Executive Summary: Key Legal and Evidentiary Issues

• Scope of HTK’s obligation as a digital marketing agency, specifically whether it owed a duty of result or only prudence and diligence under articles 2098–2100 C.c.Q.
• Weight of pre-contractual representations about the number and quality of “leads” versus the written service contract’s allocation of responsibilities and absence of guaranteed results.
• Adequacy of HTK’s performance in setting up and running the Facebook/Google Ads campaign, including geographic targeting and pre-qualification of prospective seller leads.
• Sufficiency of the plaintiff’s evidence to prove that services were not rendered “selon les règles de l’art” and that the leads generated were unusable or inconsistent with the contract.
• Application of the general civil burden of proof (articles 2803–2804 C.c.Q.) to determine whether the plaintiff established fault, damages, and causation.
• Responsibility of the client, as an experienced real estate broker, for decisions about how to use and follow up on the leads generated by the campaign.

Facts and contractual framework

Nancy Salanueva Inc., a real estate brokerage operated by an agent with over 17 years of experience, retained Groupe HTK Inc., a digital marketing agency based in Montréal, to manage paid advertising campaigns on Facebook, Instagram and Google. The objective was to generate qualified real estate seller and buyer leads and appointments in the broker’s chosen territory. The parties entered into a written “contrat de service : Gestion des publicités payantes Facebook, Instagram et Google” covering campaign management services and online lead generation. The agreed price was $800 plus taxes for a fixed “immobilier” fee and $600 plus taxes for advertising spend, with an invoice issued for May 2022. Before the contract was signed, HTK’s client relations representative, Roman Sellito, allegedly represented that the campaign would deliver approximately 50 leads per month, 10 guaranteed appointments, and two to three new listings per month. After the contract was executed, the plaintiff received an invitation to join a Slack workspace used as a communication channel for the campaign. According to the plaintiff, several weeks passed without meaningful results or correspondence, leading to growing dissatisfaction with HTK’s performance.

Key contractual clauses and allocation of responsibilities

The written contract contained specific provisions that became central to the dispute. In the preamble, HTK Media (HTK Group Inc.) was described as a digital marketing agency providing campaign management services, while the client sought to have HTK set up campaigns across various advertising channels to “ultimement lui fournir des rendez-vous qualifiés avec des vendeurs et/ou des acheteurs immobiliers.” However, the operative clauses emphasized the client’s responsibilities. Under Article 8 – Obligations du client, the client was required to review, in a timely manner, all documents submitted for approval and to clearly express any remarks or disagreements. The client retained control over strategy, general and specific objectives, and the management, exploitation and evolution of the results of the services; the client was expressly responsible for how it used the results of the services and “conserve en toutes circonstances la maîtrise d’œuvre des Prestations.” The client also bore responsibility for content, data, information and marks concerning its products and services, and for obtaining all necessary authorizations for use or dissemination of pre-existing elements. Article 9 – Obligations de l’Agence stipulated that HTK would deploy sufficient resources to carry out the services and that it was required to execute the services in a professional manner and in accordance with the rules of its art. The contract therefore framed HTK’s obligation as one of means (prudence and diligence, with professional execution) rather than a strict obligation of result guaranteeing a fixed number of leads or closings.

Plaintiff’s complaints about performance and lead quality

The plaintiff alleged that little or no activity occurred after the contract was signed and Slack access was provided. Eventually, according to the plaintiff, roughly a dozen leads were delivered, but they were said to be geographically outside the agreed territory and inconsistent with HTK’s targeting promises. In a later demand letter, the plaintiff recounted that only one or two leads were initially received and that they were “beaucoup trop loin” and not within the chosen municipalities. Over time, approximately a dozen leads arrived, with only one supposedly within the plaintiff’s area. When this contact was called, the person allegedly had no interest in selling; another lead had an incorrect number, and others were located in more distant places such as Sainte-Thérèse, Sainte-Martine and Richelieu. The plaintiff claimed to have requested a refund on Slack, citing HTK’s alleged incompetence, and maintained that the services had effectively not been rendered. When HTK later contacted the plaintiff to discuss renewal, she refused and reiterated her dissatisfaction; shortly thereafter, she reported being blocked from the communication platform. On this basis, the plaintiff, Nancy Salanueva Inc., sued in the Small Claims Division of the Court of Québec for $1,610.65, seeking full reimbursement of all amounts paid on the basis that the contractual services were not rendered as agreed.

