On January 8, 2016, the Superior Court of Quebec rendered a judgment in favour of the engineers and the general contractor involved in a construction project. The Court dismissed with costs an action in damages by the owner, thus confirming that the plaintiff must bear the consequences of choices made in order to save money on a construction project.
The plaintiff was a family business operating several stores that sold auto parts. In 2004, it decided to relocate one of its establishments in Montmagny. It therefore retained the services of an engineering firm in order to prepare the structural plans. Faced with two choices with regard to the type of concrete slab to install (one being a slab on grade and the other being structural), the plaintiff chose the one on grade, saving approximately $100,000.00. Unfortunately, there was unstable soil in that area and the plaintiff started to progressively notice the sagging of the concrete slab, reaching 50 to 75 millimeters in certain areas, as well as other visible issues.
The issue before the Court was whether the plaintiff alone should bear the consequences of its choice, having been duly informed by the engineers of the risks that needed to be considered.
The Court applied two previous judgments and concluded that article 2118 C.C.Q. applies only where the risk of loss of the work is present due to significant deterioration jeopardizing the integrity of the work. In this case, however, despite the fact that the concrete slab on grade was an important element, the solidity of the building was not at risk, and there was no significant deterioration which could cause a serious loss; thus, 2118 C.C.Q. did not apply.
With regard to the liability of the engineers, it was established that they duly notified the plaintiff of the importance of proceeding with a complete specialized laboratory soil study. At least two meetings were held during which the issues of the nature of the soil in that region and the ensuing problems were discussed. Furthermore, two soil studies of neighbouring properties were brought to the plaintiff's attention. Nevertheless, the plaintiff still wanted to avoid the costs related to conducting such a study. The engineers ultimately proceeded with their mandate after having given two prior written notices to the plaintiffs regarding the risks that needed to be considered. They decided that they could perform their mandate as long as the steel structure was on driven piles. The Court concluded that the engineers did not breach their obligations and added that even if the presumption under article 2118 C.C.Q had been applicable, the engineers would have been exonerated under 2119 C.C.Q.
As for the liability of the general contractor, the plaintiff did not meet its burden of proof. Indeed, as soon as the contractor received the bid documents, he contacted the engineers regarding the choice of the concrete slab on grade and was in turn reassured that the plaintiff had made this decision after having been duly informed of the risks. The Court came to the same conclusion as for the engineers.
In conclusion, this decision forces owners to take responsibility for the choices they make in order to save money. It also reminds engineers and other professionals of the importance of putting agreements with clients in writing.