The importance of initial fault for parties to a construction project

In a decision rendered on February 11, 20201, the Superior Court reiterated the principle established by the Supreme Court of Canada, that between professionals and building contractors, liability ultimately rests solely with the party responsible for the initial fault. 

In the present matter, a motion for dismissal was held by a building contractor against a professional and his insurers whom tried to force him to intervene in an action instituted by the developer. The facts can be summarised as follows: 

The developer of a multi-residential project (the “Plaintiff”), duly represented by its lawyers and experts, filed an action against its architect and the architect’s insurers (the “Defendants”) for alleged errors and omissions in the design of balcony soffits (the “Claim”). 

The Defendants then asked that the general contractor be forced to intervene as a co-defendant in the proceedings, essentially arguing that in the event that the Plaintiff’s arguments—arguments that they vigorously deny—were to be upheld at trial, the general contractor should be held jointly responsible, both because of a deficient installation and because of his duty to advise the developer. 

Justice Martin F. Sheehan of the Superior Court concluded that the Defendants’ action was inadmissible on two grounds. 

First of all, he observed that the Claim alleges professional misconduct on the part of the architect, but does not contain any allegation of improper installation by the general contractor. 

Therefore, he concluded that the Defendants’ proceeding against the general contractor is purely hypothetical. 

Then, citing the following passage from Davie Shipbuilding Ltd. et al. v. Cargill Grain Co. Ltd. et al.2, the court ruled out the possibility that the architect may seek to share responsibility with the contractor for a breach arising from the design of the work: 

“If the circumstances justify application of the rule in favour of the owner, the persons who performed the work must be held jointly liable. However, as between themselves, the burden will finally be on the one responsible for the basic fault. If there was a defect in the plans or in the architect’s part of the transaction, he must indemnify the contractor. Conversely, if the loss results from the construction as such, the architect has a complete remedy against the contractor. The fact that the architect and the contractor had certain duties to check the other’s work changes nothing; the primary cause must still be sought.” 

Consequently, the following principles should be kept in mind: 

  • In certain circumstances, the property owner may seek joint and several liability of the parties involved in a construction project, irrespective of the nature of the alleged breach. This situation applies in particular when the property owner invokes the solidarity conferred for his sole benefit by Section 2118 of the Civil Code of Quebec, in the application of the five-year guarantee against the loss of the work;
  • However, between themselves, intervening parties may not seek the liability of the other party for a failure that is initially attributable to one of them, which is to say that building contractors remain responsible for the performance of their work and professionals remain responsible for their proper design, regardless of each party’s duty to check the other party’s work; 
  • If the original error is the one of the developer/property owner, there is no doubt that this party would have to bear the resulting damages;
  • In all cases, the developer/property owner remains liable towards the defendant(s) in the action instituted for the acts and omissions of his other co-contracting parties. 

These principles are particularly important as they are intended to limit actions to only those parties concerned in fact and in law, as it is well-known that increasing the number of parties only adds to mounting costs and delays in our judicial system.

1 Développements Nordelec (Phase II) Inc. v. Lemay Co. Inc. et al., court file no. 500-17-108112-197 (S.C., February 11, 2020).
2 [1978] 1 S.C.R. 570.

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