Vermont Construction Inc. v. Beatson, [1977] 1 SCR 758

Supreme Court of Canada

Vermont Construction Inc. v. Beatson, [1977] 1 S.C.R. 758

Date: 1975-12-04

Vermont Construction Inc. Appellant;

and

Gilbert R. Beatson Respondent.

1975: June 23; 1975: December 4.

Present: Laskin C.J. and Martland, Judson, Pigeon and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Contracts—Construction contract—Delay in performing the work resulting from an error in the plans—Liability of the architect—Contractual or delictual liability—Fault of the engineer consulted by the architect—Civil Code, arts. 1053, 1688 and 1689.

Appellant, a contractor, built a recreational centre under a lump sum contract for the City of Pointe-Claire which had retained the services of respondent, an architect, to draw up the plans and supervise the work. When the latter’s representative at the site realized that the framing was not strong enough he advised respondent, who asked the engineering firm which had calculated the stresses to ensure that they were accurate. When the firm found no error, respondent asked to have the calculations checked by a more experienced man. It was then found that an error had been made and that in order to obtain walls strong enough, the framing would have to be substantially reinforced. Respondent changed the plans and instructed the contractor to make the necessary changes, as stipulated in the contract. The contractor subsequently submitted its claim for the expenses caused by the change, amounting to $15,521.80. Respondent recommended the City of Pointe-Claire to pay the contractor the sum of $4,159.32 for extra material and labour, and advised it that it did not have to pay appellant’s claim for the delay resulting from changes to the plans. Appellant contended that respondent was at fault and claimed from him the amount unpaid by the City. The Superior Court and the majority of the Court of Appeal dismissed the claim. Hence the appeal to this Court.

Held (de Grandpré J. dissenting): The appeal should be dismissed.

Per Laskin C.J. and Martland, Judson and Pigeon JJ.: In the absence of any contractual link between the contractor and the architect, appellant can rely only on art. 1053 C.C. As the City compensated appellant for the cost of necessary additional work to complete the

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construction, the remedy for loss caused by the delay in the work can be based only on delictual or quasi-delictual liability.

A contractor’s situation cannot be likened to that of a consumer having purchased a manufactured product. While the architect is not a party to the business contract, he is involved in it. Faults between the contractor and the architect, such as that imputed to the latter, form part of the performance of the contract and cannot be considered offences, unless they are gross negligence.

Appellant seeks to recover from the agent (the respondent architect), responsible for the damages suffered, the part of the loss which it agreed it would not be entitled to recover from the person with whom it made the contract. As a rule, contracts have effect only between the parties thereto, but here the acts of the respondent on which appellant’s claim is based are contemplated in the provisions of the contract and their consequences are stipulated.

Consideration should also be given to the fact that although, under the provisions of the contract or under arts. 1688 and 1689, respondent could not plead as a ground of defence that it was the engineers he consulted who committed the wrongful act, the situation is not the same in the case of delictual liability. In this case, the rule is that one is liable only for his own wrongful acts save in certain exceptional cases, such as committing a wrongful act for one’s servants or employees, and the engineers consulted by respondent definitely cannot be considered as such in this case.

Per de Grandpré J., dissenting: The Quebec courts have based themselves primarily on common law authorities in refusing to recognize the existence of a delictual remedy for appellant against respondent. There is always a danger in using authorities from English law in a civil law matter. In the case at bar, the parties cited no Quebec authority dealing specifically with this point and none is known. One can therefore feel free to refer to French authorities who have recognized the right of a third party to sue the contractor and the architect. As this right seems clearly established, there is no reason why it should not also extend to the contractor if the architect’s mistake caused him a harmful delay, since there is no contractual link between the contractor and the architect.

The agreement between the City and appellant does not change the situation between the contractor and the architect, who remains liable for his fault. The stipulation in favour of the contractor cannot benefit the

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architect, who is not a party to the contract. Nor does anything in this agreement provide that the contractor must completely abandon all remedy against the architect at fault. As such a waiver is clearly an exception to the general rule of liability, it should be expressed in clear terms, which is not the case.

The claim that the error was not a personal error on the part of the architect cannot be accepted since the contract clearly states that he is the only person responsible for the plans and specifications. Further, this argument would apply to only a part of the damages since, once the error was noted, respondent should have corrected the plans without delay, but did not do so. Most of the delay can therefore be attributed to the architect personally.

[Ross v. Dunstall (1921), 62 S.C.R. 393; J.G. Fitzpatrick Ltd. v. Brett et al., [1969] C.S. 144, distinguished; Bank of Montreal v. Boston Ins. Co., [1963] Que. Q.B. 487, aff’d [1964] S.C.R. v. Dominion Electric Protection Co. Ltd. v. Alliance Ass’ce Co. Ltd. et al., [1967] Que. Q.B. 767, aff’d [1970] S.C.R. 168; Felizat c. Henry, S. 1879.1.374; Donoghue v. Stevenson, [1932] A.C. 562; Beaucamp-Wartel c. Léonardi de Galéa et Tournier, Gaz. Pal. 1929.1.150; Nova Scotia Construction v. Quebec Streams Commission, [1933] S.C.R. 220, [1933] 2 D.L.R. 593; Prévert c. Lavigne, [1969] J.C.P. (Semaine juridique), No. 15937; Bilodeau v. A. Bergeron & Fils Ltée and Dominion Ready Mix Inc., [1975] 2 S.C.R. 345; N.Z. Shipping v. Satterthwaite Ltd., [1975] A.C. 154; The London & Lancashire Guarantee & Accident Co. of Canada v. La Compagnie F.X. Drolet, [1944] S.C.R. 82, referred to]

APPEAL from a decision of the Court of Appeal for Quebec, affirming a judgment of the Superior Court dismissing appellant’s action. Appeal dismissed, de Grandpré J. dissenting.

