Bich, Healy, Moore

Appeals from a judgment of the Superior Court granting in part a claim for damages. Dismissed.

In 2012, the appellant, whose sole shareholder was a pharmacist, purchased an immovable with the intention of opening a pharmacy there in January 2014 after it had unilaterally resiliated the tenants’ commercial leases. One of the tenants refused to leave, and in 2013, the Superior Court found in that tenant’s favour in light of the subrogation clause drafted by the respondent notary in the act of sale of the immovable. The appellant therefore opened a pharmacy in a smaller space. In November 2016, the tenant resiliated its lease, and the appellant, who had transferred half its shares in June 2016 to another pharmacist, opened a new pharmacy in the newly vacant space in April 2017. In August 2018, the appellant sold all of its shares and the immovable to the other pharmacist. In May 2022, the Superior Court ruled on the appellant’s action against the respondent notary, who acknowledged his fault regarding the subrogation clause, and awarded $309,732 as compensation, $134,160 of which was for loss of profits due to the delayed opening of the pharmacy in the initially intended space.

The appeals concern only the loss of future profits. The appellant faults the judge for taking into account the sale of its shares, which is an event that occurred after the loss crystallized. The respondent, for his part, submits that the judge erred in refusing to deduct the financing fees the appellant would have borne as of January 1, 2014, if it had opened its pharmacy in the initially intended space.

The case law dealing with loss of future profits tends to consider events occurring after the date of the loss, which sometimes transform the projections on which the claim for damages is based into certainties, and at other times negate them. Either case allows for a more accurate assessment of the loss actually suffered.

In this case, the assessment of the loss of the appellant’s future profits was based on extrapolation. The evidence adduced at trial, which was held in 2021, allowed for a more accurate assessment of the loss of profits it actually suffered. This is the reality that must prevail.

Article 1611 of the Civil Code of Québec (S.Q. 1991, c. 64) permits claims for compensation for future loss if it is certain, but that does not mean that this loss must or can be assessed immediately. When the loss involves future profits, the amount claimed when the action is instituted is merely an approximation, which is later modified based on facts that occur subsequently.

By selling its shares to a third party for reasons unrelated to the respondent’s fault, the appellant deprived itself of future profits for which it cannot claim compensation. The judge therefore did not err by reducing the loss of profits between June 2016 and August 2018 by half and by refusing to compensate the appellant for the period after August 2018. The judge also did not commit a palpable and overriding error in finding that, at the relevant time, the appellant could have afforded to pay the costs of moving and opening the pharmacy in the initially intended space itself.

Text of the decision: http://citoyens.soquij.qc.ca