Introduction On July 11, 2024, the Court of Appeal1 rendered a decision that, for the first time, addresses the question of whether the elected domicile appearing in the Québec Enterprise Register (the “REQ”), established under the Act respecting the legal publicity of enterprises,2 can provide a basis for the Superior Court’s territorial jurisdiction within the meaning of article 41(3) of the Code of Civil Procedure.3 Upholding the decision rendered by the Superior Court,4 the Court of Appeal answered that it cannot. The Facts On April 25, 2023, Promark Electronics Inc. and Electrical Components International Inc. (collectively, “Promark”) filed a claim for damages against Bombardier Recreational Products Inc. (“BRP”) in the judicial district of Montréal, alleging that a letter of agreement had been terminated and related purchase orders cancelled. On June 22, 2023, BRP raised a declinatory exception asking the court to issue an order transferring the case to the judicial district of Bedford, where its head office is located. Promark argued that filing its claim in the judicial district of Montréal was warranted because of BRP’s elected domicile indicated in the REQ, which corresponded to the office of its counsel located in Montréal. On September 5, 2023, the Honourable Tiziana Di Donato, J.S.C. (the “Judge”) allowed BRP’s declinatory exception and issued an order referring the case to the judicial district of Bedford. On November 10, 2023, the Honourable Stephen W. Hamilton, J.C.A., granted leave to appeal the Judge’s decision, indicating that the courts have never settled the question of whether the domicile elected under section 33 ALPE is sufficient to make paragraph 3 of article 41 of the C.C.P. apply. He added that it appeared to him that the lower courts had rendered contradictory judgments in this regard.5 The Trial Judgement The Judge began by pointing out that, generally, for a purely personal action, the judicial district of the defendant’s domicile is the natural forum (article 41(1) C.C.P.) and that, in the case of a corporation, the domicile would be that of its head office. The Judge further clarified this principle by explaining that, where more than one judicial district has jurisdiction, the plaintiff may institute its proceedings before another court having territorial jurisdiction (article 42 C.C.P.), provided that it establishes that it is entitled to make such an election. In support of its contestation to the declinatory exception, Promark argued that it was entitled to institute the proceedings in the judicial district of Montréal because BRP had elected its domicile under the ALPE, and that, consequently, that district constituted an “elected domicile” under article 41(3) C.C.P., which reads as follows: So far as public order permits, the court of the defendant’s elected domicile, or the court designated by an agreement between the parties other than a contract adhesion, also has territorial jurisdiction. [Our emphasis] To render her decision, the Judge determined that article 41(3) C.C.Q. should be interpreted using modern rules of statutory interpretation, adding in particular that it is useful to refer to prior provisions of a law to ascertain the legislature’s intent. The Judge thus revisited the legislative history of article 41 C.C.P., affirming that it essentially restates the prior law, in particular article 68 of the former Code of Civil Procedure, CQLR c. C-25, which provided in paragraph 1, subparagraph 1 that “. . . a purely personal action may be instituted: (1) [b]efore the court of the defendant’s real domicile or, in the cases contemplated by article 83 of the Civil Code, before that of his elected domicile.” Although paragraph 3 of article 41 C.C.P. no longer specifically refers to article 83 of the Civil Code of Québec (the “C.C.Q.”)6 the Judge, following an interpretive analysis, found that said article still applies to determine whether a party has elected domicile, and stressed the fact that the election of domicile must be express and unequivocal. The Judge added that election of domicile is the exception and must be interpreted restrictively.  As for the scope of an election of domicile under the ALPE, the Judge pointed out that subsection 33(1) ALPE indicates that a business may elect domicile and appoint a person to “receive documents for the purposes of this Act.” Article 98(5) ALPE also indicates that the domicile elected by a business under the ALPE is intended to inform third parties of the address where the business wishes to receive documents “for the purposes of this Act.” The Judge was thus of the opinion that sections 33(1) and 98(5) ALPE, as drafted, cannot have the scope that Promark seeks to ascribe to them, as they are clear and they do not need to be interpreted. In the case of an election of domicile under the ALPE, the purpose of the election is to provide an address where documents can be sent to the business, unless there is specific