Bilodeau v. Bergeron & Fils Ltée, [1975] 2 SCR 345

Supreme Court of Canada

Bilodeau v. Bergeron & Fils Ltée, [1975] 2 S.C.R. 345

Date: 1974-06-21

Marcel Bilodeau (Defendant) Appellant;

and

A. Bergeron et Fils Ltée (Plaintiff) Respondent;

and

Dominion Ready Mix Inc. (Defendant) Respondent.

1973: February 13; 1974: June 21.

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

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

Contract—Construction—Contract concluded by contractor with civil engineer and concrete company—Concrete not in accordance with specifications—Damages—Liability—Extent and nature.

The contractor, A. Bergeron et Fils Ltée, undertook by contract with the Quebec Department of Highways to build a viaduct in accordance with plans and specifications. The specifications indicated the composition and properties of the concrete to be used in constructing the girders of the viaduct, and required that the contractor retain, for himself and at his own expense, the services of a civil engineer to make laboratory analyses and supervise the various stages of preparation of the concrete. Accordingly the contractor, Bergeron, concluded a contract with respondent Dominion Ready Mix Inc., which undertook to supply him with concrete in accordance with the specifications, and another contract with appellant, a civil engineer, who assumed the supervision duties. Five girders were refused by the engineer Mayrand, the representative of the Department for accepting or refusing construction work, because the concrete did not conform to the standards set in the specifications. The contractor was required to replace these girders, and told appellant and Ready Mix that he was holding them liable for the damages suffered by him as a result. As no agreement was reached between the parties, Bergeron brought an action against Ready Mix, appellant and Mayrand. The Superior Court dismissed the action with respect to Mayrand, but ordered appellant and Ready Mix jointly and severally to pay Bergeron $18,305.63 damages, ordering set-off as between this debt and the debts owed to each of the defendants, and held that Ready Mix should ultimately bear the whole weight

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of compensation, since as between Bilodeau and Ready Mix the former was only secondarily liable. The Court of Appeal disposed of the appeals of Bilodeau and Ready Mix, and affirmed the judgment of the Superior Court, except that in contrast with the latter, the Court held that Ready Mix and Bilodeau should bear, as between themselves, an equal share of the liability. Bilodeau is appealing this decision.

Held: The appeal against A. Bergeron et Fils Ltée should be dismissed; the appeal against Dominion Ready Mix Inc. should be allowed only to the extent of reinstating the reserve in the Superior Court judgment.

Appellant did not establish that there was any fundamental error in the concurrent findings arrived at on the facts by the two provincial courts. There is therefore no reason to intervene on the facts as found, which justify the Court ordering appellant and respondent Ready Mix to make compensation for the damage.

As to the reserve made in the trial judgment, it is sound. This is an action for contractual damages brought by A. Bergeron & Fils Ltée against two defendants for failure to perform distinct, different and mutually exclusive obligations which each, by separate agreement with the plaintiff, has assumed towards the latter: Ready Mix having undertaken, inter alia, to deliver to the site concrete having a specified property, and Bilodeau having undertaken, inter alia, to accept on the site only concrete of this type. By failure to perform the obligation relevant to him, each party caused the whole damage, and must compensate the contractor, by whom it was sustained, for all the loss. However this fact does not necessarily mean that a real joint and several bond exists between them. They were not jointly and severally bound, whether by contract, expressly or implicitly, or by the law, to provide what each had separately contracted for with the contractor. With respect to Ready Mix, Bilodeau was a third party, bound by no obligation to the latter, and the contract for supervision concluded between Bilodeau and the contractor in no way relieved Ready Mix of the obligation it had undertaken toward him to make and deliver such concrete.

The Century Indemnity Company v. W.G. Rogers and Anna Fitzgerald, [1932] S.C.R. 529; City of Verdun v. Sun Oil Company Ltd., [1952] 1 S.C.R. 222, referred to.

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APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, Province of Quebec[1], affirming a judgment of the Superior Court, except with regard to a reserve made in the judgment of the latter. Appeal allowed only to the extent of reinstating this reserve.

O. Laflamme, Q.C., for the defendant, appellant.

André Gagnon, Q.C., for the defendant, respondent.

André Trotier, Q.C., for the plaintiff, respondent.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—The following is a brief summation of the basic facts and proceedings giving rise to this appeal.

Respondent A. Bergeron et Fils Ltée, hereinafter referred to as the contractor or Bergeron, undertook by contract with the Quebec Department of Highways to build, in accordance with plans and specifications, a viaduct at the intersection of the Trans-Canada Highway and Highway 49, at St-Joseph-de-Brandford, county of Nicolet.

