2015 QCCQ 8341, 2015 QCCQ 8341

Cyr Spence c. Hollands 2015 QCCQ 8341 COURT OF QUEBEC Small claim CANADA PROVINCE OF QUÉBEC DISTRICT OF PONTIAC LOCALITY OF CAMPBELL’S BAY Civil Division N° : 555-32-000002-143 DATE : September 22, 2015 ______________________________________________________________________ PRESENT : THE HONOURABLE JEAN FAULLEM, J.C.Q. ______________________________________________________________________ CLAUDETTE CYR SPENCE Plaintiff v.

SOPHIA HOLLANDS Defendant ______________________________________________________________________ JF 1075 JUDGMENT ______________________________________________________________________ [ 1 ] An old Greek proverb, used in its current form by Margaret Wolfe Hungerford, reminds us that “beauty is in the eye of the beholder”.

I- QUESTION IN DISPUTE [ 2 ] Can the perception of beauty be a ground to refuse to buy a portrait painting? [ 3 ] That is, in substance, the question that the Court must answer in the case at bar. [ 4 ] The Court must also determine whether the defendant is entitled to damages for the trouble and inconvenience resulting from the plaintiff’s legal claim.

II- CONTEXT [ 5 ] The plaintiff is a Painting Artist. [ 6 ] In the summer of 2013, the defendant entertained the idea of commissioning an artist to paint her portrait. [ 7 ] The parties discussed the idea when they met at a social event in Waltham, Québec. [ 8 ] The defendant was already familiar with the plaintiff’s, as she had painted her daughter-in-law’s portrait.

Since the portrait was to her liking, she discussed the possibility of having hers done by the plaintiff. [ 9 ] The parties met again the following September, at the plaintiff’s home studio. [ 10 ] After looking at certain preliminary sketches done by the plaintiff, the parties agreed on a portrait of the defendant and her dog Chico. [ 11 ] At the hearing, the parties confirmed that they had agreed on payment of $1800 for the painting. They also agreed on the way the defendant and her dog would be represented in the portrait.

A photo session even took place that day in order to crystallize the idea of the image they sought.

[ 12 ] The parties’ agreement was not put down in writing at that time. [ 13 ] It appears that the plaintiff and the defendant disagree on one of the terms of the agreement, which seems to be of the essence. III- CONTENTIONS OF THE PARTIES [ 14 ] According to the defendant, the plaintiff confirmed that she had no obligation to buy the portrait if she did not like it. [ 15 ] The plaintiff contends that she told the defendant that if she was not satisfied with the results, she would touch up and make changes to the painting before it was finalized.

IV- ANALYSIS AND DECISION [ 16 ] One thing is certain, the defendant cannot, at her sole discretion, decide not to buy the painting if she does not like it. Such purely potestative conditions are not legally valid pursuant to

article 1500 of Civil Code of Québec (CCQ). [ 17 ] However, if the condition was set by the plaintiff, who thus agreed to be subject to her client’s sole discretion, the situation is entirely different and the Court must accept it. [ 18 ] In contractual matters,

article 1426 CCQ reminds the Court that in interpreting the contract, it must take into account the nature of the contract and the circumstances in which it was formed. [ 19 ] Moreover,

article 2804 CCQ stipulates that in establishing the merits of evidence, the Tribunal must determine whether the existence of a fact is more likely than its non-existence. [ 20 ] In the case at bar, both parties acknowledged that they discussed the value of the painting. [ 21 ] The plaintiff indicated that she usually charges $2200 for a similar work of art. [ 22 ] Given the defendant’s refusal to pay such an amount for a portrait, the plaintiff lowered her fee to $1800. [ 23 ] The defendant then told the plaintiff that she still was not comfortable paying such an amount. [ 24 ] In response, according to her testimony, the plaintiff told the defendant that if she was dissatisfied with the portrait, she could request corrections or touch-ups before the painting was finalized. [ 25 ] According to the defendant’s testimony, the plaintiff stated that she would be under no obligation to buy the painting if she was dissatisfied with it. [ 26 ] It is under those circumstances that, regardless of the high cost of the painting, the defendant agreed to go ahead with the project. [ 27 ] As mentioned above, the concept of beauty is entirely subjective, and it is not up to the Court to determine whether the defendant’s portrait fulfils any standard of quality or beauty whatsoever. [ 28 ] In transactions involving visual art, buyers usually agree to pay large sums for the purchase of a work of art, either as an investment or because the work of art is pleasing to them. [ 29 ] In matters involving one’s portrait, the likelihood that a buyer might later sell the work of art and turn a profit is slim.

