Executive Summary: Key Legal and Evidentiary Issues

• Scope of pre-trial written interrogatories under arts. 221 and 223 C.p.c., including how broadly “pertinence” is interpreted at the discovery stage.
• Limits on confidentiality objections where a party merely self-labels information as confidential without evidentiary support or proposed protective measures.
• Application of the principle of proportionality (art. 18 C.p.c.) to the breadth of questioning, given a relatively modest claim for a contractual penalty of 5,862.66 $.
• Allegations of abusive or tactical use of interrogatories (détournement des fins de la justice) versus legitimate efforts to obtain evidence on the alleged abusive nature of a penal clause.
• Relevance of a third-party contract (with Évirum) and its penalty/indemnity clauses to contesting whether the plaintiff’s own contractual penalty is abusive.
• Management of procedural delay and enforcement of deadlines, including the risk of forclusion if the defendant fails to answer ordered questions within the time fixed by the court.

Factual background and underlying contractual dispute

EBI Montréal inc. (EBI) sues Société Immobilière Tchang (Tchang) following the breakdown of a contract for waste collection services. According to EBI’s initiating application, a service contract was formed between the parties in which Tchang expressly waived the right to unilaterally terminate the contract under article 2125 of the Civil Code of Québec. After what EBI characterizes as an unjustified unilateral termination by Tchang, EBI claims a contractual penalty of 5,862.66 $, relying on a penal clause in the contract grounded in article 1622 C.c.Q. Tchang, in its summary of grounds of contestation, asserts that the contractual penalty claimed by EBI is abusive. This sets up the core merits issue: whether the penalty stipulated in EBI’s contract is enforceable as written or must be reduced or set aside as abusive.

Role of the third-party Évirum and contractual terms in issue

In the background of this penalty dispute, EBI alleges that a third-party company, Évirum, approached Tchang and offered to replace EBI as waste collection service provider. EBI contends that Évirum uses a model contract and annex containing penalty clauses that are, in fact, more onerous than those invoked by EBI, which is why EBI wishes to obtain details of any contract between Tchang and Évirum. The written interrogatory reproduces clauses identified as clauses 6, 7 and 5 of the Évirum contract. Clause 6 is a penalty clause providing that, if the contract is cancelled or terminated by the client without right or by default, the client must pay a penalty equivalent to twelve times the highest of either the total monthly price (including all charges and taxes) or the average monthly price billed in the last three months prior to termination, without the company having to prove actual damages and without prejudice to other remedies. In addition, the client must reimburse delivery, installation and removal costs for a compactor, quantified as 25% of the rental cost for the full term of the contract, plus other applicable fees, and must reimburse any indemnity the company has paid to the client’s prior service provider as a penalty. Clause 7 obliges the client, in case of default, to pay recovery fees amounting to 25% of the annual cost of services, plus all other costs incurred to recover amounts due or to repossess leased equipment, and allows the company to claim the additional indemnity under articles 1618 and 1619 C.c.Q. Clause 5 of the reproduced text further states that, in return for Évirum assuming prior penalties and legal fees on behalf of the client, the client undertakes to reimburse Évirum all such amounts on a pro rata basis if it later terminates its service contract with Évirum without cause before the end of the term, except if termination results from Évirum’s proven default; an example is given where, if termination occurs halfway through a 60-month term, the client must reimburse 50% of the amounts Évirum paid in penalties and fees. EBI’s theory is that, if Tchang accepted or benefited from such clauses with Évirum, this would be relevant to assessing whether EBI’s much smaller claimed penalty is truly abusive.

Written interrogatories and questions contested by Tchang

On 20 October 2025, EBI served written interrogatories on Tchang. Four months elapsed before full answers were provided. On 24 February 2026, Tchang, through Mr. Jonathan Houle, answered the interrogatories but raised objections to several key questions. EBI later withdrew one question (no. 12), leaving in dispute questions 5, 7, 7.1, 8 and 9. These questions asked: (i) whether Tchang had been contacted by Évirum, which offered to switch waste collection providers (question 5); (ii) whether Tchang had in fact contracted with Évirum for waste collection services (question 7); (iii) if so, to produce a copy of the contract with Évirum (question 7.1); (iv) whether Évirum had agreed to take up Tchang’s defence in the event of a judicial claim by EBI for the penalty following termination of the EBI contract (question 8); and (v) whether the contract between Évirum and Tchang contained the specific penalty and reimbursement clauses reproduced in the interrogatory (question 9). Tchang answered all of these questions simply with “Objections: pertinence, information confidentielle” and refused to answer. This prompted EBI to ask the court to rule on the objections.

