The Dismissal of the Buyer’s Recourse for his Failure to Notify the Seller of the Existence of a Defect in Due Time in Virtue of Section 1739 C.C.Q. Is Not Always the Appropriate Sanction

This post, published on Éditions Yvon Blais’ blog on latent defects on November 6, 2017 (FR), discusses the judgment in SG2C inc. v. Morin (Full text | Fiche Quantum), in which the Superior Court determined whether or not the buyer’s failure to notify the seller of a defect before beginning the corrective work should be sanctioned by the complete dismissal of the recourse.

In this case, which concerned a problem of soil contamination, the buyer sent a written notice/demand letter to the seller after 40% of the decontamination work had already been completed. 

Rather than drastically sanctioning the buyer by completely dismissing his recourse for his failure to notify the seller of the soil contamination before beginning with its decontamination, the court ordered that the seller compensate the buyer only for the costs incurred for the decontamination work carried out after the demand letter was sent to the seller, by which the buyer notified the seller of the contamination problem that he discovered for the first time, once 40% of the decontamination work had been carried out.

The court, therefore, held the seller accountable for 60% of the decontamination costs. Specifically, the court emphasized that the seller could have, if he had sent an expert to the property at the appropriate time when the work was suspended, followed-up closely on the work that remained, and in particular, obtained samples from the perimeter of the excavated site to determine for himself whether he wished to undertake the rest of the work and minimize its cost, which the seller did not do.

This decision demonstrates that the dismissal of the buyer’s recourse for his failure to notify the seller of a defect’s existence in due time in virtue of section 1739 C.C.Q. is not always the appropriate sanction.