Unofficial English Translation of the Judgment of the Court

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1994 QUÉBEC INC.), ST. PAUL INSURANCE COMPANY (as insurer of 9312-1994

QUÉBEC INC.), FRANCOIS MONTMINY RESPONDENTS - Defendants

and

CHUBB INSURANCE COMPANY OF CANADA (as insurer of SNC-LAVALIN INC. and

ALAIN BLANCHETTE)

RESPONDENT IN CONTINUANCE OF SUIT – Defendant

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6.1.2 Grounds of exemption under the legal scheme applicable to certain losses of

6.2Ground No. 16, part 1: contractors/formworkers’ warranty of quality and the presumption of knowledge of the defect in article 1728 C.C.Q.; part 2: ground

concerning certain specific sequences 64

7.1Ground No. 9: Knowledge attributed to the concrete suppliers and to B&B

7.2 Ground No. 13: Absence of fault by CYB 74

7.3Ground No. 3: Application of the warranty of quality of the concrete suppliers

7.4Ground No. 7.1: Liability under article 2118 C.C.Q. and grounds of exemption

8.1Ground No. 1: Determination of geologist Blanchette’s faults 76

8.1.2.3Multiplicity of faults 88

8.2Ground No. 2: Causal connection between geologist Blanchette’s faults and the damage 91

8.3 Ground No. 4: Extracontractual liability of SNC/Blanchette 101

8.3.1Confidentiality of geologist Blanchette’s reports 101

8.3.2Liability of geologist Blanchette to the plaintiffs 103

8.3.3Analysis of the causal connection 108

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9APPORTIONMENT OF SOLIDARY LIABILITY OR LIABILITY IN SOLIDUM AND THE APPLICATIONS FOR FORCED INTERVENTION 124

9.1Introduction 124

9.2Grounds No. 6 and no. 19: Apportionment of liability between the defendants

9.2.1 Respective shares of each concrete supplier vis-à-vis B&B 129

9.2.2 Share of the contractors vis-à-vis the concrete suppliers and B&B and absence

9.2.5Share of tandems BL/B&B and CYB/B&B vis-à-vis SNC/Blanchette 164

9.2.6CYB’s applications for forced intervention against BL 171

10.1Ground No. 35: Establishment of a threshold volume of 0.23% of pyrrhotite in the aggregate for the assessment of damages 174

10.1.1 Background 174

10.1.2.1The moment of the appearance of damage is indeterminate 176

10.2.1Background 198

10.2.2Analysis 200

11 THE INSURANCE POLICIES OF THE CONCRETE SUPPLIERS, OF B&B, AND OF CERTAIN CONTRACTORS 210

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12.3Ground No. 62: the share of each of SNC’s insurers in the award of damages

12.3.1.2Allocation among the insurers of the damages awarded against SNC

304

12.4.2.2The Choice of Law and Jurisdiction clause and 3119 C.C.Q. 311

A contract covering property or an interest situated in Quebec or that is subscribed in Quebec by a person resident in Quebec 315

The policyholder applies for the insurance in Quebec or the insurer signs or delivers

12.5Ground No. 60: Erosion of the limits of the 2009-2010 tower 319 12.5.1 Background 320

12.5.2.1The rights of injured third persons under domestic law and the insurance contract 327

Articles 3119 and 2414 C.C.Q. 327

12.5.3 Conclusion 337

GENERAL CONCLUSIONS ON THE 8788 FILES 340

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1 BACKGROUND

[1]This case was originally named the “pyrite case”. Over time, it developed into a genuine regional catastrophe that harmed hundreds, if not thousands, of residents in the Trois-Rivières area. Some have renamed it the “pyrrhotite case”.

[2]As an introduction, here is a rudimentary description of the problem at issue.

[3]Concrete is a highly resistant construction material frequently used to build foundations. It is manufactured by binding various aggregates, in particular sand and stone, using a paste often made of cement and water.

[4]Pyrrhotite is an iron sulphide found rarely in Quebec in deposits mined to extract concrete stone aggregate. A given quantity of this crucial element in this aggregate is deleterious because it may cause highly undesirable chemical reactions. The sulphide starts to oxidize when certain conditions are present. This process causes the concrete to expand internally, leading to the degradation of the foundation and therefore the weakening of the immovables resting on top.

[5]There is at least one deposit in the Trois-Rivières area whose rocks contain pyrrhotite. It was mined for the purpose of manufacturing concrete aggregate, which in many cases caused the above-described adverse consequences.

[6]Such is the backdrop against which the multiple proceedings in the “pyrrhotite case” are set. At the time this judgment was filed, these legal disputes were divided into three groups called [TRANSLATION] “waves”.1 The Honourable Michel Richard of the Superior Court rendered 69 judgments2 on the merits in the first group, while those in the second and third groups are still pending trial.

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The second wave includes over 170 Superior Court files, while the third wave has over 90.

One of these judgments was corrected on July 21, 2014, to acknowledge the plaintiffs’

discontinuance (No. 400-17-002539-118, Doucet c. Construction Fré-Jean inc., 2014 QCCS 2718).

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2 THE FIRST WAVE OF PROCEEDINGS DETERMINED AT TRIAL

[7]As related by the judge, the first wave groups over 880 actions and concerns 832 immovables, including 446 single-family residences, 312 semi-detached residences, 56 multi-unit residential immovables and 18 commercial immovables.3

[8]The plaintiffs claim that major defects affect the solidity of their immovables’ foundations. Two hundred and ninety-nine plaintiffs describe themselves as self- builders.4 Others purchased their residence directly from the property developer or from the previous homeowner. The plaintiffs also include two administrators of new home warranty programs, the APCHQ’s Garantie des bâtiments résidentiels neufs [“GMN”]5 and Qualité Habitation [“QH”]. These administrators essentially claim the cost of repairs carried out or to be carried out under the contracts entered into pursuant to these programs.

[9]Below is a brief description of the principal parties who are being sued in one capacity or another:

-the individual sellers, where the circumstances so warrant;

-the general contractors or formworkers involved in building the foundations [the “contractors” when referred to collectively];

-“the concrete suppliers” [referred to collectively as such] who supplied the problematic concrete, either Construction Yvan Boisvert inc. [“CYB”] or Béton Laurentide inc. [“BL”];

-the corporation that mined the quarry where the deleterious aggregate was extracted, Carrière B&B inc. [“B&B”];6

-Alain Blanchette, the geologist who approved the use of aggregate extracted from the B&B quarry,7 and the successor to his employer, SNC-Lavalin Inc. [“SNC”] [referred to collectively as “SNC/Blanchette”]; 8

3Deguise c. Montminy, 2014 QCCS 2672 at paras. 14 and 16 [“Main judgment”].

4Main judgment at para. 19.

5On appeal: Raymond Chabot administrateur provisoire inc. in its capacity as the provisional administrator of the warranty program formerly administered by APCHQ inc.’s Garantie des bâtiments résidentiels neufs.

6As will be explained later, the trial judge condemned B&B with one or the other concrete supplier in their capacity as professional sellers and manufacturers.

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-the various insurance companies that entered into contracts with any of the parties being sued.

[10]The Superior Court judge was faced with a multiplicity of claims and took over the case management. After grouping together all the disputes, he asked the parties to simplify the proceedings, which counsel did professionally and with an open mind. The result was a special procedural context in which every party was named as either a plaintiff or a defendant. At the judge’s urging, the numerous plaintiffs grouped together to form only 69 Superior Court cases. Moreover, the multiple disputes amongst the defendants were incorporated into the defences as if there had been a formal forced intervention.

[11]Ultimately, and subject to some exceptions, the judge held the contractors, B&B with BL or CYB, depending on the case, SNC/Blanchette and their insurers liable. As between the various parties held liable, the judge apportioned liability in accordance with article 469 of the former Code of Civil Procedure.9

[12]The trial judgments concerning the first wave of proceedings resulted in the filing of over 800 appeals. The Court deals with the remaining 769 appeals in the group of judgments rendered today. The reasons that follow in this judgment address the common issues that concern most of the proceedings and, as such, are meant to be incorporated into all the other judgments. In keeping with the trial judge’s approach, the Court names it the “Main judgment”. Specific reasons that respond to particular issues, however, are recorded in the cases that concern them more directly.

[13]Before presenting the general facts, some remarks are necessary with respect to the quotations and footnotes in support of today’s judgments.

[14]The quotations are always verbatim and the few errors found therein were deliberately overlooked. Most references to case law, commentary, and evidence include the full citation to facilitate their retrieval. References to the evidence are

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It appears that during the period relevant to the claims, Mr. Blanchette approved the use of the B&B aggregate, particularly in connection with various contracts for services.

SNC is being sued under the rights and obligations of Terratech (SNC-Lavalin Environment Inc.), a subsidiary for whom Mr. Blanchette worked at the relevant time.

CQLR, c. C-25; Judgment following the splitting of the proceeding (11 November 2014), Trois- Rivières, Sup. Ct. 400-17-002016-091 at para. 49 et seq. [“Judgment following the splitting of the proceeding”].

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exclusively according to exhibit number and the pagination of the joint schedules filed by the parties. The same applies to references to testimony.

2.1General facts

Introduction

[15]The trial judge did not devote a particular section to the chronological description of events at the origin of the proceedings. This observation is not a criticism of the chosen approach, especially since the judge’s findings of fact are generally accepted. A brief review of the most vital events is helpful to a proper understanding of the matter, however. This overview is based on the judge’s findings scattered throughout the judgments under appeal. It should be noted that this review concerns only the general facts of the matter, to the exclusion of those concerning the insurers’ involvement. That specific part of the proceedings will be addressed later.

[16]As an introduction to this review, it bears keeping in mind that the defective aggregate at the origin of every proceeding in the first wave came from the same quarry. That quarry belongs to B&B, which was incorporated in 1994 and whose shares at the time were held equally by CYB and André Bouvet ltée. In 2001, André Bouvet ltée sold its shares to BL. Therefore, throughout the period relevant to the proceedings, CYB and BL, through their representatives, together controlled the fortunes of B&B. Already president of CYB, Yvan Boisvert became president of B&B as well.

[17]CYB and BL are both active in the construction industry and specialize particularly in concrete manufacturing. In this capacity, and as the directing minds of B&B, they became leading actors in the drama that unfolded in the Trois-Rivières area.

[18]The trial judge noted that BL is responsible for B&B’s administration and provides its head office and labour. CYB is responsible for maintaining the heavy equipment used for operations and contributes personnel when required. Moreover, the concrete suppliers’ directors together decide how much stone to produce annually.10 Last, the sole B&B employee holds the position of head of operations in addition to the functions he already holds at BL.

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[19]CYB is managed by Yvan Boisvert, both shareholder and president, and Carl Poulin, director of production. BL’s fortunes at the relevant period were between the hands of a board of directors composed of representatives of its two shareholders, Gestion Bellemare inc., which owned 66 2/3%, and Lafarge Canada Inc.11 [“Lafarge”], which owned the remaining block of shares. At one time or another, the following people played an important role:

−François Bellemare, BL director and B&B officer;

−Tom Bellemare, BL president, director and officer and B&B director;

−Michel Bergeron, BL executive and director;

−France Côté, BL’s general manager and responsible for B&B billing and general administration;

−Bernard Marcotte, BL director of operations as of May 2006 and former Béton Maskimo inc. officer.

[20]B&B’s mining site is located close to a similar site operated by a company called Carrière Maskimo inc. [“Maskimo”]. Maskimo is a competitor that performs the same activities as B&B, including the extraction of concrete aggregate.

[21]Having made these preliminary remarks, what follows is a brief narrative of the main events relevant to the proceedings.

Chronological review

[22]The B&B quarry started up operations in the second half of the 1990s. Its directors at the time did not consider it necessary to consult anyone to develop an operating plan. Nor did they seek the expertise of a geologist to better identify the types of rock likely to be extracted from the deposit in question. According to Yvan

Boisvert’s testimony, only part of the stone extracted from the B&B quarry was to be used to manufacture concrete while it was in operation.

[23]As of 1996, B&B became the exclusive supplier of concrete aggregate to its shareholder, CYB. At the same time, from 1996 to the fall of 1998, BL, who had not

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yet acquired any shares in B&B, procured aggregate from Maskimo and generally used cement produced by Lafarge to manufacture its concrete.

[24]In 1999, CYB asked a laboratory named Lab Journeaux, Bédard inc. to analyze aggregate samples extracted from the B&B quarry. The laboratory’s report did not note the presence of any iron sulphides and concluded that the risk of an alkali-aggregate reaction was low.

[25]In addition to this information, the evidence establishes that B&B had been supplying the concrete suppliers with concrete aggregate for some years without any of the problems of the nature now under review.12 As will be seen, these problems were caused by the aggregate produced by B&B and used exclusively by CYB and BL.

[26]Meanwhile, a problem with concrete expansion appeared for the first time in the Trois-Rivières area in late 2001. The anomaly resulted in approximately thirty proceedings questioning the quality of foundations poured during the period extending from 1996 to 1998. The aggregate used came from a quarry operated by

Maskimo, B&B’s neighbour.

[27]BL, who as we know occasionally procured aggregate from Maskimo at the time, found itself embroiled in some of these proceedings, in particular one that was frequently raised at trial. This litigation concerned a building housing a retail food store operating under the IGA banner for which BL had provided the concrete for the foundation.13

[28]Some believed that the cement, the quality of the concrete, or the recipe used for the mix caused the concrete expansion. Others believed that it was caused by the presence of aggregate containing iron sulphides, pyrite14 or pyrrhotite. The various hypotheses, especially those opposing the quality of the concrete and the presence of pyrite and pyrrhotite, persisted more than 10 years and affected the first wave of trials.

[29]In November 2001, concrete suppliers BL and CYB started hearing about issues with concrete degradation in the Trois-Rivières area. Bernard Marcotte, then a

12B&B sold aggregate to other concrete suppliers until 2001. B&B subsequently supplied concrete aggregate to only BL and CYB.

13The IGA case was settled out of court.

14Pyrite is an iron sulphide that is less reactive than pyrrhotite: Main judgment at paras. 94 and 267– 271.

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Maskimo officer, informed Michel Bergeron, a BL executive, that five foundations containing Maskimo stone were affected by their “pyrite” content and had to be demolished.15 Several days later, at least according to his notes taken at the time, Michel Bergeron gave this information to Carl Poulin of CYB. Poulin told him to take the necessary steps to have the stone from the B&B quarry tested.16

[30]In December of that same year, BL was served with a formal notice complaining about the state of the IGA foundation poured, as we know, with concrete containing Maskimo aggregate. Oddly enough, however, BL had on that occasion used cement from cement manufacturer Ciment St. Laurent17 [“CSL”], when it usually procured its cement from Lafarge.18

[31]The situation at neighbouring Maskimo was cause for concern for the B&B officers and the concrete suppliers. In January 2002, at the suggestion of Patrick Plante,19 Michel Bergeron contacted Professor Marc-André Bérubé of Université Laval for an opinion on the quality of the samples taken from the IGA foundation.

[32]In this same context, as a precursor to what was to become the pyrrhotite problem, B&B management, in this instance representatives of BL and CYB, planned to take steps to ensure that B&B produced quality aggregate.20 Below is a relevant excerpt from the minutes of a meeting held on January 23, 2002:

[TRANSLATION]

1.- After discussing the possible problems with the Maskimo St-Boniface stone, it was unanimously resolved to take the necessary steps to ensure that quality stone is produced. The following steps will be taken:

A.- Michel Bergeron will find a geologist to examine the quarry face and identify the right location before blasting.

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B.- During the crushing period, Yvan Boisvert will provide a technician to regularly take samples. These samples will then be sent to Béton Laurentide, who will conduct the granulometry.

[Bold emphasis in original.]

[33]In a telephone conversation the next day, January 24, Professor Bérubé suggested to Michel Bergeron that he conduct a test called “total sulphur” on the B&B stone, and the task was assigned to Martin Perreault.21 Perreault picked up the B&B stone samples the same day from the BL offices. He sent them for analysis to Marie De Grosbois, a senior geologist at Lafarge.

[34]In February 2002, BL received the results of Lafarge’s chemical analysis of the B&B aggregate. The next day, Michel Bergeron contacted Ms. De Grosbois and, according to the trial judge, he understood from the explanations given that the stone was suitable to manufacture concrete. He also sent her the results of the 1999 alkali- aggregate tests conducted by Lab Journeaux, Bédard inc. on the B&B aggregate.22

[35]In March 2002, BL retained the services of Professor Bérubé to conduct a comparative analysis. Here is how Professor Bérubé described the objective of the work he was assigned:

[TRANSLATION]

Our mandate was to conduct a petrographic examination of that sample [B&B] and determine whether it was the same type of aggregate that Béton Laurentide had used to manufacture the concrete of the foundation walls of a commercial building in the Trois-Rivières area, which concrete displayed certain signs of degradation presumably associated with the oxidation of sulphides in this aggregate.23

[36]In May 2002, BL read Professor Bérubé’s petrographic examination report.24 It drew a parallel between the properties of the samples from the B&B quarry and the issues observed in the IGA building. It stated the following:

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[TRANSLATION]

To the extent that pyrrhotite actually caused the issues observed in the above- mentioned building and that its chemical composition is similar, there is every reason to believe that the aggregate examined could also cause the same type of issue because its sulphide content is significant.25

[37]Moreover, Mr. Bergeron’s contemporaneous handwritten notes record the contents of a discussion during which Professor Bérubé told him that he was convinced that the pyrrhotite had caused the concrete degradation in the IGA building. That telephone conversation took place on May 7, 2002.26

[38]In the following days, BL sent the Bérubé report to three Lafarge employees: Marie De Grosbois, Martin Perreault, and Serge Plante.27 The cover letter addressed to Ms. De Grosbois stated:

[TRANSLATION]

We are somewhat confused about this report, especially since your analyses indicated that there was no problem with using this stone to manufacture concrete. Do you think that this stone reacts more with one type of cement as opposed to another?

Awaiting your comments …

[39]The evidence reveals, however, that this question remained unanswered and that no one bothered to follow up.28

[40]In 2003, both of the concrete suppliers, BL and CYB, poured foundations using concrete containing B&B aggregate.29

[41]At the same time, a major protagonist in the proceedings before the Court, geologist Alain Blanchette, then employed by Terratech, a division of SNC, entered the scene.

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[42]Cement manufacturer CSL was the first to require his services. Without revealing the source of the aggregate to be analyzed, the cement manufacturer gave Mr. Blanchette stone extracted from the B&B quarry. CSL’s objective was to dispel any doubt CYB might have about the quality of its cement so that it would buy its cement from CSL.30

[43]Mr. Blanchette therefore conducted a petrographic examination of the B&B stone. His report concluded as follows:

[TRANSLATION]

I am of the opinion that, as concrete aggregate, this aggregate is not reactive to the Portland cement alkali. The percentage of quartz is moderate and the undulatory extinction is low to moderate.

The percentage of pyrite appears normal for igneous rock and this pyrite is known as a stable cubic form. My opinion is that this pyrite is not deleterious and there are no contraindications to using the aggregate in the cement concrete.

[44]In the spring of 2003, CYB received the report Mr. Blanchette had sent to his client CSL. CYB quickly sent it to BL. The evidence establishes that CYB and B&B also distributed it to certain contractors in the area.

[45]This was happening at the same time as the proceedings involving the Maskimo quarry. Counsel for Laboratoire de Construction 2000 inc., which was being sued, retained Mr. Blanchette’s services as an expert.

[46]According to the trial judge’s findings, Maskimo’s problems were well known in the Trois-Rivières area starting in the fall of 2003, more specifically in the construction industry.31 The Le Nouvelliste newspaper was monitoring the progress of the proceedings and published an article on Mr. Blanchette’s role. In an article titled

“Débat d’experts en vue”, journalist Brigitte Trahan reported statements she attributed to Mr. Blanchette:

[TRANSLATION]

30Main judgment at paras. 1228–1229 and 1313–1314.

31Main judgment at paras. 318 and 338.

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Certain experts say that it’s the pyrite. I disagree with that opinion. My theory at the moment is that the problem we have has nothing to do with pyrite.

[47]Several days after this article appeared, France Côté, BL’s general manager and responsible for B&B’s general administration, asked Mr. Blanchette to conduct a petrographic examination of three stone samples taken from the B&B quarry. She wrote:

[TRANSLATION]

We need to know the risks of using this stone to manufacture concrete in terms of the percentage of pyrite this stone contains.

