INTRODUCTION
Québec’s legal warranty regime imposes strict obligations on professional sellers, largely owing to the presumptions set out in article 1729 of the Civil Code of Québec (C.C.Q.).
Since CNH Industrial Canada Ltd. c. Promutuel Verchères, société mutuelle d’assurances générales, it is trite law that a buyer who purchases a product from a professional seller benefits from a triple presumption when the product stops working or deteriorates prematurely compared to identical or similar products. The presumptions are that a defect exists, that it existed before the sale, and that there is a causal link between the defect and the malfunction or deterioration of the product.
Although this triple presumption is sometimes taken as a presumption of liability, it can be rebutted in certain circumstances. The Superior Court of Québec’s decision in 164019 Canada Inc. c. Porta-Max Système Inc. illustrates this well.
FACTS
The plaintiff, 164019 Canada Inc. (“164019”), operates several businesses, including one in the field of excavation and crushing. In spring 2020, 164019 contacted the defendant, Porta-Max Système Inc. (“Porta-Max”), about purchasing a crusher.
In July 2020, the parties entered into a contract for the sale of a used crusher. The contract stated that “the unit is in excellent working condition and ready for operation.”
The crusher was delivered to 164019 on September 18, 2020, and put into operation shortly thereafter. However, problems quickly arose. The crusher operated only intermittently and for short periods. 164019 then discovered that the crusher was not equipped with an alternator, which meant that the machine’s batteries had to be constantly recharged. To address this issue, 164019 purchased and installed an alternator.
Despite these adjustments, problems with the crusher persisted. The machine kept shutting down and overheating, its performance falling short of what 164019 had expected. On October 22, 2020, about five weeks after delivery, the crusher stopped working altogether. The crusher operator believed that the engine had seized.
POSITIONS OF THE PARTIES
The parties agreed that Porta-Max was a professional seller. 164019 therefore argued that the presumptions under article 1729 C.C.Q. applied in its favour and had not been rebutted. Article 1729 C.C.Q. provides that: “In a sale by a professional seller, a defect is presumed to have existed at the time of the sale if the property malfunctions or deteriorates prematurely in comparison with identical property or property of the same type; such a presumption is rebutted if the defect is due to improper use of the property by the buyer.”
Porta-Max contested the claim, arguing that the crusher’s engine failure resulted from post-sale modifications by 164019 and improper use.
ANALYSIS
The Court first acknowledged that the presumptions under article 1729 C.C.Q. applied, given that Porta-Max was a professional seller and the premature breakdown of the crusher. It noted, however, that these presumptions can be rebutted. The Court therefore turned to the cause of the crusher’s engine failure in October 2020.
164019 provided no evidence on this issue. Porta-Max, however, filed an expert report. The expert retained by Porta-Max concluded that the engine failure was caused by the presence of fuel in the engine oil. The fuel reduced the oil’s viscosity, impairing its ability to adequately lubricate the engine’s mechanical components. According to the defence expert, this situation resulted from the addition of an electric pump to the fuel supply system. By increasing fuel pressure, the pump allowed fuel to infiltrate the engine and mix with the oil.
The Court accepted this uncontradicted evidence. The next question was whether the electric pump that caused the engine failure had been installed before or after the crusher was sold.
After weighing the testimony of the key witnesses, the Court concluded that the electric pump was not part of the crusher when Porta-Max sold it; it was installed by 164019. The Court therefore found that the defect caused by the added electric pump did not exist when the crusher was delivered.
The Court then turned to the issue of the crusher’s maintenance. The expert retained by Porta-Max believed that the engine oil level was excessively high. In the expert’s view, daily oil-level checks would have detected fuel contamination in the oil, especially since 164019 had noticed the crusher’s excessive fuel consumption.
The Court agreed. It concluded that daily oil-level checks—required by the operator’s manual and the instructions posted on the crusher itself—would have allowed 164019 to detect an excessively high oil level and prevent irreparable engine damage. The Court held that Porta-Max had proven improper use of the crusher by 164019.
CONCLUSION
Following its analysis, the Court dismissed the claim brought by 164019 Canada Inc. Although the crusher stopped working shortly after the sale, the Court concluded that this failure was not caused by a latent defect that existed at the time of sale. Rather, it resulted from the addition of components after the sale and the buyer’s improper use of the equipment.
The Court acknowledged, however, that the crusher did not fully meet the representations made at the time of sale, particularly in regard to its condition and operating capacity. For this reason, the Court exercised its discretion on legal costs and ordered each party to bear its own costs.
This case is a reminder that professional sellers can rebut the triple presumption under article 1729 C.C.Q. when the cause of the failure or breakdown is established. This will notably be possible when the failure or breakdown results from alterations made on the product by the buyer or misuse of the product by the buyer.