The specifications, prepared on behalf of the Department, indicated, among other things, the composition and properties of the concrete to be used in constructing, on the site of the proposed viaduct, the twelve main girders to be included in the viaduct, and further required the contractor to retain, for himself and at his own expense, the services of a civil engineer to make laboratory analyses and supervise the various stages of preparation of the concrete.

Pursuant to the foregoing agreement, the contractor Bergeron concluded a contract with respondent Dominion Ready Mix Inc., hereinafter referred to as Ready Mix, which undertook to supply him with concrete in accordance with the specifications, and another contract with appellant Marcel Bilodeau, a civil engineer doing business under the firm name of Sondage et Laboratoire du Québec Enr., who assumed the supervision duties.

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Construction of the viaduct began in the summer of 1963. The concrete was prepared at the Ready Mix factory, located at St-Romuald, about 45 miles from the construction site, and the mixing of this concrete took place in mixer trucks, during the journey from the factory to the site.

It so happened that five girders, made from the concrete delivered by Ready Mix and accepted by Bilodeau’s employees, were refused by Marc Mayrand, the representative of the Department for accepting or refusing construction work, because the concrete did not conform to the standards set in the specifications, in that it did not have a resistance of 5,000 lbs. per square inch twenty-eight days after pouring. Bergeron was then required to replace these girders. He so apprised Ready Mix and Bilodeau, and told them he was holding them liable for the damages suffered by him as a result. As no agreement between them was found possible as to the recovery of the replacement cost, Bergeron brought an action against Ready Mix, Bilodeau and Mayrand.

In the Superior Court Mr. Justice Antoine Lacourcière exonerated Mayrand, the engineer, of all responsibility. As to the two other defendants, the learned judge held, with respect to the questions of fact, that it was an established and uncontradicted fact that the concrete used in constructing the five rejected girders did not conform to the standards set in the specifications, because it did not have a resistance of 5,000 lbs. per square inch twenty-eight days after pouring; that the principal and most likely cause of this deficiency, lay in the excessive mixing time, in summer, during the long journey of 45 miles in a heat which activated the setting; that such a deficiency was foreseeable and that it should and could have been prevented by adding a retardant to the concrete. With respect to the law, the trial judge considered that each of the two defendants had failed in the obligation he had undertaken towards the contractor Bergeron: Ready Mix, by not supplying con-

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crete in accordance with the specifications, and Bilodeau, by improperly performing the supervision he had undertaken to perform. The Court dismissed the principal contention of Ready Mix that this deficiency in the concrete resulted primarily from improper curing by the contractor, and also dismissed the alternative contention of Ready Mix that if liability towards the contractor did exist, it rested exclusively with Bilodeau, whom he had hired as an inspector, and to whose orders and instructions Ready Mix was, as it alleged, subject. On this point the Court concluded, instead, that this hiring represented an additional guarantee to the contractor, which in no way relieved Ready Mix of its obligation to conform with the specifications, and that in addition Bilodeau had no contractual obligation to Ready Mix. The Court, disposing of the case, dismissed the action with respect to defendant Mayrand, condemned Ready Mix and Bilodeau jointly and severally to pay the contractor, Bergeron, the sum of $18,305.63 as damages, and ordered set-off as between this debt and the debts owed to each of the defendants respectively, by the latter. Finally, the Court held, as between Bilodeau and Ready Mix only, that the former was only secondarily liable, and that Ready Mix should ultimately bear the whole weight of compensation.

Two appeals were brought against the Superior Court judgment, one by Bilodeau and the other by Ready Mix; both contended that they had committed no fault and that the damages were exaggerated; Ready Mix contending also that the Court should have found both Bergeron and the inspector Bilodeau at fault.

The Court of Appeal, consisting of Hyde, Rinfret and Rivard JJ.A., disposed of these two appeals by holding that Ready Mix and Bilodeau were jointly and severally liable to the contractor Bergeron; in contrast with the decision of the lower court, however, the Court held that

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Ready Mix and Bilodeau should each bear, as between themselves, an equal share of the liability.

Bilodeau alone appealed to this Court. Thus, to dispose of this appeal we need only determine whether appellant is also liable for the damages sustained by the contractor, and if so, what the nature and extent of the liability of Bilodeau and Ready Mix is, as between each of them.

On the first question:—In reasons for judgment concurred in by his colleagues, Rivard J.A. reviewed one by one the reasons given by the judge at trial, citing them verbatim and approving them, and found, as did the trial judge, that each of the defendants had failed in the specific obligation undertaken by him in respect of Bergeron, and that, vis-à-vis the latter, they were both jointly and severally liable for the damage sustained by him. Appellant did not establish that there was any fundamental error in the concurrent findings arrived at on the facts by the two provincial Courts. There is therefore no reason to intervene on the facts as thus found, which justify the Court ordering Bilodeau and Ready Mix to make compensation for the damage.

