Leclerc v. Massie (J.N.) & Fils Limitée, [1971] SCR 377

Supreme Court of Canada

Leclerc v. Massie (J.N.) & Fils Limitée, [1971] S.C.R. 377

Date: 1971-02-01

Thérèse Leclerc (Defendant) Appellant;

and

J.N. Massie & Fils Limitée (Plaintiff) Respondent.

1970: April 30; 1971: February 1.

Present: Fauteux C.J. and Abbott, Judson, Pigeon and Laskin JJ.

ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Lease and hire of work—Building contract—Architect supervising work—Certificate signed by architect—Defect in construction—Partial loss—Foundation wall—Liability of contractor—Civil Code, art. 1688.

In 1961, the defendant decided to do some renovating to a building which she owns. The building

[Page 378]

contract was awarded to the plaintiff. The architect, who was given the most extensive powers, expressed his approval of the plaintiff’s work and signed a certificate accordingly. The defendant refused to pay the contractor and met the action which the latter brought by a plea of incomplete and deficient performance as well as by a cross-demand for faulty performance, instability of the construction, defects in the foundations and consequent damages. Expert’s reports prepared, at her request, by two engineers specializing in construction indicated many defects. Finally, in 1965, the defendant spent $3,300 to have the front foundation wall rebuilt. The Superior Court found that the plaintiff had substantially performed the work, allowed the principal demand and dismissed the cross-demand. The Court of Appeal upheld the judgment on the principal demand and allowed the cross-demand in the amount of $337, representing the cost of some small items provided for in the contract but not carried out. The defendant appealed to this Court.

Held (Pigeon and Laskin JJ. dissenting): The appeal should be dismissed.

Per Fauteux C.J. and Abbott and Judson JJ.: The essential questions to be determined in this litigation are questions of fact, and on those facts, the plaintiff was not liable in damages to the defendant under art. 1688 of the Civil Code.

Per Pigeon and Laskin JJ., dissenting: The deteriorations observed in the front wall by the defendant’s two experts appear to be established by a mass of evidence which cannot be ignored, and is made up not only of the reports by the two experts, but also includes the fact that the defendant found it necessary to have the front foundation wall rebuilt less than five years after the work was completed. This deterioration of the front wall that occurred within five years and required the rebuilding of the foundation to insure the stability of the construction, is a partial loss of the building which calls for the application of art. 1688 of the Civil Code. Whenever the principle of that article applies, the architect’s approval does not afford a defence to the contractor.

APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, province of Quebec[1], varying a judgment of Prévost J. Appeal dismissed, Pigeon and Laskin JJ. dissenting.

[Page 379]

Bernard K. Schneider, for the defendant, appellant.

J.P. Grégoire, Q.C., for the plaintiff, respondent.

The judgment of Fauteux C.J. and of Abbott and Judson JJ. was delivered by

ABBOTT J.—The essential questions to be determined in this litigation are questions of fact. On the facts as found by the trial judge, and affirmed by the Court of Appeal¹, appellant was condemned to pay to respondent $7,938 as the balance due under a written contract for the renovation of an old residential property in the City of Montreal belonging to appellant.

In my opinion on those facts, respondent was not liable in damages to appellant under art. 1688 of the Civil Code and that view was shared by Pratte J., who delivered reasons on behalf of himself and his colleagues in the Court below.

I am in agreement with the judgment and reasons of the Court of Appeal and would dismiss the appeal with costs.

The judgment of Pigeon and Laskin JJ. was delivered by

PIGEON J. (dissenting)—Appellant is the owner of a rather old building on St. Hubert St. in Montreal; there are two shops at street level, and her medical office is upstairs. In 1961 she decided to do some renovating and had plans drawn up by an architect, Jolicœur, stressing that the work was to be done as economically as possible. The building contract was awarded to the respondent. The architect, who was given the most extensive powers by this contract, expressed his approval of respondent’s work and signed a certificate accordingly, without taking appellant’s dissatisfaction into consideration. She refused to pay the contractor. The latter brought an action that was met by a plea of incomplete and deficient performance as well as by a cross-demand in which a total amount of $10,035 was claimed for

[Page 380]

faulty performance of the work, instability of the construction, defects in the foundations and consequent damages.

