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Massé c. 3311066 Canada inc. (Marina Centre)

2011 QCCS 3201













June 28, 2011












3311066 CANADA INC. (doing business under the name of "Marina Centre")











[1]           This is the ninth and, hopefully, the last chapter of a stubborn judicial battle between a landlord and a tenant that started a decade ago.

[2]           The operator of a laundry room in an apartment building, Mr. Normand Massé ("Massé") is seeking the termination of his commercial lease and more than $500,000 in damages from his landlord, 3311066 Canada Inc. ("Marina Centre") and its principal shareholder, Mr. Vincenzo Barrasso ("Barrasso").

2.         THE FACTS

2.1       The parties

[3]           Massé is a 71 year-old teacher of ethics and religious studies with a Master's degree in Business Administration.  He has been teaching high school students some 40 years.

[4]           In the 1980s', he invested heavily in real estate.  At one time, he owned some 2,400 apartments, including those in the building situated at […], in Pierrefonds (Montreal) (the "Apartment Building"), that contains 248 residential apartments, ground floor commercial space and an indoor parking lot.

[5]           He lost it all in the early 90s' as he was overextended and was unable to withstand the headwinds created by rising interest rates.

[6]           Marina Centre purchased the Apartment Building in 1999.

[7]           It is owned and controlled by Barrasso, a 61 year-old businessman who possesses a number of multi-residential high rise buildings across Canada.

2.2       The Lease

[8]           On February 1, 2000, the lease (the "Lease") of the laundry room in the Apartment Building (the "Premises") was assigned to Massé.[1]

[9]           It is for a term of 10 years, starting July 1, 1995, with an option to renew for an additional period of 10 years ending June 30, 2015.  It gives the tenant the exclusive right to operate a laundry room in the Apartment Building.[2]

[10]        The laundry room[3] was equipped with 10 pairs of washing machines and dryers (the "Machines") that Massé leased from Société Coinamatic Inc. ("Coinamatic").

[11]        After paying rent for the Machines and the Premises, Massé was left with a small monthly profit.

2.3       Chapter 1 - The Premises are unilaterally reduced and the revenues from the Machines are taken

[12]        In December 2000, Marina Centre proceeded to renovate the laundry room without consulting or notifying Massé.  Among other things, it demolished certain walls and took back about 500 square feet that it subsequently converted into a convenience store (dépanneur).

[13]        Massé says that following this event, he met with Barrasso and tried, without success, to obtain an adjustment of rent.  Barrasso denies that such a meeting ever occurred.  In any event, in December 2002, Massé filed a motion to have the rent reduced and to obtain damages.[4]

[14]        In the spring of 2003, frustrated by the slow pace of the legal process and the delays and postponements obtained by Marina Centre, Massé decided to apply some pressure.  He put a stop payment on post-dated cheques for the rent of May and June 2003.

[15]        Marina Centre reacted swiftly.  It mandated a bailiff, Mr. Normand Poissant ("Poissant"), to change de locks on the Machines, remove and count the money and deposit it in a trust account.

[16]        Poissant proceeded to do so in late June.

[17]        At first, he was unable to remove the locks on the Machines so he had to return with a locksmith.  He succeeded in taking the money on July 2nd, collecting $169.00.  He returned on July 15th and removed another $549.00.  He then continued to do so on an almost weekly basis until his mandate was terminated. [5]

[18]        Although he did not know it at the time, this was the beginning of the end for Massé.  He never regained occupancy of the Premises despite the many chapters of the unfolding story that would follow.

2.4       Chapter 2 - The safeguard order

[19]        On July 14, Massé applied to the Court for a safeguard order to obtain access to the Machines and their revenues.[6]

[20]        On the 16th, Madame Justice Hélène Langlois, ordered: (i) Marina Centre to give Massé access to the Machines within two days time; and (ii) Massé to resume the payment of his rent until the matter could be heard on the merits in a few months time.[7]

2.5       Chapter 3 - The appeal of the safeguard order

[21]        On July 18, Marina Centre's attorney wrote to his counterpart to advise him that his client intended to appeal the safeguard order.[8]  He asked for Massé's cooperation to suspend its execution.

[22]        He gave him the reassurance that the revenues from the Machines would be held in trust and the expenses of the laundry room would be paid by Marina Centre:

"[…] nous entendons formuler une requête pour permission d'appeler de cette décision et demandons votre collaboration pour mettre en suspens l'exécution d'une telle ordonnance sachant que Monsieur Massé n'en souffre d'aucun préjudice puisque les revenus de la buanderie sont comptabilisés et conservés en fiducie chez le huissier instrumentant et, les dépenses de la buanderie sont assumées par l'intimée.  De plus, Monsieur Massé retient le paiement de son loyer depuis le 1er mai, 2003 et ainsi ne souffre d'aucun préjudice."[9]

[our underlining]

[23]        The appeal of the safeguard order was dismissed by Mr. Justice Jacques Chamberland on August 6, 2003.[10]

2.6       Chapter 4 - The contempt of Court order

[24]        Marina Centre did not relent.

[25]        Six letters were exchanged by the attorneys between August and October 2003 that failed to materialise into Massé's access to the Machines.[11]

[26]        Given this state of events, Massé filed a motion to have Marina Centre declared guilty of contempt of court.[12]

[27]        A one-day hearing was held in February 2004 before Mr. Justice Paul Chaput.

[28]        As a means of defence, Marina Centre argued it was not in contempt since Massé had not yet paid the missing rent of May and June 2003.

[29]        In a judgment dated March 2, 2004, Judge Chaput dismissed that submission and held that Marina Centre was not justified in withholding access to the Machines.  He found it guilty of contempt of court and imposed a $4,000 fine.[13]

2.7       Chapter 5 - The appeal of the contempt of Court order

[30]        Marina Centre appealed the decision.

[31]        In October 2004, the motion to dismiss the appeal taken by Massé was granted.[14]  In his judgment, the Chief Justice, the Honourable Mr. J.J. Michel Robert, ruled that Marina Centre's appeal was abusive and dilatory.

[32]        Regardless, a month later, in November 2003, Marina Centre entered into a ten year lease agreement for the Machines with Coinamatic.[15]

2.8       Chapter 6 - The hearing with respect to the reduction of the size of the Premises

[33]        In September 2003, Judge Langlois presided over a one-day hearing in respect to the unilateral reduction of the size of the Premises by Marina Centre.

[34]        Marina Centre raised several grounds of defence.  Chief among them was that the Lease and its assignment to Massé were not valid and that certain terms and conditions of the Lease were abusive, such that, Massé had no right to occupy the Premises.

[35]        In her decision of January 6, 2004, Judge Langlois held that the Lease and its assignment were valid and the clauses being challenged were not abusive.  She granted the requested rent reduction and fixed the monthly rent payable from December 2000 until June 30, 2015.[16]

[36]        She ordered Marina Centre to reimburse Massé the sum of $24,281.25 for his overpayment of rent during the period of December 2000 to January 1, 2004. She also awarded Massé $3,000 in damages due to the breach of his peaceful enjoyment of the Premises.

2.9       Chapter 7 - The appeal of Judge Langlois' decision

[37]        Marina Centre appealed Judge Langlois' decision.

[38]        In October 2006, some two and half years later, the appeal was dismissed.[17]

[39]        This did not bring finality to the process.  Marina Centre chose to ignore the judgment of the Court of Appeal.

[40]        In January 2007, Marine Centre renovated and refreshed the laundry room.  it removed the Machines from the Premises and installed its own washers and dryers.

2.10     Chapter 8 - The trust account and the hypothecary action

2.10.1 The trust account

[41]        Following the dismissal of the appeal, Massé's attorney wrote to Marina Centre three successive letters over a period of four months[18], asking for: (i) payment of the capital and interest owing pursuant to Judge Langlois' judgment; (ii) the keys to the Machines; (iii) an accounting of the sums collected since July 2003; and (iv) the regularisation of the contractual relationship between Massé and Coinamatic, given that Marina Centre had entered into its own 10 year lease agreement for the Machines with this company.[19]

[42]        Receiving no reply, he wrote to Poissant asking him for an accounting of the sums held in his trust account.[20]

[43]        Poissant replied in January 2007 to explain that pursuant to written instructions from Marina Centre, his mandate had been terminated some three years previously and that he had remitted the sums he had collected and held in trust ($27,574.50) to Marina Centre.[21]

[44]        Shock is an understatement to describe Massé's reaction to this turn of events.  Imagine Massé's stupefaction to discover he had been left in the dark about this situation, depriving him of all hope of being able to settle this matter once and for all.