On the second question:—In the operative part of his judgment, the trial judge reserved to defendant Bilodeau any remedy he might have against defendant Ready Mix for any sum for which he might contribute in order to pay Bergeron, whether directly or through set-off. The Court of Appeal disagreed. It said that Ready Mix and Bilodeau had been guilty of identical and concomitant negligence, and that each should bear an equal share of the liability. With the greatest respect, I must say I consider that the reserve, made in the trial judgment, is sound. This is an action for contractual damages, brought by plaintiff A. Bergeron & Fils Ltée against two defendants for failure to perform distinct, different and mutually exclusive obligations which each, by a separate agreement with the plaintiff, had assumed towards the latter: Ready Mix having undertaken, inter alia,

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to deliver to the site concrete having a resistance of 5,000 lbs. per square inch 28 days after pouring, and Bilodeau having undertaken, inter alia, to accept on the site only concrete of this type. By failure to perform the obligation relevant to him, each party caused the whole damage, and must compensate Bergeron, by whom it was sustained, for all the loss. The fact that the co-authors of the damage are each held liable for the whole does not necessarily mean that a real joint and several bond exists between them. Their respective obligations were undoubtedly intended to concur, though in totally different ways, to delivery of a concrete with the required properties. But joint and several liability is not presumed. Ready Mix and Bilodeau were not jointly and severally bound, whether by contract, expressly or implicitly, or by the law, to provide what each had separately contracted for with the contractor. It was properly held by the Superior Court, and subsequently by the Court of Appeal, that with respect to Ready Mix, Bilodeau was a third party, bound by no obligation to the latter, and that the contract for supervision, concluded between Bilodeau and the contractor,—which had been required by the Department as an additional precaution to ensure that the concrete used by the contractor in making the girders had the required properties—in no way relieved Ready Mix of the obligation it had undertaken toward him to make and deliver such concrete. Thus, I do not see how Ready Mix could validly require that, as between itself and Bilodeau, the burden of compensating for the damage be shared, or in other words, how it could fairly be heard to say to Bilodeau: “Because you failed to supervise me properly, and you were bound to do so by your undertaking to the contractor, you must share with me the burden of making compensation and, to that extent, relieve me of it”.

As indicated above, Bilodeau is the only one who has appealed to this Court. His notice of appeal refers to the judgment which the Court

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of Appeal (record no. 8261) rendered on the appeal which he had lodged against the trial judgment. Dominion Ready Mix has not appealed from the Court of Appeal judgment pronounced on its appeal (record no. 8265) from the trial judgment. All the parties to the litigation are before the Court, as was the case in the two provincial Courts. The issues disputed before the Court are the same as those which were disputed in these two Courts and include, among others, the question whether, in respect of A. Bergeron & Fils Ltée, Bilodeau as well as Dominion Ready Mix Inc. should be condemned to make compensation for the damage and, in the affirmative, the question of the nature and extent of the liability of Bilodeau and Ready Mix, as between themselves. The reasons for judgment given in the Court of Appeal in support of the judgment rendered in the Bilodeau appeal, as well as in the Ready Mix appeal, are identically the same. Dismissal of Bilodeau’s appeal implied dismissal of the submissions which he could make and must have made in support of the reserve made in the Superior Court judgment, in case his submissions on the matter of his liability to Bergeron were rejected. The parties before us have made the joint record, the factums and arguments as if the two Court of Appeal judgments were but one; they were free to so conduct their case and it would be unwarranted, in my opinion, to object to the application, in the circumstances, of the rule that parties to a litigation are bound by the manner in which they conducted their case. The Century Indemnity Company and W.G. Rogers and Anna Fitzgerald[2], at p. 536; City of Verdun v. Sun Oil Company Ltd.[3], at p. 231.

In the particular circumstances of this case, I would dispose of the appeal as follows: with respect to A. Bergeron & Fils Ltée, I would dismiss Bilodeau’s appeal with costs against the latter; with respect to Dominion Ready Mix Inc., I would allow Bilodeau’s appeal solely for the purpose of restoring the reserve made in the Superior Court judgment and allow him, against

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Dominion Ready Mix Inc., the costs of one appeal in this Court and in the Court of Appeal.

Appeal against A. Bergeron & Fils Ltée dismissed with costs. Appeal against Dominion Ready Mix Inc. allowed with costs, for restoring the reserve made in the Superior Court.

Solicitors for the defendant, appellant: Langlois, Laflamme & Gaudreau, Quebec.

Solicitors for the plaintiff, respondent: Gagné, Trotier, Letarte, LaRue, Royer & Tremblay, Quebec.

Solicitors for the defendant, respondent: Gagnon, de Billy, Cantin, Dionne & Lesage, Quebec.