Executive Summary: Key Legal and Evidentiary Issues

• Dispute arises from a turnkey residential sale where buyers claim the developer and its officer failed to honour a contractual promise to pay all infrastructure costs for the property.
• Central evidentiary issue is the interpretation and effect of clause 17 of the deed of sale, which expressly states that all necessary infrastructure costs “have been or will be paid in full by the seller,” versus testimony that the parties never discussed infrastructures before signing.
• The court finds, on the evidence, that the developer did in fact undertake to pay the infrastructures and that the notary correctly reflected the instructions of the developer’s representative in the deed, negating any alleged drafting error.
• Prescription (limitation) becomes the decisive legal issue: the buyers had knowledge of the fault, damage and causal link by early 2018 yet took no interruptive step until filing their claim in April 2023, well beyond the three-year prescriptive period extended for the COVID-19 suspension.
• The plaintiffs’ argument that ignorance of the law and remedies justified their delay is rejected as neither an interruptive act nor an impossibility to act, particularly given that one plaintiff worked in the legal field.
• The developer’s call in warranty against the notary fails because no professional fault is established, leading to dismissal of the warranty claim with costs against the developer and leaving the notary entirely cleared of liability.

Facts of the residential purchase

Christine Dandurand and Dominic Delorme wished to purchase a house in Ormstown, Québec. In 2016, they became interested in a residential development project operated by Les Habitations H. Charland inc., a developer offering turnkey homes to be built on its own lots. The project contemplated that Habitations H. Charland would construct the house chosen by the purchasers on a lot it owned within a planned housing development. The individual defendant, Denis Poirier, was acting as an officer and representative of the developer in relation to this project. On 13 July 2016, when the house was already fully built, Ms. Dandurand and Mr. Delorme signed the deed of sale before notary Me Louisa Renaud. The deed recorded the transfer of the immovable from Les Habitations H. Charland inc. to the buyers. Habitations H. Charland was represented at the signing by Hugo Charland and by Denis Poirier, reflecting the corporate seller’s direct involvement in the transaction at the notarial act. Before execution of the deed, there had been no explicit discussion between the parties about who would ultimately bear the cost of municipal infrastructures serving the property, such as sewer, water and street works. That silence later became important in light of the wording of the contractual clause dealing with infrastructures in the notarial deed.

Contractual clause on infrastructure costs

The notarial deed of sale contained an express provision assigning responsibility for the infrastructure costs. At clause 17, the contract stipulated that the cost of all infrastructures necessary to serve the immovable being sold—including, without limiting the generality, sewers, water supply (aqueducts), street paving, lighting and curb work—“has been paid or will be paid in full by the seller.” This language, inserted by Me Renaud, is unequivocal on its face: the vendor, Les Habitations H. Charland inc., undertook to absorb all infrastructure charges connected with the property. The buyers later argued that this provision formed a clear contractual commitment by the developer that they relied on, and that the subsequent billing of infrastructures to them by the municipality represented a breach of that undertaking. The developer, for its part, contended that it had never intended to assume responsibility for infrastructures and that the notary had made an error in drafting the clause. It argued that nothing in the preliminary contracts referred to such an obligation and claimed the clause did not reflect its true agreement. The court firmly rejected this narrative. It found that Habitations H. Charland had indeed undertaken to pay for the infrastructures and that the deed of sale clearly recorded this commitment. The suggestion that the notary mistakenly inserted an obligation for the seller to pay infrastructures was characterized as false. Evidence showed that Me Renaud had received her instructions from Denis Poirier, then an officer of Habitations H. Charland, and that the clause in question corresponded to those instructions rather than to any unilateral notarial error.

