2015 QCCQ 9165, 2015 QCCQ 9165

9223-9755 Québec inc. (Medusa Film) c. Black Box Productions Ltd. 2015 QCCQ 9165 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No: 500-32-138282-134 DATE: October 2, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE MARTINE L. TREMBLAY, J.C.Q. ______________________________________________________________________ 9223-9755 QUÉBEC INC. f.a.s.n. de MEDUSA FILM et GEORGE KOUYOUMJIAN Plaintiff v.

BLACK BOX PRODUCTIONS LTD Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] 9223-9755 Quebec inc. ( “Medusa Film” ) and George Kouyoumjian ( “Mr. Kouyoumjian” ) are claiming $ 7,000 from Black Box Productions Ltd. ( “Black Box” ), for failure to provide services as per the contract dated June 3 rd , 2010 for their supply [1] (the “Contract” ). [ 2 ] Black Box pleads that it fully and faithfully executed its obligation under the Contract. It blames Mr.

Kouyoumjian for the failure of the project and refuses to refund him and Medusa Film (both being collectively referred to as the “Plaintiffs” ). It alleges to have been harassed by the Plaintiffs and, by way of cross-demand, it is claiming $ 3,000 in damages. ISSUES 1) Did Black Box commit a fault in rendering the services provided for by the Contract? 2) Are the Plaintiffs entitled to compensation? 3) Is Black Box entitled to compensation for the Plaintiffs’ actions? THE RELEVANT FACTS [ 3 ] Mr. Kouyoumjian always wanted to be a filmmaker. At age 46, he attended cinema classes.

A few years later, in 2009, he met film producer Josh Usheroff ( “Mr. Usheroff” ), president of Black Box. [ 4 ] On April 5, 2010, Mr. Kouyoumjian presented a no dialogue short film screenplay to Mr. Usheroff [2] . [ 5 ] On June 3, 2010, Mr. Kouyoumjian and Black Box signed the Contract. [ 6 ] Filming was scheduled to take place over 3 nights (8:00 p.m. to 6:00 a.m.) and one half-day, from June 25 to 28, 2010 [3] . A preproduction meeting occurred on June 14, 2010 [4] . [ 7 ] At 8:00 p.m. on June 25, 2010, all crew, cast and necessary equipment were on the set.

Shooting started at approximately 10:30 p.m. and was stopped by Mr. Kouyoumjian around 2 a.m on June 26, 2010. During the afternoon of June 26, 2010, Mr. Kouyoumjian decided [5] to postpone to a later date the rest of the filming in exterior locations and to proceed only with the in-studio shooting already scheduled for June 28, 2010 in the afternoon. [ 8 ] The filming of the exterior scenes was never completed. Instead, on July 16, 2010, at 1:55 p.m., Mr. Kouyoumjian sent a contemptuous and hurtful email [6] to Mr. Usheroff. As a result, at 2:27 p.m., Black Box advised Mr.

Kouyoumjian that it was no longer interested in working with him. [7] [ 9 ] On January 11, 2012, the Plaintiffs sent a letter to Mr. Usheroff and Black Box demanding $ 7,000 [8] in damages. At trial, the claim is detailed as follows:

a) Refund of Black Box fees: $ 1806.00

b) Other related costs unnecessarily incurred: $ 4,215.31

c) Non-pecuniary damages: $ 978.69. [ 10 ] Between August 9, 2010, and April 8, 2012 [9] , Mr. Kouyoumjian sent emails. Black Box mentions that the malicious and harassing remarks alleged entitles it to receive a compensation of $ 3,000. ANALYSIS [ 11 ] The Contract defines Mr. Kouyoumjian as the Creator and Black Box as the Producer. It contains the following relevant clauses: 1.

SERVICES ENGAGEMENT Creator engages Producer, and Producer agrees to be engaged, subject to the termes and conditions of this Agreement, to produce a short film, tentatively entitled “ The Man With The Movie Projector ” (hereafter referred to as “ Production” ). Producer will co-ordinate all activities related to the Production , including, but not limited to equipment rental, securing filming locations, casting, staffing and crew. Further Services and Work Product details : 2.

