In a recent judgment (Optimum société
d'assurances inc. c. Trudel, 2013, QCCA716), the
Court of Appeal reiterates that the obligation of a buyer to give a
notice of the defect to the vendor in virtue of Article 1739C.c.Q.,
is an essential condition to the success of a legal action
instituted based onthe warranty of quality. The Court in fact
confirms that in cases where no exception can be raised to justify
the execution of the remediation work before sending a notice (for
example in urgent matters), the failure tosend such notice to the
vendor is fatal to the buyer's action.
The Court of Appeal confirms the decision rendered by the
Superior Court which had granted the vendor's Motion to
dismiss. The latter was sued by the buyer for hidden defects. He
argued that the buyer failed to send him a notice in virtue of 1739
C.c.Q. and that based on this argument alone, Optimum's
subrogation claim should be dismissed.
The underlying facts were as follows.
On November 22th, 2008, a fire completely destroyed
Optimum's Insured's house. On November 25th, 2008, the
adjuster mandated by Optimum visited the premises and suspected
that the fire had been caused by a wrongful installation of a
wood-burning stove. The adjuster called an expert to validate his
theory. The expert confirmed, on or about November 27th, 2008, that
the cause of the fire was in fact the improper installation of the
Between January 15th and 19th, 2009, Optimum proceeded with the
demolition of the house and began its reconstruction, which ended
in March 2009. Optimum indemnified its Insured on or about May
13th, 2009. The next day, Optimum put on demand the vendors of the
building, Trudel and Lafond invoking that they were bound by the
legal warranty and that they were liable for the hidden defect
affecting the property, namely the wrongful installation of the
woodburning stove. On May 20th, 2010, the vendors put on demand
their own vendor, Ms. Dumoulin.
Optimum instituted its subrogation action against Trudel and
Lafond on February 8th, 2011 and against Dumoulin on February 28th,
2012. Trudel, Lafond and Dumoulin respectively presented a Motion
to dismiss based on the fact that they were never put on demand
before the house was demolished and that they were not able to
assess the cause of the fire.
The Superior Court concluded that Optimum's failure to send
a notice before proceeding to the demolition of the building
deprived the defendants of their right to obtain a counter
expertise and, furthermore, to present a full defense.
The Court of Appeal reiterated that the demolition of the
building did not did give Optimum the right not to send the notice
required by section 1739 C.c.Q. and that the buyer could not, on
the one hand, oppose to the vendor the defective installation of
the stove and, on the other hand, argue that the vendor does not
have the right to verify the origin of the fire. Optimum's
action was dismissed with costs.
That being said, it is important to note that the Court of
Appeal insisted on distinguishing the consequences of the failure
to send a notice in matters raising the warranty of quality issue
and the ones raising faulty installations. On this subject, the
Court mentions the decision rendered in the matter of
Nergiflex (2010 QCCA 1868) where it
concluded that the failure for a claimant to inform the installer
of a stove of its potential liability did not constitute an
automatic bar to instituting legal proceedings; it was an argument
that could be raised in defense to affect the evidence brought up
by the claimant's expert.
This decision is quite surprising since the Court of Appeal and
the inferior courts have most often been very reluctant to grant,
at a preliminary stage, a Motion to dismiss based on the only
argument of the absence of a notice. This decision will certainly
be of help to the Defendants who wish to obtain an early dismissal
of a case when they were not put in demand by the claimant in a
timely manner. As such, it is absolutely important to make sure
that all third parties be put in demand as quickly as possible
after a loss, more importantly in files where the right of action
relies on the warranty of quality.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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