International Construction Law Review
THE NEW BOUNDARIES OF THE OBLIGATION TO INFORM UNDER QUÉBEC CIVIL LAW
OLIVIER F KOTT AND PIERRE CIMON
Ogilvy Renault, Québec, Canada
Introduction
Many disputes in construction projects arise when the contractor realises that the cost of execution of the work exceeds the amount that he had anticipated at the time he prepared his tender, or at the time he signed the contract, due to unforeseen conditions. The liability for the financial consequences flowing from unforeseen conditions depends, of course, on the particular circumstances of each case and the applicable contractual provisions. The contractor will often allege that the owner had the obligation to inform him of the existence of the relevant conditions whereas the owner will reply that the contractor had the obligation to inform himself.
During the past decade, the Supreme Court of Canada, the Court of Appeal of Québec and the Superior Court of Québec have rendered several important decisions which have imposed a positive duty to inform on owners in the case of contracts for large construction projects. In fact, some of these decisions have overturned principles which had been generally applied by the courts during the preceding 50 years.
To appreciate and understand the significance of these recent developments, it is necessary to review the evolution of the relevant jurisprudence.
The jurisprudence
In R
v. Paradis & Farley Inc
,1
the case involved a claim by a contractor against the Minister of Public Works Canada for the construction of a wharf in Rimouski. The contractor had presented a claim for damages and additional compensation by reason of the fact that the nature of the soil into which piles had to be driven did not conform to the description contained in the plans and specifications.
The Supreme Court of Canada dismissed the contractor’s claim and accepted the Federal Crown’s argument that the tenderer had the obligation to satisfy itself of the validity of the information furnished by the owner. The court expressed the opinion that the contractor had to assume all the
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Obligation to Inform in Québec
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