The Starting Point of Extinctive Prescription vs. Knowledge of a Defect Revealed in an Expert’s Report

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Ms Alissar Kassouf joined

RSS as a student in 2012

and as a lawyer in 2013.

Her main prac�ce areas

include insurance law and

civil liability.

April 2014

800 du Square Victoria #4600 Montreal QC H4Z 1H6 • T 514.878.2631 • F 514.878.1865 • www.rsslex.com

The Superior Court recently reminded

us of an important principle in its ruling

in Boisvert v. Construc�on Normand

Guimont inc.: the moment when

knowledge of a defect revealed in an

expert’s report is acquired does not

necessarily cons�tute the star�ng point

of ex�nc�ve prescrip�on.

Plain�ff took ac�on in December 2011

against his contractors alleging faulty

execu�on of the construc�on contracts

a1er water infiltra�ons had occurred in

his residence in 2008 and 2009.

The expert’s report ordered by plain�ff

and dated March 28, 2012 revealed

that the residence’s architectural de-

sign contained defects which would be

the cause of the water infiltra�ons.

In light of this informa�on, plain�ff fi-

led on April 13, 2013 an amended in-

troductory mo�on adding, as defen-

dants, the architect firms who drew the

plans.

However, said defendants sought dis-

missal of the ac�on taken against them

by pleading ex�nc�ve prescrip�on.

More than three years had gone by

since the water infiltra�ons had oc-

curred and the moment defendants

were brought into the ac�on.

It was admied by all par�es that since

there was no solidarity between all de-

fendants, the ac�on served to the ini-

�al defendants had not interrupted the

prescrip�on against the architects.

However, plain�ff claimed that the de-

lay for prescrip�on should be com-

puted from the moment when he ac-

quired knowledge of the content of the

expert’s report which revealed the

cause of the damages.

In accordance with the interpreta�on

of 2926 CCQ favored by the Court of

Appeal in Sicé v. Langlois, the Hono-

rable Jus�ce Suzanne Ouellet states

that the delay for prescrip�on starts

(See next page)

running only when the damage appears

and all legal requirements to exercice

the right of ac�on are met.

In the present maer, the water infiltra-

�ons occurred un�l 2009. The Court was

of the opinion that the fact that an ex-

pert’s report dated March 2012 con-

firmed the cause of these water infiltra-

�ons made no difference:

[13] With regard to prescrip�on, the

appearance of the damage and the

knowledge of its cause should not be

confused. In the same way, prescrip-

�on will not be validly suspended

simply because the party has not yet

determined the precise extent of the

damages that can be claimed. [Our

transla�on]

The Court came to the conclusion that

allowing prescrip�on to be suspended

un�l all experts’ reports are complete

would be tantamount to encouraging

laxity in the conduct of proceedings, in

contradic�on with the very essence of

the concept of ex�nc�ve prescrip�on.

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