Philip R Doucette CLAIMANT - v. –, 2011 NSSM 1

SCCH 338882 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Doucette v. Lyndon Lynch Architects Ltd., 2011 NSSM 1 Between: Philip R Doucette CLAIMANT - and – Lydon Lynch Architects Limited and Halifax City Farmers’ Market Cooperative Limited DEFENDANT DECISION AND ORDER Adjudicator: David T.R.

Parker Heard: December 16, 2010 Decision: January 1, 2011 Counsel: the claimant and defendants were self represented Prior to commencing the proceedings the parties were asked if there were any preliminary matters they wish to bring to the court's attention and if there were any requests for changes in the pleadings of either of the parties. The defendant named Halifax Seaport Farmers 'Market was represented by Dieter Spillner who advised the court that the correct name Was Halifax City Farmers’ Market Cooperative Limited.

Following this the parties were explained the procedure and process of the Small Claims Court.

The claimant presented his evidence and while the defendants cross-examined the claimant on his testimony the defendants decided notto provide the court with any sworn testimony. The defendants did however cross-examine the claimant following his testimony. I am therefore left to rely on the testimony and submitted documents of the claimant. The claimant stated that Keith Tufts is a principleof the defendant Lydon Lynch Architects Limited and he has known Mr. Tufts for several years having played in baseball games withhim. He stated that Mr.

Tufts asked him to prepare a proposal for installation of stained-glass in some of the windows on the water sideof the new Farmers’Market building on a budget of $10,000.00. On October 29, 2007 the claimant presented a proposal to Mr. Tufts atthe defendant's offices. On November 7, 2008 a third design package and proposal was presented with a budget of $15,000.00. Theclaimant was told that the designs were acceptable for incorporation into the final building design and of the claimant would be named a"specified contractor" in the upcoming tender for the building contract.

After the tender is awarded the claimant was advised that hewould be contacted by the general contractor to arrange for fabrication and ultimately installation of the stained-glass windows. In January 2010 the claimant stated he contacted Mr. Tufts concerning the status of the stained-glass windows and he was told thatinstallation would begin in July of 2010 however his client the defendant, Halifax City Farmers’ Market Cooperative Limited mightchange its mind about installing the stained-glass windows because of costs overruns. The claimant then advised Mr.

Tufts that if the decision was not to go ahead with the stained-glass that the claimant would still be owedfor the design work and drawings already completed. He informed the defendant Mr. Tufts by e-mail that it was the claimant's practiceto assign 20% of the total contract price to design and drawing phase of the contract which was standard in the stained-glass industry andthe amount therefore would be $3000.00 owing to the claimant. On August 5, 2010 the claimant sent an invoice of $3000 to Mr. Tufts. The claimant stated that on August 23, 2010 he heard back fromMr.

Tufts saying that there was no contract and that he would send the invoice to his client and that as of the date of this action neitherdefendant has paid any invoice. Claimant's Position: The Claimant takes the position that Mr. Tufts entered into a contract with him on November 7, 2008 when he accepted the third designpackage with a price of $15,000.00 The claimant in his argument stated after entering into the contract he believed that Mr. Tufts was acting as a principle of the defendantLydon Lynch and on behalf of his client Farmers Market.

The claimant states in his arguments that he believed this to be the truthbecause Lydon Lynch had been identified in local media as the architect designing the new market building. He said this belief wasconfirmed by documents such as the "Offering Document" under which the Farmers’Market proposed to issue shares for purchase underthe Community Economic Development Corporation Regulations.

According to the claimant the document stated at page 20 "LydonLynch will produce the schematic design, design development and construction documents required for the Seaport Farmers Market.This was also confirmed on the Lydon Lynch website of Mr. Tufts role in the project. It is the position of the claimant that Lydon Lynch’s express authority to develop and design a prepare construction documents on behalfof Farmers Market included the authority to enter into a contract with a specialist craftsman for designed glass design.

The claimant goeson to say that if it fact Lydon Lynch didn't have express authority it certainly had implied authority to do so. In the alternative the claimant argues that if Lydon Lynch’s implied authority does not include the authority to contract for stained glassdesign then Farmers Market is responsible for the unauthorized acts done by Lydon Lynch within the apparent authority of the agentwhere the principal [Farmers Market] made a representation by conduct or by word that the agent had authority to act as its agent to athird-party which relied upon those representations.

The claimant goes on to state that the apparent authority arose because he believedthat Farmers Market had authorized Lydon Lynch to contract for stained glass design. This belief was based on public announcements inthe media and documents referred to above. The claimant relies on the case Clintar Spray & Environmental Enterprises Incorporated v.Municipal Spraying & Contracting Ltd (1978), (NS SC), 27 NSR (2d) 682 at page 703. The Defendants Position:

The defence presented to this court by the defendants in their

summary and in the cross-examination was there was no contract, there is no evidence of a contract and the matter was to go to tender but it never got to that stage. Analysis: I can certainly appreciate the fact that the claimant proceeded along the lines that he would be given the work to put in stained-glass windows in the new building. The tender apparently was going to be designed in such a way that only the claimant's design would be accepted. This is what I took it to mean, when the claimant referred to him it being put in as a "specified contractor".

The claimant acknowledges that the project he was working on was going out to tender. However there never was a tender put out with respect to the stained glass windows in the new building. There never was an offer and there never was acceptance of an offer. There never was a contract that came into existence. The other argument put forward by the claimant was that Mr. Tufts entered into a contract when "he accepted the third design package at a price of $15,000.00". That is not what was expressed in the oral testimony of the claimant. The claimant said he produced three different stages of design, Mr.

Tufts "wanted more color and larger designs and then in November of 2008 he said he liked them and he copied them onto his computer." The claimant stated that Mr. Tufts said to him "I am going to put you into the tender as a specified contractor". It is clear there was no contract at this stage. As I said I can appreciate the fact that the claimant did a lot of work on this project that was in the hope that he would ultimately get the tender, that is, the contract for the job. The contract however never came through.

Much of the claimant's arguments rely on his belief of the role of the defendant Lydon Lynch but there was no agreement that I can see from the evidence that Lydon Lynch agreed to pay $3000 for design work if the tender was not put forward. Is there was no contract the issue of agency does not arise.

With respect to the argument that the defendant Halifax City Farmers Market Cooperative Limited is responsible for the unauthorized acts done by Lydon Lynch within the apparent authority of the agent Lydon Lynch where the principal Farmers Market made a representation by conduct or by word that the agent has authority to act, I do not accept this argument on the basis of the claimant's beliefs. The claimant's beliefs of representations made by Farmers Market arise out of apparent public announcements and offering documents which have no evidentiary foundation and therefore value in this trial.

My last comment on this is that an agreement to agree on a future event which may never come about, can hardly amount to a contract. I do not find it necessary to go into the case mentioned by the claimant although I do note that that case was appealed and the appeal court did dismiss the appeal. Also the fact in that case are different than the case before this court.

While these comments go beyond the ambit of this case if the claimant had clearly made it known to the defendant or defendants that he was prepared to design stained-glass windows for the project and there will be a specific cost associated with the design itself even if not accepted or used in the project and that was acceptable to the defendant or defendants then in such a case the claimant would have a valid argument. It Is Therefore Ordered that the action against the defendants be dismissed with no order as to costs.