Executive Summary: Key Legal and Evidentiary Issues

• Nature and scope of the plaintiff’s right to amend and complete expert evidence on the property’s fair market value despite a previously agreed litigation protocol.
• Impact of a judicial protocol as a “contract” between parties versus the broad procedural power to authorize modifications and late expert reports.
• Necessity of expert valuation evidence to prove the plaintiff’s alleged financial loss arising from a sale in breach of a prior promise of purchase.
• Effect of a change of counsel on the conduct of the case and whether new lawyers may correct prior omissions in evidence and strategy.
• Extent to which additional components of the property (tree plantation, quarry, sugar bush) must be included in the valuation to properly quantify damages.
• Balancing procedural efficiency and avoidance of delay against the overarching interest of justice in allowing a party to fully present its case.

Facts of the case

Philippe Felix Albert Boutboul (the plaintiff) sues Étienne Mongeau and Tristan Émond (the defendants), claiming that they wrongfully concluded the sale of an immovable owned by Mongeau in violation of a prior promise of sale given in his favour. The plaintiff alleges he was “floué” (cheated) by this sale and seeks damages representing, among other things, a financial loss he says he has suffered. The immovable is located in Magog, Québec, and is not a simple residential lot. It includes a family residence, a stone quarry, a plantation of about 8,000 fir trees (pépinière), and a sugar bush (érablière). These additional components significantly affect the immovable’s overall fair market value, which is central to the plaintiff’s claim in damages. In October 2025, the parties negotiated and filed a “protocole de l’instance” (case protocol), which is the procedural roadmap for the litigation. Under this protocol, the plaintiff undertook to produce an expert report on the “valeur marchande de l’immeuble et de la carrière de pierre” (fair market value of the immovable and the stone quarry) by 15 November 2025. However, the contemplated expert report was not filed by that date, and, in fact, had still not been produced at the time of the motion addressed in this judgment. Subsequently, on 26 November 2025, the plaintiff changed lawyers. His new counsel, after reviewing the file and the partial work that had been done, concluded that not only was the original valuation work incomplete, but it also failed to take into account the plantation of 8,000 fir trees, the stone quarry as a whole, and the sugar bush on the property. In their view, the expert report needed to be both completed and broadened to include these elements so that the plaintiff’s alleged loss could be properly quantified.

Procedural history and parties’ positions

Following their review, the plaintiff’s new lawyers sought to negotiate with the defendants about completing and expanding the expert valuation. The defendants refused to agree on such modalities. As a result, the plaintiff brought a motion asking the Superior Court for authorization to complete and file the necessary expert evidence on the fair market value of the property, including its distinct components. The defendants opposed this request, mainly on procedural and fairness grounds. They argued that the protocol of the instance is a “contrat judiciaire” (judicial contract) binding the parties, obliging them to act transparently and loyally. In their view, the protocol only contemplated an expert valuation of the residential building and the stone quarry, not the fir plantation or the sugar bush. They maintained that adding these elements now would unduly expand the original understanding reflected in the protocol. The defendants also argued that the plaintiff’s former counsel had clearly failed to respect the agreed deadline to file the expert report. They contended that new counsel must take the file as they find it, including having to live with past strategic or procedural mistakes. They warned that granting the plaintiff’s motion would further delay a file that had already progressed “à pas de tortue” (at a snail’s pace) and that the motion was insufficiently motivated.

