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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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