On May 20, 2021, the Court of Appeal, in the case of Ville de Mascouche c. Architectes Rivest-Jodoin & Associé, 2021 QCCA 859 affirmed the decision of the Superior Court (2019 QCCS 1996) which granted a motion to dismiss on the grounds of prescription.
The City of Mascouche [City] hired Anjalec Construction inc. [Anjalec] in 2007 to build two community centers according to the plans and specifications prepared by Les Architectes Rivest-Jodoin et Associé [Architects]. Every winter since 2009, the City experienced water infiltration in these buildings. The City retained an expert in 2011 to conduct a thorough inspection of the cause of the infiltration. The expert went on site four times and, in 2012, noted that it was abnormal to see rust on the metal structure since the roofs were new. Although the expert recommended making openings in the roofs to conclude on the source of the water infiltration the City did not proceed with these recommendations. In January 2013, Anjalec advised the City that it was unable to fix the problem, despite its attempts.
In March 2013 the City hired a third party to address the problem since the roof kept leaking: this attempt was unsuccessful. Finally, the City commissioned another expert in 2016 who concluded that the roofs needed to be completely redone. On May 3, 2016, the City filed an action against the Architects, Anjalec and their insurers. The defendants all argued that the claim was time-barred and should be dismissed due to abuse of proceedings in virtue of Article 51 of the Code of Civil Procedure, which reads:
| The courts may, at any time, on an application and even on their own initiative, declare that a judicial application or a pleading is abusive. Regardless of intent, the abuse of procedure may consist in a judicial application or pleading that is clearly unfounded, frivolous or intended to delay or in conduct that is vexatious or quarrelsome. It may also consist in a use of procedure that is excessive or unreasonable or that causes prejudice to another person, or attempts to defeat the ends of justice, particularly if it operates to restrict another person’s freedom of expression in public debate. |
The Court reminded us that if an action is manifestly ill-founded, it must be dismissed. In this case, the defendants argued that the City admitted during discoveries being well aware of the facts as of 2009 and claimed that even if the damages were aggravated over the years, it should have sued well before 2016. The City pleaded only knowing of the cause of the infiltrations after receipt of the expert report in 2016. However, it amended its claim to allege that in May of 2013, it detected the presence of rust and perforation in the metal part of the roof, whereas before this period, its knowledge to this effect was limited. The City therefore argued that prescription began running as of May 2013 and that its action was not time-barred.
The Superior Court noted that while the prescription period is three years, it commences on the day the damage manifested for the first time, given that it appeared gradually. More precisely, the Court clarified that prescription “begins running on the day that a prudent and diligent person could suspect that there exists a link between the prejudice and the fault.” [par 35; our translation]
The Court stated that the presence of rust was an aggravation of the damage whereas the source of the problem remained the leaking roofs. The Court cautioned not to confuse the gradual appearance of a prejudice and its aggravation. In addition, the Court underlined the fact that the City had a lot of experience, noting that there were many possible starting points for the prescription period. In fact, the Court stated that that the best-case scenario for the City regarding the starting point was January 15, 2013, when Anjalec advised not being able to repair the roofs. At that moment, the City had everything in hand to institute the action.
The lack of vigilance of the City did not suspend the prescription. Although Courts are generally reluctant to dismiss actions at a preliminary stage, the Court confirmed that the demand must be dismissed when all the facts leading to that conclusion appear from the file, as was the case in the present matter. The motion was granted, and the City’s action was dismissed.
RSS represented one of the insurers before the Court of Appeal.