On July 15, 2022, Justice François Lebel of the Court of Québec rendered a decision1 confirming that, in the case of the sale of immovable property, a clear and unambiguous exclusion clause, whereby the warranty is waived at the buyer’s risk, results in a break in the chain of title preventing the buyer from taking any legal action under such warranty against the seller and previous sellers. Justice Lebel thus declared the originating application against the defendants Marshall and Bergeron inadmissible and dismissed the call in warranty. This decision is consistent with the recent decision of the Court of Appeal of Quebec in Blais,2 rendered in May 2022, which clarified the state of the law on the consequence of waiving a legal warranty where successive sales are involved. The facts In March 2009, the defendant Bergeron sold an income property (hereinafter the “Property”) to the defendants, the Marshalls, with a legal warranty of quality. In May 2012, the Marshalls in turn sold the Property to the defendants Hamel and Drouin, still with a legal warranty of quality. In December 2016, the defendants Hamel and Drouin resold the Property to the plaintiff, but this time [translation] “without legal warranty of quality, at the buyer’s risk, but with warranty of ownership”. In the fall of 2020, the plaintiff had work done to repair the drain tile system. It was at that point that it discovered the presence of petroleum hydrocarbons in the soil under the Property’s foundation, rendering the soil unsuitable for residential use. According to an expert report, the alleged contamination stemmed from a heating oil tank once located in a shed behind the Property. The tank was apparently removed before the sale in December 2016. The plaintiff was seeking a reduction in the sale price and to have the defendants Hamel and Drouin, as well as the two previous sellers, the defendants Marshall and Bergeron, held solidarily liable. The plaintiff referred to the warranty of quality provided for in articles 1726 and following of the Civil Code of Québec (C.C.Q.) and the warranty against public law restrictions provided for in article 1725 C.C.Q. The plaintiff also claimed to be the victim of fraud on the part of the defendants Hamel and Drouin. After being called in warranty by the defendants Hamel and Drouin, the Marshalls moved to dismiss the substantive claim and the action in warranty. They claimed that the sale of the Property between the defendants Drouin and Hamel and the plaintiff was made at the buyer’s risk and that such a clause in a subsequent deed of sale irrevocably breaks the chain of title, thereby preventing the plaintiff from taking any legal action against the seller and previous sellers. The law and the importance of a clear clause According to article 1442 C.C.Q., which codifies the principles arising from the decision in Kravitz,3 buyers may seek to have the sellers previous to their own seller held liable. However, for such an action to be deemed valid, it must be established that: The defect existed at the time that the previous sellers owned the immovable; and The right to the legal warranty was transferred to the plaintiff through subsequent sales. Indeed, the buyer of an immovable may take legal action directly against a previous seller in accordance with article 1442 C.C.Q. However, this article presupposes that the right to the legal warranty was passed on from one owner to the next, right down to the current buyer seeking to file a claim for latent defects. In other words, the legal warranty must have been transferred to each owner through the chain of title. In Blais, the Court of Appeal confirmed that an unambiguous warranty exclusion clause results in a break in the chain of title. Such a clause prevents the buyer of an immovable from taking legal action directly against the former owners who sold the immovable with a legal warranty. Given the decision in Blais, it is now clear that such a clause waiving the legal warranty closes the door to any direct recourse against a seller’s predecessors, even if such predecessors sold the immovable with a legal warranty.4 In these circumstances, a buyer who acquires an immovable at their own risk will be deprived of their right to take legal action directly against the previous sellers, insofar as the warranty exclusion clause in the deed of sale is clear and unambiguous. In this case, Justice Lebel considered that the wording of the warranty exclusion clause in the deed of sale, which was binding on the plaintiff, was clear and unambiguous, and that a sale at the buyer’s “risk” excludes both the warranty of quality and the warranty of ownership, which covers the public law restrictions of article 1725 C.C.Q. Justice Lebel indicated that there was a break in the chain of title resulting from the sale at the buyer’s risk and that the plaintiff could not claim that it was still entitled to take legal action directly against any sellers other than the defendants Hamel and Drouin. He therefore ruled in favour of the defendants Marshall and Bergeron and declared the originating application against them inadmissible. Key takeaways A warranty exclusion clause in a deed of sale will only be deemed valid if it is clear and unambiguous. The mention that a sale is made “at the buyer’s risk” completely eliminates the warranty of quality provided for in article 1726 C.C.Q. and the warranty of ownership provided for in article 1725 C.C.Q. A deed of sale containing a valid warranty exclusion clause AND a mention that the sale is made “at the buyer’s risk” precludes any recourse by the buyer against the seller, but also against previous sellers. With the current state of the Quebec real estate market, the decision in Hamel, which ties in with the Court of Appeal’s teachings in Blais, certainly clarifies how case law established in recent years should be applied, in particular as concerns the effect of a warranty exclusion clause on successive sales. The members of our Litigation and Dispute Resolution group are available to advise you and answer your questions. 9348-4376 Québec inc. c. Hamel, 2022 QCCQ 5217 Blais c. Laforce, 2022 QCCA 858. General Motors Products of Canada Ltd v. Kravitz,  1 S.C.R. 790 Supra note 1, paras. 6 and 8.
