On this past September 26, in the context of a claim for latent defects, in the matter of Meyer v. Pichette (Estate of Morin), 2025 QCCA 1193, the Court of appeal confirmed a Superior Court judgment which dismissed proceedings in warranty brought against former vendors as sufficient notice of the defects was not provided prior to completion of the corrective work.
The Facts
A house built around 1870 is sold by the Dutils to Ms. Gisèle Morin in 1995. In 2008, she then sells it to Ms. Dominique Meyer. In 2019, Ms. Meyer sells the house to Ms. Lisa Barabé and Mr. Sylvain Tassé (the “Barabé-Tassés”).
In the fall of 2018, just a few weeks after purchasing the house, a water infiltration occurs and the Barabé-Tassés immediately notify Ms. Meyer and institute proceedings.
On February 3, 2022, the house is affected by new water infiltrations. Exploratory openings reveal a condensation problem within the walls for which the Barabé-Tassés notify Ms. Meyer on February 11 and send a formal demand letter on February 14. Ms. Meyer is informed of their intention to carry out corrective work in the first week of May. She sends her expert to conduct a site visit on May 10, 2022, but takes no further measures.
On June 1, 2022, in carrying out the corrective work, the Barabé-Tassés discover signs of rot, insulation problems and a nest of carpenter ants and send a notice in relation thereto to Ms. Meyer on June 10.
On August 2, 2022, Ms. Meyer sends a first notice denouncing the defects to the executor of Mr. Morin’s estate. Although he acts quickly to carry out a site visit on August 5, the corrective work is already completed.
Ms. Meyer institutes proceedings in warranty against Mr. Morin’s Estate which in turn brings proceedings in sub-warranty against Mr. Dutil’s Estate. The latter present applications to dismiss based upon the absence of notice which are granted by the Superior Court, ruling for the dismissal of the proceedings in warranty. Ms. Meyer appeals the judgement.
The Court of Appeal’s Ruling
In its evaluation of the trial judgement, the Court of Appeal is called to determine: (1) if Ms. Meyer was legally bound to transmit a notice disclosing the latent defect; (2) if the notice transmitted contained sufficient information; and (3) if the notice was transmitted within a reasonable delay.
The Duty to Provide Notice
The Court of Appeal first reviews the general rule established by article 1739 of the Civil Code of Québec whereby a purchaser must provide notice to the vendor disclosing a latent defect. The Court clarifies certain comments of the Superior Court in relation to exceptions to this rule and confirms that only three exist:
- Where corrective work is urgent;
- Where a vendor denies any liability for the defect; and
- Where the vendor expressly or implicitly renounces to receiving notice.
The Court of Appeal concludes that none of these exceptions apply to the case at hand. Indeed, the exception of urgency can be complicated in cases where successive vendors’ interests are at issue, as the first vendor does not control the corrective work carried out by the purchaser. However, the Barabé-Tassés promptly notified Ms. Meyer and she was aware of the wall condensation problems as of February 11, 2022. Since the corrective work was carried out in the month of May (and nothing indicates that an extension could not have been obtained), no urgency existed. The Court also noted that the notice received by Ms. Meyer from the Barabé-Tassés had no effect upon the other vendors in the chain of conveyance due to the lack of perfect joint and several liability (perfect solidarity) between them. Ms. Meyer therefore was bound to provide notice.
Insufficient and Late Notice
The Court of Appeal further considers that the trial judge had correctly qualified the notice as being insufficient and late.
As for insufficiency, the notice transmitted on August 2, 2022 only referred to rot, insulation problems and carpenter ants. The lack of any mention of the wall condensation problem is fatal.
As for lateness, the Court of Appeal dismisses the arguments to the effect that the notion of “reasonable delay” should be considered in light of the period of time elapsed. Even if the delay between Ms. Meyer’s knowledge and the notice was under seven months (which other judgements ruled was reasonable), the notion of reasonability turns on the possibility for the notified party to carry out a site visit and examine the situation prior to the completion of corrective work. However, nothing in the evidence indicated that Ms. Meyer was unable to provide notice as early as February 2022. The investigator’s report further indicated that he was able to locate the person in question the same day he received instructions to do so. The notice was therefore not provided within a reasonable delay.
The Sanction
The dismissal of the proceedings is a sanction that is often attenuated by the Courts, namely in situations where property is completely destroyed or where a manufacturer is deemed to have knowledge of a latent defect. Dismissal is however an appropriate sanction where a vendor suffers a concrete prejudice.
Referring to the matter of Cvesper v. Melatti of 2023, the Court emphasizes that failure to provide notice gives rise to a presumption of prejudice. The onus of establishing an absence of prejudice therefore falls upon Ms. Meyer. In this regard, Ms. Meyer was unable to convince the Court that the expert report prepared by at the request of the Barabé-Tassés allowed for an adequate evaluation of the latent defects. In particular, the report contained only sixteen (16) photos. The factual information was therefore very limited, such that an expert would not be able to adequately determine the existence and origin of a defect, nor properly be able to weigh the hypotheses advanced by the Barabé-Tassés’ experts.
For all these reasons, the Court dismissed the appeal and confirmed the first instance judgment.
Takeaway
The Court of Appeal emphasizes the importance of providing notice in litigation relating to latent defects. Transparency, proper communication and ensuring that any interested party is afforded an opportunity to carry out a site visit are of pivotal importance:
- A purchaser having discovered a latent defect should take rapid action to provide notice and disclose the situation with as much detail as possible on the nature of the defect and any planned interventions, specifying a clear timeline. If possible, the notice should also remind the vendor to act quickly to provide notice to any third parties whose liability such vendor considers may have been engaged.
- A vendor having received notice disclosing a latent defect must be proactive and should, as quickly as possible, provide notice disclosing the defect to any potentially liable party that may wish to carry out a site visit prior to the completion of any corrective work. Heightened and regular communication should be a priority where a purchaser intends to carry out corrective work, and status updates should be provided in relation to measures taken with parties who might wish to carry out a site visit. The possibility of requesting an extension of delays should be raised if necessary and if the situation allows.
- All the parties involved in a latent defect dispute should attempt to document the situation as exhaustively as possible with experts (particularly where communication issues arise).
- In cases where it is impossible to locate or notify a potentially liable party in relation to a latent defect, since one may bear the onus of establishing the impossibility to provide notice prior to the completion of corrective work, the measures taken to provide notice and/or requesting time extensions should be properly documented.
The application of these best practices could avoid parties losing rights of action and ensure that all parties liable for latent defects pay their share.
