Supreme Court of Canada
Desgagné v. Fabrique de la paroisse St-Philippe d’Arvida, 1984 CanLII 129 (SCC), [1984] 1 SCR 19
Lauréanne Harvey Desgagné, executrix of the estate of the late Léonce Desgagné Appellant;
and
La Fabrique de la paroisse de Saint-Philippe d’Arvida Respondent.
and
La Fabrique de la paroisse de Saint-Philippe d’Arvida Appellant;
and
Lauréanne Harvey Desgagné, executrix of the estate of the late Léonce Desgagné, Les Immeubles Murdock Limitée, Ernest Dauphinais and Guy Bélanger Respondents.
1982: March 17; 1984: February 2.
Present: Beetz, Estey, Mclntyre, Chouinard and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Prescription—Lease and hire of work—Liability of architect, engineers and contractor—Construction defect—Gradually revealed—Starting point of prescription—Civil Code, arts. 1688, 1689, 2259—Fabrique Act, 1965 (Qué.), c. 76 (now R.S.Q. 1977, c. F-1), ss. 18(b), 26(g)—Code of Civil Procedure, art. 56.
In September 1971, seven years after acceptance of the work by the architect, the Fabrique de la paroisse de Saint-Philippe d’Arvida brought an action for damages against the architect, the engineers and the general contractor responsible for building the parish church. The Fabrique held them responsible for the presence of construction defects which resulted in loss of the walls and dome of the building. The two losses were entirely separate and independent of each other. The manufacture and installation of the dome were the subject of a separate contract between the Fabrique and a second contractor (not concerned in the case at bar). The engineers and the general contractor did not participate in this part of the work, their functions being limited to building the base supporting the dome. At trial the Superior Court, having found that the partial loss of the building occurred in the fall of 1964, applied the first paragraph of art. 2259 C.C. and held that the action based on art. 1688 C.C. had been prescribed in respect of defendants. The Court of Appeal, though it agreed with the Superior Court as to prescription of the action based on art. 1688 C.C., cited the system of contractual liability for which the prescription period is thirty years, and by a majority reversed the judgment of the Superior Court, allowing the action of the Fabrique against the architect. The Court of Appeal found no fault in the acts of the engineers and the general contractor: hence the appeal by the Fabrique—to place the starting point for prescription at the expiry of the five years mentioned in art. 1688 C.C., when the total or partial loss of the building is discovered within five years following completion of the work, and that loss results from a defect which has appeared gradually—and the appeal of the architect to restore the Superior Court judgment.
Held: The appeal of the architect should be dismissed. The appeal of the Fabrique should be allowed.
The action of the Fabrique based on art. 1688 C.C. was not prescribed. In all cases where a construction defect is gradually revealed, it is the second paragraph of art. 2259 C.C. which should be applied. The five-year prescription mentioned in that article therefore only began to run from expiry of the five years mentioned in art. 1688 C.C. In the case at bar, as the architect did not accept the work until August 1964, some months after the work had terminated, the Fabrique had until 1974 to take action. Accordingly, as provided in art. 1688, the architect, the engineers and the contractor must be found jointly and severally liable to the Fabrique, without the latter having to prove fault by any of them. However, only the architect, who acted as architect for the dome as well as the rest of the building, should be held liable for loss of the dome. The liability of the engineers and the contractor should be limited to the work in which they took part.
Hôpital Laval Ltée v. Roberge, [1942] C.S. 166; Wardle v. Bethune (1872), 16 L.C.J. 85; McMeekin v. Daoust, [1947] C.S. 216; Chevalier v. Thompkins (1915), 48 C.S. 53; Gingras v. Cité de Québec, [1948] Que. K.B. 171; Gauthier v. Séguin, [1969] Que. Q.B. 913; Laverdiére v. Dorval, [1955] Que. Q.B. 367; Construction St-Hilaire Ltée v. Michaud, [1975] C.S. 651; Donolo Inc. v. St-Michel Realties Inc., [1971] C.A. 536; Hill-Clark-Francis Ltd. v. Northland Grocers (Quebec) Ltd. (1940), 69 Que. K.B. 281; Hill-Clarke-Francis, Ltd. v. Northland Groceries (Quebec) Ltd., 1941 CanLII 47 (SCC), [1941] S.C.R. 437; Archambault v. Curé et marguilliers de la Paroisse de St-Charles de Lachenaie (1902), 12 Que. K.B. 349; Canadian Electric Light Co. v. Pringle (1920), 29 Que. K.B. 26; Lemarier v. Corporation de Sainte-Angèle (1920), 26 R. de J. 317, referred to.
APPEALS from a judgment of the Quebec Court of Appeal, [1979] C.A. 198, which reversed in part a judgment of the Superior Court. Appeal of Lauréanne Harvey Desgagné, executrix of the estate of the late Léonce Desgagné, dismissed. Appeal of the Fabrique allowed.
Jean-Louis Baudoin, Q.C., Jean-Pierre Depelteau and Chantai Perreault, for the appellant‑respondent the Fabrique de la paroisse de Saint-Philippe d’Arvida.
J. Vincent O’Donnell, Q.C., and Daniel Alain Dagenais, for the appellant-respondent Lauréanne Harvey Desgagné, executrix of the estate of the late Léonce Desgagné.
Richard Dufour, for the respondent Les Immeubles Murdock Limitée.
Marc Lesage, for the respondents Ernest Dauphinais and Guy Bélanger.
English version of the judgment of the Court delivered by
I—The proceedings, judgment of the Superior Court and judgment of the Court of Appeal
After the construction of the Saint-Philippe d’Arvida church, the Fabrique de la paroisse de Saint-Philippe d’Arvida (“the Fabrique”) brought an action in damages for $530,000 against the architect Léonce Desgagné, now deceased, who is represented by his widow Lauréanne Harvey Desgagné (“the Architect”), the structural engineers Ernest Dauphinais and Guy Bélanger (“the Engineers”) and the general contractor Les Immeubles Murdock Limitée (“the Contractor”). The Fabrique attributed a number of specific faults to defendants, and held them responsible for the presence of construction defects which allegedly appeared gradually and resulted in the loss of the walls and dome of the church. The Fabrique asked that a condemnation be pronounced against defendants jointly and severally, as provided for in arts. 1688 and 1689 of the Civil Code:
If a building perish in whole or in part within five years, from a defect in construction, or even from the unfavorable nature of the ground, the architect superintending the work, and the builder are jointly and severally liable for the loss.
If, in the case stated in the last preceding article, the architect do not superintend the work, he is liable for the loss only which is occasioned by defect or error in the plan furnished by him.
In a very elaborate but unfortunately unreported judgment, Gabrielle Vallée J. of the Superior Court, as she then was, dismissed the action of the Fabrique on the ground that it is prescribed under art. 2259 of the Civil Code:
- The action for indemnity under article 1688 must be taken within five years from the date of the loss.
If, however, the defect is one which is only gradually revealed, prescription shall begin to run from the expiration of the five years mentioned in article 1688.
By a majority judgment published sub nom. Fabrique de la paroisse de St-Philippe d’Arvida v. Desgagné, [1979] C.A. 198, the Court of Appeal reversed in part the judgment of the Superior Court and allowed the action of the Fabrique against the Architect in an amount of $313,374.99; but it dismissed the action against the Engineers and the Contractor. Bélanger and Bernier JJ.A. agreed with the trial judge as to prescription of the action based on art. 1688, but they held that the system of liability created by that provision does not supersede that of contractual responsibility, the prescription for which is thirty years in this case. They upheld the finding of contractual fault against the Architect, which the trial judge did not discuss, but they found no fault in the acts of the Engineers and the Contractor. Monet J.A., dissenting, would have affirmed the trial judgment.