[48]According to the trial judge, this service was requested following a telephone call during which Mr. Bergeron raised the article published in Le Nouvelliste during a discussion about the Maskimo quarry proceedings. The judge therefore drew the inference that Mr. Blanchette’s services were retained because of the opinion he gave to journalist Trahan and because of Mr. Blanchette’s good reputation.32

[49]The results of the analysis requested by Ms. Côté were sent to Mr. Bergeron in early January 2004. Geologist Blanchette’s conclusions on the presence of iron sulphides stated in particular:

[TRANSLATION]

-With respect to the presence of iron sulphides (pyrite and pyrrhotite), the percentage appears to be around 3% and these crystals are disseminated throughout the mass. They appear massive and not framboidal. My opinion is, given the low percentage of absorption of this stone, that the sulphides present offer no risk of concrete sulphation when used in good-quality concrete of normal density and do not present excessive cracking.

Consequently, considering all the results obtained, my opinion is that the crushed stone from Carrière B&B in Saint-Boniface is suitable concrete aggregate and can be used without risk of a deleterious reaction.

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[50]Operations at the B&B quarry continued during 2004. In November, geologist Blanchette sent the parties concerned the results of a second petrographic examination. It read, in part:

[TRANSLATION]

-With respect to concrete of normal volumetric mass density poured on site and properly dosed, my opinion is that this aggregate may be used, but production must continue to be monitored to ensure that the percentage of iron sulphides does not increase compared to the sample analyzed.

-I am also of the opinion, considering the possible consequences, that a more detailed study of the quarry should be conducted to properly identify the lateral and vertical variations of the petrographic facies to be mined, and to detect any possible sectors with the best quality aggregate in terms of mineralogical composition.

Therefore, for the time being, in the absence of specific standards on the percentage of iron sulphides that concrete aggregate may present before it becomes problematic. The known percentages (5 to 7%) set certain limitations on the use of this material. Quarrying should be monitored to ensure that aggregate presenting more iron sulphides than what was analyzed is not available for sale. The examination of the quarry should target sectors presenting the least iron sulphides possible. A percentage of 5% or less (based on the crystalline form of the sulphides) should be targeted during quarrying.

[51]In early 2005, Radio-Canada broadcast an episode of the program La Facture during which geologist Blanchette stated that the problems observed in the foundations in the [TRANSLATION] “Maskimo cases” were due to factors other than the mere presence of sulphides.33

[52]Shortly afterward, in March 2005, counsel and experts involved in the Maskimo cases held a meeting. Contrary to the opinion expressed by geologist Blanchette, several experts said that they were of the view that the concrete degradation was caused by the presence of iron sulphides in the aggregate incorporated into the mixes.

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[53]After visiting the Maskimo quarry, Mr. Blanchette submitted a report on compliance with accepted practices during tests conducted by Laboratoire de Construction 2000 inc.34 It should be noted that Mr. Blanchette also conducted petrographic examinations on aggregate from the Maskimo quarry under a contract for services granted by Laboratoire de Construction 2000 inc. to his colleague, expert Émile Hanna.

[54]In September 2005, shortly after having received a formal notice related to the Maskimo proceedings, the members of the BL board of directors were again faced with the experts’ conflicting theories on the quality of the aggregate. They then agreed to ask their shareholder Lafarge to assess the quality of the B&B stone. On September 26, 2005, representatives of Lafarge, including Ms. De Grosbois and engineer Éric Fontaine, met with the BL representatives to discuss the expert reports on the B&B stone. The minutes of that meeting are reproduced in full below:

[TRANSLATION]

PRESENT: Martin PERREAULT, LAFARGE - CEMENT

Isabelle LORD - LAFARGE CEMENT

Marie DEGROSBOIS - GEOLOGIST - LAFARGE

Eric FONTAINE - AGGREGATE ENGINEER- LAFARGE

Tom BELLEMARE - LAURENTIDE / CARRIÈRE B & B

France CÔTÉ - LAURENTIDE I CARRIÈRE B & B

Michel BERGERON - LAURENTIDE

Michel BERGERON briefly explained the purpose of the meeting:

To interpret the various reports dealing with pyrite.

Find one or more ways to ensure that our stone (B&B) is not dangerously reactive to sulphides.

After two (2) hours of discussion, MS. Marie DEGROSBOIS accompanied by France and Éric went to Carrière B&B and Maskimo to visually inspect and collect some stone samples.

At the same time, Richard gave Ms. DEGROSBOIS a stone sample taken from Carrière Continental.

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Using these samples, Ms. DEGROSBOIS should be able to conduct tests comparable to the tests conducted by Marc André Bérubé, whose results were included in his report dated May 4, 2002.

[55]At the same time, B&B asked geologist Blanchette to conduct a third petrographic examination. Blanchette did so and sent the results to B&B in December

2005.35 His report stated:

[TRANSLATION]

-With respect to iron sulphides, thin laminae of pyrite and pyrrhotite were recognized and a chemical analysis of a composite sample revealed a percentage of 2.26%. The sulphides are recognized to be generally massive.

-Clause 4.2.3.5.2 (section on “Deleterious reactions of aggregates”) of CSA standard A23.1-04 states that “the presence of sulphides, such as pyrite, pyrrhotite, and marcasite, in the aggregate that may oxidize and hydrate with volume increase, or the release of sulphate that produces sulphate attack upon the cement paste, or both... "

-CSA standard A23.1-04 (or other Canadian and/or Quebec standards) does not specify, however, any maximum acceptable amount of sulphides in concrete aggregate.

-Concrete sulphation issues due to the presence of iron suphides remain marginal and rare in Quebec and the few recognized cases involved slightly clayey limestone aggregate containing framboidal sulphides.

-Iron sulphides recognized in the Carrière B&B aggregate were rather massive and the low percentage of absorption of this aggregate minimizes the potential for oxidation and subsequent sulphation.

-Consequently, based on the results obtained, I am of the opinion that the risk of concrete sulphation, normally dosed, with normal porosity, and using this aggregate, seems low to zero and should not constitute a limitation on the use of this aggregate.

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-The percentage of iron sulphides may vary in this type of aggregate and periodic tests should be conducted to confirm the percentage of sulphides present.

[56]Ms. De Grosbois signed a report on her own analyses in which she concluded that the aggregate from Maskimo was similar to that from B&B.36 Below is what she wrote in this document dated January 31, 2006:

[TRANSLATION]

The two samples from Carrière Maskimo and Carrière B&B have comparable total amounts of sulphides: 3.8% in the Carrière Maskimo sample and 4.8% in the Carrière B&B sample. The vast majority of these sulphides are pyrrhotite (>90%), with minor amounts or small pyrite, pentlandite, and chalcopyrite inclusions in the pyrrhotite. The sample from Carrière Continental has a very low 0.03% sulphur content, and no sulphide was observed under the microscope. All observations and measures taken were limited to the available samples from the quarries under study and may not be representative of past or future aggregate production or the rocks as a whole.

It is impossible to say whether the measured amounts of sulphides in the form of pyrrhotite are deleterious in aggregate used to manufacture concrete because there is no acceptance criterion for aggregate related to the amount of sulphides in the current BNQ or CSA standards.

[57]A little later, in March, Alain Canuel and Martin Perreault of Lafarge met with the BL representatives and told them that Lafarge recommended that they stop using B&B aggregate.37 The trial judge had considerable reservations about the firmness of the recommendation in question, however, and wrote:

[TRANSLATION]

[949]It was only in 2006 that Lafarge grudgingly started to discuss the danger of using the aggregate.

[950]Laurentide was grudgingly informed of Lafarge’s position because the

Court notes that there is very surprisingly no evidence that the letter Lafarge

36Main judgment at paras. 363–364, 981–983, 988 and 995–996.

37Main judgment at paras. 950–951, 986 and 989–990.

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claims to have written to Laurentide telling it not to continue using the stone was sent.

[58]The judge also rejected Lafarge’s claim that it had told Yvan Boisvert about this opinion during a social gathering in April 2006.38

[59]In May 2006, Bernard Marcotte, who had also been involved in the saga that had shaken Maskimo, became director of operations at BL.39 He quickly sought to postpone the studies on the aggregate after discussions with the B&B officers and the concrete suppliers. He felt that it was imperative to know why Maskimo had been plagued with problems that seemed to have spared B&B up to then.40

[60]That is why France Côté first approached geologist Josée Duchesne of Université Laval. In reply to this request, Ms. Duchesne conducted a comparative examination of the 2006 B&B aggregate, the B&B stones from a core sample extracted from a foundation poured in 1999 and, last, stone drawn from a foundation poured by Maskimo in 1998. In June, she basically concluded that the three samples were comparable and that there was no obvious reason to explain why one stone rather than the others reacted in the concrete.41

[61]The B&B management felt that it had not received a sufficiently conclusive answer and turned to geologist Lucie Tremblay of IOS Services Géoscientifiques inc. At the same time, it asked geologist Blanchette to conduct another petrographic examination.42

[62]On August 31, 2006, geologist Tremblay submitted a report that again compared the samples examined by Ms. Duchesne.43 She found that the concrete was manufactured using the same type of aggregate, which [TRANSLATION] “... would, a priori, be suspected as potentially deleterious and likely to cause local expansion of

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the concrete”.44 She also wrote that a factor other than the slightly higher iron sulphide content in the Maskimo aggregate than in the B&B stone samples appeared to have played a role in the concrete deterioration. She therefore recommended that the composition of the concrete paste be studied.

[63]This led the B&B management to re-contact geologist Blanchette. On

September 7, 2006, B&B sent him a copy of Ms. Tremblay’s report and asked him to attend a meeting at their office. After that in-person meeting, geologist Blanchette submitted an offer of services that he enhanced shortly thereafter.45 He then proposed setting up an expansion-testing program spread out over one year. B&B agreed to that proposal.

[64]The tests in question concerned three aggregate samples. The first sample was from the Maskimo quarry reserves, and the two others were taken from different sectors of the B&B quarry.46 In addition, for each of these samples, geologist Blanchette had to use cement from different producers to verify the influence of that component on the percentage of concrete expansion.

44Main judgment at para. 1016.

45Main judgment at para. 1324.

46One of these sectors is identified as [TRANSLATION] “rich in garnet” and the other as [TRANSLATION] “rich in pyrite”. These names do not necessarily correspond to the characteristics of the stone found there but are instead designations used by B&B management.

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[65]In late October 2006, Mr. Blanchette sent another report unrelated to the expansion tests referred to above. It was a petrographic examination requested in August 2006, in which the geologist stated the following:

[TRANSLATION]

The petrographic number (NQ 2560-900) and the petrographic examination (ASTM C295) indicate that the sample analyzed is composed of anorthositic gabbro. The physical and mechanical properties appear very good, as demonstrated by the petrographic number and, in my opinion, meet the requirements for use as concrete aggregate. The iron sulphide content was assessed at 4.5% using a chemical analysis. There is currently no standard or specification concerning the percentage of iron sulphides that concrete aggregate may present. The percentage of iron sulphides measured, however, limits certain uses and I am of the opinion that the aggregate should not be used in architectural concrete or exposed aggregate concrete.

[66]In November 2006, B&B stopped producing aggregate to manufacture concrete.47 According to its officers, they decided to temporarily suspend production until they had disposed of considerable stone dust reserves. In reality, however, this suspension was permanent.

[67]As of that date and until 2007, BL used its stockpiles.48

[68]CYB, however, sold concrete containing B&B aggregate throughout 2007. It even used this concrete to erect its own immovables. Furthermore, in 2007, Carl Poulin, its director of production, used the aggregate for his personal home addition project. CYB purchased its last load of concrete stone from the B&B quarry in September 2007.49

[69]During that same period, Mr. Blanchette continued his work on the expansion- testing program agreed on with B&B. On June 5, 2007, he produced the first progress report on the situation after a four-month period. The report contained no recommendation on the use of the different aggregate samples studied.

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[70]The same is not true for the following report on the situation after nine months, sent on November 28, 2007. To properly understand its scope, it should be recalled that the concrete suppliers were using only aggregate from the quarry sector described as [TRANSLATION] “rich in garnet” to manufacture concrete. In the section of that report titled “Synthesis and recommendation”, Mr. Blanchette wrote:

[TRANSLATION]

The three sources of aggregate present characteristics that meet the current standards for concrete aggregate. The percentage of oxidized fragments in the B&B quarry sample rich in pyrite is, however, of concern.

The percentages of iron sulphides are classified as being very high for the two aggregates from Carrière B&B and high in the case of Carrière Maskimo.

During the expansion tests, the results obtained with the B&B aggregate rich in pyrite are of concern. As a preventive measure, this aggregate should not be used as concrete aggregate.

The expansion percentages obtained with the B&B aggregate rich in garnet vary depending on the cement used.

The expansion percentages obtained with the Carrière Maskimo aggregate are low after nine months of curing.

[71]The trial judge found that the date this progress report was sent marked the end of the period of SNC/Blanchette’s liability.50

[72]In February or March 2008, a meeting was held between the B&B officers and the concrete suppliers. Back from vacation, Mr. Boisvert read geologist Blanchette’s latest report.

[73]In May 2008, after having exhausted the stockpiles at its plant, CYB stopped using B&B aggregate.51 As a result, the last time concrete was poured for a building covered by the trial judgment was on May 5, 2008.52

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[74]Shortly after, as of the fall of 2008 and more intensively during 2009, the concrete suppliers and B&B were assailed by formal notices claiming that their product was of poor quality.53 A series of legal proceedings instituted by over 850 plaintiffs then ensued.

[75]These proceedings caused a storm for B&B and the concrete suppliers. In February 2009, BL sold its shares in B&B to a CYB-related company.54 Tom Bellemare, BL’s representative on B&B’s board of directors, resigned from his position. Not long after, on July 23, 2009, B&B sold its land to Carrière P.C.M. (1994) inc. Last, on November 30, 2009, Lafarge ceased being a BL shareholder.

2.2Trials

Court agreements

[76]The Court briefly mentioned at the start of this judgment that the trial judge very quickly realized the scope of the issues and foresaw the multitude of suits likely to result. He therefore decided to manage all the proceedings by holding successive conferences uniting the protagonists identified as they appeared in the legal process.

[77]As a result, some 880 actions were grouped into 69 cases at trial.

[78]At the judge’s invitation, the plaintiffs summoned all the parties likely to have incurred liability for the alleged injury. The defendants agreed to proceed in a manner whereby they had to include their application for forced intervention in the allegations and conclusions of their defence to the principal actions.

[79]Below is a brief summary of the minutes of the management conferences, the contents of which ultimately shaped the way the proceedings unfolded as well as the conduct of the hearing:

[TRANSLATION]

Minutes of January 22, 2010

53Main judgment at para. 1024; Joint statement of the general facts (Groups 2-4) at 181.

54Main judgment at para. 180.

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4)GROUPING CASES FOR MANAGEMENT PURPOSES

The parties agree to group the cases by contracting general contractor.

The plaintiffs will institute proceedings by joining according to article 67 C.C.P., so that cases against one general contractor can be grouped together. Last, the plaintiff self-builders’ cases will be grouped by the name of the Concrete supplier or of the Quarry, according to the most common denominator.

…

9)RECOURSE IN WARRANTY

This refers to the recourses in warranty that may be raised in this kind of proceeding between the various defendants previously summoned.

By consent, it was suggested that the parties attend the next management session with a list of the parties that they would like to call in warranty, so that all the recourses to be exercised against another party already on the record may be subject to specific agreements to avoid accumulating potentially useless motions in the record.55

Minutes of September 10, 2010

11)RECOURSE IN WARRANTY

Mtre Lajoie asked that a mechanism equivalent to a recourse in warranty be found.

Mtre Lajoie was asked to prepare a form to cover this aspect of the recourse in warranty so that each party named in the proceeding will be able to ask the Court to rule on the potential recourses resulting from the state of the cases.

That agreement will be submitted at the next management session.56

Minutes of February 1, 2011

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1.Welcome

After noting the excellent cooperation of counsel and the parties in the conduct of the case, the Court reminds counsel for the plaintiffs to pay specific attention so that all parties are sued in the principal actions to avoid calls in warranty and to facilitate the case management, as decided in previous meetings.57

Minutes of June 22, 2011

6.Individual defences (to be completed)

It is agreed that each party will file a written defence setting out the grounds for its contestation, which defence will apply to all the cases in which each party is involved.

…

Therefore, each individual defence will be considered by the Court to be applicable to all the cases and will constitute the written individual defence.58

Minutes of October 27, 2011

9)COURT AGREEMENT ON CALLS IN WARRANTY

Mtre Lajoie sent every party the draft court agreement on calls in warranty that is not yet ready for confirmation.

At the request of certain counsel representing the sellers being sued by the actual owners of some of the immovables concerned, it appears that the document prepared could allow some of these persons to avoid recourses in warranty, as is the case for the other direct interveners.

These persons will be asked to sign the agreement on the conduct of the proceeding at the same time that they file a defence that complies with the stated objectives.59

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Minutes of January 26, 2012

10.COURT AGREEMENT

The parties have read the document sent by Mtre Héon concerning the court agreement on calls in warranty.

That document was prepared by Mtre Lajoie and Mtre Bienjonetti and was amended following feedback from those who were interested in improving it.

The text was submitted to all parties and, following discussions held from the bench, all the parties agreed to accept the court agreement, with the result that:

THE COURT RENDERS THE FOLLOWING ORDER:

RECEIVES, CONFIRMS AND MAKES ENFORCEABLE the attached court agreement on calls in warranty and DECLARES that such contract binds every party currently a party to the pending proceedings.

The Court notes that Mtre Legault, on behalf of Lafarge, plans to reserve his position on accepting the court agreement.

Concerning the proceedings in warranty:

It is suggested that every party who files a defence by invoking its right to a recourse in warranty should indicate against whom this right is sought and in which file.60

[80]Note that one aspect of these agreements concerns the conduct of the principal actions. It had the effect in particular of creating a rather exceptional group of plaintiffs within the same case.61

[81]The other part concerns proceedings that can be described as subsidiary to the extent that they depend on the chain reaction resulting from the relationships between certain parties, be they contractual or sometimes even extracontractual.

