IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Citation: Stymest v. Lionhart Capital Ltd., 2017 NSSM 97
Claim No: SCCH 460783
BETWEEN:
Peter Darrell Stymest
Claimant
-and –
Lionhart Capital Ltd.
Defendant
Peter Stymest appeared on his own behalf.
Breanne Young appeared for Lionhart Capital Ltd.
Editorial Note: The electronic version of this judgment has been edited for grammar, punctuation and like errors, and addresses and phone numbers have been removed.
DECISION
(1)
This is
a claim for commission payable by the Defendant, Lionhart Capital Ltd.
(“Lionhart”), to one of its Business Development Managers, Peter Stymest, the
Claimant in this matter. The Defendant is a broker of credit products between
various lenders and their “end users”, namely businesses seeking to arrange
financing in the form of loans or lease purchase arrangements. Lionhart
arranges for “add-on” products such as life and disability insurance. The
company is incorporated under the laws of Alberta and not registered to do
business in Nova Scotia. The company does business in all provinces across
Canada, including Nova Scotia. The Claimant was employed as a Business
Development Manager, whose business development territory was Nova Scotia and
New Brunswick. Mr. Stymest worked from his home office in Lower Sackville. He
seeks compensation for deals that closed and became payable after he left the
Defendant’s employ.
(2)
The
Defendant disputes the claim alleging the contract is subject to Alberta law
and, thus, the courts of Nova Scotia have no jurisdiction over the matter. In
effect, the Defendant seeks a stay of proceedings. Secondly, if the Nova Scotia
courts do have jurisdiction, then Mr. Stymest is not eligible for payment based
on this contract as he resigned before he was entitled to payment.
(3)
Prior
to the hearing, the Defendant indicated they could not attend the hearing and
wanted to have the matter conducted by telephone or video conferencing. The
Provincial Court in Halifax has limited reach to conduct secure hearings by
video conferencing. In limited circumstances, I have allowed hearing by
telephone call provided all exhibits were tendered in advance. Both parties
consented to this arrangement. The matter was held by telephone conference. Mr.
Stymest attended in person. Ms. Young appeared by telephone.
(4)
This
decision has been filed beyond the sixty days required by the Small Claims
Court Act. The particular time line has been held to be directory rather
than mandatory, as noted by the Supreme Court of Nova Scotia in Towle v.
Samad, 2013 NSSC 260. Nevertheless, the parties have doubtlessly been
anticipating this decision. Their patience has been greatly appreciated.
Issues
(5)
There
are two issues to be considered:
- Does the Small Claims Court of Nova Scotia have jurisdiction over this claim?
- If so, is the Defendant, Lionhart Capital Ltd., liable for payment to the
Claimant for the commission on sales completed prior to Mr. Stymest’s departure
from the company?
(6)
For the
reasons stated below, the answer to both questions is in the affirmative. I
have found for Mr. Stymest.
Jurisdiction
(7)
At the
outset of the hearing, I indicated to both parties I would hear evidence and
submissions on the issue of jurisdiction. I reserved judgment pending release
of these reasons. I shall address the evidence of each party on jurisdiction,
followed by evidence and the law concerning the interpretation of the contract.
Evidence
(8)
Peter
Stymest testified that he worked for Lionhart as a Business Development
Manager. His role was to provide financing to end users on behalf of lenders
and underwriters of the loans. In other words, financial service companies. He
was one of 15 employees of Lionhart across Canada who all worked from their
home offices. To facilitate their operations, the employer pays for a local
internet connection for its employees
(9) He was interviewed for the position by telephone and was sent an offer of employment by mail. The offer letter is tendered into evidence. He did not meet with the person who interviewed him ever again. Mr. Stymest signed an employment contract prior to starting his job. Mr. Stymest continued to do his work from his home office in Lower Sackville, Nova Scotia.
(10)
He
testified that the lease financing contracts between the dealers and end users
were all signed in Nova Scotia or New Brunswick.
(11)
Breanne
Young testified that Lionhart Capital is a company incorporated in Alberta and
all work is performed out of Alberta. It is registered to do business in that
province and no others. It collects and remits GST only and pays and files its
income tax based on Alberta law. Its employee withholdings, such as EI and CPP,
are based on Alberta rates. Most notably, the Defendant relies on paragraph
16.7 of the employment agreement which states as follows:
“This
Agreement shall be governed by and interpreted and construed in accordance with
the laws of the Province of Alberta and the laws of Canada applicable therein.”
