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 v. like errors, and addresses and, 2017 NSSM 97

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 reservedjudgment pending release of these reasons. I shall address the evidence of each party on jurisdiction, followed by evidence and the lawconcerning 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 endusers on behalf of lenders and underwriters of the loans. In other words, financial service companies. He was one of 15 employees ofLionhart across Canada who all worked from their home offices. To facilitate their operations, the employer pays for a local internetconnection 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 intoevidence. He did not meet with the person who interviewed him ever again. Mr. Stymest signed an employment contract prior to startinghis 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 NewBrunswick.

(11) Breanne Young testified that Lionhart Capital is a company incorporated in Alberta and all work is performed out of Alberta. Itis registered to do business in that province and no others. It collects and remits GST only and pays and files its income tax based onAlberta law. Its employee withholdings, such as EI and CPP, are based on Alberta rates. Most notably, the Defendant relies on paragraph16.7 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 lawsof 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 CourtJurisdiction and Proceedings Transfer Act governs these issues. Section 3(2) provides that any questions concerning territorialcompetence 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 ofjurisdiction. 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, 2009NSCA 80, (leave to appeal this decision to the Supreme Court of Canada was dismissed on March 25, 2010 at (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 thetwo-step analysis Justice Wright performed in deciding the application at first instance. Justice Wright said, at paragraph 40 of hisdecision 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 beperformed 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. Putanother way, they assert the principle of forum non conveniens, although Nova Scotia has territorial competence, there is a more suitablelocation which may have territorial competence, namely Alberta. A consideration of forum selection clause is considered as part of thisanalysis.

(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 territorialcompetence 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 aproceeding, 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 anyalternative 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 thanthe 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 ofthe 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 andinexpensively, 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 EliLilly & Co. v. Novapharm, (SCC), [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 inlight of the surrounding circumstances which were prevalent at the time.

Evidence of one party’s subjective intention has no independentplace 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 ispresumed 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 principlesespoused by the Supreme Court of Canada in the Eli Lilly & Co. case are binding on the courts in each province. They have been appliedrelatively consistently. This matter involves the

interpretation of the words of the contract based on their plain meaning. I do not find thelaws 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 hasreciprocal enforcement of judgment legislation. The Claimant has commenced this matter presumably knowing the risks of attempting tocollect 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 moresuitable 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 lawsof Canada applicable therein.”

(33) In considering jurisdiction clauses, there are two types, exclusive and non-exclusive jurisdiction clauses. Non-exclusivejurisdiction 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 oragreement 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 acceptjurisdiction where a proceeding is commenced in the designated forum. Additionally, the non-exclusive clause is a factor in any forumnon 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 canfall within a broad spectrum “between the two endpoints of (

i) no forum selection clause and (ii) the use of an exclusive choice of forumclause” (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 ofAlberta. The key difference between exclusive and non-exclusive jurisdiction clauses is the stipulation that courts of a particularjurisdiction shall have domain over the arbitration of this case. There is no such reference in the employment agreement. Accordingly, Ifind 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 NovaScotia. The leading case on jurisdiction clauses is the Supreme Court of Canada case of Z.I. Pompey Industrie v. ECU-Line N.V., (SCC), [1993] 1 S.C.R. 897.

The court confirmed the application of the “strong cause test”, meaning the party seeking tooust 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 theCourt 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 bebound by the forum selection clause. It is essential that courts give full weight to the desirability of holding contracting parties to theiragreements. There is no reason to consider forum selection clauses to be non-responsibility clauses in disguise. In any event, the "strongcause" test provides sufficient leeway for judges to take improper motives into consideration in relevant cases and prevent defendantsfrom 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 generalprinciple are few.

The few factors that might be considered include the plaintiff was induced to agree to the clause by fraud or improperinducement or the contract is otherwise unenforceable, the court in the selected forum does not accept jurisdiction or otherwise is unableto deal with the claim, the claim or the circumstances that have arisen are outside of what was reasonably contemplated by the partieswhen they agreed to the clause, the plaintiff can no longer expect a fair trial in the selected forum due to subsequent events that could nothave been reasonably anticipated, or enforcing the clause in the particular case would frustrate some clear public policy.

Apart fromcircumstances 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 NovaScotia. 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 thecourts will reject an express choice of designed to evade the mandatory rules of the law that would otherwise govern the contract hasestablished a general consistency with prevailing rules on crossborder contracts of employment.

Accordingly, the courts will have regardto the employment laws where the employee habitually carries out the work as well as the location of the place of business which theemployee was hired. The circumstances as a whole may indicate that the contract is more closely connected with another province orstate, 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 15 th 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)