Forced intervention in matters of liability of construction stakeholders: can a joint and several debtor be forced to participate in the debate?
In construction matters, legal actions based on Article 2118 of the Civil Code of Québec (“CCQ”) frequently raise the question of joint and several liability among the various parties involved in the construction of a project (contractor, architect, engineer, and professional technologist). When an owner chooses to sue some parties, but not all those potentially liable, can a defendant nevertheless compel another party to join the litigation? Recent case law tends to answer in the affirmative, under certain conditions.
The Liability Regime of Article 2118 CCQ
Article 2118 CCQ provides that the contractor, architect, engineer, professional technologist, and certain subcontractors are jointly and severally liable for the loss of the structure occurring within five years of the completion of the work when it results from, in particular, a defect in design, construction, execution, or the soil.
This joint and several liability primarily benefits the owner of the work, who retains the right to sue one, several, or all of the parties involved. In practice, an owner may choose to sue only certain professionals or contractors, while excluding other project participants.
However, the fact that a party has not been sued by the owner of the work does not necessarily mean that they are immune from litigation. Even though the joint and several liability provided for in article 2118 of the Civil Code of Québec is primarily intended to protect the owner, case law recognizes that parties can also invoke it among themselves.
Indeed, article 1529 of the Civil Code of Québec allows the defendant being sued to compel the intervention of their joint and several debtors[1].
The Court of Appeal confirmed this principle, emphasizing that in extra-contractual matters, a forced intervention for a third-party claim can be exercised when there is potential joint and several liability between the party bringing the claim and the party being sued[2].
The absence of a contractual relationship is not decisive
One of the arguments frequently invoked by parties summoned to a case is the absence of a contractual relationship with the defendant seeking to have them intervene. However, this argument is not always sufficient.
In the case of 9091-9572 Québec inc. v. Module 11 Construction inc.[3], engineers sued for construction defects had forced the intervention of a plumbing company with which they had no contractual relationship. The court concluded that such a relationship was not necessary. The central question remains whether the presence of the summoned party is necessary to allow for a complete resolution of the dispute.
The same conclusion was reached in the case of Chez Soi Notre-Dame-de-Grâce v. Martin Roy & Associés inc.[4], where the Superior Court reiterated that the possibility of joint and several liability allows for a third-party claim even in the absence of any contractual relationship between the parties.
The existence of joint and several liability does not, however, relieve the defendant of the burden of demonstrating a serious legal basis for their claim. Case law establishes that the presumption of liability arising from article 2118 of the Civil Code of Québec benefits exclusively the owner of the work. A defendant wishing to bring another party into the proceedings must therefore allege a specific fault of their own.[5]
It is not sufficient to reproduce the allegations of the main claim or to invoke article 1529 of the Civil Code of Québec in the abstract. The claim must set out facts that allow the court to conclude, prima facie, that a possible sharing of liability could be justified.
The courts also attach particular importance to judicial efficiency. In Axa Assurances Inc. v. R. Gagnon Construction Inc.[6], the Superior Court reiterated that the right of a debtor being sued to bring other joint and several debtors into the proceedings as guarantors derives directly from article 1529 of the Civil Code of Québec. The court also emphasizes that it is preferable to resolve the entire dispute in a single proceeding rather than multiplying proceedings and risking contradictory judgments.
A High Threshold for Dismissing a Forced Intervention
Given these principles, motions to dismiss a forced intervention in matters of liability of construction interveners often encounter a significant obstacle. When a defendant alleges a specific fault against another intervener, that the latter could be a joint and several debtor within the meaning of article 2118 of the Civil Code of Québec, and that their presence appears useful for the complete resolution of the dispute, the courts are generally reluctant to terminate the proceedings at the preliminary stage.
As the Superior Court has repeatedly stated, determining the respective liability of the parties involved is usually a matter to be decided at trial, after the evidence has been heard, rather than at the stage of a motion to dismiss or set aside the claim.[7]
Conclusion
Quebec case law clearly recognizes that a party sued under article 2118 of the Civil Code of Quebec may, in certain circumstances, compel the participation of another party even when the owner has chosen not to sue them. The absence of a contractual relationship is not a decisive obstacle, provided that the action for forced intervention is based on specific allegations of fault and that there is a real possibility of shared liability among joint and several debtors.
In practice, the courts favour an approach that promotes the overall settlement of the dispute and the determination, in a single proceeding, of the share of liability attributable to each of the parties involved in the design, supervision, or execution of the work.
[1] Chez Soi Notre-Dame-de-Grâce v. Martin Roy & Associés inc., 2015 QCCS 971, paras. 16-17
[2] Kingsway General Insurance Co. v. Duvernay Plomberie et chauffage inc., 2009 QCCA 926, para. 34
[3] 2008 QCCS 5448
[4] 2015 QCCS 971
[5] City of Blainville v. Grands travaux Soter inc., 2020 QCCS 4234, para. 9; La Garantie, compagnie d’assurance de l’Amérique du Nord v. Fenêtres Lajeunesse inc., 2021 QCCS 1498, para. 37
[6] 2009 QCCS 6469
[7] ArcelorMittal Mining Canada v. SNC-Lavalin inc., 2017 QCCS 574, para. 47.
