International Construction Law Review
WALSH & BRAIS INC/SABRICE LTÉE v. MONTREAL URBAN COMMUNITY ET AL.: AN ODYSSEY THROUGH THE CONSTRUCTION LAW OF THE PROVINCE OF QUEBEC, CANADA
DANIEL AYOTTE
Borden Ladner Gervais, Montreal
WITH THE COLLABORATION OF
JOHN G MURPHY
Borden Ladner Gervais, Montreal
In November 2002, the Supreme Court of Canada brought to a conclusion a dispute born 15 years earlier regarding the construction of a tunnel 4.3 km long, 6.5 metres wide and more than 35 metres below Notre Dame Street in the City of Montreal, Quebec, Canada. This construction contract which had been awarded in 1985 to Walsh & Brais Inc/Sabrice Ltée (“WBS”) by the Montreal Urban Community (“MUC”), was part of a major water treatment programme for the St Lawrence River.
This paper outlines the main issues involved in the fundamental debate at the root of the dispute as to the role and duties of the geotechnical and design professionals, and the content of their reports, plans and specifications. It also traces the important evolution of construction law in the Province of Quebec (Canada) as a result of the recognition and acceptance in contractual matters of the theory of abuse of rights and the duty to inform.
It is one of those rare cases where the contractor interrupted its work, requested judicial resiliation of its contract and … won!
I. INTRODUCTION
Prior to the ground-breaking jurisprudence of the early 1980s in Quebec, contractors that found themselves prejudiced by insufficient or inexact geotechnical data provided by project owners at the tender stage, attempted without success to challenge the limitation of liability clauses that were generally imposed on them by project owners. These clauses stipulated that the information provided was not guaranteed as to its accuracy, that the bidders were responsible to interpret it and to obtain any additional information to establish, to their own satisfaction, the exact nature and
Pt 1]
Construction Law of Quebec
5