Desgagné v. Fabrique de la paroisse St-Philippe d’Arvida

Desgagné v. Fabrique de la paroisse St-Philippe d’Arvida
Collection
Supreme Court Judgments
Date
1984-02-02
Report
[1984] 1 SCR 19
Case number
15607
Judges
Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio
On appeal from
Quebec
Subjects
Action
Decision Content
Supreme Court of Canada
Desgagné v. Fabrique de la paroisse St-Philippe d’Arvida, [1984] 1 S.C.R. 19
Date: 1984-02-02
Lauréanne Harvey Desgagné, executrix of the estate of the late Léonce Desgagné Appellant;
and
La Fabrique de la paroisse de Saint-Philippe d’Arvida Respondent.
and
La Fabrique de la paroisse de Saint-Philippe d’Arvida Appellant;
and
Lauréanne Harvey Desgagné, executrix of the estate of the late Léonce Desgagné, Les Immeubles Murdock Limitée, Ernest Dauphinais and Guy Bélanger Respondents.
File No: 15607.
1982: March 17; 1984: February 2.
Present: Beetz, Estey, Mclntyre, Chouinard and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Prescription—Lease and hire of work—Liability of architect, engineers and contractor—Construction defect—Gradually revealed—Starting point of prescription—Civil Code, arts. 1688, 1689, 2259—Fabrique Act, 1965 (Qué.), c. 76 (now R.S.Q. 1977, c. F-1), ss. 18(b), 26(g)—Code of Civil Procedure, art. 56.
In September 1971, seven years after acceptance of the work by the architect, the Fabrique de la paroisse de Saint-Philippe d’Arvida brought an action for damages against the architect, the engineers and the general contractor responsible for building the parish church. The Fabrique held them responsible for the presence of construction defects which resulted in loss of the walls and dome of the building. The two losses were entirely separate and independent of each other. The manufacture and installation of the dome were the subject of a separate contract between the Fabrique and a second contractor (not concerned in the case at bar). The engineers and the general contractor did not participate in this part of the work, their functions being limited to building the base supporting the dome. At trial the Superior Court, having found that the partial loss of the building occurred in the fall of 1964, applied the first paragraph of art. 2259 C.C. and held that the action based on art. 1688 C.C. had been prescribed in respect of defendants. The Court of Appeal, though it agreed with the Superior Court as to prescription of the action based on art. 1688 C.C., cited the system of contractual liability for which the prescription period is thirty years, and by a majority reversed the judgment of the Superior Court, allowing the action of the Fabrique against the architect. The Court of Appeal found no fault in the acts of the engineers and the general contractor: hence the appeal by the Fabrique—to place the starting point for prescription at the expiry of the five years mentioned in art. 1688 C.C., when the total or partial loss of the building is discovered within five years following completion of the work, and that loss results from a defect which has appeared gradually—and the appeal of the architect to restore the Superior Court judgment.
Held: The appeal of the architect should be dismissed. The appeal of the Fabrique should be allowed.
The action of the Fabrique based on art. 1688 C.C. was not prescribed. In all cases where a construction defect is gradually revealed, it is the second paragraph of art. 2259 C.C. which should be applied. The five-year prescription mentioned in that article therefore only began to run from expiry of the five years mentioned in art. 1688 C.C. In the case at bar, as the architect did not accept the work until August 1964, some months after the work had terminated, the Fabrique had until 1974 to take action. Accordingly, as provided in art. 1688, the architect, the engineers and the contractor must be found jointly and severally liable to the Fabrique, without the latter having to prove fault by any of them. However, only the architect, who acted as architect for the dome as well as the rest of the building, should be held liable for loss of the dome. The liability of the engineers and the contractor should be limited to the work in which they took part.
