In Groupe Royal inc. v. Crewcut Investments Inc., 2019 QCCA 1839, the Court of Appeal affirmed that in an action for latent defects, the Plaintiff’s expert opinions are not required, whereas those filed in defence must demonstrate the precise cause of the defect in order to rebut the presumption.
In this case, the Plaintiffs, manufacturers and purchasers of pre-fabricated windows, sued the manufacturers and sellers of a spacer used in the manufacturing of windows that was allegedly the cause of their accelerated deterioration. The trial Court ruled in favour of the Plaintiffs, holding that the triple presumption provided for in article 1729 C.C.Q. applied and that the defendants had failed to rebut it. Article 1729 C.C.Q. reads as follows:
| In a sale by a professional seller, a defect is presumed to have existed at the time of the sale if the property malfunctions or deteriorates prematurely in comparison with identical property or property of the same type; such a presumption is rebutted if the defect is due to improper use of the property by the buyer.On appeal, the defendants argued that the trial judge had erred in failing to identify fundamental errors in the expert opinions submitted by the plaintiffs, on the one hand, and, on the other hand, by excluding one of the defendants’ expert opinions, which set out various hypotheses that could explain the accelerated deterioration of windows. |
With respect to the first ground of appeal, the Court of Appeal affirmed that the Plaintiffs’ action for latent defects was based upon the presumption provided for in article 1729 C.C.Q., and not on the expert opinions that they produced. As these expert opinions were merely incidental, the judge was not required to consider them; their value had no impact on the legal presumption, which the Defendants had the burden to rebut :
| [33] This observation therefore makes it possible to trigger the triple presumption of article 1729 C.C.Q. This means that the Respondents no longer have a burden of proof at this stage, since it is up to the manufacturer, in this case the Appellant, to rebut the legal presumption by establishing a fault of the buyer, that of a third party or of force majeure. [34] Consequently, the expert opinions produced by the Respondents, which are intended to explain the exact source of the defect, are not required. The fact that Justice Alain does not discuss them or identify any deficiencies cannot have any impact on the Appellant’s burden of proof. [Our translation] |
With regard to the second ground of appeal, the Court of Appeal held that the judge had not erred by dismissing one of the expert opinions produced in defence on the grounds that it was based upon “hypotheses”. The Court of Appeal specified that in order to rebut the legal presumption provided for in article 1729 C.C.Q., the Defendants had the burden of proving the “specific cause” of the deterioration of the windows. It was insufficient to merely present hypothetical causes that could explain how the alleged defect was not the cause of the accelerated deterioration of the windows.