By her appeal, appellant Lauréanne Harvey Desgagné is asking this Court to restore the judgment of the Superior Court on the ground that the system of liability provided for by art. 1688 supersedes that of contractual responsibility, and that the action based on art. 1688 is prescribed, as was found by the trial judge and affirmed by the unanimous opinion of the Court of Appeal.
As to the Fabrique, it submits in its appeal that its action based on art. 1688 is not prescribed. Alternatively, it argues that there was contractual fault both by the Engineers and the Contractor and by the Architect, and that their liability, based on art. 1065 of the Civil Code, is also joint and several. It is accordingly asking that the appeal of Lauréanne Harvey Desgagné be dismissed and a joint and several condemnation pronounced against defendants.
II—The question
The trial judge identified the principal question for decision as follows:
[TRANSLATION] The question raised by the case at bar is what starting point the Court should take when the total or partial loss of the work is discovered within five (5) years following completion of the work, and that loss results from a defect which has appeared gradually: should the Court in such a case apply the first (1st) or the second (2nd) paragraph of art. 2259?
I accept this to be in fact the question before the Court.
In the opinion of the trial judge it should be answered by applying the first paragraph of art. 2259, and the starting point for prescription placed at the day of the loss and the time it became known to the Fabrique. As the trial judge found that the partial loss of the building occurred in the fall of 1964, and that this loss had become apparent to the Fabrique at that time, or at the latest in the spring of 1965, she held that the action brought on September 23, 1971 had been prescribed for nearly two years.
With respect for the opposite opinion, I consider rather that it is the second paragraph of art. 2259 which should be applied and that “prescription shall begin to run from the expiration of the five years mentioned in article 1688”, that is, from the expiry of five years following acceptance of the work, or perhaps—it is not necessary to decide the point—from the expiry of five years following completion of the work. The work was accepted on August 4, 1964 and had terminated some months earlier. Accordingly, the Fabrique had until 1974 to bring an action. I therefore conclude, unlike the trial judge and the Court of Appeal, that the action of the Fabrique, based on art. 1688 of the Civil Code, is not prescribed and that, as the article provides, defendants should be held jointly and severally liable to the Fabrique without the latter having to prove fault by any of them.
In view of this conclusion, it is not necessary for me to decide whether any of the defendants is at fault or to discuss the question of whether the system of liability created by art. 1688 supersedes that of contractual responsibility.
III—Facts
The trial judge gave a detailed description of the Saint-Philippe d’Arvida church and the circumstances giving rise to the case. I feel it is necessary to cite substantial extracts from this description: while I accept all the trial judge’s findings of fact without reservation, I cannot share her opinion as to the way in which some of these should be characterized with regard to the gradual emergence of the construction defects.
The trial judge observed:
[TRANSLATION] The building is of an original design consisting of three (3) walls each in the form of an arc: these walls are arranged in a triangular manner, the concave sides of the walls on the outside and the convex sides on the inside; the inner sheathing of the walls is eight inches (8″) and consists of two (2) thicknesses of juxtaposed bricks; the outer sheathing of the walls consists of a single four-inch (4″) brick layer; all these bricks are joined by mortar joints of the type commonly known as “weeping joints”; between the inner and outer sheathings of the walls there is insulating material two inches (2″) thick, and there is a one-inch (1″) wide space; the three (3) walls are one hundred and twenty feet (120′) long respectively and have no longitudinal reinforcing steel.
Seen from inside the church the three (3) walls, at their most convex point and in their upper section, slope to form an arch; the incline or effect of the arch diminishes and disappears the further one gets away from these three (3) points and the nearer one gets to the terminating angles.
At each of the points located in the most convex section of the sloping walls a column is concealed: where these three (3) columns are located, the inner sheathing of the wall has a thickness of only one brick; the three (3) columns are topped by a ring on which a geodesic dome rests; this dome covers the entire central portion of the triangle formed by the three (3) arcs and the three (3) angles of the triangle are closed by flat roofs.
The dome has a diameter of seventy-six (76′) feet and a height of thirty (30′) feet, and it consists of a structure of aluminum, or aluminum components, to which thin panels of plastic are attached at the corners by means of small rivets. The sheets of polyester plastic are joined by honeycombs made of treated paper.
It may be noted here that the structure consisting of the columns and ring of metal and the dome structure are not two (2) linked structures but are in fact two (2) independent things (cf. testimony, Jules Houde, engineer, proof pp. 795 et seq.).
The plans and specifications of this church were assigned to the architects Desgagné & Côté, and the latter supervised the construction.
The structural engineers were Dauphinais and Bélanger, and the general contractor was Les Immeubles Murdock Limitée.
A separate contract was concluded between the owner and Long-Sault Woodcraft Inc., for the manufacture and installation of the geodesic dome.
It may be noted at once that the plans and specifications for this dome were not designed by the architects Desgagné and Côté.
(However, it is important to add to this last paragraph what Bélanger J.A. said on the matter in the Court of Appeal, speaking for himself and for Bernier J.A. While it is true that the plans and specifications of the dome were not designed by the Architect, [TRANSLATION] “the decision… to award the final contract to Long-Sault Woodcraft Ltd. was only taken by [appellant (the Fabrique)] on a written acceptance by the architect of the material to be included in his building as ‘in accordance with our requirements and the conditions of the project, in quality and appearance’ ”. From this it follows that the Architect acted as architect for both the dome and the rest of the building. It was also apparently he who conceived the idea of a church with a translucent geodesic dome.)
The trial judge went on:
[TRANSLATION] Construction of the project began in summer 1963.
On September 10, 1963 the owner appointed Mr. Roland Tremblay its project supervisor.
Possession was taken of the church some months before the architect accepted the work.
The architects accepted the work on August 4, 1964.
Defects appeared in the walls of the building before and after the work was accepted, and other defects appeared in the dome during the first few months following the acceptance, perhaps even some days before it.
The public was forbidden to use the building at the end of November 1971.
Proceedings were begun on September 23, 1971 and plaintiff sought complete reconstruction of the building, which was on the point of collapse.
Let us now consider how the defects appeared and when the total or partial loss of the building occurred.
To do this, it is first necessary to distinguish defects and losses, for in the case under consideration two (2) entirely different defects existed, which both caused a partial loss of the building: first, loss of the walls; second, loss of the dome.
THE WALLS:
The expert testimony heard for both plaintiff and defendant was unanimous on two (2) points, at least:
(a) the defect vitiating the walls of the church was one of design: the lack of expansion joints;
(b) the phenomenon of shrinkage in the masonry occurred in the first year following the end of the work.
I hold the lack of expansion joints in unreinforced masonry as the sole design defect capable of causing total or partial loss of the walls of the building at issue.
On Good Friday, in late March or early April 1964, that is nearly four (4) months before the work was accepted by the architect, the break in the wall occurred on the side facing St-Denis Street. It was an opening which some people referred to as “cracks”, others as “large fissures”. This opening, which caused one parishioner to remark that “the veil of the temple was ripped”, is vertical, from top to bottom, stretches right across the inner sheathing of eight inches (8″), appeared suddenly and divides the wall into two (2) sections ⅛ to ½ inch apart.
Finally, it should be noted that this break is not in step form, that is, it did not take the easy route of the mortar joining the bricks, but broke the latter from top to bottom (cf. Fr. Gravel, proof, April 24, 1974; Roland Tremblay, examination on discovery, March 30, 1972; photos filed jointly as Nos. S-1 to S-4 and P-60 to P-62).
On that day, the parish priest Fr. Gravel noticed what had happened and contacted the churchwardens and architects.
The break in the second (2nd) wall occurred in late summer or early fall 1964, according to Fr. Gravel, and in the third (3rd) wall in early spring 1965.
According to the testimony of Mr. Roland Tremblay (examination on discovery, March 30, 1972), these two (2) breaks appeared earlier, and all occurred during 1964. Each of these “cracks” or openings is the same size and all three (3) are symmetrically located (cf. examination on discovery, March 30, 1972; Fr. Gravel, proof, April 24, 1974).
