Executive Summary: Key Legal and Evidentiary Issues

• Scope and nature of the lawyer’s mandate under two written retainer agreements, and whether they included an obligation to represent the client before the court
• Alleged vitiated consent (erreur) to the retainers, and whether the client’s misunderstanding of the agreements amounted to an excusable error under articles 1399–1400 C.c.Q.
• Characterisation of the lawyer’s services as “clandestine mandate” work limited to advice, preparation and drafting, excluding formal representation on the court record
• Reasonableness and legality of the professional fees charged, including corrections and credits, in light of the Barreau du Québec fee conciliation and article 127 of the Loi sur le Barreau
• Attempt to rely on consumer protection legislation (Loi sur la protection du consommateur) for punitive damages against a lawyer, and the court’s rejection of this framework
• Absence of proof of contractual fault or breach of professional obligations sufficient to justify moral or punitive damages, leading to dismissal of the client’s small-claims action

Background and parties

Carl Deschamps, a highly educated individual working as a postdoctoral fellow, was employed by the École nationale d’administration publique (ÉNAP) until his dismissal. Following his termination, he commenced civil proceedings against ÉNAP in November 2022 and initially acted on a self-represented basis. In December 2022 he began a new job, but he continued to pursue his litigation against ÉNAP in the civil courts. In the course of that litigation, he sought assistance from the Barreau du Québec’s referral service and retained lawyer Me Samuel Montmagny, then practising with the law firm Audex.avocats. Later, when Me Montmagny moved to the firm Tremblay Bois Mignault Lemay S.E.N.C.R.L., Deschamps chose to continue with him at the new firm. The dispute before the Small Claims Division of the Court of Québec arises out of this professional relationship, not out of the underlying employment case against ÉNAP itself. Deschamps sued Audex.avocats, Tremblay Bois Mignault Lemay, and Me Montmagny personally for a total of $14,776.46, including $1,000 in moral damages and $5,000 in punitive damages, alleging errors in representation and mismanagement of his file. He later discontinued his claim against Audex.avocats without changing the total amount of his monetary demand.

First retainer with Audex and “clandestine” mandate

The first retainer agreement was concluded on 17 February 2023 between Deschamps and Me Montmagny at Audex.avocats, following a videoconference meeting where Deschamps expressed his wish that the lawyer eventually represent him at trial against ÉNAP, while he would in the meantime continue to self-represent. The written convention provided that Deschamps retained Montmagny “to represent [him] in [his] civil law file” but immediately specified that the initial scope of work would be an examination of the file, assistance in preparing Deschamps for his own pre-trial examination, and that Montmagny would act under a “mandat clandestin”, explicitly meaning that no act of representation would be filed in the court record. The agreement also allowed Montmagny to involve colleagues at his firm and set out a fee structure: an hourly rate of $185, a fixed fee of $400 for court attendances, and $5,000 per day for any trial days. The court considered this written wording clear in limiting formal court representation at this stage. After reviewing the documents supplied by Deschamps, Montmagny emailed him to propose, among other things, preparing him for a possible pre-trial examination and providing a concise legal opinion, on the basis that Deschamps could continue to self-represent. The fees issued by Audex, totalling $2,343.18, were paid and reflected essentially clerical and preparatory services. There was no formal appearance entered in the court record for the ÉNAP case under this first mandate.

Transition to the Tremblay Bois firm and the second convention

On 28 February 2023, Montmagny advised Deschamps that he was leaving Audex to join Tremblay Bois Mignault Lemay, and Deschamps elected to keep him as counsel. At the new firm the applicable conditions were different: Montmagny’s hourly rate increased to $215. An important practical fact is that Deschamps’s own pre-trial examination in the ÉNAP case took place on 1 March 2023 without Montmagny’s presence. On 4 April 2023 a second written convention was sent to Deschamps and signed. This second agreement is at the core of the subsequent dispute. Its stated object was to “counsel and assist” the client in his court case against ÉNAP. It specified that, unless there was a subsequent agreement, the firm’s lawyers would not formally appear on the court record. Their role would be to review or draft pleadings for the client, and to prepare him for pre-trial examinations and trial. In other words, the contract envisaged a supporting and advisory role—often described as “unbundled” or limited-scope services—rather than full representation.