Hôpital Laval Ltée v. Roberge, [1942] C.S. 166; Wardle v. Bethune (1872), 16 L.C.J. 85; McMeekin v. Daoust, [1947] C.S. 216; Chevalier v. Thompkins (1915), 48 C.S. 53; Gingras v. Cité de Québec, [1948] Que. K.B. 171; Gauthier v. Séguin, [1969] Que. Q.B. 913; Laverdiére v. Dorval, [1955] Que. Q.B. 367; Construction St-Hilaire Ltée v. Michaud, [1975] C.S. 651; Donolo Inc. v. St-Michel Realties Inc., [1971] C.A. 536; Hill-Clark-Francis Ltd. v. Northland Grocers (Quebec) Ltd. (1940), 69 Que. K.B. 281; Hill-Clarke-Francis, Ltd. v. Northland Groceries (Quebec) Ltd., [1941] S.C.R. 437; Archambault v. Curé et marguilliers de la Paroisse de St-Charles de Lachenaie (1902), 12 Que. K.B. 349; Canadian Electric Light Co. v. Pringle (1920), 29 Que. K.B. 26; Lemarier v. Corporation de Sainte-Angèle (1920), 26 R. de J. 317, referred to.
APPEALS from a judgment of the Quebec Court of Appeal, [1979] C.A. 198, which reversed in part a judgment of the Superior Court. Appeal of Lauréanne Harvey Desgagné, executrix of the estate of the late Léonce Desgagné, dismissed. Appeal of the Fabrique allowed.
Jean-Louis Baudoin, Q.C., Jean-Pierre Depelteau and Chantai Perreault, for the appellant‑respondent the Fabrique de la paroisse de Saint-Philippe d’Arvida.
J. Vincent O’Donnell, Q.C., and Daniel Alain Dagenais, for the appellant-respondent Lauréanne Harvey Desgagné, executrix of the estate of the late Léonce Desgagné.
Richard Dufour, for the respondent Les Immeubles Murdock Limitée.
Marc Lesage, for the respondents Ernest Dauphinais and Guy Bélanger.
English version of the judgment of the Court delivered by
BEETZ J.—
I—The proceedings, judgment of the Superior Court and judgment of the Court of Appeal
After the construction of the Saint-Philippe d’Arvida church, the Fabrique de la paroisse de Saint-Philippe d’Arvida (“the Fabrique”) brought an action in damages for $530,000 against the architect Léonce Desgagné, now deceased, who is represented by his widow Lauréanne Harvey Desgagné (“the Architect”), the structural engineers Ernest Dauphinais and Guy Bélanger (“the Engineers”) and the general contractor Les Immeubles Murdock Limitée (“the Contractor”). The Fabrique attributed a number of specific faults to defendants, and held them responsible for the presence of construction defects which allegedly appeared gradually and resulted in the loss of the walls and dome of the church. The Fabrique asked that a condemnation be pronounced against defendants jointly and severally, as provided for in arts. 1688 and 1689 of the Civil Code:
1688. If a building perish in whole or in part within five years, from a defect in construction, or even from the unfavorable nature of the ground, the architect superintending the work, and the builder are jointly and severally liable for the loss.
1689. If, in the case stated in the last preceding article, the architect do not superintend the work, he is liable for the loss only which is occasioned by defect or error in the plan furnished by him.
In a very elaborate but unfortunately unreported judgment, Gabrielle Vallée J. of the Superior Court, as she then was, dismissed the action of the Fabrique on the ground that it is prescribed under art. 2259 of the Civil Code:
2259. The action for indemnity under article 1688 must be taken within five years from the date of the loss.
If, however, the defect is one which is only gradually revealed, prescription shall begin to run from the expiration of the five years mentioned in article 1688.
By a majority judgment published sub nom. Fabrique de la paroisse de St-Philippe d’Arvida v. Desgagné, [1979] C.A. 198, the Court of Appeal reversed in part the judgment of the Superior Court and allowed the action of the Fabrique against the Architect in an amount of $313,374.99; but it dismissed the action against the Engineers and the Contractor. Bélanger and Bernier JJ.A. agreed with the trial judge as to prescription of the action based on art. 1688, but they held that the system of liability created by that provision does not supersede that of contractual responsibility, the prescription for which is thirty years in this case. They upheld the finding of contractual fault against the Architect, which the trial judge did not discuss, but they found no fault in the acts of the Engineers and the Contractor. Monet J.A., dissenting, would have affirmed the trial judgment.