The Law Respecting Jurisdiction
(12)
The law
concerning the choice of forum in Canada is governed by common law and statute.
In Nova Scotia, the Court Jurisdiction and Proceedings Transfer Act
governs these issues. Section 3(2) provides that any questions concerning
territorial competence are addressed solely by Part I of the Act, which
encompasses ss. 3-13.
(13)
The
leading case in Nova Scotia is Bouch v. Penny, 2009 NSCA 80. It provides
the procedure required for considerations of jurisdiction. In the interests of
brevity, I have quoted from a subsequent decision of the Supreme Court – Family
Division, Yonis v. Garado, 2011 NSSC 110, where Justice Jollimore
summarized the test as follows:
“[5] The procedure for
determining jurisdiction was most recently enunciated by our Court of Appeal
in Bouch v. Penny, 2009 NSCA 80, (leave
to appeal this decision to the Supreme Court of Canada was dismissed on March
25, 2010 at 2010 CanLII 14708 (SCC). Bouch v.
Penny was the Court of Appeal's first decision pursuant to the Court
Jurisdiction and Proceedings Transfer Act, S.N.S. 2003 (2d
Sess.), s. 2.
[6] In Bouch v. Penny, 2009 NSCA 80, Justice Saunders,
with whom Justices Roscoe and Oland concurred, approved of the two‑step
analysis Justice Wright performed in deciding the application at first
instance. Justice Wright said, at paragraph 40 of his decision in Penny
v. Bouch, 2008 NSSC 378, that where there's a dispute over assumed jurisdiction,
the Court Jurisdiction and Proceedings Transfer Act requires I
must first determine whether I can assume jurisdiction, given the relationship
between the subject matter of the case, the parties and the forum. If
that legal test is met and I can assume jurisdiction, I must then consider
whether I ought to assume jurisdiction. He said this means considering
the discretionary doctrine of forum non conveniens. There may
be more than one forum capable of assuming jurisdiction and I may decline to
exercise jurisdiction because there is another, more appropriate, forum.’
Assumption of Jurisdiction
(14)
Section
4 of the Act provides a list of criteria where territorial competence may be
found:
4. A court has territorial competence in a
proceeding that is brought against a person only if
(a) that person is the plaintiff in another proceeding in the court to which
the proceeding in question is a counter-claim;
(b) during the course of the proceeding that person submits to the court's
jurisdiction;
(c) there is an agreement between the plaintiff and that person to the effect
that the court has jurisdiction in the proceeding;
(d) that person is ordinarily resident in the Province at the time of the commencement
of the proceeding; or
(e) there is a real and substantial connection between the Province and the
facts on which the proceeding against that person is based.
(15)
Subsections
(a) and (c) are inapplicable. The Defendant clearly disputes any jurisdiction
of the Nova Scotia courts and there has been no evidence the Defendant
submitted to it earlier in the contractual relationship. Indeed, there is no
reference whatsoever in the contract to attorning to Nova Scotia courts. While
I have found the Defendant carries on business in this province, I am not
prepared to find that sufficient to find the Defendant submitted to the
jurisdiction of the courts in Nova Scotia. Thus, subsection (b) does not apply.
In my view, subsection 4(d) is applicable as it fits both sections 8(a) and 8(c)
of the Act.
Ordinarily Resident
(16)
I have
set out the relevant provisions of s. 8 below:
8 A corporation is ordinarily resident in the Province, for the
purposes of this Part, only if
(a) the corporation has, or is required by law to have, a registered office in
the Province;…
(c) it has a place of business in the Province;….
(17)
Subsection
8(c) requires the corporation to have a place of business in the province. It
is clear from the evidence the Claimant occupied a home office where his
business development activities were conducted. Documents were prepared by him
and sent to the customers. Mr. Stymest was not an independent contractor. He
was an employee of Lionhart. I am satisfied this is sufficient to establish his
home office as a place of business.
(18)
Secondly,
while not raised before me, I refer to the Corporations Registration Act
which requires any corporation carrying on business to hold a certificate
issued under the Act. Section 13 imposes a penalty on those companies who fail
to do so.
(19)
For
both of these reasons, I find the requirements of s. 8 have been met.
