Executive Summary: Key Legal and Evidentiary Issues

• Scope and limits of preliminary dismissal (irrecevabilité) under article 168 C.p.c., including the high threshold before striking a claim without a full trial.
• Contested validity of L’Unique’s legal and conventional subrogation in the insured’s rights following an indemnity paid after an “annulation ab initio” of the home insurance policy.
• Factual dispute over whether the broker (Bernier) knew of the presence of an exotic animal (python) and failed to disclose it to the insurer, potentially engaging professional and civil liability.
• Timing and formality requirements for conventional subrogation under articles 1653 and 1654 C.c.Q., particularly the need for an express written subrogation “at the same time” as payment.
• Evidentiary need to assess the parties’ true intention at the time of payment, including the impact of later documentation and correspondence referring to a future subrogation quitclaim.
• Characterization of the insurer’s amended recourse as non-abusive, leading to the rejection of the broker’s motion in irrecevabilité and allowing the action to proceed on the merits.

Facts of the case

L’Unique Assurances générales inc. (L’Unique) issued a home insurance contract in August 2021 in favour of Céline Levasseur to insure her residence. Levasseur did not deal directly with the insurer but instead used the services of 9388-8683 Québec inc., which operated under the trade name Andrée Bernier et Filles (Bernier) and acted as her insurance broker. In April 2023, a fire damaged Levasseur’s residence. L’Unique opened a claim and conducted an investigation following the loss. During this investigation the insurer discovered that Levasseur owned a python that was present in the insured residence. According to L’Unique, its underwriting norms prohibit the issuance of a home insurance policy where there are “animaux exotiques” in the premises, such that it would have refused to insure Levasseur’s residence had it known of the python. Despite this discovery, L’Unique chose to indemnify Levasseur for the fire damage. It ultimately paid her a total of 392 303,64 $, thereby fully compensating the insured to that extent for the loss caused by the fire. L’Unique then turned its attention to Bernier, alleging that Bernier’s representatives had been informed by Levasseur of the presence of exotic animals in the residence but failed to communicate this information to the insurer. On this basis, L’Unique claimed that Bernier committed a fault that engaged its civil and professional liability. As a result, L’Unique sought to exercise a subrogatory recourse against Bernier to recover the 392 303,64 $ it had paid to Levasseur, asserting that it was subrogated in Levasseur’s rights, both legally and conventionally.

Procedural history and policy-related context

In its original originating application, L’Unique pleaded only legal subrogation in the rights of Levasseur. It alleged that, by indemnifying its insured, it had become legally subrogated to her rights against any responsible third party, including the broker Bernier. At that stage, no conventional (contractual) subrogation was invoked in the pleadings. After Bernier responded with a motion in irrecevabilité and rejection (a form of motion to dismiss), L’Unique amended its originating application. In that amended pleading, it referred for the first time to a transaction subrogatoire or quittance subrogatoire that Levasseur signed in January 2025. Through this document, L’Unique alleged that Levasseur expressly subrogated the insurer in her rights against Bernier, thereby adding a conventional subrogation basis to the previously invoked legal subrogation. From a policy standpoint, the insurer’s underwriting norms are at the heart of the dispute. L’Unique maintained that its internal standards categorically prohibited issuing a home insurance policy where exotic animals were present in the dwelling. The existence of the python therefore went directly to a material risk factor that, if disclosed at the time of placement, would have led L’Unique to refuse coverage. This alleged breach of the risk presentation formed the backdrop for the insurer’s later decision to “annuler ab initio” the policy once the truth emerged, even though it still proceeded to pay the claim.

Issues raised by the broker’s motion in irrecevabilité

Bernier’s modified motion in irrecevabilité and rejection targeted the very foundation of L’Unique’s recourse. First, on legal subrogation, Bernier argued that L’Unique could not claim to be legally subrogated in Levasseur’s rights because the insurer had itself annulled the policy ab initio on the basis of misrepresentation. If the contract was treated as never having existed, L’Unique would have had no contractual obligation to indemnify Levasseur; its decision to pay would have been entirely voluntary. On Bernier’s theory, a purely voluntary payment in the absence of any legal obligation cannot give rise to legal subrogation under the Civil Code. Second, Bernier attacked the validity of the alleged conventional subrogation. Under articles 1653 and 1654 C.c.Q., conventional subrogation must be express, be recorded in writing, and be consented to at the same time as the creditor receives payment. In this case, the indemnity payments were made in 2023 and, at the latest, in 2024, whereas the written subrogation/quitclaim was signed only in January 2025. Bernier contended that the temporal separation between payment and written subrogation was fatal. In its view, there was no evidence that Levasseur, at the time of payment, clearly intended to subrogate L’Unique in her rights, and the later document could not retroactively satisfy the Civil Code’s requirement that subrogation be consented to “en même temps” as payment. On the strength of these two arguments, Bernier asked the court to find L’Unique’s action irrecevable and to dismiss it at a preliminary stage. The motion also included an allegation that the recourse was abusive under articles 51 and following of the Code of Civil Procedure, although Bernier did not heavily insist on this aspect at the hearing.

