2015 QCCQ 774, 2015 QCCQ 774

9137-9297 Québec inc. (Modelo Hair Design and Day Spa) c. Gelfenbeyn (Lana's Cosmetics) 2015 QCCQ 774 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No. 500-22-212321-148 DATE: February 6, 2015 ______________________________________________________________________ PRESIDED BY JUDGE HENRI RICHARD J.C.Q. ______________________________________________________________________ 9137-9297 QUÉBEC INC. (Modelo Hair Design and Day Spa) Plaintiff v.

SVETLANA GELFENBEYN (Lana’s Cosmetics) Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Svetlana Gelfenbeyn ( Lana ) sublet from 9137-9297 Québec inc. ( Modelo ) a space in its hair and beauty salon in order to operate her make-up and cosmetic sales enterprise. [ 2 ] Modelo is claiming from Lana unpaid rent, expenses for participation in a wedding salon and expenses for leasing the space again following her departure, for a total of $14,044.50. [ 3 ] In defence, Lana claimed she was the victim of manoeuvring, and false and wrongful statements by Modelo’s sole shareholder and administrator, Constantine Alimbertis, that led to the signing of a sublease offer.

Consequently, she is contesting the amounts claimed by Modelo and she filed a cross-demand for $16,800 covering the cost of the services rendered during two wedding salons in which she participated, moral damages for the stress and inconvenience sustained as a result of the bad faith of Modelo and its representative and the fees of her attorneys. J.R. 1403 [ 4 ] Subsidiarily, Lana argued that Modelo did not fulfil its obligation to minimize its prejudice following her departure in May 2014. Questions in dispute [ 5 ] (

a) Did Modelo properly fulfil its obligation to minimize its prejudice following Lana’s departure? (

b) Did the parties enter into an agreement by which the services rendered by Lana during two wedding salons had to be paid for by Modelo? (

c) Did Lana prove, by invoking the bad faith of Modelo and its president, the merits of her claim for moral damages for the stress and inconvenience sustained? (

d) Is Lana justified in claiming from Modelo her attorneys’ fees? Principal demand [ 6 ] The parties were bound by a sublease agreement. Modelo filed a sublease offer duly signed by all the parties on February 28, 2013. [ 7 ] Lana alleged and testified that she sublet a space in the Modelo hair salon on a monthly basis, which enabled her to leave when she wanted. [ 8 ] Lana acknowledged that she signed the sublease offer filed by Modelo.

However, she added that she signed the document on April 27, 2014 following representations by Mr Alimbertis that he had to have a written document in order to show it to a possible buyer of the hair salon. It was in those circumstances that Lana signed the sublease offer without recognizing its validity or the date of February 28, 2013 appearing on it. [ 9 ] The Court took under advisement all the objections by Modelo to the testimonial evidence contradicting the sublease offer filed, which was presumably signed by the parties on February 28, 2013.

[ 10 ] Given the Court’s conclusions, it is not necessary to rule on that objection or determine whether the sublease agreement binding the parties is of undetermined duration, a monthly agreement or of a duration of two years, from March 1, 2013 to February 28, 2015, as provided for in the sublease offer signed by the parties. [ 11 ] Modelo broke down its claim in the statement of account filed as Exhibit P-4.

As the testimony of Lana and her spouse, Saul Cinman, showed, the amounts in the statement are in fact owed since they were the subject of discussions with Mr Alimbertis regarding the possibility of paying them in instalments.

Hence, there was acknowledgment of a debt. [ 12 ] In addition, as statement of account P-4 shows, Lana made seven payments by cheque, which legally constitutes another acknowledgment of a debt towards Modelo. [ 13 ] Furthermore, the Court concludes that Lana failed in her attempt to establish that her consent was vitiated by manoeuvring and fraudulent statements by Modelo regarding the sublease agreement. [ 14 ] Lana is a professional make-up artist and an independent entrepreneur of Modelo.

She was given no guarantee of income or business when she decided to sublease a space at Modelo in late January 2013. [ 15 ] The evidence shows that a number of hairdressers, as independent entrepreneurs, left Modelo after Lana sublet her space.

No fault can be attributed to Modelo in that regard, although some acts or conduct by Mr Alimbertis may be questionable from the standpoint of managing business and human relations. [ 16 ] Consequently, the Court concludes that Modelo established, by preponderant evidence, the merits of its claim for $5,248.89, broken down in statement of account P-4. [ 17 ] Besides that amount, Modelo is claiming from Lana $8,795.61, representing [TRANSLATION] “an amount equal to all the rent owed until the end of the term”, corresponding to nine months of rent, in addition to applicable taxes, from June 2014 to February 28, 2015. [ 18 ] No penal clause existed in the event that Lana left the space she sublet from Modelo. [ 19 ] The Court must therefore determine whether Modelo properly fulfilled its legal obligation of means to minimize its prejudice following Lana’s departure.