(20)
If I am
wrong in that finding, then I must also consider subsection (e), if a real and
substantial connection exists between the facts of the matter and Nova Scotia. The
relevant portion of the “real and substantial connection” test as it relates
to contracts, is set out in s. 11(e) of the Act:
Presumption of real and substantial connection
11 Without
limiting the right of the plaintiff to prove other circumstances that
constitute a real and substantial connection between the Province and the facts
on which a proceeding is based, a real and substantial connection between the
Province and those facts is presumed to exist if the proceeding:
…(e) concerns contractual obligations, and
(i) the contractual obligations, to a substantial extent, were to be performed
in the Province,
(ii) by its express terms, the contract is governed by the law of the Province,
or
(iii) the contract
(A) is for the purchase of property, services or both, for use other than in
the course of the purchaser's trade or profession, and
(B) resulted from a solicitation of business in the Province by or on behalf of
the seller;
(21)
Based
on the evidence of the parties, I find Mr. Stymest was required to perform the
duties of his employment in Nova Scotia and New Brunswick. His home office was
in Nova Scotia and the financial products which he sold and the clients he met
to arrange financing and insurance were companies or individuals resident in Nova
Scotia or New Brunswick. Other than the home base of the employer, there was no
connection between the contract and Alberta. I find the contractual obligations
to a substantial extent were to be performed in Nova Scotia. Therefore, I find
there is a real and substantial connection between the facts of the matter and
Nova Scotia.
Forum
Non Conveniens
(22)
The second
part of the test is essentially the Defendant’s argument that there is a more
convenient forum to hear the matter. Put another way, they assert the principle
of forum non conveniens, although Nova Scotia has territorial
competence, there is a more suitable location which may have territorial
competence, namely Alberta. A consideration of forum selection clause is
considered as part of this analysis.
(23)
Reference
is made to s. 12 of the Act:
Court may decline territorial competence
12 (1) After considering the interests of the parties to a
proceeding and the ends of justice, a court may decline to exercise its
territorial competence in the proceeding on the ground that a court of another
state is a more appropriate forum in which to hear the proceeding.
(2) A court, in deciding the question of whether it or a court outside the
Province is the more appropriate forum in which to hear a proceeding, must
consider the circumstances relevant to the proceeding, including
(a) the comparative convenience and expense for the parties to the proceeding
and for their witnesses, in litigating in the court or in any alternative
forum;
(b) the law to be applied to issues in the proceeding;
(c) the desirability of avoiding multiplicity of legal proceedings;
(d) the desirability of avoiding conflicting decisions in different courts;
(e) the enforcement of an eventual judgment; and
(f) the fair and efficient working of the Canadian legal system as a whole.
(24)
The
cases are clear that no single factor is to be considered. A court must adopt a
holistic approach. As noted above, other than the location of the head office,
the physical facts of the case all point to a contract in Nova Scotia. The
differentiating factor is the “jurisdiction clause” found in the employment
agreement.
(25)
I turn now to the analysis of s. 12. Subsections
(a) and (b) are addressed in their own separate paragraphs.
(26)
Comparative convenience and expense
– There were two witnesses, Mr. Stymest and Ms. Young. By consent and with
leave of the Court, Ms. Young’s evidence was taken by telephone. The
documentary evidence was sent in electronic form prior to the hearing. Neither
party raised an objection to the hearing being held in this way. I find the
matter could be held comparatively simply and inexpensively, and actually was.
(27)
Law to be Applied – The
leading case in Canada relating to contractual interpretation is the Supreme
Court of Canada case of Eli
Lilly & Co. v. Novapharm, [1998] 2 S.C.R. 129:
“The
contractual intent of the parties is to be determined by reference to the words
they used in drafting the document, possibly read in light of the surrounding
circumstances which were prevalent at the time. Evidence of one party’s
subjective intention has no independent place in this determination....
...Indeed, it is unnecessary to consider any extrinsic evidence at all when the
document is clear and unambiguous on its face....
..However, to interpret a plainly worded document in accordance with the true
contractual intent of the parties is not difficult, if it is presumed that the parties
intended the legal consequences of their words.”
(28) The
legal systems involve two Canadian provinces whose judicial systems are
similarly structured. The contractual principles espoused by the Supreme Court
of Canada in the Eli Lilly & Co. case are binding on the courts in
each province. They have been applied relatively consistently. This matter
involves the interpretation of the words of the contract based on their plain
meaning. I do not find the laws to be applied to be inconsistent.