evidence to the contrary. For these reasons, the Judge allowed the declinatory exception and referred the case to the judicial district of Bedford. The Judgement on Appeal From the outset, the Court of Appeal confirmed that the Judge did not commit a reviewable error: (1) the domicile elected for purposes of attributing territorial jurisdiction under article 41 (3) C.C.P. is the domicile designated by the parties for the execution of their agreement within the meaning of article 83 C.C.Q., and (2) the domicile elected under the ALPE is elected for the purposes of applying the ALPE (para. 23). The Court of Appeal is of the opinion that the Judge’s decision is consistent with what the legislature had prescribed in article 68 of the former Code of Civil Procedure and upholds stability in the law, which is particularly important in matters of jurisdiction. After analyzing the parliamentary debates surrounding the enactment of article 41 C.C.P. and the Commentaires de la ministre de la justice, the Court indicated that there is a presumption of the survival of the existing legal rule and that, contrary to what the appellants claimed, the wording of article 41 C.C.P. and articles 33 and 98 ALPE do not give the courts territorial jurisdiction other than that of the defendant’s domicile. The removal of the reference to article 83 C.C.Q. in article 41 C.C.P. does not constitute a clear indication of the legislature’s intent to set aside the requirements of article 83 C.C.Q., under which, for the purposes of determining territorial jurisdiction, the parties must establish the elected domicile in their agreement. On that basis, the Court of Appeal dismissed the appeal without costs and confirmed the Judge’s reasoning that territorial jurisdiction of the courts under article 41(3) C.C.P. is established based on the election of domicile made under article 83 C.C.Q., and not on the election of domicile made by a corporation under the ALPE, whereby a business elects a domicile for the purposes of the application of that law. Conclusion This case serves as a reminder that the C.C.Q. establishes the general law in our province. It is therefore important to refer to it when interpreting other laws enacted by the Quebec legislature. Because the legislature is “deemed to know its legislative fabric as well as the existing law,”7 the Court cannot interpret a given law—such as the ALPE—in a way that would amend a substantive statutory provision of general application—in this case, the C.C.Q.—where there is no clearly expressed intention to that effect. Promark Electronics Inc. c. Bombardier Recreational Products Inc., 2024 QCCA 906 CQLR, c. P-44.1 (the “ALPE”) CQLR, c. C-25.01 (the “C.C.P.”) Promark Electronics Inc. c. Bombardier Recreational Products Inc., 2023 QCCS 3405 Promark Electronics Inc. c. Bombardier Recreational Products Inc., 2023 QCCA 1427, para. 8 83. “The parties to a juridical act may, in writing, elect domicile with a view to the execution of the act or the exercise of the rights arising from it. Election of domicile is not presumed.” Promark Electronics Inc. c. Bombardier Recreational Products Inc., 2024 QCCA 906, para. 24

Introduction On June 14, 2024, the Superior Court of Québec issued a decision1 interpreting section 938.1.2.2 of the Municipal Code of Québec, which came into force in 2019. This provision gives a person interested in participating in the awarding process the opportunity to file a preliminary complaint about a requirement in the tender documents that they believe does not ensure the honest and fair treatment of tenderers. To our knowledge, this is the first time a court has considered the impact on a claim for damages for loss of profits2 when an unsuccessful tenderer fails to comply with this relatively new provision  The Superior Court concluded that a tenderer’s failure to submit a complaint in a timely manner should be considered as [translation] “a form of fin de non-recevoir, or at the very least, a break in the chain of causation between the alleged fault and the damages claimed” (paragraph 40). Facts The dispute at hand pitted Transport Martin Forget Inc. (“Transport Forget”) against the Municipality of Saint-Alexis (the “Municipality”). On May 6, 2019, the Municipality issued a call for tenders for a snow clearing and salting contract. Transport Forget submitted the lowest bid, which was $150,000 below that of the winning tenderer. Transport Forget was excluded from the call for tenders given its failure to comply with the tender specifications requiring it to provide a Régie du bâtiment du Québec (“RBQ”) licence number, together with an attestation that its licence was in good standing. Further to the Municipality’s refusal to award the contract to Transport Forget, it claimed $300,000 in damages for alleged loss of profits. Transport Forget believed that its tender was compliant, that the RBQ licence requirement imposed by the Municipality was frivolous and unreasonable, that