Focus On

AGENCY - What constitutes

Tuesday, May 14, 2019 @ 8:27 AM  

Lexis Advance® Quicklaw®
Appeal by the defendant from a decision dismissing its motion for summary judgment to dismiss the respondents’ action for damages arising from the restoration activities undertaken at their home. The appellant marketed restoration services and granted a licence to franchisees to use its trademark “SystemCare”. The respondents alleged they entered into a contract with the appellant to carry out restoration work at their home and that the appellant’s alleged agent, H, did not perform the work as agreed and the work performed was inadequate. The appellant denied that H was its employee and therefore was not authorized or able to enter into a contract on the appellant’s behalf. The appellant argued that it was only a franchisor company and did not undertake any restoration services. It argued that 835NSL was the franchisee that performed the work at issue and that H was the employee of 835NSL. The chambers judge found there was a genuine issue of material fact of whether the evidence could satisfy the factual requirements of agency by estoppel.

HELD: Appeal allowed. The chambers judge’s identification of a genuine issue of material fact was in error. The unrefuted evidence established that H was an employee of 835NSL, not the appellant, that the franchise agreement precluded 835NSL from acting as an agent for the appellant, and that earlier the respondents had acknowledged the contract negotiated with H was with 835NSL. There was no material fact in dispute. The chambers judge accepted that the respondents, in their discussion with H which led to the contract for restoration services, was unaware of the existence of the appellant. The respondents had no knowledge of the appellant, and in their dealings with H at the material time, did not know who or what they were dealing with. The respondents’ claim of agency, narrowed to an alleged agency by estoppel, had no real chance of success.

Kaehler v. SystemCare Cleaning & Restoration Ltd., [2019] N.S.J. No. 159, Nova Scotia Court of Appeal, D.R. Beveridge, C.A. Bourgeois and A.S. Derrick JJ.A., April 12, 2019. Digest No. TLD-May132019003