2013 QCCA 1140, 2013 QCCA 1140

Unofficial English Translation Lafarge Canada inc. c. SNC Lavalin environnement inc. 2013 QCCA 1140 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-09-008012-137 (400-17-002016-091) (400-17-002532-113) (400-17-002723-126) (400-17-002612-113) (400-17-002621-114) (400-17-002365-100) DATE: June 25, 2013 PRESIDED BY: THE HONOURABLE DOMINIQUE BÉLANGER, J.A. No. 400-17-002016-091 LAFARGE CANADA INC. MARIE DE GROSBOIS APPLICANTS – Defendants in warranty v. SNC LAVALIN ENVIRONMENT INC.

ALAIN BLANCHETTE RESPONDENTS – Plaintiffs in warranty and LISE DEGUISE CHRISTIAN YARD IMPLEADED PARTIES – Principal plaintiffs and FRANÇOIS MONTMINY CONSTRUCTION YVAN BOISVERT INC. CARRIÈRE B & B INC. SNC LAVALIN ENVIRONMENT INC. ALAIN BLANCHETTE LOMBARD GENERAL INSURANCE COMPANY OF CANADA CHARTIS INSURANCE COMPANY OF CANADA LLOYD'S UNDERWRITERS ZURICH INSURANCE COMPANY ACE INSURANCE INC. IMPLEADED PARTIES – Principal defendants No. 400-17-002532-113 LAFARGE CANADA INC. MARIE DE GROSBOIS APPLICANTS – Defendants in warranty v.

SNC LAVALIN ENVIRONMENT INC. ALAIN BLANCHETTE RESPONDENTS – Plaintiffs in warranty and KARINE CHEVALIER DANIEL LÉVESQUE IMPLEADED PARTIES – Principal plaintiffs v. RCM MODULAR SÉBASTIEN BOLDUC COFFRAGE RÉAL BERGERON INC. BÉTON LAURENTIDE INC. CARRIÈRE B & B INC. SNC LAVALIN ENVIRONMENT INC. ALAIN BLANCHETTE LOMBARD GENERAL INSURANCE COMPANY OF CANADA CHARTIS INSURANCE COMPANY OF CANADA LLOYD'S UNDERWRITERS ZURICH INSURANCE COMPANY ACE INSURANCE INC. IMPLEADED PARTIES – Principal defendants No. 400-17-002723-126 LAFARGE CANADA INC. MARIE DE GROSBOIS APPLICANTS – Defendants in warranty v.

SNC LAVALIN ENVIRONMENT INC. ALAIN BLANCHETTE RESPONDENTS – Plaintiffs in warranty and SYLVIE BOURNIVAL ÉRIC LANDRY IMPLEADED PARTIES – Principal plaintiffs v. RÉMI CHARRETTE BÉTON LAURENTIDE INC. CARRIÈRE B & B INC. SNC LAVALIN ENVIRONMENT INC. ALAIN BLANCHETTE LOMBARD GENERAL INSURANCE COMPANY OF CANADA CHARTIS INSURANCE COMPANY OF CANADA LLOYD'S UNDERWRITERS ZURICH INSURANCE COMPANY ACE INSURANCE INC. IMPLEADED PARTIES – Principal defendants

No. 400-17-002612-113 LAFARGE CANADA INC. MARIE DE GROSBOIS APPLICANTS – Defendants in warranty v. SNC LAVALIN ENVIRONMENT INC. ALAIN BLANCHETTE RESPONDENTS – Plaintiffs in warranty and MARIE-ANDRÉE HÉLIE ÉRIC GAMACHE IMPLEADED PARTIES – Principal plaintiffs v. ÉLISE MATHIEU PAUL LACHANCE CONSTRUCTION D.M. TURCOTTE T.R. INC. CONSTRUCTION YVAN BOISVERT INC. CARRIÈRE B & B INC. SNC LAVALIN ENVIRONMENT INC. ALAIN BLANCHETTE LOMBARD GENERAL INSURANCE COMPANY OF CANADA CHARTIS INSURANCE COMPANY OF CANADA LLOYD'S UNDERWRITERS ZURICH INSURANCE COMPANY ACE INSURANCE INC.