the Municipality failed to uphold the principle of equal treatment of tenderers and that the complaint process provided for in section 938.1.2.2 of the Municipal Code of Québec did not deprive it of its rights. As for the Municipality, it considered the irregularity in Transport Forget’s tender to be major and Transport Forget’s failure to comply with the complaint process concerning this requirement—both reasonable and in the public interest—was fatal to its legal action. The evidence showed that the RBQ licence number provided in Transport Forget’s tender was invalid and that Transport Forget deliberately chose not to renew said licence before submitting its tender, as it was unsure as to whether it would win the bidding process and wished to avoid needlessly paying the $1,000 annual fee required for the licence renewal. Applicable principles In order to determine the outcome of this dispute, the Court analyzed the case based on the decision in Tapitec,3 a landmark ruling in tendering matters. It reiterated the Court’s view that the decisive factor in determining whether an irregularity is minor or major is the equal treatment of tenderers. It also pointed out that municipalities can set out conditions aimed at limiting the number of tenderers, provided that this is done for an important and legitimate purpose. As for section 938.1.2.2 of the Municipal Code of Québec, the Court viewed it as a mechanism for monitoring all contracts awarded by public bodies which is designed to establish a process to ensure compliance with the principles of integrity needed to protect the public interest. According to the Court, the legislator’s intention is also to protect small municipalities such as the one in question (with a population of approximately 1,500) from potential legal action following the opening of tenders by ensuring that issues concerning the principle of equal treatment of tenderers are resolved prior to the tendering process. Tenderers that fail to comply with this requirement will not be entitled to claim damages for loss of profits, as in this case, except where there has been fraud or blatant bad faith, as in cases of collusion. The purpose of the provision in question is to prevent a tenderer that is aware of the requirements set out in the tender documents from contesting such requirements after the fact. Decision The Court found that the requirement to hold an RBQ licence number was a condition intended to limit the number of tenderers, which the Municipality was entitled to do. Although the Court recognized that there is no correlation between being able to perform snow clearing operations and holding an RBQ licence, it accepted the evidence that this condition was an appropriate and quick way for the Municipality to ascertain the credibility and organizational skills of tenderers, which was a important and legitimate objective. The Court therefore concluded that this requirement of the tender specifications was neither frivolous nor arbitrary. The Court considered the irregularity in Transport Forget’s tender to be major. Although the obligation to hold a valid RBQ licence is neither a requirement of public policy nor a substantive requirement, it is intended precisely to proscribe the lack of seriousness shown by Transport Forget when it opted not to pay the renewal fees for its RBQ licence before submitting its tender. The Municipality exercised its administrative discretion in a reasonable manner and ensured that all tenderers were treated equally. The Court found that the Municipality was right to reject Transport Forget’s tender. Although the Court dismissed the claim, it did nevertheless consider section 938.1.2.2 of the Municipal Code of Québec. In the Court’s view, Transport Forget could have lodged a preliminary complaint about the validity of the condition imposed by the Municipality to hold an RBQ licence. Doing so would have given the Municipality the opportunity to amend its call for tenders before the opening of tenders. Transport Forget’s failure to do this rendered its claim for damages inadmissible. Commentary Tenderers for public calls for tenders issued by a municipality must be aware of section 938.1.2.2 of the Municipal Code of Québec4 and understand how to apply it in a timely manner. As demonstrated by the Superior Court’s interpretation of this section in the judgment in question, an unsuccessful tenderer that has not complied with the complaint process set out in said section and who intends to sue for damages for an alleged loss of profits could have their claim turned down on grounds of a fin de non-recevoir. Transport Martin Forget Inc. c. Municipalité de Saint-Alexis, 2024 QCCS 2208 We came across the decision in Sintra inc. c. Municipalité de Noyan, 2019 QCCS 4293 (CanLII), which also deals with this provision, but in the context of an application for an interim injunction from the lowest tenderer attempting to prevent the awarding of the contract to a