Legal framework on preliminary dismissal and subrogation

The court began its analysis by recalling the strict approach that governs motions in irrecevabilité under article 168 C.p.c. On such a motion the judge must treat as true the factual allegations in the originating pleading, in this instance the amended originating application filed by L’Unique. It is only the facts, and not the plaintiff’s legal characterizations, that are deemed admitted. The question for the court is whether those alleged facts, if ultimately proven at trial, could possibly give rise to the conclusions sought by the plaintiff. The purpose of an irrecevabilité ruling is to avoid a trial only where the action is clearly devoid of any legal foundation on the face of the pleadings. The Court of Appeal jurisprudence, cited at length by the Superior Court, stresses that questions of fact and mixed questions of fact and law generally cannot be resolved on a motion to dismiss and must be left for the trial judge after hearing evidence. Where the legal situation is not clear, or where an assessment of evidence is necessary, prudence dictates that the court allow the matter to proceed to the merits rather than terminate the case prematurely. Against that procedural backdrop, the Superior Court turned to the subrogation issues. It acknowledged that article 1653 C.c.Q. requires conventional subrogation to be express and in writing, and that article 1654 C.c.Q. specifies that such subrogation must be consented to at the same time as the payment is made to the creditor. It also accepted that case law places weight on the parties’ intention at the time of payment and on whether the subrogation “existed in the intention of the parties” at that moment, even if the formal instrument is executed later. The court noted that, here, the payments were made in 2023 and at the latest in 2024, while the written subrogation document is dated 15 January 2025. On a prima facie reading, that timing raised the very issue Bernier relied upon.

Need for a full evidentiary record on conventional subrogation

Despite these timing concerns, the Superior Court concluded that the validity of the conventional subrogation could not be determined at the preliminary stage on the basis of pleadings alone. L’Unique pointed to contextual elements that, if proven, might support the existence of a subrogation agreement in the parties’ minds at the time of payment. In particular, L’Unique’s counsel referred to a 28 July 2023 email sent to Levasseur’s representative, in which she indicated that the settlement would have to be the subject of a formal transaction between the parties, “incluant une quittance subrogatoire.” This contemporaneous reference to a future subrogation quitclaim suggested that, even before all payments were completed, the parties were already contemplating a settlement structure that included subrogation in L’Unique’s favour. The court held that such surrounding circumstances could significantly influence the analysis of whether the requirement that subrogation be consented to at the time of payment is substantively met. It also relied on a Court of Appeal decision in which a contract evidencing conventional subrogation had been signed several months after the payment, yet the subrogation was found valid because it clearly existed in the parties’ intention when the payment was made. Against this jurisprudential and factual background, the judge emphasized that determining whether Levasseur intended to subrogate L’Unique at the time she received the indemnity, and what legal consequences flow from the lapse of time between payment and the formal act, requires testimony and a complete evidentiary record. These are precisely the types of mixed fact-and-law questions that a motion in irrecevabilité is not designed to decide. Consequently, the court found that it was neither possible nor appropriate to rule definitively on conventional subrogation at this early stage. Since the conventional subrogation issue alone required evidence, the judge held that there was no need, for purposes of the motion, to decide the separate question of whether legal subrogation was available in light of the purported annulment of the policy ab initio. It was sufficient that, on the assumption that the factual allegations were true, L’Unique’s amended recourse based on conventional subrogation was at least arguable in law and could not be characterized as clearly unfounded.

Ruling and overall outcome

In light of this analysis, the Superior Court concluded that L’Unique’s amended originating application was neither irrecevable nor abusive within the meaning of the Code of Civil Procedure. The factual matrix surrounding the payments, the execution of the subrogation quitclaim, the insurer’s underwriting norms, and the broker’s alleged knowledge of the python all warranted a full evidentiary hearing. The judge therefore rejected Bernier’s modified motion in irrecevabilité and in rejection and allowed the action to proceed to trial on the merits. On the abuse aspect, the court noted that Bernier did not strongly press this argument and held that, in any event, the reasons justifying the dismissal of the irrecevabilité branch also demonstrated that L’Unique’s recourse could not be considered abusive at this stage. As a result, the successful party in this interlocutory decision is L’Unique Assurances générales inc., whose action against the broker is maintained. The court ordered that Bernier’s motion be dismissed with costs (frais de justice) in favour of L’Unique, but the judgment does not specify the exact quantum of costs, and no damages or other monetary award on the merits were granted at this stage; the total amount actually ordered in L’Unique’s favour in this decision is therefore limited to costs, whose precise amount cannot be determined from the judgment.