By her appeal, appellant Lauréanne Harvey Desgagné is asking this Court to restore the judgment of the Superior Court on the ground that the system of liability provided for by art. 1688 supersedes that of contractual responsibility, and that the action based on art. 1688 is prescribed, as was found by the trial judge and affirmed by the unanimous opinion of the Court of Appeal.
As to the Fabrique, it submits in its appeal that its action based on art. 1688 is not prescribed. Alternatively, it argues that there was contractual fault both by the Engineers and the Contractor and by the Architect, and that their liability, based on art. 1065 of the Civil Code, is also joint and several. It is accordingly asking that the appeal of Lauréanne Harvey Desgagné be dismissed and a joint and several condemnation pronounced against defendants.
II—The question
The trial judge identified the principal question for decision as follows:
[TRANSLATION] The question raised by the case at bar is what starting point the Court should take when the total or partial loss of the work is discovered within five (5) years following completion of the work, and that loss results from a defect which has appeared gradually: should the Court in such a case apply the first (1st) or the second (2nd) paragraph of art. 2259?
I accept this to be in fact the question before the Court.
In the opinion of the trial judge it should be answered by applying the first paragraph of art. 2259, and the starting point for prescription placed at the day of the loss and the time it became known to the Fabrique. As the trial judge found that the partial loss of the building occurred in the fall of 1964, and that this loss had become apparent to the Fabrique at that time, or at the latest in the spring of 1965, she held that the action brought on September 23, 1971 had been prescribed for nearly two years.
With respect for the opposite opinion, I consider rather that it is the second paragraph of art. 2259 which should be applied and that “prescription shall begin to run from the expiration of the five years mentioned in article 1688”, that is, from the expiry of five years following acceptance of the work, or perhaps—it is not necessary to decide the point—from the expiry of five years following completion of the work. The work was accepted on August 4, 1964 and had terminated some months earlier. Accordingly, the Fabrique had until 1974 to bring an action. I therefore conclude, unlike the trial judge and the Court of Appeal, that the action of the Fabrique, based on art. 1688 of the Civil Code, is not prescribed and that, as the article provides, defendants should be held jointly and severally liable to the Fabrique without the latter having to prove fault by any of them.
In view of this conclusion, it is not necessary for me to decide whether any of the defendants is at fault or to discuss the question of whether the system of liability created by art. 1688 supersedes that of contractual responsibility.
III—Facts
The trial judge gave a detailed description of the Saint-Philippe d’Arvida church and the circumstances giving rise to the case. I feel it is necessary to cite substantial extracts from this description: while I accept all the trial judge’s findings of fact without reservation, I cannot share her opinion as to the way in which some of these should be characterized with regard to the gradual emergence of the construction defects.
The trial judge observed:
[TRANSLATION] The building is of an original design consisting of three (3) walls each in the form of an arc: these walls are arranged in a triangular manner, the concave sides of the walls on the outside and the convex sides on the inside; the inner sheathing of the walls is eight inches (8″) and consists of two (2) thicknesses of juxtaposed bricks; the outer sheathing of the walls consists of a single four-inch (4″) brick layer; all these bricks are joined by mortar joints of the type commonly known as “weeping joints”; between the inner and outer sheathings of the walls there is insulating material two inches (2″) thick, and there is a one-inch (1″) wide space; the three (3) walls are one hundred and twenty feet (120′) long respectively and have no longitudinal reinforcing steel.
Seen from inside the church the three (3) walls, at their most convex point and in their upper section, slope to form an arch; the incline or effect of the arch diminishes and disappears the further one gets away from these three (3) points and the nearer one gets to the terminating angles.
At each of the points located in the most convex section of the sloping walls a column is concealed: where these three (3) columns are located, the inner sheathing of the wall has a thickness of only one brick; the three (3) columns are topped by a ring on which a geodesic dome rests; this dome covers the entire central portion of the triangle formed by the three (3) arcs and the three (3) angles of the triangle are closed by flat roofs.
The dome has a diameter of seventy-six (76′) feet and a height of thirty (30′) feet, and it consists of a structure of aluminum, or aluminum components, to which thin panels of plastic are attached at the corners by means of small rivets. The sheets of polyester plastic are joined by honeycombs made of treated paper.
