2019 QCCQ 6595, 2019 QCCQ 6595

Capobianco c. Ville de Montréal 2019 QCCQ 6595 COURT OF QUÉBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-156184-170 DATE: October 2, 2019 ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ JOHNNY CAPOBIANCO Plaintiff v.

VILLE DE MONTRÉAL -and- ASSOCIATION DU CENTRE PIERRE-CHARBONNEAU Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] In November 2015, Plaintiff entered into a contract with the Association du Centre Pierre-Charbonneau (the “ Association ”) to rent premises at Centre Pierre-Charbonneau (the “ Centre ”) from November 11 to 13, 2016 for the purpose of a concert at which he was to perform. [1] [ 2 ] The agreed price of $7,705.34 included rent, maintenance by the Ville de Montréal (the “ City ”), electricity and any needed equipment. [ 3 ] A few days before the event, the basement of the Centre was seriously flooded after a water main owned by the City burst.

Unfortunately, Plaintiff’s event had to be cancelled on a few days’ notice only. [ 4 ] After the event was cancelled, the Association reimbursed to Plaintiff all amounts paid pursuant to the Contract, [2] as well as an amount paid for the printing of the tickets. [3] [ 5 ] On November 16, 2016, Plaintiff filed a Notice of claim with the City alleging that he suffered damages of $62,830 as a result of the cancellation of the event.

The notice referred to various losses, namely: • Promotional costs; • Ticket sale costs; • Amounts paid to musicians for practices; • Rental of promotional office; • Deposit on sound and lighting equipment; • Deposit on caterer. [4] [ 6 ] The cancelled event was eventually rescheduled and held at the Centre in May 2017. This time, the concert was held on two consecutive nights.

A similar contract was entered into between Plaintiff and the Association, allowing Plaintiff to hold the two concerts for the same price as the single one originally planned. [5] [ 7 ] Attendance at the May 2017 event was not as good as Plaintiff expected, however, with roughly 1,200 people over two nights, as compared to the 1,800 tickets sold for the 2016 event. * * * [ 8 ] Plaintiff holds both the Association and the City responsible for the cancellation of the 2016 event.

He seeks from them damages of $15,000 in compensation or the injury he allegedly suffered as a result of said cancellation. [ 9 ] The Association denies any liability towards Plaintiff, relying on a limitation of liability provision in the Contract. [ 10 ] As for the City, it admits that the bursting of the water main gives rise to its liability towards Plaintiff, but argues that Plaintiff failed to prove that he suffered injury as a result of the breakage. questionS in issue

[ 11 ] The case calls for the resolution of the following questions:

a) Is the Association liable for the cancellation of the 2016 event?

b) Has Plaintiff suffered injury as a result of the bursting of the water main?

c) If so, what compensation is Plaintiff entitled to? ANALYSIS

a) Is the Association liable for the cancellation of the 2016 event? [ 12 ] The Court finds that the Association is note liable towards Mr.

Capobianco for the cancellation of the 2016 event. [ 13 ] The Contract specifically excludes liability on the part of the Association in the event of cancellation resulting from an uncontrollable event, as appears from the following provision : Cas fortuit – L’Association du Centre Pierre-Charbonneau et la Ville de Montréal déclinent toute responsabilité envers le promoteur dans le cas où l’événement devrait être annulé suite à des circonstances incontrôlables (séisme, catastrophes naturelles, grève, etc.) [Emphasis added] [ 14 ] Such a limitation of liability is valid in law. [6] It is clear, on the facts, that the Association had no control over the City’s water main and no involvement in the breakage that caused the flood.

The Association is not liable under the circumstances. [ 15 ] The claim against the Association must be therefore be dismissed.

b) Has Plaintiff suffered injury as a result of the bursting of the water main? [ 16 ] The City admits that the bursting of its water main gives rise to a potential liability towards Plaintiff. This liability finds its source in

Article 1465 C.C.Q., which reads as follows : 1465. The custodian of a thing is bound to make reparation for injury resulting from the autonomous act of the thing, unless he proves that he is not at fault. [ 17 ] The City’s liability is limited, however, to reparation for the injury resulting from the water main failure.

