Executive Summary: Key Legal and Evidentiary Issues

• Characterization of the window sale and installation agreement as a contract with an itinerant merchant under the Québec Consumer Protection Act (L.p.c.) and its regulation
• Impact of the merchant’s lack of an itinerant merchant permit on the consumer’s right to resolve (resiliate) the contract, including the requirement of being able to return the goods in their original state
• Consequences of the consumer having disposed of the original windows, preventing restitution and thereby barring contractual resolution under the L.p.c.
• Adequacy of the prior demand letters (mises en demeure) as a legal prerequisite to replacement of the work at the merchant’s expense under the Civil Code of Québec
• Failure of the mises en demeure to warn the merchant of the specific defects, invite it to cure, and announce the sanction of third-party replacement and recourse for costs
• Lack of evidentiary proof of alleged replacement costs due to absence of invoices or payment records for the new windows and installation

Factual background

Ronald Ogden sought to replace the windows of his property and, to that end, solicited four separate quotes for the required work. The defendant, 9488-2461 Québec inc. (9488), submitted the lowest bid at a price of $6,553.57, and Mr. Ogden accepted that offer. The windows supplied by 9488 were installed in May 2024 pursuant to that agreement. After the installation, Mr. Ogden became dissatisfied with both the quality of the windows themselves and the manner in which they had been installed. On 5 August 2024, he sent a first demand letter (mise en demeure) to 9488 setting out his dissatisfaction and claiming $7,815.70. A second demand letter followed on 16 October 2024, in which he again outlined his complaints, increased his demand to $10,815.70 (now including $3,000 in damages), and stated that the figure of $7,815.70 represented the third-lowest quote he had initially obtained from another contractor. In his small claims action, Mr. Ogden essentially claimed the same amounts as those in his second demand letter. He also asserted that 9488 had acted as an itinerant merchant without the permit required under the Québec Consumer Protection Act, which, in his view, gave him the right to resolve the contract and recover his alleged losses. At the hearing, Mr. Ogden explained that on 12 May 2025 he had the windows replaced by the contractor who had originally submitted the third-lowest quote. He admitted he had disposed of the windows purchased from 9488 and, crucially, he produced neither invoices nor proof of payment regarding the replacement work.

Issues before the court

The Court of Québec, Small Claims Division, identified two central questions. First, it had to determine whether Mr. Ogden could resolve the contract on the basis that 9488 was an itinerant merchant operating without the requisite permit under the Consumer Protection Act. Second, it had to assess whether Mr. Ogden’s decision to have the windows replaced by a third party had been preceded by a legally sufficient mise en demeure and, if so, whether he had proven the quantum of the damages claimed for that replacement.

Characterization of the contract under consumer protection law

The court first examined whether the transaction fell under the rules applicable to itinerant merchants. The Consumer Protection Act defines an itinerant merchant as one who, away from his place of business, solicits a specific consumer in view of concluding a contract or concludes such a contract with a consumer. Although the statute ordinarily excludes contracts concluded at the consumer’s address when they are made at the consumer’s express request and not previously solicited elsewhere, the applicable regulation creates a specific exception for certain types of residential work. Under the regulation, any contract concerning the sale, installation, or repair of windows, doors, insulation, roofing, or exterior cladding is deemed an itinerant merchant contract even when it is concluded at the consumer’s address at the consumer’s request. The court therefore held that the window sale and installation agreement between Mr. Ogden and 9488 was automatically characterized as a contract with an itinerant merchant. At the hearing, 9488 did not dispute that it did not hold an itinerant merchant’s permit as required by the Act. In principle, where a merchant is not duly licensed, the Consumer Protection Act allows the consumer to resolve the contract within one year of its formation. However, the Act also contains an important limitation: a consumer cannot resolve the contract if, by reason of a fact or fault for which the consumer is responsible, he is unable to return the goods to the itinerant merchant in the condition in which they were received. Because Mr. Ogden acknowledged that he had disposed of the windows supplied by 9488 and could not return them in their original condition, the court held that he could not invoke the merchant’s lack of permit to resolve the contract. This statutory requirement of restitution in kind effectively barred his consumer-law remedy.

Civil law principles on default, mise en demeure, and replacement

The court then turned to the principles of Québec civil law governing performance of obligations and remedies in the event of default. Under the Civil Code of Québec, a creditor may, once the debtor is in default without justification, seek specific performance or “take any other measure that the law provides” for the realization of his right to performance. In particular, if a debtor fails to perform, the creditor may have the obligation performed by a third party at the debtor’s expense, but only after giving prior notice and placing the debtor in default, unless the debtor is in default by operation of law or under the express terms of the contract. In this case, there was no clause creating default by operation of the contract, and no other provision placed 9488 automatically in default. As a result, any decision by Mr. Ogden to have the work redone at 9488’s expense had to be preceded by a proper mise en demeure.

Deficiencies in the prior demand letters

Mr. Ogden had sent two demand letters to 9488, but the court examined whether they met the strict requirements for a mise en demeure that precedes a third-party replacement of defective work. Relying on doctrinal authority (Baudouin, Jobin, and Vézina), the court reiterated that when a creditor seeks to have work performed by a third party at the debtor’s expense, the prior notice must be particularly explicit. It must clearly identify the breaches alleged, invite the debtor to remedy those breaches, and warn that if the debtor fails to act within the stated delay, the creditor will have the obligation performed by a third party and claim the resulting costs as damages. This strict approach reflects the courts’ concern that the debtor be fully aware of the potentially significant costs that may be imposed extrajudicially if he does not correct his default. In this case, while Mr. Ogden’s letters expressed his dissatisfaction and demanded payment of specified sums, they did not invite 9488 to come and correct the alleged defects, did not clearly describe the proposed replacement by a third party, and did not announce that the costs of such replacement would be claimed from 9488. The court also noted that the letters did not allow 9488 the opportunity to verify the alleged non-conformity of its work or to remedy any fault. Because the letters failed to meet the substantive content requirements set out in the Civil Code and the cited doctrine, they did not constitute an adequate mise en demeure for the purpose of executing the obligation at the debtor’s expense. Consequently, Mr. Ogden could not recover from 9488 the costs incurred in having the windows replaced by another contractor.

Failure to prove damages

Even assuming, for argument’s sake, that the demand letters had been sufficient, the court found that Mr. Ogden had not proven the amount of the damages he claimed. He testified that he had the windows replaced on 12 May 2025 by the contractor who had initially submitted the third-lowest quote, and that he had disposed of the original windows. However, he produced no invoices, contracts, or proof of payment evidencing either the price of the replacement windows or the cost of the new installation. Without documentary evidence to substantiate the alleged replacement costs or other monetary loss, the court concluded that the claimed damages were not established on the balance of probabilities. The complete absence of supporting documentation was fatal to this part of his claim.

Ruling and outcome

In light of the combined effect of consumer protection law and civil law principles, the court rejected the entirety of Mr. Ogden’s claim. He could not resolve the contract under the Consumer Protection Act because he had disposed of the windows and was therefore unable to return them in the state in which they were received, as required by statute. Nor could he shift the replacement costs to 9488, since his demand letters did not properly place the merchant in default with notice of the intended third-party replacement, and he failed in any event to prove the quantum of those costs. The court therefore dismissed the action. As for monetary consequences, the successful party was the defendant, 9488-2461 Québec inc., and the court ordered Mr. Ogden to pay it $374 in legal costs, with no other damages or monetary awards granted in favour of any party.