- Québec, 2014
Anthonie Vézina-Crawford is a member of the Litigation and Conflict Resolution group and practises primarily in civil and commercial litigation.
She specializes in civil liability, insurance, breach of contract, shareholder disputes and urgent proceedings, such as obtaining injunction orders and safeguard measures.
Ms. Vézina-Crawford regularly pleads before the courts, but she prioritizes negotiation and alternative dispute resolution methods.
She has also developed expertise in family and succession matters, her practice covering in particular the drafting of agreements, as well as litigation and out-of-court settlements in cases involving divorce and separation, child custody and access rights, establishment of support payments, partition of property and filiation.
Ms. Vézina-Crawford joined the Québec City office after articling in 2014. Upon completing her law degree, Ms. Vézina-Crawford also obtained a bachelor’s degree in Kinesiology, a program of the Faculty of Medicine of Université Laval.
- Representation of a college institution as a defendant in a lawsuit involving fundamental rights issues
- Representation of companies in disputes involving government institutions
- Representation of insurers in various disputes with policyholders on the basis of non-coverage
- Representation of individuals in human rights cases involving requests for medical and psychosocial assessments
- Representation of individuals in various high conflict family and succession law matters;
- A. Vézina-Crawford and V. Savoie, “ Le jugement ”, LegisPratique, Procédures en matières familiales, Montréal, LexisNexis Canada, 2016
- A. Vézina-Crawford, “ La fiducie en droit familial ”, Nouvelles Économiques, May 2016
- A. Vézina-Crawford, “ Commentaire sur la décision D.(A.) c. M.(G.), sub nom. Droit de la famille – 16244 – Mariage religieux contre mariage civil : y a-t-il vraiment une distinction à faire ? ”, Repères, April 2016, Droit civil en ligne (DCL), EYB2016REP1912
- A. Vézina-Crawford, “ Commentaire sur la décision Eaves (Succession de) c. Gestion Cianni inc. – La déclaration de transmission d’un immeuble de la succession : l’importance de la publier en temps opportun ! ”, Repères, September 2016, Droit Civil en ligne (DCL), EYB2016REP20
- A. Vézina-Crawford, “ Commentaire sur la décision Péladeau c. Centre de réadaptation Nouveau Départ inc. (Clinique Nouveau Départ) – La tutelle au majeur et la stabilité des contrats ! ”, Repères, February 2017, Droit civil en ligne (DCL), EYB2017REP2133
- Speaker at the Association de planification fiscale et financière (APFF), “ Les méthodes alternatives de cotisation ”, Québec City, January 21, 2016
- Speaker for the YWCA, “Les droits et obligations des conjoints de faits ”, Québec City, April 17, 2015
- Speaker for Desjardins, “ Successions et testaments : un survol des règles de bases ”, Training given to lawyers and notaries of Desjardins, Québec City, March 18, 2015
- Participation in the drafting of a talk for the APFF as part of the seminar on Trusts, “L’administration fiduciaire n’est pas une mince affaire ”, Montréal, February 6, 2014
- Participation in the drafting of a talk for the APFF as part of the Estate Planning Seminar, "Jurisprudence récente : les successions sous la loupe d’une équipe multidisciplinaire ”, Montréal, May 22, 2013
- LL.L., Université Laval, 2013
- B.Sc. (kinesiology), Université Laval, 2013
Boards and Professional Affiliations
- Member of the board of directors of the Centre de thérapie CASA
- Member of the Association des familialistes de Québec (Barreau du Québec)
Although a trust is a valuable financial, tax and estate planning tool, does it allow one to “shelter” some assets from the public order rules which apply in the context of family law? What is a trust? A trust is a legal disposition which allows a person to transfer the ownership of one or more of his or her assets to a trust for the trust to administer such assets for the benefit of one or more beneficiaries. The transferred assets therefore constitute an autonomous and distinct patrimony from that of the transferor. Although there are many types of trusts, the trust created for the purpose of protecting assets against future creditors is called an asset protection trust. However, the transfer of some assets forming part of the family patrimony or the partnership of acquests into a trust during the marriage or civil union does not automatically remove them from the application of the rules found in Civil Code of Québec. The mandatory effects of marriage or civil union… you won’t escape! As for the assets transferred to a corporation, those transferred into a trust are no longer part of the personal patrimony of the transferor. When the right to partition of the family patrimony is acquired, for example, on the occasion of a divorce, can a spouse still claim his or her right to half of the net value of the family residence, the ownership of which has