2.10.2 The hypothecary action

[45]        Thereby, unable to collect the amount awarded pursuant to Judge Langlois' judgment, Massé published a legal hypothec against the Apartment Building in December 2006.

[46]        He then served and published a 60-day taking-in-payment notice in May 2007.  In July, he instituted an hypothecary action to obtain the forced surrender of the Apartment Building.[22]

[47]        In September 2007, on the morning of the scheduled hearing, Marina Centre paid Massé the full amount due pursuant to the judgment.[23]

2.13     Chapter 9 - The current proceedings - The position of the parties

[48]        Massé is asking for the profits he was deprived of earning from July 2003 until June 30, 2015, punitive damages and the payment of his extrajudicial fees.

[49]        He submits that the corporate veil of Marina Centre should be lifted so that Barrasso can be found personally liable for any damages that are awarded.

[50]        He seeks the provisional execution of this judgment notwithstanding its eventual appeal.

[51]        Marina Centre and Barrasso deny the claim.

[52]        They begin their pleadings by arguing that Massé is not what he appears to be, "a Saint bearing a cross on his shoulders".  Rather, they argue he is more like "Judas with his 30 pieces of silver".

[53]        They advance that he prefers to file proceedings and claim exaggerated sums that he would never have been able to earn from the actual operation of the laundry room.  They insist that:

a)            Massé is the author of his own misfortune, as he did not pay the rent of May and June 2003, such that, Marina Centre had no other choice but to proceed as it did;

b)            the damages being claimed are greatly exaggerated;

c)            Massé's claim is prescribed;

d)            Barrasso has no personal liability in this matter;

e)            the claims for extrajudicial fees and punitive damages are not founded in law; and

f)             Massé did not mitigate his damages by opening another laundry room.

[54]        In their defence and counterclaim, the Defendants seek $15,000 in damages from Massé, given what they describe to be the "frivolous" nature of his claim.

[55]        The Defendants discontinued this counterclaim on the second and final day of the hearing.

[56]        Given that the issue of costs was not raised, the Court will presume that the Plaintiff has not renounced to them.[24]  It will, therefore, acknowledge the discontinuance of the Defendants' counterclaim but will, nevertheless, award costs of same in favour of Massé.

3.         THE ISSUES

[57]        The Court identifies and proposes to analyse the following questions of fact and law:

a)            Is Massé entitled to obtain the resiliation of the Lease?

b)            Should Massé be awarded the lost profits he is seeking?

c)            Are punitive damages appropriate in the circumstances?

d)            Is Massé entitled to the payment of his extrajudicial fees?

e)            Should Barrasso be held personally liable?

f)             Is the provisional execution of the judgment to be ordered?


4.1       Position of the parties

[58]        Massé argues that his inability to obtain access to the Premises leaves him with no other choice but to seek the resiliation of the Lease.[25]

[59]        In their defence, the Defendants acknowledge the resiliation of the Lease as of June 30, 2007.

[60]        They argue, however, that they were justified to proceed as they did.

[61]        They say that Marina Centre had no other option.  According to them, this is a simple case.  Marina Centre took over the operation of the laundry room because Massé was not paying his rent despite the fact that he was benefiting from the services of the Apartment Building.

[62]        They allege that he has no lease with Coinamatic and that he was not paying the rent for the Machines on a timely basis.

[63]        Finally, they insist that Massé failed to return to the Premises and to receive the keys to the Machines on at least two occasions.  Barrasso says Massé never phoned him even though he can easily be reached.

4.2       The law

[64]        A landlord has three principal obligations towards a tenant.  He must deliver the premises in a good state of repair, maintain them in a condition fit for their use and procure him with the peaceful enjoyment of the premises during the term of the lease.[26]

[65]        The last mentioned obligation is paramount.[27]

[66]        It is the principal obligation of a landlord.  Among others, it obliges a landlord to respect the form and destination of the premises[28] and a tenant's right to peacefully use the premises and derive revenues from them until the end of the term.

[67]        A landlord will breach this obligation of peaceful enjoyment when he evicts a tenant without right.[29]

[68]        When a tenant ceases to pay rent, a landlord cannot take the law into his own hands.  He may not unilaterally terminate a lease without a Court order, except in specific circumstances when the default clause of the lease clearly stipulates the landlord's ability to do so and it is done in a reasonable and non-abusive manner.[30]

[69]        Article 1863 of the Civil Code gives a tenant the right to seek the resiliation of a lease where the non-performance of an obligation by his landlord causes him serious injury.[31]

4.3       Analysis and decision

[70]        In the case at hand, the contractual breaches of Marina Centre and the serious injury suffered by Massé are evident.

[71]        Firstly, in 2000, Marina Centre unilaterally took back some 500 square feet of the Premises thereby changing the form thereof.  This default was duly noted by Judge Langlois in her decision of January 2004.  There is the authority of a final judgment with respect to this issue.

[72]        Secondly, in July 2003, Marina Centre changed the locks on the Machines and took Massé's revenues.

[73]        The Lease contains no self-help remedy clause that permits Marina Centre to proceed unilaterally without a Court order.

[74]        To have taken Massé's revenues in this manner is abusive.  It is an affront to Massé's legal rights as a tenant.

[75]        Marina Centre's contention that Massé had no contractual relationship with Coinamatic or that he was in arrears in his payment of rent for the Machines, is unsupported by the evidence that shows the contrary.[32]

[76]        Marina Centre's claim that Massé refused to return to the Premises and accept the keys for the Machines is also without merit.  A review of all the correspondence between attorneys illustrates the clear and unambiguous intention of Massé to regain access to the Premises.

[77]        The legal battle he has waged demonstrates his remarkable resilience in pursuing the enforcement of his legal rights.  It is unreasonable to claim that he was refusing to retake the occupancy of the Premises in these circumstances.

[78]        To conclude, the Court will resiliate the Lease as of June 30, 2007.


5.1       Position of the parties

[79]        Massé is claiming the lost profits he would have earned if he had been able to operate the laundry room until the end of the term of the Lease.

[80]        He estimates that he was deprived of the revenues from the Machines in the order of $2,600 per month for a period of 144 months (July 1, 2003 to June 30, 2015), that is, the sum of $374,400.  After deducting the rent for the Machines[33] and for the Premises[34], he is left seeking a net profit of $117,990.00.

[81]        He is also claiming the revenues he would have been able to generate if he had been able to raise the price to use the Machines by $0.25 on July 1, 2007 and by another $0.25 on December 1, 2010, that is, $43.00 of additional revenues per pair of Machines per month, namely the sum of $97,395.[35]

[82]        Finally, he asserts that it was his intention to add five additional pairs of machines in the Premises to earn more revenues.  He seeks the profits he would have generated from these additional machines that is, the sum of $123,120.[36]

[83]        For their part, the Defendants raise several arguments.  They argue that:

a)            Massé's claim for lost profits is prescribed;

b)            Massé has provided no documentary proof of the revenues he used to generate from the Machines;

c)            Massé's claim for the lost profits with respect to the five additional pairs of machines is unjustified as Judge Langlois rejected a similar claim in her judgment of January 2004;

d)            Massé has not made adequate proof that the revenues from the Machines were raised in two increments of $0.25 and that he has double-counted the revenues generated from the price increases;

e)            since Massé is seeking the resiliation of the Lease as of June 30, 2007, he should not be entitled to any profits beyond that date; and

f)             Massé did not mitigate his damages, as he did not open another laundry room.

5.2       Is Massé's claim for lost profits prescribed?

[84]        The Defendants point out the fact that Massé was first deprived of the revenues from the Machines in July 2003 and that he filed the current proceedings in June 2007, well passed the three-year prescription period.[37]

[85]        Article 2880 C.C.Q. stipulates that the day on which the right of action arises fixes the beginning of the period of prescription.[38]  Pursuant to Articles 2931 and 2932 C.C.Q.[39], prescription runs in respect to payments due from the day the obligation becomes exigible when an obligation is performed successively.

[86]        In the case at hand, Massé filled his motion on June 5, 2007.  Hence, Massé's claim for lost profits that would have been earned from the Machines after June 5, 2004 is not prescribed.

[87]        Is his claim for lost profits during the period of July 1, 2003 and June 5, 2004 prescribed?

