A Commentary on Recent Legal Developments by the Opinions Group
of McCarthy Tétrault LLP
In Bourque v.
Poudrier, 2013 QCCA 1663, the Quebec Court of Appeal has
extended the scope of in solidum liability to ensure recovery for
damages resulting from professional negligence.
In the Bourque case, the claimants wished to purchase
land that was free of any rights of way or other servitudes. The
seller fraudulently confirmed that no such rights existed on the
land. Further, the buyers' notary erroneously confirmed the
absence of such rights, despite the fact that he had participated
in the preparation of the deeds granting them. After completion of
the sale, the buyers discovered the servitudes and failed in
negotiations to have them removed or relocated. Accordingly, the
buyers sued to annul the sale and for in solidum condemnation of
the seller and the notary for repayment of the purchase price.
Under Quebec law, in solidum liability arises where two or more
wrongdoers commit distinct faults, often arising from different
legal sources, causing one prejudice to the victim. As regards the
victim, in solidum liability has the same effect as joint and
several or solidary liability in that it permits the full recovery
against any of the wrongdoers. In solidum liability arises where
the exceptional regime of joint and several liability does not
The first instance judgement in Bourque refused to
condemn the notary on an in solidum basis for return of the
purchase price because the legal effects of annulling the sale
could only apply between the parties to it. The Quebec Court of
Appeal reversed this decision.
The Court of Appeal indicated that in solidum liability had been
applied to award damages in similar cases of professional
negligence where the contract in issue was not annulled. Further,
the court stated that in solidum liability is based in equity and
intended to be flexible enough to protect a creditor from the
effects of the insolvency of one of several debtors. It is also
intended to avoid a multiplicity of proceedings. The Court of
Appeal recognized that the notary's fault was causally
subsidiary to the fraudulent misrepresentation of the sellers.
Nonetheless, the liability of the notary was not subsidiary or
conditional upon the seller's failure or inability to reimburse
The Court of Appeal stated that the quantum of liability of the
sellers and notary was the same, but the source of liability was
different. The sellers were liable to return the purchase price
based on the nullity of the sale. The notary was liable to the
buyer for damages resulting from the notary's fault, i.e.
payment of the purchase price for a property that was unusable. The
court recognized that the buyer could not pursue the notary to
obtain the equivalent of the purchase price without at the same
time suing the seller to annul the sale. In this regard, the Court
of Appeal recognized that its decision is an extension or
adaptation of in solidum liability in the pursuit of an equitable
The Bourque decision appears to be the first in Quebec in
which liability among debtors on an in solidum basis is
interdependent. The point of in solidum liability is to permit a
creditor to pursue individually any of multiple defendants who have
caused the same damage through distinct faults. The claimant in the
Bourque could not have pursued the notary alone for damages
equivalent to the purchase price. The claimant would have been
unjustly enriched if compensated for the price while keeping the
property purchased. It is important to note that the Bourque
decision arose in the context of professional negligence. It may
provide a basis for applying in solidum liability to other
instances of professional negligence resulting in annulment or
termination of a contract with a third party.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).