2013 QCCQ 9533, 2013 QCCQ 9533

Reid c. Galeries Harwood ltée 2013 QCCQ 9533 JG2338 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF SALABERRY-DE-VALLEYFIELD Civil Division No: 760-32-015103-122 DATE: The 21 st day of June 2013 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE CÉLINE GERVAIS, J.Q.C. ______________________________________________________________________ HEATHER REID Plaintiff v.

GALERIES HARWOOD LIMITÉE Defendant and IHOR TODORUK Opposing party ______________________________________________________________________ JUDGMENT ON OPPOSITION ______________________________________________________________________ [ 1 ] On March 6, 2013, judgment was rendered by Mr. Justice Claude Montpetit ordering Galeries Harwood Ltée to pay to Mrs. Heather Reid a sum of $ 3120, plus interest, additional indemnity and legal costs. The total amount that was due at the date of the judgment was $ 3382.37. Upon reception of this judgment, Galeries Harwood sent Mrs.

Reid a series of six cheques of $ 573.66 from April 7 to September 7, 2013. [ 2 ] Mrs. Reid decided that she would not accept those cheques, returned them to Mr. Todoruk and proceeded to a moveables seizure by bailiffs Ricci Teasdale on May 15, 2013. At the hearing, Mrs. Reid told the Court that she was not sure the cheques could be cashed and that she had no reasons to trust Galeries Harwood, after the facts that led to the lawsuit. [ 3 ] The bailiff seized 26 items, and Mr.

Todoruk filed an opposition, in his name and for all consignee artists who are the owners of some artwork that was seized, and asked the Court to declare him or the artists sole owners of the artwork, relying on Sections 596 and 597 of the Code of civil procedure (hereinafter C.c.p.). [ 4 ] At the beginning of the hearing, the Court told Mr. Todoruk that he could not present the opposition in the name of the consignees or the owners of the artwork, according to

Section 59 C.c.p. that prescribes that a person cannot use the name of another to plead, except the State through authorized representatives. [ 5 ] Mr. Todoruk exposed the difficulty of obtaining oppositions by those artists, some of whom live in Europe or even in China. The Court tried to conciliate the parties, to avoid a multiplication of procedure which would not serve the purposes of

Section 4.2 C.c.p. The Court suggested to Mrs. Reid to accept an amount of $ 1700, representing roughly what she would have cashed, had she decided to accept the post-dated payments sent by Mr. Todoruk, and, upon receipt, to grant mainlevée of the artwork. [ 6 ] The Court decided anyhow that the seizure of the artwork would be suspended if no agreement was reached, until the proper procedures were filed, as it appeared from the various contracts that were filed, that the artwork, prima facie , did not belong to Galeries Harwood. Mrs. Reid accepted such partial settlement, and the Court received the proof that Mr.

Todoruk had paid by money draft the amount of $ 1700 to Mrs. Reid on June 14, 2013.

[ 7 ] Considering that payment, mainlevée is granted of the seizure of the following artwork, as described in the "minutes de saisie", namely : Une toile représentant 5 femmes 2 garçons nus avec une barque 48" X 96" signé Daniel Barkley; Une toile représentant 9 personnes, 2 chiens de dimension approx de 48" X 96" signé Daniel Barkley; Une toile représentant 1 cheval et 2 garçons signé Daniel Barkley Une toile représentant 10 personnes nues de dimension approx de 10' X 10' signé Daniel Barkley; Une toile représentant 1 bord de lac signé Sekeris; Une toile représentant 1 salon signé Pei Yeng; [ 8 ] Mr.

Todoruk explained that Galeries Harwood, a company incorporated on November 14, 2002, under the

Canada Business Corporations Act does not possess any property. Mr. Todoruk personally is the owner of the building in which the gallery is located, said building being also his home and personal workshop since 2005. [ 9 ]

Section 597 C.c.p. says that the opposition may also be taken by a third party who has a right to revendicate any part of the property seized. [ 10 ] The bailiff seized " un appareil de paiement Verifone ", which was furnished to Galeries Harwood as consignee, as well as " un lot de plusieurs douzaines d'échantillons de cadres assortis ".