5.2.1    The law

[88]        Suspension of prescription allows it to temporarily stop running until the reason of the suspension ceases.[40]

[89]        Given that the suspension of prescription is not the general rule, the cases which permit it to occur remain an exception.[41]

[90]        The filing of a judicial demand before the expiry of the prescriptive period interrupts prescription.[42]

5.2.1    Analysis and decision

[91]        The Court is satisfied that Massé's claim for lost profits between July 1, 2003 and June 5, 2004 is not prescribed because his claim was uncertain until October 2006.  It would have been premature for Massé to sue for lost profits while the validity of the Lease was being challenged by Marina Centre.

[92]        In 2002, Massé took an action against Marina Centre to have the rent reduced following the unilateral reduction of the size of the Premises by the landlord.  It is noted, however, that this action was taken before Massé even suffered the damages he is seeking in the current instance.

[93]        How can an action taken before the current proceedings suspend or interrupt prescription in respect to damages that occurred subsequently?

[94]        The Supreme Court teaches us in Marcotte v. Longueuil[43] that there can be no interruption of prescription when the starting point of the calculation of prescription has not yet occurred.

[95]        Thus, from a point of view of strict logic, the action taken by Massé in 2002 cannot suspend or interrupt prescription with respect to the damages that he started suffering in July 2003 when Marina Centre seized his revenues, given that the starting point for the calculation of the prescriptive period had not yet begun.

[96]        Yet, it is possible to affirm that prescription was interrupted in respect to this matter until October 2006 because prior to that date, his claim for damages was uncertain.

[97]        The existence of Massé's claim depended on the judicial decision taken with respect to the validity of the Lease and its assignment.  Judge Langlois confirmed their lawful nature in January 2004.  Marina Centre appealed that decision.  If the Court of Appeal had determined that they were not legally binding, Massé would not have had a valid recourse in respect to the seizure of the revenues from the Machines.

[98]        When a claim is contested, the debt is inexistent and prescription will not begin to run until a judgment intervenes or an agreement is reached between the parties recognizing its validity.[44]

5.3.      Is there sufficient documentary proof to prove the revenues generated from the Machines?

5.3.1    The position of the parties

[99]        The Defendants point out that Massé has not provided documentary evidence that establishes what his revenues used to be between February 1, 2000 and July 1, 2003.  He has not produced his daily ledgers or income tax returns for the years in question.

[100]     Massé explains that he disposed of this documentation after the expiry of the required hold period for income tax purposes.

[101]     He relates that his revenues were in the range of $2,600 per month and that he had said this in front of Judge Langlois in September 2003 and that she had noted this testimony in her decision of January 2004.[45]  He asks the Court: "why do I have to prove this all over again?"

[102]     According to Barrasso and Mrs. Roslyn Brown ("Brown"), the administrator of the Apartment Building, Marina Centre has not earned any profits since July 2003 given that they estimate that revenues generated from the laundry room are only in the order of $1,800 to $2,000 per month.

5.3.2    Analysis and decision

[103]     In order to prove loss of profits, the evidence must rest on reliable, relevant and conclusive data.

[104]     The Court observes that Barrasso and Brown provide no documentary evidence to corroborate their testimony.

[105]     The Court further notes that the best evidence of the revenues earned from the Machines between June 2004 and the date of the hearing was interrupted by Marina Centre when it terminated Poissant's fiducial duties to count, deposit and hold the money.

[106]     Massé's attorney pointed out this evident fact to Marina Centre when he learned about this situation in January 2007.  He stressed, among other things, the lack of ethics involved:

"[…] C'est avec stupéfaction que nous avons reçu une lettre de Me Serge Aubé, avocat représentant l'huissier, Normand Poissant, qui nous informe que son mandat fut retiré en mai 2004 et que votre cliente a reçu une somme totale de 27 574,50$, qui devrait être détenue, en fidéicommis, jusqu'à jugement final au dossier.

En effet, l'huissier, Monsieur Poissant, avait témoigné devant la Cour qu'il avait mandat de percevoir les sommes à des machines du lavoir et de les déposer en fidéicommis.

Or, il nous est incompréhensible d'apprendre, une fois que nous avons obtenu jugement final de la Cour d'Appel, que votre cliente a non seulement perçu, sans aucun registre officiel, les sommes du lavoir mais, de plus, qu'elle a dessaisi de son mandat l'huissier, Normand Poissant, alors que le soussigné et son client ont toujours été sous l'impression qu'il y avait un suivi officiel de la gestion des sommes dans ce dossier.

De plus, il nous inconcevable qu'un confrère ne nous ait pas informé clairement de la situation, préférant nous laisser dans le noir.  Il va sans dire que cela s'adresse tant à l'avocat en première instance que celui en appel.

En fait, le choix de nos confrère[s], d'agir ainsi peu avoir occasionné des pertes considérables pour notre client qui est maintenant exposé à une perte importante car toutes les sommes générées par le lavoir depuis son expulsion illégale doivent lui être remboursées, mais il lui est présentement presque qu'impossible de reconstituer les comptes vu les agissements de 3311066 Canada inc. avec la complicité de ses procureurs. […]"[46]

[our underlining]

[107]     It is audacious for the Defendants to argue that Massé has not provided adequate evidence of his revenues when it is Marina Centre who unilaterally terminated Poissant's mandate that established the exact proceeds being earned.

[108]     The Court is of the view that the earnings collected from the Machines by Poissant is the best evidence available and it is a proper sampling that can be applied as a projection of revenues during the term of the Lease.

[109]     Poissant collected $27,574.50 over a period of 10 months (July 2003 - June 2004). The monthly average of $2,757 corresponds accurately with Massé's testimony of September 2003.

[110]     On that basis, the Court is satisfied that Massé has sufficiently established average revenues of $2,600 per month for the 10 pairs of Machines in the Premises.

5.4       Can Massé claim loss profits from five additional pairs of machines he says he intended to install in the Premises?

5.4.1    Position of the parties

[111]     Massé claims that he has been deprived of profits that could have been earned if he had been able to add five additional pairs of machines in the Premises.

[112]     The Defendants ask that this "fictive" claim be dismissed because there is the authority of a final judgment (res judicata) in respect to this issue.

[113]     They point out that Judge Langlois dismissed Massé's claim of some $83,000 for loss of profits he said he would have earned during the period of December 2000 to January 2004 if he had installed five additional pairs of machines in the 500 square feet of area that was removed from the Premises by Marina Centre in 2000.

5.4.2    Analysis and decision

[114]     The Court concludes that there does not exist the authority of a final judgment in respect to this issue.

[115]     Such authority is an absolute presumption that applies only when the demand is based on the same cause and the thing applied for is the same.[47]

[116]     This is not the case in the present instance.

[117]     In her judgment of January 2004, Judge Langlois dismissed Massé's claim for additional machines given that a Coinamatic employee had testified that the reduction in the size of the Premises did not prevent Massé from installing additional machines as these could have been superimposed on top of each other.[48]

[118]     In the case at hand, the Court is convinced by Massé's testimony that, if Judge Langlois' safeguard order of July 2003 had been respected, he would have added the five additional pairs of machines.

[119]     Massé has not, however, met his burden of proving that he would have earned the same level of revenues from the additional machines.

[120]     It is most probable, as the Defendants have argued, that the level of revenues derived from a laundry room are a function principally of the number of apartments and residents.  On the balance of probabilities, it is not evident that 50% more machines will generate equivalent profits.

[121]     The Court cannot determine with accuracy what the net profit would have been if Massé added the new machines.  It will, therefore, arbitrate the amount to approximately half the sum being claimed.  Hence, $60,000 will be awarded under this heading.

5.5       Can Massé claim the profits he says he would have earned if he could have increased the cost to use the Machines by $0.25 in July 2007 and December 2010?

[122]     Massé is claiming $97,395 he says he would have earned had he increased the cost to use the Machines on two occasions as Marina Centre has done.

[123]     He says that he returned to the Premises on three occasions to witness their condition after the seizure of his revenues in July 2003.

[124]     The first time was shortly after the dismissal of the appeal in October 2006.  He recalls meeting someone from Marina Centre who made him fell unwelcome.  It was suggested he not return.

[125]     The second time in October 2007, he took a picture of one of the Machines that shows that the price to use them had increased from $1.50 to $1.75.[49]

[126]     On the third and final visit, in December 2010, he photographed a machine that shows that the price was increased to $2.00.[50]

[127]     This evidence establishes that two increases occurred under Marina Centre's control.

[128]     The Court is persuaded that Massé would have increased the revenues in the same manner and that he is entitled to these additional revenues.

[129]     It will, however, establish the two increases on the date that Massé took the pictures[51] as the most reasonable and probable dates of the increases to be awarded.

[130]     Massé claims that an increase of $0.25 per machine generates $43.00 of additional revenues per pair of machines per month.

