Executive Summary: Key Legal and Evidentiary Issues

• The insurer, La Personnelle assurances générales inc., sued roofing contractor 9202-9784 Québec inc. ("Toiture Expert") by way of legal subrogation under article 2474 C.c.Q. after paying its insured $75,905.40 for a water damage claim.
• Toiture raised prescription, but the court held the recourse was not prescribed because the contractor repeatedly returned to the roof until 2019 under its ten-year warranty, thereby renouncing prescription.
• Expert evidence established that the sudden infiltration of October 1, 2019 originated from a torn membrane at the rear right parapet, caused by manipulation of the metal coping that Toiture admitted performing months before the loss.
• No expert evidence was offered by Toiture, and its alternative theories of a prior fire and a defective brick wall were rejected as unproven.
• Damages admitted at $60,704.30 were reduced by $5,840.55 for mould decontamination attributed to a recurring drip infiltration predating 2011, leaving $54,863.75 in compensable damages.
• Liability was apportioned 50/50 between Toiture and the insured, since the insured's failure to correct a known water accumulation on the roof aggravated the extent of the damage.

Facts of the case

Rosul Khalique purchased a semi-detached triplex at 6073 rue Pascal, Montréal-Nord, in or around July 2011. From the outset, a second-floor tenant reported drip-type water infiltration at the kitchen ceiling, and a neighbouring owner noted water pooling on the rear right portion of the roof. In November 2011, Khalique retained 9202-9784 Québec inc., doing business as Toiture Expert, to redo the asphalt roof for $9,000.08 taxes included, paid on or about November 14, 2011, when Toiture issued a ten-year warranty certificate. Water accumulation reappeared at the same rear right location by 2013 or August 2014, and drip infiltrations in the tenant's kitchen resumed around 2014 or 2015, recurring roughly once a year during the spring thaw. Between 2015 and 2019 the owner repeatedly called Toiture, which attributed the problem to condensation and ventilation rather than watertightness, performed various interventions including adding gravel and removing the metal coping around the parapet, yet the recurring infiltration persisted. On October 1, 2019, a heavy rainfall caused a sudden water infiltration damaging the second-floor unit, the ground floor, and the basement. The owner's insurer, La Personnelle assurances générales inc., which insured the building under home insurance policy number 18238501, paid its insured an indemnity of $75,905.40 and sued Toiture in subrogation. The parties admitted the quantum of damages at $60,704.30.

Policy terms and contractual clauses at issue

Toiture's 2011 quote covered stripping the existing roof to the wood decking, installing insulation, applying five alternating layers of hot asphalt and perforated felt paper, sealing the parapets, and reinstalling flashings, with a ten-year warranty beginning at the end of the work and taking effect upon full payment. The warranty certificate required the client to perform minimal maintenance, including keeping the drain clear, cleaning drain openings, maintaining caulking joints, and removing snow and ice. The insurer's claim rested on the legal subrogation mechanism of article 2474 C.c.Q., which subrogates an insurer in its insured's rights against the person responsible for the loss, up to the indemnities paid. Toiture invoked, among other defences, prescription, the insured's own knowledge of the roof defect, and the argument that the insurer's payments were made without any obligation under the insurance contract, such that no valid subrogation existed. The court noted that under article 1440 C.c.Q. a contract has effect only between the parties, so a third party such as Toiture lacks the legal interest to invoke the nullity of the insurance contract.

The court's reasoning and analysis

Justice Yves Hamel of the Court of Québec found that Toiture offered no expert evidence to counter the November 28, 2019 report of Robert Duval, the insurer's expert. The expert concluded that the roof had a poor slope toward the rear right and that, during the heavy rain, water flowed through an opening in the parapet upstand whose membrane had been torn, apparently by a person lifting the metal coping. The wood exposed beneath the tear was recent — amber-coloured rather than darkened by time and water — pointing to a tear occurring some months before October 1, 2019. The court retained that Toiture itself had manipulated the metal coping during its corrective interventions, its representative having acknowledged in a 2023 pre-trial examination that work was done on the roof a few months before the loss. Toiture's theories that a prior fire had damaged the structure or that the brick wall was the source of infiltration were rejected for lack of probative evidence. The court also held that the recourse was not prescribed: by returning to the roof until 2019 to attempt corrections under its warranty, Toiture renounced invoking prescription. On damages, the court found the insurer justified in paying $54,863.75, rejecting the $5,840.55 decontamination component because the mould was more probably attributable to the recurring drip infiltration predating 2011 than to the sudden October 2019 event. Finally, the court apportioned civil liability equally: while the membrane tear caused by Toiture was the principal cause of the loss, the insured had known since at least 2014 of the abnormal water accumulation on the rear right of the roof and took no steps to have it corrected, which increased the volume of water that entered the building.

Ruling and overall outcome

The court allowed the insurer's claim in part, making La Personnelle assurances générales inc. the successful party, though only partially. Applying the 50/50 apportionment of responsibility between the insured and the contractor, the court condemned 9202-9784 Québec inc. (Toiture Expert) to pay La Personnelle the sum of $27,431.88, with interest at the legal rate and the additional indemnity under article 1619 of the Civil Code of Québec from the demand letter of January 16, 2021, together with legal costs including $1,566.50 in expert fees.