Louis Vaillancourt, Q.C., for the appellant.

Alain Létourneau, for the respondent.

The judgment of Laskin C.J. and Martland, Judson and Pigeon JJ. was delivered by

PIGEON J.—The appeal is against a decision of the Court of Appeal for Quebec affirming the judgment of the Superior Court dismissing appellant’s action. The reasons for the majority were stated by Rinfret and Montgomery JJ.A. Deschênes J.A. dissented.

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Under a lump sum contract dated February 15, 1965, appellant undertook to build for the City of Pointe-Claire a recreational centre for which respondent was the architect. One of the buildings was to house a swimming pool. This building would have no side walls; a large A‑frame roof was to rest directly on the foundation walls just above ground level. The two end walls were to be curtain walls made of plywood sheathing nailed to both sides of light studs. Due to the size of walls, the studs were to be spliced.

With the consent of the Montreal architect who supervised the work for the respondent, who lived in Calgary, appellant used braces instead of splices believing stronger walls would be obtained in this way. However, it was soon apparent that with studs of the specified size, the walls swayed dangerously in the slightest wind. The Montreal architect immediately advised respondent that the curtain walls would not be strong enough with studs as specified.

Stresses had been calculated for the respondent by an engineering firm in Calgary. He told them what his representative had reported, but the engineers replied that their calculations were accurate and that the walls would be strong enough with dimensions as shown on the plans. Respondent therefore ordered the construction completed without change.

However, at the site it was obvious that the framing was not strong enough. The Montreal architect told respondent of this and the latter went back to the engineers and insisted on having the calculations checked by a more experienced man. It was then found that an error had been made and that in order to obtain walls strong enough, the framing would have to be substantially reinforced. Respondent thereupon prepared a change order involving the addition of 2 ins. by 8 ins. and 2 ins. by 6 ins. studs with heavier plywood nailed and glued. This was forwarded to appellant by the Montreal architect representing respondent, together with a letter dated June 21, 1965 instruct-

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ing it to make the changes. The letter concluded as follows:

We have forwarded to you under separate cover 3 copies of Drawing # 3154 SK-1 dated June 15, 1965. As discussed with you on June 15 at the site we wish to have the extra done on a cost and percentage basis as per Article 26D of the Agreement.

According to appellant’s estimate, the work described in its contract with the City of Pointe‑Claire was to be completed on June 20, 1965. In fact, it was not completed until October 15. However, appellant did not submit its claim to the Montreal architect for the expenses caused by the change described in the letter of June 21, 1965, until January 28, 1966. The total amount was $15,521.80 and included $9,760 for the resulting delay. In a letter to the City dated February 25, 1966, the architect advised it that the contractor was entitled to $4,159.32 for the extra material and labour. Appellant protested this decision but finally, on May 20, 1966, it took this amount under reserve, signing the document prepared by the municipal officials in the following form:

CITY OF POINTE-CLAIRE
ORDER FOR EXTRA WORK

Job No. 600	Date: May 17, 1966
By-law No. 1009	Change Order No.: 46

TO: Vermont Construction Inc.

You are hereby instructed to carry out the following work:

To strengthen the end of the pool building in accordance with the architect’s instructions and revised drawing.

Letter of quotation dated Feb. 1, 1966 from Vermont Construction Inc.

For which payment will be made as follows:

Adjusted amount	$ 15,383.32
Less $9,760.00 plus 15% charge for delay in getting decision of the changes	11,224.00
Amount to be paid	$    4,159.32

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See letter Chadwick, Pope & Edge,
Architects, dated Feb. 25/66

Authorized by:	J.P. Coombes
	City Engineer
	Date: May 18/66

Without prejudice to the balance of our quotation revised to $15,383.32 of Feb. 1, 1966

Change order received and agreed to by:

P. Beetz

for contractor

Date: 20-5-66

To complete this summary of the facts, I shall quote the following provisions of the contract:

ARTICLE 25.

Changes in the Work.

The Owner, or the Architect, without invalidating the contract, may make changes by altering, adding to, or deducting from the work, the contract sum being adjusted accordingly. All such work shall be executed under the conditions of the original contract except that any claim for extension or reduction of time caused thereby shall be adjusted at the time of ordering such change. Except as provided in Article 18, no change shall be made unless in pursuance of a written order from the Architect and no claim for an addition to or deduction from the contract sum shall be valid unless so ordered and at the same time valued or agreed to be valued as provided in Article 26.

ARTICLE 26.

Valuation of Changes.

The value of any change shall be determined in one or more of the following ways:

(a) By estimate and acceptance in a lump sum.

(b) By unit prices agreed upon.

(c) By cost and percentage or by cost and a fixed fee.

(d) If none of the above methods be agreed upon, such value shall be determined in the manner set out in Article 44 hereof…

ARTICLE 35.

Delays.

If the Contractor is delayed in the completion of the work by any act or neglect of the Owner, Architect or any Other Contractor or any employee of any one of them or by changes ordered in the work, then the time of completion shall be extended for such reasonable time as the Architect may decide…

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It should now be added that respondent, heard as a witness, admitted that in the initial plan, the building’s curtain walls were not strong enough, that the engineers had made an error in their calculations, and that he could have detected it if he had checked their work. The reason he did not check it is that the accepted practice is to rely on the engineers consulted, whom he considered more competent than himself in the area of stress calculations.