Defendant’s evidence of campaign execution

Groupe HTK Inc., represented by its president and co-owner Youri Capistran, presented a different picture. HTK explained that it had designed and deployed an online advertising campaign using general informational videos on social networks. Potential clients who were interested would complete an online form providing their name, address, phone number and other relevant information. HTK’s evidence was that these forms were then used to generate potential seller leads for the plaintiff. HTK maintained that all services were rendered in accordance with the contract and with professional standards. Capistran testified that all leads transmitted to the plaintiff had been pre-confirmed by phone, with each contact stating a desire to sell their property in the near future. HTK further explained that the geographic parameters in the instructions were used to prioritize certain regions, but that the campaign also captured leads slightly outside the core area. According to HTK, the leads generally fell within about 40 kilometres’ driving distance from the plaintiff’s residence, which the company characterized as a reasonable targeting radius for online advertising. Ultimately, HTK argued that whether the plaintiff chose to travel to meet or even contact these leads was entirely her decision and could not be transformed into a fault attributable to the agency.

Burden of proof and legal framework applied by the court

The court grounded its analysis in the general rules of civil liability and contract performance under the Civil Code of Québec. Under article 2100 C.c.Q., an entrepreneur or service provider must act in the best interests of the client with prudence and diligence and in accordance with the usages and rules of its art, and must ensure that the service is in conformity with the contract. The judgment confirmed that HTK’s obligation in this relationship was one of prudence and diligence, not a strict obligation to achieve a specific commercial result such as a set number of appointments or property listings. In addition, the court recalled the standard burden of proof imposed on a plaintiff. Pursuant to article 2803 C.c.Q., the party asserting a right bears the burden of proving the facts supporting that right; under article 2804 C.c.Q., it is sufficient to make the alleged facts more probable than their non-existence, unless the law requires stronger proof. In the context of a damages claim, the plaintiff must establish three cumulative elements: a fault by the defendant, actual damages suffered, and a causal link between the fault and the damages. The court emphasized that this framework applied fully in the small claims setting; it was not enough for the plaintiff simply to express disappointment at the commercial outcome of the campaign.

Outcome and reasons for dismissal

Assessing the totality of the evidence, the Court of Québec concluded that the plaintiff had failed to meet the required evidentiary burden. The judge found that HTK had in fact set up and run an advertising campaign, produced and transmitted multiple leads, and operated within a reasonable geographic targeting radius given the nature and budget of the online campaign. The documentary evidence produced by HTK, including campaign screen captures and records showing around nine leads transmitted to the plaintiff, was consistent with Capistran’s testimony about the services performed. Against this, the plaintiff’s evidence did not convincingly establish that HTK’s performance fell below professional standards or that the services were not rendered “selon les règles de l’art.” Nor did the plaintiff demonstrate that any pre-contractual statements about expected leads or listings elevated HTK’s obligation to a guarantee of specific results, particularly in light of the contractual clauses assigning strategic and operational control, as well as responsibility for using the campaign results, to the client. In the absence of proof of fault, the claim for reimbursement had to fail. The court therefore rejected the action brought by Nancy Salanueva Inc. against Groupe HTK Inc. and ordered the plaintiff to pay court costs in the amount of $173, corresponding to the judicial stamp. As a result, the successful party in the proceeding was Groupe HTK Inc., which obtained a monetary award of $173 in costs while no damages were granted to the plaintiff.