As September slips away, and Montreal slips into Red Alert or whatever it is called, I am cheered to announce that the RDG turns 25 today!

My birthday present is therefore on time but belated in another sense. I don’t believe there was any posting to the RDG about the decision of the Supreme Court of Canada in Montréal (Ville) v. Octane Stratégie inc., 2019 SCC 57, http://canlii.ca/t/j3hc5 , decided last December. This case raised a familiar problem of someone trying to make a contract with a municipality without following the correct procedures. The municipality being my own, Montreal, the case is governed by Quebec civil law. The operative provision in our code (art. 1491) is derived from the condictio indebiti, and it requires proof of mistake or compulsion. Cognate provisions are found in the codes of systems influenced by the French codification of 1804.

The cases raises the issue that often arises: whether, in the absence of a contract, a claim for the value of the services rendered can be allowed or rather would undermine the mandatory procedures that were not correctly followed. The majority allowed the claim. One important holding (which was unanimous) is that the performance of services can constitute ‘payment’ within our system, and thus can be an undue payment. This is because the general theory of obligations includes a definition of ‘payment’ that includes the performance of any obligation (we also use the terms ‘debtor’ and ‘creditor’ for all obligations, not just obligations to pay money). This had been the majority view among authors, but there was some uncertainty because the codal provisions on restitution (arts 1699-1707, which are linked to art. 1491 by cross-reference) are worded in terms of the recovery of objects of property rights or their value.

The majority also hold that a careless error is still an error. In relation to contracts, our code provides (art. 1400) that an inexcusable error does not constitute a vice of consent, and some authors had argued by analogy that inexcusable error should not found a claim under art. 1491.

There is a dissenting judgment by Côté and Brown JJ, joined by Moldaver J. Some members will know that the first two have become the Court’s Great Dissenters since their appointment five years ago. They hold that since the plaintiff knew it did not have a valid contract, it was not mistaken. On this crucial point, the judges seem ultimately to disagree about what facts were established by the evidence; there may additionally be a disagreement about who has to prove what, as the majority implies that on the proof of the absence of a legal obligation, it falls on the payee to prove that the payor had a liberal (donative) intention ([70]). The dissenters note ([158]) that the absence of a liberal intention is not the same as a mistake—a point familiar to most members of this list.

Hoping that everyone is managing in the circumstances,

Lionel