(29)
Subsections 12(c) and (d) do not apply as there
have not been other proceedings undertaken elsewhere.
(30)
Subsections
12(e) would not be offended as this matter involves the conflict of laws
between two provinces. Each province has reciprocal enforcement of judgment legislation.
The Claimant has commenced this matter presumably knowing the risks of attempting
to collect where the Defendant’s assets are primarily in Alberta.
(31)
I could
not find any evidence of subsection 12(f) being an issue. I could find no other
principles at common law to show a more suitable forum to hear the matter,
subject to consideration of the jurisdiction clause.
Jurisdiction Clause
(32)
For the
sake of continuity, I shall restate the jurisdiction clause:
“This
Agreement shall be governed by and interpreted and construed in accordance with
the laws of the Province of Alberta and the laws of Canada applicable therein.”
(33)
In
considering jurisdiction clauses, there are two types, exclusive and
non-exclusive jurisdiction clauses. Non-exclusive jurisdiction clauses are
described by the Supreme Court of Nova Scotia in the recent case of 3289444
Nova Scotia Ltd. v. RW Armstrong & Associates Inc., 2016 NSSC 330. In that case,
Justice Joshua Arnold stated the following:
“[54] When dealing with an exclusive jurisdiction clause the
presumption is that the forum selection as detailed in a contract or agreement
will be respected by the court.
[55] When dealing with a non-exclusive jurisdiction
clause, many courts have found that a responding party will be obliged to
accept jurisdiction where a proceeding is commenced in the designated forum.
Additionally, the non-exclusive clause is a factor in any forum non
conveniens analysis. The specific language used in the
non-exclusive clause may have an impact on such an analysis.
[56] As noted in Megawheels, depending
on the terminology employed in the specific agreement, non-exclusive forum provisions
can fall within a broad spectrum “between the two endpoints of (i) no forum
selection clause and (ii) the use of an exclusive choice of forum clause”
(para. 28). Some clauses are explicitly “non-exclusive.” (underlining
mine)
(34)
The clause in the agreement provides the
interpretation of the contract will be in accordance with the laws of the
Province of Alberta. The key difference between exclusive and non-exclusive
jurisdiction clauses is the stipulation that courts of a particular
jurisdiction shall have domain over the arbitration of this case. There is no
such reference in the employment agreement. Accordingly, I find the clause is a
non-exclusive clause.
(35)
It is worth noting that there has been no
concurrent action or application in Alberta by either party.
(36)
If I am
wrong in characterizing the clause as non-exclusive, then I find this an
appropriate case to have the matter heard in Nova Scotia. The leading case on
jurisdiction clauses is the Supreme Court of Canada case of Z.I. Pompey Industrie v. ECU-Line N.V.,
[1993] 1 S.C.R. 897. The
court confirmed the application of the “strong cause test”, meaning the party
seeking to oust the jurisdiction of the jurisdiction selected by agreement must
demonstrate a strong cause:
“The "strong cause" test remains
relevant and effective and no social, moral or economic changes justify the
departure advanced by the Court of Appeal. In the context of international
commerce, order and fairness have been achieved at least in part by application
of the "strong cause" test. This test rightly imposes the burden on
the plaintiff to satisfy the court that there is good reason it should not be
bound by the forum selection clause. It is essential that courts give full
weight to the desirability of holding contracting parties to their agreements.
There is no reason to consider forum selection clauses to be non-responsibility
clauses in disguise. In any event, the "strong cause" test provides
sufficient leeway for judges to take improper motives into consideration in
relevant cases and prevent defendants from relying on forum selection clauses
to gain an unfair procedural advantage.”
(37) This case has been applied by the Ontario Court of Appeal in Expedition Helicopters Inc. v. Honeywell Inc, 2010 ONCA 351, where the court stated at para 24:
“A forum selection clause in a commercial contract should be given effect. The factors that may justify departure from that general principle are few. The few factors that might be considered include the plaintiff was induced to agree to the clause by fraud or improper inducement or the contract is otherwise unenforceable, the court in the selected forum does not accept jurisdiction or otherwise is unable to deal with the claim, the claim or the circumstances that have arisen are outside of what was reasonably contemplated by the parties when they agreed to the clause, the plaintiff can no longer expect a fair trial in the selected forum due to subsequent events that could not have been reasonably anticipated, or enforcing the clause in the particular case would frustrate some clear public policy. Apart from circumstances such as these, a forum selection clause in a commercial contract should be enforced.”