third party: the Court dismissed the claim, in particular because the tenderer had not lodged a complaint about the process provided for the awarding of the contract, in accordance with section 938.1.2.2 of the Municipal Code of Québec, and concluded that the prima facie case requirement had not been met. Tapitec c. Ville de Blainville 2017 QCCA 317 We would also like to draw your attention to section 573.3.1.4 of the Cities and Towns Act, which is identical to section 938.1.2.2 of the Municipal Code of Québec. We have not found any decisions interpreting this section, so we urge tenderers to be cautious and comply with the complaint process applicable to calls for tenders issued by cities and towns, to avoid having their claim turned down on grounds of a fin de non-recevoir.

The year 2018 has been an important one for case law regarding injunctions: the Supreme Court of Canada and the Court of Appeal of Quebec each rendered decisions that redefined certain parameters for the issuing of a interlocutory injunction. R. v. Canadian Broadcasting Corp. On February 9, 2018, the Supreme Court of Canada rendered a unanimous decision in R. v. Canadian Broadcasting Corp.1 The most significant aspect of this decision is that the Court redefines the serious issue to be tried criterion when it comes to a mandatory interlocutory injunction, which is an injunction that orders the defendant to do something, as opposed to a prohibitive injunction, which orders the defendant to refrain from doing something. An accused was found guilty of first degree murder of a minor, following which the Canadian Broadcasting Corporation (“CBC”) published information on its website that revealed the identity of the victim. A ban prohibiting the publishing, broadcasting, or transmission in any way of any information that could identify the victim was ordered under section 486.4(2.2) of the Criminal Code, at the Crown’s request. CBC refused to remove the information from its website, and the Crown filed an application to have CBC declared guilty of criminal contempt and to obtain an interlocutory injunction ordering the removal of the information from CBC’s website. The first judge dismissed the Crown’s application, concluding that it had not met its burden with regard to the criteria for obtaining a mandatory interlocutory injunction. The Court of Appeal allowed the appeal and granted the injunction. The Supreme Court explains that, when it comes to mandatory interlocutory injunctions, the applicant must demonstrate more than the serious issue to be tried, as established by the decision RJR—MacDonald Inc. v. Canada (Attorney General).2 The threshold to be applied is a “strong prima facie case,” which requires the applicant to establish “[...] a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice”.3 The two other criteria for issuing an interlocutory injunction (irreparable harm and balance of convenience) remain the same. The Court specifies that the modified test only applies to mandatory interlocutory injunctions, explaining that an interlocutory injunction framed in prohibitive language may nevertheless require the defendant to take positive action. For example, ordering that CBC stop transmitting the information that established the identity of the victim would require positive action on the part of CBC, that is, to take measures to remove the information from its website. The Court emphasizes the importance of looking past the form and the wording used, in order to determine the real essence of the order sought. Pointing out the discretionary nature of the decision to issue an interlocutory injunction and the duty of deference with regard to intervention on the part of appeal courts, the Court allows the appeal and restores the decision of the chambers judge, concluding that the Crown had not demonstrated a strong prima facie case of criminal contempt. In fact, since section 486.4(2.2) of the Criminal Code could be reasonably interpreted as only prohibiting publications transmitted after the publication ban, the Crown could not establish that it had a strong likelihood to succeed at trial. Groupe CRH Canada inc. c. Beauregard          On June 21, 2018, the Court of Appeal rendered a decision in Groupe CRH Canada inc. c. Beauregard,4 which will surely often be cited, since it redefines the relationship that exists between the three criteria for the issuance of an interlocutory injunction. The respondents, waterfront residents near Chemin de la Butte-aux-Renards (the “Road”), commenced legal proceedings to seek an interlocutory and permanent injunction and damages to stop truck traffic on the Road. The Road was the only access road that enables trucks to obtain supplies from the stone quarry operated by the appellant CRH Canada Group Inc. (“CRH”), and from manufacturing facilities for products related to asphalting, which belonged to the appellant Bau-Val Inc. (“Bau-Val”). The impleaded party, KPH Turcot, was awarded the