Executive Summary: Key Legal and Evidentiary Issues

• Admissibility of an architect’s expert report where the architect drafted the plans and was involved in the project, raising allegations of partiality and conflict of interest.
• Scope of an engineer’s expert report, particularly whether certain conclusions improperly usurp the trial judge’s role by deciding legal or ultimate factual issues.
• Application of article 241 C.p.c. to preliminary motions to strike expert evidence, including the threshold of “irregularity, grave error or partiality” and the two-step admissibility plus cost-benefit analysis.
• Distinction between issues of admissibility and issues of weight/credibility, and the deference owed to the trial judge at the merits stage to assess probative value.
• Use of expert evidence to establish construction deficiencies (architect) and to quantify the cost of correcting those deficiencies (engineer) in support of a substantial reconventional claim.
• Balancing of prejudice between parties where exclusion of contested expert reports at a preliminary stage would significantly impair the defendants’ ability to present their case.

Background facts and contractual framework

The dispute arises out of a major construction and renovation project on a property owned by 9436-9139 Québec inc., bearing civic numbers 2230, 2232 and 2234, Avenue de l’Église in Montréal. J. Collins Construction, a licensed construction company, entered into a contract with 9436 on 13 December 2022 for construction and renovation of the property on an estimated basis. The initial contract price was $875,000 before taxes, based on architectural plans supplied by 9436, with an express provision that the final cost could vary up or down depending on those plans and later cost revisions. The contract obliged the contractor to supply labour, materials, equipment and services in accordance with drawings and plans attached as an annex, and it contemplated weekly payments and change management through “Change Orders” and written addenda signed by both parties for contract modifications. Over the course of the project, the contract price was revised several times. Between December 2022 and December 2023, the parties allegedly agreed to a final price of $1,566,817.01 after six intermediate re-evaluations of costs. During the works, at the request and on the assurances of the individual defendants, Israel Bonequi (de facto administrator of 9436) and Sonia Bertrand (formal administrator), J. Collins Construction proceeded with certain work without insisting on the weekly payments that were contemplated by the contract, in exchange for 9436’s commitment to assume part of the interest. 9436 then paid interest of $28,305.04 for the period from July 2023 to March 2024. In February 2024, the parties appear to have agreed that 9436 would pay $200,000 as soon as possible and another $200,000 in April 2024, failing which the contractor would be unable to continue the works. The defendants allegedly did not contest that this amount was owed and gave assurances that the payments would be made. However, the $200,000 payment due since February 2024 was never made. On 6 April 2024, J. Collins Construction stopped work, claiming that a sum of $611,890.46 was then outstanding for work already performed.

Termination of the contract and hypothecary proceedings

Relying on article 8.1 of the construction contract, the contractor alleges that 9436’s failure to pay constituted a default under the contract as defined in article 8.2, giving J. Collins Construction the right to terminate. An initial termination notice was sent, and fifteen days later, on 20 April 2024, the contract was treated as terminated. Under article 8.3, all amounts due for work executed by the contractor became immediately payable upon termination. Following these events, J. Collins Construction served and published a legal hypothec notice on 17 April 2024 and served it on 9436 on 19 April 2024. No payments were made after the publication of this legal hypothec. On 7 June 2024, the contractor served a prior notice of exercise of a hypothecary right, which was published on 17 June 2024. Once the 60-day delay expired without remedy of the default, J. Collins Construction sought a judgment of délaissement forcé (forced surrender) of the property for sale under judicial control to enforce its hypothecary security and recover the unpaid balance.

