Executive Summary: Key Legal and Evidentiary Issues

• Alleged breach of consumer protection rights related to digital content rental duration

• Dispute over whether the rental period was a material term under Article 228 L.p.c.

• Attempt to amend pleadings mid-trial to include a new cause of action under Article 54.4 L.p.c.

• Evaluation of the admissibility and timeliness of procedural motions under the C.p.c.

• Consideration of the evidentiary weight of customer complaints and continued use of service

• Assessment of eligibility for punitive damages based on alleged statutory violations

Facts and procedural background

The case arose from a class action filed by Raymond Lévesque against Vidéotron S.E.N.C., Vidéotron ltée, and 9227-2590 Québec inc. Lévesque claimed that in 2010, Vidéotron unilaterally reduced the viewing time for adult content on its video-on-demand platform from 24 hours to 18 hours without notifying customers. He argued that this change breached Québec's consumer protection laws, specifically Articles 41, 219, and 228 of the Loi sur la protection du consommateur (L.p.c.), and constituted a defect in consent due to fraudulent misrepresentation under Articles 1400 and 1401 of the Civil Code of Québec (C.c.Q.).

Lévesque’s action was dismissed by the Superior Court after a five-day trial. During trial, he attempted to amend his pleadings to include a claim under Article 54.4 L.p.c., but the trial judge rejected this mid-hearing amendment. In his appeal, Lévesque raised five grounds focused on alleged violations of Articles 228 and 54.4 L.p.c., and sought a reduction of obligations and punitive damages.

Appellate court’s analysis and decision

The Québec Court of Appeal reviewed the trial judgment and the appellant’s submissions. The first three grounds challenged the trial judge’s interpretation of Article 228 L.p.c., which prohibits a merchant from withholding important information from a consumer. Lévesque argued that the reduction in rental time was a material change to an essential term of a rental contract and that failing to disclose it constituted a breach. The Court found that the trial judge had already assumed, for the sake of argument, that the rental duration was essential. However, she had also correctly concluded that the evidence did not show that customers—including Lévesque—regarded the duration as important. Only three customers complained, and all of them continued using the service. Given that the class allegedly involved nearly 197,000 members, this lack of significant response undermined Lévesque’s argument.

The fourth ground related to the rejected amendment under Article 54.4 L.p.c., introduced during trial. The Court emphasized that the appellant failed to seek timely permission to appeal that procedural decision, rendering the related ground of appeal invalid.

The fifth and final ground addressed the trial judge’s refusal to award punitive damages. The Court noted that since the prior four grounds lacked merit, there was no underlying breach of a statutory duty that could justify punitive damages under Article 272 L.p.c.

Ultimately, the Court of Appeal found that none of the five grounds of appeal had a reasonable chance of success. It allowed the respondents' motion to dismiss the appeal and ordered Lévesque to pay legal costs.