It should be pointed out at once that in 1962 appellant had an expert’s report prepared by Raymond Matte, an engineer specializing in construction work. His report states, in particular:

[TRANSLATION] D. The wall section fronting on St. Hubert St. projects beyond its foundation wall, in the same way as the side walls. The building, which was extended in front of the existing stone wall, was not extended downwards to a depth of 4′6″ below sidewalk level: consequently, the windows and windowpanes lack proper support and are cracking.

Appellant’s lawyer sent this document to the architect, who forwarded it to respondent but took the following attitude in his letter to the lawyer, dated September 10, 1962:

[TRANSLATION]… I do not feel up to setting foot in the place again or holding any conversation with Dr. Leclerc.

* * *

Even if the building shows some defects—after more than a year—I admit that the general contractor’s responsibility is not ended, but first of all the contractor must be able to finish his work, and to do this, he must be paid for the work done to date.

In April 1964, the appellant had another expert’s report prepared by an engineer specializing in construction. The report, with supporting photographs, indicated among other things a cracked windowpane in the front of the building, woodwork starting to rot, water damage to the ceiling over the entrance, a step cracked along the whole front of the building, etc. Finally, the evidence establishes that in the summer of 1965 appellant spent $3,300 to have engineer Matte rebuild the front foundation wall on St. Hubert St.

The Superior Court found that the respondent had substantially performed the work, and allowed the principal demand for this reason. As to the cross-demand, the main grounds of the judgment were the following:

[TRANSLATION] WHEREAS architect Jolicœur was at all times the mandatary of Dr. Leclerc; whereas J.N. Massie & Fils Limitée undertook to follow the architect’s instructions and did so; whereas Dr.

[Page 381]

Leclerc has never repudiated her mandatary, has no complaint against him and has not brought him before the courts; and whereas this attitude on the part of Dr. Leclerc would be sufficient cause to dismiss her plea to the principal demand, and her cross-demand;

In a unanimous decision, the Court of Appeal[2] upheld the judgment on the principal demand and allowed the cross-demand in the amount of $337, representing the cost of some small items provided for in the contract but not carried out.

Regarding the passage from the Matte report cited above, Pratte J., with the concurrence of his colleagues, said:

[TRANSLATION] However, it was the architect who decided how things were to be done. The plaintiff had no choice but to follow his instructions, and the standard of his work is not challenged; further, at the trial the architect and his consulting engineer vindicated the methods they adopted (j.c: pp. 371, 396 et seq. ). In these circumstances, it is clear that plaintiff’s liability is not in issue.

This reason appears to me to be ill-founded because, like that of the Superior Court, it does not take account of the joint and several liability of the contractor and the architect. It is quite true, as Pratte J. points out, that because there was no way of knowing what would be found underground, the plan is very sketchy and the specifications are written so as to allow the architect a certain leeway in directing the method of carrying out the underpinning. However, this could not be taken as authorizing the architect to permit the contractor to perform the work in a manner contrary to sound building practices, and which would not guarantee structural stability. The deteriorations observed in the front wall by appellant’s two experts appear to me to be established by a mass of evidence which cannot be ignored, and is made up not only of the reports by the two experts, but also includes the fact that appellant found it necessary to have the front foundation wall rebuilt less than five years after the work was completed.

In order to hold that there were no structural defects in the front wall, it would be necessary to regard engineer Matte as an exploiter, since he

[Page 382]

undeniably had the appellant spend $3,300 for this work. He gave a very clear explanation, with supporting sketches, of the nature of the structural defect which he discovered in the foundation of the front wall, which defect he blamed for the other problems, particularly the repeated breakage of large windowpanes.

Architect Jolicoeur, heard during the very short proof on the principal demand, first contended that he was told of only one instance of breakage of a large windowpane which occurred the year the work was completed and was repaired by the sub-contractor. Subsequently, he had to admit that he had been informed of a later breakage, because the Matte report had been sent to him. The explanation he gave in rebuttal is such that it must be quoted:

[TRANSLATION] Q. TO what do you attribute this breakage?

A. There are several reasons; either faulty installation of the windowpane, or, for example, unusual heat in a Thermo-Pane: there are two panes, and in these two panes the change of temperature must not be too sharp.

