Executive Summary: Key Legal and Evidentiary Issues

• VCG Investissements and Sophie Camiré sued notary Claire Olejniczak for $15,000 each in damages arising from the instrumentation of a hypothecary loan deed.
• Central to the claim was whether Olejniczak breached her duty of care by failing to verify the balance of the first-ranking mortgage held by Caisse Desjardins de Nicolet before the deed was executed.
• Olejniczak maintained she was never given a specific mandate to verify or confirm the outstanding balance of the first-ranking creditor.
• Evidence showed that the plaintiffs' own counsel, Me Florence Morin, had already been informed of the Desjardins balance on September 30, 2022, placing the plaintiffs in full knowledge of the situation at the time of the loan.
• A procedural issue arose under Article 538 of the Code of Civil Procedure, as the two plaintiffs appeared to be splitting a single claim to stay within the Small Claims Division's $15,000 limit.
• The court found that the plaintiffs failed to meet their burden of proof in establishing that the notary committed a fault.

Facts of the case

In September 2022, 9360-4932 Québec Inc., operating as VCG Investissements (VCG), represented by its administrator and principal shareholder Stéphane Grégoire, and Sophie Camiré, both private lenders, mandated notary Claire Olejniczak to prepare a hypothecary loan deed. The loan, totalling $34,500, was to be made jointly by VCG and Camiré to borrower Henrik Bergeron, secured by a second-ranking hypothec on Bergeron's property in Québec, behind a first-ranking hypothec held by Caisse Desjardins de Nicolet. On September 9, 2022, a loan offer had already been signed between the plaintiffs and Bergeron establishing the terms of the loan. The deed was prepared and executed by Olejniczak on September 30, 2022, registered under number 877 of her minutes and published in the registry office under inscription number 27 597 249.

Contractual clauses at issue

The plaintiffs instructed Olejniczak to include a specific clause in the deed to protect their equity position as second-ranking hypothecary creditors. Article 13, subparagraph 3 of the hypothecary deed provided that the borrower undertook not to increase the balance of his existing loan with Caisse Desjardins de Nicolet beyond $100,000, that institution's hypothec being registered under number 20 166 739 and holding first rank, with the present hypothec ranking second. The plaintiffs alleged that despite this protective clause, Olejniczak was negligent in failing to verify with Desjardins the actual balance of the first-ranking mortgage prior to execution. Had she done so, they argued, she would have confirmed that the Desjardins balance stood at $122,581.96 as of September 30, 2022 — already exceeding the $100,000 cap stipulated in Article 13.

Reasoning and analysis

The court analyzed the claim under the civil liability framework of Article 1457 of the Civil Code of Québec, which requires proof of fault, damages, and a causal link. The plaintiffs relied on Article 17 of the Code of Ethics of Notaries, which obliges a notary to verify the essential facts supporting a deed and to inform clients of the necessary formalities. Olejniczak countered on two grounds. First, she maintained she had never received a specific mandate to verify or confirm the balance owed to the first-ranking creditor; citing jurisprudence, she argued that in the absence of such a specific mandate, a notary does not bear an obligation to verify the value of a debtor's security. Second, and critically, she pointed to evidence showing that Caisse Desjardins had already informed Me Florence Morin, counsel for the plaintiffs, of the outstanding balance on September 30, 2022 — meaning the plaintiffs were fully aware of the situation when they chose to proceed with the second-ranking loan. The court also noted that Olejniczak played no role in the pre-loan discussions that led to the September 9, 2022 loan offer, and that Grégoire and Camiré were experienced private lenders who had all relevant information available to make an informed decision. The court further raised a procedural concern under Article 538 of the Code of Civil Procedure, noting that VCG and Camiré appeared to be dividing what was in substance a single claim — both arising from the same hypothecary deed in which each held a 50% interest as joint lenders — into two separate $15,000 claims to remain within the Small Claims Division's monetary limit, which under settled jurisprudence would result in dismissal.

Ruling and overall outcome

The court, presided over by the Honourable Brigitte Gouin, J.C.Q., found that the plaintiffs failed to discharge their burden of proof under Articles 2803 and 2804 of the Civil Code of Québec and did not establish that Olejniczak committed any fault. The claim was dismissed in its entirety. Claire Olejniczak was the successful party. The plaintiffs, VCG Investissements and Sophie Camiré, were ordered to pay court costs of $364, representing the judicial stamp fee.