April 2015
PFD | Construction

Is a delayed notice of defect in matters of latent defects fatal to the recourse?

By Jean-Philippe Desabrais Lawyer

Section 1739 of the Civil Code of Québec states:

"A buyer who ascertains that the property is defective may give notice in writing of the defect to the seller only within a reasonable time after discovering it. Where the defect appears gradually, the time begins to run on the day that the buyer could have suspected the seriousness and extent of the defect.

The seller may not invoke the tardiness of a notice from the buyer if he was aware of the defect or could not have been unaware of it."

Courts and legal authors generally agree that a period of six to twelve months constitutes a "reasonable time" to report a defect.

In fact, several rulings have dismissed hidden defect claims filed after this period on the basis of delayed reporting.

But the courts have begun to adopt a much more flexible approach to reporting. In De La O v. Sasson, 2015 QCCS 713, the Hon. Daniel W. Payette concluded that even though a hidden defect was reported six years after it was discovered, the reporting was not late so as to cause the building owners who discovered the defect to lose their rights.

Though the plaintiffs' action was dismissed on other grounds, Justice Payette based his decision on a recent ruling by the Court of Appeal in Claude Joyal inc. v. CNH Canada Ltd., 2014 QCCA 588, considering that delayed notice of a defect by an owner must represent an actual prejudice to the seller as opposed to a simple prejudice to the seller's rights in order to justify the dismissal of an action.

Therefore, when the notice of a defect is delayed, the seller must demonstrate that the delay caused a prejudice, such as the aggravation of the defect since the time of its discovery and notice.

In conclusion, the delayed notice of a defect is not in itself fatal to the owner's recourse. However, should you discover a defect, prudence dictates that it is best to consult with a lawyer, who will guide you in your following steps.