Trevor Richard Jefferson v. Holly Karleen Holmstrom, 2016 NSSC 309

SUPREME COURT OF Nova Scotia Citation: Jefferson v Pillar to Post-Central Home Inspections, , 2016 NSSC 309 Date: 2016-10-24 Docket: Antigonish , No. 446533 Registry: Antigonish Between: Trevor Richard Jefferson And Holly Karleen Holmstrom Appellants v. Pillar to Post-Central Home Inspections, Blaine Fisher, Raymond Meagher, Re/Max Park Place Incorporated, Valarie Sampson, Laura Young, Alphonse McGrath, Roseanna McGrath Respondents REASONS FOR JUDGMENT Judge: The Honourable Justice N.

M. (Nick) Scaravelli Heard: October 24, 2016, in Antigonish, Nova Scotia Counsel: Trevor Richard Jefferson on his own behalf and on behalf of Holly Karleen Holmstrom Ian Dunbar for the Respondents Reasons for Judgment [ 1 ] Following a hearing on October 24 th , 2016 I granted the Motion of the defendant/respondents Re/Max Park Place Incorporated, Valarie Sampson and Laura Young (Re/Max respondents) for an order to enforce a settlement agreement with the appellants, with reasons to follow.

These are my reasons. [ 2 ] The appellants Trevor Jefferson and Holly Holmstrom brought a claim against nine defendants in Small Claims Court. They were unsuccessful. They have appealed the decision to this court, against all nine defendants. [ 3 ] The Re/Max respondents moved for an order to enforce a settlement agreement with the appellants. They say they reached a settlement agreement with the appellants, whereby the appellants would not name them in the appeal, and in exchange, they would not peruse a claim for costs of the Small Claims Court proceeding.

The appellants say no binding and enforceable settlement agreement was made. Background [ 4 ] On or about November 25 th , 2013, Mr. Jefferson and his mother, Ms. Holmstrom purchased a property located at 87 Copperlake Road, Goshen, Nova Scotia. They say they subsequently discovered asbestos at the property.

Accordingly, on September 22 nd , 2014, they filed a claim in the Small Claims Court against their home inspectors (Pillar to Post-Central Nova Home Inspections, Blaine Fisher and Raymond Meager), the vendors (Roseanna and Alphonse McGrath) and the vendors real estate agents (Re/Max respondents). [ 5 ] Adjudicator Ray O’Blenis dismissed the claim against all the defendant’s and awarded costs “for filing fees and reasonable disbursements as set out in the Small Claims Court Regulations” . [ 6 ] The issue of possible settlement with the Re/Max respondents transpired over a number of emails. [ 7 ] On December 2 nd , 2015 after the issuance of the decision, Mr.

Jefferson emailed Mr. Ian Dunbar, counsel for Re/Max respondents stating in part: I would request that none of your clients seek to get costs from me, as I don’t believe such would be fair or just. If Valarie (Re/Max)

would like me to sign some sort of N.D.A. in exchange I would consider that. [ 8 ] On December 10 th , Mr. Jefferson again had emailed Mr. Dunbar to ask him if he would accept service of the Notice of Appeal on behalf of the Re/Max respondents. In response, Mr. Dunbar asked Mr. Jefferson if he was: Open to a resolution that would involve us dropping our claim for costs in exchange for you dropping all claims against my clients. [ 9 ] A few days later, Mr. Dunbar reiterated the proposal via email. Mr.

Jefferson counter-offered with a slight modification to the agreement, namely that Re/Max respondents would pay $1.00 consideration for the settlement. [ 10 ] On December 14 th , 2015, Mr. Dunbar indicated his clients acceptance of the counter-offer, provided Mr. Jefferson and his mother would sign a release. Mr. Jefferson confirmed that they would sign the release with respect to Re/Max and Ms. Samson, but requested a separate release with respect to Ms. Young. Mr. Dunbar rejected this arrangement, and Mr.

Jefferson then agreed to sign the release for all the Re/Max respondents. [ 11 ] On December 16 th , 2015 Mr. Jefferson emailed to Mr. Dunbar a copy of the release that he had signed on his own behalf and on behalf of Ms. Holmstrom, together with a copy of a Power of attorney signed by Ms. Holmstrom in his favor. [ 12 ] The next day, Mr. Jefferson emailed Mr. Dunbar expressing concern that the Re/Max respondents’ claim for costs could not have included a claim for lawyer fees. He indicated that this changed everything. Mr. Dunbar responded that “from our perspective an agreement has already been concluded” Mr.

