Executive Summary: Key Legal and Evidentiary Issues

• Jean-Claude Lévesque and Alexandra Louis-Jean hired Groupe Lavabac inc. to demolish an existing solarium and construct a new four-season one at their Gatineau property, paying a total of $21,500.
• Central to the dispute is whether the contract qualified as a contract of enterprise under the Civil Code of Québec and whether Lavabac's obligations included a guarantee of workmanship quality.
• Expert engineer Antonio El-Achkar testified that the completed structure was of very poor quality, failed to meet National Building Code standards, and could not qualify as a four-season solarium.
• Whether the Consumer Protection Act applied turned on whether Lavabac — a company specializing in recycling bin washing — qualified as a "merchant" in the construction sector.
• Lavabac's voluntary dissolution in 2023 raised the question of whether proceedings could continue against it and whether its sole shareholder, Vincent L. Bokata, bore personal liability.
• Insufficient evidence of asset distribution to Mr. Bokata upon dissolution, and an absence of pleadings supporting a corporate veil claim, precluded his personal liability.

Facts of the case

In December 2018, Jean-Claude Lévesque and Alexandra Louis-Jean purchased a property in Gatineau, Quebec, which already contained a three-season solarium subject to various infiltration problems. Wishing to improve their backyard, the plaintiffs sought to have a functional four-season solarium built as an addition to their home. In early 2021, Mr. Lévesque encountered Vincent L. Bokata by chance at a local grocery store. Mr. Bokata was the sole shareholder and director of Groupe Lavabac inc. (Lavabac), a company incorporated under the Canada Business Corporations Act whose primary business was the washing of recycling bins, garbage cans, and compost containers. Having learned that Mr. Bokata had previously carried out some construction and renovation work — notably at his mother's home — Mr. Lévesque asked for his advice and gauged his interest in taking on the solarium project. Mr. Bokata confirmed he could carry out the work.

Lavabac prepared an estimate (Devis No. 0842) describing three components of work: demolition of the existing solarium, construction of the foundation, and installation of a new solarium. The estimate set a total price of $23,000 — $2,000 for demolition, $11,000 for the purchase of a new solarium, and $10,000 for labour and materials for the foundation, assembly, installation, and connection of the solarium to the main building. The parties agreed, and it was established that the plaintiffs ultimately paid a total of $21,500. No written contract beyond this estimate was prepared or signed.

After further exchanges, Lavabac — through Mr. Bokata — recommended the purchase of a SanRemo-brand solarium, which the plaintiffs accepted. Lavabac acquired the construction kit through a contract with Greenwall Solutions inc. at a total cost of $12,186.20. Work proceeded over the summer of 2021, with Mr. Bokata on site for several weeks. Mr. Lévesque testified that he grew concerned about the quality of the work, particularly noting that Mr. Bokata made numerous phone calls trying to understand how to connect the solarium to the main structure. Mr. Bokata left the worksite around August 18, 2021, considering the work complete. The plaintiffs disagreed.

Mr. Lévesque identified a series of serious defects: the foundation was not level, causing doors to close poorly or swing open on their own; there were infiltrations of water, air, cold, spiders, and bees; the roof was crooked; and various structural elements had been damaged by the use of improper tools and equipment. The plaintiffs sent a formal demand letter at the end of August 2021. Mr. Bokata responded on September 1, 2021, denying responsibility and claiming it had been agreed from the outset that he was not a professional and that no quality guarantee was offered. The plaintiffs mandated engineering firm HKR Consultation, and engineer Antonio El-Achkar — a member of the Ordre des ingénieurs since 2006 and qualified as an expert witness on approximately fifteen prior occasions — conducted an inspection. His report and testimony identified improper installation, a non-rectilinear wood platform, caulking that failed to meet National Building Code standards and the manufacturer's installation manual, and a connection joint between the solarium and the main structure that likewise did not comply with the Building Code. He testified that the work was of very poor quality and that it was probable everything would need to be redone regardless of any corrective measures. He confirmed the delivered structure could not qualify as a four-season solarium. By the following winter, significant quantities of snow were routinely entering the structure, and the plaintiffs ultimately sealed it off, using it only as storage since 2021.

The plaintiffs filed their claim before the Court of Quebec on February 4, 2022, seeking rescission of the contract and a corresponding condemnation of $21,500 against Lavabac. Lavabac was voluntarily struck off on February 27, 2023, and dissolved on May 18, 2023. The plaintiffs filed an amended claim on November 29, 2023, targeting both Lavabac and Mr. Bokata personally, on the basis that Mr. Bokata had personally performed the contractual work.

Contractual terms and clauses at issue

The sole written record of the parties' agreement was the estimate prepared by Lavabac, which described the scope of work but contained no mention of any exclusion of warranty or limitation of liability. Mr. Bokata's position — that a no-guarantee arrangement had been agreed upon verbally before the contract was formed — was the central contested point. The court also considered the obligations imposed by the Civil Code of Québec on contractors and service providers. Article 2100 C.c.Q. requires entrepreneurs and service providers to act in the client's best interests with prudence and diligence, to comply with the rules of their trade, and — where bound to achieve a result — to prove force majeure in order to escape liability. Article 2102 C.c.Q. further requires that, prior to contracting, the entrepreneur provide the client with all useful information about the nature of the work and materials required. The court also applied Articles 1434, 1458, and 1590 C.c.Q., which together establish that a validly formed contract binds the parties not only to its express terms but to all that flows from its nature, and confers on the creditor the right to demand full, correct, and timely performance.

