Most recently, the Quebec Superior Court emphasized the importance for public bodies, because of their statutes and their missions, to respect the requirements of transparency and rigor in their management. For a public body, this obligation implies maintaining "frank and objective relations with its staff, partners and taxpayers in general" [1] .

In JVC Equipment Inc. c. Central Québec School Board [2] , the plaintiff, Équipements JVC inc. (" JVC "), claimed a sum of $ 283,538.53 from the defendant, the Central Québec School Board (" School Board ") representing the balance of the price of remediation of contaminated soil completed in the fall of 2012. The The School Board, for its part, argued that it owed nothing to JVC and claimed the sum of $ 277,283.70 for the fees incurred as a result of JVC's allegedly wrongful performance of the work.

Facts

On August 16, 2011, following a call for tenders, the School Board awarded JVC a contract to carry out remediation work on the contaminated soils at the MacLean Memorial School site in Chibougamau (" École "), With a view to extension work.

In October 2011, once the work was completed, analyzes carried out by consultants commissioned by the School Board revealed some shortcomings in the work done by JVC.

A dispute arises between the parties as to the responsibility incumbent on each of them in this situation. In order to put an end to this dispute, the parties sign, on July 18, 2012, a document entitled "Transaction and Release" (" Transaction ") which aims to establish the parameters within which the work of recovery will have to be carried out by JVC and the amounts paid to it by the School Board for this work.

The Transaction provides, inter alia, that, conditional on the parties' full and consistent performance of their respective obligations, the parties will obtain a full, complete and final discharge of any recourse they may have to each other arising from the initial work or work resumed.

Before the start of the work, JVC presents its method of work on the construction and location of a retaining wall to allow proper soil compaction and begins work.

The recovery works, which give the expected results, take place during the months of September and October 2012. The School Board pays an amount of $ 131 934.27 to JVC, but a balance of $ 283 538.53 of the amount agreed in the Transaction remains unpaid. JVC is therefore suing the School Board for this balance.

The School Board denies these amounts to JVC and claims, in addition, by a counterclaim, damages in the amount of $ 277,283.70 representing the additional costs paid to the professionals and the general contractor authorized in the course of the work. Expansion of the School for the modified design of the foundation, required by the methods used by JVC.

decision

After a detailed analysis, the Tribunal first finds that JVC is entitled to obtain payment of $ 116,773 out of the $ 283,538.53 it claims for the work performed.

With respect to the counter-claim of the School Board, the Court concludes, after dismissing JVC's argument of prescription of the remedy, that it is unreasonable since it is manifestly ill-founded and constitutes an excessive and unreasonable use of the procedure. . It was clear that this request was unfounded and doomed to failure from the start. In doing so, the school board should have kept to a simple defense and recognized the sums it had already admitted.

Indeed, the Court holds, in the light of the evidence, that the School Board accepted the method of work employed by JVC. The content of the Transaction and the minutes of the meetings are proof of this acceptance and nothing in the quote or the Transaction can support the claim that the wall was not in conformity with the specifications or that the additional costs incurred by the School Board when Expansion of the School could be attributed to JVC.

The School Board never advised JVC that the method used was not in accordance with the specifications or that it held it responsible for the additional costs incurred by it, and it accepted without reserve the JVC's takeover work whose objective Soil decontamination has been achieved.

The Court therefore dismissed the Board's counterclaim and ordered it to pay JVC the sum of $ 7,500 in damages resulting from this abusive procedure.

Conclusion

Abuse of process can take many forms: it may be an unnecessary remedy, excessive judicial proceedings or the multiplication of delaying or futile procedures, an application manifestly ill-founded or the defense of a nonexistent right. This decision recalls the fundamental principle that good faith must govern the conduct of the parties and the importance of resorting to the courts only for the purposes for which they are destined to "make the law and the truth triumph" [3] .

Cet article est paru dans l’édition du vendredi 17 janvier 2019 du journal Constructo.