This means that Plaintiff’s claim against the City can only succeed if he proves, on a balance of probabilities, [7] that he suffered bodily, moral or material injury as an immediate and direct consequence of the bursting of the water main. [8] [ 18 ] The law also requires that a he quantify the injury suffered to allow the Court to determine the proper compensation, if any. [9] Indeed, “ the damages due to the creditor compensate for the amount of the loss he has sustained and the profit of which he was deprived ( …)”. [10] [ 19 ] The Court finds, on the facts, that Plaintiff has suffered injury as a result of the water main breakage, but that he is entitled to limited compensation only. - Loss of profits [ 20 ] Plaintiff claims that he sold over 1,800 tickets for the 2016 event, while the turnout for the May 2017 event was much lower, resulting in a loss of profits for which he is entitled to compensation. [ 21 ] The Court disagrees. [ 22 ] Plaintiff admitted at trial that the concert was organized for the benefit of non-profit organization ( Fondation Générations ) [11] ; all net profits were to be remitted to this organization as a donation.

Clearly, Plaintiff cannot claim to have sustained a loss of profits. - Rent paid for promotional office [ 23 ] Plaintiff stated at trial that he rented space in the offices of an insurance broker for six months prior to the 2016 event, where he worked to organize and promote the event.

He seeks to recover the cost incurred to do so ($600). [ 24 ] Plaintiff adduced into evidence a letter signed by Concetta Aceto of CourtiersNET attesting to such a rental from May 15, 2016 to November 15, 2016, in consideration of the payment of $600 in rent. [12] [ 25 ] The Court accepts Plaintiff testimony and this signed letter as sufficient evidence of the rental costs. Plaintiff is not, however, entitled to the full amount.

Indeed, it is reasonable to assume that the preparation for the event was not all lost, as the event was eventually held in May 2017. [ 26 ] The Court uses its discretion to arbitrate the damages under this heading by reducing them to $300. - Damages for moral prejudice [ 27 ] Plaintiff also claims moral damages for the stress, anxiety and unhappiness that he allegedly felt as a result of the cancellation of the 2016 event and for the hours spent planning over a period of six months.

[ 28 ] Moral damages are often difficult to assess and here, Plaintiff’s testimony was quite vague.

After careful consideration of the evidence, notably that the cancelled event was rescheduled and took place a few months later, the Court believes that an amount of $1,000 is reasonable compensation in this regard. - Amount allegedly paid to musicians for practices [ 29 ] Plaintiff claims to have paid his musicians $150 cash to attend a practice immediately prior to the cancellation of the 2016 event; he claims damages of $1,950 in this regard, representing the total amount allegedly paid to them. [ 30 ] No direct evidence of these payments was offered by Plaintiff, who simply filed a list of the names of the musicians that he allegedly paid. [ 31 ] In the absence of clear and convincing evidence of these payments, the Court cannot grant this head of damages. - Reimbursed tickets [ 32 ] Plaintiff argues that he is entitled to compensation because he had to reimburse the tickets that had been sold for the 2016 event after it was cancelled. [ 33 ] Plaintiff is mistaken. [ 34 ] Under the general principles of civil liability, the damages to which a victim of a fault is entitled are intended to make him or her whole; the damages must compensate for the loss sustained and the profits of which the victim has been deprived [13] . [ 35 ] The fact that Plaintiff had to reimburse the 2016 tickets does not constitute a loss sustained or a profit of which Plaintiff was deprived.

Indeed, had the water main not burst and the event taken place as planned, the proceeds from the sale of the tickets would have been used to pay for the costs that would have been incurred and any net profits would have been remitted to the Fondation Générations, as already stated. [ 36 ] Consequently, the amount generated by the sale of the tickets is not the proper basis to calculate Plaintiff’s damages. - Conclusion on damages [ 37 ] The Court concludes, on the basis of the evidence, that Plaintiff is entitled a total amount of $1,300 to compensate for the injury he suffered.

FOR THESE REASONS, THE COURT: GRANTS the claim in part and against the Ville de Montréal only; CONDEMNS the Ville de Montréal to pay to Johnny Capobianco an amount of $1,300, together with interest at the legal rate and the additional indemnity provided for in

article 1619 of the Civil Code of Québec from December 1, 2016; WITH LEGAL COSTS of $200 representing the judicial fees paid on the Application. __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: May 21, 2019 (taken under advisement on May 28, 2019)