IMPLEADED PARTIES – Principal defendants No. 400-17-002621-114 LAFARGE CANADA INC. MARIE DE GROS BOIS APPLICANTS – Defendants in warranty v. SNC LAVALIN ENVIRONMENT INC. ALAIN BLANCHETTE RESPONDENTS – Plaintiffs in warranty and JOSÉE TRUDEL DANNY NORMANDIN IMPLEADED PARTIES – ¨Principal plaintiffs v.

SYLVAIN CARRIER CONSTRUCTION D.M. TURCOTTE T.R. INC. CONSTRUCTION YVAN BOISVERT INC. CARRIÈRE B & B INC. SNC LAVALIN ENVIRONMENT INC. ALAIN BLANCHETTE LOMBARD GENERAL INSURANCE COMPANY OF CANADA CHARTIS INSURANCE COMPANY OF CANADA LLOYD'S UNDERWRITERS ZURICH INSURANCE COMPANY ACE INSURANCE INC. IMPLEADED PARTIES – Principal defendants No. 400-17-002365-100 LAFARGE CANADA INC. MARIE DE GROS BOIS APPLICANTS – Defendants in warranty v. SNC LAVALIN ENVIRONMENT INC. ALAIN BLANCHETTE RESPONDENTS – Plaintiffs in warranty and ANITA BERGERON MARC BEAULIEU IMPLEADED PARTIES – Principal plaintiffs v. BÉTON LAURENTIDE INC.

CARRIÈRE B & B INC. SNC LAVALIN ENVIRONMENT INC. ALAIN BLANCHETTE IMPLEADED PARTIES – Principal defendants JUDGMENT on an application for leave to appeal [ 1 ] The applicants seek leave to appeal from a judgment of the Superior Court, [1] District of Trois-Rivières (the Honourable Mr.

Justice Étienne Parent), rendered on March 12, 2013, that dismissed their motion to dismiss. [ 2 ] In the context of what has commonly come to be known as the "pyrite case", the respondents have, in six different files, brought actions in warranty against the applicants, alleging that the latter committed a fault because, having carried out an analysis of the composition of the aggregate at the request of Carrière B & B Inc., they were in possession of information about the problem caused by the presence of iron sulfide in the aggregate and failed to advise Béton Laurentide Inc. to cease using this aggregate. [ 3 ] The respondents, who also analyzed the composition of the aggregate, are of the opinion that, if they are found extracontractually liable in the principal action (test case), the appellants should also be found liable. [ 4 ] The appellants sought to have the action in warranty dismissed, alleging the following: 1) The appeal in warranty is foreclosed due to the tardiness of the action;

2) The anticipated recursory action, which is separate from the principal action, is inadmissible; 3) Res judicata , given the judgment rendered by the Court of Appeal on July 6, 2012; [2] 4) The lack of legal relationship between SNC and Lafarge justifying an appeal in warranty; 5) The lack of legal basis, since the concrete was supplied by Béton Boisvert, not Béton Laurentide. [ 5 ] The judge rejected all of the appellants' arguments and dismissed their motion to dismiss the action accordingly. [ 6 ] This is how the judge described the background to the case: [ translation ] [5] The six principal actions in which Lafarge is called in warranty by SNC are currently the subject of a joint hearing with other cases in the region of Trois-Rivières, in what has become known as the "pyrite trial". [6] Approximately seventy files involving about six hundred and fifty residences and over a thousand plaintiffs are currently joined.

They will be decided by way of a single "test case", to employ the expression used by the parties. [ 7 ] All of these cases have in common the fact that the plaintiffs allege that the concrete used to pour the foundations of their houses contains iron sulfide (pyrite). [ 8 ] They allege that the presence of this chemical compound makes the concrete inappropriate for its intended purpose and requires that the foundations be entirely replaced. [ 9 ] Aside from the insurers involved, the defendants include primarily the contractors who built the homes, prior vendors of the properties in cases where there was a resale, the two companies that supplied the concrete and the quarry where they obtained their aggregate and, finally, SNC.