After stating the facts, the trial judge said:

[TRANSLATION] In performing his duties as an architect, defendant was acting only as the mandatory of the City of Pointe-Claire, and there was no contractual relationship between him and the plaintiff. In other words, any claim plaintiff may make as a result of damages sustained in the course of performing its contract must be made against the City of Pointe-Claire, the contracting party, and not against its mandatory.

Moreover, the evidence shows that all the decisions and actions taken were carried out in accordance with the terms of the contract concluded between the City of Pointe-Claire and the plaintiff through change orders and orders for extra work.

In addition, the contract concluded between the owner and the architect confers no rights upon plaintiff.

Plaintiff claims that it has a delictual remedy against defendant.

Having examined the arguments submitted by counsel for the parties on this delictual remedy, and having studied the case law cited below, the Court finds that in the case at bar plaintiff has no delictual remedy against defendant.

On appeal, counsel for the appellant criticized the trial judge for citing only judgments based on the common law in the case on which he relied. Rinfret and Montgomery JJ.A. did not consider this an error in the case at bar, because they saw no basic difference between the civil law and the common law on the point. Deschênes J.A., dissenting, dealt with the case at the greatest length. After citing several cases on the danger of applying precedents based on a different legal system, he summarized two recent cases in which, relying

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on Ross v. Dunstall[1], the theoretical possibility of the co-existence of a delictual and a contractual remedy was recognized: Bank of Montreal v. Boston Insurance Company[2], Dominion Electric Protection Company Limited v. Alliance Assurance Company Limited et al.[3] He then considered the case in the light of arts. 1688 and 1689 C.C., which read as follows:

Art. 1688. If a building perish in whole or in part within five years, from a defect in construction, or even from the unfavourable nature of the ground, the architect superintending the work, and the builder are jointly and severally liable for the loss.

Art. 1689. If, in the case stated in the last preceding article, the architect does not superintend the work, he is liable for the loss only which is occasioned by defect or error in the plan furnished by him.

On this point, Deschênes J.A. concluded as follows:

[TRANSLATION] It is therefore clear in my view, that despite the absence of any strictly contractual link between the contractor and the architect, the contractor has an extra‑contractual remedy against the architect if the latter’s fault in the performance of his contractual obligation to the owner meant that the contractor had to undertake additional work, in order to complete the job in accordance with its own contract with the owner: arts. 1688, 1118 and 1120 C.C.

However, this remedy is restricted to the amount of the loss, as indicated in art. 1688, that is, generally speaking, to the cost of rebuilding or of doing the additional work required in order to complete the project in accordance with accepted standards. This was not the object of the action brought by Vermont.

On the contrary, it was required to carry out additional corrective work and claimed payment for this from the City, which, far from holding Vermont strictly to its undertaking, complied with its request and reimbursed it for the cost of labour and material required for the extra work.

Thus the effect of art. 1688 between Beatson and Vermont was exhausted…

He then went on to consider the remedy based on the general principles of delictual or quasi-

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delictual liability, art. 1053 C.C. He said, inter alia:

[TRANSLATION] One must also be realistic and must not ignore the true facts. The contractor was expected to build in accordance with the plans of the architect hired by the City and it was justified in relying on the competence of the architect. Moreover, the latter was not working on a merely theoretical project. He knew that the plans he was required to prepare were to be used for a specific purpose and that a contractor would be responsible for the transition from a conception to an actual structure.

It is thus a sophism to consider exclusively the contractual link between Beatson and the City. Beatson supplied the plans to a contractor so that, after examination they would be the basis of a proposal, and then be used faithfully in performing the work. To fail to recognize Beatson’s resulting obligation towards the contractor at common law is to deny obvious facts and to refuse to recognize a relationship between two persons that was essential to the realization of the project.

Thus, if in addition to the increased cost of the work, the architect’s negligence resulted in a delay in the work which caused the contractor to sustain damages for which it cannot possibly hold the owner liable, I see no valid reason to prevent the contractor from asserting this specific claim against the architect.

The law required Beatson to provide Vermont with plans that were in accordance with professional standards; it also allows Vermont to hold Beatson liable for failing to fulfill his legal duty. This is a case of “fault… by …want of skill” within the meaning of art. 1053 C.C.

After referring again to Ross v. Dunstall, Deschênes J.A. concluded that appellant’s claim was well founded in law, but, in view of the conclusion of the majority, he did not go on to consider whether the damages claimed were proven.

On appeal and in this Court, appellant referred to the judgment of Mayrand J. in J.G. Fitzpatrick Ltd. v. Brett[4]. There are many analogies between that case and the case at bar. Plaintiff was also a contractor and during the construction of a building had to do extra work in order to make a part of

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the structure stronger. As in the case at bar, this was the result of an error in calculations made by the engineers whom the architect had consulted. Since the owner refused to make any additional payment, an action was brought against it and against the architect and the engineers. The contractor withdrew his action against the owner, and proceeded only against the engineers. The contractor won its case. The Court held that it was subrogated to the architect’s remedy against the engineers and expressed the view that the action was justified by the combined force of arts. 1053 and 1688 C.C.