PAYMENTS 2.1 In full consideration for the services rendered by Producer and for all rights granted or relinquished by Producer under this Agreement, Creator shall pay Producer the firm sum of $1,600 plus any applicable taxes (“Contract Amount”). 2.2 Creator will underwrite all costs related to the Production in accordance with the attached payment schedule. 2.3 Creator agrees to be billed personally for any other costs related to independent contractors hired for the Production . 2.4 Producer shall bear no responsibility for costs incurred prior to, during the course of, or following production. 2.5.

Creator may engage Producer to rent equipment, purchase supplies and insure the production. The costs of all rentals and purchases to be incurred by Producer must be paid prior to production, in accordance with the attached payment schedule. A fee of $750 will be payable for insurance, should the Creator engage the producer to rent equipment, purchase supplies and insure the production. […] 4. WORK PRODUCT 4.1 Producer hereby assigns to Creator all of its IP rights in the Work Product, includig without limitation, any and all copyright, except what is provided for in

section 4.2 of the Agreement. 4.2 Producer is granted license to use still images, partial clips, and edited trailers of the Work Product in the promotion of its company, its employees, and its services. Producer may also reference media coverage, festival skeleton and awards, in the promotion of its company, its employees, and its services. […] 9. REPRESENTATIONS AND WARRANTIES The Producer represent and warrants to the Creator : (

a) Producer has acquired all the necessary licenses, personal releases for appearance or voice in the films, venue releases and grants of rights, including but not limited to copyright, music licenses, literary licenses and dramatic licenses, in and to the Work Product and that Producer has the right to enter into this Agreement and to grand the Creator the rights herein granted ; […] 14. ENTIRE AGREEMENT This Agreement sets forth the entire agreement between Creator and Producer an supersedes any prior Agreements or understandings, whether oral or written. […] 16.

TERMINATION Either Party may terminate this Agreement for default of the other Party in relation to the defaulting Party’s obligations under this Agreement 7 days after a written notice of default is given to the defaulting Party provided that the defaulting Party does not take immediate action to correct the default within such period . [ 12 ] Therefore, the Contract is a contract for services [10] , at a fixed price [11] .

1) Did Black Box commit a fault in rendering the services provided for by the Contract? [ 13 ] In their letter of demand [12] and at trial, the Plaintiffs alleged the following faults on the part of Black Box:

a) It did not engage professional staff and crew and was not instrumental in the decision to hire cinematographer Douglas Kropla ( Mr. Kropla” ) and his crew.

b) It did not list the necessary equipment and rent it. Mr. Kropla did.

c) It obtained the permits at the last minute.

d) It did not scout for filming locations and only went to see locations actually found by Mr. Kouyoumjian.

e) It did not make a great effort to find actors of talent.

f) It did not warn Mr. Kouyoumjian on a timely basis that it was pointless to attempt filming when the script was not finalized and there was no shot list. [ 14 ] In addition to Mr. Kouyoumjian and Mr. Usheroff, the Court heard Mr. Kropla and the videographer, Mr. Martin Reisch. [ 15 ] Mr. Kouyoumjian did not deny that Black Box recommended two cinematographers. It was Mr. Kouyoumjian who decided to pick Mr. Kropla and Black Box agreed.

It is common practice for the cinematographer to come with his or her gaffer and camera assistant as it happened in this instance. [ 16 ] Black Box coordinated the renting, delivery and return of equipment that met the requirement of the cinematographer and all other technicians involved. The rental agreement [13] for the equipment was with Black Box. As for the permits, they were obtained [14] and the timing of their deliverance was never an issue between the parties or a source of inconvenience or delay. [ 17 ] Black Box was involved in the scouting of filming locations [15] .

The ultimate choice was made by Mr. Kouyoumjian. Black Box then secured the permits for the outside shooting and coordinated with the studio for the indoor shooting, in addition to providing insurance coverage [16] . [ 18 ] The Plaintiffs criticize Black Box’s efforts to find an actor. Yet, no blame is directed towards the actor who was eventually retained. Black Box described the selection process [17] and no independent evidence was offered to support the Plaintiffs’ claim that it was an inadequate method. [ 19 ] In fact, the crux of the matter resides in the fact that for Mr.

Kouyoumjian, the project “was a sour experience when it should have been a good one” and all this because, according to him, Black Box failed to postpone the shooting of the film. Yet, Mr. Kouyoumjian wrote [18] : You now in hindsight I should have postponed the shooting of that film because I came to the set not ready and not knowing what am I shooting. I should have taken a couple of more weeks and set my mind on one of the versions (simpler one) then plan it properly.