In that regard, the Court assumes that the parties were bound by a lease of a determined duration, from March 1, 2013 to February 28, 2015. [ 20 ] The rule of the minimization of prejudice is codified in

article 1479 of the Civil Code of Québec : 1479. A person who is bound to make reparation for an injury is not liable for any aggravation of the injury that the victim could have avoided. [ 21 ] As authors Jean-Louis Baudouin, Pierre-Gabriel Jobin and Nathalie Vézina teach, that rule can be expressed simply by saying that, when a creditor notes the non-fulfillment of its debtor’s obligation, the creditor has a duty to try to mitigate as much as possible the prejudice sustained.

In civil law, to do otherwise constitutes misconduct because it is contrary to the conduct of a normally prudent and diligent person. [1] [ 22 ] The intensity of the duty to minimize varies depending on the circumstances, which are up to the Court to assess. [2] [ 23 ] Furthermore, a fault stemming from a failure to minimize one’s damages makes it impossible to consider the resulting damages to be direct or foreseeable. [3] [ 24 ] For reasons that are not relevant to explain, Lana left the Modelo hair salon on May 11, 2014.

The measures that Modelo took to lease Lana’s space again consisted in posting the following ad on its Facebook page: “Looking for professionnal make-up artist to rent department”. [ 25 ] In addition, from May to September 2014, Modelo posted an ad on the Kijiji website that read as follows: “Modelo Spa is looking for a professional make-up artist to rent and operate a make-up department at our Decarie Square location. This is a great opportunity for the right person.

For information, contact Costa at XXX-XXX-XXXX”. [ 26 ] According to the evidence, Modelo took no other steps in order to lease again the space occupied by Lana. [ 27 ] After analysis, according to the legal and jurisprudential criteria, the Court concludes that Modelo did not properly fulfil its obligation to minimize its prejudice following Lana’s departure. [ 28 ] Lana is an entrepreneur specializing in make-up and cosmetic sales.

To find a person to replace Lana, Modelo should have made a much more sustained, targeted and efficient effort, besides posting two simple ads on its Facebook page and on the Kijiji website. [ 29 ] The few steps Modelo took and its lack of effort to lease again the space occupied by Lana confirms her testimony that Modelo was in a precarious financial situation that did not even allow it to retain the services of a broker, a head-hunter or any other intermediary. [ 30 ] Consequently, the Court dismisses Modelo’s head of claim in the amount of $8,795.61 for expenses to lease the space again.

Cross-demand [ 31 ] Lana is claiming $16,800 from Modelo, broken down as follows:

Cost of the services rendered during two wedding salons and photography: $600 Moral damages for the stress and inconvenience suffered as a result of the bad faith of Modelo and its representative: $15,000 Extrajudicial fees and disbursements: $1,200 [ 32 ] First of all, there was no agreement between the parties regarding the payment of any service whatsoever rendered by Lana for her participation in two wedding salons.

Hence, there is no justification of a legal nature for the Court to grant Lana the sum of $600 claimed in that regard. [ 33 ] As for the $15,000 in moral damages, no evidence supports that head of claim. The Court does not minimize the inconvenience and stress that Lana may have experienced as a result of the sublease of space from Modelo that proved unfruitful.

However, no factual element makes it possible for Lana to claim $15,000 following her commercial misadventure. [ 34 ] As for the claim for her attorneys’ fees and disbursements, the Court cannot allow it since no evidence demonstrates any abuse of right whatsoever by Modelo in bringing a civil action or otherwise. [ 35 ] Consequently, the Court allows in part Modelo’s motion introductive of suit but, exercising its judicial discretion, grants no interest, additional indemnity, costs claimed, and dismisses Lana’s cross-demand.

THEREFORE, the Court: ALLOWS in part the motion introductive of suit of 9137-9297 Québec inc. (Modelo Hair Design and Day Spa); CONDEMNS Svetlana Gelfenbeyn to pay to 9137-9297 Québec inc. (Modelo Hair Design and Day Spa) $5,248.89; DISMISSES the cross-demand of Svetlana Gelfenbeyn against 9137-9297 Québec inc. (Modelo Hair Design and Day Spa); THE WHOLE , each party paying its own costs. __________________________________ Henri Richard J.C.Q. Mtre Giovanna Ortona (GAGNON BRUNET KILANI) For the plaintiff Mtre Marin Guzun For the defendant Dates of hearing: December 10, 11 and 12, 2014