It may be noted here that the structure consisting of the columns and ring of metal and the dome structure are not two (2) linked structures but are in fact two (2) independent things (cf. testimony, Jules Houde, engineer, proof pp. 795 et seq.).
The plans and specifications of this church were assigned to the architects Desgagné & Côté, and the latter supervised the construction.
The structural engineers were Dauphinais and Bélanger, and the general contractor was Les Immeubles Murdock Limitée.
A separate contract was concluded between the owner and Long-Sault Woodcraft Inc., for the manufacture and installation of the geodesic dome.
It may be noted at once that the plans and specifications for this dome were not designed by the architects Desgagné and Côté.
(However, it is important to add to this last paragraph what Bélanger J.A. said on the matter in the Court of Appeal, speaking for himself and for Bernier J.A. While it is true that the plans and specifications of the dome were not designed by the Architect, [TRANSLATION] “the decision… to award the final contract to Long-Sault Woodcraft Ltd. was only taken by [appellant (the Fabrique)] on a written acceptance by the architect of the material to be included in his building as ‘in accordance with our requirements and the conditions of the project, in quality and appearance’ ”. From this it follows that the Architect acted as architect for both the dome and the rest of the building. It was also apparently he who conceived the idea of a church with a translucent geodesic dome.)
The trial judge went on:
[TRANSLATION] Construction of the project began in summer 1963.
On September 10, 1963 the owner appointed Mr. Roland Tremblay its project supervisor.
Possession was taken of the church some months before the architect accepted the work.
The architects accepted the work on August 4, 1964.
Defects appeared in the walls of the building before and after the work was accepted, and other defects appeared in the dome during the first few months following the acceptance, perhaps even some days before it.
The public was forbidden to use the building at the end of November 1971.
Proceedings were begun on September 23, 1971 and plaintiff sought complete reconstruction of the building, which was on the point of collapse.
…
Let us now consider how the defects appeared and when the total or partial loss of the building occurred.
To do this, it is first necessary to distinguish defects and losses, for in the case under consideration two (2) entirely different defects existed, which both caused a partial loss of the building: first, loss of the walls; second, loss of the dome.
THE WALLS:
The expert testimony heard for both plaintiff and defendant was unanimous on two (2) points, at least:
(a) the defect vitiating the walls of the church was one of design: the lack of expansion joints;
(b) the phenomenon of shrinkage in the masonry occurred in the first year following the end of the work.
…
I hold the lack of expansion joints in unreinforced masonry as the sole design defect capable of causing total or partial loss of the walls of the building at issue.
… On Good Friday, in late March or early April 1964, that is nearly four (4) months before the work was accepted by the architect, the break in the wall occurred on the side facing St-Denis Street. It was an opening which some people referred to as “cracks”, others as “large fissures”. This opening, which caused one parishioner to remark that “the veil of the temple was ripped”, is vertical, from top to bottom, stretches right across the inner sheathing of eight inches (8″), appeared suddenly and divides the wall into two (2) sections ⅛ to ½ inch apart.
Finally, it should be noted that this break is not in step form, that is, it did not take the easy route of the mortar joining the bricks, but broke the latter from top to bottom (cf. Fr. Gravel, proof, April 24, 1974; Roland Tremblay, examination on discovery, March 30, 1972; photos filed jointly as Nos. S-1 to S-4 and P-60 to P-62).
On that day, the parish priest Fr. Gravel noticed what had happened and contacted the churchwardens and architects.
The break in the second (2nd) wall occurred in late summer or early fall 1964, according to Fr. Gravel, and in the third (3rd) wall in early spring 1965.
According to the testimony of Mr. Roland Tremblay (examination on discovery, March 30, 1972), these two (2) breaks appeared earlier, and all occurred during 1964. Each of these “cracks” or openings is the same size and all three (3) are symmetrically located (cf. examination on discovery, March 30, 1972; Fr. Gravel, proof, April 24, 1974).
In the spring of 1965, the exterior sheathing of the walls broke exactly where the “inner cracks” were located. During all this time and subsequently, as months and years passed, smaller fissures appeared in the divided walls.
