In Beaudoin v. Boucher, 2025 QCCA 1646, rendered last December 19, the Court of Appeal upheld the dismissal of an action in latent defects brought by the buyers of a residential property. The Court reiterated the buyer’s duty to pursue further inspections when confronted with serious indicia of defects, particularly where they possess recognized expertise in the construction field.
The Superior Court’s Decision
In 2017, Julie Beaudoin and Steve Caron (collectively, the “Plaintiffs”) purchased a residential property from Francine Boucher and Luc Boutin (collectively, the “Defendants”), who had acquired the property in 1995.
The Defendants carried out significant renovation work in 2007–2008, which was performed by Ms. Boucher’s father. As part of this work, the foundation drains were replaced, a waterproofing membrane was installed on the foundation, and the split-level portion of the house was raised to align with the main floor. To support this section of the building, a wood foundation was added and attached to the original foundation.
Prior to their first visit to the property, the Plaintiffs obtained the property description sheet and the seller’s declaration, in which the renovations were disclosed. They subsequently requested proof from the Defendants of the existence of a waterproofing membrane and a foundation drain, which they considered essential. No further questions or concerns relating to the renovation work were raised at that time.
On May 28, 2017, the Defendants provided the Plaintiffs with photographs taken during the 2007 renovation work to alleviate their concerns.
On May 30, 2017, the Plaintiffs conducted their first visit to the property, following which they signed a promise to purchase. This promise was subject, inter alia, to the completion of a professional inspection of the property within fifteen days of acceptance.
On June 13, 2017, Plaintiff Caron carried out a second visit during which he personally inspected the property. Having identified, in his view, no problematic elements, he concluded that a professional inspector would not have discovered anything further and accordingly waived the professional inspection. It bears noting that Mr. Caron has worked in the construction industry as a project manager since 2009.
The Alleged Defects
The Plaintiffs allege that they first became aware of the condition of the waterproofing membrane in 2019, when they undertook a complete reconstruction of the patio. To their “surprise”, the membrane was found to be blistered, wrinkled, improperly installed, and partially detached.
The second alleged defect concerns the foundation itself. The Plaintiffs contend that it is subject to pressure from back to front, resulting in varying degrees of wall inclination.
It is undisputed that the renovations performed in 2007 were deficient, as confirmed by several experts involved in the matter. Among other issues, the membrane had been installed in a manner that promoted moisture accumulation; the backfill was inadequate; there was no flashing or vapour barrier; and the foundation lacked any lateral reinforcement. In fact, an architectural technologist who inspected the property in 2019 identified numerous deficiencies requiring corrective work.
Nevertheless, the mere existence of defects does not give rise to a right to compensation: where defects were apparent, or where the purchaser failed to act prudently and diligently, they cannot be characterized as latent defects.
Apparent Defects, Prudence, and Diligence
The Court was unequivocal: the photographs transmitted prior to the promise to purchase clearly revealed several potential problems. It found entirely implausible Mr. Caron’s assertion that he only discovered the membrane in 2019, given that it was plainly visible to the naked eye. This conclusion is reinforced by the fact that Mr. Caron and Mr. Boutin discussed the membrane on two occasions in 2018, including the risks associated with its exposure to sunlight. A membrane exposed in this manner is readily observable by any person.
The photographs also showed the absence of a vapour barrier, the presence of clay and backfill, and the lack of lateral reinforcement of the foundation. These elements were clearly observable as early as 2017 and therefore prior to the promise to purchase.
In addition, the Court emphasized the purchaser’s duty of prudence and diligence. Well-established case law holds that a buyer must conduct a careful and serious examination of the property and must pursue further inquiries as soon as an indication suggests the possible existence of defects. Where the purchaser lacks the necessary expertise to assess such risks, it is incumbent upon them to seek the assistance of experts.
Despite the obvious presence of certain potential issues, the Plaintiffs themselves waived the condition requiring a professional inspection, which already constitutes a form of negligence.
The Court further noted that the Plaintiff had worked in the construction industry since 2009. Although he claimed to lack relevant expertise, the Court rejected this assertion. As a project manager, he prepares plans, drafts bids, and regularly visits construction sites in collaboration with engineers. He also performed several works on the property, thereby demonstrating his competence. His experience in the field was undeniable.
All experts involved in the case indicated that a wood foundation, while lawful, is extremely rare. The Court held that any purchaser should, at a minimum, have consulted an engineer to understand the specific characteristics of such a foundation and thereby demonstrate attentiveness, seriousness, prudence, and diligence. This rarity should have been all the more evident to the Plaintiff given his professional background. The Superior Court stated that the obligation to conduct a thorough examination is heightened where an unconventional and obsolete construction method is involved – a statement adopted verbatim by the Court of Appeal.
Conclusion
Although the defects were established, the Court had no difficulty in concluding that no latent defect existed and dismissed the Plaintiffs’ claim. Not only were the defects apparent, but the Plaintiffs’ negligence was equally evident. Finally, given that the evidence showed the defects were apparent as early as 2017, the Court also raised the issue of the late notice of defect provided in 2019.
Takeaway
- A prudent and diligent buyer must examine a property carefully and thoroughly.
- Any indication suggesting the presence of a defect obliges the buyer to pursue further investigation.
- The acquisition of a property featuring a wood foundation, or any other rare construction technique, warrants an in-depth examination and the involvement of experts.
- The duty to conduct a meticulous inspection is heightened where unconventional construction techniques or self-performed renovation work are evident.
