Citation and Court Information
CITATION: Future Link Visa Consultants PVT Ltd. v. Humber Institute of Technology and Advanced Learning, 2014 ONSC 769
DIVISIONAL COURT FILE NO.: 50/13
DATE: 20140203
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs J.
BETWEEN:
FUTURE LINK VISA CONSULTANTS PVT LTD. Plaintiff/Respondent
– and –
HUMBER INSTITUTE OF TECHNOLOGY AND ADVANCED LEARNING Defendant/Appellant
Santosh Ramrakhiani (not a lawyer), for the Plaintiff/Respondent
Matthew Furrow, for the Defendant/Appellant
HEARD at Toronto: January 28, 2014
Reasons for Judgment
H. Sachs J.
[1] The Defendant appeals from the judgment of Deputy Judge J.L. Feldman of the Small Claims Court dated December 28, 2012 in which the Deputy Judge granted judgment in favour of the Plaintiff in the amount of $4,132.00.
[2] On this appeal the Defendant alleges that the Deputy Judge made two palpable and overriding factual errors.
[3] The first factual error that is alleged is found at page 2 of the Deputy Judge’s reasons where she states as follows:
The parties had been transacting business since 2007, when the plaintiff first referred an international student to the defendant for a degree program. In that case, after the new student’s admission was confirmed and tuition was paid without refund, the defendant paid the plaintiff a commission without any formal agreement in place. The plaintiff’s evidence in this regard is undisputed and the transaction concerned was conducted with the undisputed evidence of the plaintiff, as to general industry standards.
[4] The Defendant submits that the Deputy Judge ignored the clear evidence before her when she found that it had paid the Plaintiff a commission in 2007 without a formal agreement in place.
[5] I agree with the Defendant on this point. Emails filed at trial indicate that in January of 2007 the Plaintiff recruited a student for the Defendant and was invited to send an invoice for its commission. The invoice was sent, but not paid. Instead, on February 13, 2007, the Manager for International Recruitment for the Defendant sent an email to the Plaintiff in which she made it clear that the Defendant could not process the Plaintiff’s invoice because the Plaintiff did not have a contract with the Defendant confirming that it was an official agent of the Defendant’s. In the same email the Defendant invited the Plaintiff to apply to become one of its official agents.
[6] On May 16, 2007 the Defendant’s manager emailed the Plaintiff thanking it for its interest in becoming an official representative and proposing a one year “Provisional Agreement”. It is admitted by the Plaintiff that after this email such an agreement was entered into and signed by both parties. It is only once that agreement was executed that the Defendant sent the Plaintiff a cheque for its commission on June 30, 2007 for $497.35.
[7] This payment is the only payment that the Defendant has ever made to the Plaintiff for commissions. Contrary to the finding of the Deputy Judge, it is clear that the Defendant refused to make any payment for commissions without a formal agreement in place and that when the commission payment was made a formal agreement was in place.
[8] The second palpable and overriding factual error alleged by the Defendant appears at page 3 of the Deputy Judge’s decision where she states:
I do not accept the defendant’s contention that written qualification of the plaintiff as an authorized agent was a precondition to any obligation to pay the plaintiff.
[9] The Defendant asserts that the Deputy Judge ignored the clear evidence before her on this point, in particular:
(a) The email from the Defendant’s Manager of International Recruitment dated February 13, 2007, where she states as follows:
“We do honor a commission to our agent representatives who have successfully completed the application process and have a representation contract signed with Humber.”
(b) On April 16, 2010, after the Plaintiff’s contract with the Defendant had expired, the Defendant’s International Recruitment Coordinator sent the Plaintiff an email stating:
“Currently you have no status with Humber and you will not be entitled to claim commission on any student referrals you make. I know you were official before but in order to get to become an official agent you will have to re-submit a questionnaire.”
(c) Representatives of the Defendant and the Plaintiff met in June of 2010. After that meeting the representative of the Plaintiff sent the representative of the Defendant the following email on June 16, 2010:
“Thanks for meeting with me today.