[131]     It is difficult to comprehend exactly how he arrives at this result but the Defendants did not challenge it.  Rather, they argue that the price increase is double-counted.[52]

[132]     The Court establishes that the correct way of calculating the increased revenues generated is as follows:

a)            the first increase of $0.25 per machines in October 2007 =

$43.00 per month per pair of Machines x 15 pairs x

93 months (October 1, 2007 to June 30, 2015) =                $  59,985

b)            the second increase of $0.25 per machines in December 2010 =

$43.00 per month per pair of Machines x 15 pairs x

55 months (December 1, 2010 to June 30, 2015) =                        $  35,475

Total additional revenues:                                                                   $  95,460

[133]     The sum of $95,460 will be awarded to Massé for this claim.

5.6       Is Massé entitled to lost profits during the period of June 30, 2007 to June 30, 2015?

[134]     Marina Centre argues that Massé cannot claim damages until June 30, 2015 since he is seeking the resiliation of the Lease as of June 30, 2007.

[135]     The Court does not agree with this contention for several reasons.

[136]     Firstly, Massé is only seeking the resiliation of the Lease in order to put an end to legal procedures that have dragged on for too many years without tangible success.  Throughout this period, he has asked to be recognized as the tenant of the Premises.  Having exhausted all legal avenues, he is quite correctly asking the Court to acknowledge a "fait accompli" entirely created by Marina Centre.

[137]     Secondly, the Court of Appeal teaches us in Aéroports de Montréal v. Hôtel de l'Aéroport de Mirabel inc. et al.,[53] that damages can be claimed for lost profits following the resiliation of a lease, where it is relatively certain that the tenant would have exercised his option to renew.

[138]     In the case at hand, the Lease stipulates that its term was to be automatically renewed until June 30, 2015, unless Massé notified the landlord otherwise before June 1, 2005.[54]

[139]     Massé's non-contradicted testimony is that he did not send (nor would have sent) a notice of non-renewal to Marina Centre.

5.7         Has Massé failed to mitigate his damages?

[140]     The Defendants allege that Massé did not mitigate his damages as he did not lease another laundry room.

5.7.1    The law

[141]     The Civil Code stipulates: "A person who is liable to reparation for an injury is not liable in respect of any aggravation of the injury that the victim could have avoided."[55]

[142]     As such, there is not, strictly speaking, a duty or an obligation to mitigate damages.  Rather, mitigation is a restriction on the damages that can be recovered.  Damages are to be calculated as if the plaintiff acted reasonably to minimize his losses.

[143]     If a person takes reasonable steps, in the ordinary course of business, to reduce his losses, he is to obtain the full amount of the damages awarded.

[144]     The burden is on a defendant to show that a plaintiff has failed to act reasonably to mitigate damages if he wishes to lower the amount otherwise owing.

5.7.2    Analysis and decision

[145]     The Court concludes that Massé's efforts to mitigate damages were sufficient in the circumstances.

[146]     The Defendants have not met their burden of proving otherwise.

[147]     Massé was under no obligation to do anything other than what he is reasonably expected to do in the ordinary course of business.

[148]     To require Massé, still teaching, now well into his 70s', to open a new laundry, would be exorbitant.  It goes beyond what would be reasonably expected of him.

[149]     The evidence shows that Massé took all legal measures necessary to recover access to the Premises and the revenues from the Machines.

[150]     To conclude this chapter, the damages to be awarded to Massé in respect to lost profits total $273,450, that is:

a)            $117,990 for the Machines from July 1, 2003 to June 30, 2015;

b)            $60,000 for the five additional pairs of Machines, and

c)            $95,460 for the increases of $0.25 in October 2007 and December 2010.


6.1       Position of the parties

[151]     Massé seeks punitive damages in the amount of $50,000.

[152]     He says that he has been forced to continue to teach well passed the normal retirement age because he has been deprived of the small monthly revenues he used to earn from the laundry room.

[153]     He argues that he should be awarded punitive damages as he is the victim of an illegal and intentional breach of his contractual right to peacefully enjoy the Premises.

[154]     As for the Defendants, they insist that punitive damages are not appropriate in the circumstances.

6.2       The law

[155]     Article 1621 of the Civil Code stipulates that punitive damages can be awarded when it is provided for by law.[56]

[156]     Articles 6 and 49 the Charter of Human Rights and Freedoms[57] (the "Charter") gives the Court the discretion to award punitive damages when a person's peaceful enjoyment of his property has been breached.

[157]     This discretion was recognized by Mr. Justice Claude Auclair in the hair-rising case of Gervais Harding et Associés Design inc. v. Placements St-Mathieu et al.[58]  He held that the right to peacefully enjoy premises pursuant to a commercial lease is a right recognised pursuant to Section 6 of the Charter.

[158]     In that case, Judge Auclair found that the landlord had acted so scandalously, that he found him liable for over $2M in damages, including $100,000 in punitive damages given the unlawful and intentional harm caused to the tenant.

[159]     The Court of Appeal upheld that decision.  It found that Article 6 of the Charter allows the granting of punitive damages in respect to a breach of the peaceful enjoyment of a commercial lease.[59]

[160]     It agreed that the landlord had acted maliciously and that he had harassed the tenant continually, thereby making his occupancy unbearable.  It held that punitive damages were warranted given that the landlord's deliberate bad faith had deprived the tenant of his right to peacefully enjoy the premises.

[161]     The preventive object of punitive damages is expressed in Article 1621 C.C.Q.

[162]     The Supreme Court case of Whiten v. Pilot Insurance Company[60] sets out the underlying principles to be applied in such circumstances:

"[94]  To this end, not only should the pleadings of punitive damages be more rigorous in the future than in the past […], but it would be helpful if the trial judge’s charge to the jury included words to convey an understanding of the following points, even at the risk of some repetition for emphasis.

(1)  Punitive damages are very much the exception rather than the rule,

(2)  imposed only if there has been high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour.

(3)  Where they are awarded, punitive damages should be assessed in an amount reasonably proportionate to such factors as the harm caused, the degree of the misconduct, the relative vulnerability of the plaintiff and any advantage or profit gained by the defendant,

(4)  having regard to any other fines or penalties suffered by the defendant for the misconduct in question.

(5)  Punitive damages are generally given only where the misconduct would otherwise be unpunished or where other penalties are or are likely to be inadequate to achieve the objectives of retribution, deterrence and denunciation.

(6)  Their purpose is not to compensate the plaintiff, but

(7)  to give a defendant his or her just dessert (retribution), to deter the defendant and others from similar misconduct in the future (deterrence), and to mark the community's collective condemnation (denunciation) of what has happened.

(8)  Punitive damages are awarded only where compensatory damages, which to some extent are punitive, are insufficient to accomplish these objectives, and

(9)  they are given in an amount that is no greater than necessary to rationally accomplish their purpose.

(10)  While normally the state would be the recipient of any fine or penalty for misconduct, the plaintiff will keep punitive damages as a "windfall" in addition to compensatory damages.

(11) Judges and juries in our system have usually found that moderate awards of punitive damages, which inevitably carry a stigma in the broader community, are generally sufficient.

[95]  These particular expressions are not, of course, obligatory. What is essential in a particular case will be a function of its particular circumstances, the need to emphasize the nature, scope and exceptional nature of the remedy, and fairness to both sides."

[163]     Although this case originates in a common law jurisdiction, it can be applied in Quebec where the considerations are not significantly different.

6.3       Analysis and decision

[164]     This is one of those exceptional circumstances that merits the award of punitive damages.

[165]     Having assessed the abovementioned criteria in light of the facts herein set out, the Court concludes that the illegal, unwarranted and intentional acts of Marina Centre are sufficiently clear and serious to justify the award of punitive damages.

[166]     The Court determines that the conduct of Marina Centre does amount to "high-handed, malicious, arbitrary or highly reprehensible misconduct that departs from ordinary standards of decent behaviour".

[167]     Having taken into consideration the various factors set out above, including the fact that Massé is being awarded significant damages herein and that a moderate penalty is generally sufficient to stigmatize such behaviour, the Court will award Massé punitive damages in the amount of $25,000.[61]


7.1       Position of the parties

[168]     Massé alleges that the tenacious refusal of the Defendants to give him access to the Premises and their wilful breach of contractual obligations have caused him to incur substantial legal fees.

[169]     He is claiming the $70,020.33 he has paid since July 2003.[62]

[170]     As for the Defendants, they argue that the last chapter of this story, namely the present proceedings, in no way constitutes an abuse of process as there has been no multiplication of procedures or an abusive conduct of the judicial debate.