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[82]This last part was the subject of the agreement described in the minutes under the name [TRANSLATION] “court agreement” or [TRANSLATION] “court agreement on calls in warranty”. The judge confirmed the agreement during the management conference of January 26, 2012. It is useful to reproduce the agreement in full due to its repercussions on the conduct of the proceedings and the conclusions in the judgments under appeal:

[TRANSLATION]

COURT AGREEMENT

FOR THE PURPOSE OF THIS AGREEMENT, THE UNDERSIGNED DEFENDANTS STATE:

WHEREAS the signatories hereto (hereinafter the “defendants”) are all defendants in the above-described cases (hereinafter the “cases”);

WHEREAS the cases were instituted before the Superior Court in the judicial district of Trois-Rivières and cover the same type of dispute involving hundreds of owners of immovables whose concrete foundations are purportedly defective;

WHEREAS these owners essentially claim that the concrete in their building foundations was manufactured with aggregate containing pyrite and/or pyrrhotite, which they claim caused the premature degradation of the concrete;

WHEREAS all these cases are grouped and are subject to special case management by the Honourable Michel Richard, J.S.C.;

WHEREAS the defendants expect other similar cases to be added to those already existing, which will also be subject to special management by the Honourable Michel Richard, J.S.C.;

WHEREAS the defendants wish to avoid a multiplicity of anticipated applications for forced intervention (resulting anticipated recursory actions, calls in warranty, in sub-warranty or in sub-sub-warranty, or other recourses in warranty) between them, and waive prescription already acquired and the benefit of time elapsed for prescription purposes, applicable to such anticipated applications for forced intervention, where necessary;

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WHEREAS the defendants wish to simplify the procedure for instituting and defending such applications;

WHEREAS the defendants acknowledge that the institution of such anticipated applications for forced intervention, in accordance with the provisions of the Code of Civil Procedure (article 216 et seq. C.C.P.), would make the management of these cases even more complex and counter to the best interests of justice and the parties, contrary to the principles of proper administration and proportionality, in particular with respect to costs and time limits;

WHEREAS the defendants, however, do not wish to waive their rights and defences that may be exercised by an anticipated application for forced intervention;

WHEREAS the defendants therefore wish to enter into the following agreement dispensing them from instituting anticipated applications for forced intervention against each other, in accordance with the provisions of the Code of Civil Procedure (article 216 et seq. C.C.P.), and authorizing them to institute such applications by way of a simplified, accelerated procedure that will nonetheless allow the Court to render judgment as if such applications for forced intervention had been instituted as prescribed by the Code of Civil Procedure;

THE DEFENDANTS THEREFORE ENTER INTO THE FOLLOWING AGREEMENTS:

1.The above-mentioned preamble forms an integral part of this agreement;

2.The defendants agree to proceed by evidence common to all the grouped cases, rather than with separate evidence for each separate case, it being understood that the specific facts of a case may also be adduced into evidence;

3.The defendants agree that the Court will apportion liability as between them, in accordance with article 469 C.C.P., where applicable, and make such condemnation enforceable between them;

4.The defendants agree to use the defences as a procedural method and means to introduce conclusions of the nature of an anticipated application

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for forced intervention against one or more defendants within the time limits to be determined by the Court;

5.The defence including the conclusions of the nature of an anticipated application for forced intervention will be titled [TRANSLATION] “defence and application for forced intervention” and must be signed electronically by counsel for the parties concerned, the defendants agree and waive direct service;

6.The defendants in the anticipated application for forced intervention will be dispensed from reappearing if they have already appeared in the principal action;

7.The defendants in forced intervention may reply to the conclusions sought against them by way of a defence included by amendment in a specific section in their own defence to the principal application within the time limits to be determined by the Court;

8.The parties irrevocably accept and agree that the Court will render judgment at the same time on the principal actions and on the conclusions in forced intervention set out in the defendants’ defences, the whole as if an anticipated application for forced intervention in accordance with the provisions of the Code of Civil Procedure had been submitted;

9.The Court’s judgment thus rendered will have the same effects and the same executory force as a judgment rendered according to the regular procedure and will be subject to the same recourses or appeals;

10.Each defendant waives in advance its right to ask that any judgment rendered against it hereunder be revoked or set aside on the ground that the rules of civil procedure regarding the institution of an anticipated application for forced intervention have not been followed;

11.The defendants agree that the Court may rule on any issue as long as it does not prejudice their respective rights, it being understood that this agreement is entered into for the purpose of avoiding a multiplicity of anticipated applications for forced intervention using the traditional procedure set out in the Code of Civil Procedure;

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12.The defendants waive prescription already acquired and the benefit of time elapsed for prescription purposes, applicable to every anticipated application for forced intervention made according to the terms of this agreement;

13.The provisions herein do not have the effect of preventing any signatory hereto from summoning by anticipated application for forced intervention, of the nature of a call in warranty or an impleading, a third person who is not already a defendant in the above-mentioned cases;

14.The defendants agree to have the Court confirm the agreement they have reached, the whole pursuant to its powers conferred by law;62

Impleading of Lafarge and Marie De Grosbois

[83]Some months before the hearing began, defendant Construction Fré-Jean inc. [“Fré-Jean”], sought authorization to implead Lafarge and Ms. De Grosbois as principal defendants in the action instituted by Noëlla Doucet and Guylaine Beauchemin.63 The judge granted that motion in a judgment rendered on March 13, 2012, and Lafarge and Ms. De Grosbois then sought leave to appeal. On April 26, 2012, Thibault J.A. granted leave and set the appeal hearing down for June.64

[84]The Court allowed the appeal and removed Lafarge and Ms. De Grosbois in July 2012, given that the plaintiffs opposed the impleading, that there was no apparent legal relationship between Fré-Jean and the Lafarge-De Grosbois duo, and to avoid breaching procedural fairness.65

Trial

[85]There is no doubt that the size of the trial was comparable to a major class action. The rules on the various legal relationships between the parties, however, made this particular avenue unattractive, with the result that the judge had to handle a multitude of individual actions. This weighed heavily on the trial’s conduct. In the Main judgment, the judge described the principal characteristics of this unconventional trial:

62Court agreement (18 January 2012), vol. 447 at 183673–183676.

63Sup. Ct. file No. 400-17-002539-118.

64Lafarge Canada inc. c. Construction Fré-Jean inc., 2012 QCCA 781.

65Lafarge Canada inc. c. Construction Fré-Jean inc., 2012 QCCA 1264.

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[TRANSLATION]

[96]All the cases and their exhibits have been digitized and processed by computer so that no paper document was dealt with at trial unless it had been digitized and inserted into the trial management tree-diagram.

[97]There were daily updates as the trial unfolded and each party had instant access to the daily additions and amendments through Dropbox, the information storage site agreed to by the parties.

[98]The Court notes the invaluable support of the Ministère de la Justice, who arranged the courtroom and provided all the equipment required to manage, digitize, send the information to every lawyer, and to annotate it for both the lawyers at the hearing and the public outside the courtroom.

[99]The resources made available to the parties and the Court greatly contributed to shortening the debates and facilitating the management of over 20,000 exhibits comprised of over 600,000 pages of text.

[100]None of this would have been possible if the parties had not unanimously agreed to proceed by way of computer technology and to define the terms needed to simplify and accelerate the hearings.

…

[102]It would not have been possible to manage and update all these cases on a daily basis had it not been for the greatly appreciated skill of Yves Demontigny, the technician chosen by the parties, who offered invaluable and indispensable support in preparing, managing, and updating documents while remaining attentive to the frequent developments inherent in managing this amount of information.

[103]By unanimous decision of the parties, the 70 court files were not physically present in the courtroom, such that any information added to the files was done through the minutes of the hearing or by the parties’ entering a document in the tree-diagram controlled by the computer technician according to a strict procedure observed throughout the trial.

…

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[106]This is why the trial lasted for 68 days of hearing and 9 days of pleadings, even though 185 witnesses were heard and 30 days were dedicated to experts.

…

[108]The parties conducted a great many pre-trial examinations (approximately 40), which considerably reduced the hearing time, given the scope of the subjects addressed.

[109]Last, the Court cannot fail to mention the work done by certain insurers to develop electronic spreadsheets to calculate the exact amount each insurer will have to pay on behalf of their respective insured based on the coverage dates, the content of their policy, and each insured’s share of liability, all while considering the recourses in warranty.

[Reference omitted.]

[86]It should be noted that the parties agreed to designate the constructions with the name [TRANSLATION] “sequence” and to identify them by number. There are several hundred in the first wave of proceedings. The judge adopted the vocabulary agreed to between the parties when drafting his judgments.

2.3Judgments

Introduction

[87]The trial judge accomplished a colossal task, which cannot go unnoted. The judge equipped himself with rather audacious means that he felt would accelerate the proceedings, in order to finish the hearing involving such a large number of parties and issues to be determined. Motivated by a sense of duty, he wanted to arrive at a just and fair conclusion as quickly as possible, in a case with characteristics that pushed the legal system to the limits of its capacities.

[88]At the same time, however, the use of new instruments can conceal traps, and the proceedings in question offered fertile ground for them to emerge.

[89]The judge therefore decided not to expressly rule on the actions in warranty contained in a very large number of defences. He believed he was authorized to do

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so by paragraph 3 of the court agreement on calls in warranty, which is reproduced here again to facilitate the reading of the judgment:

[TRANSLATION]

3.The defendants agree that the Court will apportion liability as between them, in accordance with article 469 C.C.P., where applicable, and make such condemnation enforceable between them;66

[90]Here is what the judge said in this regard:

[TRANSLATION]

[49]Several parties have asked the Court to rule on the recourses in warranty included in the defences filed.

[50]As the Court has noted, the court agreement addresses the recourses in warranty.

[51]Since the parties have agreed to have the Court apportion the liability of each defendant pursuant to the provisions of article 469 C.C.P., and since the Court has done so in each individual judgment in the files, there is no need to revisit these applications.67

[91]On appeal, several parties brought up this issue and faulted the judge for not having ruled on the calls in warranty.68

Main judgment

[92]In December 2013, the judge accepted the parties’ unanimous suggestion to split the proceeding in order to postpone to a later stage the apportionment of amounts to be paid by the defendants and their insurers, if any. First, he rendered 68 judgments ruling on the issues of liability and insurance, and issued the corresponding condemnations. He named one of these decisions the [TRANSLATION] “Main judgment”. Then the judge rendered a judgment following the splitting of the

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proceeding in which he determined the share payable by each defendant or its insurer.

[93]There were three versions of the Main judgment: the original filed on June 12, 2014, and the corrected versions respectively dated July 31 and November 6 of that same year. Combined with the attached schedules, that judgment is 302 pages long and includes no less than 2,378 paragraphs.

[94]The judge conducted a detailed analysis of the issues relevant to liability, damages, and the insurance, and he drew a series of conclusions that he summarized as follows:

[TRANSLATION]

[2270] Based on its analysis, the Court arrives at the following conclusion:

(A) Plaintiffs

That the owner plaintiffs including the owner merchants are clients within the meaning of article 2098 C.C.Q. This applies to self-builders.

That, in that capacity, they benefit from the presumption in article 2118 C.C.Q.

That the plaintiffs suffered losses within the meaning of article 2118 C.C.Q.

That the serious defects affecting their properties occurred within five years of the construction, given the nature of the defect and its gradual, unavoidable development when the volume parameters of pyrrhotite are found in the aggregate.

That these defects started to exist as soon as the foundations were poured, and that the damage insurance policies were triggered as of this point.

(B) Carrière B & B inc.

That the liability of the B&B quarry arises from its status as manufacturer and specialized seller.

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That its liability is in solidum.

That it operated a common endeavour with concrete suppliers Béton Laurentide and Construction Yvan Boisvert inc.

That it failed to comply with the warranty of quality of its product.

(C) Concrete suppliers

That the liability of the concrete suppliers arises from their status as contractor, manufacturer, and specialized seller.

That they are subject to the obligations of contracts of enterprise.

That they failed to comply with the warranty of quality of their product.

(D)Contractors/formworkers

That the formworkers are specialized contractors who had turnkey contracts to build the works/foundations and that they are subject to the provisions of contracts of enterprise.

That they are bound to the warranty of quality and are presumed to know the defects of the works that they have carried out.

That the liability of the contractors arises from the provisions of the contracts of enterprise governing them.

That the presumption of liability of persons to whom it applies failed to rebut it.

(E) SNC Lavalin Inc. and Alain Blanchette

That SNC Lavalin Inc. and Alain Blanchette are liable in solidum for the damage caused to the plaintiffs for the period from May 2003 to November 28, 2007.

(F) Apportionment of liability

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That the apportionment of liability between the defendants is as follows for most of the residential cases, because certain actions will be addressed on their merits:

(That the 25% be divided in two, i.e., 12.5% for the concrete supplier at issue and 12.5% for the quarry)

That the apportionment of liability between the defendants in the commercial cases will be determined based on each case and claim. The same applies for certain individual cases.

(G) Cause of damage

That the sole cause of the damage is the oxidation of the pyrrhotite in the aggregate.

That any immovable in which the pyrrhotite volume in the aggregate was established at over 0.23% has a defect that causes or has already caused the concrete to expand internally, resulting in the damage claimed.

(H) Actions of GMN and QH

That both GMN and QH have proved the merits of their actions against the enterprises with whom they are bound by contract, aside from rare exceptions.

That GMN’s assessment of damages to perform the work to be done is accepted.

That the actions against the contractors’ sureties are well founded for the amount of $40,000.

That the share of liability between the sureties and the enterprise is set at 0% for the sureties and 100% for the contractors, the whole as between them only.

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(I)Share of damages to apportion

That the plaintiffs are liable for the share of damages attributable to the contractors/formworkers/supervisors who were not sued.

(J)Method of reparation

That the method of correcting the damage is to rebuild the defective foundations or slabs, except where specifically provided in the individual judgments.

(K)Construction G. Therrien inc. and commercial damage

That Construction G. Therrien inc.’s contractual relationship is governed by the provisions of a contract of enterprise.

(L) Action in nullity ab initio

That the companies Northbridge and Chartis are bound to honour the insurance policies that they respectively issued, except as of December 1, 2007, the date on which their issued policies were cancelled.

That the exclusion clauses raised by these two insurers do not apply to these claims.

Given the limited result of this contestation, the expenses will be borne by each party.

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(M) Pyrite exclusion

That the exclusions related to pyrite do not relieve the insurers from having to pay for the damage caused by the oxidation of pyrrhotite, a very different mineral from pyrite.

(N) Insurance towers

That the insurance towers established to cover SNC Lavalin’s professional liability for each year concerned apply respectively to the claims filed and presented annually.

That the exclusions raised by the insurers of these towers to limit their coverage does not apply to these claims.

That the 2009-2010 tower was eroded based on the decisions in this judgment.

That Ace Insurance Company’s request to limit its insurance coverage by raising a retroactive date is rejected because it does not apply to these situations.

That the costs of this debate be borne by SNC’s liability insurance companies.

(O) Interest and additional indemnities

That the interest granted runs as of the date of this judgment.

That the additional indemnities be granted as of the date of this judgment, except with respect to the immovables that have not yet been repaired.

(P) Apportionment of damages between insurers

That all the insurers/damages covering a party held liable must apportion the damages between them pro rata as of the exact dates of the coverage included between the time the concrete was poured and the date of crystallization admitted by the parties.

[95]Among the major determinations that do not appear in the judge’s list in the above-reproduced paragraph is the determination of the damage ratings. Continuing

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the process aimed at shedding the most possible light, experts conducted a visual inspection after which each property was assigned a damage rating. At the hearing, the parties admitted that immovables with a damage rating of 1 or higher required intervention. Most of the immovables fell into that category. It must also be borne in mind that for the purpose of the hearing, the parties had a geological analysis conducted of concrete core samples taken from numerous foundations to quantify the sulphides (pyrite or pyrrhotite) in the samples.

[96]Furthermore, as the Court has previously noted, the judge did not issue any specific conclusions on the applications for forced intervention. He instead apportioned liability in accordance with article 469 of the former Code of Civil Procedure69 only as between the various parties held liable, as reflected in sub- paragraph (F) reproduced above.

Judgment following the splitting of the proceeding

[97]That judgment is dated November 11, 2014.

[98]To summarize, the judge addressed the issues on the actual apportionment of amounts based on continuous trigger, shared liability, solidarity, and experts’ fees.

[99]The amount of the various shares for each sequence was determined using sophisticated computer tools created by an actuary whose services had been retained by the insurer Intact. These tools were thoroughly analyzed, after which the parties all acknowledged their usefulness and reliability.70

[100]In the judgment following the splitting of the proceeding, the judge also dismissed the requests of several defendants to rule on the recourses in warranty.71 On November 20, 2014, the judge corrected clerical errors in that judgment in the conclusions concerning sequences 84, 638, and 682.

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3 APPEALS

3.1First series of appeals

[101]First, it should be noted that certain parties – both plaintiffs and defendants – appealed the 68 judgments, even before the judgment following the splitting of the proceeding was rendered.

[102]Motions to dismiss these first appeals were filed by parties who had not themselves filed an appeal. Thus, rather paradoxically, certain plaintiffs and defendants found themselves united by a common goal.

3.2Management of appeals

[103]On September 24, 2014, the Court granted the joint motion to dismiss and declared that the appeals filed before the trial judge had rendered the judgment following the splitting of the proceeding were premature.

[104]This first series of appeals clearly foreshadowed those to come once the judgment following the splitting of the proceeding was rendered. Therefore, it was exceptionally decided to manage the conduct of the future proceedings even before the appeals of judgments rendered that day were formally filed. The management of this unusual case required the use of extensive judicial resources. In this regard, the considerable cooperation of all counsel involved must be noted.

[105]SNC/Blanchette was a party to all the files at trial and appealed the judgments rendered in the 68 Superior Court cases. This first step having been taken, the Court issued various safeguard orders, including one suspending all time limits until April 10, 2015.

[106]During this suspension, the parties vainly tried to agree to limit the number of appeals. In the end, 803 appeals were filed, 769 of which were still pending during deliberations. It should be noted that these appeals might group both appellants and respondents together, which is why the appeal files were not necessarily closed after certain appellants’ appeals were dismissed in the course of the proceedings.

[107]Over the course of multiple management conferences held after the appeals were filed, the parties agreed to a number of unprecedented measures to adapt the

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procedure to the exceptional nature of the matter. The most salient measures concerned the following points:

i)Uniting the parties into four large groups: Group 1: SNC/Blanchette and their insurers; Group 2: B&B/concrete suppliers and their insurers; Group 3: Contractors and their insurers;

Group 4: Plaintiffs.

ii)Filing of joint statements of fact per group, first on the general facts, and second on the facts related to the insurance.

iii)The identification of all issues raised in the notices of appeal in order to draw up a complete list. The list approved by the parties includes over 70 items.

iv)The grouping of these issues under the following main headings:

Liability of SNC/Blanchette;

Liability of B&B and the concrete suppliers;

Liability of the contractors;

Apportionment between the various parties held liable and the applications for forced intervention;

Liability issues related to individual cases;

Issues relevant to the extent of the damage;

Issues relevant to SNC/Blanchette’s insurance policies;

Issues relevant to the other insurance policies.

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[108]The parties separated the briefs into two sections: a first section common to parties included in a same group and a second section in which each group member who so wished could submit its own arguments.

[109]Using this particular format and in the sequential order above, the Court heard together all 771 appeals72 that had not yet been determined in the fall of 2017. Earlier, in December 2016, the Court had allowed 29 appeals by the Zurich Insurance

Company Ltd. [“Zurich”] because of a failure to summon in due form.73

[110]The hearings took place over eight weeks during the 2017-2018 judicial year. The parties abandoned several grounds for appeal in the course of this exercise, reducing the number of grounds to be dealt with by the Court to 50.74

[111]The Court would like to note that the pleadings had to be amended throughout the proceeding.75 Numerous errors and typos were also corrected.76 As such, it is important to note that the judgments filed today confirm many corrections in the parties’ designations.

[112]In this respect, a remark regarding the pleadings in both the trial and appeal pyrrhotite files as a whole is in order. The Court observed many unusual situations and many errors by the parties, particularly in the designations and conclusions of the pleadings. Up to the very last minute, the Court drew the parties’ attention to several of the errors, some of which had a major impact on the conclusions. The fact remains, however, that it was impossible to correct every error so that the corrections might be reflected in the judgments’ conclusions. In such cases, responsibility falls to the parties.

[113]During a case management conference held in early December 2018, the parties again raised considerations regarding future orders splitting the proceedings

72Due to two discontinuances in the course of the appeal proceeding, today’s judgments cover 769 appeals.

73In December 2016, the Court allowed the appeals by Zurich, in its capacity as BL’s insurer:

2016 QCCA 2006 to 2016 QCCA 2010 and 2016 QCCA 2016 to 2016 QCCA 2039 inclusively. Moreover, during the hearing in April 2018, the Court also dismissed various appeals, even though this did not close the files per se.

74In the spring of 2018, at the Court’s request, the parties verified the Table of grounds abandoned/discontinued. The Court used the final version of the table dated May 10, 2018, as a validation tool while drafting.

75For example, notices of change of status and applications for substitution were filed.

76To name but one, some appellants made mistakes in their notices of appeal by erroneously designating certain respondents.

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so that the pecuniary condemnations could be apportioned. At the Court’s urging, all the parties confirmed their request in a letter in late 2018. The Court will therefore order the proceedings to be split in the conclusions of today’s judgments.

[114]During the same case management conference, the Court discussed with the parties the possibility of retaining the services of Yves Demontigny to manage the information with the assistance of complex computer tools.

[115]The pyrrhotite cases were taken under advisement on June 13, 2019, after the Ministère de la Justice had in fact retained Mr. Demontigny’s services.77

4 STRUCTURE OF JUDGMENTS

4.1Foreword

[116]The judge accepted that the oxidation of pyrrhotite in the aggregate from the B&B quarry caused the internal expansion of the concrete. He reached this conclusion after a careful analysis of the voluminous expert evidence adduced at trial. The parties did not question this finding on appeal.

[117]The judge also concluded that the presence of a certain quantity of this pyrrhotite in the aggregate incorporated into the concrete met the legal definitions of both a latent defect and a construction defect.78

[118]Last, the judge found that the presence of pyrrhotite, in almost all cases, caused the loss of the work within the meaning of article 2118 C.C.Q. He held that the loss had occurred within five years of the construction.79

[119]The grounds raised by some parties against the judge’s findings will be discussed in greater detail, in particular during the analysis regarding the contractors’ liability.

[120]Last and in general, the Court finds that it would have been preferable had the judge followed the sequence of contracts, as it would have helped shed light on the

77The Court notes the significant technical work of Mr. Demontigny, who was of great assistance, more specifically concerning the presentation of the figures in the conclusions of these judgments.

