June 10, 2019
Rochette, Dutil, Mainville
Appeal from a judgment of the Superior Court allowing an exception to dismiss and an application for dismissal for abuse of procedure. Allowed in part.
The trial judge was of the view that the appellants’ action based on a construction defect was prescribed and dismissed it pursuant to art. 168 of the Code of Civil Procedure (CQLR, c. C-25.01)(C.C.P.), as well as art. 51 thereof.
Because the appellants could no longer rely on the regime of presumed liability in cases involving construction defects, they had to base their action on the general regime of contractual liability. Contrary to the former regime, however, a proceeding in contractual liability does not crystallize only once the injury appears noticeably for the first time within the meaning of art. 2926 of the Civil Code of Québec (S.Q. 1991, c. 64), as the judge’s reasons might indicate. Rather, the prescription period begins to run according to the general rule set forth in paragraph 2 of art. 2880 C.C.Q., which in this case is from the time all the evidence allowing an action in contractual liability to be instituted was known or could reasonably have been known. In their originating application, however, the appellants submitted that they learned of the existence of the contractual fault and established the causal link only after subsequently receiving the expert’s report. In that context, and bound by the allegations and the exhibits, the judge could not allow the exception to dismiss. That error, however, had no bearing on the outcome of the appeal because the appellants’ theory was then confronted with a preponderance of evidence to the contrary. Therefore, their action could be dismissed pursuant to art. 51 C.C.P. as a clearly unfounded proceeding.
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