Validity of a unilateral amendment clause in a consumer contract

You see that the real estate market is booming, and you want to take advantage of this opportunity to sell your home.
In order to bring the kitchen up to date and to make the most of the sale, you hire the services of a construction contractor, who tells you that the work will last one month.

However, while the latter have not been completed, the said contractor informs you that he alone decides to make a modification to the contract binding you both as to its duration. You do not agree, and you question the legality of this amendment, knowing that it had provided, in a unilateral modification clause, in the service contract, that the duration of the work could be subject to change.

In this article, we analyze the legality of a unilateral modification clause in a consumer contract. To this end, it is useful to first address the general terms and conditions set out in section 11.2 of the Consumer Protection Act (hereinafter ” CPA “) for such a clause to be valid, and then to qualify the nature of the contract in order to determine whether specific conditions, in addition to the general terms and conditions, apply.

The notions of merchant and consumer

Before even starting an analysis of your file, it is important to determine whether you are a consumer and whether the person you are accusing of the unilateral amendment is a merchant within the meaning of the Consumer Protection Act in order to determine whether the Act applies. If this is the case, you, as a consumer, will be able to benefit from section 11.2 of the CPA and the protections that flow from it, which will be discussed in this section.

The general conditions to which the merchant is bound

A reading of the wording of section 11.2 of the CPA already makes it clear that a stipulation to the effect that the merchant may insert a unilateral modification clause in the contract between him and the consumer is, in principle, not permitted.
The terms and conditions set out in the same article must therefore be met for the amending clause in question to be legal; If they are not, the clause will be, on the contrary, illegal, and the contractor will consequently not be able to invoke it and make any modification such as to the duration of the renovation work.

Prescribing the elements of the contract that can be unilaterally modified

The clause to the effect that the merchant may unilaterally make changes to the contract you initially entered into must provide for the elements of the contract to which the modification may relate.

In this case, the merchant must have foreseen, in the unilateral modification clause, that the duration of the renovation work could be subject to change. Moreover, in quoting the authors Baudouin, Jobin and Vézina, the Court, in the Vidéotron decision , recalled that such a unilateral amendment could also be subject to the general rules enacted in the Civil Code of Québec, which provide that the purpose of the benefit must be determined or determinable.

By determinable, it is summarily equivalent to saying, in this case, that the contractor is required, in the clause forming part of the contract initially uniting you, to set out objective indicia that make it possible to roughly anticipate the changes in question that could be made as well as their extent.The Civil Code of Québec is therefore more demanding in this regard than the Consumer Protection Act.

The written review by the merchant

Prior to the amendment coming into force, you must be given written notice at least 30 days before that date. It should also be noted that this notice must be written clearly and legibly and must contain the new or amended clause, its previous version, its effective date and your rights, which are discussed below in this capsule.

It is also essential to qualify the contract between you and the merchant, as certain additional conditions apply for certain types of contracts.

Additional terms regarding the service contract

If the service contract is for a fixed term

A fixed-term contract is a contract in which the time allocated to perform the service(s) in question (the renovation of the kitchen in this case) has been fixed.

For example, the contract between you and the construction contractor could provide that the latter has one month to carry out the kitchen renovation work. If this is the case, the stipulation in question may not under any circumstances relate to an element deemed essential to the contract, such as the nature of the service (the renovation of the kitchen in this case), the price of this service or the duration of the contract.

This suggests that, in your situation, since your contract is a fixed-term service contract, the amending clause to the effect that the duration of the work may be extended will be deemed invalid by the court and that, consequently, the contractor will not be able to rely on it.

If the service contract is for an indefinite period

The limitations that apply in the case of a fixed-term service contract do not apply to a service contract that is for an indefinite period.

It will therefore be possible that, in the contract binding you and the contractor, a unilateral modification clause will be invoked against you by the latter, even though it concerns an essential element of the contract, in this case the duration of the renovation work.

Refusal of the unilateral modification clause

If the clause as well as the modification proposed by the merchant are deemed valid, you will not be able to refuse the modification while maintaining the contract.

If they are deemed valid and the modification has the effect of increasing your obligation or reducing that of the merchant, you may nevertheless terminate or terminate the contract depending on whether it is a contract of successive performance or not, without cost, penalty or compensation of any kind.

In the example above, you can therefore notify the contractor that you are going to terminate the contract because of non-compliance with the terms and conditions prescribed by section 11.2 CPA. However, you must send him a notice to this effect within 30 days of the coming into force of the modification that the said contractor wanted to make.

Changing the price of a vehicle

If you were in a situation where, for example, after signing a purchase contract for the acquisition of a vehicle, which included a unilateral modification clause as to its price, the dealer unilaterally decided to make a price change of the vehicle, which constitutes, as a reminder, an essential element of the contract, it would be possible for you to contest this amendment on the basis of the Consumer Protection Act. You could in fact allege that, since it is not a service contract of indefinite duration, but rather a fixed-term service contract, the clause providing for the possibility for the merchant to make a unilateral modification regarding the price would not be valid, so that the modification would not be valid either.

It is therefore possible that a merchant imposing a modification on you under an amending clause is not entitled to do so given what is provided for in the law. This was the conclusion reached by the court in Feizollahi, where Ms. Feizollahi had retained the services of a contractor to carry out exterior landscaping work on the grounds of her house. The contractor Aménagement Plus had “several times unilaterally modified the conditions of the contract, without respecting the terms and conditions set out in this article.”

That being said, if you believe that you have been wronged by any merchant and that you have suffered prejudice, do not hesitate to contact our firm to find out more about your rights in relation to your particular situation. Remember that each case is a case in point and that the assessment of the case must be carried out taking into account all the relevant elements. Please also note that if you are several victims, we may also take a class action.