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Latent defects: the burden of proving hidden defects


Real estate and construction, Civil and commercial litigation

Although we most often hear about latent defects when purchasing a new home or property, it should be noted that the legal warranty (or warranty against latent defects) provided in the Civil Code of Quebec, is not limited to real estate but can be applied to any sale.

That said, it should be noted that in cases involving hidden (or latent) defects, the details surrounding the burden (or onus) of proof are of particular interest. In fact, while the burden of proving the existence of a defect falls on the Plaintiff, it is up to the Defendant (once the existence has been established) to prove that the defect should have been discovered by the Plaintiff. In other words, it is up to the Defendant to demonstrate that the defect in question should have been noticed by the buyer, thus meaning that it was an apparent defect and therefore not covered by the legal warranty.

In a recent judgment, the Court of Appeal confirmed this point after the trial judge ordered the Defendant (Appellant on the merits) to pay the Respondent (Plaintiff on the merits) several million dollars because of defective glue products that were sold.

Indeed, the Court unanimously concluded that the appeal was unfounded and that the trial judge properly applied the law. The Court pointed out that once the existence of the defect is established, it is the Defendant who bears the burden of proving that the defect should have been discovered by the Plaintiff.

Although this all may seem somewhat technical, it is incredibly important to account for all these technicalities when preparing a lawsuit, in order to avoid getting caught at the end with a judgment ordering you to pay substantial sums of money that you may not necessarily have.

Harry Karavitis, Attorney-at-Law
Alepin Gauthier Avocats inc.

This text contains legal information of a general nature and should not replace legal advice with a lawyer or notary who will take into account the particularities of your situation.

Latent defects: the burden of proving hidden defects
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