In the spring of 1965, the exterior sheathing of the walls broke exactly where the “inner cracks” were located. During all this time and subsequently, as months and years passed, smaller fissures appeared in the divided walls.
THE DOME:
There is no doubt, and this was amply demonstrated by the evidence, that the defect which caused its loss was one of the choice of material. The chemical expert, George‑Charles Hawley, both in his expert report, in the form of a letter to the architects Desgagné and Côté dated September 8, 1969, and in his testimony at the hearing, was categorical on this point, and there was no cross-examination by the co-defendants. The materials used in making the plastic panels of the dome do not withstand the force of the sun and other atmospheric conditions, they break up, they disintegrate and the damage is permanent.
The first signs of this defect appeared in June, July or more probably August 1964 (cf. examination on discovery, Fr. Gravel, March 30, 1972). This is when the first drops began falling almost directly above the altar. Before these drops appeared, Fr. Gravel had already noticed spots on the dome which he attributed to condensation. In fall 1964 he was obliged to mop the floor of the church, and subsequently to mop various other parts of the building (cf. examination on discovery, March 30, 1972, and proof, April 24, 1974).
When the first shadows or spots appeared on the dome, Fr. Gravel informed the churchwardens and architects, who from then on were aware that the dome was defective (cf. proof, April 24, 1974).
In the case at bar, there is no question that the defect appeared gradually—shadows, spots, drops and so on—as all these developments were interdependent, interrelated, followed one from the other.
IV—Gradual appearance of construction defects
For the second paragraph of art. 2259 of the Civil Code to apply, the essential conditions which it prescribes must occur, namely that the defect is one “which is only gradually revealed”.
That the defect which led to the loss of the dome appeared gradually there is no doubt, as the trial judge found, and this point was not disputed by anyone, at least not in this Court.
It is otherwise with regard to the appearance of the defect which resulted in the loss of the walls. In the opinion of the trial judge, in this case the defect appeared suddenly rather than gradually. The following are some extracts from her reasons in this regard:
[TRANSLATION] Can it be said that because there are three (3) breaks, each in a different wall, the defect appeared gradually? The Court does not think so. This would appear to have been a repetitive, not gradual, process. For the defect to appear gradually, surely its early signs should be interrelated, interdependent or developed one from another. Here, in the case at bar, the second (2nd) break was not dependent on the first (1st), and the third (3rd) on the first two (2).
These three (3) “cracks”, according to the eyewitness Roland Tremblay, who was project supervisor for the owner, did not develop, did not worsen (cf. examination on discovery, March 30, 1972).
Further, this observation can be verified from the many photos entered in the record, taken at different times during 1966 (P-60 and P-62, S-1 to S-4).
Can it be argued that the other fissures, which appeared after these breaks, had the effect of making appearance of the defect gradual? Here again, the Court does not think so. They did not result from the design defect, they resulted from tensions due to breaking the arch, which changed the lines of force. This is how the Court understands the testimony of the expert witness Paul Roberge (proof, June 11 and 12, 1974) and Jules Houde (proof, May 26, 1975). These fissures appear to indicate the progress of the collapse, not an evolution of the manifestation of the defect.
It may be argued that when the legislator used the phrase “the defect is one which is only gradually revealed”, he had in mind only gradual progress in time, not in becoming apparent. The Court is prepared to accept this interpretation, which does not assist plaintiff in the case at bar.
Like the trial judge, I would agree that the secondary cracks which appeared after the first three cracks can be regarded as the “progress of the collapse, not an evolution of the manifestation of the defect”.
However, with respect, I cannot agree that the first three cracks which appeared at different times do not constitute a gradual emergence of the construction defect, for each of these three cracks revealed one after the other exactly the same defect which caused them and which resulted in the loss of the walls, just as the various stages in the deterioration of the dome gradually revealed the defect which led to loss of the dome. A crack does not necessarily indicate a defect likely to lead to the loss of a wall. It was only gradually, by the appearance of other cracks, similar and located symmetrically in separate walls, that the nature and extent of the defect was revealed, finally reaching a point where it became apparent to the owner that such a serious defect might result in loss of the walls. Until that moment, the owner might fear such a loss without being certain of it, and all the more, as in the case at bar the architect may continue to assert that they are minor defects which can easily be corrected, and did not hesitate to accept the work despite the appearance of the first crack.
Using the apt language of Bissonnette J.A. in Gingras v. Cité de Québec, [1948] Que. K.B. 171, at pp. 181-82, the coincidence of these three successive cracks resulted not in [TRANSLATION] “periodic or recurring damage, or damage repeated as a result of the same cause, a constant or persisting cause”, but rather [TRANSLATION] “progressive damage, that is, damage which starts, becomes noticeable and develops in a sort of progression deriving all its destructiveness from the same cause, and all the deleterious effects of which are not yet apparent…”.
However, even if I had any doubt in this regard, it would be removed by the fact that each of the three principal cracks took some time to completely break each wall, to the point where finally daylight could be seen through each one. The trial judge relied on the testimony of an expert witness:
[TRANSLATION] As mentioned above, the defect in the masonry could be seen in the first year after work ended, and the expert witness Jules Houde stated that when this phenomenon occurred, it did so quickly and suddenly (cf. proof, May 26, 1975, p. 812).
In fact, this expert witness stated that unreinforced masonry breaks suddenly, without warning, because of the phenomenon of shrinkage, and transforms a wall into wall panels, but he pointed out that there have to be fissures which completely break through the wall.
I agree in this respect with the observations of Pratte J. in Gauthier v. Séguin, [1969] Que. Q.B. 913, at p. 919:
[TRANSLATION] When a foundation wall is split in two from top to bottom, right to its base, it is divided into sections: you then no longer have a single wall, but sections of walls. In such a case, the owner is not required to wait for the worst to happen before making use of article 1688 C.C.
To the layman, at least, the appearance of this kind of defect is gradual when the crack takes some time to break right through the wall.
Indeed, the trial judge appeared uncertain in this regard when she wrote:
[TRANSLATION] Even if the Court, seeking to give the owner the best possible interpretation, considered that the defect had appeared gradually and gave the owner the benefit of the doubt of loss of the walls, this benefit of the doubt would not go beyond the time when the outer sheathing of the walls had opened and daylight could be seen through the opening. This takes us to spring 1965, at which time if the owner had previously had only doubts he now had to confront an obvious fact.
Counsel for the respondents and appellant Lauréanne Harvey Desgagné argued that the gradual appearance of the construction defects is a question of fact which is within the exclusive province of the trial judge. That is not my view. Rather, I think it is a question of characterization and so considerably more than a simple question of fact. It is necessary to apply to the facts the legal concept of gradual emergence under art. 2259, just as, for example, in a civil liability case the Court has to decide whether a person’s act or omission should be characterized as fault within the meaning of art. 1053. This requires making an essentially normative judgment. It therefore does not entail substituting my own view of the evidence for that of the trial judge, but drawing conclusions in law based on the facts which she herself considered to have been established. When an appellate court accepts all the conclusions of fact as such made by the trial judge, as I do, it is in as good a position as he is to characterize those facts.
I conclude that the construction defect which resulted in loss of the walls was one which was gradually revealed, as was the one which resulted in loss of the dome.
V—Starting point of prescription
I quoted above the way in which the trial judge identified and formulated the principal question for decision. The following is the interpretation of art. 2259 of the Civil Code which the trial judge used in answering this question:
[TRANSLATION] We believe that this question should be asked as follows: does the “gradual appearance of the defect” rule take priority over the “loss” rule when the loss appears within the five (5) years mentioned in article 1688, and is the consequence of a defect which appeared gradually?
