The Superior Court recently rendered a judgment in Reinert v. Construction Maurice Bilodeau Inc., 2026 QCCS 2276, dealing with timeliness to give notice in cases of latent defects.
The Facts
In 2013, Ms. Sylvie Reinert and Mr. Denis Leclerc retained Construction Maurice Bilodeau Inc. (“CMB”) for the construction of a residential building on a vacant lot in Lévis. In the summer of 2013, they moved into the basement and took formal possession of the building on October 31, 2013.
From the time they took possession in 2013 and through to 2021, Ms. Reinert and Mr. Leclerc observed high humidity levels going up to 80% in the basement, moisture on windows and efflorescence on the concrete slab. They tried unsuccessfully to regulate the humidity. They did not notify CMB of the situation.
On April 7, 2021, Mr. Leclerc met a neighbour, Mr. Richard Laprise, the owner of an excavation company. He informed Mr. Leclerc that his foundation drain must be redone. On April 9, 2021, Mr. Laprise excavated along the foundations and installed an access chimney for cleaning the drain. During this work, the level of the water table was visibly elevated with respect to the slab. In the Fall of 2021, the drain became clogged and Mr. Laprise recommended the installation of a catch basin and a French drain, and this work resolved the humidity level problems.
On October 20, 2022, Mr. Leclerc sent a notice to CMB to denounce the work required to install the French drain and the catch basin. CMB denied any responsibility. In the summer of 2023, an expert recommended the completion of significant work aiming to raise the building above the water table. On August 11, 2023, this new situation was denounced to CMB for the first time by demand letter.
On April 17, 2024, Ms. Reinert and Mr. Leclerc instituted proceedings against CMB claiming $949,172.46. CMB contested this claim, namely arguing that it was statute-barred.
The Judgment
The Court first reminds us that the limitation period to institute proceedings for latent defects begins to run the day that the damage appears for the first time. It is not necessary to know the full scope of the damages; one only needs sufficient information to provide notice and institute proceedings against the vendor of the property.
According to the Court’s analysis, on April 9, 2021, when the excavation work was carried out, even if Ms. Reinert and Mr. Leclerc had not yet received an expert report, it was possible for them to observe the level of the water table in relation to the slab. Therefore, at that time, Ms. Reinert and Mr. Leclerc had all the information necessary to institute proceedings against CMB. The water level was the probable cause of the humidity problems that had affected the residence since 2013. Ms. Reinert and Mr. Leclerc knew or ought to have known that CMP could have caused them damages in failing to adequately protect the foundations.
However, the proceedings were only instituted on April 17, 2024, exceeding the limitation period by a few days.
In addition, the Court emphasized Mr. Reinert’s and Mr. Leclerc’s failure to denounce the situation to CMB within a reasonable delay. They testified to the fact that the humidity levels and efflorescence had worried them since 2013. They however took no actions to determine the cause. They simply hoped that the situation would improve.
The Plaintiffs had an obligation to take the necessary measures to determine the cause of the damages after observing sufficient indications in relation thereto. The Court considered that Ms. Reinert and Mr. Leclerc failed to take these necessary measures. Their actions were therefore not those of a reasonably prudent and aware person placed in the same circumstances.
For all these reasons, the Court dismissed the claim.
Takeaway
In latent defect matters, the facts surrounding observations of the first signs of a problem are of paramount importance. Sufficient knowledge triggers both the starting point of the limitation period and the obligation to put the vendor on notice. Applicable case law makes the analogy of the important distinction between the perception of the tip of the iceberg and knowledge that it is the tip of the iceberg.
The moment a plaintiff reaches the threshold of sufficient knowledge can vary greatly depending upon the facts adduced as evidence, but caution is warranted and a proactive approach should always be taken to avoid the loss of rights and recourses.
This judgment is a good illustration of the risk of taking too much time to put a vendor on notice and institute proceedings, especially when certain signs logically related to the defects were observed several years prior.
If a ship is heading toward an iceberg, best to not tempt fate and avoid reliving the events of April 14, 1912!