. K.B. 69, at p. 77:
[TRANSLATION] Just as there is no doubt that an error as to the contents stated in a contract of sale cannot either harm or benefit the buyer, when the immovable is sold as a whole, it is no less certain that a
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mistake in contents in the book of reference of the cadastre does not change anything about the cadastral lot. The cadastre is not prepared to inform people as to the contents of immovables, but to give each immovable a number. The contents are only included in the book of reference as a means of recognizing or identifying a lot.
This is why, as we have seen, as between a seller and his buyer the cadastral description in the book of reference will not have the effect of giving the latter any more or less area than the lot actually contains, and the buyer will have no remedy unless there is some mention of the contents in the deed of sale itself.
It does not follow that the information in the cadastre cannot be relied on.
Under article 2166 C.C., the plan is deemed to be “correct”.
In Côté v. McKinnon, [1959] Que. Q.B. 272, Pratte J.A. wrote for the Court of Appeal, at p. 275:
[TRANSLATION] Under article 2174 C.C., no right of ownership can be affected by any error in the plan or book of reference, nor can any error of description, dimensions or name be interpreted to give any person any better right to the land than his title gives him; but this does not mean that the information in the cadastre cannot be used to fix the boundary of property. The cadastral plan is deemed to be correct (C.C., art. 2166), and under art. 2168 C.C., properties must be designated by the number given to them on this plan. It should also be noted that, unless there is an error in the plan, a person who acquires an immovable designated by its cadastral number acquires the immovable with the boundaries stated in the plan, except of course the rights which third parties may have acquired by possession or otherwise.
In his text cited above, Marler writes at p. 570, No. 1150:
- DESCRIPTION OF A WHOLE LOT:—Land to which a whole number has been assigned on the plan is described thus: Lot Number one hundred and thirty-one (131) on the official plan and in the book of reference for the St. Antoine Ward of the City of Montreal. This is “its true description” and is “sufficient, as such, in any document whatever”, C.C. 2168, although it indicates neither its situation, boundaries, nor measurements. For these, recourse must be had to
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the plan and book of reference in the registry office, where alone reliable information is to be obtained.
In an article titled “La description légale d’un emplacement”, (1981) 83 R. du N. 517, Mr. Albert Bélanger writes, at p. 542:
[TRANSLATION] Though it does not constitute evidence as to its contents, and does not in itself confer any title of ownership, the cadastre ordinarily provides accurate information. In establishing the cadastre, the legislator had in view a purpose of an essentially public nature, the protection of rights in immovables and the prevention of frauds.
The profession of land surveyor is one of exclusive exercise. The Land Surveyors’ Act, in effect in 1956 when appellant prepared the technical description at issue, was R.S.Q. 1941, c. 271. Section 56 states that:
- No survey, nor any operations coming within the functions of a land surveyor of this Province, as defined by section 58, shall be valid unless performed by a land surveyor duly admitted to practise in the Province by law and the regulations of the Corporation, or made under his immediate personal supervision.
According to the first paragraph of s. 58 of that Act, no one but a land surveyor can, inter alia, prepare technical descriptions or calculate the area of property in the province:
- All surveys of lands, measurements for boundary purposes, setting of boundaries, plotting of plans, plans, copies of plans, procès-verbaux, reports, technical descriptions of territories, and all documents or surveying operations connected with the scaling of rivers and lakes, and, generally, all operations whatever connected in any way with the bounding, measuring, laying out and picketing of lots, and the calculation of the area of lands, in the Province and the cadastral division, subdivision, re-division, and re‑subdivision of such lands, fall within the attributes of a land surveyor of the Province and shall not be undertaken or executed except by a surveyor as prescribed by section 56.
Appellant prepared for Mr. Mathieu a subdivision of an original lot pursuant to art. 2175 C.C., the first paragraph of which reads as follows:
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- Whenever the owner of a property designated upon the plan or book of reference, subdivides the same into town or village lots, he must deposit in the office of the Ministre de l’énergie et des ressources a plan and book of reference certified by himself, with particular numbers and designations, so as to distinguish them from the original lots; and if the Ministre de l’énergie et des ressources find that such particular plan and book of reference are correct, he transmits a copy certified by himself to the registrar of the division, and to the clerk or the secretary-treasurer of the municipality within the limits of which is situated the subdivided property.
As can be seen, such a subdivision is for the owner to undertake. Mr. Jean-Marc Audet, in an article titled “L’article 2168 du Code civil: énigme ou évidence?”, [1982] C.P. du N. 25, describes the procedure to be followed at pp. 52 and 53, Nos. 32 to 34:
[TRANSLATION] 32. The plan and book of reference prepared by the land surveyor are sent to the cadastre service of the ministère de l’Énergie et des Ressources. Depending on the territory where the lots are located, the cadastre service has two regional offices, one of which is located in Montreal and the other in Quebec City. The ministère de l’Énergie et des Ressources is the depositary of the original of the plan and book of reference which are sent to it. Once they have been approved, the plan and book of reference are dated and kept on file in the department’s archives. Here again, the date of this plan is not what gives the lot an official number. It is in fact an internal plan, even though it is approved by the department.
The ministère de l’Énergie et des Ressources in its turn sends an authentic and certified copy of the plan and book of reference to the office of the registry division concerned. The date of filing of this plan and book of reference in the registry office is not a date reflecting the lot numbers noted on the plan. It is true that the plan and book of reference are filed and registered, but again, not in such a way as to constitute a public record within the meaning of the Civil Code.