Jefferson took the position that he had signed the release under “false pretenses”, and it was therefore “null and void” and he would not accept the $1.00. [ 13 ] On December 1 st , 2015 the Re/Max respondents proceeded to fulfill their obligations under the alleged agreement by forwarding via Courier a cheque in the amount of $1.00 and they had not sought costs for the Small Claims Court proceeding. [ 14 ] The appellants on the other hand, have appealed against all of the defendants in the Small Claims Court proceeding including the Re/Max respondents.

Accordingly, the Re/Max respondents have brought this motion to enforce the alleged settlement agreement. The appeal hearing is set for November 28 th , 2016. Parties’ Positions [ 15 ] The Re/Max respondents take the position that the appellants entered a binding and enforceable agreement and the executed release is the document that captures that agreement. They say the release is clear and unambiguous, so there is no need to examine the surrounding circumstances.

Alternatively, they say the surrounding circumstances support their position and that an agreement was reached. [ 16 ] The appellants did not submit a written brief but Ms. Holmstrom, has provided an affidavit. The following arguments can be gleaned from Ms. Holmstrom’s affidavit. No Authority [ 17 ] Ms. Holmstrom states she did not authorize Mr. Jefferson to enter a final settlement agreement with the Re/Max respondents on her behalf.

Rather, she authorized him to sign the agreement “digitally as a placeholder agreement so that attorney Dunbar would not later pull the offer of the table”, and he could send the original signed document, together with her Nova Scotia Power of attorney, only once he had received legal advice as to whether they could be required to pay the Re/Max respondents’ lawyer fees. Once Mr. Jefferson told her that he had received legal advice that they could not be required to pay lawyer fees, she reneged any authority to enter a settlement agreement on her behalf. Power of attorney [ 18 ] Ms.

Holmstrom alleges her Missouri Power of attorney is not valid in Canada, and Mr. Dunbar was not provided with a Nova Scotia Power of attorney. No Original Signed Release [ 19 ] Ms. Holmstrom alleges an original signed copy of the release was not provided to Mr. Dunbar. Fraudulent Misrepresentation [ 20 ] Ms. Holmstrom alleges Mr. Dunbar fraudulently misrepresented to Mr. Jefferson and Ms. Holmstrom that they could be liable to pay the Re/Max respondents’ lawyer fees. Issues [ 21 ] Under the circumstances the court must consider two issues In dealing with this application: 1.

Was a settlement agreement made with the knowledge and consent of the parties to the litigation?

2. If so, should the settlement agreement be set aside for any reason? Settlement Agreement [ 22 ] A settlement agreement is a form of contract. Therefore, in determining whether a settlement agreement was made, the court must examine whether a contract was made between the parties applying the law of contract. [ 23 ] In Gunvaldsen-Klaassen v. Bulpitt, 2009 NSSC 66 this court set out the following statement of principles: 32.

The determination of a valid agreement is discussed by Fidman in The Law of Contract (Fifth Ed.; 2006) at p. 15: o Constantly reiterated in the judgments is the idea that the test of agreement for legal purposes is whether parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract. The law is concerned not with the parties' intentions but with their manifested intentions.

It is not what an individual party believed or understood was the meaning of what the other party said or did that is the criterion of agreement; it is whether a reasonable man in the situation of that party would have believed and understood that the other party was consenting to the identical terms. As Fraser C.J.A. said in Ron Ghitter Property Consultants Ltd. v.

Beaver Lumber Co.: ▪ the parties will be found to have reached a meeting of the minds, in other words be ad idem , where it is clear to the objective reasonable bystander, in light of all the material facts, that the parties intended to contract and the essential terms of that contract can be determined with a reasonable degree of certainty. o ... o Sometimes it is a simple matter to decide what the parties have manifested to each other, and consequently, whether they have agreed, and if so, upon what. This is especially true where a document containing their agreement has been prepared and signed by the parties.

If the plain wording of the document reveals a clear and unambiguous intent, it is not necessary to go further. Indeed, once that has been done, it may not be possible to have recourse outside such document, either to other written material or to parol evidence from the parties or anyone else, in order to explain, or otherwise clarify what is contained in the document.

If there is no single document to which reference can be made in order to decide if a contract exists between the parties, but a series of negotiations, then everything that occurs between the parties relevant to the alleged contract must be considered by the court which is faced with the problem of deciding the issue.

From what they have said, done, or written, in combination if necessary, there must be established a bargain or an agreement. ... [ 24 ] Accordingly, it must appear to a reasonable objective by-stander that there was an offer and an acceptance, and that the parties reached agreement on all essential terms. [ 25 ] The email correspondence between the parties may be summarized as follows: Dec. 2, 2015 at 11:59 am – Mr. Jefferson: “I would request that none of your clients seek to get “costs “from me, as I don’t believe such would be fair or just. If Valerie (i.e.