I do not think that the case is of any help to the appellant. As Deschênes J.A. pointed out, it has received from the City everything it would be entitled to under arts. 1688 and 1689. Mayrand J. does not appear to have awarded more than that, and nothing in his judgment indicates that he relied on art. 1053 to support a claim for damages not contemplated in those articles. Assuming they apply not only to the perishing of the building after completion of the work, but also to additional work required during construction to avoid it, I do not see how this could support appellant’s claim. On the contrary, where these articles do apply, should it not be said that the remedy is restricted to what they provide for? However, I doubt that they apply in such a case. Is this not rather a case concerning exclusively a lump sum contractor’s obligation to deliver the building whereby “the loss of the thing, in any manner whatsoever, before delivery, falls upon himself…” (art. 1684 C.C.).

In the case at bar, the damage for which appellant is claiming compensation consists essentially in that, as a result of a defect in the plans supplied by respondent, the performance of the construction contract proved less profitable (or more disadvantageous) because the duration of the work was thereby increased. The appellant did receive the compensation specified in the contract for the change, but it maintains that this is no compensation for the loss caused by the delay in the work.

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The fault imputed to the architect is therefore said to consist in having supplied to the City defective plans which necessitated a change during construction, when it became obvious that otherwise the building would not withstand the wind.

Appellant would have this situation likened to the marketing of a product with a concealed danger, which was held to be a wrongful act in Ross v. Dunstall. It was no doubt recognized in that case that, independently of any question of contractual liability, a person who markets a dangerous product without giving sufficient warning of a concealed danger may incur delictual liability. In so holding, this Court relied in particular on a decision of the Cour de Cassation, Félizat c. Henry[5]. It also expressed the view that the conclusion would have been the same at common law more than ten years before this view was adopted by the House of Lords in Donoghue v. Stevensen[6].

However, in the case at bar, this Court does not have to consider an architect’s liability to a person injured in the collapse of a badly constructed building. What we do have to consider are the legal relations between the contractor and the architect of a building. Can the fact that the architect supplied plans that did not provide for adequate framing be regarded as a fault giving rise to liability? Even though the architect is not a party to the building contract, he is not a stranger to it. He is an agent of the owner, and his duties are defined in the contract. In addition, arts. 1688 and 1689 C.C. make the contractor and the architect jointly and severally liable for defective construction. Towards the owner, the contractor is the guarantor of defects in the plans as well as in his own work, saving his remedy against the architect, just as the latter is the guarantor of defects in the work, saving his remedy against the contractor: Beaucamps-Wartel c. Léonardi de Galéa et Tournier[7].

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Thus a contractor’s situation cannot be likened to that of a consumer having purchased a manufactured product. By law, a contractor assumes responsibility for defects in the plan. While he does have a remedy against the architect, as noted, this remedy is limited in scope and does not cover the appellant’s claim in this case. By the contract it agreed that it would have no claim against the owner. How then could it be able to make a claim against the architect? If some work is badly done and, as a result the architect supervising the construction for a set fee or percentage, is required to spend more time than usual performing his supervisory duties because of the work that has to be redone, can he claim additional payment from the contractor as damages caused by the fault of the latter’s workmen? In my view, faults of this kind, as between the contractor and the architect, form part of the performance of the contract and cannot be considered offences, unless perhaps they are what is called in France “fautes caractérisées” that is, gross negligence. In Nova Scotia Construction v. Quebec Streams Commission[8], at pp. 601-2, Cannon J. cited English legal theory and case law to the effect that the architect does not guarantee to the contractor the accuracy of his calculations. It is true that the action was against the owner, not the engineer who had prepared the plans for the dam. However, in holding that, with respect to the additional work required which was not provided for in the initial plans, the contractor could recover only the contractual compensation rather than all the expenses incurred, the Court undoubtedly applied the contractual rule.

The Cour de Cassation recently admitted the application of the rules of delictual liability to an action against a contractor and an architect for a defect in construction (using timber that had not been treated with the specific insecticide). It affirmed the judgment allowing the action in warranty by the contractor against the architect on the basis of inadequate supervision: Prévert c. Lavigne[9]. This conclusion is in direct conflict with this Court’s unanimous judgment in Bilodeau v.

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Bergeron et Fils Ltée and Dominion Ready Mix Inc.[10], in which it was held that a supplier of defective materials had no remedy against the inspector who had approved them, although the latter was liable for his negligence to the contractor who had retained his services.

In a certain sense, the case at bar involves a restricted liability clause, as in the Bank of Montreal and Dominion Electric Protection cases. Appellant seeks to recover from the agent responsible for the damages suffered, the part of the loss which it agreed that it would not be entitled to recover from the person with whom it made the contract. It is no doubt true that, as a rule, contracts have effect only between the parties thereto. But here, the acts of the respondent on which appellant’s claim is based are contemplated in the provisions of the contract and their consequences are stipulated. Even though such acts may fail to meet professional standards, they are not unlawful or fraudulent and, in my opinion, they cannot be dealt with as if done apart from any contract, because the contract provides for their possibility and settles their consequences beforehand. At common law, where a stipulation for the benefit of third parties is not admitted as it is in civil law, the effectiveness of a clause in a bill of lading, limiting the liability of stevedores, has recently been recognized, N.Z. Shipping v. Satterthwaite Ltd.[11] A fortiori must this be true in civil law.

Finally, consideration should also, I think, be given to the fact that it was not the respondent, but the engineers whom he consulted, who made the error that caused the damage. It is true that this cannot be a ground of defence under the provisions of the contract or under arts. 1688 and 1689. However, in the case at bar the claim is not based on those sources but rather on the general principles of delictual or quasi-delictual liability, where it is an established rule that a party “charged with negligence can clear his feet, if he shows that he has acted in accord with general and approved practice”: London & Lancashire Guarantee & Accident Co. of Canada v. La Compagnie

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F.X. Drolet[12]. It is the practice for architects to rely on engineers to make stress calculations for the structures for which they prepare plans. The engineers consulted by the respondent were apparently competent. In my view, it has not been shown that he committed a wrongful act by trusting them and not checking their calculations, even though he could have done so. This would not clear him of the liability contemplated in arts. 1688 and 1689, which is imposed by law and does not allow of such an exception, but with respect to delictual or quasi-delictual responsibility, the situation is not the same. The rule is that one is liable only for his own wrongful acts save in certain exceptional cases. In this case, the engineers consulted by the respondent definitely cannot be considered as his employees or servants.

