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Ontario and Canada
Appeal Court Dicta

Agency - Implicit

. 1346134 Ontario Limited v. Wright

In 1346134 Ontario Limited v. Wright (Ont CA, 2023) the Court of Appeal considered circumstances that may establish an agency relationship:
[49] The appellants submit that OAL’s correspondence could not have created an agency relationship for 134. It relies on Hav-A-Kar Leasing Ltd. v. Vekselshtein, 2012 ONCA 826, at para. 42, for the proposition that while agency relationships may be created by implied representation, the representation “must be that of the principal, not that of the agent.” I do not view this principle as assisting 134 in this case.

[50] It was open to the trial judge to find, on the record before him, that 134 had made implied representations that OAL was acting as its agent. The loans from 134 were part of a broader arrangement by OAL to raise capital for its business. 134 was aware of and permitted Mr. Laing and OAL to act as its “point person”. Mr. Laing communicated with Mr. Wright about 134’s loans, including discussions around restructuring. Mr. Laing’s evidence at trial was that 134 was aware that OAL would be demanding payment of the Earlier Loans and did not object to OAL doing so. This evidence, considered together, supported a finding of an agency relationship.
. Rougemount Capital Inc. v. Computer Associates International Inc.

In Rougemount Capital Inc. v. Computer Associates International Inc. the Court of Appeal considers implicit agency:
[35] As recently noted by Weiler J.A. in 1196303 Inc. v. Glen Grove Suites Inc., 2015 ONCA 580 (CanLII), 337 O.A.C. 85, at para. 71:
While agency is often created by an express contract, setting out the scope of the agent’s authority, the creation of an agency relationship may be implied from the conduct or situation of the parties. Whether an agency relationship exists is ultimately a question of fact, to be determined in the light of the surrounding circumstances. [Citations omitted.]
[36] In our opinion, there is no reason for taking a different approach to determining the scope of an agent’s authority. It is a question of fact to be determined in light of the circumstances, including the conduct or situation of the parties.
. Montrose Hammond & Co. v. CIBC World Markets Inc.

In Montrose Hammond & Co. v. CIBC World Markets Inc. (Ont CA, 2020) the Court of Appeal relies on a textbook test for 'ostensible or apparent' agency:
[17] ... Specifically, CIBC argues that the trial judge misapplied the test for ostensible or apparent authority. CIBC relies on the articulation of ostensible or apparent authority as a type of estoppel by Professor Gerald Fridman in Canadian Agency Law, 3rd ed. (Markham, Ont.: LexisNexis, 2017), at p. 61, as follows: “The requirements for agency by estoppel are: (a) a representation; (b) a reliance on a representation; and (c) an alteration of a party’s position resulting from such reliance.”


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