78Main judgment at paras. 794–795, 863–873, 928–935, 1101, 1141 and 2270.

79Main judgment at paras. 791–793 and 818–829.

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rules likely to directly impact on each party’s share of liability. This finding has consequences on the plan and analysis the Court has decided to adopt.

4.2Outline of the Main judgment

[121]After certain preliminary remarks [“chapter 5”], in accordance with the rule set out above, the Court will analyze the issues by chapter, generally following the most common order of the contracts entered into between the parties, that is:

−The contracts of enterprise entered into between the owners and the general contractors or formworkers [“chapter 6”];80

−The contracts of sale of concrete by the concrete suppliers and B&B

[“chapter 7”];

−The contracts for professional services of geologist Blanchette and the issues related to his liability in general [“chapter 8”].

[122]The Court will then analyze the apportionment of solidary obligations or obligations in solidum and the applications for forced intervention [“chapter 9”].

[123]The Court will also analyze the general arguments on damages [“chapter 10”], as the more specific arguments are addressed in separate judgments.

[124]Finally, the Court will answer the arguments related to the insurance policies of the concrete suppliers, B&B, and certain contractors [“chapter 11”], as well as of SNC

[“chapter 12”].

[125]The parties will have noted that this plan does not systematically follow the order of the briefs and weeks of hearing described and discussed in paragraph [107](iv) of this judgment.

[126]At the outset, inspired by an intention comparable to the one that guided the trial judge, the Court identified and grouped the issues described in the inscriptions in appeal under eight headings. These headings served as a framework for the hearings, which were therefore held in the sequential order described in paragraph

80The adhesion contracts in the new home warranty programs signed by the contractors under which the warranty plan administrators sued the defendants are not on the list because they raise only a limited number of issues. These issues concern individual cases and will be dealt with in the judgments specific to the cases concerned.

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[107](iv). This meant that the regular appeal rules had to be relaxed as much as possible to allow judgments to be issued as quickly as possible.

[127]While this had many advantages, this novel approach was not without unexpected problems. As such, it was in some ways analogous to the trial judge’s approach.

[128]More specifically, it appeared that the order of the briefs and hearings did not always favour a logical, optimal consideration of the issues that had to be resolved to arrive at a solution. That is why the analysis below does not faithfully follow the initial approach, but relates more to the sequence of contracts.

4.3Standard of review

[129]Before starting the actual analysis, one final remark is called for.

[130]The pyrrhotite case is distinguished from the cases normally handled by the Court not only due to the unusual procedural rules put in place to arrive at a result within an acceptable time, but also because of the considerable volume of evidence adduced at trial. Even when trimmed down to the most important evidence, its reproduction on appeal required the preparation of over 470 volumes of approximately 400 pages each. These volumes were in addition to over 20 volumes dedicated to the reproduction of judgments, minutes, and pleadings of the joined issue. It should further be noted that the testimony was reproduced using a format of four pages to one.

[131]In this context, the highly relevant remarks by the Court in Berthiaume c. Réno-Dépôt inc. are worthwhile repeating:

[TRANSLATION]

The duty of deference regarding the general assessment of the evidence takes on critical importance with regard to complex, lengthy trials. Even working exhaustively, a trial judge cannot analyze every detail of the evidence, consider every precise aspect of this analysis, and justify all the reasons that

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will eventually explain the judge’s overall conclusions on the quality, weight, and effects of the evidence.81

[132]It has often been said that it is not for the appellate courts to retry the case, and there is no need to further expound on the reasons why this principle must apply in this matter.

5 PRELIMINARY REMARKS

[133]The purchasing parties base their actions in particular on the warranty of quality owed by the sellers and by the parties that the Civil Code associates with these sellers.82 In such matters, the orthodoxy of civil law generally requires that buyers choose between an action for reduction of the price and an action for cancellation of the sale.83

[134]In the highly particular context of this mega-trial and for their own reasons, the purchasing parties did not expressly make this choice. In practice, they agreed to treat their applications as claims for reduction of the price. This occasionally led to the unusual consequence where the parties bound to the warranty of quality were sometimes obliged to repay the full sale price, without restoration of the consideration for that price being offered.

[135]This particularity was neither appealed nor part of the debates per se before the Court, and it is therefore inappropriate to further discuss this subject, except to state that the conclusions in the Court’s judgments must not be understood to be an endorsement or, conversely, a repudiation of this result.

6 LIABILITY OF CONTRACTORS

[136]Nearly 60 general contractors were sued in the pyrrhotite cases.84 They built either residential or commercial immovables.85 Some were bound to the plaintiffs by a

81Berthiaume c. Réno-Dépôt inc., [1995] R.J.Q. 2796 at 2807 (C.A.). See also J.G. c. Nadeau, 2016 QCCA 167 at para. 79; Vidéotron, s.e.n.c. c. Bell ExpressVu, l.p., 2015 QCCA 422 at paras. 51–52.

82Article 1730 C.C.Q.

83Article 1726 C.C.Q.

84Main judgment at paras. 10 and 25.

85Main judgment at para. 10.

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contract of enterprise and some were bound by a contract of sale. In this last scenario, the contractors acted as property developers.86

[137]The formworkers were sued for having built the foundations that proved to be defective. In almost all these cases, the self-builders had retained their services in contracts to supply the concrete, the equipment, and the labour needed to complete the work. The judge characterized the contractual relationship binding these formworkers to their clients as a [TRANSLATION] “turnkey contract”.87

[138]The many appeals concerning the contractors’ liability are grouped into two classes of grounds: those common to all members of Group 3 or to some of them (the contractors and their insurers), and those raised individually by certain parties, which will be dealt with in specific judgments.88

[139]With respect to their liability, the contractors jointly raise three grounds, including Ground No. 7 on the application of article 2118 C.C.Q., Ground No. 16 on the warranty of quality and the presumption of knowledge of the defect, and, last, Ground No. 18 on the application of article 2098 et seq. C.C.Q.

6.1Ground No. 7: Liability under article 2118 C.C.Q.

[140]The trial judge determined that the contractors were bound by both the warranty against the loss of the work under article 2118 C.C.Q. and the warranty of quality pursuant to articles 1726 and 2103 C.C.Q.89 The reasons underlying his conclusions are set out in a number of paragraphs in the Main judgment.

[141]Under the heading [TRANSLATION] “7.1 Applicable notions: contract of enterprise and the presumption in 2118 C.C.Q.”,90 the judge listed the four elements essential to the application of the presumption in article 2118 C.C.Q. and explained why he felt that they were all present in this case:91

[TRANSLATION]

86Main judgment at paras. 1094–1096.

87Main judgment at paras. 1027 and 1101.

88Namely, those raised by Groupe immobilier Chaîné inc., Éric Chaîné and Geneviève Thériault, and Les Consultants René Gervais inc.

89Main judgment at paras. 1094–1101, 1141, and 2270.

90Main judgment at para. 787 et seq.

91See also Main judgment at paras. 1125 and 1127.

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[792]We are dealing with immovable works that have been affected by a loss and by a threat of a loss in the more borderline cases.

[793]As the Court has decided, the damage began as soon as the foundations were poured and appeared gradually and continuously. It is clear in the Court’s eyes that the loss within the meaning of article 2118 C.C.Q. occurred within five years of the construction.

[794]Some claim that it is not due to faulty construction or production (the contractors, the formworkers, and their insurers).

[795]With respect, the Court does not share their opinion because every immovable must be built in compliance with the applicable laws and regulations including, especially, the building codes and CSA standards. The experts have unanimously acknowledged that the codes apply in this instance.

[796]As we have seen, these standards prohibit deleterious substances from being used for concrete. As the Court has written, pyrrhotite is a deleterious substance according to this standard.

[797]Contractors are bound to an obligation of result and therefore cannot argue reasonable diligence in the performance of the work. They are responsible for coordinating and directing the work, which necessarily implies an obligation to supervise the quality and compliance of the various workers’ performance. The fact that an architect or an engineer was responsible for supervising the work does not relieve contractors from their own obligation to supervise and coordinate. Even when part of the performance of the work has been assigned to a subcontractor selected by the client, contractors responsible for coordinating and directing the overall work remain responsible for the supervision, quality control, and compliance of the work performed by subcontractors.92

[References omitted; emphasis added.]

[142]In the paragraphs that follow, the judge went on to discuss the grounds of exemption available to general contractors93 and those available to subcontractors.94

92See also Main judgment at paras. 1162–1176.

93Main judgment at paras. 798–809.

94Main judgment at paras. 810.

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He then rejected the contractors’ argument that geologist Blanchette’s fault relieves them of any obligation to the plaintiffs. He stated the following:

[TRANSLATION]

[805]The grounds of exemption in the rules of general law are set out in article

1470 C.C.Q. and include superior force, the fault of another person, or the fault of the owner.

[806]Although the legislature did not reproduce the grounds of exemption developed by the courts prior to 1994 regarding superior force or the fault of another person or of the owner, these grounds remain valid and may be raised by anyone involved in the construction, including the general contractor.

[807]Superior force must be something extremely serious that is unforeseeable.

[808]The fault of another person must also be beyond the control of those involved in the construction, unforeseeable, and irresistible. This other person cannot be a party to the contract or someone participating in the construction work.

[809]Last, contractors can raise the client’s fault in selecting the method of performance, if it can be established.

[810]Article 2119 C.C.Q. states that subcontractors may be relieved only by proving that the defects result from decisions of the contractor or from the expert opinions or plans of the architect or engineer.

[811]These contractors propose that they be relieved from any liability due to the fact that it was engineer Blanchette who committed errors in his expert opinion.

[812]The argument is tempting, but it does not apply. Blanchette’s services were not retained by the client plaintiffs and, to benefit from the exemption, they must prove the unforeseeability and irresistibility of the superior force that includes the fault of another person.

[813]Unforeseeability is assessed at the time of the contractual obligation according to the criterion of a reasonable person, while irresistibility is

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assessed according to a prudent and diligent person working in the area of activity.

[814]The legislator broadened the scope of the former article 1688 C.C.L.C. when it enacted article 2118 C.C.Q.

[815]The resulting presumption of liability is new law in that it subjects subcontractors to the presumption of liability for the work that they have performed, which was not covered by the former article 1688 C.C.L.C.

[816]The legal presumption of liability created by article 2118 C.C.Q. supplements contractual liability. That is why contractual or delictual liability or the seller’s warranty may be raised against those involved in the work. Moreover, as author Karim wrote, nothing prevents these recourses from being exercised at the same time and in the same application.

[References omitted; emphasis added.]

[143]The contractors and their insurers, in this case the members of Group 3, argue that the judge erred in concluding that article 2118 C.C.Q. applies.95

[144]In the alternative, they claim that the judge erred in law by disregarding their ground of exemption based on the existence of superior force.96 They contend that the damage was caused by other persons who did not participate in building the work. Similarly, they add that the judge erred in considering the concrete suppliers, B&B, and even SNC/Blanchette as parties to the contract of enterprise.97

[145]The Court will first consider the arguments concerning the inapplicability of the legal regime under article 2118 C.C.Q.

Theory of the inapplicability of liability under article 2118 C.C.Q.

[146]A brief contextual review is necessary.

[147]The trial judge held the contractors liable based on both the presumption established by article 2118 C.C.Q. and that arising under the rules on the warranty of quality related to contracts of sale. No error of principle vitiates the legal reasoning

95A.B.-3 at paras. 1–3.

96A.B.-3 at paras. 6–7.

97A.B.-3 at paras. 9–20.

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underpinning this conclusion. A few precisions are required, however, to shed greater light on the reasons why the argument of the Group 3 members cannot succeed.

[148]Before this Court, everyone, including the Group 3 members, agree that the matter falls primarily under the Code provisions on contracts of enterprise. The judge properly described the conditions of application for liability under article 2118 C.C.Q. He stated the following:

[TRANSLATION]

[791]Four elements are essential for the presumption of liability to apply. They

are:

a.an immovable work;

b.a total or partial loss of the work or at least the threat of a loss;

c.the loss must be due to:

1.faulty design; or

2.faulty construction; or

3.faulty production; or

4.defects in the ground.

d.the loss must occur within five years.

[149]In their appeal briefs as well as at the hearings, the Group 3 members contested the presence of only one of these conditions, the one described in paragraph (c).98 Therefore, in cases where there was a loss of the immovable work, the consensus on appeal is that this loss occurred within five years within the meaning of article 2118 C.C.Q.99

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[150]The Group 3 members believe that the problem with the foundations in this case is due to a latent defect and not faulty construction or production. That is why they claim their liability to the victims is based on the application of articles 2103 and 1726 C.C.Q., not article 2118 C.C.Q.100 According to these same Group 3 members, this argument alone should lead the Court to focus its analysis solely on the scope of their obligations under the rules on warranty of quality. That issue is addressed in Ground No. 16,101 where they contest the judge’s conclusions in this regard. In the legal environment of warranty of quality, the Group 3 members who entered into a contract of enterprise with the victims feel that they have proved that they were completely unaware of the defect and should only be required to restore the sale price of the concrete, to the exclusion of any obligation to repair the prejudice. Moreover, those who were bound to the victims by a contract of sale believe that their liability is limited to repaying the sale price of the immovable, after deducting the value of the land and the depreciation indicated in the spreadsheets.

[151]It is important to bear in mind the hierarchy of the application of the rules here. The structure of the drafting is important to clearly understanding the actual scope of the provisions that comprise the structured and hierarchical statutory scheme of the Civil Code. In the circumstances of this case, it is particularly apposite to refer to this hierarchy.

[152]Chapter VIII of Title Two on nominate contracts in the Book on Obligations deals with contracts of enterprise or for services. Division II concerns the rights and obligations of the parties. Its first subdivision is titled “General provisions applicable to both services and works”.102 Article 2103 C.C.Q., relied on by the Group 3 members, is in this subdivision. That provision is therefore part of a set of rules that describes the general rights and obligations resulting from any contract of enterprise or for services.

[153]However, article 2118 C.C.Q., repudiated by the Group 3 members, is in subdivision 2, titled “Special provisions as to works”.103 There is no dispute that works are involved here.

[154]Yet there is more. The legislator inserted article 2118 into an even more

precise division that deals specifically with “immovable works”. Again, nobody

100A.B.-3 at paras. 3–4.

101A.B.-3 at para. 5.

102Emphasis added.

103Emphasis added.

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disputes that this is precisely the subject matter of the proceedings under review. Incidentally, it should be noted that article 2117 et seq. C.C.Q. reproduced the legal liability of contractors previously provided in article 1688 C.C.L.C., while enhancing it in favour of the victims. This statutory scheme is in a way superimposed on the general regime of contractual liability when there is a loss of the work within the time set out in the provision. Social and public interest considerations are at the origin of this special scheme,104 which leaves little room for the notion of fault. It obeys its own rules and is applied only in limited cases.

[155]To put the proposed ground in its legal context, the Group 3 members ask the Court to determine that the specific rules on the subject matter that is at first glance contemplated by the proceedings under review do not apply and that the general rules apply by default. The principle that special rules prevail over general rules is established in interpretation matters,105 such that to succeed, the parties must prove that one or more elements prevent the special rules on legal liability from applying.

[156]The argument is essentially based on the assumption that there was no faulty construction in the cases under review because the problem with the foundations can be legally characterized as merely a latent defect. The Court finds that this proposal is unfounded.

[157]Of course, the concepts of latent defect and the faulty construction or faulty production of the work differ in some respects. However, that does not prevent overlap in certain scenarios.

[158]In the chapter on legal liability for the loss of the work, authors Sylvie Rodrigue and Jeffrey Edwards wrote:

[TRANSLATION]

Contrary to the defect covered by the seller’s warranty of quality, which is analyzed on the basis of loss of use, the legal liability defect of the contract of enterprise is instead considered from the perspective of a loss of the work. It is

104 Jacques Deslauriers, Vente, louage, contrat d’entreprise ou de service, 2nd ed. (Montreal: Wilson & Lafleur, 2013) at 813–814, Nos. 2475–2477; Sylvie Rodrigue & Jeffrey Edwards, “La responsabilité légale pour la perte de l’ouvrage et la garantie légale contre les malfaçons”, in Olivier F. Kott & Claudine Roy (eds.), La construction au Québec: perspectives juridiques (Montreal: Wilson & Lafleur, 1998) 409 at 413.

105See in this regard Richard Tremblay, L’essentiel de l’interprétation des lois (Cowansville, QC: Yvon Blais, 2004) at 57–59.

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possible, even probable, that the notions of loss of use and loss may overlap.106

[Emphasis added.]

[159]The Court is of the view that this is precisely what happened in the cases under review. There was both a loss of the work, which the Group 3 members acknowledge, as well as a considerable loss of use. This is a clear case of overlap, where the condition affecting the building foundations at issue can be characterized as both a latent defect within the meaning of article 1726 C.C.Q. and faulty construction or faulty production of the work within the meaning of article 2118 C.C.Q.

[160]In short, and that is the case here, the victims can enjoy the benefits of a dual compensation scheme; the more limited application arising from the presumption created by article 2118 C.C.Q. and the more general application arising from the rules on the warranty of quality.

[161]Since article 2118 C.C.Q. applies to every case under review involving a contractor,107 it becomes superfluous in a way to use the more general liability scheme arising from the warranty of quality. We might even add that it should not be used if the objective is to find causes of exoneration in addition to those provided in article 2119 C.C.Q.

[162]Like the trial judge, the Court therefore finds that the presumption of liability under article 2118 C.C.Q. applies. This finding therefore leads to the examination of the alternative argument proposed by the Group 3 members on the grounds of exemption they claim are available to them.

Grounds of exemption under the legal scheme applicable to certain losses of the work

[163]The 1991 Civil Code amended certain rules applicable to the legal liability of contractors, architects and engineers. Therefore, contrary to what existed previously,

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subcontractors are now subject to this liability, even if they have not entered into a contract of enterprise with the owner.

[164]In theory, contractors and subcontractors have an obligation of result under the legislative scheme in the event of loss of the work. In practice, given the unlikely possibility of exemption, this obligation of result is often closer to the maximum intensity obligation, in this case that of warranty.

[165]Under this legal scheme, the loss of the immovable work rests in principle on those who participated most directly in its construction. Article 2119 C.C.Q. lists a limited number of causes of exoneration that litigants subject to this scheme may raise. It reads as follows:

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2119. The architect or the engineer may be relieved from liability only by proving that the defects in the work or in the part of it carried out by him do not result from any error or defect in the expert opinions or plans he may have supplied or from any failure in the direction or supervision of the work.

The contractor may be relieved from liability only by proving that the defects result from an error or defect in the expert opinions or plans of the architect or engineer selected by the client. The subcontractor may be relieved from liability only by proving that the defects result from decisions of the contractor or from the expert opinions or plans of the architect or engineer.

Each may, in addition, be relieved from liability by proving that the defects result from decisions imposed by the client in selecting the land or

2119. L’architecte ou l’ingénieur ne sera dégagé de sa responsabilité qu’en prouvant que les vices de l’ouvrage ou de la partie qu’il a réalisée ne résultent ni d’une erreur ou d’un défaut dans les expertises ou les plans qu’il a pu fournir, ni d’un manquement dans la direction ou dans la surveillance des travaux.

L’entrepreneur n’en sera dégagé qu’en prouvant que ces vices résultent d’une erreur ou d’un défaut dans les expertises ou les plans de l’architecte ou de l’ingénieur choisi par le client. Le sous-entrepreneur n’en sera dégagé qu’en prouvant que ces vices résultent des décisions de l’entrepreneur ou des expertises ou plans de l’architecte ou de l’ingénieur.

Chacun pourra encore se dégager de sa responsabilité en prouvant que ces vices résultent de décisions imposées par le client dans le choix du sol ou des matériaux, ou dans le

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[166]The Group 3 members concede108 that they cannot rely on the application of any of the causes listed in article 2119 C.C.Q.

[167]All agree that superior force (article 1470 C.C.Q.), the general cause of exoneration common to every obligation, is added to the list in article 2119 C.C.Q. The Group 3 members raise this exceptional ground in connection with the crucial factor that is the causal faults of persons they consider third parties to the construction, i.e., the concrete suppliers, B&B, and SNC/Blanchette.

[168]The Group 3 members thus claim that the judge erred in the legal characterization when he equated the concrete suppliers and B&B to subcontractors.

[169]The Court considers that the concrete suppliers and B&B may be characterized as materials suppliers and not subcontractors, as the Group 3 members correctly submit. The Court is of the opinion, however, that the judge’s error does not affect the contractors’ liability to those who benefit from the legislative scheme under article 2117 et seq. C.C.Q.