On the whole I would dismiss the appeal with costs.

DE GRANDPRE J. (dissenting)—The principal question raised by this appeal is the following. When the plans and specifications of an architect are erroneous and such an error delays performance of the work, can the contractor, after receiving payment from the owner for the additional work required to make the necessary corrections, take legal action under art. 1053 C.C. against the architect at fault and claim the damages caused by the delay?

The existence of the initial error, which was corrected only with a great deal of effort, emerges from the findings of fact contained in the judgment of the Superior Court and accepted by the Court of Appeal:

[TRANSLATION] The structure that was to house the pool was covered with a self‑supporting A-shaped roof, with its base supported on the ground on either side by a plate resting on a concrete wall.

Two walls were to be put up at each end of the structure, to close the structure and not to support the roof. According to the plans and specifications these walls were to be composed of studs reinforced by splices, with plywood panelling to be attached on both sides of the studs.

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Plaintiff began to put up the wall on May 11, 1965, and noticed at the start that the structure, as shown in the plans and specifications, would not be sturdy enough. In fact, after the plans and specifications had been followed up to a height of sixteen feet, it was found that the wall swayed.

In accordance with the plans and specifications, the vertical studs were attached to one another by splices, as shown in sketch No 27A6/A6, circled on the drawing produced as Exhibit P-18 D, and in Exhibit P-10.

After consulting with Mr. Whiteside, representing the defendant, plaintiff decided to change the arrangement of the studs and adopt the girt method (horizontal members between the studs) instead of the method called for in the plans and specifications.

On May 25, 1965 Mr. R.W. Chadwick stopped construction of the walls at the end of the structure, and contacted defendant on that day or the following day to inform him that, in his opinion, the plans were faulty, and that the walls as erected by plaintiff would not be strong enough and solid enough to withstand wind pressure—no more so than if they had been erected according to the plans and specifications mentioned above.

The problem raised by Mr. R.W. Chadwick was not related to the manner in which the studs had been arranged, but rather to the inadequacy of the information supplied by the architect in the plans and specifications relating to the “stressed skin” process required in clause XII-27 of specification P-15, that is, the arrangement and fastening of the plywood panels that form the structural skin of the walls to resist the force of the wind.

Mr. Chadwick’s opinion is shared by Mr. Jean Damphousse, an architect heard as an expert witness, and by the engineers to whom defendant had initially referred to have plans and specifications prepared for the erection and construction of these walls, and lastly by the defendant himself.

The above-mentioned engineers, after making new calculations, proposed a new, revised plan and specifications (P-2), which was finally submitted to plaintiff on June 22, 1965.

Defendant not only admitted that the original plans and specifications for the erection and construction of the said walls were incomplete and incorrect, but even stated that if he had examined and studied them, he would have been able to realize whether or not the information contained in them was adequate.

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Notwithstanding this error, the Quebec courts, with Deschênes J. dissenting, refused to recognize the existence of a delictual remedy for plaintiff-appellant against the architect‑respondent. In so doing they based themselves, entirely in the case of the Superior Court and partially in the case of the Court of Appeal, on common law authorities, and held, citing Lord Denning’s preface to J.P. Eddy’s Professional Negligence, that the architect’s liability “rests in contract and not in tort; and it avails only the party to the contract and no one else”.

I will not dwell on the assertion that there is no fundamental difference between the two legal systems. The sequence of these reasons attempts to establish that while common law is well expressed in the authorities cited by the Quebec courts, there are major differences between the two. It is nonetheless pertinent to repeat here the caution found in the reasons of Deschênes J. regarding the danger of using authorities from English law in a civil law matter.

Does the common law really say what the Superior Court and Court of Appeal make it say? It is not necessary for me to decide this. I may be permitted, however, to express a doubt based, inter alia, on the decision of this Court in Canadian General Electric Company Limited v. Pickford & Black Limited[13], at p. 43, and on the decision of the House of Lords in Hedley Byrne & Co., Ltd. v. Heller & Partners, Ltd.[14], the latter decision lending weight to the dissenting opinion of Lord Denning in Candler v. Crane Christmas & Co.[15] It is certainly permissible to ask: does not an architect, whose profession is to draw up plans, have, in English law, the duty to prepare them correctly, not only with respect to the owner but to all who, to his certain knowledge, will of necessity be using them? This undoubtedly includes the contractor who is to carry out the work.

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I now come to the heart of the question. What does the civil law have to say, apart from any particular stipulation? The parties have referred us to no authority dealing specifically with this point and I know of none. I therefore feel free to refer to French authorities in the following analysis.

There seems to me to be no doubt that in undertaking to prepare the plans and specifications, the architect had a duty to take reasonable care in his work. The owner was not the only beneficiary of this duty. In carrying out his work, respondent should have seen appellant as a person directly affected by his acts. Our case law contains numerous examples of liability imposed on a defendant whose relation to the damage has its source in a contract to which the victim was not a party.