…
THE DOME:
There is no doubt, and this was amply demonstrated by the evidence, that the defect which caused its loss was one of the choice of material. The chemical expert, George‑Charles Hawley, both in his expert report, in the form of a letter to the architects Desgagné and Côté dated September 8, 1969, and in his testimony at the hearing, was categorical on this point, and there was no cross-examination by the co-defendants. The materials used in making the plastic panels of the dome do not withstand the force of the sun and other atmospheric conditions, they break up, they disintegrate and the damage is permanent.
The first signs of this defect appeared in June, July or more probably August 1964 (cf. examination on discovery, Fr. Gravel, March 30, 1972). This is when the first drops began falling almost directly above the altar. Before these drops appeared, Fr. Gravel had already noticed spots on the dome which he attributed to condensation. In fall 1964 he was obliged to mop the floor of the church, and subsequently to mop various other parts of the building (cf. examination on discovery, March 30, 1972, and proof, April 24, 1974).
When the first shadows or spots appeared on the dome, Fr. Gravel informed the churchwardens and architects, who from then on were aware that the dome was defective (cf. proof, April 24, 1974).
In the case at bar, there is no question that the defect appeared gradually—shadows, spots, drops and so on—as all these developments were interdependent, interrelated, followed one from the other.
IV—Gradual appearance of construction defects
For the second paragraph of art. 2259 of the Civil Code to apply, the essential conditions which it prescribes must occur, namely that the defect is one “which is only gradually revealed”.
That the defect which led to the loss of the dome appeared gradually there is no doubt, as the trial judge found, and this point was not disputed by anyone, at least not in this Court.
It is otherwise with regard to the appearance of the defect which resulted in the loss of the walls. In the opinion of the trial judge, in this case the defect appeared suddenly rather than gradually. The following are some extracts from her reasons in this regard:
[TRANSLATION] Can it be said that because there are three (3) breaks, each in a different wall, the defect appeared gradually? The Court does not think so. This would appear to have been a repetitive, not gradual, process. For the defect to appear gradually, surely its early signs should be interrelated, interdependent or developed one from another. Here, in the case at bar, the second (2nd) break was not dependent on the first (1st), and the third (3rd) on the first two (2).
…
These three (3) “cracks”, according to the eyewitness Roland Tremblay, who was project supervisor for the owner, did not develop, did not worsen (cf. examination on discovery, March 30, 1972).
Further, this observation can be verified from the many photos entered in the record, taken at different times during 1966 (P-60 and P-62, S-1 to S-4).
Can it be argued that the other fissures, which appeared after these breaks, had the effect of making appearance of the defect gradual? Here again, the Court does not think so. They did not result from the design defect, they resulted from tensions due to breaking the arch, which changed the lines of force. This is how the Court understands the testimony of the expert witness Paul Roberge (proof, June 11 and 12, 1974) and Jules Houde (proof, May 26, 1975). These fissures appear to indicate the progress of the collapse, not an evolution of the manifestation of the defect.
It may be argued that when the legislator used the phrase “the defect is one which is only gradually revealed”, he had in mind only gradual progress in time, not in becoming apparent. The Court is prepared to accept this interpretation, which does not assist plaintiff in the case at bar.
Like the trial judge, I would agree that the secondary cracks which appeared after the first three cracks can be regarded as the “progress of the collapse, not an evolution of the manifestation of the defect”.
However, with respect, I cannot agree that the first three cracks which appeared at different times do not constitute a gradual emergence of the construction defect, for each of these three cracks revealed one after the other exactly the same defect which caused them and which resulted in the loss of the walls, just as the various stages in the deterioration of the dome gradually revealed the defect which led to loss of the dome. A crack does not necessarily indicate a defect likely to lead to the loss of a wall. It was only gradually, by the appearance of other cracks, similar and located symmetrically in separate walls, that the nature and extent of the defect was revealed, finally reaching a point where it became apparent to the owner that such a serious defect might result in loss of the walls. Until that moment, the owner might fear such a loss without being certain of it, and all the more, as in the case at bar the architect may continue to assert that they are minor defects which can easily be corrected, and did not hesitate to accept the work despite the appearance of the first crack.