[171]     They stress that during the current proceedings, they have merely exercised their legitimate right to defend themselves from an exaggerated claim.  They state that they have raised legitimate issues of law and valid arguments.

[172]     They contend that the Court has no jurisdiction to award the payment of extrajudicial fees for any of the proceedings that occurred before the filling of the current motion in July 2007.

7.2       The law

[173]     The general legal principle is that each party must pay for his own extrajudicial fees, i.e., his lawyer's bills.  There exists an exception to this rule however in situations of abuse.

[174]     Every person has the fundamental right to defend himself and to have his rights determined.  He must not, however, do so abusively.

[175]     Such conduct contributes to the clogging up of the Court system.  It can also cause emotional and financial harm to the party who is the victim of such judicial behavior.

[176]     The victim of such abuse may claim his legal fees when there is a direct causal link between the faulty use of procedure and the damage he has suffered.

[177]     As the Court of Appeal stated in the case of Collette Viel v. Les Entreprises Immobilières du Terroir Ltée[63]:

"une partie qui abuse de son droit d'ester en justice causera un dommage à la partie adverse qui, pour combattre cet abus paie inutilement des honoraires judiciaires à son avocat.  Il y a dans ce cas, un véritable lien de causalité entre la faute et le dommage."

[not our underlining]

[178]     Our courts have held that an abusive procedure is one that is taken in bad faith.[64]

[179]     As Mr. Justice Pierre Dalphond stated in the Court of Appeal decision of Royal Lepage Commercial Inc. v. 109650 Canada Ltd.[65], in order to succeed in obtaining extrajudicial fees, the victim of abusive legal procedures must demonstrate "un comportement contraire aux finalités du système juridique".  He also wrote in that case that:

"[45]  Pour conclure en l'abus, il faut donc des indices de mauvaise foi (telle l'intention de causer des désagréments à son adversaire plutôt que le désir de faire reconnaître le bien-fondé de ses prétentions …) ou à tout le moins des indices de témérité.


[46]  Que faut-il entendre par témérité?  Selon moi, c'est le fait de mettre de l'avant un recours ou une procédure alors qu'une personne raisonnable et prudente, placée dans les circonstances connues par la partie au moment où elle dépose la procédure ou l'argumente, conclurait à l'inexistence d'un fondement pour cette procédure. Il s'agit d'une norme objective, qui requiert non pas des indices de l'intention de nuire mais plutôt une évaluation des circonstances afin de déterminer s'il y a lieu de conclure au caractère infondé de cette procédure.  Est infondée une procédure n'offrant aucune véritable chance de succès, et par le fait, devient révélatrice d'une légèreté blâmable de son auteur.  Comme le soulignent les auteurs Baudoin et Deslauriers, précités: «L'absence de cette cause raisonnable et probable fait présumer sinon l'intention de nuire ou la mauvaise foi, du moins la négligence ou la témérité»."[66]

7.3       Analysis and decision

[180]     In the case at hand, the Court concludes that Massé is entitled to recuperate the legal fees he has incurred since 2003 for several reasons.

[181]     Professor Adrian Popovici teaches us that a victim of an abusive procedure can claim the legal fees he has incurred in a distinct and subsequent action in damages.[67]

[182]     Our Courts have affirmed on a number of occasions that it is possible to claim extrajudicial fees in a separate and distinct action.[68]

[183]     This case is not a single isolated instance that began with the filing of Massé's Motion in July 2007.

[184]     With the benefit of hindsight, one can discern the whole story that began in 2000.  A picture emerges that illustrates that, at every step, Marina Centre categorically refused to respect Massé's legal rights.

[185]     Marina Centre successfully used the delays inherent in the legal process to block Massé from returning to the Premises to operate the laundry room.  When those delays expired, it refused to comply with Court orders and continued to deny Massé's rights.

[186]     In particular, the Court considers that it was a gross abuse of the legal process to manipulate Massé and the Courts to believe that the revenues from the Machines were being safeguarded in trust by a third party and then, to have unilaterally terminated Poissant's mandate, leaving Massé in the dark about this turn of events.

[187]     In this case, appropriate standards of legal process have not just fallen, they have hit bottom.

[188]     There is a certain quarrelsome character to this whole story.

[189]     Professor Yves-Marie Morisette[69] identifies eight criteria of a quarrelsome litigant:

"1.-  Le plaideur quérulent fait souvent montre d'opiniâtreté et de narcissisme;

2.-  Il se manifeste plus souvent en demande qu'en défense;

3.-  Il multiplie les recours vexatoires;

4.-  Il réitère souvent les mêmes questions;

5.-  Ses arguments de droit se signalent par leur inventivité et leur incongruité;

6.-  L'échec subi par le plaideur quérulent ne constitue pas nécessairement pour lui un obstacle puisque, à plus ou moins long terme, il est incapable de payer les dépens;

7.-  La plupart du temps, les jugements sont portés en appel ou font l'objet de demandes de révision ou de rétractation;

8.-  Souvent, le plaideur quérulent se représente seul."[70]

[190]     In the present case, several of these are displayed in some degree, including numbers 1, 3, 4, 5 and 7.

[191]     For example, the Defendants continue to insist that Massé is the author of his own misfortune because he did not pay the rent of May and June 2003.

[192]     Yet, the two judgments of Judge Langlois, the judgment of Judge Chaput and the two judgments of the Court of Appeal settled that issue.  Despite that, the Defendants continue to raise this ground of defence to justify their abusive attitude towards Massé.

[193]     Appeal after appeals were filed.  Even when they ran out, they continued to defy Court orders that would have given Massé access to the Premises and his revenues.

[194]     The Court notes that the following grounds of defence raised by the Defendants in the present instance were completely without merit, including that Massé:

a)          did not pay his rent and, therefore, they were justified to act as they did;

b)          had no lease agreement with Coinamatic;

c)          was in default of paying rent to Coinamatic;

d)          refused to return and resume occupancy of the Premises;

e)          did not prove the monthly revenues derived from the Machines; and

f)           cannot claim lost profits between June 30, 2007 and 2015.

[195]     The Defendants' counterclaim of $15,000 was so devoid of merit that it was not even raised during the hearing and ultimately renounced to by the Defendants at the end of the trial.

[196]     All of these tactics and assertions, as groundless as they turned out to be, still engendered the need for Massé to present proof and arguments to counter them.

[197]     In the words of Mr. Justice Dalphond, these are clear "indices de mauvaise foi (telle l'intention de causer des désagréments à son adversaire plutôt que le désir de faire reconnaître le bien-fondé de ses prétentions …) ou à tout le moins des indices de témérité."[71]

[198]     There is a direct link between the Defendants' abusive use of legal procedures and the legal fees paid by Massé.

[199]     Further, the Court is of the view that the Defendants have purposefully abused the legal process in this case.  They have defended themselves in an improper manner with the objective of defeating "the ends of justice", a breach of conduct identified in Article 54.1 C.C.P.[72]

[200]     Their purpose was to crush Massé with all legal and non legal means possible.  If it was not for the fact that Massé struggled on so remarkably, they may well have succeeded.

[201]     For all of these reasons, the Court concludes that it is an appropriate redress to award Massé the extrajudicial fees of $70,020.33 he has incurred since 2003 to ultimately obtain this judgment.


8.1       Position of the parties

[202]     Massé argues that he is justified to seek the lifting of the corporate veil and to obtain the personal condemnation of Barrasso.

[203]     As for Barrasso, he insists that he is not personally liable given his limited role in this matter.

8.2       The law

[204]     Companies have a distinct legal personality from their shareholders and directors. This is what is called the "corporate veil".  A tribunal will at times lift it when a company is owned and directed by the same person.[73]

[205]     Article 317 C.C.Q. specifically stipulates that a person may not "set up juridical personality against a person in good faith if it is set up to dissemble fraud, abuse of right or contravention of a rule of public order."[74]

[our underlining]

[206]     Professor Paul Martel points out that Article 317 C.C.Q. is applicable when a principal shareholder and administrator of a company uses the corporation as a shield to camouflage fraud, abuse of right or a breach of a rule of public order:

"La responsabilité personnelle d'un individu qui est actionnaire majoritaire et administrateur d'une compagnie peut être retenue dans les circonstances suivantes:


-           Il a utilisé la Compagnie qu'il contrôle comme écran, comme paravent pour tenter de camoufler le fait qu'il a commis une fraude ou un abus de droit ou qu'il a contrevenu à une règle intéressant l'ordre public; en d'autres termes, l'acte apparemment légitime de la compagnie revêt, parce que c'est lui qui la contrôle et bénéficie de cet acte, un caractère frauduleux, abusif ou contraire à l'ordre public."[75]

[our underlining]

[207]     He is critical of the fact but points out that it can be presumed that the words "abuse of right" in Article 317 C.C.Q. refers to the codification of this expression in Article 7 C.C.Q.[76] and that it refers to the exercise of a right "de manière à causer délibérément ou malicieusement un préjudice à autrui ou d'une manière excessive et déraisonnable et contraire à la bonne foi."[77]

8.3       Analysis and decision

[208]     The Court concludes that Barrasso is to be held personally responsible in this matter.  He should not hide behind his corporation to protect himself from the consequences of his abusive and contemptuous behaviour.