(38)
The Expedition
Helicopters case has been followed by the courts in both Nova Scotia (e.g. 2288450
Ontario Ltd. v. Novajet, 2016 NSSC 77) and Alberta (e.g. TBM
Transportation Ltd. v. Tri-Star Transport Ltd., 2011 ABCA 358).
(39)
At all
material times to this contract, the Defendant carried on business in Nova
Scotia from Mr. Stymest’s home office in Nova Scotia. Halsbury’s Laws of
Canada provides as follows at para. HCF-136:
“Although
common law jurisdictions in Canada have not established a specialized set of
comprehensive rules, the general rule that the courts will reject an express
choice of designed to evade the mandatory rules of the law that would otherwise
govern the contract has established a general consistency with prevailing rules
on crossborder contracts of employment. Accordingly, the courts will have
regard to the employment laws where the employee habitually carries out the
work as well as the location of the place of business which the employee was
hired. The circumstances as a whole may indicate that the contract is more
closely connected with another province or state, for instance, the residence
of the employee.”
(40)
The
Defendant employed Mr. Stymest and he was based in Nova Scotia. Thus, his
employment was governed by the Labour Standards Code; as noted above, the
Defendant was required to register its office and an agent under the Corporations
Registration Act. The licence to sell insurance to a Nova Scotia resident was
governed by the Insurance Act in this province. Any loans sold by the
Defendant for its lenders are subject to the Personal Property Security Act,
if the company has assets in Nova Scotia.
(41)
It is
not enough to state simply the employment is governed by the laws of Alberta.
Whether deliberate or inadvertent, such a clause would possibly allow the
Defendant to ignore its obligations under these statutes.
(42)
I find
the jurisdiction clause to be of no help to the Defendant. The Defendant has
not registered to do business in the Province, although arguably it should
have. In summary, I find the Small Claims Court has jurisdiction to hear this
matter.
Interpretation
of Contract
Issues
(43)
The
issues surrounding the contract are the duration of the relationship, i.e. when
the contract terminated and if the Claimant’s entitlement to commission ended
after his employment ceased. If the Claimant is found to be entitled to
commission, then the issue of quantum must be addressed. There is also the
additional issue of entitlement to car allowance.
(44)
Peter
Stymest testified that he was hired by the Defendant on October 19, 2015. His
hire was conducted by phone or remote video conference call. His interview was
with Gerry Bevan who spoke from Victoria, BC. Mr. Stymest did not meet Mr.
Bevan in person until several months into his position.
(45)
Mr.
Stymest described his job duties as meeting with prospective borrowers or “end
users” on behalf of the Defendant with a view to the borrowers meeting with one
of the lenders they served. The Defendant received a commission, and
administrative fees. Mr. Stymest’s compensation was based on the amount of fees
collected. The parties tendered into evidence a contract of employment.
Schedule B of that document sets out the pay structure. In effect, he would
receive 25% on the commission payable to Lionhart and 30% of any “add-on” fees.
He would be paid on the 15th of each month.
(46)
Mr.
Stymest worked out of a home office which included his cellular phone and
computer provided by Lionhart. He would supply his own internet connection but
be reimbursed.
(47) On November 14, 2016, he advised his supervisor, Mike Anderson, of his intention to resign. His last work day would be November 30, 2016. It was agreed between the claimant and Mr. Anderson that Mr. Stymest would assist in getting the last of his business in. He was permitted to keep the computer and phone until December 12. He tendered into evidence a summary showing a breakdown of his commission, which was dependant on three deals. These deals will be the subject of analysis later in this decision. He received his pay for one account. The pay did not include the $500 car allowance for his last month. He testified that he was paid in arrears not in advance. He was advised on December 22, 2006 by Ms. Olivia Train that the Blue Rock and Darren developments accounts had been paid and the broker fees released. He was advised on January 3, 2017 that the deals had been canceled. It is Mr. Stymest’s evidence that Lionhart's policy is for administration fees and document fees to be paid by the lender even if the deal is cancelled. He has not received any payment on these two deals or three others which were aborted.