[170]This is how the Group 3 appellants present the argument in their appeal brief:

[TRANSLATION]

[6]Despite the foregoing, it is submitted that if article 2118 C.C.Q. applies to the Contractors, based on the evidence adduced, the judge should have concluded that the Contractors have successfully rebutted the presumption of liability in article 2118 C.C.Q. by establishing that the presence of pyrrhotite in the concrete aggregate is due to superior force, i.e., an unforeseeable and irresistible external event (article 1470 C.C.Q.).

[Reference omitted.]

[171]The criteria of exteriority, unforeseeability, and irresistibility are admittedly cumulative, such that the absence of any one of them nullifies the argument that there was superior force. In this case, the judge found that two of the criteria were

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missing, as the defect was due to elements that were neither unforeseeable nor irresistible.109

[172]Without expressing an opinion on the criteria of irresistibility or unforeseeability, the Court finds that the criterion of exteriority is the primary obstacle to the argument of the Group 3 members, who write:

[TRANSLATION]

[16]Furthermore, as with any hardware store, internal systems seller, or brick supplier, materials suppliers are completely foreign to a construction site: they do not participate in completing the work and therefore must be considered third parties to the construction site. This is indeed what Professor Rousseau- Houle concluded in her work Les contrats de construction en droit public et privé:

[TRANSLATION]

Suppliers or manufacturers of components incorporated into the work do not perform the contract, and contractors, like architects, do not generally vouch for them. It would therefore be reasonable to admit that they may relieve themselves of liability by establishing the unforeseeable fact of suppliers or manufacturers.

[17]The judge also erred in law in finding that the faults of Carrière B&B, SNC, and Blanchette cannot relieve the Contractors of liability vis-à-vis the plaintiffs.

[18]Like the concrete suppliers, Carrière B&B, SNC, and Blanchette are actual third parties to the contract of enterprise because they were persons outside the construction site.

[References omitted; italics and underlining in original.]

[173]A comment is warranted regarding the source of this excerpt on which the Group 3 members’ argument is based. The excerpt as cited from the book by author Rousseau-Houle, later a member of the Court, is both incomplete and inappropriate in the current legislative context.

109Main judgment at paras. 1146–1154 and 1159–1176.

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[174]First, it is definitely not recommended to cite an excerpt from a passage that seemingly bolsters a position when the text as a whole dilutes the intended message. Below is the full text, including the part that was left out by counsel for the Group 3 members that does not bolster their position:

[TRANSLATION]

Suppliers or manufacturers of components incorporated into the work do not perform the contract, and contractors, like architects, do not generally vouch for them. It would therefore be reasonable to admit that they may relieve themselves of liability by establishing the unforeseeable fact of suppliers or manufacturers. Exemption will be rare, however, because in practice contractors and architects cannot merely claim that the materials were unsuitable or that the conditions of use were not compliant because they are competent enough to know if the materials are suitable and if they can be

used.110

[Underlining added; italics in original; reference omitted.]

[175]Moreover, author Rousseau-Houle was simply commenting on an interpretation of article 1688 C.C.L.C.

[176]Indeed, shortly before this, she wrote:

[TRANSLATION]

Third parties relied on for exemption, however, are most of the time participants in the act of building, and their legal situation is such that their fault cannot be raised by another participant in order to relieve or limit that participant’s own liability.111

[177]By introducing articles 2118 and 2119 C.C.Q., the legislator increased the legal liability of contractors, made subcontractors formally liable, and expressly subjected the contractors’ and subcontractors’ contractual liability to the warranty of quality owed by the sellers by enacting article 2103 C.C.Q.

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[178]Incidentally, as early as 1986, before the new Code came into force, this Court had recognized the argument that faulty construction within the meaning of article 1688 C.C.L.C. could result from the weakness of the materials used by a builder. On behalf of the Court, Nichols J.A. wrote:

[TRANSLATION]

With respect for the trial judge’s opinion, an exemption from proving the builder’s fault cannot, in my opinion, be considered to be an exemption from proving that the building perished due to faulty construction.

Faulty construction may exist without the builder being at fault. For example, it could be due to the weakness of the materials a builder used in good faith, in accordance with the required specifications. Despite this fact, the law presumes that the building perished due to the builder’s fault, and the builder has the burden of exculpating itself by proving superior force, fortuitous event, the owner’s fault, or an act by a third party.

This does not exempt the owner, however, from proving that the loss of the building is due to faulty construction.112

[Emphasis added.]

[179]Under the legal liability scheme of loss of the immovable work, therefore, it suffices to state that contractors are essentially accountable for the quality of the materials they incorporate into the work. Contrary to the arguments of the Group 3 members, the materials suppliers, in this case the concrete suppliers and B&B, are not third parties foreign to the construction, as indeed article 2117 C.C.Q. suggests. This provision actually enshrines the client’s right to examine the quality of the materials used, including, naturally, those that the contractors or subcontractors may have acquired from materials suppliers:

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2117. At any time during the construction or renovation of an immovable, the client, provided he does not interfere with the work, may examine the progress of the work, the quality of the materials

2117. À tout moment de la construction ou de la rénovation d’un immeuble, le client peut, mais de manière à ne pas nuire au déroulement des travaux, vérifier leur état d’avancement, la qualité des

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[180]That provision is new law. If the legislator decided to give the client a right enforceable against the contractor to examine the quality of the materials, it is among other things because the contract of enterprise grants the contractor the right to select the materials before they are incorporated into the work.113 In this regard, author Karim wrote:

[TRANSLATION]

4.Distinction with the freedom to choose the means of performing the work

1265. It is also important to draw a parallel between articles 2099 and 2117 C.C.Q. Even though the client is entitled to oversee the progress of the work performed by the contractor, the contractor remains free to choose the means of performing the work (choice of labour and materials, organization of work, etc.), except where otherwise stipulated in the contract. The effect of this autonomy in the performance of the work is that the client is prohibited from interfering in the performance of the work and the contractor becomes responsible for the work.114

[References omitted; emphasis added.]

[181]A crucial element is the fact that the legislator itself characterizes materials suppliers as “persons having taken part in the construction”:

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2726. A legal hypothec in favour of the persons having taken part in the construction or renovation of an immovable may not charge any other immovable. It exists only in favour of the architect, engineer, supplier of materials, workman and contractor or subcontractor for the work requested

2726. L’hypothèque légale en faveur des personnes qui ont participé à la construction ou à la rénovation d’un immeuble ne peut grever que cet immeuble. Elle n’est acquise qu’en faveur des architecte, ingénieur, fournisseur de matériaux, ouvrier, entrepreneur ou sous-entrepreneur, à

by the owner of the immovable, or for the materials or services supplied or prepared by them for the work. It is not necessary to publish a legal hypothec for it to exist.

[Emphasis added.]

raison des travaux demandés par le propriétaire de l’immeuble, ou à raison des matériaux ou services qu’ils ont fournis ou préparés pour ces travaux. Elle existe sans qu’il soit nécessaire de la publier.

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6.2Ground No. 16, part 1: contractors/formworkers’ warranty of quality and the presumption of knowledge of the defect in article 1728 C.C.Q.; part 2: ground concerning certain specific sequences

Ground No. 18: Absence of fault by the contractors/formworkers (2098 et seq. C.C.Q.)

[185]During the analysis of the previous ground, the Court determined that the contractors were fully liable to the victims under article 2118 C.C.Q.

[186]Grounds No. 16 and No. 18 concern the argument that the Group 3 appellants are relieved of all or part of their obligations under the rules governing contracts of enterprise.

[187]With respect to the grounds discussed in the analysis of Ground No. 7, it is evident that the arguments raised in support of that position are powerless to change the Court’s conclusions regarding the application of article 2118 C.C.Q.

[188]The Court finds that there is no practical interest in further considering the arguments developed in support of Ground No. 16117 with respect to the cases currently under review.118 As such, the Court has no opinion on the correctness of the trial judge’s conclusions on the merits of these arguments. These appeal judgments therefore do not hinder any new debate on these issues if by chance the context lends itself thereto during the upcoming proceedings.

[189]Ground No. 18119 will be implicitly addressed in the section on apportionment between the various parties held liable and the applications for forced intervention.

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7 LIABILITY RESULTING FROM THE SALE OF DEFECTIVE CONCRETE

[190]When the grounds raised in the various notices of appeal were being grouped together, seven of them concerned the liability of the Group 2 members (B&B and the concrete suppliers). Below is the general description:

−Ground No. 3: Application of the warranty of quality of the concrete suppliers and of B&B;

−Ground No. 7.1: Application of liability under article 2118 C.C.Q. of the Civil Code of Québec and the grounds of exemption;120

−Ground No. 13: CYB argues that it committed no fault;

−Ground No. 14: Causal connection broken between the facts alleged against CYB and the damages claimed;

−Ground No. 15: BL argues that it committed no fault;

−Ground No. 73: Discontinuance not taken into consideration by the trial judge;121

−Ground No. 9: Knowledge attributed to the concrete suppliers and to B&B (common endeavour)

[191]In the course of the proceeding, the concrete suppliers abandoned Grounds No. 14 and No. 15. They are therefore no longer disputed. Only the Group 1 members now raise Ground No. 3.122

[192]Apart from these grounds, CYB, and to a lesser extent B&B,123 raise Ground No. 9 titled [TRANSLATION] Knowledge attributed to the concrete suppliers and to B&B (common endeavour). Logic requires that the Court consider the issue of liability resulting from the sale of the defective concrete by examining this ground.

120This ground is also raised by Éric Chaîné and Geneviève Thériault in the specific cases.

121This ground will be addressed in the judgments on this specific case.

122With the exception of the specific argument in the case of Groupe immobilier Chaîné inc.

123B&B supports certain arguments of CYB that the [TRANSLATION] “common endeavour” does not correspond to any legal concept and that the judge had no reason to disregard the separate legal personalities of the three corporations. It adds that, should the Court accept CYB’s argument that there was no common endeavour, this finding applies equally to CYB, BL, and itself.

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7.1Ground No. 9: Knowledge attributed to the concrete suppliers and to B&B (common endeavour)

[193]CYB124 and B&B contest the judge’s conclusion that a common endeavour existed. By way of an introduction, here is how the judge described the situation:

[TRANSLATION]

[872]All those who claimed that the sole cause was the oxidation of the pyrrhotite in the aggregate expressed the idea that without this aggregate, there would not have been any damage.

[873]This aggregate, with this concentration of sulphides, was not fit for its intended use, which was to manufacture concrete.

[874]It is too easy for B&B to claim that the concrete suppliers must support the consequences of using the aggregate in their mix and to conclude that the quarry must be exonerated.

[875]The fact is that Laurentide and CYB dedicated their resources to operating the quarry for their benefit, in particular as concrete suppliers.

[876]The two concrete suppliers managed the quarry according to specific terms.

[877]They each held 50% of the shares and nothing in the evidence indicates that either party had greater decision-making authority with priority over the other.

[878]From 2001 to 2009, a representative of each concrete supplier was a B&B director.

[879]B&B board meetings were rather informal and no real minutes were recorded.

[880]While Laurentide handled the administrative side by providing its head office and some of its employees, CYB focused its participation on maintaining the heavy equipment required to operate the quarry and also provided the occasional services of some of its employees.

124CYB refers here to Construction Yvan Boisvert inc. and its insurers, Aviva and St. Paul.

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[881]The two shareholders and directors designated Richard Beauchesne, a technician at Béton Laurentide, as head of Carrière’s operations.

[882]Carl Poulin, CYB’s engineer, was also involved in managing Carrière, as evidenced by DSNC-69.9 in particular.

[883]The directors from each concrete supplier met to decide together how much to produce annually or as needed to meet their production of concrete or other products.

[884]The Court finds that, for the purposes of the quarry’s production, Laurentide and CYB together pursued a common endeavour within the meaning attributed by the Court of Appeal in Industries Rocan inc. c. Emballages Alpha inc.

[885]Indeed, in 2009, when Laurentide sold 50% of its shares in Béton Boisvert to Boisvert’s company for $1 million (DSNC-69.2), in section 6.04 of the contract of sale both parties said that they [TRANSLATION] “jointly operated the corporation that mines a quarry”.

[886]It appears superfluous to invoke the doctrines of the corporate veil or alter ego to avoid the consequences of decisions made by all the partners that are Béton Laurentide, CYB, and Carrière B&B.

[887]It is also quite revealing that the mandates entrusted to Alain Blanchette (DSNC 21, DSNC 30 and DSNC 46) were sent on letterhead with the logos of both the concrete suppliers and Carrière, as is the fact that B&B was accepted as an insured in the Groupe Bellemare starting in 2004, and not as part of CYB.

[888]The same is true for the report sent by Carrière and the two concrete suppliers to the insurers in 2007 on their product’s quality.

[889]B&B’s liability was incurred not because of an issue with the extraction of the stone, but because of the deleterious properties of the aggregate.

[890]As evidenced by the minutes of a Carrière B&B meeting, exhibit DSNC 7 dated January 23, 2002, it is clear that the concrete suppliers were informed of Maskimo’s problems and that they unanimously decided to take the necessary steps as of that moment to ensure that they produced quality stone.

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[891]Following that meeting, the representatives of each concrete supplier were assigned very specific responsibilities with a view to achieving this objective of producing quality stone.

[892]The testimony of Tom Bellemare and that of François Bellemare reveal that the directors and various representatives of the concrete suppliers, who were the same that made up Carrière B&B, were at the very least aware of the potential problem of using their aggregate, mined several hundred metres from that of Maskimo.

[893]This is why the Court finds that the concrete suppliers and Carrière must together bear the consequences of using the aggregate.

[References omitted.]

[194]CYB contends that there was no common endeavour linking CYB, BL, and B&B. It submits that each corporation had a separate legal personality, which the judge erroneously ignored.

[195]It claims that BL and CYB are actually competitors on the residential and commercial concrete market in Mauricie. BL acquired its block of shares in B&B and became a 50% shareholder with CYB only in 2001. B&B was created in 1994, however, which in its opinion confirms its separate identity.

[196]CYB adds that a common endeavour is not itself a legal notion. It is at most a factual description used by the Court on only one occasion in a highly specific matter125 very different from the one under review.

[197]The separate legal personality of each of the three corporations is also reflected in the disputes between them in the different cases. For example, CYB seeks BL’s liability by accusing it of having hidden essential information from it. The two concrete suppliers, for their part, fault B&B for having sold them aggregate unfit to manufacture concrete. Initially, in addition to arguing that the defect was apparent to the concrete suppliers, B&B replied that the concrete suppliers were the actual manufacturers of the defective property and that the aggregate, a raw material, cannot itself be defective. It should be noted, however, that B&B has since abandoned this last argument.

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[198]At trial, the judge used the words [TRANSLATION] “common endeavour” in reference to the remarks by Forget J.A., upon whose reasons the decision in Emballages Alpha inc. was based.126 In the context of the cases currently under review, CYB and B&B correctly criticize the use of the term [TRANSLATION] “common endeavour” and the parallel drawn with Emballages Alpha inc. It has very few similarities with the situation experienced by the three entities at issue.

[199]Moreover, as CYB argues, the judge appears to have in fact concluded that a common endeavour existed for the purpose of operating the quarry. As such, he merged the two concrete suppliers and associated B&B as a partner:

[TRANSLATION]

[884]The Court finds that, for the purposes of the quarry’s production,

Laurentide and CYB together operated a common endeavour within the meaning attributed by the Court of Appeal in Industries Rocan inc. c. Emballages Alpha inc.

…

[886]It appears superfluous to invoke the doctrines of the corporate veil or alter ego to avoid the consequences of decisions made by all the partners that are Béton Laurentide, CYB, and Carrière B&B.

[Reference omitted.]

[200]The Court finds that CYB correctly submits that it did not pursue a [TRANSLATION] “common endeavour” as such with BL aside from acting as a B&B shareholder, a situation that falls primarily within the rules applicable to business corporations.

[201]That said, the argument is not determinative given that it is based solely on an awkward drafting of the judge’s reasons. Although it undermines the explanations provided, this awkwardness is not reflected in the conclusions of the judgments under appeal. For each action granted, the judge condemned only the concrete supplier who supplied the concrete and solidarily as between that supplier and B&B. Ultimately, he apportioned liability equally: 50% for the concrete supplier at issue and 50% for B&B.

126Emballages Alpha inc. c. Industries Rocand inc., 2011 QCCA 1114.

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[202]In other words, the judge never condemned BL, CYB, and B&B solidarily, which would have been the logical outcome of a [TRANSLATION] “common endeavour” linking the three corporations. Similarly, the two concrete suppliers were never jointly condemned for the damage suffered by any of the plaintiffs. Such a conclusion normally would have flowed from the existence of a [TRANSLATION] “common endeavour” between BL and CYB had the judge intended to take it into consideration.

[203]An overall review of the judgments under appeal reveals that, despite the language used in certain paragraphs of the Main judgment, the judge first determined that there were two [TRANSLATION] “common endeavours”, one linking B&B and BL and the other linking B&B and CYB. He then applied de facto the solidarity between common enterprises under article 1525 C.C.Q.:

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1525. Solidarity between debtors is not presumed; it exists only where it is expressly stipulated by the parties or provided for by law.

Solidarity between debtors is presumed, however, where an obligation is contracted for the service or operation of an enterprise.

The carrying on by one or more persons of an organized economic activity, whether or not it is commercial in nature, consisting of producing, administering or alienating property, or providing a service, constitutes the operation of an enterprise.

1525. La solidarité entre les débiteurs ne se présume pas; elle n’existe que lorsqu’elle est expressément stipulée par les parties ou prévue par la loi.

Elle est, au contraire, présumée entre les débiteurs d’une obligation contractée pour le service ou l’exploitation d’une entreprise.

Constitue l’exploitation d’une entreprise l’exercice, par une ou plusieurs personnes, d’une activité économique organisée, qu’elle soit ou non à caractère commercial, consistant dans la production ou la réalisation de biens, leur administration ou leur aliénation, ou dans la prestation de services.

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[206]During his pre-trial examination on April 26, 2011, Mr. Boisvert said that he had not wanted CYB to acquire Bouvert’s block of shares. He stated the following:

[TRANSLATION]

Q.Was there a change in Carrière B&B in two thousand and one (2001)?

A.In two thousand and one (2001), yes, there was.

In two thousand and one (2001), Mr. Bouvet decided to sell his shares and offered them to me. I was not very interested, I preferred a partner who... a partner who delivers, who buys stone to have enough of a volume of stone to make the quarry profitable, and... so I had a right...

a right of first purchase or refusal, so I refused. And Mr. Bouvet sold his fifty percent (50%) to Béton Laurentide.127

[Emphasis added.]

[207]BL was interested in the venture because it saw it as a business opportunity to promote its own operations. Asked about this, Tom Bellemare explained that the Trois-Rivières concrete market was becoming competitive and BL was looking for an independent source of aggregate and prices that would allow it to position itself favourably compared to the other industry players.128 In this regard, the testimony of Louis Lesage, a BL director, is very revealing:

[TRANSLATION]

Q.OK. With respect to the quarry, the reason that quarry was purchased, you talked about purchasing the quarry as such; what was the purpose of that purchase? Was it to have a secure supply source?

A.That’s it!

Q.At a cost... at a good cost?

A.The lowest cost possible.

Q.That's it. OK

127Pre-trial examination of Yvan Boisvert (26 April 2011), vol. 451 at 185103.

128Pre-trial examination of Tom Bellemare (17 May 2011), vol. 449 at 184171.

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A.It’s the same for the sand pits, we own sand pits because not only stone goes into concrete. It also has sand. Therefore, we hold... we’ve owned sand pits for many years.

Q.OK.

A.We buy some and we sell some.

So the quarry was... it was logical to have a quarry so that we wouldn’t depend on other quarries to be able to control our costs. It’s called vertical integration.129

[Emphasis added.]

[208]It can easily be inferred from all the evidence that CYB was similarly motivated. Moreover, the two concrete suppliers signed a written agreement130 in which B&B intervened. One of the stipulations stated that the shareholders had to contribute equally to the required investments and that they would share B&B’s operating revenues equally.

