Real-Estate – What is poor workmanship

Wednesday, 08 August 2012 15:10

What is poor workmanship ?

The term poor workmanship appears in the Civil Code of Quebec in the section on rights and obligations of parties in business or service contracts.  More specifically, mention of poor workmanship is referred to in the « Special provisions respecting works » in articles 2111, 2113 and 2120 of the Civil Code of Quebec.

Article 2120 of the Civil Code of Québec states :

« The contractor, the architect and the engineer, in respect of work they directed or supervised, and, where applicable, the subcontractor, in respect of work he performed, are jointly liable to warrant the work for one year against poor workmanship existing at the time of acceptance or discovered within one year after acceptance. »

The term « poor workmanship » is specific to business and service contracts.  It is therefore exclusively in this type of contract, that is within the framework of a contract between two persons (i.e. the service provider and the client) drawn up for the purpose of carrying out physical or intellectual work or to provide a service in exchange for financial compensation, that one comes across the concept of poor workmanship.

1. Definition of poor workmanship

The term poor workmanship is not specifically defined in the Civil Code of Quebec, nor in other related laws, therefore one must refer to a dictionary to determine the common usage of the term.

The Dictionary of Quebec and Canadian Law[1] describes poor workmanship as a « defect in construction due to a worker’s non-adherence to the rules of art or to the laws in effect». In order to establish the existence of poor workmanship, one must compare the quality of the work with the laws in effect and the rules of art.

In fact, one must compare the condition of the work with:

–        The contractual terms as defined by the parties ;

–        In the absence of specific contractual terms, one must rely on the rules of art and the applicable standards in effect.

It is important to emphasize that the recourse created by article 2120 of the Civil Code of Quebec does not require a specific severity of the defect, but merely proof that the defect exists.  The poor workmanship, therefore, does not have to pose a threat of loss of the property or even to diminish the usage of the property; neither is the client obligated to prove that he would not have paid such a high price if he had known of the existence of the poor workmanship to obtain recourse.

Therefore, the client who contracted to install piping of a certain quality or brand in his home, and who receives a different brand of piping from that ordered (even though it is of equal quality), may file suit for poor workmanship.

Also, contrary to latent defects which must pre-exist the sale, poor workmanship does not have to pre-exist the conclusion of the work in order for the purchase to have recourse.  It is sufficient that it was discovered in the year following delivery of the property, whether or not the defect pre-existed the conclusion of the work.

2. Who may take advantage of the legal warranty against defects?

If article 2120 of the Civil Code of Québec does not specifically mention who can take advantage of the legal warranty against defects, one must be reminded that this article does exist in a chapter on business and service contracts between a provider of a service and a client [2].

It is therefore the client who can benefit from the legal warranty against defects.  The client can be the person who ordered the work from a contractor; he could also be a buyer who purchased from a contractor who is also the promoter[3] and who had thus undertaken the construction beforehand to eventually find a buyer.

In this last case, the stipulations related to the sale could equally apply to those in a business or service contract.  This means that a buyer of a property from a builder could choose, alternatively or cumulatively, the relevant recourses.

Where does the subsequent purchaser stand?  In this case, the first buyer purchases the property from a contractor then sells it to a second buyer (i.e. the subsequent purchaser).  As the subsequent purchaser has not dealt directly with the promoter, the definition of the business or service contract (i.e. the contract between the client and the provider of the service) no longer applies.  However, the subsequent purchaser does not lose his recourse against the contractor.  The responsibility for poor workmanship is considered to be an accessory to the property and thus passes to the subsequent purchaser.  He can therefore exercise his recourse against the promoter under the same conditions as the original purchaser.  If the defect was hidden, the subsequent purchaser may even benefit from an additional recourse against the original purchaser.  He would have two grounds for recourse, one based on the element of proof and the second on the different delays.

3. Who is obligated to provide the warranty against poor workmanship ?

Article 2120 of the Civil Code of Québec clearly states that the professionals are obligated to provide a warranty against poor workmanship for one year following acceptance of the work.

One must distinguish between this delay of one (1) year and the three (3) year delay involved in prescription before the expiration of the right to initiate recourse.

The purchaser (or his subsequent purchaser) has one year, from acceptance of the work, to discover the poor workmanship.  From the date of the discovery, he has a delay of three years to exercise his right.

Example 1 :  Discovery of the poor workmanship 6 months following reception of the work.  The total delay to initiate legal recourse is therefore 3 years and 6 months from the acceptance of the work, or 3 years following the discovery of the poor workmanship.

Example 2 :  Sale of the property to the subsequent purchaser 3 months after acceptance of the work.  Discovery of the poor workmanship 7 months following acceptance of the work.  The total delay to initiate legal recourse would therefore be 3 years and 7 months, or 3 years following the discovery of the poor workmanship.

The fact that there has been a sale does not change anything.  The subsequent purchaser benefits from the same conditions as his seller.

4. Can the contractor, the professionals and the sub-contractor exempt themselves from this warranty ?

Article 2120 of the Civil Code of Québec is not recognized as a measure of Public Order[6]. The parties may opt out.

Nevertheless, if the parties have not exempted themselves from the warranty, this provision creates an obligation of guarantee (and not an obligation of due diligence) obliging the professionals to produce a specific result for their client.  They may not invoke a “force majeure” for the purpose of being exonerated of their obligation[7].

[1] Hubert REID, Dictionnaire de droit québécois et canadien, 2e édition, Montréal, Wilson & Lafleur, 2001

[2] Article 2098 du Code civil du Québec

[3] Article 2124 du Code civil du Québec

[4] Massif inc. (Le) c. Clinique d’architecture de Québec inc., 2009 QCCA 1178

[5] D’Aoust c. Lanthier, (C.Q., 2005-05-02) SOQUIJ AZ-50311510

Last Updated on Friday, 15 August 2014 15:53

Me Sébastien Fiset
Me Sébastien Fiset