[209]     In the case at hand, Barrasso is the alter ego of Marina Centre as he is its sole director and shareholder.

[210]     In a declaration of trust dated November 4, 1998[78], it is acknowledged that while Marina Centre is the registered holder of the Apartment Building, it is only holding same in trust for Barrasso.

[211]     The declaration of trust stipulates that all profit, advantages and other interests and liabilities in respect to the property accrue to and for the benefit of Barrasso.

[212]     When you follow the money trail of the sums derived from the Machines between July 2003 and May 2004, one can see who benefits: Barrasso.  The cheque of $27,574.50 addressed to Marina Centre by Poissant was deposited by him directly into his personal bank account.[79]

[213]     Despite this interwoven blending of judicial personalities, Barrasso insits he bears no liability given his lack of personal involvement.

[214]     In his examination after plea of November 2007, he testifies that he was not personally aware of the facts of this case.

[215]     He says he does know Massé and is unaware of the existence of the Lease.[80]  He relates that he is only conscious of the fact that Massé did not pay his rent.  He delegated the handling of the rest of the matter to Brown: "[…] et moi, je ne me suis plus jamais occupé de ça, c'est elle qui s'en est occupé de cette affaire."[81]

[216]     He says that it was Brown who took care to renovate the Premises[82], who decided to take the revenues from the Machines[83] and who handled the management of the legal defence of Marina Centre against Massé[84].

[217]     He says he is not aware of the various judgments rendered in this matter, except that he was once asked to pay a judgment ("mais, honnêtement, même alors, je ne sais pas exactement pourquoi")[85].

[218]     He recalls that he did not get involved because he had other things to do.

[219]     The evidence shows that this version of events is not entirely accurate.

[220]     This became evident as soon as Brown testified.[86]

[221]     In her examination after plea, she says that her own knowledge of the case is somewhat limited given that she started working for Marina Centre in May 2002 (a year and half following the renovation of the Premises) and she moved to Toronto in August 2003 (a month after the locks were changed on the Machines).

[222]     Asked whether she was aware that Barrasso deposited the money received from Poissant in his personal bank account, she replies that Barrasso would never do such a thing.  She insists that she would be surprised to learn otherwise.

[223]     In her cross-examination during the hearing, she acknowledges that she kept Barrasso alert of all developments in the file and recalls that it was Barrasso who retained the attorney to act in this matter.

[224]     Asked to identify who took the decision to hire a bailiff to collect the money in the Machines and to change the locks on them, she remembers that Poissant was hired by the attorney after discussing it with Barrasso: "I would not do anything without his knowledge".[87]

[225]     She says that she had no involvement in the decision that was made not to pay Massé the amount awarded as soon as possible following the dismissal of the appeal in October 2006.

[226]     Faced with the fact that Brown testified before him while he sat in Court, Barrasso changed his version of events during the hearing.

[227]     He now recalls being aware of this case but says that he always acted in good faith because he relied on the advice of his attorney.

[228]     Barrasso says he simply cannot recall why he did not pay Massé promptly following the dismissal of the appeal.

[229]     Asked to explain why he proceeded to unilaterally remove 500 square feet of the Premises in December 2002 without first discussing it with Massé, Barrasso says he could not get a hold of Massé as he did not have his phone number and address.

[230]     In his cross-examination, he was confronted with the notice of assignment of the Lease addressed to Marina Centre dated February 1, 2000, that indicates Massé's address and phone number.[88]  He admits that neither he nor his employees searched for it in the company's files.

[231]     According to him, it was his attorney, Me Gilles Pinard, who told him to change the locks on the Machines.  He could not, however, recall how Poissant's mandate was terminated but he believes it was a decision that was made pursuant to the advice of his counsel.

[232]     The Court finds this testimony to be hearsay.

[233]     It is also improbable.  Would an officer of the Court recommend to his client to take the law into his own hands in such a manner?  Would an attorney breach his ethical obligation and recommend to a client that a trust account be terminated without notice to his colleague?  Hopefully not.  In any event, no such evidence was produced.

[234]     "I could not find his address".  "I do not know."  "I do not recall."  "I delegated and relied on advice."  These are not adequate defences in the circumstances to deflect personal liability.


[235]     Massé asks the Court to order the provisional execution of the present judgment notwithstanding an eventual appeal.

[236]     Provisional execution is an exception to the rule of general application that stipulates that an appeal suspends the execution of a judgment.[89]

[237]     Article 547 C.C.P.[90] dictates that the Court has the discretion to order the provisional execution of the whole or a part of a judgment in cases of exceptional urgency or "for any other reason deemed sufficient", in particular, where the fact of bringing the case to appeal is likely to cause serious or irreparable injury.

[238]     In the current case, there is no urgency.  Is there some other sufficient reason?

[239]     The Court concludes that there is.

[240]     According to the author Charles Belleau, this criteria ("other sufficient reason") was added to the Civil Code in 1995 in order to enlarge the discretion of the Court in such circumstances.[91]

[241]     In Leboeuf v. Groupe Lavelin inc.[92], the Court of Appeal outlines a number of factors that must be considered and appreciated when a Court decides whether it is appropriate to order the provisional execution of a judgment:

"D'abord, doivent être appréciées toutes les circonstances entourant le pourvoi et non uniquement la valeur des griefs d'appel, encore que cela soit un facteur important. Mais, à mon avis, l'exécution provisoire vise une situation plus large que celle prévue aux articles 497 et 501 (5) C.p.c. dont l'objet est de sanctionner le pourvoi frivole et dilatoire ou qui paraît l'être. En second lieu, si la raison spéciale ne s'adresse qu'à des cas sérieux, cela ne signifie pas qu'ils doivent être exceptionnels. Toutefois, le juge ne s'écartera de la règle générale que s'il est convaincu que, sans cette mesure, tous les droits ou certains d'entre eux, acquis à l'intimé par l'effet du jugement dont on fait appel, sont (et non pourraient être) sérieusement compromis. Cette situation peut découler des agissements mêmes de l'intimé qui détourne à son profit la procédure d'appel ou simplement de facteurs résultant de la nature du recours ou des circonstances particulières de l'espèce. Enfin, troisièmement et par dessus tout, l'exercice de la discrétion judiciaire doit viser à ce que ne soit pas gravement rompu l'équilibre entre l'intérêt de l'appelant d'exercer son droit d'appel et celui de l'intimé qui bénéficie d'un jugement présumé valide. Cette notion me semble au coeur du débat et le législateur l'a bien reconnue en autorisant que l'exécution provisoire puisse être subordonnée à l'obligation, pour l'intimé en appel, de fournir caution. En somme, à plusieurs égards, cette institution offre d'importantes similitudes avec l'injonction: l'apparence de droit examinée en fonction de la valeur, prima facie, du pourvoi, le dommage et surtout la balance des inconvénients."

[our underlining]

[242]     In the case at hand, the Court determines that this is one of those serious circumstances that merits the required order.

[243]     In doing so, the Court is mindful of the need to be fair to the Defendants and it recognizes their right to appeal this decision.

[244]     Taking into consideration the conclusions of fact and law set out herein, the advanced age of Massé, the prejudice that will be caused to him by the length and passing of time of a likely appeal, the additional costs and stress of such an appeal and the quarrelsome and abusive legal proceedings of the Defendants to date that have demonstrated an attempt to defeat the ends of justice, it is appropriate to order the provisional execution of the sum of $275,000 awarded herein without need to post security.