In order to answer this question, it is, we feel, necessary to look at the intent of the legislator. It appears that the legislator, in enacting article 2259, wished to protect the untrained owner from construction specialists. An owner does not have the knowledge necessary to recognize the existence of a construction defect which threatens the whole or a part of the building. Each time the defect does not result in loss, that is, whenever the loss is not revealed by visible deterioration, the starting point for calculating time is the expiry of five (5) years from completion of the work.
In our view, the legislator did not wish to relieve professionals of their liability for the loss of a building, whether whole or partial, which becomes apparent within ten (10) years of the construction as the result of a defect which began appearing within five (5) years, during which time those professionals were guarantors of their work, as such developments could not have suggested the possibility of loss to the untrained eye.
We feel that this was the legislator’s intent, and it is the reason why he appears to have altered the starting point for calculating the time in which an action can be brought.
What did the legislator actually do in the second (2nd) paragraph of article 2259? Did he fix some other starting point for calculation than the one fixed in the preceding sentence of that article?
The Court does not think so. It would appear rather that in the second (2nd) paragraph of that article, the legislator arbitrarily fixed the “supposed” day, the “presumed” day when the loss became apparent in cases where the defect was gradually revealed, and the loss was not yet recognizable by a layman.
This in our opinion is how article 2259 should be interpreted, for in our view it is the only meaning which complies with the twofold five-year rule: first, regarding the liability of architects and contractors, and second, regarding the time in which an action must be brought; and it is an interpretation which both protects the lay owner and does not harm the interests of construction professionals.
If the legislator had not enacted the second (2nd) paragraph of article 2259, a lay owner who discovers the loss, whole or partial, of his building after five (5) years, during which time professional experts are still responsible for it, whereas the first warning signs of the defect appeared within these five (5) years, could have brought an action for indemnity and been met by a plea of the professional experts based on the fact that the loss was known or became apparent when they were no longer responsible for their work.
This in our view is the reason why the legislator in this case, and only in this case, assumes that the loss became apparent to the layman on the fifth (5th) anniversary of completion of the work, and the starting point for calculating the time necessary for prescription is “the expiration of the five (5) years mentioned in article 1688”.
In our opinion, the last sentence of article 2259 applies only in cases where the loss becomes apparent to the layman after five (5) years have expired from completion of the work, and the first indications of the defect have developed within these five (5) years.
Assuming that a bridge collapses in the second (2nd) year after completion of the work, and there was no prior indication of such a catastrophe, the owner in such a case would have five (5) years from the date of the collapse to bring an action for indemnity against the persons responsible for construction, whereas in the case given if we modify the way in which the defect appeared (gradually), the owner would have eight (8) years from the date of the collapse.
The Court feels that the legislator did not intend such a situation, for which in our view there is no logical or legal basis.
What, in the latter case, would be the interest of the owner in waiting to file his claim? Would construction professionals be liable for damage occasioned by the collapse in addition to that resulting from the loss? How could the Court distinguish the one from the other?
The law requires that a right of action arise out of the loss however the latter occurred. In our opinion, all that is necessary for the owner is knowledge of that loss, and once such knowledge is acquired, he must act quickly and promptly, must bring an action within five (5) years from the date of the loss.
Furthermore, this interpretation satisfies two (2) other rules applied by the legislator, namely that when a right of action arises, litigants must act promptly and the case must be submitted to the courts within a reasonable time, where no deadline has been set by law. Knowledge is the starting point for calculating the prescription period for Paulian actions, defamatory libel, redhibitory actions, and so on.
With all due respect for the opposite view, the Court cannot subscribe to the interpretation that every time a defect appears gradually, even if loss of the building has become apparent, the starting point of the time is the day after the fifth (5th) anniversary of completion of the work. In our opinion, the legislator did not, in protecting the owner, extend the deadline for expiry of the right, nor did he delay exercise of the right, which originates on the day the loss becomes known.
The proponents of this view, faced with the difficulty of determining when the loss was apparent or became apparent, the day on which the defect became apparent to the eyes of a lay owner (prescription is reckoned by days—article 2240 C.C.) considered that, in the second (2nd) paragraph of art. 2259, the legislator moved the starting point for the time limit on an action for indemnity.
The Court is instead of the view that the legislator left on the judges the heavy burden of weighing the evidence of knowledge and determining the time when the loss was apparent. This is also what the Court does whenever it has to decide a Paulian or redhibitory action, a defamatory libel, and so on.
Counsel for the Fabrique argued that this is a new interpretation, suggesting that it is contrary to precedent and academic opinion. This interpretation is indeed new, for to the best of my knowledge it is the first time it has been expressly formulated and discussed with supporting reasons, by any judge or writer, and adopted by two courts of law. It cannot therefore be said to be contrary to earlier precedent and academic opinion, which in general does not appear to have clearly considered either the possibility of a conflict between the first and second paragraphs of art. 2259 of the Civil Code, or a specific solution to this conflict as suggested by Vallée J., a solution which would be discussed and then adopted or rejected.
Counsel for the Fabrique referred this Court to decisions and judgments such as Laverdière v. Dorval, [1955] Que. Q.B. 367, and Construction St-Hilaire Ltée v. Michaud, [1975] C.S. 651.
However, Laverdière v. Dorval and Construction St-Hilaire Ltée v. Michaud are cases in which the construction defect appeared gradually before expiry of the five years mentioned in art. 1688 of the Civil Code and led to a loss occurring after those five years, such that the application of the second paragraph of art. 2259 did not give rise to the same difficulties as the case at bar.
Counsel for the Fabrique also referred the Court to a passage from the opinion of Brossard J.A. in Donolo Inc. v. St-Michel Realties Inc., [1971] C.A. 536, where after citing the second paragraph of art. 2259 of the Civil Code Brossard J.A., writing the unanimous judgment of the Court of Appeal, wrote at p. 543:
[TRANSLATION] In my opinion, these provisions mean that the right of action for which this article provides a prescription period commences to exist, within the five-year period following completion of the work, from the date on which a defect capable of leading to the complete or partial loss of the building begins to be apparent, and is only prescribed five years after the five-year period following completion of the work.
However, Donolo Inc. v. St-Michel Realties Inc. did not turn on prescription and, although this passage from the reasons of Brossard J.A. can perhaps be read as incompatible with the interpretation given to art. 2259 by the trial judge in the case at bar, it is clearly an obiter dictum.
Hill-Clark-Francis Ltd. v. Northland Grocers (Quebec) Ltd. (1940), 69 Que. K.B. 281, merits closer examination. The trial judge cited a passage from it which all parties relied on as supporting their case. The action concerned a warehouse completed in 1928 and subject to a soil defect which appeared gradually between 1929 and 1933, when access to the building was prohibited. In a unanimous judgment, the Court of Appeal held that the action begun in 1936 was not prescribed. Bond J.A., writing the reasons of the Court, said at pp. 294-95:
As to the plea of prescription. It is true that art. 2259 C.C. fixes a prescriptive period of five years, but the starting point does not appear to be the completion of the building, but the date when the loss occurs. This article provides, that if the defect is one which is only gradually revealed, prescription shall begin to run from the expiration of the five years mentioned in art. 1688; and this latter article refers to a building perishing in whole or in part within five years.
It was only in 1933 that the building was condemned by the Town Engineer, though the defect leading up to this result had been gradually manifesting itself. I do not consider, therefore, that the starting point for the prescriptive period can be carried back farther than that year (1933), when the serious nature of the subsidence was first definitely established, and the action was instituted in 1936. The loss of the building consequently occurred within five years of its construction, and the action was instituted in 1936, that is to say, within five years from the happening of the loss.
As a result, the plea of prescription cannot avail.
Vallée J. observed that Bond J.A. [TRANSLATION] “seems” to have taken the loss as the starting point of prescription, although the defects appeared gradually. This is possible, but the point is not clear. In any event, in that case the year 1933 was both the time when the loss became apparent and when the deadline mentioned in art. 1688 expired. It therefore did not matter whether the first or the second paragraph of art. 2259 was applied: in either case, the plea of prescription would fail.
