Court of Appeal for Ontario
Citation: Total Crane Erectors Ltd. v. Fontana, 2007 ONCA 121 Date: 2007-02-26 Docket: C44566 and M34750
Re: Total Crane Erectors Ltd. (Respondent (Plaintiff)) – and – Antonio Fontana and T.F. Structures Group Inc. (Appellants (Defendants))
Before: Simmons and MacFarland JJ.A. and Pardu J. (ad hoc)
Counsel: Peter Simm as agent for C. Chop for the appellant T.F. Structures Group Inc. Joseph A. Longo and Nicholas C. Tibollo for the respondent Total Crane Erectors
Heard & Released Orally: February 21, 2007
On appeal from the judgment of Justice James M. Spence of the Superior Court of Justice dated November 18, 2005.
ENDORSEMENT
[1] The appellant appeals the judgment of Spence J. wherein he concluded that the defendant Antonio Fontana was personally liable to pay certain invoices. The plaintiff agreed to dismantle cranes at the request of Fontana. The work was performed in a satisfactory manner. There was no dispute that the work was done and the invoices rendered appropriate.
[2] Mr. Fontana’s evidence was that he contracted with the plaintiff on behalf of Cast-Con Group Inc. which had contracts with King Crane and 1314923 Ontario Inc. DiPalma says he made his deal with Fontana and was to do the work for him. The trial judge found:
- that the verbal agreements made between DiPalma and Fontana were not contracts with King Crane or 1314 rather than Fontana;
- that Fontana never told DiPalma he was contracting for CCG;
- that DiPalma had no reason to understand that Fontana was contracting for CCG; and
- that Fontana never made it clear to DiPalma that he was contracting for another and not himself.
These findings were available to him on the evidence before him.
[3] In our view there is no basis to interfere. The law is clear. If a party is contracting for another and does not make it clear to the person with whom he is contracting that he is contracting in the capacity of an agent, he will be personally liable. There is no conflict in the legal authorities. An agent will be personally liable if he fails to disclose that he acts as agent. We see no conflict in the law as set out in this court’s decision in Truster v. Tri-Lux Homes Ltd. (1998), 1998 CanLII 3497 (ON CA), 18 R.P.R. (3d) 1 and the decision of the Supreme Court of Canada in Q.N.S. Paper Co. v. Chartwell Shipping Ltd., 1989 CanLII 35 (SCC), [1989] 2 S.C.R. 683.
[4] The appeal is dismissed.
[5] Costs of the appeal are fixed at $6,500.00 on a partial indemnity scale inclusive of G.S.T. and disbursements in accordance with the agreement of counsel.
"Janet Simmons J.A."
"J. MacFarland J.A."
"G. Pardu J. (ad hoc)"