The registrar is required to prepare an Index of Immovables, listing new lot numbers recorded in the copy of the plan and book of reference sent by the ministère de l’Énergie et des Ressources. The date of an entry in the Index of Immovables is the only true date on which a lot becomes official. A cadastre or a cadastral operation thus becomes official once the lot numbers which are mentioned in the plan and book of reference, and approved by the ministère de l’Énergie et
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des Ressources, are entered in the Index of Immovables.
The plan and technical description prepared by a surveyor at the owner’s request are sent to the Minister, who in turn sends them on to the registry office. For the purposes of liability to a third party, if any exists, I do not see how the Minister’s intervention could have the effect of breaking the causal link between the surveyor and the third party, as appellant suggested. Even though they must first go through the department, the plan and description of the subdivision prepared by the surveyor are manifestly intended for the registry office, “where alone reliable information is to be obtained”, as Marler writes in the passage cited above.
The Superior Court judge wrote:
[TRANSLATION] Once this purchase had been completed with Mr. Mathieu, plaintiffs who had paid $100,000.00 for land which they believed to be over 100,000 square feet, offered it for sale first to McDonald’s Restaurants of Canada Limited, and second, to Dr. G. LaSalle who was planning to build the Auberge des gouverneurs on the adjoining land;
Respondent Monty explained in his testimony that at his first meeting with Mr. Mathieu regarding the purchase of his land, the latter gave him a copy of the description of lot 111-11 prepared by appellant, indicating an area of 80,340 square feet. Adding the easily calculable area, of 150 feet by 150 feet, of the additional parcel taken from unsubdivided lots 111 and 113, respondents believed they were purchasing 102,840 square feet, and they agreed on a price of $100,000 based on $1 a square foot, the total price being reduced by $2,840 due to the fact that Mr. Mathieu intended to remove certain buildings from the premises.
Respondent Monty stated, again in his testimony, that he went further. He went to the registry office to compare the description given to him by Mr. Mathieu with the one on file. It was on the basis of this information that respondents believed they were buying the area in question. It was on the basis of this information also that they undertook to sell 40,000 square feet to McDonald’s and
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60,000 square feet to Dr. LaSalle with a statement of contents, and that they thus undertook to deliver these contents, otherwise they would incur the consequences resulting from application of the Civil Code, including in the case at bar the damages set at $11,844.83 in favour of Dr. LaSalle.
Causal Link
It remains to be seen whether, as between respondents and appellant, these damages are a direct consequence of the wrongful error of the latter, which he has always denied.
To decide this point, the situation must be seen with the error excluded, as if it had not occurred. Knowing that the area was 52,111 square feet, respondents could only have undertaken to sell that area to Dr. LaSalle. Would they in those circumstances have obtained a higher price per square foot from Dr. LaSalle than that which they finally obtained for the same area? If so, the difference in price would presumably represent direct damage caused by the error contained in the cadastre. However, there was certainly no evidence of this and the burden of presenting it lay with respondents, the plaintiffs. The only information in the record, on the contrary, is to the opposite effect, and the Court must conclude from the transaction entered into that the price set by it after the error was discovered was the price per square foot which Dr. LaSalle was prepared to pay for an area of 52,111 square feet. It follows that for Dr. LaSalle, 60,000 square feet were worth $1.3233 a square foot, but 52,111 square feet had a lower value, of $1.096. Respondents alleged in para. 15 of their statement of claim:
The “LaSalle interests” could not then accept such a great reduction because it altered their available space for construction and parking for the motel which they or their clients intended to build adjacent to the site they were buying …
It is true that respondents also alleged in para. 19:
With this large unexpected difference in footage (60,000 - 52,111: 7,889 square feet), and under the extreme pressure of time and of circumstances, since it
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was Spring and construction was urgent for the buyers, and, in order to mitigate damages, the Plaintiff had no alternative but to bow to the leverage position in which the “LaSalle interests” had found themselves towards Plaintiff, because of Defendant’s professional error, and Plaintiff had then to reduce the sale price by way of compromise, and sell to the “LaSalle interests” the remainder of the land for $1.096 per square foot, or for $57,000.00.
If this is the case, and Dr. LaSalle took advantage of the situation at the expense of respondents, which I do not have to decide and which I am not suggesting, the damage would be his doing and not a direct consequence of appellant’s error.
In order to succeed in their claim based on this reduction of the price per square foot, respondents would have had to establish that, but for appellant’s error, they would have obtained a higher price than the one they did obtain for the land owned by them and actually sold. No such evidence was presented.
It does not follow that a surveyor could not be liable to a third party as the result of an error of the type committed in the case at bar. There might be a case where respondents, for example, relying on the technical description, themselves had plans prepared for a building occupying the entire area. In view of the error, the fees spent would have been a total loss. That conceivably could be damage resulting directly from the error, though of course there is no need to decide the point.
However, the reduction in the price per square foot agreed on by the transaction, which the trial judge characterized as a loss of profits, profits which respondents might have expected to realize if they had owned the area which they never had, is not in my view damage resulting directly from appellant’s error. There is no causal link between the damage claimed and appellant’s error.
For these reasons, I would allow the appeal, reverse the judgment of the Court of Appeal, restore the judgment of the Superior Court and
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dismiss the action of respondents with costs in all courts.
Appeal allowed with costs.
Solicitors for the appellant: Boily, Fontaine & Associés, Sherbrooke.
Solicitors for the respondents: Monty, Coulombe, Pépin, Fecteau, Fournier, Gilbert, Landry & Associés, Sherbrooke.