(48) Breanne Young is a director with the defendant, Lionhart. She works with the sales team across Canada. She referred to the following sections of the employment agreement.
(49)
Paragraph
12.3 states as follows:
“Upon
termination of the employee, all outstanding obligations from The Company shall
the full and final satisfaction to the employee arising out of this Agreement,
the employment relationship or the termination of this Agreement. No further
remuneration the code or implied to the employee upon termination date.”
(50)
In
addition she cites paragraph 6 of Schedule B:
“Lionhart
reserves the right to modify or rescind this payment option at any time, at its
sole discretion.”
(51)
In addition,
paragraph 4.1 provides the following:
“Commissions
will be calculated at the end of the month from deposit brokerage fees funds
received in Lionhart's bank account that month would be paid less any required
deductions on the 15th of the following month.”
(52)
Ms.
Young testified that several of the deals, JP Gallant, Beaulieu and Battered
Fish did not close. It is her position that the agreement does not provide for
commission on document fees if they are paid if the deal is canceled. It is her
position that commissions are only payable if the deal comes together. She
testified that the cheque from ADD Capital for $5703.96 was received on
December 20, after any date in which Mr. Stymest worked for or the Defendant.
She had spoken with her superiors, including Ian Palmer, who indicated that
there was no authority to pay remuneration. She testified that Mike Anderson
does not have the authority to pay commissions.
(53) Under cross-examination, Ms. Young acknowledged that the document fees were not returned for three of the deals. The CRA judgment against Mr. Gallant was unable to be paid. The folio account was found not to be fraudulent.
(54)
Under
redirect evidence she emphasized the event of default clause in Schedule B. The
event of default clause provides as follows:
“Lionhart Capital Ltd.'s
relationship with its suppliers are subject to the terms of contractual
contracts. One of these contractual agreements is the event of default clause.
This clause states that should any deal be placed in default (non-payment of
funds, fraudulent transactions, transactions in which are canceled) within the
first 12 months, commissions paid to Lionhart capital Limited in our employees
are subject being refund at the total amount received. To protect us from these
clauses we have had to implement the following: all brokerage commission earned
over $10,000 credit or insurance protection we subject to the following pay
plan....”
(55) The schedule then describes an example of a declining balance where a certain lump sum is payable up front with the balance being spread over 12 equal monthly payments.
Tenure
of Employment
(56)
In reviewing
the evidence, I find the Claimants employment began on
October 20, 2015 and ran to December 20, 2016. I base this on his negotiations
with his supervisor, Mike Anderson to extend his time there as well as the
Defendant’s willingness to pay him to that point. The record of employment was
completed to reflect all pay that had been received.
(57)
I find
as a fact the agreement provided for all sales to be booked with payment to be
made up to the 15th of the month. Based on the record of employment, I find he
was employed there until at least December 20. As a result, he is entitled to
be paid for any sales booked during that time.
(58)
I have
reviewed the provisions of the agreement cited by Ms. Young in her evidence. In
interpreting a contract, it is necessary to review the document as a whole. She
cites as authority paragraph 12.3 of the agreement that no further remuneration
will be owed or implied to the employee upon termination date. However, the
paragraph is part of a larger Article 12, entitled "Termination”.
(59)
What is
meant by termination is set out in the opening sentence of paragraph 12.1:
“The
Company may terminate the employee’s employment at any time for just cause,
without notice and without any payment in lieu of such notice and without any
further compensation either by way of anticipated earnings or damages of any
kind whatsoever...”
(60)
Paragraph
12.1 deals with termination for cause. Paragraph 12.2 deals with termination
without just cause. Article 11 deals with resignation of an employee. It states
only that the employee will provide three weeks written advance notice of their
intention to resign. This period may be waived by the company.
(61)
I
disagree with Ms. Young that article 12 is intended to deal with payment of
commission after resignation. The agreement is in fact silent on the matter. As
stated by the court in the Eli Lilly case, I must look to the plain
language of the agreement. The agreement is silent. It would not have been
difficult for the Defendant to provide for that contingency.
(62)
I find
as a fact Mr. Stymest continued to provide services after November 30. His
efforts led to the advancement if not the closing of two deals and three
separate document fees. These efforts were undertaken with the consent and
knowledge of the company. It would be unfair and inappropriate to deprive Mr. Stymest
of compensation for time that he had worked and commissions which the Defendant
had received. Likewise, I find the discretion retained by the Defendant is not
sufficient to alter the Claimant’s entitlement. This would effectively gut the
contract by denying him payment after he has performed the work.
