The starting point of prescription: An issue of factsBy Stéphanie Provost Lawyer
On September 11, 2015, in Bolduc v. Ville de Lévis (2015 QCCA 1428), the Court of Appeal addressed the issue of the starting point of the six-month prescription period provided in article 586 of the Cities and Towns Act.
The appellant owns land on which he built his home. When the home was being built, the appellant was not aware that the property was located in a zone in which construction was restricted under a municipal by-law.
On January 15, 2003, before the construction project got underway, engineering firm Inspec-Sol submitted a geotechnical report to the city (hereafter: first report). The report outlined the difficulties that had arisen during excavation operations and asserted that the construction of foundations on the property could prove problematic.
On February 17, 2003, after reviewing the first report, the city adopted by-law RV-2003-00-72 that applied to the appellant's home and which required construction permit applicants to submit a project feasibility study to construct a building without undermining the safety of persons or property.
On February 11, 2003, Inspec-Sol submitted a second report, which affirmed that soil assessments revealed that buildings could be constructed without difficulty in the most pessimistic conditions to settle foundations.
The appellant, who was not aware of by-law RV-2013-00-72, applied to the city for a permit without submitting the feasibility study required under the by-law. The city granted the permit on January 13, 2005. It did not inform the appellant of the by-law or require that he submit the study. In 2007, microcracks began to appear in the building's foundations and the appellant's home soon started to collapse in the ground.
The Court of Appeal was tasked with addressing the application of article 586 of the Cities and Towns Act, which states: "Every action, suit or claim against the municipality or any of its officers or employees, for damages occasioned by faults, or illegalities, shall be prescribed by six months from the day on which the cause of action accrued, any provision of law to the contrary notwithstanding.
It was therefore up to the Court to establish the starting point of the prescription period: the day on which the right of action accrued. The Superior Court had determined that the starting point was June 19, 2008, when the appellant sent a letter of formal notice to the sellers, claiming that they had not informed him of the second report.
In fact, it was only in fall 2009, following an examination on discovery in the action against the sellers, that the appellant received the first report. The Court of Appeal then concluded that it was only at that time that the appellant could have made the link between the collapse of his home and the city's failure to require a feasibility report, as stipulated in by-law RV-2013-00-72.
The Court of Appeal ruled that the appellant's limitation period had not expired and returned the case to the Superior Court to determine the damages.
Therefore, in an action against a municipality, before concluding that a right of action is prescribed, an analysis of the facts must be carried out to establish the starting point of the prescription period.