According to the allegations of the plaintiffs, SNC provided the quarry with a professional opinion that the aggregate sold for the preparation of concrete met the applicable standards. [ 10 ] The special management of all of these claims was entrusted to the Honourable Michel Richard, judge of the Superior Court. [ 11 ] Over the months, several claims were added to the initial ones. [ 12 ] To avoid a complicated tangle of forced intervention (joinder of parties) proceedings, the defence parties agreed to be called directly as principal defendants. [ 13 ] The parties also agreed to proceed in a single case (the "test case"), with the judgment to be rendered therein to apply to all of the cases with regard to the defendants' liability. [ 14 ] This agreement, characterized by the parties as as a judicial contract, was formalized on January 26, 2012, and led to a trial that was scheduled to last approximately five months.

This trial has been underway since November 14, 2012. (Citations omitted) Analysis [7] This is an application for leave to appeal from an interlocutory judgment within the meaning of

article 29 of the Code of Civil Procedure . 29. An appeal also lies, in accordance with

article 511, from an interlocutory judgment of the Superior Court or the Court of Québec but, as regards youth matters, only in a matter of adoption: (1) when it in part decides the issues; (2) when it orders the doing of anything which cannot be remedied by the final judgment; or (3) when it unnecessarily delays the trial of the suit. ... [8] Generally speaking, no appeal lies from a judgment dismissing a motion to dismiss because the situation may be remedied by the final judgment.

In the case of an interlocutory judgment dismissing a preliminary exception based on lack of jurisdiction, lis pendens , or res judicata , however, an appeal may lie so long as the ends of justice so require. [3] [9] The applicants, aware of the pitfall, argue that leave to appeal may exceptionally be granted even where the issue does not concern jurisdiction, lis pendens , or res judicata . [4] This is the case where the issue raised is of public interest or where there is a difference of opinion in the case law that must be decided immediately. [10] In my view, an appeal lies only in the situations enumerated in the Code of Civil Procedure or in a specific statute. [5] As has been noted quite cogently in certain decisions rendered by this Court or by judges of this Court sitting alone, [6] the Court may not create a right of appeal where the legislator has not done so. [11] Also, in any event, I find that there are no exceptional circumstances, novel issues, or matters of public interest in this case that

require immediate decision-making. The issue of the

interpretation of

article 1529 of the Civil Code of Québec , of the present and actual interest in bringing an action against the applicants, or even of the possibility of a debtor exercising a recursory action against a co-debtor with respect to a solidary obligation may be submitted to the judge on the merits and, if necessary, subsequently to the Court. [12] The final judgment may remedy the issue and answer all of the applicants' questions, whether they concern foreclosure, the inadmissibility of the anticipated recursory action, or the fin de non-recevoir . [13] The issue of res judicata remains. [14] In the view of the applicants, this Court already dealt with the issue of the respondents' appeal in warranty against the applicant in a judgment involving the contractor Fré-Jean, dated July 12, 2012. [7] In their opinion, the respondents are seeking to re-open the debate that led the Court to find that the defendant Fré-Jean could not implead the applicants as defendants only a few weeks before the beginning of the trial. [ 15 ] In that case, the contractor Fré-Jean, defendant in the principal action in the test case, had sought the forced impleading of the applicants as defendants, making essentially the same allegations that the respondents make today in respect of the applicants.

In light of the judicial contract entered into by all of the other parties, the case management judge had authorized the forced impleading of the applicants as principal defendants. [ 16 ] This Court intervened to overturn this judgment, for three main reasons. [ 17 ] The first was procedural fairness, because the applicants were not party to the very specific judicial contract entered into by all of the other parties and impleading them would have required postponing the case that had already been inscribed for hearing or, worse, prevented them from raising all of their legal arguments. [ 18 ] Second, the Court found that the issue concerning the status of an impleaded party raised a controversy specifically with regard to whether

article 216 C.C.P. allows a defendant to impose another defendant on the plaintiff, [8] which is what Fré-Jean was seeking to do. The Court was of the view that several judgments had answered this question in the negative. [ 19 ] Third, the Court opined that the legal relationship that might link the applicants with all of the parties whose liability is to be determined in the test case was not apparent, that being said after having found that the plaintiffs in the principal action refused to take action against them directly (I understand that they wished to avoid postponing the case).

Having made this observation, the Court found that the presence of the applicants was not necessary to the complete solution of the question involved in the action. Here are the relevant excerpts: [ translation ] [29] The argument based on the directness of the action undertaken against all by Ms. Doucet and Ms. Beauchemin therefore has little value in itself, and the finding remains the same: the legal relationship that might link Lafarge and De Grosbois with all of the parties whose liability is sought appears to be, at best, distant.