[245]     GRANTS the Requête introductive d'instance re-amendée of the Plaintiff in part;

[246]     ACKNOWLEDGES the Defendants' discontinuance of their counterclaim, WITH COSTS against the Defendants;

[247]     ORDERS the resiliation of the Lease as of June 30, 2007;

[248]     CONDEMNS 3311066 Canada inc. and Vincenzo Barrasso, solidarily, to pay the Plaintiff the sum of $273,450 to compensate him for lost profits, the whole with interest at the legal rate, plus the additional indemnity provided for pursuant to Article 1619 C.C.Q. as of June 5, 2007;

[249]     CONDEMNS 3311066 Canada Inc. and Vincenzo Barrasso, solidarily, to pay the Plaintiff the following:

a)            $25,000 of punitive damages; and

b)            $70,020.33 for extrajudicial fees;

the whole with interest at the legal rate, plus the additional indemnity provided for pursuant to Article 1619 C.C.Q. as of the date of this judgment;

[250]     ORDERS the provisional execution of the sum of $275,000 awarded herein notwithstanding appeal pursuant to Article 547 C.C.P.;

[251]     WITH COSTS against the Defendants.






Mtre. Olivier J. Brault

Allali Avocats

For the Plaintiff


Mtre. Danielle Oiknine

Mtre. Jay Turner

Oiknine & Associates

For the Defendants


Dates of hearing:

April 18 and 19, 2011

Date of reserve after notes:

May 2, 2011


[1]     Exhibit P-2.

[2]     Exhibit P-3.

[3]     Having a superficial area of some 32 feet by 25 feet.

[4]     Exhibit P-4.

[5]     Exhibit P-18.

[6]     Exhibit P-5.

[7]     Exhibit P-6 - The safeguard order reads as follows:

"Le Tribunal ORDONNE à la Compagnie 3311066 Canada inc. de donner plein accès et exclusif aux boîtiers des machines de Monsieur Massé et au local loué à Monsieur Massé, soit en remettant lesdits boîtiers à leur état antérieur ou en remettant toutes les clés des serrures à Monsieur Massé, au plus tard, vendredi le 18 juillet 2003 à 17:00 heures.

ORDONNE à Monsieur Normand Massé de payer du 1er mai au 18 septembre 2003, le loyer de mille cinq cents dollars (1 500 000 $) de la façon suivante :

-           1 000 000 $ payé à la compagnie 3311066 Canada inc.;

-           500,00 $ à son procureur à conserver in trust;

ORDONNE à la compagnie 3311066 Canada inc. de remettre à l'étude Angelopoulos, Kiriazis, une copie des rapports des procès-verbaux des constats, au plus tard, vendredi, le 18 juillet 2003;

AUTORISE Normand Massé et la compagnie 3311066 Canada inc. à opérer compensation et dans l'éventualité où des sommes demeurent à la compagnie 3311066 Canada inc., ses sommes pourront être payées au compte in trust, de l'étude Angelopoulos, Kiriazis, au plus tard, mercredi, le 23 juillet 2003 à 17:00 heures;

La requête en injonction est référée à l'audition au fond."

[8]     Exhibit P-22 - Letter of July 18, 2003 from Mtre. Claude Benabou addressed to Mtres. Xanathoula Konidaris and Frédéric Allali.

[9]     Ibid.

[10]    Exhibit P-7.

[11]    Exhibit P-22.

[12]    Exhibit P-8.

[13]    Exhibit P-10.

[14]    Exhibit P-11.

[15]    Exhibit D-7.

[16]    Exhibit P-9 - Massé v. 3311066 Canada Inc., B.E. 2009 BE-972 (C.S.), conf. 2006 QCCA 1364 .

[17]    Exhibit P-12.

[18]    Exhibit P-15 - Letters of November 7, 2006, January 29, 2007 and February 8, 2007.

[19]    Exhibit P-15.

[20]    Exhibit P-13.

[21]    Exhibit P-20.

[22]    Exhibits D-1, D-3 and D-6.

[23]    Exhibit D-1 - The Honourable Mr. Justice Jean-Yves Lalonde took cognizance of the transaction and settlement of the matter on September 21, 2007.

[24]    "264 C.C.P.  Discontinuance replaces matters in the state in which they would have been had the suit to which it applies not been commenced.

      It involves the obligation to pay the costs occasioned by the suit, which costs are adjudged to the opposite party by the clerk, upon inscription."

[25]    Requête Introductive d'instance ré-amendée of the Plaintiff, par. [32].

[26]    "1854.  The lessor is bound to deliver the leased property to the lessee in a good state of repair in all respects and to provide him with peaceable enjoyment of the property throughout the term of the lease.

      He is also bound to warrant the lessee that the property may be used for the purpose for which it was leased and to maintain the property for that purpose throughout the term of the lease."

[27]    Pierre-Gabriel JOBIN, Le Louage, 2nd Ed., Cowansville, Éditions Yvon Blais, 1996, p. 423.

[28]    "1856.  Neither the lessor nor the lessee may change the form or destination of the leased property during the term of the lease."

[29]    Palace Enterprises Ltd. v. Campeau Corp., J.E. 84-876 (S.C.); Michel Doré Inc. v. Olympia & York Development Ltd., J.E. 84-225 (Q.C.).

[30]    9051-5909 Québec inc. v. 9067-8665 Québec inc.,  [2003] R.D.I. 225 (C.A.).

[31]    "1863.  The nonperformance of an obligation by one of the parties entitles the other party to apply for, in addition to damages, specific performance of the obligation in cases which admit of it. He may apply for the resiliation of the lease where the nonperformance causes serious injury to him or, in the case of the lease of an immovable, to the other occupants.

The nonperformance also entitles the lessee to apply for a reduction of rent; where the court grants it, the lessor, upon remedying his default, is entitled to reestablish the rent for the future."

[32]    Exhibits P-24 and P-26.

[33]    $89.00 per pair x 10 x 144 months = $128,160.

[34]    As per the judgment of Judge Langlois, the rent was fixed to take into consideration the reduction in the size of the Premises - 01-07-03 to 30-06-05 = $843.75 x 24 months = $20,250 / 01-07-05 to 30-06-15 = $900.00 x 120 months = $108,000 = totalling $128,250.

[35]    (96 months x $43.00 x 15 = $61,920) + (55 months x $43.00 x 15 = $34,475) = $97,395.

[36]    Revenues of $187,200 less (a rent of $89.00 per pair x 5 machines x 144 months = $64,080) = $123,120.

[37]    "2925.  An action to enforce a personal right or movable real right is prescribed by three years, if the prescriptive period is not otherwise established."

[38]    "2880.  Dispossession fixes the beginning of the period of acquisitive prescription.

      The day on which the right of action arises fixes the beginning of the period of extinctive prescription."

[39]    "2931.  In the case of a contract of successive performance, prescription runs in respect of payments due, even though the parties continue to perform one or another of their obligations under the contract."

      "2932.  In an action to reduce an obligation which is performed successively, the prescriptive period runs from the day the obligation becomes exigible, whether the obligation arises from a contract, the law or a judgment."

[40]    Julie MCCANN, Prescriptions excessives et fins de non-recevoir, coll. Bleue, Montréal, Wilson & Lafleur, 2011, p. 144.

[41]    Popovic v. Montréal (Ville de), 2008 QCCA 2371 (C.A.), par. 79; Catudal v. Borduas, 2006 QCCA 1090 (C.A.), par. 59.

[42]    "2892.  The filing of a judicial demand before the expiry of the prescriptive period constitutes a civil interruption, provided the demand is served on the person to be prevented from prescribing not later than 60 days following the expiry of the prescriptive period.

      Cross demands, interventions, seizures and oppositions are considered to be judicial demands. The notice expressing the intention by one party to submit a dispute to arbitration is also considered to be a judicial demand, provided it describes the object of the dispute to be submitted and is served in accordance with the rules and time limits applicable to judicial demands."

[43]    Marcotte v. Longueuil (Ville), [2009] 3 R.C.S. 65 , par. 39.

[44]    D'Anjou v. Thériault, J.E. 2001-1017 (C.A.); Nadeau v. Lefebvre, 2006 QCCS 5311 (S.C.).

[45]    Massé, supra note 16, par. 58.

[46]    Exhibit P-15 - Letter of January 29, 2007.

[47]    "2848.  The authority of a final judgment (res judicata) is an absolute presumption; it applies only to the object of the judgment when the demand is based on the same cause and is between the same parties acting in the same qualities and the thing applied for is the same.

      However, a judgment deciding a class action has the authority of a final judgment in respect of the parties and the members of the group who have not excluded themselves therefrom."

[48]    Massé, supra note 16, par. 59.

[49]    Exhibit P-19A.

[50]    Exhibit P-19B.

[51]    Rounded up to the first day of the month.

[52]    Written pleadings of Defendants dated April 19, 2011 - "The price increase is double-counted.  It shows up in the third line-item of paragraph 31a), to generate the total of $218,160.00, which is carried over to the first line-item of paragraph 34b), and then added again at paragraphs 35 and 36."

