Dutil, Cotnam, Moore

Appeal from a Superior Court judgment dismissing an originating application to exercise an anticipated recursory action by way of a call in warranty and recourses in warranty. Dismissed.

In the pyrrhotite case, the appellants were held liable in solidum along with other co-defendants for the damage caused to 857 residential immovables (Deguise c. Montminy (Sup. Ct., 2014-06-12 (judgment corrected on 2014-07-31 and on 2014-11-06)), 2014 QCCS 2672, SOQUIJ AZ-51081725, 2014EXP-1966, J.E. 2014-1112) (main judgment). They were apportioned 70% of the liability, which was confirmed on appeal (SNC-Lavalin inc. (Terratech inc. et SNC-Lavalin Environnement inc.) c. Deguise (C.A., 2020-04-06), 2020 QCCA 495, SOQUIJ AZ-51681330, 2020EXP-956) (main appeal judgment). The appellants brought an action in warranty against the respondents, cement company Lafarge Canada Inc. and De Grosbois, a trained geologist employed by Lafarge. They alleged that they committed faults that make them liable for the damage caused to the victims. The trial judge concluded that they were not at fault.

The [translation] “presumption of truth” is the use of facts as a means of proof in a subsequent case. The normative effect of the judgment is therefore not at issue, but its [translation] “evidentiary effect”. Here, several elements allowed the judge to disregard factual findings accepted in the main case. First, the respondents were not parties to these proceedings and therefore could not adduce evidence or test that of the appellants and the other parties. Next, the nature of the issues and the object of the debates differed. The main case concerned separate faults attributed to persons and entities other than those in this case. Last, significant additional evidence, including new exhibits, testimony, and expert reports was adduced regarding the respondents in this case.

Article 1539 of the Civil Code of Québec (S.Q. 1991, c. 64) (C.C.Q.) does not apply because the respondents’ defence, i.e., absence of fault, was not common to all the co-debtors. Even though the risk of the concrete degrading due to oxidation of the aggregate containing pyrrhotite was scientifically known in 2002, the respondents committed no fault due to the nature of their intervention and their limited mandate. This defence is distinguished from the state of knowledge alone and is personal under article 1539 C.C.Q.

Next, although the judge was vague when describing the law on extra-contractual liability, which may be engaged in the absence of contractual fault, this did not result in reviewable errors in the judge’s conclusions on this issue. The judge’s conclusions on the various allegations against De Grosbois and Perreault, a Lafarge engineer, must be upheld. The conduct of both professionals was consistent with what a reasonable, prudent, and diligent person would have done in the same circumstances.

Last, the judge did not err as to the application of the rules of evidence governing the assessment of the faults alleged. This involved the presumption of receipt set out in section 31 of the Act to establish a legal framework for information technology (CQLR, c. C-1.1) concerning De Grosbois’s receipt of a fax. However, a document may be transmitted without being communicated, as was the case here. Regardless of whether the fax was received, it is in fact knowledge of this document that could have been the source of De Grosbois’s duty to follow-up. Unless it is established that De Grosbois’s failure to read that fax itself constitutes a fault by De GrosBois or Lafarge, the judge could not find that a fault had been committed.

Text of the decision: http://citoyens.soquij.qc.ca