Using the apt language of Bissonnette J.A. in Gingras v. Cité de Québec, [1948] Que. K.B. 171, at pp. 181-82, the coincidence of these three successive cracks resulted not in [TRANSLATION] “periodic or recurring damage, or damage repeated as a result of the same cause, a constant or persisting cause”, but rather [TRANSLATION] “progressive damage, that is, damage which starts, becomes noticeable and develops in a sort of progression deriving all its destructiveness from the same cause, and all the deleterious effects of which are not yet apparent…”.
However, even if I had any doubt in this regard, it would be removed by the fact that each of the three principal cracks took some time to completely break each wall, to the point where finally daylight could be seen through each one. The trial judge relied on the testimony of an expert witness:
[TRANSLATION] As mentioned above, the defect in the masonry could be seen in the first year after work ended, and the expert witness Jules Houde stated that when this phenomenon occurred, it did so quickly and suddenly (cf. proof, May 26, 1975, p. 812).
In fact, this expert witness stated that unreinforced masonry breaks suddenly, without warning, because of the phenomenon of shrinkage, and transforms a wall into wall panels, but he pointed out that there have to be fissures which completely break through the wall.
I agree in this respect with the observations of Pratte J. in Gauthier v. Séguin, [1969] Que. Q.B. 913, at p. 919:
[TRANSLATION] When a foundation wall is split in two from top to bottom, right to its base, it is divided into sections: you then no longer have a single wall, but sections of walls. In such a case, the owner is not required to wait for the worst to happen before making use of article 1688 C.C.
To the layman, at least, the appearance of this kind of defect is gradual when the crack takes some time to break right through the wall.
Indeed, the trial judge appeared uncertain in this regard when she wrote:
[TRANSLATION] Even if the Court, seeking to give the owner the best possible interpretation, considered that the defect had appeared gradually and gave the owner the benefit of the doubt of loss of the walls, this benefit of the doubt would not go beyond the time when the outer sheathing of the walls had opened and daylight could be seen through the opening. This takes us to spring 1965, at which time if the owner had previously had only doubts he now had to confront an obvious fact.
Counsel for the respondents and appellant Lauréanne Harvey Desgagné argued that the gradual appearance of the construction defects is a question of fact which is within the exclusive province of the trial judge. That is not my view. Rather, I think it is a question of characterization and so considerably more than a simple question of fact. It is necessary to apply to the facts the legal concept of gradual emergence under art. 2259, just as, for example, in a civil liability case the Court has to decide whether a person’s act or omission should be characterized as fault within the meaning of art. 1053. This requires making an essentially normative judgment. It therefore does not entail substituting my own view of the evidence for that of the trial judge, but drawing conclusions in law based on the facts which she herself considered to have been established. When an appellate court accepts all the conclusions of fact as such made by the trial judge, as I do, it is in as good a position as he is to characterize those facts.
I conclude that the construction defect which resulted in loss of the walls was one which was gradually revealed, as was the one which resulted in loss of the dome.
V—Starting point of prescription
I quoted above the way in which the trial judge identified and formulated the principal question for decision. The following is the interpretation of art. 2259 of the Civil Code which the trial judge used in answering this question:
[TRANSLATION] We believe that this question should be asked as follows: does the “gradual appearance of the defect” rule take priority over the “loss” rule when the loss appears within the five (5) years mentioned in article 1688, and is the consequence of a defect which appeared gradually?
In order to answer this question, it is, we feel, necessary to look at the intent of the legislator. It appears that the legislator, in enacting article 2259, wished to protect the untrained owner from construction specialists. An owner does not have the knowledge necessary to recognize the existence of a construction defect which threatens the whole or a part of the building. Each time the defect does not result in loss, that is, whenever the loss is not revealed by visible deterioration, the starting point for calculating time is the expiry of five (5) years from completion of the work.
In our view, the legislator did not wish to relieve professionals of their liability for the loss of a building, whether whole or partial, which becomes apparent within ten (10) years of the construction as the result of a defect which began appearing within five (5) years, during which time those professionals were guarantors of their work, as such developments could not have suggested the possibility of loss to the untrained eye.
We feel that this was the legislator’s intent, and it is the reason why he appears to have altered the starting point for calculating the time in which an action can be brought.
