What is a Notice of Claim (“mise en demeure”)?
How does it work in Quebec?
What are the essential elements you should know!
In this article, we will break down the legal definition of Notice of Claim so you know all there is to know about it!
Keep reading as we have gathered exactly the information that you need!
Let’s dig into our Quebec legal knowledge!
Are you ready?
Let’s get started!
What Is A Notice of Claim
The objective of a notice of claim is to legally “notify” someone or a company to cease certain behaviour or conduct failure of which a legal action may be taken before the courts.
Typically, the notice will describe the factual circumstances of the dispute or purpose of the legal notice, an outline of the request or how the legal issue may be resolved, along with a notification that if the issue is not resolved, a lawsuit may be filed before the court.
For example, John and Mary have entered into a contract where John must provide a service and Mary must pay for the services.
If John renders the services and Mary fails to pay, John may send a lawyer’s letter or written notice to Mary advising her that the work has been done and she is in default of making the proper payment.
Notice of Claim Legal Definition
A notice of claim (mise en demeure) is a written notice intended to inform an individual or a company of an issue, demand that the issue be rectified in a manner suitable to the demanding party, and advise the recipient that if the matter is not resolved, legal action may be taken in court.
In its most simple terms, a notice of claim is a “letter” or a “written notification” where the notifying party requests that the notified party perform or refrain from performing certain things.
Mandatory Nature of Written Notices
In accordance with Quebec laws, in most cases, a written notice is not mandatory before filing a lawsuit.
Even though it’s not mandatory, it’s generally a good idea to send a breaching party or an at-fault party a written notification before filing a lawsuit.
Giving a “final” chance to the breaching party to cure the default will certainly spare lots of headache in court and legal costs to all parties.
However, in some cases, the law will require that the plaintiff send a notice of claim letter prior to instituting a lawsuit.
For instance, when a seller of an immovable property wishes to cancel the sale transaction, he or she must send a written notice to the buyer before filing a lawsuit.
Another example is with respect to latent defects.
If a buyer of a home or real estate property discovers a latent defect, he or she must notify the prior owner of the defect.
If you are faced with a legal issue, it’s best to consult with a qualified attorney who can guide you as to the mandatory nature of a written notice.
Content of a Legal Notice
A legal notice will generally contain the following elements:
- Name and address of the sending party
- Name and address of receiving party
- The method of delivery (registered mail, bailiff, email, in-person, or other)
- “Without Prejudice” notice (“sous toutes réserves” in French)
- Descriptive title
- Description of the legal issue
- The sending party’s demand
- Deadline given to the receiving party to comply with the request
- Receiving party’s contact information
It’s good practice to keep the notice short, concise and to the point as the objective of the letter is to notify of a legal issue not to tell your story.
You should make a reasonable demand that you can potentially justify and substantiate in court.
It’s worth noting that you do not need to have a lawyer or notary prepare a notice of demand for you.
Anyone can send another party a notice having the same legal effect.
The reason why many opt to have a letter sent by a lawyer is that an attorney can formulate the notice specifically to fit the requirements of the law, make a clear and unambiguous demand, and it allows the other party to feel the seriousness of the matter.
Notice Under The Civil Code of Quebec
Furthermore, the law permits the creditor of an obligation to:
- Force the specific performance of debtor’s obligation (to have the person execute its obligation)
- Obtain the resolution or resiliation of a contract (cancellation of contract)
- To reduce its correlative obligations
- Take any other measures provided by law
With the ‘mise en demeure’, the debtor of an obligation or the at-fault party is requested to either execute its obligations, is informed that the non-breaching party will cancel its contract or reduce its own obligations, or request any other remedies in law.
Purpose of “Mise en demeure”
The objective of a notice of demand is to encourage an out-of-court settlement of the legal issue, set in time the legal notification of the debtor’s breach, and expose the manner the creditor of the obligation can consider settling the dispute.
Although in some instances a civil lawsuit may need to be filed, there are instances when a possible litigation can be avoided merely with the sending of a written notification.
When a notice is sent, the receiving party can appreciate that the issue is more serious and should take more meaningful measures to deal with it.
Notice By Operation of The Law
In some cases, the Quebec Civil Code provides that, by operation of the law, a person or company may be automatically put on legal notice.
In other words, when an individual or company commits certain acts or wrongdoing, the law will consider that it is legally “on notice”.
For example, here are some instances when a debtor of an obligation may be legally on notice without the need to send a written notice or letter:
- When a contract defines that a particular circumstance is considered an automatic default (like a default on a loan payment);
- A person violates an undertaking (such as a non-solicitation undertaking)
- There’s an urgency for another to act (immediate and urgent repairs to property)
- The debtor of the obligation has expressly refused to act
Notice of Claim Example
There are many reasons why a written notice is sent to another company or party.
Here is a list of examples when a written notice may be sent:
- Demand payment from another party
- Request that a person cease violating the terms of a contract
- Request that a person finish an incomplete job
- Advise another party of an event of default
- Seek compensation for damages suffered
Written Notice In Quebec Takeaways
So what is the legal definition of Notice of Claim?
Let’s look at a summary of our findings.
Notice of Claim (Quebec)
If you enjoyed this article on Notice of Claim, we recommend you look into the following legal terms and concepts. Enjoy!