You may recall our newsletter of July 17, 2023, summarizing a judgment concerning the important burden placed on a manufacturer by the Civil Code of Québec (C.C.Q.). In AIG Insurance Company of Canada et al. v. Mécano Mobile R.L. Inc. et al. 2023 QCCS 1935, the Superior Court dismissed the insurer’s claim against the manufacturer/seller, concluding that the very heavy burden incumbent on the manufacturer had shifted given the circumstances of the case.
To summarize, the Civil Code of Québec requires sellers to warrant that the property they sell and its accessories are, at the time of sale, free of latent defects that would render them unfit for their intended use (1726 C.C.Q.). In the case of professional sellers, this obligation is even more important, as article 1729 C.C.Q. creates a very strong triple presumption. It presumes the existence of the defect at the time of sale, its anteriority in relation to the sales contract, and the existence of the causal link associating the defect to the property’s deterioration or malfunction.
Some are quick to characterize this triple presumption as equivalent to a presumption of the manufacturer’s liability, which can only be rebutted by establishing proof of the victim’s fault in using the property, or of an act of God or force majeure. The trial judge therefore concluded that the professional vendor in question had discharged itself of this heavy burden given the circumstances of the case and consequently dismissed the claim.
However, this was not the opinion of the Court of Appeal, which, on December 23, 2024, decided to review the matter and overturn the judgment (2024 QCCA 1733). The plaintiffs, AIG and GFC, rightly dissatisfied with the dismissal of their claim, appealed the judgment, criticizing the trial judge’s conclusion not to apply the very heavy presumption of 1729 C.C.Q. The Court of Appeal reiterated that the buyer’s “initial burden is relatively light, namely, to demonstrate that the disputed property came from a person bound by the warranty of the professional seller and that this property deteriorated prematurely”. Once this proof has been made, the three presumptions mentioned above are triggered, which, according to the Court of Appeal, “does not confer much latitude on the professional seller”. The seller would therefore have to demonstrate improper use of the goods at the root of the malfunction or as previously mentioned, the existence of force majeure.
The status of the professional seller had not been contested in first instance and the judge had determined “that the deterioration of the [property] is premature”. Consequently, the respondents had to identify the cause of the fire and demonstrate causal misuse or an act of God. However, after analyzing the evidence, the judge had concluded that the cause of the fire remained undetermined.
The Court of Appeal ruled that none of these determinations could lead in law to the dismissal of the claim, and that to do so would distort the very strong presumption of article 1729 C.C.Q. As such, since the defendants failed to discharge their heavy burden, the claim should have been maintained.
Consequently, the Court of Appeal condemned the defendants to pay the value of the damages for the equipment to the insurer and its insured, Groupement Forestier Chaudière Inc. This decision shows that the heavy burden of article 1729 C.C.Q. is not easy to rebut; on the contrary, it is very onerous.