Indeed, this plea was withdrawn when the case was brought to this Court: Hill-Clarke-Francis, Ltd. v. Northland Groceries (Quebec) Ltd., 1941 CanLII 47 (SCC), [1941] S.C.R. 437. Taschereau J., as he then was, wrote the unanimous reasons of the Court. He limited himself to observing, at pp. 443 and 446:
[TRANSLATION] There is no doubt that the building perished in part within five years from completion of the work. The latter was completed towards the end of 1928. The damage appeared in 1929, 1930, 1931, 1932, 1933 and soon.
A word on the question of prescription mentioned in the pleadings as the last line of defence. Counsel for the appellant properly withdrew this argument at the hearing, for it seems clear that at the time the action was brought, article 2259 C.C. could not be applied.
In my view this decision is not determinative, both because of the ambiguity of the reasons and the particular nature of the circumstances giving rise to the case.
Of all the writers who have commented on art. 2259 of the Civil Code, only one to my knowledge has expressly dealt with the specific question before this Court. This is Thérèse Rousseau-Houle, who examined the matter in detail in Les contrats de construction en droit public et privé, a text published in 1982 after the judgment of the Court of Appeal in the case at bar. At pages 394 to 397, in particular, she comments on the judgments of the Superior Court and of the Court of Appeal and adopts the interpretation given by Vallée J. to art. 2259 of the Civil Code. In her opinion, this interpretation is in accordance with academic opinion in Quebec in general and with precedent.
I have already indicated that earlier judicial authority does not seem to me to be conclusive on the point. I think that this is generally also true for academic opinion.
In his Droit civil canadien, v. 9, 1916, at p. 516, Mignault aptly observes with regard to the second paragraph of art. 2259:
[TRANSLATION] If, however, this defect is such that it is gradually revealed, so that it would be difficult to determine just when it first could have been noticed, the starting point for prescription is the expiry of ten years [reduced to five in 1927] after completion of the work.
In the Traité de Droit civil du Québec, v. 15, 1958, at p. 336, W. Rodys observes, like Mignault:
[TRANSLATION] The starting points for prescription are the time of the loss or the expiry of five years from completion of the work, depending on whether the loss could have been noticed at once, or whether the defects in construction or in the ground were only gradually revealed, so that it would be difficult to determine the time exactly.
I consider that these two writers do not purport to state the rule, but the reason which underlies it in most cases, although the rule applies in all cases covered by it.
In The Joint and Several Responsibility of Architects, Engineers, and Builders, 1955, W.S. Johnson commented on art. 2259 of the Civil Code, at pp. 190-91:
There are two possibilities:
The actual loss occurs within five years—from completion of the work, marked by delivery and acceptance. If so, the action must be brought within five years from the date of the loss. Assuming a loss at the end of the fourth year, for example, the action must be brought within five years of the loss.
Within the five years an actual loss may not occur, but there are indications of a possible defect that can end in an actual loss; the indications must be watched, the defect, if there be one, being only gradually revealed. Thus cracks may appear in a stone pier, and may be due to a more or less serious subsidence beginning.
In that case, the prescription of the possible action begins to run from the end of the first five-year period fixed by article 1688—the limit of the warranty. So that if a defect can be proved to have begun to reveal itself within five years from completion, it must have finally revealed itself as causing an actual loss, within the five years counting from the end of the five-year warranty of article 1688: and the action must be brought within the same five years. So that, again, there is a total prescriptive period of ten years from completion.
(My underlining.)
The interpretation suggested by this writer is, as formulated, in keeping with that adopted by Vallée J., although the writer does not provide further explanation.
On the other hand, in “The Responsibility of the Architect, Engineer and Builder”, (1963) 5 C. de D. 12, G. Challies, who was Associate Chief Justice of the Superior Court, said the following at p. 14:
If perishing begins within five years (and this does not mean total loss must occur within that time) the action must be instituted within a varying time limit. If damage occurs all at once within five years the action must be taken within five years of loss. However, if loss only reveals itself gradually the action may be taken at any time within ten years of delivery.
Professor John W. Durnford, in an article titled “The liability of the builder, architect and engineer for perishing and other defects in construction”, (1967) 2 R.J.T. 161, wrote at p. 175:
While the perishing must occur within five years of the delivery of the building (article 1688) for the architect and the builder to be liable, the action is not required to be taken within that same period. Article 2259 provides for a separate and distinct prescriptive period under which the action must be taken within five years from the date of the loss. The article continues by providing that should the defect be one which only gradually reveals itself, prescription begins to run from the expiration of the five year delay of article 1688, so that under such circumstances there is a total delay of ten years. It is to be noted that so long as the defect has manifested itself within the five year period of article 1688, it is not necessary that the actual perishing have occurred within that same period.
Professor Durnford added, however, at p. 176:
While the builder and architect will be liable for a perishing that occurs within five years, this does not mean that where a defect clearly reveals itself as one likely to lead to a perishing if left unmended that owner may simply watch it grow and do nothing about it until the point is reached where the building does collapse. He may find himself faced with a successful plea that the perishing was caused by his fault.
(It is important to note that, in the latter case, dismissal of the action would result not from prescription but from the absence of any causal link. The failure of the owner to mitigate his damage can also lead to reduction of the latter. This is what should happen in the case at bar, as we will see below.)
Finally, Professor Pierre Martineau states in his text La prescription, 1977, at pp. 278-79:
[TRANSLATION] Under article 2259 C.C., an action against the architect and contractor is prescribed after five years from loss of the building, which must itself occur within five years from completion of the work.
If the destruction occurs gradually and began within five years from completion of the work, but has not ended at the end of that period, the starting point of prescription is the expiry of this five-year period following completion of the work. The architect and contractor may accordingly be held liable for a maximum period of ten years after completion of the work.
(My underlining.)
This interpretation, like that of W.S. Johnson, in its conciseness seems to correspond with that of Vallée J., although the writer gives no further explanation than does W.S. Johnson.
The opinion of these writers is of considerable weight but as, on the question before the Court, it is ambiguous or unsupported by reasons, I think that, with respect, it is no more conclusive than the precedents.
Articles 1688 and 2259 of the Civil Code have been amended several times since 1866.
In 1866 they read as follows:
If a building perish in whole or in part within ten years, from a defect in construction, or even from the unfavorable nature of the ground, the architect superintending the work, and the builder are jointly and severally liable for the loss.
After ten years, architects and contractors are discharged from the warranty of the work they have done or directed.
In Archambault v. Curé et marguilliers de la Paroisse de St-Charles de Lachenaie (1902), 12 Que. K.B. 349, the Court of Appeal held—I quote the headnote:
[TRANSLATION] Prescription of the action against the contractor or architect, as a result of the total or partial loss of a building built by them within ten years, begins to run from the time the defect in construction or in the ground becomes apparent within the ten years, and this action continues to be available for thirty years from the time such defect became apparent.
In 1907, article 2259 was replaced by the following:
- The action for indemnity under article 1688 must be taken within ten years from the date of the loss.
If, however, the defect is one which is only gradually revealed, prescription shall begin to run from the expiration of the ten years mentioned in article 1688.
S.Q. 1907, c. 55, s. 1.
Finally, in 1927 the ten-year periods of arts. 1688 and 2259 were shortened to five years, and these two articles then assumed their present form: 1927 (Que.), c. 68, ss. 1 and 2.
I do not consider that this legislative history throws any light on the matter, which this Court must decide without its aid, as without the aid of precedent and academic opinion.
The interpretation which Vallée J. gives to art. 2259 of the Civil Code is at first sight an attractive one: it is based, first, on the general principles of prescription according to which the starting point of prescription is the time a loss occurs or the time the victim becomes aware of it; second, it makes it possible to avoid the anomalies which a contrary opinion might produce in particular cases, as in the example given by the trial judge, of a bridge collapsing two years after its construction but after the construction defect leading to such loss had been gradually revealed.