Thus, the buyer must truly want to own it. Otherwise, the artwork loses all interest. [ 30 ] Given the above circumstances, the Court concludes that the nature of the painting created by the plaintiff and the circumstances surrounding the negotiation of the agreement preponderantly show that the defendant could refuse to buy the painting if she was dissatisfied with it. [ 31 ] The defendant’s version seems more appropriate to these particular circumstances.

It appears that before buying a portrait of oneself, and paying $1800 to do so, a reasonable and diligent person would require satisfaction with the final result, since he or she would have to live with that image for the rest of his or her life. Undeniably, that is not the case as concerns the defendant. [ 32 ] The Court deems the above

interpretation of the contract to be the most likely, given the particular context. [ 33 ] As a result, the plaintiff’s claim is dismissed. V- CROSS DEMAND [ 34 ] The defendant is claiming $1300 in damages for the stress of the legal proceedings and the time she spent preparing the case. [ 35 ] In order to win her case as regards the cross demand, the defendant must demonstrate that the legal proceeding was instituted improperly and in bad faith.

[ 36 ] Pursuant to

article 54.1 of the Code of Civil Procedure (CCP), the Court can declare a proceeding improper and impose a sanction on the party at fault. [ 37 ] The last paragraph of

article 54.1 CCP reads as follows: The procedural impropriety may consist in a claim or pleading that is clearly unfounded, frivolous or dilatory or in conduct that is vexatious or quarrelsome.

It may also consist in bad faith, in a use of procedure that is excessive or unreasonable or causes prejudice to another person, or in an attempt to defeat the ends of justice, in particular if it restricts freedom of expression in public debate. [ 38 ] Otherwise, presenting a defence further to legal proceedings and spending time preparing for it are normal inconveniences that do not give rise to a claim for damages. [ 39 ] Even if the Tribunal concludes that the defendant was entitled to refuse to buy the portrait, that does not necessarily mean that the plaintiff’s recourse is manifestly ill founded. [ 40 ] In the case at bar, the Court’s decision is based on the

interpretation of the clauses of an oral contract, which

interpretation is connected to the evidentiary weight of the parties’ testimony. [ 41 ] The Court does not conclude that the plaintiff hid the truth or instituted the proceeding in bad faith, with the knowledge that her version of the facts was deceitful. On the contrary, the Court fully understands that she may not have succeeded in conveying her true intention. [ 42 ] Thus, it is highly likely that the plaintiff’s intention, in offering the plaintiff the possibility of deciding not to purchase the painting if she was dissatisfied, was to offer to make touch-ups in order to make the painting acceptable.

There is no doubt in the Court’s mind that from the very start, the plaintiff was convinced that the defendant could not no less but adore the work of art. [ 43 ] However, given the circumstances specific to this case, the Court concludes that the plaintiff’s intention was not formalized in a clause negotiated with and accepted by the defendant. [ 44 ] Without questioning the legal validity of an oral agreement, the Court can only note how difficult it is for the parties to provide evidence of a specific condition in such a contract, especially when the parties’ versions appear to be credible, as with those that were heard.

Had they taken the precaution of writing out their agreement, they would immediately have realized their misunderstanding. [ 45 ] In the absence of a written document, the Court must determine the probative value of the parties’ testimony and determine which one appears more likely, based on the nature of the agreement and given the particular circumstances in which their negotiation took place. [ 46 ] Consequently, given the lack of preponderant evidence of the plaintiff’s bad faith, showing that she abused her rights or acted in bad faith by introducing this recourse, the cross demand must be dismissed. [ 47 ] However, given that the principal claim was dismissed, the defendant is entitled to a reimbursement of the court costs for her contestation. [ 48 ] THEREFORE, THE COURT: [ 49 ] DISMISSES the plaintiff's legal claim; [ 50 ] CONDEMNS the plaintiff to pay the defendant the court costs for contesting the claim, set at 94 $; [ 51 ] DISMISSES the defendant's cross demand, without costs. __________________________________ JEAN FAULLEM J.C.Q.

Date of hearing: July 6, 2015