Partial Site Supervision

In Quebec, architects and engineers are subject to various types of liability. In addition to their respective contractual and ethical obligations, they are subject to statutory liability imposed by the Civil Code of Quebec (CCQ).

Under chapter VIII of the Civil Code, “Contract of Enterprise or for Services,” the liability of architects, engineers and contractors is twofold.

On the one hand there is Article 2118 CCQ concerning “the loss of the work.” It reads: “Unless they can be relieved from liability, the contractor, the architect and the engineer who, as the case may be, directed or supervised the work, and the subcontractor with respect to work

performed by him, are solidarily liable for the loss of the work occurring within five years after the work was completed, whether the loss results from faulty design, construction or production of the work, or the unfavourable nature of the ground.”

In other words, a client benefits from a five-year warranty from the time the work is completed against what is commonly referred to in Quebec as major defects. Such defects are construction flaws that might compromise the structural integrity of a building.

On the other hand there is Article 2120 CCQ dealing with “poor workmanship.” It reads: “The contractor, the architect and the engineer, in respect of work they directed or supervised, and, where applicable, the subcontractor, in respect of work he performed, are jointly liable to warrant the work for one year against poor workmanship existing at the time of acceptance or discovered within one year after acceptance.”

Poor workmanship can refer to any number of construction defects resulting from non-compliance with plans and specifications, or non-compliance with accepted practice.

Now, whereas Article 2118 CCQ is a “public order” provision, Article 2120 CCQ is not. This distinction in Quebec law means that while parties theoretically have the option to “contract out” of the obligations imposed on them by Article 2120 CCQ, Article 2118 CCQ is imperative. In other words, Article 2118 applies no matter if there is a contractual stipulation to the contrary.

In either case, the Quebec Civil Code imposes professional liability on architects and engineers with regards to construction defects for work that they directed or supervised.

But this question arises: What extent of liability exists for a professional who is less involved on a given site, such as a professional who is hired to provide only partial supervision?

The Quebec Court of Appeal has addressed these important issues in the case known as Le Massif inc. v. La clinique d’architecture de Quebec inc. Although the case deals specifically with a firm of architects, the same reasoning applies to engineers.

A chalet with ice dams

In the spring of 2001, architects at the Clinique d’architecture de Qubec were assigned the task of preparing the plans and specifications of a ski chalet built atop a mountain called the Massif located in Quebec’s Charlevoix region, east of Quebec City. It was a major project, with a budget of $3.5 million. The client also charged the architects with the task of partially supervising the work.

The chalet officially opened its doors on December 26, 2001. Right from that first winter, the chalet’s management watched ice dams forming all around the building’s roof. Experts were called in to carry out tests, which revealed the existence of thermal bridges. Corrective measures were finally taken in the summer of 2004.

What inevitably followed was a lawsuit filed against the architects claiming a sum of over $1 million. The Superior Court of Quebec dismissed the suit, holding that the impugned defects amounted to instances of poor workmanship that the architects could not have discovered even if they had made more frequent visits to the construction site. The client appealed.

Quebec Court of Appeal sets things right

This matter provided the Quebec Court of Appeal with the opportunity to remind us that contrary to statutory liability for the “loss of the work” (2118 CCQ), liability pertaining to “poor workmanship” (2120 CCQ) is not the domain of “public order.” Therefore liability for “poor workmanship” is apportioned according to the contractual obligations between the parties, and even according to the circumstances unique to a construction site.

In Le Massif inc. v. La clinique d’architecture de Qubec, the court held that a certain liability should be apportioned to the client who, despite the accelerated speed at which the work was completed, refused to intensify the architects’ supervisory role to that of onsite supervisors.

The judge stated: [translation] “The architects diligently carried out their supervisory role according to the terms of the contract between the parties. In other words, I believe that the client may not invoke its own wrongdoing while holding the architects to a more rigorous standard.”

This Quebec Court of Appeal decision tolls the bell for the notion of out-and-out professional liability, and it gives rise to the possibility of a “reasonable diligence” defence for engineers and architects, depending upon the particular circumstances of each situation.

It appears henceforth clear in Quebec that, with regards to liability for “poor workmanship,” architects and engineers charged with supervising a site will be liable for poor workmanship only to the extent of their mandate and their actual involvement on site. Clients must take note of this reality when establishing a budget for their work.

The Quebec Court of Appeal decision appears to be in line with the case law in the other Canadian provinces. That is, the consultant will only be responsible where contractor performance issues arise while the consultant is carrying out its duties under its contract with the owner — subject of course to any limits on liability set out in that contract.

Antonio Iacovelli and Mathieu Turcotte practise law in the Montreal office of Miller Thomson LLP.