Nonetheless, this interpretation is subject to insurmountable obstacles.
The first of these is the actual wording of art. 2259 of the Civil Code, the language of which is clear and contains no ambiguity. It is a mistake to resort to interpretation at the expense of the actual wording:
[TRANSLATION]… when a statute is clear, when a text is precise, when a contract (a judicial contract in this case) is not open to any uncertainty, the Court should not disregard the letter of it on the pretext of understanding the spirit.
(Sir François Lemieux C.J., in Lemarier v. Corporation de Sainte-Angèle (1920), 26 R. de J. 317, at p. 328.)
The trial judge distinguishes the case in which a defect, which appears gradually, leads to a loss which occurs within five years of receipt or completion of the work from that in which the defect leads to a loss which occurs after the expiry of five years from receipt or completion of the work. This is a distinction which art. 2259 does not make, and it is not the function of the courts to make a distinction where the law makes none.
Additionally, [TRANSLATION] “a court may not in performing its task of interpretation add to the statute terms not implicit therein”: Professor Pierre-André Côté, Interprétation des lois, 1982, at p. 247. By her distinction and interpretation the trial judge is adding, after the word “gradually” in the second paragraph of art. 2259, some terms such as “but without the loss becoming manifest before the expiry of the five years mentioned in article 1688”. In my view, these terms are not implicit in the text.
The trial judge thus makes the application of the second paragraph of art. 2259 depend on two conditions, first the gradual appearance of the defect, and second, a loss occurring after the expiry of five years from receipt or completion of the work. The second paragraph of that article prescribes only one condition for its application: the defect must be one which is gradually revealed.
In adopting article 2259 in its present form, the legislator expressly and clearly indicated his intention in respect of all defects which are gradually revealed, regardless of the day when the loss becomes certain: in all such cases, prescription begins to run at the expiry of the five years mentioned in art. 1688.
The trial judge resorted to interpretation to get around the letter of the provision in order to avoid an anomaly that can in fact occur in particular cases. However, it should be remembered that the provision applies to the majority of cases. The interpretation adopted by the trial judge runs the risk of producing other serious difficulties which the legislator specifically wished to avoid, and it is in conflict with the purposes he was trying to achieve. This is another major obstacle to the interpretation suggested by the trial judge.
As the trial judge acknowledged, the interpretation she adopted would place on the courts [TRANSLATION] “the heavy burden” of determining exactly—and in some cases almost to the day, since prescription is counted in days—the time when a defect which began appearing gradually resulted in a loss that had become obvious, or should have been obvious, to the owner.
If such a burden is a heavy one for the court, which usually is assisted by expert witnesses called by all the parties or appointed ex officio, and which has the unique advantage of knowing, months and even years after they occurred, the circumstances giving rise to the case and their evolution, this burden is in most cases unbearable for an owner who does not yet know how events are developing or how they will conclude. The owner is a layman. He has hired construction experts or professionals in whom he places his confidence. Noticing construction defects which get progressively worse, he is often unaware for some lengthy time whether these simply represent bad workmanship of a minor nature or are defects which can lead to a partial or complete loss. If he is cautious, and if the trial judge were correct, he should withdraw his confidence from his construction experts or professionals and sue them before he otherwise might, for fear that a court would find a posteriori that even a partial loss should have been evident to him at an earlier date and that the prescription period has now elapsed.
In other words, the interpretation adopted by the trial judge allows a court which later hears the case to draw conclusions the practical effect of which, considered subjectively from the standpoint of an owner who does not know the future, risks retroactively reducing the prescription period which he is given by law. This risk will encourage an owner to bring proceedings well before expiry of the time to which he is entitled and which will perhaps be premature. This interpretation also establishes a rule which is uncertain in its application, likely to encourage litigation and to make the resolution of cases difficult.
It seems to me that these are consequences which the legislator specifically sought to avoid by setting the starting point of prescription as exactly as possible in all cases where the construction defect is one which is gradually revealed.
Further, and most importantly, the interpretation adopted by the trial judge should in my opinion be rejected in favour of the literal meaning, for in most cases it will place at a disadvantage a lay owner whom, because of his lack of expertise, the second paragraph of art. 2259 is precisely designed to protect.
If the owner delays in taking action but still does so within the prescription deadlines prescribed by law, his negligence clearly cannot have the effect of imposing on the architect, the engineer and the contractor liability for a total ruin or loss rather than a partial loss: his negligence will be penalized by a reduction of the quantum of the damages, or even, in some cases, as Professor Durnford notes, by the dismissal of his action for the lack of any causal link between the loss and the acts of the architect, engineer and contractor. Measurement of the damages which the owner thus neglected to mitigate may sometimes be difficult to establish, but the task is not impossible. As we shall see below, the Court of Appeal in fact reduced the damages sustained by the Fabrique on this ground.
I think it is advisable before concluding this subject to refer to Hôpital Laval Ltée v. Roberge, [1942] C.S. 166. In that case, according to the allegations of the statement of claim—which must be taken as proven for it was an inscription in law—the building in question had been received by the owner on November 10, 1931. Construction defects began gradually appearing during 1933. The contractor then made certain repairs, but these proved to be insufficient. The building continued deteriorating between 1936 and 1939, requiring the owner to undertake repair work in 1936, 1937, 1938 and 1939. The owner sued the contractor’s surety to claim the cost of this work. Its action was served on February 17, 1941. Defendant pleaded prescription, and in particular prescription of a part of the action claiming the reimbursement of expenditures made by the owner in 1933. This plea was dismissed by Prévost J., who after citing art. 2259 and referring to art. 1688, wrote (at p. 176):
[TRANSLATION] It is admitted that in the case at bar the work was received on November 10, 1931.
If, as plaintiff alleged in its action, there was a partial loss of the work due to construction defects that were gradually revealed, the combined effect of articles 1688 and 2259 is that its action for indemnity could validly be brought within ten years from delivery of the building (Mignault, Droit civil (1916) v. 9, p. 516).
The action was served on defendant on January 17, 1941, and the prescription period did not expire until November 10, 1941. It is therefore not prescribed.
Defendant asked that the Court strike from the action the first item of $1,520.45, the cost of repairs carried out in 1933, when the construction defects appeared for the first time. He argued that this item of the claim was prescribed after five years, namely in 1938.
If the loss had stopped there, he would be correct; but in May 1936 (and so within the art. 1688 deadline), the same construction defects led to new losses, which necessitated further repairs in 1936 and 1937, thus increasing the damage to plaintiff. The latter could not bring several actions for indemnity. The law gives it only one, but it provides that if the construction defects are gradually revealed, the prescription period shall not be computed from the time of the loss, but from expiry of the time stated in art. 1688.
This first item therefore is not prescribed.
It can be seen that, unlike Vallée J. in the case at bar, Prévost J. gives priority to the “gradual appearance” rule, and applies the second paragraph of art. 2259, which allows plaintiff to sue within ten years for all the damage sustained as a result of construction defects.
It can be assumed that the loss sustained in 1933, though still partial, had become apparent: Prévost J. characterizes it as a loss and the contractor had complied with a notice to repair it.
According to the interpretation of the trial judge in the case at bar, the claim for damages suffered in 1933 in Hôpital Laval Ltée v. Roberge would appear to have been prescribed, as the defendant argued. I consider that Prévost J. correctly rejected this argument, whether or not plaintiff could have brought several actions for indemnity.
The circumstances of Hôpital Laval Ltée v. Roberge are far from unusual. It is very difficult to apply art. 2259 to them if it means what the trial judge said it means in the case at bar, and they illustrate the complications and uncertainty which her interpretation may produce.
VI—Liability of Engineers
The Engineers made two arguments which are peculiar to them.