[209]Moreover, each concrete supplier agreed to loan services for the benefit of B&B. Under these agreements, the judge noted that BL [TRANSLATION] “handled the administrative side by providing its head office and the services of some of its employees” while, in the judge’s words, [TRANSLATION] “CYB focused its participation on maintaining the heavy equipment required to operate the quarry and also provided the occasional services of some of its employees”.131 After reading the testimony of the senior executives of BL and CYB, it emerges that the concrete suppliers considered that each one contributed equally.132

[210]While the evidence reveals some compartmentalization between the activities of competitors BL and CYB, the same cannot be said for the individual relationships between each concrete supplier and B&B. Most of the following elements were noted by the trial judge:

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-A director from each concrete supplier sat as a director of B&B at all times from 2001 to 2009.133 BL and CYB, each in its own way, oversaw B&B’s operations. Richard Beauchesne, the only employee paid by B&B, was also employed by BL, who paid him the other portion of his total remuneration;134

-B&B board meetings were informal, even non-existent;135

-B&B had no separate telephone line. Its letterhead identified both concrete suppliers and their respective telephone numbers. As BL’s France Côté explained, concrete purchasers needed the proper information to contact the concrete supplier with whom they did business;136

-A crucial element is that once the block of shares previously held by André Bouvet ltée was purchased, BL and CYB were the only concrete suppliers to procure concrete aggregate from the B&B quarry. Each of them, for the purpose of their own operations, ensured that they had a secure, cost- effective source so that they could compete with the other competitors.137

[211]The evidence establishes that legally, B&B is bound by the warranty of quality of the product sold under the same contractual chain binding the concrete supplier to the client with whom it did business. On appeal, neither concrete supplier individually nor B&B continued to question their status as a manufacturer.

[212]All this clearly leads to the finding that BL and B&B together operated a business to manufacture and sell concrete. The same is true for CYB and B&B. In both cases, there was vertical integration, to use Mr. Lesage’s expression. The Court concludes that BL and B&B together form a tandem of manufacturers and professional sellers, as do CYB and B&B.

[213]The law on this issue is clear: When professional sellers and manufacturers are held liable under the warranty of quality (articles 1726 and 1728 to 1730 C.C.Q.),

133Main judgment at para. 878.

134Main judgment at para. 881.

135Main judgment at para. 879.

136 Main judgment at para. 887; Pre-trial examination of France Côté (10 May 2011), vol. 452 at 85614–185615.

137Main judgment at para. 852; Exhibit DSNC-69.17 (18 July 2011), vol. 302 at 127106; Pre-trial examination of Yvan Boisvert (26 April 2011), vol. 451 at 185190; Pre-trial examination of François Bellemare (11 May 2011), vol. 448 at 184029.

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they can avoid the effects of the presumptions applicable to them only by establishing one of the causes of exoneration. These causes are limited for professional sellers and are even more so for manufacturers.138 In this case, none of these possibilities applies. In other words, tandems BL/B&B and CYB/B&B have not rebutted the presumptions of liability against them under article 1728 et seq. C.C.Q. Therefore, the conclusion is that the participants in each of these common enterprises are solidarily liable to the victims,139 as the trial judge correctly decided.

[214] Therefore, Ground of appeal no. 9 fails.

7.2Ground No. 13: Absence of fault by CYB

[215]The trial judge attributed various faults to CYB, in particular:140

a)It failed to further question Professor Bérubé on the opinion in his report dated May 4, 2002;

b)Before 2005, it failed to insist on learning the opinion of Marie De Grosbois;

c)It failed to implement the plan that CYB, BL, and B&B had developed during the January 23, 2002, meeting;

d)It failed to adequately follow up on the potential problem with using aggregate extracted from the B&B quarry.

[216]In CYB’s opinion, the judge committed palpable and overriding errors in finding these faults. It raised this ground during the debates on the concrete suppliers’ liability to the victims. In such circumstances, the argument is of no interest because CYB was held solidarily liable with B&B as a manufacturer and professional seller, as the Court has just determined. This ground will warrant further consideration, however, during the analysis of the applications for forced intervention it is exercising against BL and SNC/Blanchette. Accordingly, the Court will deal with it in chapter 9

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on the apportionment of solidary liability and liability in solidum and the applications for forced intervention.

7.3Ground No. 3: Application of the warranty of quality of the concrete suppliers and B&B

[217]The Group 1 appellants, SNC/Blanchette and their insurers, invoke in their favour the intensity of the obligation of the manufacturers, in this instance, tandems BL/B&B and CYB/B&B.

[218]They submit that the Court, contrary to the trial judge, should hold them fully liable because, to paraphrase the words of the Supreme Court in ABB Inc. c. Domtar Inc.,141 manufacturers are ultimately responsible for the quality of their product.

[219]Again, this argument is relevant only to the debates on the applications for forced intervention and the apportionment between the various parties held liable. The Court will therefore deal with this subject in chapter 9. For now, and to end the debate as primarily raised under Ground No. 3, suffice it to say that there is no merit to the argument that an indirect consequence of the intensity of the manufacturers’ obligation is that SNC/Blanchette and their insurers are relieved of any liability to the purchasers of the defective concrete.

7.4Ground No. 7.1: Liability under article 2118 C.C.Q. and grounds of exemption

[220]The concrete suppliers argue that the judge characterized them as subcontractors and consequently held them liable pursuant to article 2118 C.C.Q.

The Group 4 members maintain that the judge’s characterization is correct.

[221]The Court has already concluded that the concrete suppliers do not meet the legal characterization of subcontractors. Ground No. 7.1 raised by the concrete suppliers is therefore founded but, ultimately, has no impact on the conclusions because they are still liable under the warranty of quality.

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8 LIABILITY OF SNC AND GEOLOGIST BLANCHETTE

[222]In addition to holding the tandems liable for the sale of defective concrete, the judge held SNC and its employee, geologist Blanchette, liable to both the tandems that had retained their services to assess the quality of their aggregate and to the victims. Liability is contractual in the first situation and extracontractual in the second. The Group 1 members – SNC, geologist Blanchette and their insurers – contest these determinations.

[223]At the outset, any doubt as to the identity of geologist Blanchette’s client or clients should be dispelled. Considering the Court’s conclusions on the relationships between the businesses making up the tandems,142 it is clear that the geologist was bound to both the quarry and the concrete suppliers by contracts for services starting in late 2003. The following analysis reflects this determination.

8.1Ground No. 1: Determination of geologist Blanchette’s faults

[224]The Group 1 appellants attack the trial judge’s determinations that geologist Blanchette committed a contractual fault against the tandems and an extracontractual fault against the plaintiffs.

[225]The judge in fact found that between May 15, 2003, and November 28, 2007, geologist Blanchette was at fault in producing reports on the quality of B&B’s concrete aggregate that misled the tandems. The reports’ conclusions led them to mistakenly believe that they could incorporate the concrete aggregate from the B&B quarry into the concrete without the risk of any deleterious effects.143

Criterion for assessing professional fault

[226]The Group 1 appellants note that a professional like geologist Blanchette is subject to an obligation of means. He must behave as would any prudent and diligent professional in the same circumstances, taking into account his degree of specialization.144

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[227]The appellants claim that the trial judge failed to apply this criterion when assessing geologist Blanchette’s liability. Rather than considering the steps taken by the geologist to determine whether he had behaved like a reasonable professional in the same circumstances, the judge instead began with the result of his analysis and conclusion on the safety of the B&B aggregate and then assessed his behaviour a posteriori.

[228]That argument is unfounded. As St-Pierre J.A. wrote in 2016, [TRANSLATION] “...

to identify the nature of an obligation (of means, result, or warranty) is to determine the criteria used to analyze the alleged behaviour for the purpose of deciding whether this behaviour is faulty and if it potentially incurs liability.”145 While it is true that the judge did not state the nature of geologist Blanchette’s obligation, the evidence he relied on to find that Blanchette was at fault establishes that he conducted his analysis according to the criterion of an obligation of means and not an obligation of result.

[229]The judge first determined the nature and scope of the geologist’s obligation based on B&B’s written request that he received in October 2003. The object of that service requisition was twofold: to conduct a petrographic examination of the stone samples delivered to his laboratory in accordance with standard ASTM C295 and to inform the client, who needed to know, [TRANSLATION] “... of the risks of using this stone to manufacture concrete, with respect to the percentage of pyrite in that stone”.146

[230]The nature of this contract for professional services was confirmed by geologist Blanchette himself, who stated on cross-examination that his services had been retained to set [TRANSLATION] “the record straight”147 on the quality of the aggregate.

[231]According to the Group 1 appellants, the judge should have considered the work requested of geologist Blanchette as a summary examination. The geologist himself, however, when acting as an expert tasked with assessing the analysis by a construction laboratory of the Maskimo stone, stated that a petrographic examination

145London Life Insurance Company c. Long, 2016 QCCA 1434 at para. 140 (reasons of St-Pierre J.A.).

146Exhibit DSNC-21 (23 October 2003), vol. 284 at 120182; Main judgment at paras. 191, 1196, 1278 and 1290.

147Cross-examination of Alain Blanchette (19 February 2013), vol. 469 at 191520; Main judgment at para. 1279.

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should be conducted in accordance with standard ASTM C295 to obtain an in-depth assessment of concrete aggregate to determine the presence of deleterious minerals or phases such as sulphides.148 Moreover, he wrote in his report that, given the means available, a petrographic examination in accordance with standard ASTM C295 [TRANSLATION] “... engages the liability of a professional who must offer clear recommendations in the report on whether or not the materials should be used based on the proposed use”.149

[232]The elements below show that the judge analyzed the evidence of geologist

Blanchette’s liability according to the criteria of an obligation of means and not an obligation of result, as the appellants incorrectly claim:

−faced with a specialized area outside his expertise, the judge relied on the opinions of a dozen experts to learn about the professional standards applicable to geologists and to assess geologist Blanchette’s behaviour at the time the facts occurred;150

−the judge noted in particular the expert opinions of geologist Chris Rogers151 and engineers Charles Tremblay and Raymond Juneau152 to determine the good practices and assess whether geologist Blanchette behaved like another prudent and diligent professional would have behaved:153

−the testimony of expert Rogers154 also justified the judge’s conclusion that the few warnings, reservations, and recommendations geologist Blanchette issued to his clients were late and of little use after he had unreservedly affirmed that the B&B aggregate was suitable to manufacture concrete;155

−as the contract for services granted to geologist Blanchette in 2003 expressly referred to standard ASTM C295, the judge was certainly correct to assess

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the professional’s work based on the obligations imposed by this standard during a petrographic examination;156

−the judge could also refer to the provisions of the code of ethics157 applicable to geologists at the time to assess the conduct of geologist Blanchette,158 especially since ss. 3.1.3 and 3.3.2 of that Code set out basic rules of prudence;159

−the judge also analyzed the conduct of geologist Blanchette in light of the obligation of every service provider to properly and fully inform clients.160 This obligation to inform requires among other things that any risk with particularly serious effects be disclosed.161 In this case, based on the evidence adduced before him, the judge concluded that geologist Blanchette had misled his clients when he replied without nuance to the questions in the contracts for services;

−last, the judge also considered the steps taken by geologist Blanchette in light of his duty of prudence162 to conclude that he issued his opinions without the most basic care.163

[233]Consequently, the appellants are incorrect to argue that the judge failed to assess geologist Blanchette’s professional conduct by applying the criterion of an obligation of means.

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Contesting the trial judge’s analysis of fault

Trial judgment

[234]The judge noted several lapses in the geologist’s conduct compared to the standard of a prudent and diligent professional in the same circumstances to conclude that geologist Blanchette, and hence SNC, had committed a fault.

[235]The judge inferred from the reports submitted by geologist Blanchette and from his testimony that he was of the view that the rock from the B&B quarry was of low absorbency, not conducive to oxidization, and of very good quality.164 Even though he had noted the presence of iron sulphides (pyrite and pyrrhotite) in the aggregate, the geologist felt that the aggregate would be protected from the minerals it could contain, particularly sulphides, because it was granitic rock. The granitic nature of the rock would prevent any expansion due to oxidation.165

[236]According to the judge, geologist Blanchette therefore imprudently adhered to an erroneous professional opinion, causing him to mislead his clients by reassuring them as to the quality of the B&B aggregate and its use to manufacture concrete.166 When he provided his opinions, geologist Blanchette was nonetheless aware of the opinion of other experts that iron sulphides were causing the aggregate to expand.167 He had acted as an expert in the Maskimo case, located 500 metres from the B&B quarry and was well aware of the problem with concrete expansion.168

[237]The judge also faulted him for not having considered the applicable standards, in particular CSA standard A23.1 on the quality of concrete aggregate and the danger of oxidation and expansion due to sulphides, and standard ASTM C295 on petrographic examinations.

[238]Geologist Blanchette was consulted during the development of standard CSA A23.1,169 and even though that standard does not set a maximum percentage of pyrrhotite or sulphide content in aggregate, it clearly warns against the presence of

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pyrite, pyrrhotite and marcasite in aggregate.170 He could not rely, however, solely on the absence of any quantification of the sulphide level in CSA standard A23.1. The geologist should not have disregarded the prohibition imposed by the standard with aggregate that produced excessive expansion in concrete given the consistently higher pyrrhotite content in the samples provided by his clients. The purported protection offered by the granitic nature of the rock was insufficient to justify such disregard.171

[239]The judge found that geologist Blanchette also breached standard ASTM C295 on petrographic examinations172 in that he failed to determine the presence of deleterious substances in the aggregate and limited himself to issuing reservations on the pop-outs and staining associated solely with architectural concrete.173 He also failed to differentiate the sulphide content in the aggregate analyzed.174 Consequently, the few recommendations and secondary reservations not to use the aggregate to manufacture architectural concrete were found to be late and of little use to his clients once he had replied that the B&B aggregate was suitable to manufacture their concrete, thereby misleading them.175

[240]Last, the judge concluded that geologist Blanchette had breached his ethical obligations under the code of professional ethics of geologists in force from 2001 to 2011.176 Given his knowledge of the experts’ opinions on the consequences of sulphides in the concrete aggregate, he issued an opinion without any nuance or warning, thereby misleading his clients when he had an obligation to make them understand the degree of uncertainty inherent in his observations and recommendations.177 In so doing, he also breached his obligation to clearly explain the facts, interpretations, uncertainties, and differences of interpretation on the subject.178

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Analysis

[241]In their brief, but particularly at the hearing, the Group 1 appellants attacked the trial judge’s conclusions on three fronts. They claim that the judge decided a posteriori based on the result rather than asking whether the geologist’s conduct was that of a reasonably competent professional in the same circumstances. They submit that geologist Blanchette based his opinion on the knowledge at the time that contemplated the danger of iron sulphides in more porous aggregate such as shale, whereas this case involved gabbro-granitic rock less prone to permeability. The appellants contend that the judge should have asked whether geologist Blanchette’s belief was reasonable, especially in light of the expert opinion of Bernard Erlin,179 whose services were retained by the appellants and to whom the judge made no reference in his decision. The appellants also argue that geologist Blanchette did include the appropriate warnings to his clients in his written reports.

[242]Determining fault is a question of mixed fact and law.180 As previously stated, expert evidence is usually necessary in matters of professional fault to allow courts to learn about the professional standards and determine whether the professional behaved as a prudent and diligent professional in the same circumstances normally would have behaved.181 In this regard, it should be noted that assessing the quality and weight of expert testimony is left to the court’s discretion.182 The rule regarding an appellate court’s deference to the trial judge’s factual inferences also applies to the credibility of expert witnesses and ordinary witnesses.183

[243]In this case, according to geologist Blanchette’s argument, even though the B&B aggregate contained iron sulphides, either pyrite or pyrrhotite, there was no danger in using it to manufacture concrete as long as it was granitic (gabbro) rock incorporated into good quality concrete. The rare cases of aggregate expansion due

179 Exhibit DSNC-86 (26 April 2012), vol. 407 at 168083. See also Exhibit DSNC-130, vol. 408 at 168149.

180Salomon v. Matte‑Thompson, 2019 SCC 14 at para. 32; St-Jean v. Mercier, 2002 SCC 15,

183Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351 at 358; Simard Vincent c. Conseil de la nation Huronne-Wendat, 2010 QCCA 178 at para. 49.

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to sulphides only occurred in shale rock, which is more porous and permeable than granite.

[244]According to geologist Blanchette, the sole inconvenience caused by the sulphides in granitic concrete stone was purely esthetic due to sulphides on the periphery of the aggregate. These problems were limited to pop-outs and staining, which made this aggregate unsuitable for esthetic concrete.184

[245]His reports to CSL and the tandems between May 2003 and October 2006 were based on this position. That was also the position he defended during his testimony.185

[246]On top of this belief is the fact that no applicable standard dictated an acceptable maximum amount of iron sulphides in concrete aggregate. Indeed, that is what geologist Blanchette stated in his reports and repeated in his testimony.186

[247]Geologist Blanchette’s position is confirmed by expert Bernard Erlin, who recalled that there is no North American quantitative standard on the maximum sulphide content in concrete aggregate and wrote that the problems caused by the iron sulphides in the aggregate were limited to esthetic inconveniences (pop-outs and staining). He also agreed with the idea that the problem with oxidation and expansion was more likely to occur in porous stone and in concrete of poor quality.187 According to the expert, that was the state of knowledge at the time geologist Blanchette drafted his reports between 2003 and 2006.188

[248]The judge instead accepted the opinion of the other experts that the oxidation of pyrrhotite in the concrete aggregate and even in granitic rock was known at the time of geologist Blanchette’s reports, which should have led him to be more prudent in his opinions.189

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[249]The judge also based himself on the opinion of experts Marc-André Bérubé,190 Michael Maher,191 and Chris Rogers,192 who clearly contradict the opinion of expert Erlin on this issue.

[250]Furthermore, geologist Blanchette’s own experience in the Maskimo quarry case193 should have convinced him to be more prudent in his opinions. In the spring or early summer of 2003, he was approached by a law firm representing the insurers of a construction laboratory and asked to assess whether the tests conducted on the Maskimo aggregate were consistent with good practice.194 He was also given expert reports on the degradation of concrete manufactured with Maskimo aggregate, which he read.195

[251]These expert reports blamed the degradation on the iron sulphides in the Maskimo aggregate, an aggregate that was similarly granitic (anorthositic gabbro) to that of B&B.196 The two quarries are 500 metres apart and in the same geological setting.197

[252]Even though geologist Blanchette and others instead blamed the degradation of concrete made with the Maskimo aggregate on the poor quality of the concrete and even of the cement, these expert opinions clearly establish that the oxidation of iron sulphides in granitic concrete and the concrete expansion were known at the time geologist Blanchette provided his opinion on the B&B stone.

[253]In his report, expert Chris Rogers rightly criticizes geologist Blanchette for having disregarded the existence of this documentation, which he had nonetheless read.198 There was no such mention by expert Erlin.

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[254]In short, the Court finds that the judge’s conclusions that geologist Blanchette was imprudent are largely based on the evidence and are immune from intervention. He disregarded in particular the literature that discussed the danger of iron sulphides in concrete aggregate. These conclusions were even more justified in the context of geologist Blanchette’s observations that the B&B aggregate contained levels of iron sulphides that not only exceeded those observed in the Maskimo aggregate, but were even the highest he had ever seen.199

[255]Given the contracts for services entrusted to the geologist to assess the risks of using the B&B stone to manufacture concrete, the Group 1 appellants incorrectly claim that geologist Blanchette’s belief was reasonable according to the knowledge at the time.

[256]The appellants also rely on the opinion of expert Bernard Erlin in support of the argument that geologist Blanchette properly warned B&B about using aggregate containing iron sulphides to manufacture concrete, which is specifically required by standard ASTM C295 on petrographic examinations.200 Section 15 obliges the author of the report to discuss his or her findings and conclusions in words that are intelligible for those who must decide whether a material is suitable for use as concrete aggregate. The author must also describe the quality and quantity of any aggregate property or constituent recognized as deleterious. Moreover, the mandate entrusted to Blanchette in October 2003 expressly referred to that standard.201

[257]Standard ASTM C295 must be read together with CSA standard A23.1, which is the reference for preparing and applying cement concrete.202 While it does not set out any maximum sulphide content for concrete aggregate, clause 4.2.3.5.2 of CSA standard A23.1 contains a warning that aggregates that produce excessive expansion in concrete shall not be used for concrete “unless preventive measures acceptable to the owner are applied”.203

[258]In his report, expert Erlin asserted that geologist Blanchette complied with the standards’ requirements and adequately informed B&B of the potentially deleterious effects of sulphides in the concrete aggregate. The expert said that Mr. Blanchette

199Pre-trial examination of Alain Blanchette (15 September 2011), vol. 450 at 184875.