design-build contract for the Turcot project and would receive its supplies from the CRH quarry, which led to increased traffic on the Road since the spring of 2016. The Superior Court issued an interlocutory injunction prohibiting the operation of trucks in the evenings and at night (from 5:30 p.m. to 6:29 a.m.), limiting the operation of trucks on weekends to three Saturdays per year, and restricting the operation of trucks during the day. Among the grounds of appeal raised, the appellants claimed that the chambers judge did not consider the balance of convenience after having concluded that the respondents met the prima facie case criterion. First, the Court clarifies the fact that there is no true distinction to make between determining if there is a serious issue to be tried and a prima facie case: it is essentially sufficient for the application to be neither frivolous nor vexatious. It should be noted that the Court does not refer to the decision R. v. Canadian Broadcasting Corp. decision rendered a few months earlier, which redefined this criterion for mandatory interlocutory injunctions. This could probably be explained by the fact that the Court of Appeal had before it an application to issue a prohibitive interlocutory injunction for which it must have been of the opinion that the new criterion established by the Supreme Court of Canada did not apply. With regard to the second criterion, the Court recalls the wording used in article 511 of the Code of Civil Procedure, which codifies interlocutory injunctions: prejudice must be serious or irreparable, which means to that an injunction can be issued even if the prejudice can be compensated monetarily, if and so long as the prejudice is “serious.” The most significant aspect of this decision is the analysis carried out by the Court with regard to the balance of convenience criterion. The Court comes to the firm conclusion that a judge who has before him an application for interlocutory injunction must analyze the balance of convenience criterion, even if the applicant demonstrates a strong prima facie case. This conclusion seems to contradict a number of precedents, including the landmark case of James Bay Development Corporation v. Chief Robert Kanatewat,5 which was to the effect that the balance of convenience should not be analyzed if the applicant demonstrates a strong prima facie case. [14]      At the interlocutory injunction stage these rights are apparently either (a) clear, or (b) doubtful, or (c) non-existent: (a) If it appears clear, at the interlocutory stage, that the Petitioners have the rights which they invoke then the interlocutory injunction should be granted if considered necessary in accordance with the provisions of the second paragraph of Article 752 C.P. (b) However, if at this stage the existence of the rights invoked by the Petitioners appears doubtful then the Court should consider the balance of convenience and inconvenience in deciding whether an interlocutory injunction should be granted. (c) Finally if it appears, at the interlocutory stage, that the rights claimed are non-existent then the interlocutory injunction should be refused. The Court indicates that even if there were a violation of an objective legislative standard of public order, the criterion of the balance of convenience must still be analyzed and could be used as an argument against the application of the standard. It is clear that this change made by the Court is a major one: henceforth, the applicant is never exempt from demonstrating that the balance of convenience criterion is in the his favour, even if said applicant demonstrates a strong prima facie case. The Court provides two cases in which judges may discontinue their analyses of the prima facie case criterion: [our translation] “(a) when the applicant does not meet the preliminary condition of the  "prima facie case" or the "serious issue to be tried", such that the application may be denied for this reason; and (b) when the case is based on a pure question of law” (para. 77). Finally, the Court briefly mentions that, in Quebec, it is possible for judges to discontinue their analyses based on the prima facie case criterion for cases in which the interlocutory injunction is aimed at enforcing contractual obligations. The Court does not elaborate more on this obiter, which can be applied in Quebec, where specific performance is the default remedy for not performing a contractual obligation, and not an exception, as it is in common law. On the basis of its analysis of the balance of convenience, the Court partially allows CRH’s appeal, quashing the injunction which limited the operation of trucks during the day on weekdays. With regard to Bau-Val, as the first judge acknowledged that the traffic generated was minimal, the  injunction was quashed.  Conclusion Litigants parties must be familiar with these two decisions that redefine the criteria required for issuing an interlocutory injunction.   2018 SCC 5 1994 CanLII 117 (SCC). The Court’s reasons were delivered by the Honourable Justice Brown. para. 17 2018 QCCA 1063 (CanLII) [1975] C.A. 166

