Garland (W.G.) Ltd. v. Sovereign General Insurance Co. et al., (1996) 140 Nfld. & P.E.I.R. 347 (NFTD)

• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: April 23, 1996
• Jurisdiction: Newfoundland and Labrador
• Citations: (1996), 140 Nfld. & P.E.I.R. 347 (NFTD)

Garland Ltd. v. Sovereign General (1996), 140 Nfld. & P.E.I.R. 347 (NFTD);

    438 A.P.R. 347

MLB headnote and full text

W.G. Garland Limited (plaintiff) v. Sovereign General Insurance Company (first defendant) and Avery Adjusting Limited (second defendant)

(1993 St. J. No. 3622)

Indexed As: Garland (W.G.) Ltd. v. Sovereign General Insurance Co. et al.

Newfoundland Supreme Court

Trial Division

Hickman, C.J.T.D.

April 23, 1996.

Summary:

The plaintiff construction company sued its insurer and the insurance adjustor for the costs of repairs authorized by the adjustor. The adjustor applied to have the statement of claim filed against it struck out as disclosing no reasonable cause of action (Supreme Court Rule 14.24(1)(a)).

The Newfoundland Supreme Court, Trial Division, granted the application.

Agency - Topic 5028

Relations between agent and third parties - Contracts - Personal liability of agent - The plaintiff construction company sued its insurer and the insurer's adjustor for the costs of repairs authorized by the adjustor - The plaintiff alleged breach of contract, breach of apparent authority and breach of fiduciary duty against both defendants - The adjustor applied to have the statement of claim filed against it struck out as dis­closing no reasonable cause of action - The Newfoundland Supreme Court, Trial Division, granted the application - The adjustor was acting as agent for the insurer - If the plaintiff established apparent authority on the adjustor's part it would establish liability on the insurer to the exclusion of the adjustor - See paragraphs 11 to 19 - There was no fiduciary rela­tion­ship between the plaintiff and the adjustor - See paragraphs 20 to 25.

Equity - Topic 3607

Fiduciary or confidential relationships - General principles - Relationships which are not fiduciary - [See Agency - Topic 5028 ].

Insurance - Topic 521

Agents - Liability of agent - Contracts - General - [See Agency - Topic 5028 ].

Insurance - Topic 547

Agents - Liability of insurer for acts of agent - False statements - [See Agency - Topic 5028 ].

Practice - Topic 3679

Evidence - Affidavits - Use of - Evi­dence - Admissibility - A defendant applied to have the statement of claim filed against it struck out as disclosing no reasonable cause of action (Supreme Court Rule 14.24(1)(a)) - On the day before the hearing, the plaintiff, without leave, filed two affidavits - The defendant objected, arguing that applications of this kind should be determined solely on the plead­ings filed up to the time of the hearing - The Newfoundland Supreme Court, Trial Division, held that under Supreme Court Rule 14.24(2) it was within the court's discretion to allow the two affidavits to stand - See paragraphs 7 to 10.

Cases Noticed:

Cowley v. National Life Assurance Co. of Canada (1991), 97 Nfld. & P.E.I.R. 20; 308 A.P.R. 20 (Nfld. T.D.), refd to. [para. 12].

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84, refd to. [para. 21].

Hamilton v. Marion (Chris) Holdings Ltd. et al., [1981] I.L.R. 341 (Ont. H.C.), refd to. [para. 22].

Wandlyn Motels Ltd. et al. v. Commerce General Insurance Co. et al., [1969] I.L.R. 603; 1 N.B.R.(2d) 213 (C.A.), refd to. [para. 30].

Statutes Noticed:

Rules of Court (Nfld.), Supreme Court Rules, rule 14.24(2) [para. 9].

Authors and Works Noticed:

Campion & Dimmer, Professional Liability in Canada, p. 3-40 [para. 20].

Fridman, G.H.L., The Law of Agency (6th Ed. 1990), pp. 109 [para. 15]; 113 [para. 17].

Counsel:

Geoffrey E.J. Brown, for the appli­cant/second defendant, Avery;

A. Douglas Moores, Q.C., for the respon­dent/plaintiff, W.G. Garland;

Terry G. Rowe, for the first defendant, Sovereign.

This application was heard by Hickman, C.J.T.D., of the Newfoundland Supreme Court, Trial Division, who filed the follow­ing decision on April 23, 1996.