Defence and reconventional claim by the owners

The defendants contest the contractor’s claim and file a defence with a substantial reconventional (counter)claim. They assert that the works, divided into phases including a component referred to as the “Bikeshop,” were supposed to start in January 2023 and be completed within 120 working days, around 7 July 2023. They emphasize that the contract required all changes to be documented through “Change Orders” per Annex 3 and that any variation to the contract had to be made through a written addendum signed by both parties, suggesting that many changes and price escalations were not formally documented. The defendants allege that at the time the contractor priced the job, it had both architectural and engineering plans in hand and therefore cannot justify major cost overruns and delays by later-discovered conditions. They maintain that when J. Collins Construction left the site in April 2024, Phase 2 was incomplete for its intended use and had numerous structural and execution deficiencies, which are detailed in the expert report produced by the engineering firm Les Consultants GEPECA inc. They also claim that the works at the Bikeshop were both late and defective, and that the contractor performed no adequate cost tracking despite multiple estimates, amounting to serious mismanagement or incompetence. According to their allegations and the GEPECA expertise, the defendants state that the project’s problems stem from J. Collins Construction’s gross negligence in coordinating and supervising the works, monitoring deadlines and costs, and from its lack of experience in commercial construction, which allegedly cost the owners a full year of delay. To document the state of the project and the alleged defects at the contractor’s departure, the defendants retained two experts: architect Maurice Martel, who had prepared the architectural plans, to inspect the site and prepare a report on conformity with his plans; and engineer Claude Prud’homme, from GEPECA, to analyze the works and their cost implications. The defendants also allege that they placed the contractor in default by sending a formal notice on 12 June 2024 to have it acknowledge defects, followed by a reminder on 4 July 2024. J. Collins Construction allegedly did not inspect the property with its own expert until 12 December 2024, at which time that expert is said to have confirmed the nature and extent of the deficiencies. In their reconventional claim, the defendants assert that, when the contractor left the site, the works were unfinished and riddled with deficiencies, forcing them to urgently retain another contractor to correct and complete the works. They claim additional damages of $845,815.99 linked to the remediation and completion costs, delays and related losses. These monetary claims remain to be adjudicated at trial; they are not determined in this interlocutory decision.

Expert evidence at issue and article 241 C.p.c.

The judgment in question deals solely with J. Collins Construction’s motion under article 241 of the Code of Civil Procedure to strike the two expert reports filed by the defendants. Under article 241 C.p.c., a party may seek the rejection of an expert report “for cause of irregularity, serious error or partiality” within ten days of becoming aware of the ground, the purpose being to avoid forcing a party to answer an expert report that is not admissible. The case law, particularly Excavation & Construction ABR ltée v. Ville de Saint-Lazare and the Supreme Court’s decision in White Burgess Langille Inman v. Abbott and Haliburton Co., provides a two-step framework for expert admissibility. First, the court looks at four threshold criteria: relevance, necessity to assist the trier of fact, absence of an exclusionary rule, and the expert’s sufficient qualification. Second, the court undertakes a cost-benefit analysis, excluding expert evidence only when its probative or useful value is so low that it is clearly outweighed by its prejudicial effect. Higher courts also warn against experts usurping the role of the judge by giving legal opinions or effectively answering the ultimate question of law the court must decide. However, they equally stress that, at the preliminary stage under article 241, judges must be cautious: rejection is reserved for manifest cases where the lack of utility or probative value appears on the face of the report, and many challenges should instead be left to the trial judge to weigh as issues of credibility and weight rather than admissibility.

Architect’s report: alleged partiality and conflict of interest

The first report challenged is the architect’s report prepared by Maurice Martel. It is based on a site visit after the contractor left, aimed at documenting the progress of works and identifying problems and non-conformities relative to the plans and specifications. The court notes that this is central evidence in a construction dispute and that the report, supported by numerous photographs and contemporaneous descriptions in June 2024, appears clearly relevant and potentially necessary to determine the state of the works and the alleged deficiencies. The contractor has had this report, which lists defects in its own work, since 12 June 2024 but waited until December 2024 to perform its own inspection with its expert. J. Collins Construction nonetheless argues that the architect should be disqualified as an expert because he drafted the plans and was involved in the work, making him, in its view, a fact witness with a direct interest in exonerating his own professional liability. It produces documents and emails showing the architect’s involvement and raising questions about what he communicated or not to the contractor, and it contends that he cannot fairly evaluate conformity to his own plans. On this point, the court turns to leading authority on expert independence and impartiality, including Mouvement laïque québécois v. Saguenay (Ville) and White Burgess. Those decisions hold that a mere appearance of bias, or the existence of some relationship or potential interest, does not automatically render an expert’s evidence inadmissible. The decisive question is whether, given the expert’s situation and proposed testimony, he or she can and intends to fulfill the primary duty to the court with objectivity, impartiality and rigour; only a more serious lack of independence, such as a direct financial interest in the outcome or clear advocacy, justifies exclusion. The court also cites Cardinal v. Bonnaud, where the Court of Appeal cautioned that “partiality” often goes to weight, not admissibility, and that judges must be wary of striking reports too readily at the preliminary stage. Applying these principles, the judge concludes that, at this point in the proceedings, it would be imprudent to reject the architect’s report based on an incomplete and hypothetical assessment of his potential exposure to professional liability. There is a material difference between having a direct proprietary or investment stake in a project and the more remote possibility of being sued in professional negligence. The alleged interest is not so manifest or direct as to make the architect incapable of giving an impartial opinion. The report is clearly useful and arguably necessary, and any issues about bias or credibility are better left for the trial judge to evaluate at the merits with a full evidentiary record. The court therefore finds no exclusionary rule barring the architect’s testimony and no basis under article 241 C.p.c. to strike his report. It also emphasizes that the prejudice to the defendants from excluding this central piece of evidence would be much greater than any prejudice to the plaintiff in having to confront it, and that the report respects proportionality in light of the pleadings and issues. On this cost-benefit assessment, the court declines to reject the architect’s expert report.