The relevant principles were stated in Alliance Assurance Company Limited v. Dominion Electric Protection Company Limited[16]. At p. 173 it is stated:

The duty it (Dominion Electric Protection) is blamed for not performing and by reason of which it is alleged to have committed a fault involving liability is not one which falls on everybody; on the contrary, it is solely a contractual obligation.

It is true that the existence of contractual relations does in no way exclude the possibility of a delictual or quasi-delictual obligation arising out of the same fact. However, it is necessary for this that all the elements required to give rise to such responsibility should be found. Obviously, a fault is the first of these elements. For a fault to exist, it is essential, as appears from the wording of Art. 1053 C.C., that there be either a positive damaging and non-justifiable act or the omission to perform a duty towards the injured party.

And at p. 174:

Many cases were cited respecting the responsibility of the manufacturer of a dangerous product towards persons who did not contract with him. In such cases, the source of the responsibility is the breach of the duty lying upon the manufacturer not to put such things on the market and this duty is independent of his contractual obligation, as vendor: Ross v. Dunstall (1921), 62

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S.C.R. 393. The same observation applies to the owner of a leased building towards persons admitted to the premises by the lessee. The responsibility for damages resulting from a defective condition rests with him as owner and exists independently of his contractual obligations as lessor. Examples could be multiplied and in every case where quasi-delictual responsibility has been held to exist, it will be found that its basis is the existence of a duty other than one deriving solely from a contractual obligation.

The case of the manufacturer and the vendor is well known and I will not dwell on it, except to cite two passages from the leading case, Ross v. Dunstall[17]. First, Duff J. as he then was (at p. 396):

Is the appellant responsible? I can see no reason for holding that such responsibility does not arise from the very terms of Art. 1053 C.C. unless it can be successfully contended that the responsibility in such circumstances is limited to that arising from the contract of sale. I see no reason for such a limitation of the effect of the article mentioned. I cannot understand why a delictual responsibility towards those with whom the negligent manufacturer has no contractual relation may not co-exist with contractual responsibility towards those with whom he has.

Then Anglin J., as he then was (at p. 399):

The failure of the appellant to take any reasonable steps to insure that warning of the latent danger of the misplaced bolt—whether it did or did not amount to a defect in design—should be given purchasers in the ordinary course of the sporting rifles which he put on the market in my opinion renders him liable to the plaintiffs in these actions. His omission to do so was a failure to take a precaution which human prudence should have dictated and which it was his duty to have taken and as such constituted a fault which, when injury resulted from it to a person of a class who the manufacturer must have contemplated should become users of the rifle, gave rise to a cause of action against him.

In Modern Motor Sales Limited v. Masoud et al.[18], Taschereau J., as he then was, wrote (at p. 157):

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[TRANSLATION] The vendor of an object which causes damage will be liable not only to the purchaser, but also to the users of that object, even though there is no contractual relationship. The fault is delictual…

See also Cohen v. Coca-Cola Limited[19]. If the manufacturer or vendor are responsible for the product that leaves their hands and causes damage to a third party, it seems to me that the architect has an equivalent responsibility for the product which he puts on the market, namely drawings and specifications.

In the specific case of building contracts, the French courts have recognized the right of a third party to sue the contractor and the architect. This right has been recognized, inter alia, in the case of tenants (Cass. civ. I, Oct. 24, 1967: Bull. civ. 1, No. 309, p. 232) and in the case of a victim in the collapse of a balcony (Caen, April 16, 1947: J.C.P. 47, II, ed. G., 3667).

For its part, French legal theory recognizes the right of the third party to take legal action the contractor and the architect. Thus Mazeaud’s Traité théorique et pratique de la responsabilité civile délictuelle et contractuelle, 6th ed., vol. 1, at p. 178 states:

[TRANSLATION] 144-3. Action for delictual liability brought by a third party and based on the contact.—Once it is admitted that a contracting party cannot be held contractually liable toward a third party, another question arises: can third parties bring a delictual action against the contracting party when, to win their action, they are compelled to rely on the contract? In so doing, are they not running counter to the rule of res inter alias acta…?

The solution lies in a distinction. It is permissible for third parties to take advantage of the existence and non-performance of a contract to which they were not parties, provided they do not thereby attempt to extend to their benefit an obligation that was made only between the contracting parties. To take advantage of the fact that a person has concluded a contract, and even that he has failed to perform it, is merely to take advantage of a fact which exists as such before everyone. To claim to be the beneficiary of a commitment made between the parties is to extend the scope of the con-

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tract, to rely on the contract as a legal instrument, a source of obligations, which is impossible.

It is also interesting to read what the same author has to say at p. 58 of vol. 2, and in particular, at p. 121 of vol. 2, where he deals with remedies between builders.

It therefore seems to me that the right of a third party not involved in the design and construction of the building to proceed against the architect, if an error in the plans has caused him damage, is clearly established. Accordingly, why would this right not also extend to the contractor if the architect’s mistake caused him a harmful delay? There is no contract between the contractor and the architect and it seems to me that one is “another”, in relation to the other, within the meaning of art. 1053 of the Civil Code.

The Cour de Cassation has held on several occasions that the architect and the contractor are third parties in their personal relations. It is true that none of these cases corresponds exactly to the case at bar, or examines the situation of personal damages suffered by a contractor because of a delay resulting from an architect’s error. Nevertheless, as a whole the decisions of the Cour de Cassation are enlightening. In order not to encumber these reasons I refer to Jurisprudence française, 1807-1967, verbo Architecte et Entrepreneur, vol. 1, at pp. 423 and 424, and I would cite here No. 349:

[TRANSLATION] The architect and the contractor, bound by contract to the owner by separate agreements, are third parties in their personal relations and can be liable to each other in quasi-delict, even if the wrongful act giving rise to such liability constitutes at the same time a breach of a contractual obligation toward the owner (Cass. civ. 1, Oct. 14, 1958: J.C.P. 58, IV, ed. G., 162; Bull. civ. I, No. 429, p. 345).