Alleged contradictions and the client’s understanding of the mandate

Deschamps argued that, despite the wording of the object clause, other parts of the second convention—particularly two “WHEREAS” recitals stating that the lawyers accepted the mandate and “would represent the client” in the file, and that the client would no longer communicate personally with the opposing party, their lawyers or the media—led him to believe he was securing full representation before the court. He maintained that he had not carefully read the convention and that he misunderstood these clauses, believing that court appearances were included. Montmagny, for his part, emphasised that the operative clause on the object of the mandate clearly excluded formal court appearances absent a later specific agreement, and he explained that the “WHEREAS” clauses were generic language from the firm’s standard form which had not been fully tailored beyond adjusting the description of the mandate. The court ultimately accepted this explanation and treated the detailed object clause as determinative of the actual scope of the contract.

Breakdown of the professional relationship and fee disputes

Tensions in the relationship arose in mid-April 2023. In a videoconference on 17 April, Montmagny indicated that Deschamps had good prospects of success in the ÉNAP litigation. According to Deschamps, he was told that if he personally conducted the examinations of the opposing party’s witnesses, the lawyer could not then represent him officially at trial. Deschamps said he wanted the lawyer to perform these examinations. Montmagny allegedly refused and said he needed to consult his superior, Me François Fortin, because the firm’s policy was not to conduct examinations unless it would also act at trial. By the next day, 18 April, Deschamps asked Montmagny to halt further work on the file until the question of who would conduct the examinations was resolved. Montmagny responded that he would not perform the examinations because Deschamps had indicated he was unable to pay the required fee advances for that work. On 21 April, an email from Montmagny reassured Deschamps that he remained on the file, but a few minutes later Deschamps received a substantial fee note in the amount of $4,504.15. Given his fragile financial situation, this invoice shocked and distressed him, and he sought a meeting with both Montmagny and Fortin. At the 24 April 2023 meeting, Deschamps says Montmagny now told him that the chances of success in the ÉNAP case were low, in contrast to the earlier positive assessment. Nevertheless, Deschamps appeared broadly satisfied with the adjustments discussed to their working relationship. Subsequently, in May 2023, Montmagny confirmed in writing (on 23 May) that he would not formally appear on the court record, and Deschamps accepted this. Another fee note was then issued for $2,162.96; Deschamps promptly expressed dissatisfaction. The firm corrected certain items and granted credits on the invoice, but a further misunderstanding surfaced about how Deschamps would be prepared for his own examinations. The cumulative strain led Deschamps to terminate Montmagny’s mandate on 1 June 2023.

Barreau conciliation and pre-litigation steps

On 30 June 2023, Deschamps sought conciliation of the legal fees through the Barreau du Québec. That process ended on 25 September 2023, and Deschamps ultimately paid the outstanding fee notes he had received, after some credits had been applied by the firm. The very next day, on 26 September 2023, he sent a formal demand letter to Audex and Tremblay Bois Mignault Lemay, foreshadowing his small-claims action. While this was unfolding, Montmagny believed that Deschamps settled his underlying civil dispute with ÉNAP amicably in August 2023, which meant that the underlying employment litigation concluded without trial.

Legal issues before the Small Claims Division

At the Court of Québec, Deschamps framed his claim as one for contractual liability under article 1458 of the Civil Code of Québec, alleging breaches of the retainer agreements and failures in the lawyer’s performance of his professional obligations. He also invoked, in the body of his claim (although not expressly in his conclusions), the nullity of both conventions on the basis of vitiated consent due to error, relying on articles 1399 and 1400 C.c.Q. The court recalled the general burden and standard of proof in civil matters, citing articles 2803 and 2804 C.c.Q., which require a plaintiff to prove facts on a balance of probabilities. The key legal questions were whether Deschamps’s consent to the conventions had been vitiated by error, whether the lawyer had undertaken obligations going beyond what was written—particularly an obligation to appear in court—and whether the fees charged were unreasonable or contrary to the Code of ethics of advocates or other professional rules. There was also a pleaded claim for punitive damages founded on article 272 of the Loi sur la protection du consommateur, which required the court to consider whether that statute applied to lawyers’ professional services.