Lavery closely monitors new developments in consumer law and is committed to keeping the business community informed of the latest developments in this area of the law by regularly publishing newsletters dealing with new case law or legislative changes which may impact, influence, or even transform practices in the retail sector. The current projects of the legislator respecting judiciary case management of consumer law may very well modify the manner in which merchants handle customer complaints. In this respect, consumer law is a privileged child of the Code of civil procedure reform. Indeed, the Quebec government recently implemented a mandatory mediation pilot project for the Small Claims Division of the Court of Québec. On May 15, 2015, the Regulation to establish a pilot project on mandatory mediation for the recovery of small claims arising out of consumer contracts1 (the “Regulation”)2 came into force. Pursuant to the Regulation, mandatory mediation is imposed on the parties where the claim before the Small Claims Division arises from a consumer contract. A consumer contract includes any agreement between a merchant and a consumer for the acquisition of goods or services.3 When one considers that the Small Claims Division has jurisdiction to hear cases with a value of up to $15,000, it follows that a significant portion of the retail industry is covered by this pilot project. The pilot project, which is established for 3 years, only covers the judicial districts of Gatineau and Terrebonne,4 but we expect that the government will make it applicable throughout the province if the results are positive. To a certain extent, Quebec would follow suit with neighbouring Ontario, where mediation is mandatory for all matters that come before the Small Claims Court.5 WHAT JUSTIFIES MANDATORY MEDIATION? Mandatory mediation gives concrete expression to one of the guiding principles of the new Code of Civil Procedure (hereinafter, the “NCCP”) that came into force on January 1, 2016, which is to ensure accessibility to the courts and swiftness of civil justice. This is particularly illustrated by the fact that the legislator dedicated Title I of Book I of the NCCP to private dispute prevention and resolution processes. Contrary to these private dispute prevention and resolution processes such as negotiation, mediation and arbitration chosen by mutual agreement of the parties,6 the pilot project establishes mandatory mediation. The legislator therefore gives preferred treatment to judiciary claims between consumers and merchants, which may be explained by two objectives: (i) Free up the courts and promote swift access to justice Approximately 25% of the cases at the Small Claims Division concern claims involving consumer contracts.7 In addition, a study of the Office de la protection du consommateur published in 2010 reveals that 83% of the merchants continue to refuse mediation.8 One may think that the legislator wishes to reverse the trend and compel the parties to reestablish their communication in order to settle their disputes according to mutually agreed upon conditions. This measure will free up the courts, thus promoting swift access to justice. (ii) Restore the balance between the parties in a consumer contract The imbalance between consumers and merchants9 has always been a source of concern for the legislator. By making mediation mandatory as part of the pilot project, the government reaffirms its will to protect consumers by requiring merchants to discuss with them before an impartial third party in order to settle a dispute which ended up before the courts. Making consumer contracts subject to mandatory mediation a priority is explained by the fact that consumer contracts rank among the most common contracts, with personal consumption expenses in Quebec representing more than 100 billion dollars (which includes the automobile and food sectors).10 The obligation to submit these cases to mediation thus promotes maintaining harmony between the parties, which is an essential element to the sector’s health. WHAT MAY WE EXPECT? The process begins when the Small Claims Court clerk notifies the parties that they are subject to mediation.11 Our interpretation of the Regulation makes us conclude that this notice will be sent by the clerk once the defence is filed with the Court. The clerk must offer the mediation mandate to a mediator whose name is on the list of mediators that he has drawn.12 These mediators are lawyers or notaries certified by their professional orders.13 Once appointed, the mediator communicates with the parties to agree on a date and time for the mediation session.14 The process is intended to be swift: the mediator must hold the mediation session within 30 days following the date on which his mandate has been confirmed to him in writing.15 