2016 QCCQ 11701, 2016 QCCQ 11701

McKeown c. Primeau 2016 QCCQ 11701 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No. 500-32-148152-152 DATE: October 11, 2016 ______________________________________________________________________ PRESIDED BY JUDGE HENRI RICHARD ______________________________________________________________________ ROBERT McKEOWN Plaintiff v.

JONATHAN PRIMEAU Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Robert McKeown is claiming $15,000 from Jonathan Primeau for the following services: Development, delivery, and presentation of a roughly 30-page (in final form 67 pages) document detailing a food and beverage concept for a potential restaurant space in a condo development in Old Port. [ 2 ] In defence, Mr Primeau is denying the existence of a contract for services with Mr McKeown and is referring to a potential partnership that did not lead to the signature of a written agreement. [ 3 ] In addition, in cross-demand, Mr Primeau is claiming $2,500 [TRANSLATION] “to compensate for all the stress, inconvenience and lost time that the plaintiff has caused me when he clearly knows that we never came to an agreement and that he has no right to claim against me, as he has admitted a number of times, and for forcing me to defend myself before the Court in these abusive proceedings, the whole, plus Court costs”.

Questions in dispute [ 4 ] (

a) Did Mr McKeown discharge his burden of establishing the existence of a contract for services with Mr Primeau? (

b) Has Mr Primeau adduced preponderant evidence justifying his cross-demand against Mr McKeown?

Context and analysis [ 5 ] Robert McKeown designs and develops restaurant concepts around the world. [ 6 ] Jonathan Primeau is a business person who works mainly in the field of developing concepts related to food and wine. [ 7 ] Mr McKeown and Mr Primeau met for the first time in mid-June 2015 to discuss a possible joint project to present to a real estate promoter a design and concept for a commercial space on the ground floor of a complex to be built in Old Montreal. [ 8 ] The initial idea was to create a joint project with two other partners and to have the real estate promoter in question sign a non- disclosure agreement and a letter of intent prior to the presentation. [ 9 ] The presentation of the project to the promoter was planned for mid-July 2015. [ 10 ] On June 28, 2015, Mr Primeau emailed to Mr McKeown and the two other partners, Martin Juneau and Louis-Philippe Breton, acting through their company Gestion Mouni inc., a draft contract to be signed by them. [ 11 ] The purpose of the contract was defined as follows: WHEREAS the parties would like to submit a proposal with respect to (

i) the development of a concept (the “ Concept ”) for an area of more than 10,600 square feet (the “ Area ”) located within a real estate project composed of condos, common spaces, specialty shops,

cafés and fine food stores called “21e arrondissement” developed by Alliance Prével Inc. (“ Prével ”) and located at the corner of William Street and Queen Street in Montréal (the “ Project ”), and (ii) the rental of that Area; [ 12 ] It was provided that the partners would collectively invest $15,000 to develop the project and that Mr McKeown would prepare the documents for the presentation to the promoter in exchange for remuneration of $10,000. [ 13 ] The draft contract also included a “timeline”, of which the first element was the “execution of letter of intent and non disclosure agreement with Prével”, which was scheduled for June 29, 2015. [ 14 ] The evidence reveals that the draft contract was never signed by the partners, even though Mr McKeown sent an email on June 30, 2015 in which he said: “So long as the changes have been made in the agreement, this email serves as my signature for the agreement between myself, Jonathan Primeau, and Mouni”. [ 15 ] Mr McKeown repeatedly insisted to Mr Primeau that he was to be paid the fee, which irritated Mr Primeau and “cooled” his relationship with Mr McKeown. [ 16 ] On June 30, 2015, Mr Primeau confirmed by email that the payments to Mr McKeown could be made “if we come to an agreement today, if not when we agree”. [ 17 ] However, on July 1, 2015, Mr Primeau informed Mr McKeown that the promoter refused to sign the non-disclosure agreement, and added: “As you mentioned, I recommend that you put this on hold until further notice, especially seeing that we did not yet hear back from Josh’s group”. [ 18 ] On July 3, 2015, Mr McKeown acknowledged in emails to Mr Primeau that the promoter had not signed the non-disclosure agreement and letter of intent as requested, and added: We’re more than halfway done and we’ve also produced the most valuable and crucial portion – the concept and core briefs.