It therefore seems to me to be established, and I say this at the risk of repetition, that the architect’s responsibility is not limited to the owner. If the structure, owing to an error in the plans, causes damage to a third party, a passer-by for example, this third party has the right to bring an action against the architect, since the latter has neglected to ensure that his structure was solid

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when he knew that passers-by could be affected by it. He thus neglected to fulfil a duty toward the injured party. Why should this duty of the architect be limited, as a general principle, to “another” in no way connected with the design and execution of the undertaking? In the case at bar the trial judge found the architect at fault but imputed no blame to the contractor. I fail to see why this contractor, who had to carry out additional work to prevent an accident from occurring, could not recover from the architect the damage caused it by the delay resulting from the error in the plans.

The existence of art. 1688 C.C. in no way modifies this rule, to which it is totally unrelated. This article establishes in favour of the owner absolute liability even in the absence of any fault on the part of the architect and contractor. However, nothing in this text rules out a possible recourse by the latter if the architect has been negligent.

From the foregoing, I conclude that at civil law the following rule applies in a case such as that before the Court:

(1) the contractor and the architect are third parties in relation to each other;

(2) the contractor may bring an action against the architect for delictual damages if the latter has committed a fault, and vice versa.

Nova Scotia Construction Company Limited v. Quebec Streams Commission[20], does not contradict this rule. It deals with another matter, the right of a contractor to supplementary compensation from the owner because the solid rock on which it was to build a dam was at a greater depth than expected. Since art. 37 of the contract stipulated that the contractor was relying solely on the information received from a source other than the respondent Commission, and the contractor was advised by the owner that its tender was too low (much lower than those of its competitors), it is easy to understand why Cannon J. could write (at p. 601):

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All the tenderers, except the appellant, evidently took this uncertain element into account when preparing their tender and reached a unit price after allowing themselves a margin of safety. This appellant neglected to do because it considered, as it alleges at least, that the indications on the plans of the base elevations were positive, certain and constituted an implied warranty on which they were entitled to rely. There is no express warranty in the contract; and, in law, there exist no implied warranty as to the practicability of plans, nor as to accuracy of quantities.

Was the rule modified in the case at bar by the agreement between the City of Pointe-Claire and appellant? I think not. There is no general statement in this agreement that under no circumstances can the contractor bring an action against the architect if the latter is at fault. The only relevant stipulations are arts. 25, 35 and 39:

Article 25. Changes in the Work.

The Owner, or the Architect, without invalidating the contract, may make changes by altering, adding to, or deducting from the work, the contract sum being adjusted accordingly. All such work shall be executed under the conditions of the original contract except that any claim for extension or reduction of time caused thereby shall be adjusted at the time of ordering such change. Except as provided in Article 18, no change shall be made unless in pursuance of a written order from the Architect and no claim for an addition to or deduction from the contract sum shall be valid unless so ordered and at the same time valued or agreed to be valued as provided in Article 26.

Article 35. Delays.

If the Contractor is delayed in the completion of the work by any act or neglect of the Owner, Architect or any Other Contractor or any employee of any one of them or by changes ordered in the work, then the time of completion shall be extended for such reasonable time as the Architect may decide.

Then follow two sentences dealing with the contractor’s liability when the delay is the result of causes not attributable to it, and with its liability when the delay is due to a cause under its control. The procedure is then set out in two paragraphs that do not concern us and the article continues:

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The Architect shall not, except by written notice to the Contractor, stop or delay any part of the main contract work pending decisions or proposed changes either by himself or by the Owner.

Article 39. Damages and Mutual Responsibilities.

If either party to this contract should suffer damage in any manner because of any wrongful act or neglect of the other party or of anyone employed by him then he shall be reimbursed by the other party for such damage. Claims under this paragraph shall be made in writing to the party liable within a reasonable time after the first observance of such damage and not later than the time of final payment, except as expressly stipulated otherwise in the case of faulty work or materials, and shall be adjusted by agreement or in the manner set out in Article 44 hereof, and the party reimbursing the other party as aforesaid shall thereupon be subrogated to the rights of the other party in respect of such wrongful act or neglect if it be that of a third party. Should the Contractor cause damage to any Other Contractor on the work, the Contractor agrees upon due notice to settle with such Other Contractor by agreement or arbitration, if he will so settle. If such Other Contractor sues the Owner on account of any damage alleged to have been so sustained the Owner shall notify the Contractor who shall defend such proceedings at the Owner’s expense and if any final order or judgment against the Owner arises therefrom the Contractor shall pay or satisfy it and pay all costs incurred by the Owner. Provided that if the Contractor becomes liable to pay or satisfy any final order or judgment against the Owner then the Contractor shall have the right, upon undertaking to indemnify the Owner against any and all liability for costs, to appeal in the name of the Owner such final order or judgment to any and all courts of competent jurisdiction.

I find it impossible to accept respondent’s claims that these articles are a full reply to the claim.

Article 25 does not provide that the contractor must completely abandon all remedy against the architect at fault. Such a waiver is clearly an exception to the general rule of liability and as such must be expressed in very clear terms, which is certainly not the case (Canada Steamship Lines

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v. The King[21].) The changes provided for in this clause are modifications to the plans and specifications, which may be dictated by various considerations but certainly not by the architect’s fault. If that was the aim intended, it ought to have been spelled out in full.

