Executive Summary: Key Legal and Evidentiary Issues

• Retraction of a default judgment required the Tribunal to assess whether the Constructeur's failure to file a timely contestation stemmed from excusable error rather than negligence.
   
• Solicitor error in failing to file a defence was found sufficient cause under article 346 C.C.P. because the client itself had not been negligent.
   
• Establishing the underlying contract turned on circumstantial evidence rather than any signed agreement, quote, or purchase order.
   
• Absence of a key witness, the Constructeur's former project manager, supported an adverse inference under the rule from Lévesque c. Comeau.
   
• Invoicing conduct — including the Constructeur re-billing an identical amount to the homeowners — proved central to inferring contractual consent.
   
• Testimony from the homeowner corroborated the supplier's account of how procurement responsibilities were divided on the job site.
   

Facts of the case

Couvre Plancher Granby inc., operating as Flor Deco, sought $11,259.26 from Habitations Lévesque inc. for flooring materials and related supplies delivered during construction of a residence for homeowners Samuel Guertin and Vicky Arès in Granby, Québec. Flor Deco maintained it sold and delivered the materials under an agreement with the Constructeur and was never paid. The Constructeur denied ever contracting with Flor Deco, asserting the homeowners themselves selected and purchased the materials directly.

A default judgment issued against the Constructeur on November 12, 2024. The Constructeur brought a motion in retraction, explaining that it had given the file to its lawyer on October 10, 2024, expecting a contestation to be filed, but the lawyer's assistant never filed it. The Constructeur said it only learned of the default judgment around November 20, 2024. On November 22, 2024, a different judge found the grounds for retraction sufficient and ordered a combined hearing on both the retraction motion and the merits.

Reasoning and analysis

The Tribunal addressed the retraction motion first. It accepted the Constructeur's uncontradicted testimony that the failure to file a defence traced back to an oversight by counsel's office rather than to the Constructeur's own inaction, consistent with case law holding that a solicitor's error can amount to sufficient cause under article 346 C.C.P. where the client itself was not negligent. The Tribunal also found the Constructeur's proposed defence — that it never contracted with Flor Deco and that the homeowners were the true purchasers — serious enough to warrant a hearing on the merits. It therefore granted the retraction and reopened the original claim.

Turning to the merits, the Tribunal weighed the evidence and rejected the Constructeur's defence. Flor Deco's representative, Hugues Masseau, testified that materials were invoiced to the Constructeur because it was acting as the responsible contractor and that this matched their established way of doing business. Homeowner Samuel Guertin testified that his construction contract allocated a budget for flooring and ceramic materials, with the homeowners choosing products while the Constructeur handled procurement; he said the Constructeur's own representatives, including then-project manager Gabriel Metcalf, determined technical components like membranes, heating cables, and thermostats. The Constructeur did not call Metcalf to testify despite his direct involvement in the disputed exchanges, and the Tribunal drew an adverse inference from that absence, citing the Supreme Court's decision in Lévesque c. Comeau.

Documentary evidence reinforced this conclusion. Flor Deco's April 14, 2022 invoice was addressed to the Constructeur, which acknowledged receiving it and did not dispute liability until the litigation began. Separately, the Constructeur's own invoice to the homeowners included a $9,792.79 line item matching Flor Deco's pre-tax charge, and Guertin testified he paid that amount to the Constructeur. The Tribunal found this re-invoicing pattern more consistent with a contractor procuring materials for its own contractual obligations than with a supplier dealing directly with homeowners. A later settlement and release between the Constructeur and the homeowners did not specifically address Flor Deco's claim and was treated only as contextual background.

While no signed quote, purchase order, or written contract existed, the Tribunal held that under article 1385 C.C.Q. a contract may form through mere exchange of consent, and that consent may be inferred from serious, precise, and concordant presumptions of fact. It found the required elements present here.

Ruling and overall outcome

The Tribunal granted the Constructeur's motion in retraction, without costs on that point, and set aside the November 12, 2024 default judgment. Ruling on the merits, the Tribunal found in favour of Flor Deco, concluding it had proven both the contractual relationship with the Constructeur and delivery of the materials. Habitations Lévesque inc. was ordered to pay Couvre Plancher Granby inc. $11,259.26, plus interest at the legal rate and the additional indemnity under article 1619 C.C.Q. running from September 30, 2022, together with legal costs of $364.00.