2022 QCCQ 8768, 2022 QCCQ 8768

Alibi Entertainment Inc. c. O'Keefe 2022 QCCQ 8768 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No: 500-22-263379-201 DATE: November 16, 2022 ______________________________________________________________________ BY THE HONOURABLE STÉPHANE DAVIGNON, J.C.Q. ______________________________________________________________________ ALIBI ENTERTAINMENT INC. Plaintiff v.

DAVID O’KEEFE Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ OVERVIEW [ 1 ] Alibi Entertainment Inc. (" Alibi ") is a television, film and entertainment production company. Its president and founder is Mr.

James Marshall Hyslop. [ 2 ] In the normal course of its business, Alibi employs various collaborators as conceptual designers to develop concepts that are eventually presented to broadcasters to whom it sells its productions. [ 3 ] Interested in presenting a documentary film project on the Second World War to its clients, and more specifically to the Historia channel, Alibi approached Mr. David O'Keefe, with whom one of its vice-presidents, Mr. Nick Crowe, had worked in the past. It turns out that Mr.

O'Keefe is a historian with a particular interest in military history. [ 4 ] On November 18, 2016, Alibi entered into an agreement to retain Mr. O'Keefe (the " Agreement ") for a project entitled Missing-Presumed Dead (" Missing ") dealing with the history of a Royal Canadian Air Force Lancaster bomber shot down over Europe, specifically to address the fate of its crew, including the pilot, who would eventually become an intelligence agent for Germany. [ 5 ] According to the Agreement, Mr.

O'Keefe is retained in exchange for $1,000 which Alibi agrees to pay him for the development of his concept in connection with Missing, so that he can present it to potential buyers for distribution [1] . [ 6 ] Furthermore, the Agreement provides that if Alibi does produce a documentary on Missing, that is, if the project materializes, then Mr. O'Keefe will be engaged as historian, researcher and co-writer and co-producer, and that in that event, he will be paid a fee for his services to be negotiated and agreed upon by the parties [2] . [ 7 ] In the fall of 2016, Mr. O'Keefe approaches Mr.

Hyslop as he is in the process of purchasing a home and negotiating a mortgage with a financial institution. However, his down payment is insufficient to obtain the loan he is seeking. He therefore he asks Mr. Hyslop for an advance on the fees that would be paid to him if the Missing project goes ahead. [ 8 ] Confident that the project would go ahead, Mr. Hyslop agrees that Alibi grant Mr. O'Keefe's his request for $13,000. Unfortunately, Missing does not go forward as no broadcaster agrees to purchase it, despite Alibi's attempts to sell it. [ 9 ] In this context, Alibi is claiming from Mr.

O'Keefe the $13,000 that was advanced to him. In addition, Alibi is claiming $2,000 from Mr. O'Keefe to compensate for what it alleges are inconveniences resulting from the necessity of undertaking legal proceedings. [ 10 ] Mr. O'Keefe contests the claim. In substance, he argues that he, in turn, rendered services to Alibi in excess of the $13,000 in value. ISSUES IN DISPUTE [ 11 ] The action brought by Alibi raises the following issues: 1) Is Alibi entitled to be reimbursed for $13,000 that it paid to Mr. O'Keefe?

2) Is Alibi entitled to damages of $2,000 for inconvenience? ANALYSIS 1) Is Alibi entitled to be reimbursed for $13,000 that it paid to Mr. O'Keefe? [ 12 ] In its claim, Alibi alleges having loaned Mr. O'Keefe $13,000 to enable him to obtain a mortgage for which it claims reimbursement. [ 13 ] In his defence, Mr. O'Keefe does not deny having received this amount. However, he argues that it is not a loan that he is obliged to repay since it was an advance fee and that in fact, he rendered services to Alibi for a value greater than the amount claimed from him. [ 14 ] During his argument, counsel for Mr.

O'Keefe argues that there was no loan agreement between the parties. However, he concedes that his client did receive the sum of $13,000 on April 24, 2017 [3] , but that it was directly related to services to be rendered. He adds that a proper invoice for fees was issued by Mr. O'Keefe for the amount received [4] . [ 15 ] For the following reasons, the Court cannot accept Mr. O'Keefe's grounds of defence. Whether the obligation arising from the remittance of the $13,000 by Alibi to Mr.

O'Keefe arises from a loan agreement or from a conditional obligation [5] , namely the payment of fees for services, the result is the same in the circumstances of this case. [ 16 ] During his testimony, Mr. O'Keefe acknowledges that he himself made the request to receive this amount of money from Alibi in April of 2017, as he was in the process of purchasing a home and his personal liquidity did not permit him to obtain a mortgage loan at that time. [ 17 ] He originally contacted Mr.