Amount
Owed
(63)
In
determining how much remains outstanding under the agreement, I have reviewed
the evidence provided for each client. It is important to note the onus to
prove entitlement is on the Claimant, Mr. Stymest.
(64)
In his
evidence, Mr. Stymest encloses a list of five separate accounts where he
alleged commissions are due. At the hearing, he spoke to the following:
(65)
JP
Gallant, Beaulieu and Battered Fish – Each of these deals were rejected
by the lenders as being unsuitable. The reasons stated include assets subject
to a lien from Canada Revenue Agency and fraud. Consequently, the Defendant
returned the respective commission payment as a result of default. Mr. Stymest
alleges the “add-on” fees were retained and he should be compensated
accordingly. Ms. Young maintains the payment was made after Mr. Stymest left
the company. She was not sure if the document fees were retained.
(66)
I find
the document fees were retained. The deals were booked prior to Mr. Stymest’s
departure. The three accounts resulted in fees payable to the company of $3500.
I find these fees the result of Mr. Stymest’s efforts prior to his departure.
He should be compensated accordingly. The Agreement provides he is to receive
30% commission on these items. I allow $1050.
(67)
Darim
Masonry and Blue Rock Towing – Mr. Stymest worked on these accounts prior to his
departure. The brokerage and documentation fees were received on December 22,
2016.
(68)
In his
e-mails, Mr. Stymest refers to two separate points in time in describing his
efforts, the deals were “well underway while (he) was there” and he
assisted in getting them done “after (he) left”. There is no evidence as
to how much his efforts contributed to their closing. I do not find Mr.
Anderson’s response, that the deals will be paid in January, was intended to be
a promise to pay any amount, let alone the full commission. My findings on this
issue are based on the work performed generally. In my view, it would be
inequitable not to pay the Claimant for his efforts.
(69)
I adopt
the approach used by the Alberta Court of Queen’s Bench in Avery v. Calgary Freightliner Ltd., 2008 ABQB 244, dealing with the contract of a
commission saleperson who resigned from his employment with commissions
remaining to be paid. Given the very short time between Mr.
Stymest’s departure and Lionhart’s receipt of its brokerage fees, I find he has
established entitlement to his commission. However, in my view, some
consideration for time put in by the Defendant in his absence must be
considered. I allow $1680 and $863.75, respectively, for the Darim Masonry and
Blue Rock Towing deals. This is reduced by a factor of 10%. I allow $2289.38.
Car
Allowance
(70)
Mr.
Stymest seeks $500 for his car allowance, alleging the funds were paid in
arrears not in advance. I find he has not proven this portion of his claim on
the balance of probabilities.
Claw
back for Insurance
(71)
Ms.
Young tendered into evidence documentation showing a claw back of $1317.13
payable by Lionhart to the Chubb Life Insurance company for failure to pay
premiums. Ms. Young maintains that if Mr. Stymest is entitled to his
commissions on the other deals, then his commission should be reduced by 30% of
this payment or $395.14. I find Lionhart received commission on $2257.94 for
this deal. Based on the evidence provided, I find Lionhart did indeed refund
the insurance premium.
(72)
I find
the Defendant has established a right to set-off against the amount owing to
Mr. Stymest. I order judgment reduced by $395.14.
(73)
Based
on the forgoing, I find the Claimant has proven his claim as follows:
“Add Ons” for Cancelled Deals $1050.00
(Beaulieu, Gallant and Battered Fish/BK & M)
Darim Masonry and Blue Rock Towing $2289.38
(Set Off: life insurance claw back) ($395.14)
Total $2944.24
(74)
The
Claimant seeks costs consisting of the filing fee, service fees and a search on
the corporate status of the Defendant in Alberta. These items are reasonable
and allowed. Costs are fixed at $166.08.
Summary
(75)
The
Claim is allowed in part. The Claimant, Peter Stymest, shall have judgment for
$3110.32.
(76) An order shall issue accordingly.
Dated at Halifax, NS,
on September 14, 2017;
______________________________
Gregg W. Knudsen, Adjudicator
Original: Court File
Copy: Claimant(s)
Copy: Defendant(s)