Regarding Lavabac's dissolution, the court applied section 226(2) of the Canada Business Corporations Act, which provides that civil proceedings commenced against a corporation before its dissolution may continue as though no dissolution had occurred, and that property that would otherwise have satisfied a judgment remains available for that purpose. The plaintiffs also invoked section 226(4) CBCA to pursue Mr. Bokata personally, a provision that allows shareholders who received assets upon dissolution to be held liable, up to the value received, within two years of dissolution.

Reasoning and analysis

The court first confirmed that the contract was concluded with Lavabac — a point conceded by all parties, including Mr. Bokata and Mr. Lévesque himself. On the question of whether the Consumer Protection Act applied, the court found it did not, since Lavabac did not ordinarily operate in the residential construction sector. Relying on the Court of Appeal's reasoning in Caza c. Derisca, 2015 QCCA 368, the court noted that the status of "merchant" under that legislation requires both the pursuit of profit and a habitual — rather than occasional — exercise of that activity. Lavabac's primary business was entirely different from construction, and this evidence was uncontradicted. However, the court noted this finding was without practical consequence for the outcome.

The court then qualified the contract as a contract of enterprise under Article 2098 C.c.Q., rejecting the defence's characterization of Lavabac as a mere artisan acting without any guarantee. The court found Mr. Lévesque's testimony credible and reliable on the core point: there had been no pre-contractual discussion about an absence of warranty or purely artisanal execution. The court found it implausible that Mr. Lévesque would have committed to a $23,000 engagement without any quality guarantee, and noted that the estimate itself contained no mention of any such exclusion. The first written reference to a supposed no-guarantee arrangement appeared only in Mr. Bokata's September 1, 2021 response — after the work was allegedly complete. The court also found it telling that Mr. Bokata, whom it described as an educated and intelligent man, had not seen fit to include such a crucial exclusion in writing. The court retained Mr. Lévesque's testimony that he had available a budget of approximately $30,000 if needed, rejecting the claim that budget constraints had driven him to refuse necessary specialized work.

The court found that Lavabac had failed its advisory obligation: despite recommending the SanRemo model, Mr. Bokata conducted only superficial internet research on the manufacturer and conceded knowing very little about the company. The court found he did not inform the plaintiffs of the model's infiltration risks or its unsuitability for a typical Quebec winter — information the court characterized as evident even to Lavabac itself, and which, had it been disclosed, would have immediately raised concerns for the plaintiffs. The court also found that Lavabac lacked the internal expertise to carry out the critical connection between the solarium and the main structure — a fact Mr. Bokata acknowledged at trial — and that this made proper performance of the contractual obligations impossible without retaining a third party, which Lavabac did not do. The engineer El-Achkar's testimony, found to be solid and convincing, confirmed that the structure was of very poor quality, with no caulking, air and water infiltration, a crooked structure, and a deficient connection joint. The court noted that the engineer's best-case remediation scenario involved dismantling the entire structure to address the foundation slope, reinstalling it if not too damaged — with no guarantee of success — and that the two contractor quotes submitted by the plaintiffs for demolition and reconstruction both exceeded $60,000.

On the question of mitigation, the court found that the defendants had not established any tangible aggravation of the damage caused by the plaintiffs' inaction, noting that the harm was already done by 2021 and that the obligation to mitigate under Article 1479 C.c.Q. is an obligation of means whose burden falls on the party invoking it. The court also dismissed the argument that the plaintiffs' failure to formally offer restitution of the solarium in their amended pleading barred rescission, noting that the effects of rescission — including mutual restitution — flow automatically from Article 1606(1) C.c.Q., and that the plaintiffs' counsel had stated clearly at trial that his clients were prepared to return the structure upon repayment.

On the personal liability of Mr. Bokata, the court held that the mere fact he performed the work was insufficient to ground personal liability where the contract was concluded with Lavabac. The plaintiffs' primary argument relied on section 226(4) CBCA, but the court found there was no evidence whatsoever of any distribution of Lavabac's assets to Mr. Bokata upon dissolution. Consistent with the reasoning in Sommereyns c. 3328074 Canada inc et al, 2018 QCCQ 11, the burden of proving such distribution rested on the plaintiffs, and the evidence was entirely silent on the matter. The court also rejected the late-raised possibility of piercing the corporate veil under Article 317 C.c.Q., noting that no such claim had been pleaded and no supporting conclusions had been sought, and that, in any event, the factual record disclosed no fraud, breach of public order, or abuse of right sufficient to warrant that exceptional remedy.

Ruling and overall outcome

The court partially granted the amended claim. It pronounced the rescission of the contract between the plaintiffs and Groupe Lavabac inc. (Devis No. 0842), and ordered Lavabac to reimburse the plaintiffs the sum of $21,500, together with legal interest and the additional indemnity under Article 1619 C.c.Q., running from September 1, 2021. Consistent with the restitution effects of rescission under Article 1606(1) C.c.Q., the court also ordered the plaintiffs to return the SanRemo solarium structure to Lavabac — at Lavabac's expense, pursuant to Article 1705 C.c.Q. — upon payment of the full condemnation amount (including capital, interest, additional indemnity, and legal costs) and upon written confirmation from Lavabac of its intention to recover the structure within 30 days of the judgment. The claim against Mr. Vincent L. Bokata personally was dismissed, without costs, in the court's discretion under Article 340 C.p.c. The plaintiffs, Jean-Claude Lévesque and Alexandra Louis-Jean, were the successful parties, with the total monetary condemnation ordered against Groupe Lavabac inc. standing at $21,500, plus interest, additional indemnity, and legal costs.