Findings on consent, error and scope of the mandate

The court placed significant weight on Deschamps’s education and sophistication. As a postdoctoral fellow, he was presumed capable of reading and understanding contractual documents. With respect to the first convention at Audex, the judge found that, even if one clause referred to representation in a civil matter, the very next clause clarified that the initial work would consist of file review and preparation for a pre-trial examination under a clandestine mandate with no act of representation filed in court. On the evidence, that is exactly how the relationship unfolded: there were no formal appearances by Montmagny at court while at Audex, and Deschamps did not complain at that time that his expectations were being thwarted. Regarding the second convention at Tremblay Bois, the court reached the same conclusion. The agreement was explicit that the firm’s lawyers would not officially appear on the court record unless there was a subsequent distinct agreement. The rest of the text contemplated advisory, drafting and preparatory work, again excluding formal court representation. The judge stressed that Deschamps admitted having read the second convention only superficially, if at all, and having asked no questions to clarify its contents despite having the opportunity to do so. Under article 1400 C.c.Q., the court held that any error on his part was “inexcusable” and therefore did not amount to a vice of consent that could invalidate the agreements. It was his responsibility to seek information or explanation if the wording was unclear to him.

Verbal assurances, parol evidence and professional commitments

Deschamps also alleged that Montmagny made verbal commitments to represent him at court or to perform certain steps (such as examinations of the opposing party’s witnesses) and later reneged, causing him significant stress and undermining his case. The court noted that, to the extent Deschamps was trying to use oral evidence to contradict the terms of the written conventions, he was barred from doing so by article 2863 C.c.Q., which restricts parties to an act in writing from contradicting or altering it by testimonial evidence, absent a “commencement of proof” in writing. There was no parallel or subsequent written agreement establishing that Montmagny had undertaken a full representation mandate. Instead, the evidence showed that, after consulting with his superior, he informed Deschamps that firm policy did not allow a lawyer to appear at trial unless that same lawyer had also handled the pre-trial examinations—something that had not occurred in this file. On these facts, the court found no proof that Montmagny had contractually committed to appear in court and later breached that undertaking.

Assessment of fees and professional standards

On the issue of professional fees, the court considered that Deschamps had paid the invoices without formally reserving his rights, beyond raising concerns that led the firm to issue credits of $602.62 and $370.80. The judge emphasised article 127 of the Loi sur le Barreau, under which a lawyer is, in principle, believed under oath as to the requisition, nature, duration and value of his or her services, though that testimony can be challenged like any other. Deschamps had initiated a fee conciliation process before the Barreau du Québec but later discontinued it himself. He failed to demonstrate that the fees ultimately charged were unreasonable or breached the Code of ethics of advocates. The earlier discontinuance of his civil claim against Audex was also noted; the court accepted Montmagny’s argument that this effectively meant Deschamps could not now reclaim the sums paid to that former firm, and in any event Montmagny could not be personally liable for amounts paid directly to the firm.

Rejection of punitive damages and consumer protection arguments

For punitive damages, the court recalled article 1621 C.c.Q., which requires a specific legislative basis and limits punitive awards to what is necessary to achieve their preventive purpose, having regard to factors such as the gravity of the fault and the debtor’s patrimonial situation. Deschamps’s only specific statutory basis was article 272 of the Loi sur la protection du consommateur. The judge held this provision inapplicable because it presupposes a breach of statutory obligations or warranties by a “merchant” under that Act. In the court’s view, a lawyer is not a “commerçant” within the meaning of the consumer protection legislation, but a professional governed by special statutes including the Loi sur le Barreau and the Code des professions. Since no other legal ground for punitive damages was identified and no underlying statutory breach proven, the punitive claim could not succeed.

Outcome and financial consequences

In the final analysis, the Court of Québec concluded that Deschamps failed to prove, on a balance of probabilities, either that his consent to the two conventions had been validly vitiated or that Montmagny committed a contractual fault warranting compensation. The agreements clearly limited the mandate to advisory and preparatory services with no automatic obligation to appear in court, and any misunderstanding on Deschamps’s part was deemed an inexcusable error arising from his own failure to read and inquire. The judge therefore rejected the claims for moral and punitive damages, as well as the broader demand for reimbursement of fees. Given certain particular circumstances, the court nonetheless ordered that each party bear its own costs, instead of ordering costs against the unsuccessful party. The net result is that the defendants—Me Samuel Montmagny and the firm Tremblay Bois Mignault Lemay S.E.N.C.R.L.—were the successful parties, and no monetary award (whether in damages, costs or otherwise) was granted in their favour; the plaintiff’s $14,776.46 claim was dismissed in its entirety and there was no amount ordered for costs beyond each side absorbing its own expenses.