When a party fails to attend the mediation session so fixed or to agree on holding such a session, the mediator files with the court office a report stating that it is impossible to proceed with the mediation and the case may therefore be heard by the court.16 However, the court may penalize a party’s failure to participate in the mandatory mediation by condemning such party to pay the legal costs or damages or, if the faulty party is the creditor, by reducing or cancelling the interests payable to that party.17 If the mediation is successful, the parties file either a notice that the case has been settled or the agreement they have signed.18 If it is not, the mediator sends to the clerk, within 10 days of the mediation session, a report giving an account of the facts, the positions of the parties and the questions of law raised.19 The case may then be heard by the court.20 MAY ONE REQUEST TO BE EXEMPTED? Having a vested interest for the pilot project to be successful, the government has provided that a party may only be exempted from participating in the mandatory mediation session for a serious reason.21 A party who wishes to be exempted from mandatory mediation must make an application in writing to the court not later than 20 days after being notified by the clerk that a case is subject to mediation.22 The clerk informs the other parties of the application; they then have 10 days to present their observations in writing.23 HOW TO PREPARE FOR MEDIATION? By making mediation mandatory, the government sends a clear message to merchants: they will have to modify some of their complaint processing practices. In order to make the process efficient, and taking into account the fact that time with the mediator is limited, the prior preparation of the mediation session will have a significant impact on its orientation and on the outcome of the dispute. By being well prepared, a merchant will better understand his case, both from a factual and legal point of view, and will be able to highlight the weaknesses of the consumer’s case, if any. In order to be well prepared in the event that the merchant would face a suit and would then have to attend a mediation session, it is crucial for the merchant to do his homework in advance. Thus, he may find it beneficial to establish a clear complaint and claim management policy. Although the structure of the management policy may depend on the nature and the scope of the operations of the enterprise, merchants should minimally address the following questions when developing his policy: Are calls with consumers recorded? With their consent? Are reliable notes of all communications and interventions with consumers taken? In which way? Is there a particular person or persons assigned full-time to complaint and claim management or is the file entrusted with the representative who knows best about the facts of the case? Does the merchant wish to examine the goods which are the subject of the dispute? Does he want to give a mandate to an expert? How should he proceed? Is a response to the demand letter to be sent? In which cases? In which cases will the customer be contacted by phone? Are third parties or witnesses involved in the matter? May compensation, other than monetary compensation, be offered to the consumer in order to settle the dispute? --> a Are calls with consumers recorded? With their consent? b Are reliable notes of all communications and interventions with consumers taken? In which way? c Is there a particular person or persons assigned full-time to complaint and claim management or is the file entrusted with the representative who knows best about the facts of the case? d Does the merchant wish to examine the goods which are the subject of the dispute? e Does he want to give a mandate to an expert? How should he proceed? f Is a response to the demand letter to be sent? In which cases? In which cases will the customer be contacted by phone? g Are third parties or witnesses involved in the matter? h May compensation, other than monetary compensation, be offered to the consumer in order to settle the dispute? Once this policy is established, the following has to be done for each matter: establish the facts in dispute in chronological order prepare the documentary or material evidence (ex.: invoices, correspondence, recordings, etc.) determine what are the practices of the sector in similar situations determine the position and the arguments quantify the claim fix a scale to calculate how much the merchant would be prepared to pay to settle the claim --> a establish the facts in dispute in chronological order b prepare the documentary or material evidence (ex.: invoices, correspondence, recordings, etc.) c determine what are the practices of the sector in similar situations d determine the position and the arguments e quantify the claim f fix a scale to calculate how much the merchant would be prepared to pay to settle the claim Lastly, the merchant would be