Legal framework for pre-trial interrogatories and confidentiality

The court begins its analysis by restating the legal principles governing pre-trial discovery in Quebec civil procedure. Under article 221 C.p.c., a pre-trial examination, whether written or oral, may cover all relevant facts relating to the dispute and the evidence supporting them. At this stage, the notion of relevance is interpreted broadly in order to favor the fullest possible disclosure of evidence, in line with the principle of proportionality in article 18 C.p.c. This broad approach serves to help parties gauge the strength of their respective cases and to encourage amicable settlement. However, discovery rights are not unlimited; questions cannot be used for blind fishing expeditions, and their relevance must be assessed in light of the pleadings and procedural acts, with a view to obtaining information useful to moving the file forward. The court also recalls that it is not enough for a party to simply assert that information is confidential to justify refusing to answer. A party cannot rely solely on its own label of “confidential” without providing some basis or offering, for instance, to let the judge review the allegedly confidential information privately or under protective conditions. Likewise, for written interrogatories under article 223 C.p.c., the questions must be clear and precise, so that a failure to answer may be taken as an admission of the facts they address. Finally, the court notes that under articles 51 and 53 C.p.c., it may declare an act of procedure, including written interrogatories, abusive and may refuse or terminate such examinations in cases of abuse.

Assessment of Tchang’s objections: pertinence, confidentiality, abuse and proportionality

In this case, Tchang’s written response to the five disputed questions relied solely on “pertinence, information confidentielle.” At the hearing, when invited to explain the evidentiary basis for claiming confidential information, Tchang’s counsel argued that providing reasons would itself be a “catch-22,” yet did not propose any mechanism to submit the information (even on a confidential basis) to the court. Counsel instead asked the court to simply rely on Tchang’s bare assertion of confidentiality in its interrogatory answers. The judge holds that Tchang’s characteristic of the information as confidential is insufficient; the court cannot conclude that the information is truly confidential on that basis alone. Tchang’s counsel attempted to rely on a model contract and a clause 12 in its annex, filed by EBI, which deals with confidentiality, but did not actually assert that Tchang had signed that contract or annex. The judge notes that even if a party has signed a confidentiality clause with a third party, that alone does not automatically justify refusing to answer questions in litigation. The argument based on clause 12 therefore does not persuade the court, and Tchang fails to demonstrate that any genuine confidentiality interest justifies its objections. In addition to confidentiality and relevance, Tchang’s counsel later advanced further grounds at the hearing: that the questions were abusive, disproportionate relative to the modest amount of 5,862.66 $, and amounted to a misuse of the judicial process (détournement des fins de la justice), alleging that EBI was trying to “build another case against a third party” and “instrumentalizing” this case for that purpose. EBI responded that its questions directly relate to Tchang’s own contestation that EBI’s contractual penalty is abusive. The court agrees with EBI. At this preliminary stage, the questions are found to be pertinent: the litigation centers on whether the penalty claimed by EBI is abusive, and therefore it is relevant to know what obligations, including any penalties, Tchang may have undertaken toward Évirum. These questions can yield useful information to move the case forward; they are not excessive in scope and do not constitute a blind search. The proportionality argument also fails: given that the interrogatory is three pages long and respects the maximum length allowed by article 535.9 C.p.c., the relatively modest amount at stake does not justify maintaining the objections or barring the written examination authorized by article 223 C.p.c. The judge further concludes that the questions do not appear abusive. These findings are sufficient to reject all of Tchang’s objections.

Procedural delays and enforcement of deadlines

The judgment also addresses delay in responding to the interrogatories. EBI had notified the written interrogatory on 20 October 2025. On 26 November 2025, during a case management conference, Tchang’s counsel confirmed that he no longer opposed the interrogatory, and the court took note of Tchang’s undertaking to answer “to the extent possible.” Despite that undertaking, Tchang still had not answered by 11 February 2026. At a further case management conference on that date, the court granted Tchang a two-week deadline to respond, under penalty of forclusion (loss of its right to do so) unless it could prove an impossibility to act. Yet when Tchang finally responded, it did so by raising the objections now rejected. At the time of judgment, more than four months had passed since notification of the interrogatories, and Tchang still had not answered questions 5, 7, 7.1, 8 and 9. In view of this delay, the court now grants Tchang a final 15-day period from the date of judgment to answer those questions and to serve the requested documents, failing which it will be forclosed from doing so unless it can show an impossibility to act. The judge also convenes counsel for both parties to a further case management conference on 3 June 2026, at 9:00 a.m., with the option of attending in person or by TEAMS. Costs are expressly left to follow (“frais à suivre”), so no immediate order on costs is made in this interlocutory ruling.

Outcome of the decision and identification of the successful party

The judgment is confined to resolving objections to written interrogatories and managing the procedural timetable; it does not decide the merits of EBI’s claim for a penalty of 5,862.66 $. In this interlocutory decision, the court rejects Tchang’s objections to questions 5, 7, 7.1, 8 and 9, orders Tchang to answer them and produce the requested documents within 15 days on pain of forclusion, and summons counsel to a future case management conference. EBI Montréal inc., whose position on the interrogatories is accepted, is therefore the successful party in this ruling. No damages, penalty, or quantified costs are awarded at this stage, and the total monetary amount ordered in favor of the successful party cannot be determined on the basis of this decision alone.