Emergence of the dispute and conduct after municipal billing

Nearly a year and a half after the sale, on 9 January 2018, the Municipality of Ormstown sent a letter to Ms. Dandurand and Mr. Delorme informing them that the infrastructures serving their property had not been paid. The letter specified that an amount of 8 594,03 $ in infrastructure costs would be charged to them, a sum that was added to their municipal tax account and ultimately paid by the buyers in instalments. In the weeks following this notice, the buyers attended a meeting in the spring of 2018 with a representative of the municipality. At this assembly, municipal officials discussed both the state of infrastructure payments and the layout of the residential development where the property was located. By the end of this meeting, there could be no doubt from the buyers’ perspective that Habitations H. Charland had not paid for the infrastructures despite the clause in the deed of sale stating otherwise, and that the municipality was definitively holding them liable for those charges. After this meeting, the buyers took no legal or formal step against Habitations H. Charland or Mr. Poirier for several years. They did not send a formal demand letter, did not notify the seller of a claim, and did not initiate any proceeding or other act that might interrupt prescription. According to the judgment, the current court proceedings were the first time Habitations H. Charland and Mr. Poirier were informed of the buyers’ position that the seller was contractually bound to pay the infrastructures and had failed to do so.

Claims advanced by the parties

In their action before the Small Claims Division of the Court of Québec, Ms. Dandurand and Mr. Delorme claimed 10 594,03 $ from Les Habitations H. Charland inc. and Denis Poirier. They framed their claim as a contractual fault, essentially seeking reimbursement of the infrastructure amount billed and paid, plus associated sums, on the basis that the seller had expressly promised in the deed of sale to absorb those costs. They argued that the developer had failed to honour the contractual clause requiring it to pay all infrastructures and that this breach caused them financial loss when the municipality recovered the charges from them through their tax bill. Habitations H. Charland defended on both factual and legal grounds. Substantively, it denied any obligation to pay the infrastructures, challenging the interpretation of clause 17 and asserting that it had never agreed to cover those costs. Additionally, it raised prescription (limitation) as a complete defence, arguing that any claim by the buyers was time-barred because they knew of the unpaid infrastructures and of their resulting financial burden as early as January and spring 2018, yet only filed their action in April 2023. Mr. Poirier similarly maintained that nothing in the preliminary agreements created an obligation on his part or that of the developer to assume infrastructures. Furthermore, Habitations H. Charland instituted a call in warranty against notary Me Louisa Renaud, alleging that if any obligation to pay infrastructures appeared in the deed, it must have resulted from a drafting error on her part. It sought to shift liability to the notary on the theory that she improperly recorded an obligation the seller had not accepted. Me Renaud contested the call in warranty. She maintained that she had simply followed the instructions of Habitations H. Charland, acting through Mr. Poirier, when she inserted clause 17. She also invoked prescription, contending that the buyers’ claim against the vendor and its officer was already prescribed and that in any event no professional fault on her part had been established.

Court’s findings on contractual liability and notarial responsibility

On the merits of the contractual obligation, the court unequivocally concluded that Habitations H. Charland had undertaken to pay the infrastructures. The deed of sale’s clause 17 was clear and unambiguous in placing the full burden of infrastructure costs on the seller. The court found that the developer’s subsequent assertion that it had never agreed to such an obligation was inconsistent with the documentary evidence and with the instructions it had provided to the notary at the time of the transaction. The argument that the notary mistakenly inserted an infrastructure obligation on the seller was specifically rejected. The judgment emphasizes that Me Renaud acted on explicit instructions from Denis Poirier, then an officer of Habitations H. Charland, when drafting the deed. There was therefore no drafting error attributable to the notary and no basis to conclude that she had deviated from her mandate or misrecorded the parties’ agreement. As a result, the court held that Me Renaud had committed no fault capable of engaging her professional liability. Even apart from prescription, the call in warranty would have been dismissed as ill-founded because Habitations H. Charland failed to prove any wrongdoing, negligence or breach of professional standards by the notary in preparing the contract.