well-advised to hold regular meetings with legal counsel to take stock of the claims subject to mandatory mediation. This will allow him to validate the legal framework of his file and the strategy to adopt at the mediation session. If the merchant establishes a clear complaint and claim management policy and ensures that it is well implemented in his enterprise, these periodic meetings will be quick and efficient. WHAT ARE THE BENEFITS? Mandatory mediation offers definite benefits to the merchant. Firstly, the process is swift and cost-efficient. In fact, the services of the mediator are free since his fees are assumed by the Ministère de la Justice.24 As for the consumer, he can only be satisfied to be offered the opportunity to present his case to an impartial person without being subject to the usual judicial formalities before the court. Secondly, a successful mediation allows the merchant to avoid the risk of seeing the name of his enterprise associated with an unfavourable judgment, sometimes being cited out of context, thus allowing him to protect his image. Thirdly, mediation is a flexible process, the parties are free to negotiate the parameters of their settlement to achieve a mutually satisfying solution. Moreover, since mediation is confidential,25 the information shared during the process cannot be used in legal proceedings if mediation is unsuccessful. Lastly, the process may allow the merchant to better understand the consumer’s case and prepare accordingly for a trial should mediation fail. However, this statement is subject to a caveat: even if the mediation session reveals the other party’s cards, one must always remember that the parties are required to participate in good faith.26 In other words, the merchant should not participate in the mediation session for the sole purpose of verifying the solidity of the consumer’s case, but rather attend with the sole objective of trying to find a solution to the dispute.27 WHAT IS THE BOTTOM LINE? One has to keep in mind that with the pilot project which subjects the claims arising from a consumer contract to mandatory mediation, the legislator wants to promote the dialogue between consumers and merchants. The merchant may participate in this dialogue in an effective manner by establishing a clear complaint and claim mangement policy, which may also include a resolution process which would take place before matters are submitted to the court. Such an approach allows the merchant to quickly demonstrate the seriousness of his file, thus maximizing his chances of achieving a profitable settlement. A merchant can only derive benefits from the process, as establishing a dialogue with consumers shows that he has a clear understanding of his customers’ needs.   Regulation to establish a pilot project on mandatory mediation for the recovery of small claims arising out of consumer contracts, CQLR, c. C-25.01, r. 1. In accordance with articles 28 and 836 of the Act to establish the new Code of Civil Procedure, S.Q. 2014 c. 1. According to section 1 of the Regulation, the definition given to the expression “consumer contract” is that set out in article 1384 of the Civil Code of Québec, that is, “a contract whereby one of the parties, being a natural person, the consumer, acquires, leases, borrows or obtains in any other manner, for personal, family or domestic purposes, property or services from the other party, who offers such property and services as part of an enterprise which he carries on.” Prec., note 1, s. 1. Rules of the Small Claims Court, Reg. 258/98 (Ont.), s. 13.01. Prec., note 2, art. 1. Pierre-Claude LAFOND, L’accès à la justice civile au Québec : portrait général, Cowansville, Éditions Yvon Blais, 2012, p. 140. Pierre-Claude LAFOND, L’accès à la justice civile au Québec : portrait général, Cowansville, Éditions Yvon Blais, 2012, p. 138. Pierre E. AUDET, “La médiation obligatoire pour les petites créances d’au plus 15 000 $ découlant d’un contrat de consommation”, Justice privée et décrochage judiciaire, Les Entretiens Jacques-Cartier, Montréal, October 3, 2014. Luc THIBAUDEAU, Guide pratique de la société de consommation, Cowansville, Éditions Yvon Blais, 2013, p. 157. In 2014, the retail sector has represented in excess of 505 billion dollars in Canada: http://www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/trad15a-eng.htm. Id. Prec., note 1, s. 6. Id., s. 7. Id., s. 22. Id., s. 21.. Id., s. 26. Id., s. 27. Préc., note 1, s. 28. Id., s. 29. Id. Id., s. 2. For the purposes of the Regulation, the expression serious reason particularly means the existence of an order preventing a party from being in the presence of the other party, the fact that the travelling expenses related to the party’s participation in the mediation exceed the possible advantages or the fact that the parties have already participated in a mediation session for the same dispute. Id., s. 3. Id. Prec., note 1, s. 12. Id., s. 18 to 20. Id., s. 16. Id., s. 16.