What did the legislator actually do in the second (2nd) paragraph of article 2259? Did he fix some other starting point for calculation than the one fixed in the preceding sentence of that article?
The Court does not think so. It would appear rather that in the second (2nd) paragraph of that article, the legislator arbitrarily fixed the “supposed” day, the “presumed” day when the loss became apparent in cases where the defect was gradually revealed, and the loss was not yet recognizable by a layman.
This in our opinion is how article 2259 should be interpreted, for in our view it is the only meaning which complies with the twofold five-year rule: first, regarding the liability of architects and contractors, and second, regarding the time in which an action must be brought; and it is an interpretation which both protects the lay owner and does not harm the interests of construction professionals.
If the legislator had not enacted the second (2nd) paragraph of article 2259, a lay owner who discovers the loss, whole or partial, of his building after five (5) years, during which time professional experts are still responsible for it, whereas the first warning signs of the defect appeared within these five (5) years, could have brought an action for indemnity and been met by a plea of the professional experts based on the fact that the loss was known or became apparent when they were no longer responsible for their work.
This in our view is the reason why the legislator in this case, and only in this case, assumes that the loss became apparent to the layman on the fifth (5th) anniversary of completion of the work, and the starting point for calculating the time necessary for prescription is “the expiration of the five (5) years mentioned in article 1688”.
…
In our opinion, the last sentence of article 2259 applies only in cases where the loss becomes apparent to the layman after five (5) years have expired from completion of the work, and the first indications of the defect have developed within these five (5) years.
Assuming that a bridge collapses in the second (2nd) year after completion of the work, and there was no prior indication of such a catastrophe, the owner in such a case would have five (5) years from the date of the collapse to bring an action for indemnity against the persons responsible for construction, whereas in the case given if we modify the way in which the defect appeared (gradually), the owner would have eight (8) years from the date of the collapse.
The Court feels that the legislator did not intend such a situation, for which in our view there is no logical or legal basis.
What, in the latter case, would be the interest of the owner in waiting to file his claim? Would construction professionals be liable for damage occasioned by the collapse in addition to that resulting from the loss? How could the Court distinguish the one from the other?
The law requires that a right of action arise out of the loss however the latter occurred. In our opinion, all that is necessary for the owner is knowledge of that loss, and once such knowledge is acquired, he must act quickly and promptly, must bring an action within five (5) years from the date of the loss.
Furthermore, this interpretation satisfies two (2) other rules applied by the legislator, namely that when a right of action arises, litigants must act promptly and the case must be submitted to the courts within a reasonable time, where no deadline has been set by law. Knowledge is the starting point for calculating the prescription period for Paulian actions, defamatory libel, redhibitory actions, and so on.
…
With all due respect for the opposite view, the Court cannot subscribe to the interpretation that every time a defect appears gradually, even if loss of the building has become apparent, the starting point of the time is the day after the fifth (5th) anniversary of completion of the work. In our opinion, the legislator did not, in protecting the owner, extend the deadline for expiry of the right, nor did he delay exercise of the right, which originates on the day the loss becomes known.
The proponents of this view, faced with the difficulty of determining when the loss was apparent or became apparent, the day on which the defect became apparent to the eyes of a lay owner (prescription is reckoned by days—article 2240 C.C.) considered that, in the second (2nd) paragraph of art. 2259, the legislator moved the starting point for the time limit on an action for indemnity.
The Court is instead of the view that the legislator left on the judges the heavy burden of weighing the evidence of knowledge and determining the time when the loss was apparent. This is also what the Court does whenever it has to decide a Paulian or redhibitory action, a defamatory libel, and so on.
Counsel for the Fabrique argued that this is a new interpretation, suggesting that it is contrary to precedent and academic opinion. This interpretation is indeed new, for to the best of my knowledge it is the first time it has been expressly formulated and discussed with supporting reasons, by any judge or writer, and adopted by two courts of law. It cannot therefore be said to be contrary to earlier precedent and academic opinion, which in general does not appear to have clearly considered either the possibility of a conflict between the first and second paragraphs of art. 2259 of the Civil Code, or a specific solution to this conflict as suggested by Vallée J., a solution which would be discussed and then adopted or rejected.