Re/Mac) would like me to sign some sort of N.D.A. in exchabnge I would consider that.” Dec. 10 at 6:29 pm – Mr. Dunbar: “Please advise if you are open to a resolution that would involve us dropping our cliam for costs in exchange for yo dropping all claims against my clients. If you are not agreeable to that, I will be pursuing the costs issue.” Dec. 10 at 7:14 pm – Mr. Jefferson: “As for a resolution, I am open to that . . . . I propose your clients offer a token amount of $500., etc., and drop their claim for costs in exchange for me dropping all claims against them . . . “ Dec. 13 at 1:29 pm – Mr.

Dunbar: “The only arrangement my client will consider is dropping our costs claim in exchange for a release of any claims against Valarie, Laura and Re/Max.” Dec. 13 at 1:51 pm – Mr. Jefferson: “Let’s do $1 and the dropping of costs for me dropping the charges . . . the above said . . . send me the paperwork so I can see how it’s worded and let’s get this done ASAP” Dec. 14 at 1:34 pm – Mr. Dunbar: “Your offer is accepted provided you agree to the attached form of release. Please let me know.” Dec. 14 at 9:26 pm – Mr.

Jefferson: “I’ll run this by my cousin who’s a lawyer in the states . . .” Dec. 14 at 10:20 pm – Mr. Jefferson: “My mom and I can agree to sign the document as-is for Re/Max and Valerie. However, we’d like to sign a separate one for Laura. We would propose the attached.” Dec. 14 at 11:44 pm – Mr. Dunbar: “Sorry, that will not work for us. My clients have no intent of dropping their costs claim without a full release for each of them.” Dec. 15 at 6:01 pm – Mr. Jefferson: “No worries, we can sign it for all parties . . . So, do we sign and then just scan and email the document to you, or?” Dec. 15 at 6:24 pm – Mr.

Dunbar: “I will need an [sic] copy with original signatures and witnesses. Once I receive an executed copy I will undertake to notify the court as well as forward the settlement amount.” Dec. 15 @ 11:07 pm – Mr. Jefferson expressed concern that he would not be able to provide an original signed copy to Mr. Dunbar quickly enough.

Dec. 16 at 2:23 pm – Mr. Dunbar: “Please send me a scanned or faxed copy once done, and the original by mail.” Dec. 16 at 3:57 pm – Mr. Jefferson sent an email attaching the signed release and Mr. Holstrom’s Missouri Power of attorney, and said, “Please confirm this is acceptable and if so I can postal mail the original signed release with a printed copy of the POA to you tomorrow.” Dec. 16 at 6:31 pm – Mr. Dunbar: “Yes this is fine.” [ 26 ] I believe that from the point of view of a reasonable and objective bystander, the agreement was entered when Mr. Jefferson communicated his unequivocal acceptance to Mr.

Dunbar via email on December 15 at 6:01 pm, with the words, “no worries, we can sign if for all parties”. At that point, the essential terms of the agreement were as follows: The Re/Max respondents would not pursue a claim for costs of the Small Claims Court proceeding; The appellants would not pursue and appeal for the Small Claims Court decision with respect to the Re/Max respondents; The Re/Mac respondent would pay to the appellants the sum of $1.00; The appellants would sign a release (in the form provided by Mr. Dunbar) with respect to all three of the Re/Max respondents.

From there, the parties were simply working out the logistics of implementing the agreement, the release being part of it. Should the Settlement Agreement be set aside? [ 27 ] Ms. Holstrom argues in her affidavit that she did not give Mr. Jefferson the authority to enter the agreement that is alleged to have been made. In Langthorne v.

Humphreys, 2011 NSSC 44 Justice Rosinski reviewed the case law dealing with Agency: 26 Even if a binding contract otherwise seems to exist, if an agent/lawyer who agreed to the contract on behalf of a client, did not have either actual authority or implied or usual authority, or apparent authority, then the client is not bound by his agent's unauthorized actions. 27 The focus thus turns to what is "actual", "implied", "usual" authority and "apparent" authority? 28 In The Law of Agency (7th edition 1996, Butterworths Toronto Ontario) Fridman defines "actual authority" as: o ... the authority which in fact the agent has been given by the principal under the agreement or contract which has been made between them, or by virtue of subsequent ratification ... p. 62 29 "Implied authority" is a factual matter, and depends on a consideration of what authority a reasonable observer expects an agent would have in the circumstances. 30 That is, an agent may be deemed to have actual authority to do everything necessary to achieve a purpose that the principal expressly authorized the agent to undertake. 31 Lastly, Fridman in the Law of Agency notes: o The agent's actual authority may include what is often called his usual or customary authority.