been transferred to the trust? What happens to an asset which, had it not been for the transfer to a trust, would have been included in the family patrimony or the partnership of acquests? Family law provides many binding effects of marriage, such as the setting up, as an effect of marriage, of a family patrimony composed of some assets belonging to either of the spouses, namely, the family residences or the rights which confer use of them, the movable property with which they are furnished or decorated and the motor vehicles used for family travel. Even if, in practice, a trust may be used as a tool to mask the reality of the assets and circumvent the family law rules, the courts may rely on some legal mechanisms to prevent this attempt to avoid the rules designed to protect vulnerable spouses from being successful. The courts may lift the fiduciary veil, that is, consider that the patrimony of the trust is not separate from that of the transferor of the assets. This results in bringing back into the patrimony of the transferor spouse assets which would have otherwise been included in the family patrimony or the partnership of acquests had it not been for them being transferred to the trust. This procedure would then allow the partition of such assets between the spouses. The courts will give a great deal of importance to the way in which the assets transferred to the trust have been used during the marriage, the way in which the parties acted, both when the trust was created and during its existence and to the agreements entered into between them. Lessons to be learned? It must be remembered that it is the nature of the evidence which will allow the court to determine whether the spouse has created the trust for the purpose of escaping the mandatory effects of the marriage or civil union. When creating a trust, it would be desirable to ask for a tax memorandum explaining the context and the purpose sought by creating the trust, for example, an estate freeze. The preamble of the trust deed also becomes a precious tool for analyzing the intent of the parties at the time the trust was created. Although a trust may be an interesting mechanism, particularly for protecting assets, it must be noted that it must be used in compliance with family law public order rules.
Marie Cossette, a partner at the firm and one of the leaders of the first cohort in the L’effet A initiative in Quebec City, has set up a challenge for participants who have chosen her as a leader. She has recruited participants from both the culturaland corporate world thus creating interesting networking opportunities. Four Lavery lawyers (Paméla Kelly-Nadeau, Chloé Fauchon,Sarah Leclerc and Anthonie Vézina-Crawford) have taken the Défi 100 jours L’effet A (link to French-only website): a unique professional training program with an innovative approach that identifies talent and encourages women to adopt a more ambitious attitude that will help boost their careers. The experience is based on three pillars: 1) inspiration- the implication of well-known leaders and coaches, 2) action- by taking up challenges and completing exercises and 3) sharing,-through interaction with women from all professional spheres.
Me Anthonie Vézina-Crawford, a lawyer from Lavery’s Family, Personal, and Estate Law group, discussed the rules governing the dissolution of a matrimonial regime as well as the partition of the family patrimony and wills all in the event of a death at a conference held on September 15th on settling estates (Colloque sur le règlement des successions) organized by the Association de Planification Fiscale et Financière in Montreal.
On June 17, 2016, Lavery – Québec’s new generation invited its counterparts at Ernst & Young – Québec to a unique networking activity entitled “Québec 1608”, which was held at Station touristique Duchesnay. Instead of a traditional cocktail, Anthonie Vézina-Crawford and Paméla Kelly-Nadeau, two lawyers from Lavery, organized a friendly competition that drew on teamwork skills and mental and physical abilities. The accountants and lawyers pretended to be pioneers and faced a series of tasks with the goal to build a pioneer village. They built a church, planted a vegetable garden, ensured the transportation of water from a well, and participated in a giant vegetable hunt. Fun and team spirit were at the heart of this truly original activity, which proved to be a great success!
On June 2, 2016, Élisabeth Pinard, partner at Lavery who coordinates the firm's Family law, personal law, and estate law group and Anthonie Vézina-Crawford, lawyer in the same field, participated in a conference on the estate settlement organized by the "Association de Planification Fiscale et Financière" (APFF). Both of them acted as speakers during a presentation entitled "Règles gouvernant la dissolution du régime matrimonial, le partage du patrimoine familial et le testament dans un contexte de décès" given in French only.