Hyslop and asked him if Alibi could advance him $8,000 on an upcoming fee for the Missing project, as he wanted to obtain a mortgage from a financial institution. Shortly thereafter, he contacted him again and told him that he finally needed $13,000. An exchange of emails between him and Mr. Hyslop on April 24, 2017 confirms this version [6] . [ 18 ] Mr. Hyslop, himself confident that Missing would go ahead and be produced agreed to Mr. O'Keefe's request and that Alibi would pay him $13,000 as an advance fee. [ 19 ] From these exchanges, it is clear that if Missing does not proceed, Mr.

O'Keefe will have to credit the $13,000 back to Alibi for future services. Alibi maintains that no such services were rendered by Mr. O'Keefe in connection with other projects. [ 20 ] Mr. O'Keefe alleges the contrary and that he personally performed other services for Alibi. Accordingly, he argues that he should not be required to repay the advance received. It is up to him to prove these claims [7] . However, the proof in defense doesn’t support Mr.

O’Keefe’s allegations and therefore the Court finds that his burden is not met. [ 21 ] There is nothing in the preponderance of the evidence to support a finding that Mr. O'Keefe actually performed any other services for Alibi for which he should receive compensation that was agreed to by the parties. He proves no oral agreement, no contract, no timesheets or invoices issued and provided to Alibi, no documents exchanged between the parties that would demonstrate, even remotely and at any relevant time, the existence of such services that were rendered with Alibi's consent. Moreover, Mr.

O'Keefe makes no counterclaim to recover the value of such services and to request compensation with the amount claimed by Alibi. Accordingly, the Court dismisses his defence entirely. [ 22 ] Thus, even if the statement of claim was in fact drafted as the recovery of a loan and there is not strictly speaking a loan agreement in evidence, the legal syllogism arising from Alibi's claim is perfectly intelligible and understandable and leads to the conclusions sought. [ 23 ] It is the true intention of the parties that the Tribunal must seek in carrying out its mission.

In this regard, it is clear from the evidence that the $13,000 paid to Mr. O'Keefe by Alibi amounts to a loan when it is given to him, since the parties agree that it can only be considered an advance on fees if Missing is created and services are then rendered by Mr. O'Keefe. The payment of an obligation is not strictly the repayment of a sum of money.

Article 1553 of the Civil Code of Quebec (" CCQ ") specifically provides that payment may be made by the performance of the obligation itself. [ 24 ] In this case, the parties agree that payment may be made by the performance of services for the benefit of Alibi. To do so, however, they set a condition, namely that the Missing project be carried out. Since this condition has not been met, payment in this form is no longer an option. This in no way relieves Mr.

O'Keefe of his obligation to repay the amount received, since it is generally agreed that the $13,000 was not given to him as a gift. [ 25 ] Therefore, the debate remains purely semantic since even if Alibi did not originally pay the $13,000 in the form of a loan agreement, the common intention of the parties is clear. Thus, if the Missing project does not materialize, Mr. O'Keefe will have to credit the amount received to Alibi.

For all intents and purposes, this is a loan to him, in the form of advances on future fees to be paid to him, but with a condition - the production of Missing - which never materialized [8] . Since he is not entitled to any further fees, he is required to repay the amount received. 2) Is Alibi entitled to damages of $2,000 for inconvenience? [ 26 ] In addition to its claim to be reimbursed for the $13,000 loaned to Mr.

O'Keefe, Alibi is claiming $2,000 from him to compensate damages and inconvenience associated with the difficulties of collection. [ 27 ] However, the Tribunal notes that with the exception of the testimony of Mr. Hyslop, who criticizes Mr. O'Keefe for his attitude and refusal to repay the amount received when Alibi had generously agreed to help him, the evidence presented at the hearing does not

allow for the conclusion that Alibi has suffered damages that exceed the inconvenience and disturbance of all the claims made necessary by a dispute between the parties and the refusal of a debtor to pay his debt to his creditor. [ 28 ] In this regard,

article 1617 C.C.Q. provides that damages resulting from delay in the performance of an obligation to pay a sum of money consist of interest at the agreed rate or, failing that, at the legal rate. There was no evidence at the hearing to establish damages other than those resulting from Mr. O'Keefe's delay in paying Alibi, knowing that Missing would not go forward. In these circumstances, the Court cannot grant Alibi's request for additional damages. FOR THESE REASONS, THE COURT : [ 29 ] GRANTS in part the claim of Alibi Entertainment Inc.; [ 30 ] CONDEMNS Mr.

David O'Keefe to pay the sum of $13,000 to Alibi Entertainment Inc. with interest at the legal rate plus the additional indemnity provided for in

Article 1619 of the Civil Code of Quebec as of the date of default, December 9, 2019; [ 31 ] THE WHOLE , with legal costs. __________________________________ STÉPHANE DAVIGNON, J.C.Q. Mtre Camille Duguay FASKEN MARTINEAU DUMOULIN LLP Attorneys for the Plaintiff Mtre Howard Barza Attorneys for the Defendant Date of hearing: May 27, 2022