This is the authority which an agent in the trade, business, profession, or place in which the particular agent is being employed would usually, normally, or customarily possess, unless something was expressly said by the principal to contradict it. It is the authority which persons dealing with the agent, with the knowledge of the trade, etc. would expect him to have. p. 63 32 There is a further category called "apparent authority" which is based on the legal doctrine of estoppel.

Fridman states at p. 123: Apparent authority ... is the authority which, as a result of the operation of the legal doctrine of estoppel, the agent is considered as possessing, in view of the way a reasonable third party would understand the conduct or statements of the principal and the agent. [...] The representation, when acted on by the contractor by entering into a contract with the agent, operates as an estoppel, preventing the principal from asserting that he is not bound by the contract. It is irrelevant whether the agent had actual authority to enter into the contract. [ 28 ] It is apparent that Mr.

Jefferson had actual authority to enter into the agreement, however, even if he did not have actual authority to enter into the agreement on his mother’s behalf, he had apparent authority to do so. He represented to Mr. Dunbar that he had authority to sign the agreement on his mother’s behalf, and that representation was bolstered by the Power of attorney document that he provided to Mr. Dunbar. A reasonable third party would conclude that Mr. Jefferson had the requisite authority. Accordingly, Ms. Holmstrom is bound by Mr. Jefferson’s actions. [ 29 ] Ms.

Holmstrom challenges the validity of her own Power of attorney. The Power of attorney provided to Mr. Dunbar was executed in Missouri. Ms. Holmstrom says it is not valid in Nova Scotia. Legislation in Nova Scotia is silent as to the recognition of extra Provincial continuing or enduring Powers of Attorney.

Therefore, the courts need to determine on a case to case basis whether the Power or Attorney is valid in accordance with the requirements of the Province. [ 30 ] In Nova Scotia the basic requirements of an enduring Power of attorney are set out in the Nova Scotia Powers of Attorney Act R.S.N.S., 1986 c. 352 (3). The Act provides the document must be signed by the donor, be witnessed by a person who is not the attorney or the spouse of the attorney and contain a provision expressly stating that the Power of attorney may be executed during any

legal incapacity of the donor. [ 31 ] When examining Ms. Holmstrom’ s power or attorney, it is apparent that the document was signed by Ms. Holmstrom, witnessed by someone other than the attorney or the spouse the attorney and it contains a provision expressly stating that the Power of attorney may be exercised during any legal incapacity of Ms. Holmstrom. The age and competence of the attorney and donor have not been challenged.

Further, the Missouri power of attorney provides as follows: This power of attorney shall be governed by Missouri law, although I request that it be honored in any state or other location in which I or my property may be found. . . . [ 32 ] The Missouri power of attorney appears to meet the basic requirements of the Province and appears to be valid on its face. Even if the power of attorney was not valid in Nova Scotia, I would not conclude that this would affect Mr. Jefferson’s apparent authority to enter into the agreement on his mother’s behalf. [ 33 ] Ms.

Holmstrom further argues that as the original lease was never provided to Mr. Dunbar there can be no agreement. [ 34 ] I have already concluded that the release does not compromise the agreement. The parties reached agreement when Mr. Jefferson communicated via email on December 15 th that he and Ms. Holmstrom can sign a release for all parties. Accordingly, it is clear that the release was a condition of the agreement, it was not itself the agreement. Even if the release comprised the agreement, I am not convinced that Mr. Jefferson’s failure to provide Mr.

Dunbar with the original signed version would be detrimental . The email copy of the release could be admitted as documentary evidence of the agreement. [ 35 ] I further conclude that this was not a conditional contract. The providing of an original signed release was a condition of the agreement, was not a condition precedent. The request for original release dealt with merely formalizing an agreement already made. [ 36 ] In her affidavit Ms. Holmstrom alleges misrepresentation or even fraudulent misrepresentation on the part of Mr. Dunbar, counsel for the respondents.

Other than the allegations contained in the affidavit, there is no evidence before the court to show that Mr. Dunbar made a false representation or than any such representation was made knowingly or recklessly, without belief in its truth. [ 37 ] I find it is more likely that the appellants misunderstood or were mistaken as to their potential liability for costs, than it is that Mr. Dunbar knowingly or recklessly mislead them. [ 38 ] Accordingly, the motion to enforce the settlement agreement is granted. Scaravelli, J.