2011 QCCQ 395, 2011 QCCQ 395

Thomas c. Brand-u Media inc. 2011 QCCQ 395 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL Civil Division No: 500-22-162651-098 DATE: January 20, 2011 ______________________________________________________________________ PRESIDED BY THE HONOURABLE HENRI RICHARD, J.C.Q. ______________________________________________________________________ EVE R. THOMAS Plaintiff v. BRAND-U MEDIA INC. Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Miss Eve R.

Thomas claims from Brand-U Media inc. (hereinafter " Brand-U ") the sum of $9,500 detailed as follows: 1. Unpaid salary: $ 3,500 2. Inconvenience, loss of reputation, copyright infringement and loss of enjoyment of life: 4,000 3. Compensation for no notice of termination and abusive resiliation of employment: 2,000 [ 2 ] In defence, Brand-U pleads a breach of contract from Miss Thomas and the non-fulfilment of her obligations towards the 2009 spring issue of the magazine Naked Eye. Questions in dispute [ 3 ]

a) Has Miss Thomas fulfilled her obligations towards Brand-U ?

b) If so, what damages can be claimed ?

c) Is the claim of Miss Thomas regarding "inconvenience, loss of reputation, copyright infringement and loss of enjoyment of life" well-founded ?

d) Can Miss Thomas invoke the absence of a notice of termination of her contract ?

e) Is the resiliation of Miss Thomas' contract abusive ? The facts and analysis [ 4 ] Naked Eye (hereinafter the " magazine ") is described as "Canada's only pop culture source" magazine and is published quarterly by Brand-U. [ 5 ] In January 2008, Miss Thomas is hired by Brand-U as managing editor of the magazine. [ 6 ] She is promoted as editor-in-chief in March 2008 and is duly paid for the issues published in 2008. [ 7 ] For each issue, Miss Thomas and Brand-U sign a contract. The last one is dated January 30, 2009 for the 7 th issue of the magazine to be published in spring 2009 (Exhibit P-1).

As it appears from this contract, Miss Thomas is paid "$7,000.00 CDN for the full completion of your tasks". Half of that amount is paid to Miss Thomas "and the remaining 50 % will be paid to you once the 7 th issue of Naked Eye has been FULLY completed. Fully completed is understood as a final printed book form ". [ 8 ] Nowhere are the tasks of Miss Thomas defined.

[ 9 ] From the evidence adduced, the Court understands that Miss Thomas acted as the "chef d'orchestre" for the purposes of publishing the magazine. A small team to achieve her tasks supported her. [ 10 ] Despite the efforts of the representative of Brand-U, Mr Michael Leblanc, to establish the contrary, the Court concludes that by the end of March 2009, Miss Thomas executed all of her obligations towards Brand-U.

At that time, the magazine was ready to be printed and published. [ 11 ] The contract P-1 contains, in particular, the following stipulations: " • Administration has the FINAL approval on all material i.e. stories and photos related to the Naked Eye Magazine – Spring Issue 2009 . • Naked Eye will retain all of the rights and ownership of all of your work including electronic and promotional rights. • Extra Notes – Please keep records of all contracts including phone numbers, emails, and taped conversations for fact-checking purposes. • All editorial and photos must be firstly approved by the Publisher.

ALL stories and photos must be firstly "pitched" to the Publisher – Mr.

Burton Rice and he will decide whether the idea is accepted or rejected. • Final Payment will be made once the magazine has been printed (Received from the printers)." [ 12 ] At the beginning of April 2009, after her return from a three-day trip, Miss Thomas was informed that a new editor-in-chief was appointed to complete the magazine and make all the changes requested by the "administration", or more precisely Mr Burton Rice, the sole administrator and shareholder of Brand-U, referred as "president and publisher". [ 13 ] It appears clearly from the contract P-1 that Mr Rice has the final word before the printing and the publication of the magazine.

He has the right to request any change or to disapprove "on all material". [ 14 ] Be this as it may, Miss Thomas is not obliged to concur, accept or participate to any change at the request of Mr Rice, after the completion of her tasks. [ 15 ] As it is provided in the contract P-1, Miss Thomas is entitled to a payment of $7,000 "for the full completion of your tasks".

The Court reiterates that as of the end of March 2009, the preponderant evidence establishes the full execution of her "tasks" and the publication of the 2009 spring issue is carried out afterwards. [ 16 ] This being the case, the portion of Miss Thomas' claim as "unpaid salary" in the amount of $3,500 is well founded. [ 17 ] On July 4 th , 2009, the new editor-in-chief of the magazine, Ms Karine LaRocque, wrote the following on a Facebook page: "Hey guys, the magazine is doing GREAT.

Our previous Editor-in-Chief was let go because the publisher was unhappy with her work and the couldn't get an issue out on time to save her life.… Word is she's hating hard and trying to get people to leave this group. Someone please get her a job so the can put this "traumatic experience" behind her and move on with her life. For those who may have questions, I invite you to message me directly. Thanks!!!

And for those who don’t care about all that drama, don’t forget to check out our new summer issue with GSP on the cover, on newsstands now!" (Exhibit P-3) [ 18 ] As it appears from the Exhibit P-3, the said posting is located beside a previous front page of the magazine and comes from "Facebook / Naked Eye magazine". [ 19 ] From the wording of this note, the Court concludes that Ms LaRocque was not acting personally but as a representative of the magazine. It is defamatory to make such a "notice to the world" related to any problem between Miss Thomas and the publisher.

It attacks the dignity and the integrity of Miss Thomas.

Fortunately, it was removed from Facebook and was not seen by a lot of persons. [ 20 ] Also, the evidence establishes that Miss Thomas, despite this infringement to her reputation, found a new job, in January 2010, at the level of her expectations and professional competences. [ 21 ] This being, the Court arbitrates that damages resulting from her loss of reputation, as moral damages and loss of enjoyment of life, at the amount of $2,000. [ 22 ] Furthermore, no copyright infringement can be put forward by Miss Thomas due to the content of the contract P-1, as previously stated. [ 23 ] As for the "compensation for no notice of termination and abusive resiliation of employment", the Court cannot grant any amount because of the nature of the contract intervened between the parties.

There is no need to send any notice of termination of such a contract, because it ends when the magazine is printed and the Court finds no "abusive resiliation". [ 24 ] Given the preceding as a whole, the Court concludes that Miss Thomas establishes the cogency of her claim up to the amount of $5,500.

THEREFORE, the Court: GRANTS , in part, Eve R. Thomas' Motion in Introduction of Proceedings; CONDEMNS Brand-U Media inc. to pay to Eve R. Thomas the amount of $5,500 with interest at the legal rate and the additional indemnity provided for under

Article 1619 of the Civil code of Québec , as from September 18, 2009; THE WHOLE , with costs. __________________________________ Henri Richard, J.C.Q. M e Gavin Wyllie, for Plaintiff M e Mathias Rancourt, (DEVEAU BOURGEOIS GAGNÉ HÉBERT) for Defendant Date of hearing: January 12, 2011