A recent judgment reminds us that, as a general rule, an action for damages against a municipality must be brought within six months of the first sign of the occurrence of the damage, even though the extent of the damage may not necessarily be known and may not have fully materialized.
In Martin c. Ville de Magog, 2020 QCCS 182, the Honourable Justice Gaétan Dumas dismissed a lawsuit instituted by the plaintiffs allowing a ground of dismissal on the basis that the action was prescribed under section 586 of the Cities and Towns Act [“CTA”].
In this case, the plaintiffs brought an action against the City of Magog regarding the granting of minor exemptions to the by-law relating to site planning and architectural integration programs and to the zoning by-law. The plaintiffs alleged that the City had exceeded its powers by adopting resolutions allowing the construction of an immovable on a lot located between their building and Lake Memphremagog, thereby causing them damages by infringing upon the enjoyment of their property.
The defendant brought an application for dismissal under article 168 of the Code of Civil Procedure, making it possible to ask the Court to dismiss proceedings which are unfounded in law.
According to section 586 CTA, an action for damages against a municipality is prescribed by six months:
| 586 Every action, suit or claim against the municipality or any of its officers or employees, for damages occasioned by faults, or illegalities, shall be prescribed by six months from the day on which the cause of action accrued, any provision of law to the contrary notwithstanding. |
The origin of the right of action is provided for in article 2926 of the Civil Code of Québec:
| 2926 Where the right of action arises from moral, bodily or material injury appearing progressively or tardily, the period runs from the day the injury appears for the first time. |
Authors’ interpretation of article 2926 CCQ is that the right of action arises on the day where a plaintiff has noted the first appreciable or tangible sign of the realization of the injury, even though it has not fully materialized.
The Court made it clear that the assessment of the extent of the damage is not a relevant consideration when identifying the starting point for the calculation of the limitation period.
The judge confirmed that the plaintiffs were aware that their neighbours’ property had been in violation of municipal by-laws since November 2018. The plaintiffs’ action was instituted on September 4, 2019, nearly 10 months after the knowledge of tangible damage. Consequently, the Court concluded that the plaintiffs’ action is prescribed under section 586 CTA.
In this case, the City of Magog, which was successful, was represented by Zachary Ouimet, co-author of this text.
Please keep in mind that certain types of actions against a municipality may be subject to different limitation periods than those illustrated in this judgment. For instance, prior a 15-day prior notice of damage may be necessary, lest the action be barred.