[53]    2003 CanLII 22050 (QC C.A.).

[54]    Exhibit P-3 - Article III "Le bail se renouvellera automatiquement pour une (1) autre période de dix (10) ans aux mêmes termes et conditions, soit jusqu'au 30 juin 2015, à moins que le LOCATAIRE ne signifie au LOCATEUR un avis, par courrier certifié, de son intention de ne pas renouveler le bail trente (30) jours avant son expiration."

[55]    Article 1479 C.C.Q.

[56]    "1621.  Where the awarding of punitive damages is provided for by law, the amount of such damages may not exceed what is sufficient to fulfil their preventive purpose.

      Punitive damages are assessed in the light of all the appropriate circumstances, in particular the gravity of the debtor's fault, his patrimonial situation, the extent of the reparation for which he is already liable to the creditor and, where such is the case, the fact that the payment of the damages is wholly or partly assumed by a third person."

[our underlining]

[57]    R.S.Q. c.C-12 - "6. Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law."

      "49.  Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.

      In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages."

[58]    2005 CanLII 26521 (QC C.S.).

[59]    [2006] QCCA 560 (C.A.) - Since that decision, numerous other Courts have applied this principal: Métro Richelieu inc. v. Centre commercial Innovation inc., 2011 QCCS 331 (S.C.), par. 103-119; Lussier v. Bastille, 2009 QCCS 417 (S.C.), par. 178-180 (appeal dismissed, 2010 QCCA 2177 (C.A.)); Centre d'information et d'action sociale de l'Outaouais (Clinique des femmes de l'Outaouais) v. Veilleux, 2008 QCCS 2599 (S.C.), par. 77-82; Lafleur v. Centre commercial Innovation inc., 2008 QCCS 1258 (S.C.), par. 60-65 (appeal dismissed, 2009 QCCA 845 (C.A.)); 2531-4980 Quebec inc. v. Soltron Realty inc., 2010 QCCS 2143 (S.C.); see also Denis LAMY, Le bail résidentiel, la Charte québécoise et les dommages exemplaires, Montréal, Wilson & Lafleur, 2008, p. 68.

[60]    [2002] 1 S.C.R. 595 ; see also Stevac inc. v. Sochaczevski, 2010 QCCS 2172 .

[61]    With respect to the amount of damages awarded in such circumstanes, see the Métro Richelieu case, supra note 59 ($5,000); the Lussier case, supra note 59 ($20,725); Beaulieu v. Vaillancourt, 2006 QCCS 3974 (S.C.) ($2,000); Sabir v. Leiriao, 2010 QCCQ 5676 (Q.C.) ($5,000); Gestion S.A.G.G. v. Resto-café Principale inc., B.E. 97BE-1004 (Q.C.) ($6,000); Gestion S.A.G.G. v. Hudon, [1999] R.D.I. 99 (S.C.) ($1,000); Simard v. Grenier, J.E. 99-830 (S.C.) ($3,000); Correia v. Ajmal, J.E. 2004-708 (S.C.) ($5,000); Bilbul v. Thériault, J.E. 99-1362 (Q.C.) ($3,000); Carrier v. 9071-2852 Québec Inc., J.E. 2009-1831 (S.C.) (maintained by the Court of Appeal, 2010 QCCA 1720 , in which a tenant was condemned to pay a landlord $32,500 for the illegal occupation of leased premises) and the Solton Realty inc. case, supra note 59 ($25,000).

[62]    Exhibit P-7.

[63]    [2002] R.J.Q. 1262 (C.A.).

[64]    Tremis v. Vertzayias, 2007 QCCA 1265 ; Immeubles La Chaloupe Inc. v. Immeubles Demontingy Ltée, 2008 QCCS 4591 .

[65]    2007 QCCA 915 , p. 9.

[66]    Ibid., p. 10.

[67]    Adrian POPOVICI, «Le sort des honoraires extrajudiciaires», (2002) 62-1 R. du B. 53, 80.

[68]    Kowarsky v. Québec (Procureur général), [1988] R.D.J. 339 (C.A.); Hrtschan v. Montréal (Ville de), [2004] R.R.A. 329 (C.A.); Nadeau v. Nadeau, 2007 QCCS 4485 (S.C.); Rioux v. Sept-Îles (Corp. municipale de la cité de), [1995] R.J.Q. 2198 (C.S.).

[69]    As he then was before his appointment as a judge of the Court of Appeal.

[70]    Yves-Marie MORISETTE, Abus de droit, quérulence et parties non représentées, 2003-2004, 49 R.D. McGill, p. 23.

[71]    Royal Lepage, supra note 65, p. 10.

[72]    Article 54.1 and following of the Code of Civil Procedure; see Acadia Subaru v. Michaud, 2011 QCCA 1037 , par. 74 - 78.

[73]    Paul MARTEL, "Le Voile Corporatif - l'attitude des tribunaux face à l'article 317 du Code civil du Québec", 58 R. du B. 95, p. 135-136.

[74]    Article 317 C.C.Q.

[75]    Paul MARTEL, supra note 73; see also Lanoue v. Brasserie Labatt Ltée, 1999 CanLII 13784 (QC C.A.); Gestion 3485 St-Laurent inc. v. 9034-9432 Québec inc. 2010 QCCS 1366 , p. 4-5.

[76]    "7.  No right may be exercised with the intent of injuring another or in an excessive and unreasonable manner which is contrary to the requirements of good faith."

[77]    Paul MARTEL, La société par actions au Québec, vol. 1, Montréal, Wilson & Lafleur, Martel Ltée, 2011, last updated March 2011, p. 1-77, par. 1-243; see also an in depth analysis of this criteria in Raymonde CRÊTE et Stéphane ROUSSEAU, Droit des sociétés par actions, 3rd Ed., Éditions Thémis, 2011, p. 130, par. 281.

[78]    Exhibit D-2.

[79]    Exhibit P-16.

[80]    Examination after plea of Mr. Vincenzo Barrasso of November 30, 2007, p. 8.

[81]    Ibid, p. 10.

[82]    Ibid, p. 14.

[83]    Ibid, p. 22.

[84]    Ibid, p. 23.

[85]    Ibid, p. 50.

[86]    The Court record shows that getting Brown to testify was a long and complicated ordeal.

[87]    Testimony of Brown on April 10, 2011.

[88]    Exhibit P-2.

[89]    "497.  Saving the cases where provisional execution is ordered and where so provided by law, an appeal regularly brought suspends the execution of judgment.

      However, a judge of the Court of Appeal may, on a motion, for a special reason other than those set out in subparagraphs 4.1 and 5 of the first paragraph of article 501, order the appellant to furnish, within the time fixed in the order, security in a specified amount to guarantee in whole or in part the payment of the costs of appeal and the amount of the condemnation, if the judgment is upheld.

      If the appellant does not furnish security within the fixed time, a judge of the Court of Appeal may, upon motion, dismiss the appeal."

[90]    "547. Notwithstanding appeal, provisional execution applies in respect of all the following matters unless, by a decision giving reasons, execution is suspended by the court:

 (a) possessory actions;

 (b) liquidation of a succession, or making an inventory;

 (c) urgent repairs;

 (d) ejectment, when there is no lease or the lease has expired or has been cancelled or annulled;

 (e) appointment, removal or replacement of tutors, curators or other administrators of the property of others, or revocation of the mandate given to a mandatary in anticipation of the mandator's incapacity;

 (f) accounting;

 (g) alimentary pension or allowance or custody of children;

 (h) judgments of sequestration;

 (i) (subparagraph repealed);

 (j) judgments with regard to an improper use of procedure.

In addition, the court may, upon application, order provisional execution in case of exceptional urgency or for any other reason deemed sufficient in particular where the fact of bringing the case to appeal is likely to cause serious or irreparable injury, for the whole or for part only of a judgment.

In the cases provided for in this article, the court may, upon application, make provisional execution conditional upon the furnishing of security."

[our underlining]

[91]    Charles BELLEAU, "De l'exécution forcée des jugements - Dispositions préliminaires", in Denis FERLAND and Benoît EMERY (dir.), Précis de procédure civile du Québec, 4th Ed., vol. 2, Cowansville, Éditions Yvon Blais, 2005, Droit civil en ligne (DCL), EXB2003PPC59.

[92]    J.E. 95-607 (C.A.).

Le lecteur doit s'assurer que les décisions consultées sont finales et sans appel; la consultation du plumitif s'avère une précaution utile.

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