Prescription and the time-bar of the buyers’ claim

Although the court accepted that Habitations H. Charland had promised to pay for the infrastructures, the decisive question was whether the buyers’ claim was prescribed. Relying on article 2875 of the Civil Code of Québec, the court recalled that extinctive prescription is a mechanism by which a debtor is liberated from obligations by the passage of time under conditions fixed by law. It then applied article 2925 C.c.Q., which provides that actions to enforce a personal right or movable real right, when not otherwise governed, prescribe by three years. The key analytical step was identifying when the buyers’ right of action arose and thus when the prescriptive period began to run. Drawing on doctrinal commentary by Céline Gervais and Supreme Court authority, the court reaffirmed that prescription cannot begin before the right of action exists, and that this point arises when the plaintiff has knowledge of the three essential elements of civil liability: the fault, the damage and the causal link between them. Here, the court found that 9 January 2018 marked the initial point at which Ms. Dandurand and Mr. Delorme clearly learned that the infrastructures had not been paid by the seller and that the municipality would charge them 8 594,03 $ for those works. If any doubt remained, it was entirely dispelled at the spring 2018 municipal meeting, where the buyers were definitively apprised that infrastructures had not been paid by Habitations H. Charland and that they, as owners, were being held financially responsible. From that time onward, they possessed all relevant information about the fault (the seller’s non-payment contrary to the deed), the damage (the infrastructure amount charged and added to their taxes) and the causal link between the two. No interruptive act occurred between 2018 and 2023. The buyers did not send a formal notice, commence a proceeding or otherwise interrupt prescription within the three-year period. The court noted that absent interruption, prescription would normally have been fully acquired in the spring of 2021. It then took account of the impact of the COVID-19 pandemic, during which the Government of Québec temporarily suspended limitation periods for approximately six months. Factoring this suspension, the court held that prescription was effectively extended to the autumn of 2021. However, the buyers only filed their small claims action on 14 April 2023, long after the extended prescriptive period had expired. This filing, while constituting a civil interruption of prescription under article 2892 C.c.Q. when timely, could no longer interrupt a period that was already definitively acquired. The court further examined article 2898 C.c.Q., which recognizes that a debtor’s acknowledgment of a right can interrupt prescription, but it found this route inapplicable because neither Habitations H. Charland nor Mr. Poirier had ever acknowledged any right in favour of the buyers regarding infrastructures. Confronted with this timeline, the buyers attempted to justify their inaction by invoking ignorance of the law and of the remedies available to them. The court categorically rejected this explanation. It held that ignorance of legal rights does not interrupt prescription and does not amount to an impossibility to act. The buyers bore the responsibility to seek information or advice once the problem surfaced. This was especially compelling because Ms. Dandurand herself worked in the legal field and was therefore well positioned to obtain guidance or referrals to lawyers who could advise her about potential recourse. In the court’s view, this background made the prolonged delay more difficult to justify. Accordingly, the court concluded that the buyers’ recourse was definitively prescribed before the action was instituted.

Outcome and financial consequences

In light of its findings on prescription, the court dismissed the buyers’ claim in its entirety. Despite recognizing that the developer had in fact contractually undertaken to pay infrastructure costs under clause 17 of the deed of sale, the judge held that extinctive prescription provided a complete defence and extinguished the buyers’ right of action. The claim by Ms. Dandurand and Mr. Delorme against Les Habitations H. Charland inc. and Denis Poirier was therefore rejected, with no order as to costs on the main action, as the judgment specifies that it is dismissed “without costs.” As for the call in warranty against Me Louisa Renaud, the court dismissed it as unfounded, emphasizing that the notary had committed no professional fault and had faithfully followed the developer’s instructions. On this warranty aspect, costs were awarded against Les Habitations H. Charland inc., with the judgment ordering that the call in warranty be rejected “with costs” against the developer. However, the decision does not state a specific dollar amount for those costs. Overall, the successful parties are Les Habitations H. Charland inc. and Denis Poirier on the main claim, and Me Louisa Renaud on the call in warranty. No damages are awarded to any party, and while the notary is granted costs against the developer on the warranty claim, the total monetary amount of those costs cannot be determined from the judgment.