You could have told me though that with this approach where I kept changing the script I was heading for disaster. ( Exact reproduction) [ 20 ] Besides, the use of a shot list was discussed at the preproduction meeting of June 14, 2010, attended by Mr. Kouyoumjian, Mr. Usheroff, Mr. Kropla and the visual effect technician. [ 21 ] The film was 7 to 10 minutes long. Mr. Usheroff and Mr. Kropla testified that a shot list is a tool and that filming a short film without one is feasible when the director has a clear vision of what he wants. On June 21, 2010, Mr. Usheroff reiterated to Mr.

Kouyoumjian, in an email [19] , that it would be a good idea to have a shot list ready for the evening of June 22, 2010. [ 22 ] Black Box’s role was to enable the director, Mr. Kouyoumjian, to achieve his vision by supplying him with what he needed in terms of cast, equipment, staff, crew, locations, permits, etc. At trial, Mr. Kouyoumjian admitted that his responsibilities as director, included having a final script and a creative vision enabling him to direct the shooting and the actors. [ 23 ] From his own admission of June 26, 2010 [20] , Mr.

Kouyoumjian did not anticipate how the situation evolved on the first night of the shooting: “do not get me wrong. i am not blamng anybody. this is a learning process.” (Exact reproduction). [ 24 ] On July 16, 2010, Mr. Kouyoumjian wrote [21] : “however I was very inconclusive and hyper active when it came to more ad more ideas until there was no more script there. certainly I am not blaming you for that.” (Exact reproduction). ” [ 25 ] The Court agrees with Mr. Kouyoumjian. Black Box cannot be blamed for his inexperience. Mr. Kouyoumjian made a conscious decision not to prepare a shot list.

It was his prerogative.

He cannot blame Black Box for not preventing him to film because he did not have one or because his script and/or creative vision kept changing as filming was occurring. [ 26 ] The Plaintiffs failed to prove [22] that Black Box committed a fault in the execution of its obligations under the Contract. 2) Are the Plaintiffs entitled to compensation? [ 27 ] Plaintiffs cannot allege that they resiliated the Contract for cause [23] and, therefore, they cannot claim damages. [ 28 ] Furthermore, Plaintiffs cannot argue that their email of July 16, 2010 [24] , is a unilateral resiliation of the Contract [25] and that since the Contract was for a fixed price, Black Box should refund the portion of the fees it has received that is in excess of what it has

earned [26] . 3) Is Black Box entitled to compensation for the Plaintiffs’ actions? [ 29 ] The evidence reveals a strong and significant contractual default on the part of the Plaintiffs that justified Black Box to terminate the Contract for cause, as per clause 16, on July 16, 2010 [27] .

As a result of their own admissions [28] the Plaintiffs were then in default by the sole operation of the law [29] . [ 30 ] Even if, by then, the film was not completed, Black Box established that it had invested all the time that had been foreseen by the parties, at the conclusion of the Contract. [ 31 ] Indeed, the parties agreed that while they were negotiating the Contract, Black Box was of the view that the work described above would require 2 weeks of work on its part. The parties agreed on $ 1,600 plus taxes. If Mr.

Kouyoumjian had been ready and efficient, the filming would have been completed. [ 32 ] Therefore, the Court concludes that Black Box is allowed to keep, as damages [30] , whatever part of the fixed fee that it would have had to repay the Plaintiffs if the resiliation of the Contract had not been for cause. [ 33 ] As for the emails sent by Mr. Kouyoumjian between August 9, 2010, and April 8, 2012 [31] , containing questionable remarks, these are clearly directed at Mr. Usheroff personally. He his not a party to this action. Mr. Usheroff has a juridical personality of his own.

The fact that he is a shareholder and director of Black Box does not allow Black Box to claim compensation that may be owed to him [32] . FOR THOSE REASONS, THE COURT: DISMISSES the Plaintiffs’action; DECLARES that Black Box Productions Ltd does not have to refund any amount to the Plaintiffs; EACH party paying its own costs. ________________________________ MARTINE L. TREMBLAY, J.C.Q. Date of hearing: March 23 and May 19, 2015.