First, no contract existed between the Fabrique and themselves: they argued that they simply received instructions from the Architect to prepare structural plans, which according to the majority decision of the Court of Appeal were in no way at fault.
Second, they argued that the evidence did not show that the Engineers were responsible for supervising the work. This was the responsibility of the Architect. Accordingly, it is art. 1689 of the Civil Code, not art. 1688, which applies to the Engineers in such a case, and they are only responsible for defects or errors in the plan which they provided. (The professions of architect and engineer were formerly the same, and although engineers are not mentioned in arts. 1688 and 1689, the two professions are now treated together for the purposes of these provisions: W.S. Johnson, supra, pp. 11 to 28; G. Challies, supra, p. 13; Durnford, supra, p. 170; Canadian Electric Light Co. v. Pringle (1920), 29 Que. K.B. 26.)
A majority of the Court of Appeal held that there was a direct contract between the Engineers and the Fabrique. In the opinion of Monet J.A., no such contract existed. I do not have to decide the point: the liability imposed on the architect and the engineer by arts. 1688 and 1689 is a liability established by law, which does not in any way depend on a contract. For an engineer to be held liable, it is sufficient that he should have in fact acted as engineer, regardless of any contract, and he cannot avoid liability to the owner by establishing that he committed no fault or that the loss is wholly or partly caused by the fault of the architect or the contractor. In the case at bar, the Engineers did not dispute that they acted as such with respect to the Saint-Philippe d’Arvida church.
The question of whether the Engineers participated in supervision of the work was not mentioned by the Court of Appeal or the Superior Court, which did not have to decide the point. However, the evidence entered in the record shows that the Engineers in fact participated in supervision of the work, under [TRANSLATION] “the general direction of the architect”.
The record does not contain the text of any direct contract between the Fabrique and the Engineers; but it contains the text of the contract concluded between the Contractor and the Fabrique. In the plans and specifications of that contract, there are elaborate specifications relating to the Engineers and their functions.
Among the definitions complementing the general conditions, there is that of [TRANSLATION] “structural engineer: Dauphinais & Bélanger, 582 boulevard Lamarche, Chicoutimi”. There are also the following provisions:
[TRANSLATION]
Concrete and steel
(a) Excavations, foundations, all concrete, reinforced or otherwise, and structural steel.
Responsibility of engineer.
(b) All work affecting foundations or structure.
COFFERING: … At each pouring, and as often as required:
Tests and samples.
(a) Conduct a slump test, with test cones according to instructions.
(b) Take 4 samples for compression tests. Cylinders 4″ in diameter by 12″ high. Pack in boxes of damp sawdust and submit to approved laboratory, which will send the results to the engineer promptly.
The first pouring will only be authorized after test materials have been checked.
After structure is erected, conduct load tests if required by engineer.
(a) …
COFFERING.
(b) …
(c) …
(d) Before reinforcing, have work inspected.
Do not contact engineer at the last minute. Keep him informed so that he can schedule inspection date.
Re-work, correct and repair to his satisfaction.
(e) …
(a) …
STEEL.
(b) Order structural steel from a specialized and approved company, which will erect it on-site itself. Prepare, under engineer’s direction, concrete bases and starting level for columns and steel girders.
For structure and reinforcement, use qualified layers under direction of approved expert. If the engineer finds incompetence or negligence during the work he will change the crew and have the work done over.
(c) …
(d) …
(e) …
(f) In all sections of the work, complete laying and have it approved and inspected before concrete work is done. Inform engineer 24 hours in advance, giving him all the necessary time and co-operation.
(g) …
(a) Regard engineer as a necessary adviser and consult him when needed. All concrete work is his responsibility, under the general direction of the architect. Submit all details of work to him, follow his directions on conduct of work, competence of workers, quality of materials and all related matters.
CONCRETE
Keeping coffering in place until concrete has solidified. Await authorization before removing props or supports, otherwise contractor will be solely liable for damage, even if other factors are involved.
COFFERING REMOVAL.
If concrete work has to be stopped before completing a floor, wall and so on, consult to know where and how to make join.
RECLAIMING BED.
As already indicated, these specifications form part of the contract concluded between the Contractor and the Fabrique, and there is nothing in the evidence to suggest that the Engineers or the Architect were subject to specifications differing in any material particular. These specifications clearly indicate that the Engineers in fact participated in supervision of the work [TRANSLATION] “under the general direction of the architect”.
These inferences are borne out by the minutes of a meeting of the ordinary office of the Fabrique de la Paroisse de Saint-Philippe d’Arvida, dated September 10, 1963, after the work had begun, which appointed Mr. Roland Tremblay project supervisor on behalf of the Fabrique:
[TRANSLATION] The meeting was told by Mr. Roland Huot that, as supervising churchwarden, submissions had been made to him regarding the need for the Fabrique to have a project supervisor.
The supervising churchwarden recalled the terms of a consultation on the morning of September 9 by the ordinary office with Mr. Guy Bélanger, consulting engineer, and Mr. Léonce Desgagné, architect, as to their view on the Fabrique having a project supervisor. Mr. Guy Bélanger’s position was that he did not wish to be in any way responsible to such a supervisor, but wanted to continue being solely responsible to the architect. The position of Mr. Léonce Desgagné, who said he recognized the need for such a supervisor, was as follows: (1) such a supervisor would have authority to make urgent decisions with the necessary speed on minor problems that arose during construction; (2) such a supervisor would not be authorized to make any comments or give any orders to the builders themselves; (3) such a supervisor would deal only with the architect, for the obvious purpose of ensuring that he did not assume the duties of the architect.
Mr. Roland Tremblay was appointed project supervisor, and it was resolved:
[TRANSLATION] That in the discharge of his duties Mr. Roland Tremblay would be guided, so long as this was in accordance with the interests of the Fabrique, by the wishes of Mr. Léonce Desgagné and Mr. Guy Bélanger, as set forth in these minutes.
Like the rest of the evidence, these minutes establish that the Engineers not only provided structural plans but were present on the site and participated in supervising the work [TRANSLATION] “under the general direction of the architect”.
I therefore conclude that it is art. 1688 of the Civil Code which applies to the Engineers, not art. 1689.
VII—Special case of the dome
The action brought by the Fabrique relates to two losses which are entirely separate and independent of each other, that of the walls of the church, caused by the lack of expansion joints, and that of the dome, caused by the selection of unsuitable materials for making the cap on the dome.
The Contractor and the Engineers argued that the loss of the dome was unrelated to that of the walls, and that as they were in no way involved in the plans, manufacture and installation of the dome, they should not be held responsible for its loss.
I feel that they are correct in this respect.
The geodesic dome rested on a ring supported by three steel columns, and as the trial judge observed, this basic structure, for which the Contractor and the Engineers were responsible,
[TRANSLATION] and the dome structure are not two (2) linked structures… [they] are in fact two (2) independent things.
The loss of the dome is in no way related to the basic structure supporting it or to the loss of the walls, any more than the loss of the walls is related to the loss of the dome.
Further, as the trial judge noted:
[TRANSLATION] A separate contract was concluded between the owner and Long‑Sault Woodcraft Inc., for the manufacture and installation of the geodesic dome.
(Long-Sault Woodcraft Inc. was not sued by the Fabrique apparently because the company was bankrupt.)
The contract concluded between the Contractor and the Fabrique contains the following exclusion:
[TRANSLATION] Excluded work
The complete supplying and installation of the dome, including scaffolding, constitutes a separate contract for which the contractor is not responsible and which is the sole responsibility of the manufacturer.
However, the manufacturer must be accommodated for the delivery of its materials and performance of its work; agreement with the manufacturer will be made regarding the location of anchorage bolts.