As for the plaintiffs Doucet and Beauchemin, they explicitly refuse to take action against Lafarge and De Grosbois, and the same is true with respect to Béton Laurentide. [30] In such a context, is the presence of Lafarge and De Grosbois necessary to the complete solution of the question involved in the action, as required by

article 216 of the Code of Civil Procedure and the many judgments that have discussed that provision? The Court believes not, even though the mere fact of the enforceability of the pending judgment against Lafarge and De Grobois could ultimately prove useful from the perspective taken by the impleaded parties SNC-Lavalin and Alain Blanchette. ... [32] It is easy to understand the judge's hesitations since the legal relationship that might link Lafarge and De Grosbois with Fré-Jean is, so to speak, problematic. Ms. Doucet and Ms.

Beauchemin seek to impose liability on Fré-Jean because of its legal obligations as a contractor.

In this respect, there appears to be no contractual relationship binding Fré-Jean to Lafarge and De Grosbois and, to put it mildly, there seems to be no extracontractual relationship in existence for the moment either. [33] In short, the involvement of Lafarge and De Grosbois as principal defendants or defendants in warranty introduces issues that are incidental to the principal action in a sui generis context that does not lend itself to any of the alternatives. (Citations omitted) [ 20 ] The trial judge disposed of the res judicata argument in the following manner: [ translation ] [67] At first glance, the issue appears to lack the force of res judicata. [68] Fré-Jean states that the sui generis or "judicial" contract, as it is characterized by the parties, could not be imposed on Lafarge, especially since the trial is to begin a just few weeks after this judgment.

The following passages are telling: [ translation ] [12] The judgment under appeal compels Lafarge and De Grosbois to agree to join the proceedings as principal defendants as well , with no possibility of raising a preliminary exception based on the lack of a legal relationship between themselves and Doucet and Beauchemin. The case is all the more unusual since Doucet and Beauchemin explicitly refuse to include them among the principal defendants in their action.

[13] As the matter now stands, the sui generis legal context created by the "judicial contract" does not lend itself to the joinder of a third party who does not consent thereto. Admittedly, this "judicial contract" has had and still has an undeniably beneficial effect on the fair administration of justice, and the contract is justified in that it groups together all those who have in one way or another actively taken

part in bringing the concrete at the source of the problem to market. This accommodation should therefore be applauded and all those who have implemented or agreed to it should be congratulated. [14] That said, it is not possible, without infringing on procedural fairness, to compel acceptance by litigants who have resisted this very particular agreement between the owner victims and the parties who, in one capacity or another, had a

part in putting the defective product on the market. [15] The judgment under appeal also requires Lafarge and De Grosbois to stand trial on the merits in the "test case" next September. If their right [ translation ] "to put forward all legal and factual arguments against the upholding, in whole or in part, of the conclusions of the application" is respected, their involvement would no doubt lead to a postponement of the hearing, a possibility that the trial judge has until now firmly opposed. (Emphasis added.) [69] In this case, the appeals in warranty do not impose the sui generis contract on Lafarge.

Lafarge's participation in the principal action is not in issue, since the actions will not be heard jointly under

article 222 C.C.P. [70] Moreover, the application in Fré-Jean sought the forced impleading of Lafarge. SNC's action against Lafarge seeks to call him in warranty. [71] Although both claims are based on

article 216 C.C.P., they are different. Any party to a case may implead a third party whose presence is necessary to permit a complete solution of the question involved in the action, or against whom he claims to exercise a recourse in warranty. [72] Fré-Jean's forced impleading claim adds Lafarge as a co-defendant in the principal action. The plaintiff was opposed to this addition. Fré-Jean had to demonstrate that Lafarge's presence was necessary to permit a complete solution of the question involved in the action.

The judgment in Fré-Jean found that the test was not met: [ translation ] [30] In such a context, is the presence of Lafarge and De Grosbois necessary to the complete solution of the question involved in the action, as required by

article 216 of the Code of Civil Procedure and the many judgments that have commented on that provision? The Court believes not, even though the mere fact of the enforceability of the pending judgment against Lafarge and De Grobois could ultimately prove to be useful from the perspective taken by the impleaded parties SNC-Lavalin and Alain Blanchette. [73] SNC's call in warranty does not add Lafarge as a defendant in the principal action. SNC does not seek to impose a defendant against whom the plaintiffs had decided not to take action.