Counsel for the Fabrique referred this Court to decisions and judgments such as Laverdière v. Dorval, [1955] Que. Q.B. 367, and Construction St-Hilaire Ltée v. Michaud, [1975] C.S. 651.
However, Laverdière v. Dorval and Construction St-Hilaire Ltée v. Michaud are cases in which the construction defect appeared gradually before expiry of the five years mentioned in art. 1688 of the Civil Code and led to a loss occurring after those five years, such that the application of the second paragraph of art. 2259 did not give rise to the same difficulties as the case at bar.
Counsel for the Fabrique also referred the Court to a passage from the opinion of Brossard J.A. in Donolo Inc. v. St-Michel Realties Inc., [1971] C.A. 536, where after citing the second paragraph of art. 2259 of the Civil Code Brossard J.A., writing the unanimous judgment of the Court of Appeal, wrote at p. 543:
[TRANSLATION] In my opinion, these provisions mean that the right of action for which this article provides a prescription period commences to exist, within the five-year period following completion of the work, from the date on which a defect capable of leading to the complete or partial loss of the building begins to be apparent, and is only prescribed five years after the five-year period following completion of the work.
However, Donolo Inc. v. St-Michel Realties Inc. did not turn on prescription and, although this passage from the reasons of Brossard J.A. can perhaps be read as incompatible with the interpretation given to art. 2259 by the trial judge in the case at bar, it is clearly an obiter dictum.
Hill-Clark-Francis Ltd. v. Northland Grocers (Quebec) Ltd. (1940), 69 Que. K.B. 281, merits closer examination. The trial judge cited a passage from it which all parties relied on as supporting their case. The action concerned a warehouse completed in 1928 and subject to a soil defect which appeared gradually between 1929 and 1933, when access to the building was prohibited. In a unanimous judgment, the Court of Appeal held that the action begun in 1936 was not prescribed. Bond J.A., writing the reasons of the Court, said at pp. 294-95:
As to the plea of prescription. It is true that art. 2259 C.C. fixes a prescriptive period of five years, but the starting point does not appear to be the completion of the building, but the date when the loss occurs. This article provides, that if the defect is one which is only gradually revealed, prescription shall begin to run from the expiration of the five years mentioned in art. 1688; and this latter article refers to a building perishing in whole or in part within five years.
It was only in 1933 that the building was condemned by the Town Engineer, though the defect leading up to this result had been gradually manifesting itself. I do not consider, therefore, that the starting point for the prescriptive period can be carried back farther than that year (1933), when the serious nature of the subsidence was first definitely established, and the action was instituted in 1936. The loss of the building consequently occurred within five years of its construction, and the action was instituted in 1936, that is to say, within five years from the happening of the loss.
As a result, the plea of prescription cannot avail.
Vallée J. observed that Bond J.A. [TRANSLATION] “seems” to have taken the loss as the starting point of prescription, although the defects appeared gradually. This is possible, but the point is not clear. In any event, in that case the year 1933 was both the time when the loss became apparent and when the deadline mentioned in art. 1688 expired. It therefore did not matter whether the first or the second paragraph of art. 2259 was applied: in either case, the plea of prescription would fail.
Indeed, this plea was withdrawn when the case was brought to this Court: Hill-Clarke-Francis, Ltd. v. Northland Groceries (Quebec) Ltd., [1941] S.C.R. 437. Taschereau J., as he then was, wrote the unanimous reasons of the Court. He limited himself to observing, at pp. 443 and 446:
[TRANSLATION] There is no doubt that the building perished in part within five years from completion of the work. The latter was completed towards the end of 1928. The damage appeared in 1929, 1930, 1931, 1932, 1933 and soon.
… A word on the question of prescription mentioned in the pleadings as the last line of defence. Counsel for the appellant properly withdrew this argument at the hearing, for it seems clear that at the time the action was brought, article 2259 C.C. could not be applied.
In my view this decision is not determinative, both because of the ambiguity of the reasons and the particular nature of the circumstances giving rise to the case.
Of all the writers who have commented on art. 2259 of the Civil Code, only one to my knowledge has expressly dealt with the specific question before this Court. This is Thérèse Rousseau-Houle, who examined the