200Exhibit CYB-5.13, vol. 423 at 173541. See also Main judgment at paras. 229–230 and 240-242; Above at para. [231].

201Exhibit DSNC-21 (23 October 2003), vol. 284 at 120182.

202Above at para. [238].

203Main judgment at para. 225. See also Exhibit P-10 (1 May 2013), vol. 404 at 166893.

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warned B&B that the aggregate should not be used for architectural concrete because of the effects of sulphide oxidation on the concrete’s esthetic, that the aggregate should be used for normal density concrete of good quality, that production should be monitored to ensure that the percentage of iron sulphides did not increase compared to the analyzed sample, and that a more detailed study of the quarry should be conducted to properly identify those sectors with aggregate of a higher quality mineralogic composition.204

[259]That opinion was disputed by several other experts who were instead of the opinion that, given the circumstances and the state of knowledge at the time, geologist Blanchette breached his professional obligations by failing to recommend that the B&B aggregate should not be used to manufacture concrete.205

[260]The most cutting opinion was that of expert Chris Rogers, first in his expert report206 but primarily during his examination at trial of May 3, 2013. When questioned on the recommendations of geologist Blanchette in his opinions from 2003 to 2006, expert Rogers explained in visual terms why such recommendations were late and useless after the geologist had determined that the aggregate was suitable for manufacturing concrete:

A.He's already recommended that the material be used. He's saying that don't go above seven percent, but it's too late. The — he's already given approval or recommendation to use it in concrete. He could prevent — he's recommending not to get more than seven percent, I think, and he's indicating fairly simple ways of measuring the sulphides other than petrographic examination; but the horse is out of the stable.207

[261]The trial judge cannot be faulted for accepting that opinion.208

[262]Last, the Group 1 appellants claim that the judge failed to refer to expert Erlin or his opinion in the Main judgment.

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[263]That criticism is without merit. First, the trial judge was not bound to comment on each piece of the particularly abundant evidence when he rendered his decision.209 Moreover, it is clear from reading the Main judgment that the judge did not take into consideration that expert’s opinion.

[264]Last, the judge had several justifiable reasons for failing to refer to the opinion of the appellants’ expert:

−expert Erlin limited his study exclusively to North American standards and did not refer to any French or European standards, unlike the other experts;210

−at the time he drafted his report, he was unaware that geologist Blanchette had acted as an expert in the Maskimo case;211

−he was also unaware that geologist Blanchette had read at least two expert reports blaming the degradation problems of the Maskimo concrete on the reaction of iron sulphides in the Maskimo aggregate;212

−on cross-examination, he acknowledged that over the course of his career in petrography, he had never seen concrete aggregate containing 5 to 7% of iron sulphides;213

−last, he acknowledged that had he observed such sulphide levels in concrete aggregate given to him for analysis by a client, “... I certainly would have provided cautions about the use of the aggregate”.214

Multiplicity of faults

[265]The argument was raised during the hearing that geologist Blanchette committed only one fault that extended from May 2003 to November 2007. That

209Lecavalier c. 9036-5560 Québec inc., 2015 QCCA 551 at para. 6.

210Report of Inspec-Sol (13 July 2012), vol. 404 at 167010; Report of Marc-André Bérubé (11 November 2011), vol. 406 at 167838; Exhibit DDMT-18a (19 June 2013), vol. 416 at 170940; Exhibit DCH-2.1 (10 November 2011), vol. 420 at 172462–172463; Exhibit DC-24 (24 October 2011), vol. 425 at 174088.

211Cross-examination of Bernard Erlin (21 June 2013), vol. 478 at 195527.

212Cross-examination of Bernard Erlin (21 June 2013), vol. 478 at 195531. See above at paras. [248]–Erreur ! Source du renvoi introuvable. and note 196.

213Cross-examination of Bernard Erlin (21 June 2013), vol. 478 at 195511.

214Cross-examination of Bernard Erlin (21 June 2013), vol. 478 at 195518.

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argument is inconsistent with the facts. On the contrary, even though these professional faults were of the same nature, they were all distinct and were all committed and repeated each time geologist Blanchette reassured his clients on the quality of the B&B concrete aggregate. Several reasons support this finding.

[266]First, the geologist’s reports were prepared further to separate requests. CSL requested the report of May 13, 2003,215 in circumstances described by geologist Blanchette in his testimony both at pre-trial examination and at trial216 and which the Court will have an opportunity to revisit during the review of Ground No. 5.217 That request for an expert opinion was made verbally.

[267]The December 2, 2003, report sent to B&B on January 6, 2004,218 was prepared following a written request signed by France Côté on October 23, 2003.219 The report of December 13, 2005,220 was in response to another written request by B&B dated September 8, 2005, this time signed by François Bellemare.221

[268]The record contains no written request for the reports of November 10, 2004, sent to B&B on November 18, 2004,222 and of August 25, 2006, sent on October 31, 2006.223 According to the judge, the request for this last report was made in August

2006.224 Last, the report of November 28, 2007,225 was the second progress report on the concrete expansion-testing program proposed by geologist Blanchette226 after he

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received a copy of geologist Lucie Tremblay’s report,227 dated August 31, 2006, from B&B and met with the B&B officers at their office.228

[269]The preceding paragraphs clearly illustrate the distinct circumstances and requests that gave rise to the separate reports produced by geologist Blanchette.

[270]Second, as each report revealed, the characteristics of the concrete aggregate analyzed by geologist Blanchette were different. Not only was the calibre of the aggregate analyzed variable according to the examinations, the nine-month progress report of November 28, 2007,229 was a comparative study of three distinct stones, two of which came from two different sectors of the B&B quarry and a third from the Maskimo quarry. Most importantly, the pyrite or pyrrhotite content, since geologist Blanchette did not differentiate between them, varied depending on the samples. The May 2003 report prepared for CSL230 indicated that the pyrite content was 1% to 2%. The petrographic examination conducted at B&B’s request in December 2003231 indicated an iron sulphide (pyrite and pyrrhotite) percentage of 3%. It increased from 5% to 7% in the November 2004 examination report,232 which led geologist Blanchette to advise against using this aggregate for architectural concrete, which was not produced by his clients.233

[271]In the petrographic examination report of December 2005,234 iron sulphides accounted for 2% to 3% of everything analyzed, resulting in a pyrite equivalent of 2.26%, while in the report of August 2006,235 geologist Blanchette noted approximately 4% to 5% of iron sulphides (essentially pyrrhotite and pyrite) in the sample. Last, in the nine-month expansion test report of November 2007, geologist Blanchette noted that the equivalent pyrite content was higher in the two B&B quarry samples (3.74% and 3.25%) and lower in the Maskimo quarry sample.236 He found the percentage of oxidized fragments in the pyrite-rich B&B quarry sample worrying

227Exhibit DSNC-46 (7 September 2006), vol. 285 at 120450; Exhibit DC-10 (31 August 2006), vol. 326 at 136958.

228Exhibit DSNC-46 (7 September 2006), vol. 285 at 120450; Above at paras. [296]–[299] and [304]– [305].

229Supra note 225.

230Supra note 215.

231Supra note 218.

232Supra note 222.

233Main judgment at para. 1223.

234Supra note 220.

235Supra note 223.

236Supra note 225.

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and for the first time concluded, as a preventive measure, that it should not be used as concrete aggregate.

[272]In his career, geologist Blanchette has generally encountered sulphide levels varying between 0.6% and 3% in the files he had to examine.237 He had to acknowledge that the sulphide levels in his reports for B&B were higher than any he had encountered in the past.238 This was already the case for the level of 5% in his December 2003 report for B&B,239 and the level of 5% to 7% in his November 2004 report240 were double what he had seen in his entire life.241

[273]Third, each time geologist Blanchette gave an opinion favouring the use of the B&B aggregate, he participated in increasing the number of concrete pourings contaminated by pyrrhotite and therefore of foundations degraded by oxidation and expansion, and thereby increased the number of victims and the amount of damage.

[274]The same is true for the subsequent reports. Each time geologist Blanchette concluded that the B&B aggregate could be used safely in construction concrete, despite iron sulphide contents that he had never seen throughout his career, he encouraged the incorporation of this aggregate into other concrete pourings and into new building foundations.

[275]It was only in his second report, nine months into the comparative concrete expansion-testing program of November 28, 2007, that geologist Blanchette recommended that the pyrite-rich B&B aggregate should not be used as concrete aggregate.242 His clients understood this recommendation to mean that they had to stop using all concrete aggregate from the quarry because it was the first time that geologist Blanchette said that it should not be used.243

[276]Even in this last case, the trial judge noted that geologist Blanchette could have acted as of February 2007. In fact, the schedules to the November 28, 2007, report reveal that the geologist had already noted in February 2007 that 30% of fragments observed displayed surface oxidation described as concerning.244 In the

237Main judgment at para. 1240.

238Main judgment at para. 1252.

239Supra note 218.

240Supra note 222.

241Main judgment at paras. 1253–1254.

242Exhibit DSNC-51 (28 November 2007), vol. 285 at 120493.

243See subsection 8.5 of this judgment on Ground No. 8.

244See the conclusion of Schedule A: Exhibit DSNC-51 (28 November 2007), vol. 285 at 120505.

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judge’s view, this 10-month delay by geologist Blanchette before conveying his concerns to his clients allowed the damage to continue increasing [TRANSLATION] “due to the use of the defective aggregate”.245

[277]What geologist Blanchette’s faults have in common is their nature. In every petrographic analysis conducted and in each report up to November 28, 2007, he failed to warn his clients of the risk associated with using defective concrete aggregate containing pyrrhotite. The above paragraphs establish, however, that these faults are distinct due to the specific circumstances of each request he received for a petrographic examination because of the characteristics of each sample analyzed and because, up to November 28, 2007, each report that was produced contributed to creating additional, distinct damage with every concrete pouring.

[278]The above analysis leads to the conclusion that the trial judge’s decision on geologist Blanchette’s faults is solidly based on both the expert and the lay evidence. Consequently, Ground No. 1 must fail.

8.2Ground No. 2: Causal connection between geologist Blanchette’s faults and the damage

[279]The Group 1 appellants next argue that if geologist Blanchette committed faults, they cannot be held liable vis-à-vis B&B and the concrete suppliers because there is no causal connection between these faults and the damage suffered.

[280]Ground No. 2 is raised in connection with the contractual liability arising out of the requests for professional services received by geologist Blanchette from the tandems as of October 23, 2003.246

Reasons

[281]The Group 1 appellants first submit that the trial judge failed to truly analyze the causal connection and considered only the geologist’s faulty conduct. His reasons on the causal connection are therefore insufficient.

[282]This argument has no merit. Taken as a whole, as they should be, the judge’s reasons clearly explain the basis of his decision.247 He expressly stated that geologist

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Blanchette’s erroneous opinions misled the tandems on the quality of the concrete stone.248

[283]Furthermore, once the judge determined that the pyrrhotite in the concrete aggregate was the sole cause of the degradation in the building foundations, the substance of geologist Blanchette’s opinions to the tandems on the quality of that aggregate left little room for doubt as to the causal effect between these repeated opinions and the damage suffered. As stated by the authors: [TRANSLATION] “[i]n most cases, the courts do not raise the issue of causation because there is a clear relationship between the fault and the damage”.249 In such circumstances, the judge was certainly not required to devote an entire section of his judgment to the causal connection, as the appellants incorrectly argue.

Assessment of causation

[284]Next, the appellants claim that the judge erred in law by ignoring certain factors establishing the absence of a causal connection between the professional’s faults and his clients’ damage. They raise in particular the fact that the clients acted without taking into account the opinions and advice proffered, that it was unreasonable for the clients to rely on geologist Blanchette’s reports, and that the damage suffered resulted instead from their own choices, negligence, or recklessness.

[285]Causation is a question of fact,250 which is why the trial judge’s determinations are owed deference in this matter.251 Victims of an injury must prove that the damage was the logical, direct, and immediate consequence of the fault.252 This direct and immediate causal connection is established on a balance of probabilities.253

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[286]Here, and as will be seen below, although the Group 1 appellants have worded this ground of appeal as an error in law, they question only the trial judge’s reading of the evidence.

Argument on the break in the chain of causation

[287]More concretely, and even though they ardently defended themselves at the hearing, the appellants argue that the recklessness of geologist Blanchette’s clients is tantamount to a novus actus interveniens that broke the causal connection between the geologist’s faults and the damage.

[288]For this ground to succeed, they must prove, first, that the connection between the fault committed and the damage was completely broken or that it disappeared entirely, and second, a new connection based on a subsequent event totally unrelated to the initial fault.254 In all other instances, only the continuation of the same process involving two contributory faults can give rise to shared liability.255

[289]In support of their argument on the absence of a causal connection, the appellants raise the fact that the quarry and the concrete suppliers ignored the reports and recommendations of their own experts on the dangerousness of the B&B aggregate in 2002, even before the contract for services entered into with geologist Blanchette, and in 2006.

The 2002 Bérubé report

[290]After BL received a formal notice regarding the IGA building, one of the most discussed cases in the Maskimo quarry files, Michel Bergeron of BL asked geologist Professor Marc-André Bérubé to compare a B&B aggregate sample with the Maskimo aggregate used in the IGA foundation.256 He was asked whether the stone from the B&B quarry could produce the same deleterious effects as the Maskimo stone.257

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[291]This is what geologist Bérubé wrote in the conclusion of his report dated May 4, 2002:

[TRANSLATION]

... To the extent that pyrrhotite actually caused the issues observed in the above-mentioned building and that its chemical composition is similar, there is every reason to believe that the aggregate examined could also cause the same type of issue because its sulphide content is significant.258

[292]The appellants attach a great deal of importance to this report and argue that it was not followed by the quarry or the concrete suppliers. Despite this opinion warning about the reactive potential of the B&B aggregate, they continued mining it for 17 months, until October 23, 2003, the date a first contract for services was entered into with geologist Blanchette.259 In their brief,260 and even in their description of the facts,261 the appellants implicitly suggest that the tandems gave Blanchette a rubber- stamp mandate merely to obtain confirmation of a decision already made to mine the B&B aggregate.

[293]The appellants contend that geologist Bérubé’s report of May 2002 and the failure of the quarry and the concrete suppliers to follow it establish that there was no causal connection between geologist Blanchette’s later faults and the damage suffered.

[294]The appellants are incorrect. First, as geologist Bérubé himself acknowledged262 and as the judge noted,263 the geologist’s warning was not as clear and categorical as the appellants claim. Moreover, several weeks earlier, shareholder Lafarge sent Michel Bergeron of BL a report on the chemical analysis of the B&B aggregate.264 On February 22, 2002, Mr. Bergeron called Ms. De Grosbois at Lafarge for clarification of the report, which he did not understand. Ms. De Grosbois explained to him that the B&B stone was good.265

258Exhibit DSNC-14 (4 May 2002), vol. 284 at 120148–120152.

259Exhibit DSNC-21 (23 October 2003), vol. 284 at 120182.

260A.B.-1 at para. 90.

261Joint statement of general facts (Group 1) at paras. 178–180.

262Cross-examination of Marc-André Bérubé (29 May 2013), vol. 476 at 194403–194404. Moreover, at the time he wrote his report, he was unaware that the aggregate he was to analyze was being used to make concrete (at 194403).

263Main judgment at paras. 302–305.

264Exhibit DSNC-9 (21 February 2002), vol. 284 at 120083.

265Pre-trial examination of Michel Bergeron (28 April 2011), vol. 449 at 184457.

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[295]Second, at the time geologist Bérubé provided his opinion, the B&B quarry had already been operating for six years without any problem. Added to this was the fact that, at that time, there were other theories circulating to explain the degradation of the concrete manufactured with Maskimo aggregate, including poor concrete paste or even poor cement.

[296]That is why in his handwritten notes for November 29, 2001, Michel Bergeron of BL recorded a discussion with Patrick Plante. Mr. Plante told him that he had received a stone sample from Bernard Marcotte, then employed by Maskimo, and that their specialist had confirmed that the B&B stone could not cause the same problems facing Maskimo and that the problems would instead be with the cement.266

[297]The study to which Mr. Plante referred was the petrographic examination prepared by LVM Fondatec, whose report is dated January 4, 2002.267 That study, which Mr. Bergeron did not see,268 was in fact conducted at the request of Bernard Marcotte, who sneaked into B&B, his competitor at the time, surreptitiously took some concrete stone, and asked LVM Fondatec to compare the sulphide content in that stone with that of the Maskimo stone.269

[298]The January 4, 2002, report compared two samples, one from Maskimo270 and the other one from B&B, 271 for which petrographic examinations were conducted according to standard ASTM C295. The results were consistent with the information provided by Patrick Plante to Michel Bergeron, in that the sulphide content in the B&B aggregate was five times lower than in the Maskimo aggregate.272

[299]These hypotheses were not purely theoretical for BL, who briefly used the CSL cement instead of the cement from its supplier, Lafarge.273 At the time, it suspected that the concrete degradation it produced when it poured foundations with the

266Exhibit DSNC-4 (2001), vol. 284 at 119861; Main judgment at para. 359; Pre-trial examination of Michel Bergeron (28 April 2011), vol. 449 at 184476–184477.

267Exhibit DSNC-42 (31 January 2002), vol. 285 at 120392 (sent to Bernard Marcotte of Béton Maskimo on January 31, 2002).

268Pre-trial examination of Michel Bergeron (23 August 2012), vol. 450 at 184642–184643.

269Pre-trial examination of Bernard Marcotte (25 May 2011), vol. 455 at 186605; (26 May 2011), vol. 455 at 186654–186657. Mr. Marcotte says that this occurred in 2002, but report DSNC-42 was signed on January 2, 2002, so he clearly went to remove the concrete stone from his competitor B&B in the fall of 2001.

270Exhibit DSNC-42 (31 January 2002), vol. 285 at 120394–120397.

271Ibid. at 120400–120403.

272Pre-trial examination of Bernard Marcotte (26 May 2011), vol. 455 at 186655.

273Main judgment at paras. 172–176 and 273–275.

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Maskimo aggregate was caused by the cement powder or its incompatibility with the Maskimo stone.274

[300]The appellants have failed to establish that geologist Bérubé’s 2002 report is sufficient to break the causal connection between geologist Blanchette’s faults and the damage they caused to the tandems. Their suggestion that geologist Blanchette’s opinion was given merely to obtain a rubber stamp must also be rejected. Cross- examined at trial, the geologist stated that under the terms of the October 23, 2003, letter,275 his contract was not to reassure the tandems but instead to conduct a petrographic examination and provide his professional opinion on the risks of using that stone to manufacture concrete. He did not offer his interlocutor, Michel Bergeron of BL, any guarantee that would reassure him. His role was to set [TRANSLATION] “the record straight on the quality of the aggregate”.276 The trial judge clearly believed him,277 and the appellants have not shown any error in this conclusion.

The 2006 intervention of Marie De Grosbois

[301]In support of the same argument that the tandems acted despite their experts’ recommendations, the Group 1 appellants raise the events surrounding the 2006 opinion of Ms. De Grosbois of Lafarge.

[302]They note that the situation in September 2005 had considerably evolved, as revealed by the summaries of the BL board meeting on September 2, 2005,278 and of the meeting between B&B, BL, and Lafarge’s representatives on September 26, 2005.279 BL was then dealing with new claims in the Maskimo case and contradictory petrographic reports, in particular geologist Bérubé’s report of May 4, 2002,280 and those of geologist Blanchette dated January 6, 2004,281 and November 18, 2004.282

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[303]After these meetings, Ms. De Grosbois of Lafarge visited the B&B quarry and the Maskimo quarry and was tasked with conducting tests comparable to those conducted by geologist Bérubé in 2002.283

[304]Ms. De Grosbois’s report, dated January 31, 2006, found that the Maskimo and B&B aggregates were similar.284 In March of that same year, that report led to a verbal recommendation by Alain Canuel and Martin Perreault of Lafarge to BL’s representatives to stop using the B&B aggregate.285

[305]The appellants submit that the causal connection between geologist

Blanchette’s faults and the damage suffered by his clients was broken once these clients decided to continue operating the quarry despite Ms. De Grosbois’s report,

Lafarge’s recommendation, and the reports of geologists Josée Duchesne of Université Laval286 and Lucie Tremblay of IOS Services Géoscientifiques inc.287

[306]The trial judge correctly rejected that argument.