Legal analysis on expert evidence and judicial protocol

The Court rejects the defendants’ objections and adopts a broader, more flexible view of the case management framework. It emphasizes that the authorization sought by the plaintiff concerns only the quantification of his alleged financial loss. The nature and legal basis of the original claim—a damages action for a sale made in violation of a promise of purchase—remain unchanged. To succeed in such a claim, the plaintiff must prove that he suffered a prejudice typically corresponding to the difference between the fair market value of the immovable that was the subject of the promise and the agreed sale price. In real estate disputes of this kind, the Court underlines that establishing fair market value is normally a matter for expert evidence. Without a proper expert valuation of the property, the plaintiff’s recourse would be, in whole or in part, doomed to failure because he would lack the necessary proof of loss. The Court notes that, despite what the plaintiff believed and what had been discussed with his prior counsel, no proper valuation report had ever been communicated or filed. The material in the record was more akin to a draft or project, which, in the view of the new lawyers, needed to be reworked and extended to cover all relevant components: the house, the quarry, the 8,000-tree plantation, and the sugar bush. The Court also rejects the idea that a party who changes counsel must automatically accept all previous steps and omissions, as if bound to “faire avec” (just live with it). Decisions about changing the orientation of a claim or defence, modifying procedures, and filing new exhibits or expert reports belong to the party, not to the lawyer as such. New counsel may legitimately see the case differently, identify gaps or irregularities in the proof, and seek to correct course to maximize the client’s chances of success. In support of this more flexible approach, the Court refers to the Court of Appeal’s decision in Leblanc Robotique inc. v. Ferme Graveline (2022 QCCA 40). There, the Court of Appeal overturned a first-instance decision that had refused a late amendment to a defence and the addition of a counterclaim at an advanced stage of the proceedings on the basis of the protocol. While confirming that a protocol of the instance is indeed a judicial contract that binds the parties and requires transparent and loyal conduct, the Court of Appeal stressed that it is not a “camisole de force” or “carcan” (a straitjacket). It should not operate as an automatic bar to any modification permitted by the Code of Civil Procedure. The relevant article (art. 206 C.C.P.) allows amendments until judgment where justified; thus, procedural flexibility is built into the legislative scheme.

Scope of the judicial protocol and interest of justice

In line with this appellate guidance, the Superior Court explains that even though the protocol of the instance may be treated as a binding agreement, its mandatory effect is tempered by the need to preserve a party’s right to seek modifications for good reasons. Denying any adjustment simply because something was not announced in the original protocol would be inconsistent with the Code’s express language allowing amendments up to judgment. The Court acknowledges that in some situations it may be necessary to refuse late modifications—particularly where they would cause undue delay, significantly reshape the judicial contract, disrupt the balance between the parties, or introduce an entirely new claim. Here, however, the plaintiff is not changing the nature of his action. He is merely trying to complete and refine the valuation evidence needed to quantify the same alleged loss already pleaded. The expert reports at issue, some of which were already contemplated in the protocol, are not surprising in a damages action about an immovable’s value: they are both useful and, in practice, necessary. Considering these factors, the Court concludes that the interest of justice clearly favours allowing the plaintiff to complete and file the requested expert evidence, rather than barring him on the basis of missed deadlines or an overly rigid reading of the protocol. This approach ensures that the Court will ultimately have a complete evidentiary picture on which to decide the real dispute between the parties.

Orders made and outcome of the decision

In its operative part, the Court authorizes the plaintiff to produce a professional expert valuation of the fair market value of the immovable located in Magog. It further authorizes him to file complementary expert valuations specifically targeting the nursery (plantation of 8,000 fir trees), the sugar bush, and the quarry on the property at 2727, chemin d’Ayer’s Cliff in Magog. To make this possible, the Court orders defendant Tristan Émond to allow the plaintiff’s chosen expert—named as Mathieu Sénéchal of Bourassa Jodoin, or any other expert designated by the plaintiff—access to the property on seven days’ prior notice, so that the expert can carry out one or more appraisals of the fair market value of the property, including the residence, quarry, fir plantation, and sugar bush. The Court also orders the parties to negotiate and file a modified protocol of the instance that reflects these authorized expert steps, with a filing deadline of 15 May 2026 at 4:00 p.m. Finally, it adjourns the case to the practice roll of the Superior Court, civil chamber, on 15 June 2026, to set the date by which the parties must file a request for setting down for trial and judgment. As to costs, the Court states that they are “frais de justice à suivre” (costs to follow), meaning the issue of costs is deferred to a later stage. Overall, the successful party in this interlocutory decision is the plaintiff, Boutboul, whose motion to complete and broaden his expert valuation evidence is granted. No monetary damages or specific cost amounts are awarded in this judgment, and the total monetary award in favour of the successful party cannot yet be determined because liability, quantum, and costs remain to be decided in subsequent proceedings.