Contractors and Construction Professionals Can Exonerate Themselves From Their Five-Year Legal Warranty

The Quebec Court of Appeal’s decision in SNC-Lavalin inc. v. Société québécoise des infrastructures (Société immobilière du Québec)1 is significant for construction law in more than one respect. It is the first time, to our knowledge, that a general contractor, an architect and an engineering firm (a soil-testing laboratory) have been absolved of all liability towards a project owner in a situation where a building had, without question, a serious defect that threatened its very viability. The five-year legal warranty period of course applied to all involved but nevertheless, despite some strong presumptions, they were able to avoid its application. It is also, to our knowledge, the first time in construction law matters since the coming into force of the current Civil Code of Québec (the “CCQ”) in 1994, that the argument to the effect that a subsequent fault by a professional absolves another professional of all legal liability (an argument known as novus actus interveniens) has been successfully used. 

Let’s review the facts: a new annex of a hospital in Trois-Rivières began to sag dangerously shortly after it was first occupied. Remedial work costing some $6 million was required. Its owner, the Corporation d’hébergement du Québec sued the architect, the general contractor, the soil-testing laboratory and the structural engineer. The architect and the general contractor succeeded in rebutting the presumption of liability under Article 2118 CCQ by proving they had committed no fault. The problem was structural in nature and involved the bearing capacity of the land on which the structure was built. The soil-testing laboratory also escaped all liability by successfully arguing that even if it had made an error, its recommendations were not followed by the structural engineer, such that the latter should be found solely liable. 

The Court of Appeal has thus confirmed that the five-year legal warranty under Article 2118 CCQ is not an obligation of result from which it is impossible to exonerate oneself.

1 2015 QCCA 1153

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