2023 QCCQ 3544, 2023 QCCQ 3544

Grant c. Hopfengartner 2023 QCCQ 3544 JG2338 COUR OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF SALABERRY-DE-VALLEYFIELD « Civil Chamber » No.: 760-22-012323-211 DATE : June 6, 2023 ______________________________________________________________________ PRESIDING: THE HONOURABLE CÉLINE GERVAIS, J.C.Q. ______________________________________________________________________ GARY GRANT and SHIRLEY COLLIER Plaintiffs v.

FRITZ HOPFENGARTNER Defendant and MARLÈNE VIGNEAULT Impleaded party ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr. Grant and Mrs. Collier are seeking the homologation of a transaction with Mr. Hopfengartner, concluded after the transmission of a formal notice alleging the presence of hidden defects in the house they purchased from Mr. Hopfengartner and Mrs. Marlène Vigneault. [ 2 ] On December 16, 2020 , Mr. Grant and Mrs. Collier purchased Mr. Hopfengartner and Mrs.

Vigneault's house located on [Street A] in Vaudreuil-Dorion for $435,000. [ 3 ] Mr. Hopfengartner and Mrs. Vigneault left Quebec to settle in British Columbia. They later separated. [ 4 ] The following spring, Mr. Grant and Mrs. Collier noticed a slope inside the building. Solroc is mandated to verify the cause; it concludes that the building is sinking. The cost of repairs is estimated at $81,000 plus taxes. [ 5 ] A letter of denunciation was sent to Mr. Hopfengartner and Mrs. Vigneault on June 17, 2021 , to which Solroc's report (Exhibit P-2) was attached. [ 6 ] A discussion took place between Mr.

Hopfengartner and Mr. Grant upon receipt of the letter. Mr. Hopfengartner explained that he did not have the financial means to pay the sum of $81,000 but offers to pay half, $40,000. This offer was accepted by Mr. Grant and Mrs. Collier. [ 7 ] The next day, Mr. Hopfengartner informed Mr. Grant that he intended to sign the Transaction Release and Discharge document sent to him by Mr. Grant’s lawyer (email, Exhibit P-4). On June 22, 2021 , Mr.

Hopfengartner told him that the funds would be available in a few days but added this: « since my separated wife Marlene is part of that process, I have to straighten out things with her. »

[ 8 ] On June 27, 2021 , Mr. Hopfengartner confirmed by email that he was ready to settle but that it was impossible for him to complete the transaction without Mrs. Vigneault's consent and signature. The latter's lawyer intervened and opposed the settlement, even if it had to be assumed entirely by Mr. Hopfengartner in view of the divorce proceedings between them (Exhibit P-5). [ 9 ] The Tribunal understands that she was arguing that the payment of such an amount would affect the couple's family patrimony. [ 10 ] The transaction document, Exhibit P-3, was signed by Mr. Grant and Mrs. Collier.

It specifies the signatures for Mr. Hopfengartner and Mrs. Vigneault. They did not sign it, hence the filing of this application on July 19, 2021. [ 11 ] Mrs. Vigneault is an impleaded party; she did not file any proceedings in this case and made no representation. [ 12 ] On April 12, 2022 , Mr. Grant and Mrs. Collier filed an application before the Small Claims Division claiming the maximum amount of $15,000 from Mr. Hopfengartner and Mrs. Vigneault. They are also suing their pre-purchase inspector. [ 13 ] Mr. Hopfengartner's lawyer argues that there was no settlement because of Mrs.

Vigneault's refusal to participate. He argues that the transaction involved the four parties and absolutely had to include Mrs. Vigneault. [ 14 ] He also argues that the filing of the Small Claims Application should be interpreted as an acknowledgement of the fact that there was no settlement between the parties. ANALYSIS AND DECISION: [ 15 ]

Section 2631 of the Civil Code of Québec defines a transaction as the contract by which the parties prevent a future contestation (...) by way of mutual concessions or reservations. It is indivisible as to its subject. [ 16 ] Does the fact that Mrs. Vigneault refused to participate in the settlement mean that the transaction cannot be homologated in respect to Mr. Hopfengartner? [ 17 ] The Tribunal dismisses the argument that the filing of an application in the Small Claims Division constitutes an acknowledgement of the non-existence of a settlement. As argued by counsel for Mr. Grant and Mrs.

Collier, this was an economic decision and the Tribunal does not see the filing of that demand, subsequent to the Application for Homologation, as a waiver of their rights. [ 18 ] The party alleging a settlement bears the burden of demonstrating that such a settlement was formed by the existence of the following three elements: the parties' desire to terminate the dispute; the existence of reciprocal concessions; an agreement on essential elements to end the dispute [1] . [ 19 ] The transaction is not subject to any particular form, the important thing being to be able to find the presence of the above- mentioned criterias [2] . [ 20 ] The content of the telephone conversation between Messrs.

Grant and Hopfengartner is not disputed. [ 21 ] When he received the transaction draft, Mr. Hopfengartner says the following in the email Exhibit P-4 on June 18, 2021: « I would like to inform you that I intend to sign the document Transaction Release Final.docx. I have instructed my broker to sell some of my investment and as soon as I have the funds in my account (sometime next week), I shall sign and transfer the money to Mr. Grant. » [ 22 ] In the email dated June 27, 2021, (Exhibit P-5 ) he says: « I was willing to settle with the buyers of our house.

But I could not finalize this without the approval and signature of my wife Marlene. (…) Marlene would not let me do it, even if I would bear the whole cost. » [ 23 ] It is clear from this correspondence and from the telephone conversation following the denunciation letter that Mr. Hopfengartner agreed to settle the matter for $40,000, which was the essential element of the transaction. In doing so, each party was making a concession. [ 24 ] It is true that the proposed transaction draft provided for the signature of Mrs. Vigneault.

However, the evidence in no way demonstrates that there were any discussions between the latter and Mr. Grant or Mrs. Collier at the time the transaction was concluded. [ 25 ] In his testimony, Mr. Hopfengartner stated that he asked counsel for Mr. Grant and Mrs. Collier to add his wife's name, since only his name appeared on the first draft. Despite Mrs. Vigneault's refusal to proceed with the signing of the transaction, the fact remains that Mr. Hopfengartner has undertaken to settle the matter and that it must be given effect. Let’s repeat that Mrs.

Vigneault raised no argument to explain why she opposed the transaction. [ 26 ] The Application to Homologate the Transaction must be granted. FOR THOSE REASONS, THE COURT : GRANTS the Application to Homologate a Transaction; HOMOLOGATES the Transaction agreed upon between the parties on June 18, 2021; CONDEMNS the Defendant Fritz HOPFENGARTNER to pay the Plaintiffs Gary GRANT et Shirley COLLIER the sum of $40 000.00 with interest calculated at the legal rate as of July 28, 2021, date of the summons;

THE WHOLE with costs. __________________________________ CÉLINE GERVAIS, J.C.Q. Me Patrick Cooper Légal logik Inc. Counsel for the Plaintiffs Me Michael N. Bergman Bergman & Associés Counsel for the Defendant