Executive Summary: Key Legal and Evidentiary Issues

• Plaintiffs Nadir Boussaid and Tassadit Brouri claimed $98,699.83 against Hydro-Jection (1988) Inc. for alleged deficiencies in concrete and foundation work performed on their Sherbrooke rental property in 2023.
• Disputed issues included the proper contract price, the validity of $18,685.00 in additional works billed beyond the original $61,160.00 bid, and whether those extras were legitimately owed.
• Expert evidence on slab levelness was contested; the court preferred the defendant's expert, Mr. Pascal Martin, whose detailed measurements found both slabs compliant with APCHQ performance standards.
• Liability was established against the defendant for installing a pile beneath a floating slab contrary to professional standards, but recoverable damages were limited to the cost of that defective work — $1,440.00 plus taxes.
• Claims for $50,200.00 in lost rental income were dismissed for failure to prove causation, rental value, or mitigation efforts, with the court accepting Mr. Boussaid's own admission that budget constraints halted construction of unit 2338.
• Validity of the defendant's construction legal hypothec was upheld under the unity-of-completion rule, and forced judicial sale of the hypothecated property was authorized.

Facts of the case

In April 2022, plaintiffs Nadir Boussaid and Tassadit Brouri acquired a rental duplex in Sherbrooke, Quebec, with plans to renovate and expand it into a quadruplex. Mr. Boussaid managed the project himself, retaining various contractors for each phase of construction. The defendant, Hydro-Jection (1988) Inc. (operating as Béton Préfontaine), was engaged for excavation and foundation work. A verbal contract was formed on April 3, 2023 upon acceptance of the defendant's bid dated March 24, 2023, at a price of $61,160.00 plus taxes. During execution, the plaintiffs requested additional work items totalling $18,685.00 plus taxes, reflected in a final invoice of $79,845.00 plus taxes dated July 5, 2023. Following a demand letter from the defendant's counsel, the plaintiffs declared dissatisfaction with the work, withheld $25,318.71, and made a partial payment of $45,000.00. On November 16, 2023, the defendant registered a construction legal hypothec for the unpaid balance of $46,801.79. The plaintiffs subsequently filed suit claiming $98,699.83 in damages, while the defendant counterclaimed for the unpaid balance and sought forced sale of the property.

Contractual terms and clauses at issue

The contract was governed by the Civil Code of Québec. The plaintiffs argued the additional work constituted unjustified cost overruns subject to Article 2107 C.c.Q., which governs price increases for work not reasonably foreseeable at contract formation, or alternatively that the contract was a fixed-price contract under Article 2109 C.c.Q. The defendant's obligation to inform its clients was engaged under Article 2102 C.c.Q., and its obligation of result was governed by Article 2100 C.c.Q. The validity of the construction legal hypothec was assessed under Article 2727 C.c.Q., which sets a 30-day registration window following completion of the work.

Reasoning and analysis

On the contract price, the court found that neither Article 2107 nor Article 2109 C.c.Q. applied. The additional items were genuine extras — work specifically requested by Mr. Boussaid after contract formation — not foreseeable modifications. As an experienced owner-builder who had negotiated two successive bids and supervised all contractors, Mr. Boussaid was a sophisticated client who could not claim ignorance of industry pricing practices. The court found no evidence of excessive billing or deviation from the contract's pricing methodology. However, the defendant admitted it had not constructed the concrete staircase called for under the contract, having installed only a temporary wooden staircase instead. The court reduced the contract price by $2,000.00 plus taxes for this omission, arriving at a total contract price of $89,502.29 and an unpaid balance of $44,502.29 after crediting the partial payment of $45,000.00.

On the deficiency claims, the court rejected the evidence of both Mr. Jean-François St-Laurent — who testified as a fact witness after the plaintiffs withdrew his qualification as an expert — and the plaintiffs' engineering expert Mr. André Langlois regarding slab levelness, finding both lacked the precision and specificity required to establish a deficiency. The court accepted the detailed measurements and expert report of the defendant's expert, Mr. Pascal Martin, civil engineering technologist, who found both slabs within APCHQ performance standards. The driveway refection claim was dismissed because the remedial work carried out by Excavation Maddox Marcotte concerned the front parking area of the property and not the lateral driveway worked on by the defendant. Claims relating to window openings, air conditioning unit repairs, and the unbuilt staircase were dismissed for failure to establish contractual obligation, causation, or factual foundation.

On the pile-supported slab, the court accepted the plaintiffs' version of events — that the defendant's representative had suggested installing a metal pile beneath a floating slab to support a building column — over the defendant's denial. Relying on Mr. Langlois's opinion, the court found that installing a fixed anchor beneath a floating slab is contrary to professional standards, as it can interfere with soil movement and risk cracking. The defendant, as a concrete specialist, breached its obligation to act in its clients' best interests under Article 2100 C.c.Q. However, the court drew a causal distinction: the engineering fees and remediation costs claimed were expenses that should have been incurred as part of proper construction from the outset, and did not flow directly from the defendant's fault. Compensation was therefore limited to the price paid for the defective pile-supported slab — $1,440.00 plus taxes — for a total of $1,655.64.

The lost rental income claim of $50,200.00 — comprising $42,000.00 for unit 2338 over 30 months and $8,200.00 for unit 2340 over 6 months — was rejected in its entirety. No probative evidence linked the unavailability of the units to any fault of the defendant. Mr. Boussaid himself acknowledged during testimony that suspension of finishing work on unit 2338 was due to budget constraints. Unit 2340 had in fact been rented since July 1, 2024 at the claimed monthly rent of $2,300.00. The plaintiffs failed to prove rental value, mitigation efforts, or net lost income as required under Articles 1479 and 1611 C.c.Q. The moral damages claim of $5,000.00 was similarly dismissed; Mme Brouri did not testify, and Mr. Boussaid's stress was found to be primarily attributable to his spouse's serious illness rather than to any conduct of the defendant.

On the legal hypothec, the court upheld its validity by applying the unity-of-completion rule: there is a single completion date for an entire construction project, not a separate date for each contractor. Since the building was still under construction in November 2023 — with units unfinished and not occupied until July 2024 — the 30-day registration window under Article 2727 C.c.Q. had not expired when the hypothec was published on November 16, 2023. The court also authorized the forced sale of the hypothecated property, located at 2334-2340 rue Galt Ouest, Sherbrooke, by judicial auction with a reserve price of $100,000.00.

Ruling and outcome

The court rendered a split decision, largely in favour of the defendant, Hydro-Jection (1988) Inc. The plaintiffs' claim was allowed only in part: the defendant was ordered to pay the plaintiffs $1,655.64, representing compensation for the defective pile-supported slab. The defendant's counterclaim was allowed in the amount of $44,502.29, representing the unpaid contract balance. After judicial set-off of both debts under Article 1673 C.c.Q., the plaintiffs were condemned to pay the defendant the net sum of $42,846.65, with legal interest and the additional indemnity under Article 1619 C.c.Q. from the date of the demand letter of August 28, 2023. The construction legal hypothec was declared valid, and the court ordered the forced surrender and judicial sale of the hypothecated property, to be conducted by bailiff André Carbonneau of Huissiers Sherbrooke inc.