2011 QCCQ 15664, 2011 QCCQ 15664

Paul c. 98606 Canada inc. (West End Gallery) 2011 QCCQ 15664 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-117224-099 DATE: November 30, 2011 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ BLAIR PAUL [...], Ottawa, Ontario, [...] Plaintiff v. 98606 CANADA INC., doing business as West End Gallery 1358, Greene avenue, Westmount, Québec, H3Z 2B1 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Blair Paul is suing West End Gallery (the “Gallery”) for $5,450 plus $314 in expenses.

He alleges that the Gallery, which accepted his artwork on consignment, failed to return four (4) paintings plus half of a work of art, composed of two sections. The Gallery denies the claim. The evidence: [ 2 ] Blair Paul, an artist, provided the Gallery with his artwork on consignment, since 1999. He listed his work by name, dimensions and the price at which it should be sold. When a painting was sold, he received 60% of the selling price if it was framed and 50% of the sales price if the Gallery framed the painting. [ 3 ] The relationship between the parties soured and on October 3, 2008, Mr.

Paul ended his dealings with the Gallery. He provided the Gallery with a list of his artwork that was still in the Gallery's possession and asked that it be returned. [ 4 ] The Gallery returned thirty-one (31) paintings, including four (4) that were not on Mr. Paul's list; he claimed he had never received a receipt for these works of art. Despite the return of these paintings, Mr. Paul claims the Gallery did not remit four (4) other paintings as well as one part of a two-section work of art (the “half painting”).

In addition, he claimed one returned painting was damaged. [ 5 ] The Gallery submits it sold one of the five missing paintings, alleged to be missing, and had returned the others, but it had no documentation to substantiate its claim regarding the four paintings it says it returned. The Gallery based its defence on the difficulties it had in its relationship with Mr. Paul over the years. Analysis: [ 6 ] The evidence shows that Mr. Paul left artwork with the Gallery since 1999 but neither party kept accurate records of their transactions. For example, although Mr.

Paul claims he never received a consignment receipt for four of his paintings, according to the evidence, the Gallery received these works and a consignment number was assigned to each of the four paintings. [ 7 ] On the other hand, a letter from the Gallery shows its total lack of procedures to ensure the accuracy of its inventory:

“When you asked for an accounting, I assumed it would be simple until I realized how many of your works were not listed on any consignment sheet. I have done a complete physical inventory duly listed on the attached sheets….some of the pieces listed on page 4 may be wrongly titled. There are some duplicate titles. We have far too many paintings on hand…it's more inventory than we need, it gets confusing…. My mother didn't list the title of the painting that she just sold.

I will contact the client today and I hope that it will enable us to resolve the inventory in full…” [ 8 ] The evidence reveals that the artwork claimed by Mr. Paul had, in fact, been left on consignment with the Gallery on the following dates:

a) receipt 3045, July 24, 2001, Bright Sun November, Unframed, Acrylic on board 12''x16''; $750;

b) receipt 3046, July 24, 2001, Summer River, Framed, Acrylic on board, 12''x16''; $750;

c) receipt 2955, December 7, 2000, Indian River, Unframed, Acrylic on board, 9''x12''; $650;

d) receipt 3091, August 17, 2002, March Breakup, Unframed, Acrylic on canvass, 36''x24''; $1,600;

e) receipt 10161, May 2003, Early Morning on the River, Unframed, Acrylic on board, diptych, 16''x32''; $1,600. [ 9 ] The evidence also establishes that the painting listed by Mr. Paul as Summer River was actually Summer Stream; this painting was sold in 2005 and Mr. Paul was paid $950. During the hearing, he acknowledged this transaction had taken place, thus reducing his claim by the above-mentioned sum. [ 10 ] As for the other paintings involved in his claim, Mr. Paul established that they were left with the Galley on consignment.

Although the Gallery claims that these works of art had been returned, it has no evidence of same nor is there any evidence that payment was made to Mr. Paul for these works. [ 11 ] According to

article 2303 of the Civil Code of Quebec : A person wishing to assert a right shall prove the facts on which his claim is based. A person who alleges the nullity, modification or extinction of a right shall prove the facts on which he bases his allegation. [ 12 ] The Gallery has not met its burden of proving that it returned the four paintings in question. [ 13 ] There remains the question of damages. Mr. Paul is seeking the sales price of each of the missing paintings. The Gallery claims he is only entitled to the consignment price. [ 14 ] Damages awarded by the Court are to compensate for the loss sustained and the profit to which a creditor has been deprived (

article 1611 , Civil code of Quebec ). [ 15 ] Mr. Paul left his paintings with the Gallery with the intent that it sell his artwork; Mr. Paul's loss is the loss of profit to which he would be entitled had these four paintings been sold. Even had he obtained the paintings from the Gallery and sold them elsewhere, the evidence showed that it is a common practice for galleries to take the same commission as in this case. [ 16 ] The four paintings that are missing were unframed; the selling price was a total of $5,400. Mr. Paul would have received 50% of the sales price for an unframed painting. Accordingly, Mr.

Paul is entitled to $2,700. [ 17 ] Mr. Paul is also claiming $100 for the damage to one of his paintings entitled Evening Light that had been returned. This aspect of his claim is included in the demand letter sent to the Gallery on March 4, 2009. Since the Gallery failed to examine and repair the damage, Mr. Paul is entitled to his claim of $100. He is also entitled to his courier and bailiff's costs, which come to a total of $64.05. However, the Court does not grant $250, which he is seeking as his legal costs.

Extra judicial costs are awarded only in exceptional circumstances, such as an abuse of procedure, which is not the case here. [ 18 ] The total amount awarded is therefore $2,864.05. FOR THESE REASONS, THE COURT: GRANTS , in part, Plaintiff's action; CONDEMNS West End Gallery to pay Blair Paul $2,864.05, plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec since March 4, 2009, plus judicial fees of $157. __________________________________ SUZANNE HANDMAN, J.C.Q.

Date of hearing: September 27, 2011