The Impact of a Claim Under a Warranty Plan on a Recourse for Latent Defects Before the Courts of General Jurisdiction

This post, published on Éditions Yvon Blais’ blog on latent defects on August 24, 2016 (FR), reminds us that a claim filed with the administrator of a warranty plan and the subsequent request for arbitration do not have the effect of releasing a contractor (who is a seller) from the obligations incumbent upon him under the legal warranty of quality, such that the Superior Court retains competence over a recourse for latent defects, and specifically, retains its jurisdiction to order the requested cancellation of the sale, if necessary.

In the judgment that is the subject of this post, Darkallah v. 3223701 Canada inc. (Full Text | Fiche Quantum), it is interesting to note that court granted the buyers’ application for the cancellation of the sale despite the absence of water infiltrations and a loss of use of the building’s basement. Specifically, the Court concludes that there is a real, substantial risk and that “it does not constitute a hypothesis, but rather a reality” (our translation). Citing the Court of Appeal’s judgment in Yargeau v. Carrier (Full Text | Fiche Quantum), the court reminds us "that a house built on soil that contains iron ochre is affected by a defect that can lead to the sale’s cancellation” (our translation).