Cormier v. Universal Property Management Ltd. et al., 2011 NSSC 16

• Judge: Rosinski, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 11, 2011
• Jurisdiction: Nova Scotia
• Citations: 2011 NSSC 16;(2011), 300 N.S.R.(2d) 217 (SC)

Cormier v. Universal Prop. (2011), 300 N.S.R.(2d) 217 (SC);

    950 A.P.R. 217

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. JA.040

Shawn Michael Cormier (plaintiff) v. Universal Property Management Limited, Fenwick Holdings Limited and Rob Schelleman (defendants)

(Hfx. No. 327439; 2011 NSSC 16)

Indexed As: Cormier v. Universal Property Management Ltd. et al.

Nova Scotia Supreme Court

Rosinski, J.

January 14, 2011.

Summary:

Cormier rented space for his hair salon from Fenwick Holdings. Universal Property Management was the property manager and agent of Fenwick. Cormier assigned his lease to 3019421 N.S. Ltd. (a neighbouring tenant). Universal and Cormier had discussions about the proposed assignment and Cormier believed that Universal, through its agents and on behalf of Fenwick, had approved of the assignment and he therefore disposed of his assets and vacated the premises. The deal between Cormier and 3019421 fell apart when Universal indicated its refusal to consent to the assignment agreed to between those two tenants. Cormier sued Universal, Fenwick and one of Universal's employees (the defendants), alleging breach of contract, negligent misrepresentation, equitable fraud and abuse of process. The defendants moved for summary judgment.

The Nova Scotia Supreme Court granted summary judgment in favour of the defendants, but only insofar as the claim of the plaintiff was based on the tort of abuse of process. Otherwise, the motion for summary judgment was dismissed.

Agency - Topic 1001

Authority of agent - General principles - General - The Nova Scotia Supreme Court reviewed the varieties of authority possessed by contractual agents - See paragraphs 30 to 34.

Agency - Topic 4161

Relations between principal and third parties - Principal's liability for torts by agent - General - The Nova Scotia Supreme Court reviewed the principles of vicarious liability of principals for their agents in cases of intentional torts - See paragraphs 35 to 38.

Fraud and Misrepresentation - Topic 8

Fraudulent misrepresentation (deceit) - What constitutes equitable fraud - The Nova Scotia Supreme Court referred to the elements of the tort of equitable fraud: "1. Where a person purports to act as the agent of another they are deemed to have entered into an implied contract of warranty with any person who contracts or otherwise deals with him in reliance on his authority. 2. If that person misrepresents the existence or extent of his authority, he is liable in damages for any loss thereby suffered by those who have dealt with him; the rule in Derry v. Peek being excluded by the existence of a contract implied in law" - See paragraph 43.

Fraud and Misrepresentation - Topic 2508

Misrepresentation - Negligent misrepresentation - The Nova Scotia Supreme Court referred to the requirements for establishing the tort of negligent misrepresentation - See paragraph 39.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - The Nova Scotia Supreme Court reviewed the law regarding motions for summary judgment on evidence - See paragraphs 12 to 22.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - Cormier rented space for his hair salon from Fenwick Holdings - Universal Property Management was the property manager and agent of Fenwick - Cormier assigned his lease to a neighbouring tenant - Cormier believed that Universal, through its agents and on behalf of Fenwick, had approved of the assignment and he therefore disposed of his assets and vacated the premises - The deal between Cormier and the neighbouring tenant fell apart when Universal refused to consent to the assignment agreed to between those two tenants - Cormier sued Universal, Fenwick and one of Universal's employees (the defendants), alleging breach of contract, negligent misrepresentation, equitable fraud and abuse of process - The defendants moved for summary judgment - The Nova Scotia Supreme Court held that there were genuine issues of material fact requiring a trial with respect to the breach of contract, negligent misrepresentation and equitable fraud claims, but no evidence presented that could support a claim of abuse of process - The court therefore granted summary judgment in favour of the defendants, but only with respect to the abuse of process claim.

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See second Practice - Topic 5702 ].

Torts - Topic 6252

Abuse of legal procedure - Abuse of process - Elements - The Nova Scotia Supreme Court stated that the four elements of the tort of abuse of process were: "1. The party must have used the legal process. 2. They must have done so for a purpose other than that for which the process is in question was designed to serve (that is for a collateral and illicit purpose). 3. They must have done some definite act or made some definite threat in furtherance of that purpose. 4. Some measure of special damage must be shown" - See paragraph 40.

Cases Noticed:

Gilbert v. Giffin (2010), 296 N.S.R.(2d) 183; 940 A.P.R. 183; 2010 NSCA 95, refd to. [para. 13].

Spencer v. Canada (Attorney General) et al. (2010), 304 N.S.R.(2d) 1; 2010 NSSC 446, refd to. [para. 14].

Executive Rental Agency et al. v. Quaintance, [2009] N.S.R.(2d) Uned. 8; 2009 NSSC 16, refd to. [para. 23].

Mitsui & Co. (Point Aconi) Ltd. v. Jones Power Co. et al. (2000), 189 N.S.R.(2d) 1; 590 A.P.R. 1 (C.A.), refd to. [para. 27].

Sinanan v. Woodyer et al. (1999), 176 N.S.R.(2d) 201; 538 A.P.R. 201 (C.A.), refd to. [para. 29].

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1, refd to. [para. 39].

Coughlan et al. v. Westminer Canada Ltd. et al. (1993), 120 N.S.R.(2d) 91; 332 A.P.R. 91 (T.D.), affd. (1994), 127 N.S.R.(2d) 241; 355 A.P.R. 241 (C.A.), refd to. [para. 40].

St. Dennis v. Antoine, [1981] B.C.J. No. 499 (Co. Ct.), refd to. [para. 43].

Royal Bank of Canada v. Feldman (1993), 15 O.R.(3d) 501 (Gen. Div.), refd to. [para. 58].

AGC Flat Glass North America Ltd. v. CCP Atlantic Specialty Products Inc. (2010), 289 N.S.R.(2d) 290; 916 A.P.R. 290; 2010 NSSC 108, refd to. [para. 60].

Authors and Works Noticed:

Bowstead and Reynolds on Agency (17th Ed. 2001), arts. 76, 77, 81, 92 [para. 37].

Fridman, Gerald Henry Louis, The Law of Agency (7th Ed. 1996), pp. 61 [paras. 31, 32]; 61, fn. 19 [para. 43]; 62 [paras. 31, 33]; 122, 123 [paras. 31, 34].

Fridman, Gerald Henry Louis, The Law of Contract in Canada (5th Ed. 2006), p. 15 [para. 26].

Swan, John, Canadian Contract Law (1st Ed. 2006), p. 188 [para. 25].

Counsel:

Kevin A. MacDonald, for the plaintiff;

Joseph Herschorn, for the defendants.

This motion was heard at Halifax, Nova Scotia, on January 11, 2011, by Rosinski, J., of the Nova Scotia Supreme Court, who delivered the following decision on January 14, 2011.