What is New in Terms of Liability for Loss of the Work?

In the event of loss of the work, Article 2118 of the Civil Code of Québec (“C.C.Q.”) creates in favour of the owner of an immovable a presumption of solidary liability against the contractor, architect, engineer, professional technologist, and subcontractor who performed, directed or supervised the work.

In the event of loss of the work, Article 2118 of the Civil Code of Québec (“C.C.Q.”) creates in favour of the owner of an immovable a presumption of solidary liability against the contractor, architect, engineer, professional technologist, and subcontractor who performed, directed or supervised the work.

This rule of law is designed to ensure public safety and the stability of immovable works and is based on the owner’s presumed lack of knowledge of construction techniques.

In light of the severe consequences of this presumption of solidary liability for those involved in construction, we believe it is important to review recent case law on the notion of loss of the work.

Criteria for Applying the Presumption Contained in Article 2118 of the C.C.Q.

Recent case law has specified that four (4) conditions must be met for this presumption of liability to apply, namely:

• 1. The work must be immovable, as movable works are excluded from the scope of the presumption.
• 2. There must be a total or partial loss of the work or at the very least a threat of loss. Hence, there must be substantial damage that jeopardizes the work; accordingly, there need not be a total loss of the immovable or total ruin.
• 3. The loss must result from faulty design, construction or execution of the work or from defects in the ground. The claim need not specify the exact cause of the loss of the work; however, it must show by a preponderance of evidence that the loss resulted from defects in the work.
• 4. The loss must occur within five (5) years of completion of the work.

Once these four (4) conditions have been met, the owner of the immovable does not have to prove the fault of the parties named in Article 2118 of the C.C.Q., since the presumption applies.

What Constitutes a “Loss”?

The loss of the work is defined as a “probable threat of destruction, insofar as it will render the building unfit for the use for which it is intended and lead to a significant reduction in its market value” [our translation]. The Court of Appeal has reiterated that the concept of loss of the work in Article 2118 of the C.C.Q. must be interpreted broadly and has specified that the loss may be partial or potential. There may be a likely threat of destruction: it is, therefore, not necessary for the loss to have occurred and for the worst to have happened before taking action.

Despite the broad interpretation of the concept of loss of the work by the courts, the defects in the work must still be sufficiently serious and the damage suffered or to be suffered must be significant. Indeed, the proof of loss of the work referred to in Article 2118 of the C.C.Q. requires more than the mere risk of loss.

The Means of Exoneration

The parties named in Article 2118 of the C.C.Q. may be relieved from liability and overturn the presumption by demonstrating force majeure, evidencing an act or omission by the creditor or proving one of the means of exoneration contained in Article 2119 of the C.C.Q.

Accordingly, the architect, engineer or technologist may be relieved from liability if he or she demonstrates that the defects are not the result of an error or defect in the expert opinions or plans he or she may have supplied, or from any failure in the direction or supervision of the work. The contractor and subcontractor may be relieved from liability if they prove that the defects resulted from an error or defect in the architect’s, engineer’s or professional technologist’s expert opinions or plans. In addition, the subcontractor may be relieved from liability if he or she can demonstrate that the defects are the result of decisions made by the contractor.

All parties named in Article 2118 of the C.C.Q. may also be relieved from liability by proving that the defects result from decisions imposed by the client in selecting the land or materials, or the sub-contractors, experts, or construction methods.

For more than 25 years, BCF has developed and refined its expertise in construction law and the professionals within our firm have been assisting contractors in all types of litigation so as to minimize the financial impact that these problematic situations may generate. Should you have any questions or need more information, feel free to contact our team.