Executive Summary: Key Legal and Evidentiary Issues

• The case turns on whether flat-rate cancellation fees under two service contracts are enforceable as penalty clauses.
   
• Conflicting calendars created a dispute over which planned work dates were contractually binding.
   
• An admission by the clinic's general manager that she signed the contracts without reading them proved central to the outcome.
   
• Written contractual terms were held to take precedence over contradicting oral testimony.
   
• Uncontradicted testimony from the claiming party prevailed where the opposing witness failed to appear.
   
• Consent requirements under the Civil Code of Québec barred a unilateral rate increase absent prior notice.
   

Facts of the case

Dr. Mohammed Tagemouati, an anesthesiologist, provided services to Centre Chirurgical de l'Est Inc. ("CCDE"), a surgical clinic. Two contracts governed his work for November and December 2024. The dispute arose from two issues: whether Dr. Tagemouati was owed flat-rate fees for three planned working days that CCDE cancelled, and how much he was owed for services actually rendered on December 11, 2024, where the parties disagreed on both the hours worked and the applicable hourly rate. CCDE had notified Dr. Tagemouati that November 26 and December 2, 2024 were cancelled, but a further date, November 20, 2024, was also in dispute. Separately, CCDE had taken over responsibility for the fee dispute involving Dr. Guertin, a plastic surgeon who had originally retained Dr. Tagemouati and negotiated his hourly rate for the December 11 work.

Policy and legislative provisions at issue

The contracts contained a clause obligating the clinic to pay Dr. Tagemouati a flat sum of $2,000 for each planned day cancelled by either the clinic or the CIUSSS scheduled to operate that day, with a reciprocal $3,000 obligation on Dr. Tagemouati if he cancelled without providing a substitute, absent force majeure. The court characterized both provisions as penalty clauses under article 1622 of the Civil Code of Québec, meaning the parties had pre-estimated the damages payable for non-performance. Article 1401 CCQ, concerning inexcusable error, was applied to reject the clinic's claim that the fee clause was included in the contracts by mistake. Article 2863 CCQ, which gives precedence to written instruments over contradicting testimony, determined which cancellation dates were binding. On the second issue, articles 2098 and 2106 CCQ, governing the mandate relationship, meant Dr. Tagemouati could not unilaterally raise his hourly rate without Dr. Guertin's prior knowledge and consent.

Reasoning and analysis

The court found that Dr. Tagemouati's services had genuinely been booked for November 26 and December 2, 2024, based on the contracts and the calendars the clinic sent him, which took precedence over internal clinic calendars not communicated to him and listing multiple doctors for the same day. CCDE's general manager claimed the flat-fee clause should not have appeared in the contracts, but she had produced a template containing it and had signed the contracts before they were sent to Dr. Tagemouati; the court treated her failure to read the contracts as an inexcusable error that could not relieve CCDE of its obligations. November 20, however, was excluded because it did not appear on the November contract, which — though dated earlier — was signed after the calendar removing that date had already been sent to Dr. Tagemouati; the written contract prevailed over contrary testimony. The court also rejected CCDE's argument that Dr. Tagemouati should have been able to fill the cancelled days himself, holding that the reciprocal fee clauses were valid penalty clauses regardless of mitigation opportunities. On the December 11 dispute, Dr. Guertin did not testify, leaving Dr. Tagemouati's claim of 11.75 hours worked uncontradicted and therefore controlling over CCDE's admitted 9.02 hours, which was based on a different, unagreed calculation method. However, Dr. Tagemouati's proposed hourly rate increase, tied to a professional association's recommended rate, failed because Dr. Guertin was not a member of that association and had never consented to or been informed of the increase before the work was performed.

Ruling and overall outcome

The court ruled substantially in favour of Dr. Tagemouati. It awarded him $4,000 for the two validly cancelled planned days (November 26 and December 2, 2024), denying compensation for November 20. For the December 11, 2024 services, it awarded $5,875.00, based on 11.75 hours at the original $500 hourly rate rather than Dr. Tagemouati's proposed $550 rate. In total, the court ordered Centre Chirurgical de l'Est Inc. to pay Mohammed Tagemouati $9,875, with legal interest and the additional indemnity under article 1619 CCQ running from June 12, 2025, plus court costs of $237. The court also ordered that Exhibit D-9 be sealed to protect information covered by medical professional secrecy.