Q. What is there between the two panes?

A. Air.

Q. Is that what insulates them?

A. Yes, except that around the two panes they put a humidity-absorbing product to prevent condensation, and this may be badly laid, that is to be shown. It may be due to the fact that drapes or Venetian blinds are placed behind the window, which catch the heat of the sun and bring the temperature up to 98 or 102 degrees, if you were to check it with a thermometer: that makes one pane expand more than the other, on one side more than the other.

* * *

Q. Mr. Jolicœur, do you wish to say that when you have Thermo-Pane windows of a certain size, it is dangerous to put drapes or Venetian blinds behind them?

A. It is not recommended.

Q. It may go so far as to cause breakage?

A. Oh yes, indeed. To sum up, I am convinced that it did not crack on account of the structure.

It is quite inconceivable that, after preparing plans for a new front wall of premises used as a doctor’s office, and providing for large windowpanes extending the whole width (except for

[Page 383]

necessary piers), an architect should subsequently contend that such a construction implies that no drapes or blinds may be placed inside, or the panes will break. Surely everyone knows that in such circumstances blinds or drapes are indispensable, as well as a source of heat in winter. Moreover, the repeated breaks were serious enough for appellant’s insurer to withhold all coverage until the situation was corrected. Taking into consideration all the evidence regarding the front wall, I have to conclude that in this instance the trial judge clearly erred in accepting the implausible contentions of the architect over the testimony of the appellant’s experts.

It does not appear necessary to consider whether, with respect to the defects in the foundation of the front wall, we should adopt the line of reasoning correctly taken by the Court of Appeal in refusing, despite the certificate issued by the architect to compel the appellant to pay the cost of some items of work which had not been performed. In my view, the deterioration of the front wall that occurred within five years and required the rebuilding of the foundation to ensure the stability of the construction, is a partial loss of the building which calls for the application of art. 1688 of the Civil Code. Cases on the meaning to be given to this provision show clearly that this is how it should be interpreted. In Gauthier v. Séguin[3], the headnote begins as follows:

[TRANSLATION] In the expression “If a building perish in whole or in part”, found in Art. 1688 of the Civil Code, the term “perish” is to be interpreted as including any substantial damage to the structure of the building; it is not to be interpreted, in cases of partial loss, as applicable only when a part of the building has collapsed, has been destroyed in some way or cannot be used for the purposes for which it was intended; otherwise, the protection which the aforementioned Article is designed to provide for the owner would be illusory most of the time.

Whenever the principle of art. 1688 applies, it is clear that the architect’s approval does not afford a defence to the contractor.

[Page 384]

Their Lordships are of opinion that the case of Brown v. Laurie is a conclusive authority against the proposition that the work having been done according to the terms of the contract and under the superintendence of an architect selected by the employer, the builder is exempted from the liability which would otherwise attach to him. (Wardie v. Bethune[4], Canadian Consolidated Rubber Co. v. T. Pringle & Son Ltd. & The Foundation Co. Ltd.)[5]

Appellant contends that the same principle should be applied to one of the side walls which her experts regarded as inadequately supported by the underpinning done. The situation is not at all the same for the wall in question as for the front wall since the evidence does not show that the stability of the construction was affected at that point; further, the appellant did not consider it necessary to have the work recommended by her experts carried out. It therefore appears to me that for this wall, as for all the other defects complained of by appellant, she has not adduced sufficient evidence to offset the effect of the architect’s certificate.

For these reasons I am of the opinion that the amount of $337 allowed on the cross-demand by the Court of Appeal should be increased by the sum of $3,300 paid to Raymond Matte for rebuilding the foundation of the front wall.

Consequently, I would allow the appeal and vary the judgment of the Court of Appeal by increasing the amount allowed on the cross-demand to $3,637, and reducing the judgment on the principal demand to $4,638, with interest from September 10, 1961, the whole with costs against the respondent in all courts, except the costs on the principal demand in the trial Court, which should remain against the appellant.

Appeal dismissed with costs, PIGEON and LASKIN JJ. dissenting.

Solicitor for the defendant, appellant: B. Schneider, Montreal.

Solicitors for the plaintiff, respondent: Grégoire, Dansereau, Daoust, Duceppe, Beaudry, Désormeau & Marquis, Montreal.