At this point, I can’t stop this train as it is too far along. . . I hope we can move the sticks on the agreement we hashed out. . . I’m going to continue on the former path as what we’ve got is very good and deserves to be completed.

I hope you will join me by finishing our agreement and supporting the completion of the concept documents. [ 19 ] This being, Mr McKeown acknowledged the importance of the signature of the draft contract in order to establish contractual relations with Mr Primeau and the other partners. [ 20 ] Even though the draft contract was not signed, Mr McKeown continued to develop the concept in question, at his own risk. [ 21 ] The evidence reveals that in mid-July 2015, Mr McKeown presented the project to the promoter alone, without the presence of Mr Primeau and the other partners.

The Court notes that between the beginning of July and July 16, 2015, the date the presentation was made to the promoter, Mr McKeown wrote directly to the promoter’s representatives, without sending copies to Mr Primeau and the other partners. [ 22 ] In civil law, the burden of proof is on Plaintiff’s shoulders in accordance with the principle provided for in

article 2803 of the Civil Code of Québec ( C.C.Q. ) which states “a person seeking to assert a right shall prove the facts on which his claim is based”. [ 23 ] The Court must weigh the probabilities pursuant to

article 2804 C.C.Q . which states “evidence is sufficient if it renders the existence of a fact more probable than its non-existence”. In other words, the Court must establish what is more probable and likely. [ 24 ] Articles 2862 and 2865 C.C.Q. provide: 2862. Proof of a juridical act may not be made, between the parties, by testimony where the value in dispute exceeds $1,500.

However, in the absence of proof in writing and regardless of the value in dispute, proof may be made by testimony of any juridical act where there is a commencement of proof; proof may also be made by testimony, against a person, of a juridical act executed by him in the ordinary course of business of an enterprise. 2865. A commencement of proof may arise from an admission or writing of the adverse party, his testimony or the production of real evidence, where it renders plausible the alleged fact. [ 25 ] Moreover,

article 1385 C.C.Q. establishes that a contract is formed by the sole exchange of consents between persons having capacity to contract. [ 26 ] Thus, Mr McKeown must establish, by preponderance of evidence, that there was an exchange of consent with Mr Primeau and the other partners for the formation of a verbal agreement by which his services were retained. [ 27 ] The Court has taken the time to analyse all of the documentary evidence adduced and finds that Mr McKeown has not discharged his burden of proof to establish the agreement of wills of Mr Primeau and the other partners to any verbal contract for services. [ 28 ] It seems clear that the relationship between the parties had to be made concrete through a written agreement that was never

signed. [ 29 ] Mr McKeown took the risk of working for many hours on a project when he knew that the draft contract sent, discussed and negotiated had not led to an exchange of consents between the partners concerned. [ 30 ] Mr McKeown therefore acted at his own risk in expending time, energy and effort to create and develop a concept when no contract for services had been entered into with Mr Primeau and the other partners. [ 31 ] Therefore, Mr McKeown’s allegations and pleadings of the existence of a verbal contract for services are unfounded since the exchange of communications between the parties shows that their relationship was clearly conditional on the signature of the draft contract that Mr Primeau sent on June 28, 2015. [ 32 ] In addition, Mr McKeown was advised to put the project “on hold until further notice”, but continued to work on it even though the draft project had not been signed. [ 33 ] Nonetheless, the Court cannot allow Mr Primeau’s cross-demand because he did not show that Mr McKeown committed a fault or abused a right in the context of his claim. [ 34 ] The fact that Mr McKeown did not succeed in convincing the Court by preponderance of evidence that there was a verbal contract for services does not mean that he committed a fault with respect to Mr Primeau. [ 35 ] In any case, even if Mr McKeown had committed a fault, the Court would have dismissed Mr Primeau’s cross-demand because no evidence was filed in support of his damages.

Simple allegations are not sufficient to establish the amount of the damages claimed. [ 36 ] Consequently, given the lack of evidence of the existence of a contract between the parties and of a fault committed by Mr McKeown with respect to Mr Primeau, the Court has no choice but to dismiss the claim and the cross-demand. However, exercising its judicial discretion, the Court does not impose any costs.

THEREFORE, the Court: DISMISSES Robert McKeown’s claim against Jonathan Primeau; DISMISSES Jonathan Primeau’s cross-demand against Robert McKeown; THE WHOLE , with each party paying his costs. __________________________________ Henri Richard J.C.Q. Date of hearing: August 31, 2016