The test of the necessity of the presence of the third party to the complete solution of the question involved in the action is inapplicable. ... [75] SNC calls Lafarge in warranty on the grounds that the two parties may be found to bear solidary extracontractual liability if the principal actions are allowed. The combined effect of articles 1526 and 1529 C.C.Q. forms the basis of the action in warranty: 1526. The obligation to make reparation for injury caused to another through the fault of two or more persons is solidary where the obligation is extra-contractual. 1529.

Proceedings instituted against one of the solidary debtors do not deprive the creditor of his remedy against the others, but the debtor sued may implead the other solidary debtors. [76] It is therefore clear that there is no identity of object between the judgment in Fré-Jean and SNC's calls in warranty against Lafarge. [77] Lafarge argues that, in addition to res judicata , Fré-Jean gives rise to a fin de non-recevoir against the calls in warranty. ... [81] In short, the Court finds that Fré-Jean does not bar the actions in warranty, especially since the principal actions and the actions in warranty are not joined because they constitute separate actions. (

b) Lack of a legal relationship, of relatedness, and of actions in warranty [Emphasis in original.] [ 21 ] In short, and this was well understood by the trial judge, the grounds raised by the applicants in their res judicata argument are more concerned with the comments of the Court about the legal relationship between the parties (more specifically between Fré-Jean and the applicants) and about the similar nature of the actions than they are with a real question of identity of parties, cause, and object.

Moreover, the Court took pains not to rule out the possibility for either of the parties to bring separate actions: [ translation ] [17] Finally, if any of the parties to the "judicial contract" have rights against Lafarge and De Grosbois, a point on which the Court

expresses no opinion, nothing prevents them from bringing actions before the courts in separate files. [ 22 ] In the circumstances, it appears to be difficult to argue res judicata. [ 23 ] In conclusion, I find that an appeal does not lie from the judgment that dismissed the motion to dismiss because it is not one of the cases enumerated in

article 29 of the Code of Civil Procedure and, furthermore, the ends of justice do not require that leave be granted. FOR THESE REASONS, THE UNDERSIGNED: [ 24 ] DISMISSES the application for leave to appeal, with costs. DOMINIQUE BÉLANGER, J.A.

Mtre Pierre Legault Mtre Olivier Therrien Mtre Elisa Clavier Gowling Lafleur For Lafarge Canada Inc. and Marie De Grosbois Mtre Mario Welsh Mtre François Bienjonetti Mtre Marie-Julie Lafleur Heenan Blaikie For SNC Lavalin Environment Inc. and Alain Blanchette Mtre Jean-François Lacoursière Legris Michaud For François Montminy Mtre Hugues Duguay Robinson Sheppard For Construction Yvan Boisvert Inc. Mtre André Mignault Mtre Pierre-Alexandre Fortin Tremblay Bois Mignault For Carrière B & B inc.

Mtre Antoine St-Germain Gasco Goodhue For Lombard General Insurance Company of Canada Mtre Ian Rose Lavery de Billy For Chartis Insurance Company of Canada Mtre Yvan Houle Mtre Gabriel Lefebvre Borden Ladner For Lloyd's Underwriters Mtre Paul Adrien Melançon Mtre Ruth Veilleux Lapointe Rosenstein For Zurich Insurance Company Mtre Pierre Visockis Mtre Richard R. Provost Fraticelli Provost For ACE Insurance Inc.

Mtre Bernard Héon Mtre François Lajoie Lajoie Héon For RCM Modular Mtre Isabelle Casavant Casavant Mercier For Coffrage Réal Bergeron Inc. Mtre Alain Gervais Mtre Claude A. Roy Roy Gervais For Béton Laurentide Inc. Mtre Sophie Plamondon Mtre Pierre Gourdeau Carter Gourdeau For Construction D.M. Turcotte T.R. Inc. Mtre Claude Ouellet Mtre Émilie Bilodeau Stein Monast For Construction D.M. Turcotte T.R. Inc. Date of hearing: June 20, 2013