When it comes to prescription, it is often difficult to determine a starting point and a precise calculation, especially when the damage or loss manifests gradually. This issue was analyzed in a very recent judgment rendered by the Honourable Marie Ève Bélanger in Syndicat des Copropriétaires du 600, de la Gare v. Village de la Gare S.E.C., Construction Corel (2005 Inc.) and 9119-4241 Québec Inc, 2024 QCCS 4692.
The case dealt with a four-storey condominium building with balconies on each floor, stacked one above the other. They were supported by wooden posts, covered with aluminum. The work was completed in August 2015, and the Syndicat initiated legal proceedings against the promoter and contractor in October 2021, leading the promoter and contractor to argue that this recourse was time-barred. The court concluded that their argument was ill-founded for the following reasons:
- The loss of the work manifested gradually during and after the five (5)-year period from the end of the work, i.e. in the summer of 2017, reddish leaks appeared at the bottom of several balcony columns, which were mainly made of wood. These leaks were deemed abnormal, raising concerns not only about the aesthetics but also about the structural integrity of the balconies, particularly since they were stacked one above the other. As a result, water infiltrated the balcony columns due to a lack of watertightness in the cladding, and the court concluded that this was indeed a construction defect. Moreover, in the summer of 2021, the Syndicat noticed that several balcony posts were rotting due to water infiltration, and that the balconies were sagging.
- The building had thirty-two (32) balconies, and both the City of Mont St-Hilaire and the Régie du Bâtiment believed that the situation was not only problematic but dangerous, and that the balconies should not be used until repairs had been made. In fact, the rotting posts affected the stability and solidity of a portion of the building.
The court therefore concluded that there was a construction defect, which manifested itself gradually within the five (5)-year period provided for in article 2118 C.C.Q. Thus, when should the recourse against the developer and the contractor have been instituted, and was it time-barred?
In a well-structured judgment, the Superior Court concluded that “The starting point of the three (3)-year extinctive prescription period is the expiry of the five (5)-year period provided for in article 2118 C.C.Q.” In these cases, the maximum time limit for taking legal action is eight (8) years. The Syndicat therefore had until August 2023 to institute its recourse. Having instituted it in October 2021, this recourse was not prescribed.
The court also addressed the defendant’s argument that this situation did not involve a loss of the work per se. According to the court, “loss of the work” must be interpreted broadly, since a potential and partial loss of the work is sufficient. For example, the rotting of the posts was dangerously affecting the solidity of a portion of the building, namely the balconies, some of which had shown signs of subsidence. This therefore constituted a loss of the work within the meaning of article 2118.
In their defence, the promoter and the contractor attempted to avoid liability by using the grounds for exoneration contained in article 2119 C.C.Q, i.e. mainly by showing that the defects resulted from an error or defect in the architectural plans created by the professionals chosen by the customer, or by showing that the defects resulted from decisions imposed by the customer in the choice of soil or materials, or in the choice of sub-contractors, experts or construction methods. The court found that neither the developer nor the contractor had succeeded in discharging this burden of proof.
The defendants also attempted to claim that the caulking around the columns might have allowed for water infiltration, as it should have been replaced between five (5) and ten (10) years from the end of construction, and the Syndicat confirmed that no maintenance work had been carried out. As the subcontractor’s work was completed seven (7) years earlier, in March 2014, the developer and the general contractor believed that the Syndicat should have undertaken maintenance work before the end of this period. The court rejected this argument on the grounds that there was insufficient evidence showing that the Syndicat’s failure to maintain the caulking was responsible for the building’s loss. It was noted that the corrective work carried out by the contractor in 2018 in an attempt to fix the water infiltration problem did not achieve the desired result, and therefore the cladding was not watertight. Thus, nothing appeared to link this situation to the lack of maintenance as submitted by the developer and the contractor.
The Syndicat’s action against them was therefore upheld, as it was not time-barred.