As discussed, please see attached our company’s profile and Canadian college references for your kind perusal. Currently our success ratio is very good with the SPP colleges like Seneca…We are quite confident to do the same with Humber college too if we are given the opportunity.
Please feel free to contact me may you need further information…” (emphasis added).
(d) On August 23, 2010 a representative of the Plaintiff sent a representative of the Defendant an email asking the Defendant to “review your decision once again. Still if you think you don’t want to change your decision and don’t want to pay us the commissions then I have no option except moving out my students to other community colleges in Toronto like Seneca…to whom we are officially tied up.” In response, on the same day the Defendant sent back an email stating:
“As I am well acquainted with the other managers at Seneca…perhaps you wouldn’t mind if I contacted them for a reference of Future Link’s performance with their institutions. As you do not currently have any agent status with Humber, this would serve as a formality for filing a new application. Please advise whether I may proceed to contact these other institutions.”
[10] I agree with the Defendant that in the face of this evidence the Deputy Judge made a palpable and overriding error when she found that becoming an authorized agent for the Defendant was not a precondition for being paid a commission.
[11] The above errors of fact underlie the Deputy Judge’s conclusion to allow the Plaintiff’s claim. This is apparent from the following excerpts from her judgment:
I find that the plaintiff would not have placed the four (4) students in issue with the defendant had the usual commissions not been payable. Clearly, the plaintiff would have placed the students elsewhere with a view to receiving a commission had they known that the defendant did not intend to pay. I find that there was never an expression of the defendant’s intention or assent of the plaintiff to place the students without renumeration.
It would be unconscionable just for the plaintiff to have rendered services for the defendant’s benefit, for which the defendant received full value, without appropriate payment for those services. Any other conclusion would be grossly unjust, unfair and inequitable.
It was not open to the defendant to unilaterally change the terms of dealing in respect of services rendered after the services had already been rendered and the benefits to the defendant had already been those derived.
I find that there was an implied obligation on the defendant’s part to pay the plaintiff for the services duly rendered in accordance with their previous dealings,….
[12] Without misapprehending or ignoring the evidence that no commissions were ever paid without a formal agreement in place, the Deputy Judge could not have found an “implied obligation” to pay the Plaintiff “in accordance with their previous dealings” or that the Defendant had “unilaterally” changed “the terms of dealing in respect of services rendered”. While the Plaintiff may not have consented to placing students without renumeration, contrary to the findings of the Deputy Judge, the Defendant’s dealings with the Plaintiff made it clear that without being approved as a formal agent and without a formal contract in place it could not be paid any commissions.
[13] The Plaintiff chose to place students with the Defendant without being approved as an agent and without a formal contract in place. It may have done so in the expectation of receiving such approval and a contract. However, since neither happened there is no legal or equitable basis for the Plaintiff to claim an entitlement to be paid a commission.
[14] For these reasons I would allow the appeal, set aside the judgment of the Deputy Judge and substitute an order dismissing the Plaintiff’s claim. The Defendant is entitled to its costs of the trial and the appeal. I fixed the former in the amount of $1,000.00 and the latter in the amount of $2,500.00 for a total of $3,500.00, all inclusive. In my view, this amount is reasonable, given the fact that the amount in dispute was not large and the issues were not particularly complex.
Sachs J.
Released: February 3, 2014
CITATION: Future Link Visa Consultants PVT Ltd. v. Humber Institute of Technology and Advanced Learning, 2014 ONSC 769
DIVISIONAL COURT FILE NO.: 50/13
DATE: 20140203
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs J.
BETWEEN:
FUTURE LINK VISA CONSULTANTS PVT LTD. Plaintiff/Respondent
– and –
HUMBER INSTITUTE OF TECHNOLOGY AND ADVANCED LEARNING Defendant/Appellant
REASONS FOR JUDGMENT
Released: February 3, 2014