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Contracts - Interpretation - Extrinsic evidence and parol evidence rule - Conduct of parties

Thursday, January 26, 2017 @ 7:00 PM  


Appeal by Shewchuk from the dismissal of his breach of contract claim against Blackmont. Shewchuk was a successful stockbroker employed in the Calgary office of Blackmont Capital (Blackmont). His compensation plan provided for the highest level of commission, which was 52 per cent of the fees Blackmont earned from a retail transaction. The plan also provided for referral fees to Blackmont’s Capital Markets group in Toronto, the amounts of which were discretionary, determined by executives of the Retail Group and Capital Markets. Like other investment advisors, Shewchuk was dissatisfied with his compensation for transactions referred to Capital Markets. He negotiated an amendment to his compensation plan which granted him 100,000 deferred stock units in Blackmont’s parent corporation, and additional compensation in the form of finder’s fees for broker warrants for certain specified transactions. The amendment prohibited Shewchuk from disclosing the amendment to other Blackmont personnel. Shewchuk’s action was based on a breach of the amending agreement, pursuant to which he argued he was entitled to a 52 per cent commission, as well as an additional 10 per cent for 4 Capital Markets transactions. He claimed he directly sourced these transactions for Blackmont through his connections with the clients. The judge found the scope of the amending agreement ambiguous with respect to whether it applied to Capital Markets transactions. He resolved the ambiguity by looking at the parties’ conduct after the amending agreement was formed. He noted that, subsequent to the agreement, Shewchuk had approached Blackmont for a finder’s fee on deals he brought to Capital Markets, had tried to negotiate an agreement with Capital Markets, and had tried to negotiate fees on particular Capital Markets transactions that were less favourable than the fees he claimed were payable under the amending agreement. In the course of analyzing the parties’ post-agreement conduct, the judge made negative credibility findings against Shewchuk, who claimed that the agreement was intended to apply to Capital Markets transactions.

HELD: Appeal dismissed. The judge was correct in finding that the amending agreement was ambiguous because its provisions with respect to the finder’s fee collided with the plan’s provision dealing with the referral fees for Capital Markets transactions. He was entitled to consider post-agreement conduct for the purpose of resolving this ambiguity. He properly used this evidence to test Shewchuk’s contention that the parties intended the amending agreement to apply to Capital Markets transactions. He did not give the post-agreement evidence undue weight.