Not only did the Contractor not assume contractual responsibility for supplying and completely installing the dome, but in accordance with its contract it in fact avoided acting as a contractor in respect of the dome. This is what emerges from the testimony of the parish priest at the time of the work, according to which the Contractor had nothing to do with installing the dome, its function being limited to constructing the base on which it would be put. By this testimony, the Fabrique admitted that the contractor for this part of the construction was not Les Immeubles Murdock Limitée. The Contractor in this case therefore should not incur any responsibility under art. 1688 of the Civil Code. I feel that this is a case where the rule stated by G. Challies, supra, at p. 16, must be applied:
If there are several independent contractors, each is responsible for his own work.
The same is true for the Engineers: the parish priest admitted as to them that they no more than the Contractor had anything to do with the dome, except for the supporting structures; according to this admission, Dauphinais and Bélanger were not the engineers for this part of the building.
(As noted above, the position is different for the Architect, who acted as architect for the dome as well as the rest of the building.)
It should be noted, before leaving this subject, that the rule adopted in Wardle v. Bethune (1872), 16 L.C.J. 85, cannot be applied here to either the Contractor or the Engineers. According to that rule, the architect, engineer and contractor are responsible under art. 1688 when, in connection with their own work, they have accepted, completed or used the separate but defective work of another construction professional, with the result that there is a loss of both works or of the work regarded as a complete whole. The rule was applied to the collapse of a bell tower which had been built by a contractor on inadequate foundations laid by another contractor (Wardle v. Bethune), and when a chimney built on too weak a base collapsed: McMeekin v. Daoust, [1947] C.S. 216. (See also Chevalier v. Thompkins (1915), 48 C.S. 53.)
The circumstances would be similar to this, and different from the case at bar, if for example it was the structure on which the dome rested which had collapsed, because it was badly built or because the dome was too heavy, and the Fabrique had sued the contractor Long-Sault Woodcraft Inc. as well as the Engineers and the Architect. In such circumstances it might be concluded that, under art. 1688, the contractor Long-Sault Woodcraft Inc. would be liable with the Engineers and the Architect for using this defective structure as the basis for its own work.
The present circumstances are quite different: no part of the building other than the dome itself was threatened or lost because of the manufacturing defect affecting the cap; and no one used the defective cap to add anything to it or to incorporate it in another work. The manufacturing defect of the cap and the resulting loss of the dome have no connection with the structure or with any other part of the building.
I feel, therefore, that for the loss of the dome the Architect is solely responsible under art. 1688 of the Civil Code.
VIII—Quantum of damages
In their factum, counsel for the Fabrique are still claiming $530,000, but they stated at the hearing that they would be satisfied with the damages awarded by the Court of Appeal, namely $313,774.99, which according to an expert witness represents the cost of rebuilding the church on the same foundations, but with vertical walls and a flat roof, plus the cost of new plans and specifications, fees for supervision and expert analyses.
The subject was not discussed at length and this Court was given no convincing reason why it should intervene and alter this quantum.
The Contractor and the Engineers argued that the Fabrique was negligent and delayed unnecessarily in correcting the situation; however, this circumstance was taken into account by the Court of Appeal, since Bélanger J.A. wrote:
[TRANSLATION]… contrary to the arguments of appellant [the Fabrique], there is no reason to add the rise in prices before the judgment to the estimate of certain damages, since appellant could have acted more promptly.
This reduction of the quantum claimed by the Fabrique represented quite a significant amount at the time of the hearing, according to the expert witnesses, and it is certainly no less today.
The amount of $313,774.99 represents the sum total of the damages awarded against the Architect by the Court of Appeal, and which should be awarded against them. From this must be deducted a suitable amount for the Engineers and the Contractor, who incurred no liability for loss of the dome.
The initial cost of the dome was $61,000, or a little less than one-fifth of the total initial cost of the church, which was $327,805, including the cost of the dome. One counsel suggested reducing the award against the Engineers and the Contractor in the same proportion. I would therefore reduce the award against them by the sum of $58,000, or a little less than one-fifth of the complete quantum.
A joint and several condemnation should accordingly be pronounced against the Architect, the Engineers and the Contractor in the amount of $255,774.99, that is, $313,774.99 less $58,000, and against the Architect there should be an additional condemnation of $58,000.
Article 469 of the Code of Civil Procedure provides that a judgment which contains a joint and several condemnation against the persons responsible for damage shall, if the evidence permits, determine, as between such persons only, the share of each in the condemnation.
If the Court of Appeal is correct, the Architect should bear the entire weight of liability alone. However, the joint and several debtors did not ask this Court to determine the share of each in the condemnation as between them only; I feel that attempting to do so in the circumstances would be deciding ultra petita, without the representations of the parties.
IX—Authorization of bishop
Under sections 18(b) and 26(g) of the Fabrique Act, 1965 (Que.), c. 76, a fabrique can be a party to an action only after receiving previous and special authorization from the bishop of the diocese.
The Bishop of Chicoutimi had authorized the Fabrique to sue the Architect and the Contractor, but this authorization did not mention the Engineers. Counsel for the Fabrique asked the Court of Appeal for leave to file a retroactive authorization against the Engineers, to which counsel for the latter objected. The Court of Appeal did not rule on the application, as it dismissed the action against the Engineers, but Bélanger J.A. observed:
[TRANSLATION] I would probably have been prepared to allow the application under article 56 C.P ….
The question was not raised in this Court, but if it had been, I feel like Bélanger J.A. that it is covered by art. 56 of the Code of Civil Procedure. It provides, in its third paragraph:
The irregularity resulting from failure to be represented, assisted or authorized has no effect unless it is not remedied, and this may be done retroactively at any stage of a case, even in appeal.
The Bishop’s authorization was also delayed with respect to the Engineers at the stage of the application for leave to appeal to this Court, and the Fabrique filed two applications, one against the Architect and the Contractor and the other against the Engineers. The latter was allowed on condition that the Fabrique [TRANSLATION] “pay the costs of a motion for an extension of time and of an application for leave to appeal, whatever the outcome of the case”.
X—Conclusions
In my opinion, the following conclusions should be drawn:
The appeal of Lauréanne Harvey Desgagné, executrix of the estate of the late Léonce Desgagné is dismissed with costs;
The appeal of the Fabrique de la paroisse de Saint-Philippe d’Arvida is allowed;
The judgment of the Court of Appeal and the judgment of the Superior Court are set aside;
The action by the Fabrique de la paroisse de Saint-Philippe d’Arvida is allowed in part;
Lauréanne Harvey Desgagné, executrix of the estate of the late Léonce Desgagné, Les Immeubles Murdock Limitée, Ernest Dauphinais and Guy Bélanger are jointly and severally condemned to pay the Fabrique de la paroisse de Saint-Philippe d’Arvida the sum of $255,774.99, with interest from the date of service and costs throughout;
Lauréanne Harvey Desgagné, executrix of the estate of the late Léonce Desgagné, is further condemned to pay the Fabrique de la paroisse de Saint-Philippe d’Arvida the sum of $58,000, with interest from the date of service and costs throughout.
However, the Fabrique de la paroisse de Saint-Philippe d’Arvida shall pay the costs of the motion for an extension of time and application for leave to appeal in respect of Ernest Dauphinais and Guy Bélanger.
Appeal of Lauréanne Harvey Desgagné, executrix of the estate of the late Léonce Desgagné dismissed with costs. Appeal of the Fabrique de la paroisse de Saint-Philippe d’Arvida allowed.
Solicitors for the appellant-respondent the Fabrique de la paroisse de Saint-Philippe d’Arvida: Geoffrion, Prud’homme, Montreal.
Solicitors for the appellant-respondent Lauréanne Harvey Desgagné, executrix of the estate of the late Léonce Desgagné: Lavery, O’Brien, Montreal.
Solicitors for the respondent Les Immeubles Murdoch Limitée: Dufour, Côté and Laperriére, Chicoutimi.
Solicitors for the respondents Ernest Dauphinais and Guy Bélanger: Gagnon, de Billy, Cantin & Associés, Quebec City.