Furthermore, art. 35 does not dispose of the case either. It is true that the delay mentioned therein may be the result of an “act or neglect of the Owner, Architect”, and that at first glance this text may include fault. However, that is not the meaning of the words used since, in speaking of “act or neglect”, the parties used the adjectives “wrongful” and “faulty” in art. 39, when they wished to refer to fault and negligence. One should not read more into art. 35 than is expressed therein, and find in it a stipulation regarding negligence. Moreover, even if art. 35 dealt with wrongful acts, it would not dispose of the case at bar. This article is clearly a stipulation in favour of the contractor, in that the owner cannot in the circumstances it mentions force the contractor to complete the work within the time periods stipulated in the contract. This article in no way deals with the rights which the contractor may have in relation to a third party, including the architect, as the result of a delay imposed on it through the fault of this third party.

That leaves art. 39, which is the only one that mentions wrongful acts and neglect. Nothing in it supports the conclusion that the contractor has waived its recourse against the architect in advance. This clause is limited to dealing with cases in which the parties to the contract, namely the owner and the contractor, have committed a wrongful act: nothing more.

In view of this situation, I conclude that the general rule has not been altered by the agreement and that it applies to the case at bar. I would add, although this is not the basis of my conclusion, that Chadwick, the architect selected by respondent to supervise the work, would apparently have recommended payment of the damages, or at least part of them, if he had not wrongfully denied the existence of the architect’s fault. In his letter to

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the municipality dated February 25, 1966, Chadwick certified that the contractor was entitled to the sum of $4,159.32, the cost of the additional work resulting from the change in the plans and specifications, but he refused to acknowledge the validity of the claim for delay:

The contractor is not entitled to be paid an amount for delay in the general progress of the work because any delay which may have occurred was the consequence of the contractor’s own act in not following the Architect’s plans.

After the contractor-appellant indicated that this definitely was not the case, Chadwick maintained his position in a letter dated March 28, 1966. However, we know that the cause of the delay was something else altogether and that it must be found in the architect’s error.

If, as I believe, the relevant general rule favours the contractor and it has not been changed by the agreement, should the claim be set aside anyway because the error in the plans was not a personal error on the part of the architect, but an error of the engineer consulted by the architect? I cannot accept this claim of respondent. The contract between the City of Pointe‑Claire and appellant states that the work undertaken by the latter must conform to the plans and specifications of the architect Beatson, and that the latter has all the rights and powers attributed to the architect in the standard form contract existing at the time. As a matter of fact, although the contract was evidently concluded only between the municipality and plaintiff, reference is made to the architect in almost every article, and the architect is the only third party identified by name and address. Under the circumstances, it seems to me that appellant was perfectly justified in assuming that the architect was the only person responsible for the plans and specifications, and that the delegation made by the latter to other persons could not be pleaded against the contractor. Further, even if this argument were accepted, it would apply to only a small part of the damage. On or about May 11, 1965 the architect’s representative, Whiteside, noted along with the contractor that the plans and specifications were defective. On May 25, Chadwick stopped the work. The engineer’s error was therefore obvious and the architect, who was respon-

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sible for the plans and specifications, had a duty to correct it without delay. As the trial judge points out, however, nothing was done before mid-June, despite repeated communications by Chadwick and Whiteside with the respondent. Finally, on June 22, the contractor received the necessary documents enabling it to resume work. Accordingly, even if it were possible, as respondent contends, to conclude that the initial error cannot be attributed to the architect, the latter should bear the consequences of his failure to make the correction without delay.

There remains the question of prescription, which I will not dwell on. Respondent contends that since the suit was filed on March 28, 1967 and the plans date back to the fall of 1964, delictual action is prescribed by virtue of art. 2261 of the Civil Code. I cannot accept this argument. The starting point of the prescription can only be May 1965, the date on which appellant began to use the part of the plans and specifications at issue in the case.

Since I am of the opinion that the architect is liable for the damage sustained by the contractor, I must deal with the question of damages. Since the action was dismissed in both the Superior Court and the Court of Appeal, the damages were not assessed there. However, the trial judge did make the following observation:

[TRANSLATION] The evidence establishes that construction of these walls took fifty‑eight working days instead of ten working days—forty-eight more working days than anticipated.

What is the monetary value of these forty-eight days? Appellant maintains that the delay caused it to lose $312.52 per day, and bases itself on the testimony of its secretary-treasurer and a consulting architect, Damphousse. Then, principally through Chadwick’s testimony, respondent claims that there are no damages. In my opinion, however, the value of Chadwick’s testimony is considerably lessened by his letters of February 25 and March 28, 1966, to which 1 have already referred. If at that time he really did not believe in the existence of damages resulting from the delay, why did he refuse to recognize them, giving as his sole reason that these damages had been caused

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through the fault of the contractor himself? After studying the body of evidence on this point, I have come to the conclusion that the amount of $11,224 mentioned by appellant in his claim of February 1, 1966 is a resonable assessment of the damages.

I would accordingly allow the appeal and, setting aside the judgment a quo, I would uphold the action and order respondent to pay appellant the sum of $11,224 with interest since the date of service, the whole with costs in all courts.

Appeal dismissed with costs, DE GRANDPRÉ J. dissenting.

Solicitors for the appellant: Cousineau, Vaillancourt &. Cadieux, Verdun, Que.

Solicitors for the respondent: Létourneau, Forest, Raymond, Létourneau & Roy, Montréal.