Engineer’s report: scope of opinion and caviardage

The second expertise under attack is the engineer’s report prepared by Claude Prud’homme of GEPECA. Initially, the contractor argued that the engineer’s amended report included a number of conclusions that were beyond the proper scope of expert testimony because they effectively decided liability issues reserved to the court. The complaint was not so much about qualifications as about the report allegedly failing the necessity and exclusion criteria by usurping the trial judge’s function. During the hearing, with the court’s permission and without admission, the defendants undertook a substantial redaction (caviardage) of the amended engineer’s report to remove problematic passages—those that could be read as legal conclusions or determinations of ultimate issues of fault, rather than technical opinion on construction practice, defects, costs and quantum. This produced a further “caviarded” version of the engineer’s report. J. Collins Construction maintained that even this version still contained too many objectionable passages that invaded the judicial role and asked that it be rejected in its entirety. The court notes that the defendants present the engineer’s evidence as a quantum meruit-type expertise, intended to analyze the actual costs of rectifying alleged deficiencies after the contractor left the site and thus to underpin the amount of their counterclaim. In a complex and high-value construction dispute, the court recognizes that technical evidence on costs and quantum is, in principle, both relevant and necessary for the trial judge. The caviarded report is based on project documents and aims to establish the value of the works and losses, aligning with its stated purpose. On a facial reading, it appears sufficiently detailed and reasoned to allow the future trial judge to assess its factual underpinnings, methodology, conclusions and probative value. Turning to the exclusionary issue, the judge concludes that the redaction exercise has substantially addressed the initial concerns. Unlike in cases where a report is almost entirely argumentative or legalistic, this caviarded version now focuses on scientific and technical information that exceeds the ordinary knowledge of a Superior Court judge and will assist in assessing the technical evidence at trial, particularly on the state and conformity of the works and the cost of remedial measures. The problematic interpretive and conclusory passages that risked usurping the judicial function appear, at least prima facie, to have been removed. As with the architect’s report, the court emphasizes that any remaining concerns over tone, emphasis or borderline passages are matters for the trial judge to deal with through weight and possible exclusion of specific questions or sections at trial, rather than striking the entire report at the preliminary stage. The cost-benefit analysis also weighs heavily in favour of admitting the caviarded engineer’s report: excluding it would significantly hamper the defendants’ ability to prove the quantum of their reconventional claim, whereas any incremental prejudice to the contractor can be managed through cross-examination and responsive expert evidence, without disproportionate expense or delay.

Complementarity of the expert reports and outcome of the motion

In its conclusion, the court notes that the two impugned reports perform complementary functions: the architect’s report identifies and documents the alleged deficiencies and non-conformities, while the engineer’s report assigns monetary values to those deficiencies and quantifies the cost consequences. In this sense, both reports are directly tied to the issues raised by the defence and reconventional claim and are proportionate to the scale and complexity of the dispute. Given the applicable legal principles on admissibility of expert evidence, the high threshold for exclusion under article 241 C.p.c., and the clear utility of both reports, the court rejects J. Collins Construction’s application to strike them. The motion is dismissed “without costs,” partly because the defendants were required to undertake significant caviardage of the original engineer’s report following the hearing. As a result, in this interlocutory decision on expert evidence, the successful parties are the defendants—9436-9139 Québec inc., Israel Bonequi and Sonia Bertrand. No damages or hypothecary recovery are adjudicated at this stage, and no monetary award or costs are ordered in favour of any party. The total amount granted in this particular judgment is therefore nil, and the competing principal and reconventional monetary claims will have to be resolved at a later trial on the merits.