In Quebec, there are two kinds of property: immovables and movables. The notion of ‘immovable work’ includes all immovable structures of considerable size. Any constructions and works of a permanent nature would be characterized as immovables. The interpretation of an immovable is not restricted to buildings, but rather to all work immovable in its nature which surrounds the erected immovable structure.
During the construction of an immovable, numerous players can be called upon to contribute their professional know-how in order to execute the work to the highest standards of their craft. Besides the contractor and the subcontractors, members of professional associations, such as architects and engineers, are also an integral part of assuring the successful completion of an immovable work, as well as its quality for the years to come.
The contractor who builds an immovable work in Quebec is not the only one who is at risk if the project goes awry. Under the Civil Code of Quebec, professionals who design and supervise a work are presumed liable for the loss of the work (A). In addition, the concept of ‘loss of the work’ is broad and includes a partial loss. Professionals who do not supervise work may also be liable. However, the owner’s burden of proof under such circumstances is heavier (B).
Can professionals be forced to pay the entire bill for remedial work, without sharing it with the contractor and the subcontractors? Yes (C). This is why professionals need liability insurance when they design immovable works in Quebec. Furthermore, lawyers acting for these professionals must control the applicable legal framework in order to correctly assist professionals facing a lawsuit.
A. Professionals’ liability in the case of loss of an immovable work when the professionals designed and supervised the work
The professionals’ liability of those who supervise work in the construction industry is governed by Section 2118 of the Civil Code of Quebec (hereinafter “CCQ”):
Unless they can be relieved from liability, the contractor, the architect and the engineer who, as the case may be, directed or supervised the work, and the subcontractor with respect to work performed by him, are solidarily liable for the loss of the work occurring within five years after the work was completed, whether the loss results from faulty design, construction or production of the work, or the unfavourable nature of the ground. [emphasis added]
To incur professional liability under Section 2118 of the CCQ, the owner’s burden of proof is reduced in that he only needs to demonstrate that the loss of the work occurred within five years.
With respect to the immovable work, the case law interprets the notion as broadly defining every building and its accessories such as plumbing, roofing, soil, parking, ventilation, masonry and/or pool. In addition, the concept of ‘loss of the work’ is broad and includes partial loss. This loss has to be serious; it has to make the building useless in light of its purpose, whether it be complete or partial. In the case of partial loss, courts tend to be quite restrictive since the loss needs to be serious and severe. Therefore, minor issues that do not jeopardize the integrity of the building or its use are not considered a partial loss.
The second condition is that the loss of the immovable work needs to occur within five years of the end of work. This delay is calculated from the moment the building can be used for its purpose, not necessarily from the completion of the work.
Once the owner has discharged its burden of proof, professional liability is presumed and it is up to the professionals to prove that the defects in the work did not result from any erroneous or faulty expert opinion or plan they may have submitted, or from any failure to direct or supervise the work. To demonstrate this, professionals will seek to prove that contractor and subcontractors did not build the work in conformity with the plans and specifications. Professionals may, in addition, escape liability by proving that the defects result from decisions imposed by the client in selecting the land or materials, or the subcontractors, experts, or construction methods.
As explained above, Section 2118 of the CCQ engages the professional liability of architects and engineers who supervised the work. The liability can be borne by the individuals themselves, or the firm that provided the services. Furthermore, there is no need for a contractual relationship between the owner and the professionals: professionals acting as subcontractor of the professionals bound by a contract to the owner can be held liable under Section 2118.
The court may divide the liability as the case may be between the contractor, the professionals, and the subcontractor. The professionals’ level of liability will depend on their level of supervision and involvement. For example, in Massif inc. (Le) v. Clinique d'architecture de Québec inc.,1 the Quebec Court of Appeal did not hold the architects liable because they had been diligent enough in their duties and could not have detected the alleged defect given the limits of their partial supervision mandate.
B. Professionals’ liability in cases of loss of an immovable work when the professionals designed the work but did not supervise it (Section 2121 CCQ)
Professional liability can also be engaged when a professional does not supervise a worksite, if the loss was caused by a defect or error in the plans or in the advice provided, and the work was executed in conformity with those plans or advice.
The owner’s burden of proof is heavier in this context. Indeed, it is not sufficient for the owner to establish that the architect or engineer prepared the plans and specifications and that the building was defective. It is essential for the owner to establish that the work was, in fact, constructed in accordance with the architect’s plans and specifications; that is to say, that the plans and specifications were followed, and that the problem resulted from some defect or error in the plans and specifications.2
C. Recent decision: Société immobilière du Québec v. Hervé Pomerleau inc.3
In a decision handed down in 2013, the Quebec Superior Court held the professionals, SNC-Lavalin and IMS Experts-Conseils, liable for the loss of the work pursuant to the legal framework, discussed above.
In this case, the Société immobilière du Québec (hereinafter “SIQ”) hired the defendants, two engineering firms for the design of the structure and foundations, as well as the supervision of the work, a firm of architects for the architectural design, Shermont for the completion of a soil study, and Pomerleau as general contractor, for the purpose of extending a hospital in 2001.
Soon after the delivery of the project in 2003, the building started to display major construction defects: doors were not closing correctly, cracks began to appear close to the roof, and the floors were increasingly inclined. After some inefficient corrective work by the contractor, further investigation revealed that the building was gradually sinking into the ground due to the wrong choice of foundation for the type of soil, and that without major corrections the extension would be completely lost. SIQ thus sued, for the cost of the corrective work, all parties involved in the conception and the construction of the hospital, invoking the professionals’ liability under Section 2118 of the CCQ.
Ms. Justice Blondin found the professionals, SNC-Lavalin and IMS Experts-Conseils, liable. Between the two, SNC-Lavalin was held liable for all the damages plus interest. Ms. Justice Blondin found that the professionals did not respect the rules of art because they extrapolated soil data found in the Shermont soil study, leading to errors in the design. Pomerleau and the architects were not held liable since the problem was caused by errors in the plans.
As demonstrated by the cases above, professionals such as architects and engineers can be held 100% liable for the loss of an immovable work. Therefore, their insurers must be aware that the risk is very real and that they may be responsible for paying the entire amount of the loss, as well as for the costs associated with defending the professional.
The insurer must be aware that the professional whom they are insuring may be sued within eight years following the end of the work in question; a grace period of five years after the termination of the work, and an additional three years of prescription allotted to introduce a lawsuit.