An e-mail by Omega Moulding confirms that those corner samples are consigned to Galeries Harwood and that they have no asset value, as they are used for display purposes only. [ 11 ] Considering that those two items obviously do not belong to Galeries Harwood, that they have no sale value, and that it would be excessive to ask for a formal opposition by Keycorp Canada inc. and Omega Moulding, mainlevée is granted for those two items. [ 12 ] The bailiff also seized "un comptoir de service en forme de L en bois". Mr.

Todoruk testified that he has built himself this counter before he bought the building, which is made of gyproc and plywood and is incorporated to the building. Pictures of said counter shows that it seems in fact to be built-in.

Section 903 of the Quebec civil Code says that "movables which are permanently physically attached or joined to an immovable without losing their individuality and without being incorporated with the immovable are immovables for as long as they remain there." [ 13 ] Mainlevée is then granted for this counter. [ 14 ] Mr. Todoruk proved, with the purchase invoice, that he bought an Apple computer on March 2000, even before Galeries Harwood was incorporated. Mainlevée is then granted for "un ordinateur de marque Apple E-Mac". [ 15 ] Mr.

Todoruk filed invoices for a vacuum cleaner, a compressor, a fax, a metal file cabinet, and a pine chest. Those items were bought by Mr. Todoruk after Galeries Harwood was incorporated. Mr. Todoruk is the sole shareholder and president of Galeries Harwood. It is true those things were bought by Mr. Todoruk with his personal credit card, but he testified that the Gallery has no line of credit.

As they were seized in the gallery, mainlevée will not be granted on those items, as the Court considers they are clearly used for the purposes of Galeries Harwood. [ 16 ] Under the same reasoning, the Court will grant mainlevée of items that Mr.

Todoruk could prove were his personal property before he incorporated the company, which are : - Un coffre antique en bois; - Un meuble antique; - Une table lumineuse; - Un bureau en bois; - Une chaise sur roues; - Trois bancs assortis; - Un cadre avec photo et disque de vinyle des Beatles; - Six images de Rolling Stone Magazine; - Un coffre en bois style antique; - Un pupitre antique; [ 17 ] As concerns the artwork by Mr. Todoruk himself ("Un cadre de 8 photos de Jim Morrisson signé Todoruk"), it is considered as personal artwork, which was consigned to Galeries Harwood, and therefore cannot be seized.

FOR THE ABOVEMENTIONED REASONS, THE COURT: GRANTS mainlevée of the following items : - Une toile représentant 5 femmes 2 garçons nus avec une barque 48" X 96" signée Daniel Barkley; - Une toile représentant 9 personnes, 2 chiens de dimension approximative de 48" X 96" signée Daniel Barkley; - Une toile représentant 1 cheval et 2 garçons signée Daniel Barkley - Une toile représentant 10 personnes nues de dimension approximative de 10' X 10' signée Daniel Barkley; - Une toile représentant 1 bord de lac signée Sekeris; - Une toile représentant 1 salon signée Pei Yeng; - Un appareil de paiement Verifone; - Un lot de plusieurs douzaines d'échantillons de cadres assortis; - Un comptoir de service en forme de L en bois; - Un ordinateur de marque Apple E-Mac; - Un coffre antique en bois; - Un meuble antique; - Une table lumineuse; - Un bureau en bois; - Une chaise sur roues; - Trois bancs assortis; - Un cadre avec photo et disque de vinyle des Beatles; - Six images de Rolling Stone Magazine; - Un coffre en bois style antique; - Un pupitre antique; - Un cadre de 8 photos de Jim Morrisson signé Todoruk; DECLARES that the following items are still seized, as per the "minutes de saisie" of May 15, 2013 : - Une balayeuse de marque inapparente; - Un petit compresseur couleur bleu; - Un fax de marque Brother 860; - Une filière de metal 5 portes; - Un coffre antique;

THE WHOLE without costs. __________________________________ CÉLINE GERVAIS, J.Q.C.