[307]First, his determination that Lafarge failed to establish that in the spring of 2006 it firmly recommended that the tandems stop using the B&B aggregate288 is consistent with the evidence adduced. Indeed, during the appeal hearing, counsel for the appellants did not question these findings and merely recalled the judge’s statement that Lafarge’s position on the danger of continuing to use the B&B aggregate was expressed [TRANSLATION] “grudgingly”.289 At the hearing, counsel described only the 2006 events as a [TRANSLATION] “serious warning” by Lafarge.

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[308]Therefore, the appellants have not shown any error in the following conclusions of the trial judge:

[TRANSLATION]

[1856] From all the witnesses heard in this regard, the Court notes that Lafarge verbally expressed reluctance to the company’s continuing to use the B&B aggregate but does not believe the version that their recommendation was to immediately stop as they wrote in the letter filed by Lafarge as DSNC- 39, which Laurentide never received.

…

[1859] Moreover, the fact that the people from Laurentide understood from the discussions in late March that further studies were required to determine whether their aggregate was deleterious is supported by the conclusion in Ms. De Grosbois’s report and by her testimony cited above that concludes thus. Which is what Mr. Marcotte of Laurentide decided to do by granting mandates to IOS and geologist Tremblay.

[309]Similarly, nothing in the conclusions of the reports by geologists Josée Duchesne of June 2006290 and Lucie Tremblay291 of August 2006 may be interpreted as a clear recommendation to stop using the B&B aggregate.

[310]Basically, it was not totally unreasonable in 2006 for the tandem officers to continue relying on geologist Blanchette.

[311]Moreover, at the time of Lafarge’s timid recommendation in 2006, after more than 10 years of use, the B&B aggregate had still not resulted in any claim, contrary to what had happened with the Maskimo stone. Furthermore, at that time, geologist Blanchette, whose services had been retained by the tandems, continued to reassure them about the quality of the B&B concrete aggregate.292

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[312]The appellants’ argument on the broken chain of causation is rather surprising. At trial, SNC submitted in its defence that geologist Blanchette did not commit any fault because he was right in saying that if the oxidation of the pyrrhotite caused the concrete expansion, it was not due to the quality of the aggregate when the pyrrhotite was found in granitic rock, like at the B&B quarry. According to that defence, the oxidation of the pyrrhotite was instead due to the poor quality of the concrete manufactured by the two concrete suppliers and to the poor concreting by the formworkers.

[313]SNC incurred considerable expense before the trial to have expert opinions prepared to prove this theory,293 which was contested by the other parties who filed contrary opinions, and rejected by the trial judge, who spent over 250 paragraphs of the Main judgment considering it.294

[314]On appeal, SNC/Blanchette have changed tack. Not only do they no longer maintain that geologist Blanchette’s theory was correct, but in their second ground they now contend that in 2002 and in 2006, it was even unreasonable for the tandems to rely on the conclusions in the four reports Blanchette provided under his contracts for professional services. This about-face weakens their ground of appeal on the absence of a causal connection.

[315]Consequently, the evidence does not support a finding that the tandems295 broke the chain of causation between geologist Blanchette’s faults and the damage suffered by failing to follow Lafarge’s recommendation in 2006. Their faults result only in shared liability, as concluded by the trial judge.

Additional studies requested in 2006

[316]Last, and in addition, even in 2006, the reason for the deterioration of the concrete manufactured with Maskimo aggregate had not yet been clearly identified. The tandems then requested further studies to find out why the B&B aggregate, used for at least 10 years, was less reactive than the Maskimo aggregate. This task was assigned to Bernard Marcotte.

[317]A request was first sent to geologist Josée Duchesne of Université Laval, who could not explain why the Maskimo stone was more reactive in concrete than the

293Main judgment at paras. 448–454.

294Main judgment at paras. 433–692.

295See note 494 of this judgment.

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B&B stone. In conclusion, she recommended several other studies, including a detailed examination of the composition of the problematic concrete, in particular the quality and quantity of its ingredients.296

[318]This conclusion caused Mr. Marcotte to wonder about the quality of the cement paste, but Ms. Duchesne told him that she did not study cement pastes. He then turned to Lucie Tremblay of IOS297 who, in her report of August 31, 2006, concluded that even though the sulphide content appeared to be a little higher in the Maskimo concrete, there could be another factor to explain the cracking and the expansion. She added: [TRANSLATION] “A microscopic difference in the concrete paste could suggest a difference in composition and an avenue to explore. A study of the composition of the concrete paste is recommended.”298

[319]This last report was then sent to geologist Blanchette and was at the origin of his offer of services to set up a concrete expansion-testing program to take place over one year.299

[320]Geologist Blanchette presented a first offer of services on October 17, 2006, but Mr. Marcotte asked him to prepare a second one that he knew would be more costly, precisely because the geologist forgot to include tests with different brands of cement in the first offer.300

[321]These events clearly show that in the fall of 2006, the presence of iron sulphides in the aggregate was not the only cause identified as having the potential to cause the deterioration of the concrete. It follows that the tandems’ decision not to follow Lafarge’s [TRANSLATION] “grudging” recommendation301 cannot have broken the chain of causation between geologist Blanchette’s faults and the damage suffered. During his pre-trial examination, Bernard Marcotte stated that he eliminated the

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cement as a possible cause of the concrete degradation only in late 2007, after the second testing program progress report of geologist Blanchette was received.302

[322]The Group 1 appellants have failed to show that the chain of causation was broken. Therefore Ground No. 2 must fail.

8.3Ground No. 4: Extracontractual liability of SNC/Blanchette

[323]With their fourth ground, the appellants challenge the trial judge’s conclusion that geologist Blanchette’s contractual faults also gave rise to his extracontractual liability vis-à-vis the plaintiffs.303

[324]It is not disputed that the rule applicable is the one set out by the Supreme Court in Bank of Montreal v. Bail Ltée,304 when a third party, here the plaintiffs, claim that the violation of an obligation in a contract to which it is not a party, in this instance the contracts for services between geologist Blanchette and the other contracting parties, constitutes an extracontractual fault that causes the third party damage.

[325]The Group 1 appellants submit, however, that the petrographic examinations by geologist Blanchette are not documents that, by their nature, are destined to be distributed to third parties. They further submit that the judge did not thoroughly analyze the causal connection in matters of extracontractual liability of professionals.

Confidentiality of geologist Blanchette’s reports

[326]On this first point, the appellants invoke Wightman c. Widdrington (Succession)305 and Savard c. 2329-1297 Québec inc. (Hôtel Lord Berri inc.)306 to link the extracontractual liability of professionals towards third parties to the probability of the professional’s advice and opinions being distributed outside the limited circle of the other contracting parties.

28, 2007 (Exhibit DSNC-51 (28 November 2007), vol. 285 at 120493).

303Main judgment at paras. 1275–1309 and 1311, particularly paras. 1304–1307.

304Bank of Montreal v. Bail Ltée, [1992] 2 S.C.R. 554.

305Wightman c. Widdrington (Succession), 2013 QCCA 1187, leave to appeal to SCC refused, 35438 (9 January 2014).

306Savard c. 2329-1297 Québec inc. (Hôtel Lord Berri inc.), 2005 QCCA 705, leave to appeal to SCC refused, 31156 (2 March 2006).

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[327]They also argue that the petrographic analyses prepared by Blanchette constituted technical documents prepared exclusively for the benefit of the other contracting parties and even that his work was confidential.

[328]This last argument is based on a letter from François Bellemare to geologist Blanchette on September 8, 2005, asking him to conduct another petrographic examination. He further stated that the report must remain confidential and be given only to the people identified in the letter.307

[329]This request for confidentiality is explained by the content of a BL board meeting held the previous September 2. The minutes of that meeting308 describe the claims received relating to the concrete produced with the Maskimo aggregate and questions by the board members on the divergent opinions received on the quality of the B&B aggregate. During that meeting, it was decided to ask geologist Blanchette to conduct the same tests on that aggregate as those previously conducted in 2004.

[330]This was the only request for confidentiality made of geologist Blanchette, even though he produced five petrographic expert reports, if the May 2003 report prepared at CSL’s request is included.309 At the hearing, counsel for the appellants SNC/Blanchette acknowledged that the September 8, 2005, request for confidentiality310 emanated from the professional’s clients, who could waive it. In addition, the record shows that geologist Blanchette’s May 13, 2003, report prepared for CSL was sent to certain contractors.311 Moreover, contractors and certain plaintiffs also had access to reports prepared by geologist Blanchette at the request of his clients.312

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[331]Last, in principle, the criteria of the professional’s knowledge of the identity of those who relied on his opinions and of the use of his work compared to its initial destination are not relevant to determining liability.313 This matter does not concern the special relationship between lawyers and their clients, as was the case in Savard.314 Consequently, the argument on confidentiality does not tend to establish that geologist Blanchette had no obligation of diligence to the plaintiffs, as the appellants argue.

Liability of geologist Blanchette to the plaintiffs

[332]Wightman and Savard illustrate one facet of professional liability, but there are others. This is discussed by authors Baudouin, Deslauriers, and Moore when they examine the fault of omission:

[TRANSLATION]

1-186 – Relevance of the distinction – With respect to the fault of omission, the confusion of certain authors and in certain decisions is more apparent than real. Some claim that omission is a fault only if there is a specific duty or obligation to act. We see here an influence of the common law which, for liability, requires a “duty to act” as a precondition of legal analysis. This statement is not accurate in the civil law and should be qualified. ... Moreover, and more fundamentally, while it is certain that a pure and simple omission is a fault when there is a specific obligation to act, an obligation is not indispensable for extracontractual fault. The general duty to behave as a prudent and diligent person in article 1457 C.C. while complying with the rules imposed is sufficient to ground a fault of omission, in the absence of a legal or regulatory provision specifically contemplating any required activity on the part of the debtor. This is particularly the case for the failure to correct or warn of a possible danger. It is therefore appropriate in this respect to beware of an analogy with the common law or the criminal law, which, for its part, sets out a series of specific duties or obligations. Thus, the Criminal Code does not regulate the obligation to assist a person in danger, whereas this same obligation is now codified in civil law. Even in the absence of such a text,

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however, the courts could have found liability for a fault of omission in relation to the general duty not to cause injury to another.315

[333]In this case, geologist Blanchette’s contractual faults may certainly be analyzed as being of the same nature. His obligation was to [TRANSLATION] “set the record straight” for his clients on the quality of their concrete aggregate. By wrongly adhering to an erroneous theory, he failed to warn them of the significant risks to the safety of the buildings resulting from the use of the B&B concrete aggregate.

[334]The courts have long recognized that, in the event of a contractual fault of this nature, there might be extracontractual liability to third parties other than the contracting party. In Ross v. Dunstall,316 a firearms manufacturer was liable for injuries to a third party who had purchased the firearm from a reseller because it had failed to inform potential users of a latent defect in the weapon that could make it dangerous to use once reassembled after cleaning.317

[335]Similarly, a contractor who did not comply with the conditions of a snow removal contract with the transportation minister by failing to clear snow from the road to the agreed width and by failing to signal the danger created by its breach was liable for the accident of a third-party road user at a location the Court of Appeal characterized as a [TRANSLATION] “trap”.318

[336]Laval Fortin Ltée c. Lavoie319 concerned a general contractor working on a municipality’s water and sewer systems who entrusted part of the work to a subcontractor. During the work, due to the subcontractor’s fault, the respondent had an accident and was injured when he fell into a hole in the sidewalk while on his bicycle. The Court decided that the appellant, the general contractor, had a duty to supervise the work site, whether it performed the work itself or entrusted it to a subcontractor. In such circumstances, it was considered that the general contractor had an obligation to protect the public from the dangers inherent in the work itself.

315Jean-Louis Baudouin, Patrice Deslauriers & Benoît Moore, La responsabilité civile, 8th ed., vol. 1 (Cowansville, QC: Yvon Blais, 2014) at 178–179, No. 1-186. See also Wightman c. Widdrington (Succession de), 2013 QCCA 1187 at paras. 216–229; Vibron Ltd. c. Patrick Garneau & Associés inc., 2011 QCCA 1166 at paras. 46–47.

316Ross v. Dunstallso / Ross v. Emery (1921), 62 S.C.R. 393.

317That judgment was rendered well before General Motors Products of Canada Ltd. v. Kravitz, [1979] 1 S.C.R. 790, which recognized the automatic transfer of the manufacturer’s warranty of quality to the subsequent purchaser before it was enshrined in article 1442 C.C.Q.

318Boucher c. Drouin, [1959] B.R. 814 (B.R. Qc).

319Laval Fortin Ltée c. Lavoie, [1990] R.R.A. 1 (C.A.).

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The fact that it failed to adequately perform this obligation to supervise was a fault that gave rise to the third party’s action against the general contractor rather than the subcontractor.

[337]As stated by the Supreme Court in Bail Ltée,320 the contractual content may facilitate the third party’s task of proving extracontractual liability when, as in Boucher c. Drouin,321 the snow removal contract between the contractor and the State was also for the clear benefit of road users. This element is not, however, essential to engage the other contracting party’s liability to a third party.

[338]Here, geologist Blanchette’s contractual faults vis-à-vis his other contracting parties and the extracontractual faults raised by the third-party plaintiffs are of the same nature: the fact that he failed to warn them of the danger to the integrity of the buildings of using aggregate containing pyrrhotite. These faults need not be distinct,322 but the third party must establish that its action is based on a separate legal obligation independent of the contract.323 The other contracting party may be held extracontractually liable even in the absence of a contractual fault to the extent that this party breached its general duty to act reasonably so as not to interfere with the legitimate interests of third parties.324

[339]In a contractual context, the Supreme Court stated that the contractual relationship, the obligations contained in the contract, and the failure to perform the contractual obligations are all relevant circumstances in assessing delictual fault.325 With respect to professionals, this Court has defined other relevant criteria as indicators to assess whether the professional relationship extends beyond the client to create an obligation to third parties. In particular, the Court identified the context in which the various players function, their level of business knowledge, the varying degree of the parties’ antagonism, good or bad faith, and compliance with the legislation and rules of professional ethics. These criteria were identified by the Court

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in Savard326 and concern more specifically an attorney but may be adapted to the work of a geologist.

[340]Among these criteria, compliance with the rules of professional ethics is particularly relevant here.

[341]Section 5 of the Geologists Act327 states that the practice of the profession of geologist includes such scientific activities as identifying, observing, characterizing, interpreting or modeling geological phenomena, including geophysical and hydrogeological phenomena. Only a geologist may, within the framework of an activity referred to in section 5, give professional advice or an opinion or make a report in relation to mining, petroleum or gas resource exploration, development, operation or project assessment activities (section 6).

[342]Under section 7 of the Act, a geologist must attest, authenticate by affixing his or her seal, certify, or sign any opinion or report relating to an exclusive act which was prepared by the geologist or under his or her immediate supervision.328 Under section 23 of the Professional Code,329 the very existence of the Ordre professionnel des géologues du Québec is primarily justified by the protection of the public.

[343]More specifically, under the code of professional ethics in force from 2001 to 2011,330 geologist Blanchette was professionally responsible for considering the interests of the public and even the foreseeable consequences of his recommendations and his professional activities on the property of others:

[TRANSLATION]

Section 3 – Responsibilities of geologists and geophysicists

…

3.1.1Responsibilities: geologists/geophysicists are aware that their responsibilities fall into the following areas:

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Responsibilities to the client-employer who has given them a mandate;

Responsibilities to the public (community), through the more long-term consequences that may result from their work, their decisions, and their recommendations;

Responsibilities for the information or the training they provide and the potential contribution of their work to the advancement of geological and geophysical knowledge.

…

3.3 Responsibilities to the community

3.3.1Consequences of professional activities: in every aspect of their work, geologists/geophysicists are aware of their obligations to the community. They will consider the foreseeable consequences of their recommendations and their professional activities on the life, health, and property of others and on the preservation of the natural environment and natural resources of future generations.

[344]The Code of ethics of geologists currently in force331 essentially repeats the same obligation in the first paragraph of section 6:

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6.Geologists must consider the foreseeable consequences that their professional activities may have on society, in particular on the health, safety and property of others, and on the quality of the environment.

6.Le géologue doit tenir compte des conséquences potentielles de ses travaux sur la société, notamment sur la santé, la sécurité et les biens de toute personne ainsi que sur la qualité de l’environnement.

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[346]Moreover, the obligational content of the contracts for services was not stipulated for the sole benefit of the other contracting parties. This was not an obligation outside the sphere of any of the geologist’s extracontractual obligations stipulated solely for the benefit of his clients, as was the case in Alliance Assurance Company Limited et al. v. Dominion Electric Protection Company Limited, 1969.334 In that matter, under the contract between the respondent security company and the insured, the respondent was to alert the fire department if the alarm system at the insured’s premises was triggered. This unusual obligation benefitted only the insured- other contracting party, and the insurer, a third party, could not argue that the respondent company’s fault made it liable to third parties. The obligation to alert the fire department was stipulated for the sole benefit of the insured. This is precisely why the Supreme Court distinguished this judgment from its later judgment in Bail Ltée.335

[347]In this case, pursuant to the contracts for professional services, geologist Blanchette had to conduct a petrographic examination of the B&B concrete stone and reveal the risks of using the stone to manufacture concrete based on its iron sulphide content. This obligation was not outside the sphere of any of the geologist’s extracontractual obligations because he was required under his code of professional ethics to consider, [TRANSLATION] “in every aspect of [his] work”, the foreseeable consequences of his recommendations on the property of others. Therefore, the performance of his work had certain benefits for third parties who were going to use the concrete prepared with the B&B aggregate to pour foundations for their residential or commercial buildings. It follows that the Group 1 appellants’ argument on the absence of the geologist’s distinct obligation of diligence to the third-party plaintiffs must fail.

Analysis of the causal connection

[348]Nor is there any merit to the appellants’ other argument that the trial judge did not thoroughly analyze the causal connection between geologist Blanchette’s faults and the damage suffered by the plaintiffs.

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[349]It is important to recall that causation is basically a question of fact.336 At the time he provided his reports and his opinions to the other contracting parties, geologist Blanchette could not have been unaware that the concrete aggregate he said was not deleterious would be used for the construction of residential and commercial buildings, as evidenced by the following excerpts from his cross- examination of February 19, 2013:

[TRANSLATION]

Q.OK. Let’s start the chain. Is it correct that you were obviously not surprised that it was for Carrière B&B, given that “Béton... Bétonnière

Boisvert, Béton Laurentide”, appears on their letterhead?

A.I would not have been surprised by being told that...

Q.Indeed, Mr. Bergeron told you...

A.Yes.

A.Excuse me?

Q.You knew that Béton Laurentide sold concrete?

A.Yes, yes I know, I knew that.

Q.And that the concrete sold by Béton Laurentide would be used for the construction of immovables. I see that you may not have understood that it was for residences, but for immovables, can we start with that?

A.They made concrete. I had... I had no other knowledge, they’re a concrete manufacturer who likely has a diversified market, with different types of products, like any concrete manufacturer.

336See above at para. [285].

2020 QCCA 495 (*)

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Q.So, you weren’t surprised that the concrete was going to be used for residential, for example? That’s not something....

A.It was possible, yes.

Q.No, no, but it goes without saying. If someone advises a concrete supplier, it goes without saying that the person can assume, except if reservations are made, that the concrete it produces may be used for residential, commercial, ... is that correct?

A.Yes, yes, of course.337

[350]In addition, in his reports of November 18, 2004,338 and of October 31, 2006,339 geologist Blanchette was dealing with iron sulphide contents of 5 to 7% and 4.5% and recommended that the B&B aggregate not be used for architectural concrete or exposed aggregate concrete. When cross-examined at trial, the geologist had to acknowledge that there was therefore no restriction on using the B&B aggregate for concrete in a residential building because it was not exposed aggregate concrete.340

[351]The trial judge could therefore find that, even though geologist Blanchette, in his report of November 18, 2004, was dealing with sulphide levels twice as high as he had ever seen before, [TRANSLATION] “[h]e continued to claim, despite everything, that the aggregate was suitable to manufacture concrete that he knew would be residential foundation concrete”.341

[352]Given his ethical obligations, geologist Blanchette therefore knew or ought to have known that his failure to warn the other contracting parties of the dangers in using concrete aggregate with this iron sulphide content was likely to cause damage to those who poured building foundations with concrete incorporating the B&B aggregate.342

[353]Furthermore, geologist Blanchette himself decided to share his opinion on the harmful effect of pyrite in concrete aggregate with the community. In October 2003,

337Cross-examination of Alain Blanchette (19 February 2013), vol. 469 at 191527–191528.