CITATION: NRF Distributors Inc. v. Starwood Manufacturing Inc., 2009 ONCA 596

DATE: 20090729

DOCKET: C50096

COURT OF APPEAL FOR ONTARIO

Gillese, Lang and LaForme JJ.A.

BETWEEN

NRF Distributors Inc.

Plaintiff (Respondent)

and

Starwood Manufacturing Inc. and Peter Prytula

Defendants (Appellants)

AND BETWEEN

Starwood Manufacturing Inc.

Defendants (Appellants)

and

NRF Distributors Inc., Korca Forest Products LLC, Lorenc Gaxha also known or formerly known as Lorenc Mention and Jeff King

Defendants by Counterclaim

Denis Cadieux, for the appellant Starwood Manufacturing Inc.

Tudor B. Carsten, for the respondent NRF Distributors Inc.

Heard: July 28, 2009

On appeal from the order of Justice E. Belobaba of the Superior Court of Justice dated January 28, 2009.

APPEAL BOOK ENDORSEMENT

[1] NRF paid Starwood $112,056 in advance for the delivery of hardwood flooring. Starwood took the money but did not deliver the product. Instead, it applied the money to debts owed to it by Korca Forest Products. Starwood claims that Korca was NRF’s agent and, thus, the “set off” was justified.

[2] NRF sued to recover the money and then brought a motion for summary judgment. By order dated January 28, 2009, Belobaba J. granted summary judgment.

[3] Starwood appeals. It submits that the motion judge erred in finding that there was no genuine issue for trial or the question of whether Korca was NRF’s agent.

[4] We disagree. The motion judge took a “hard look” at the evidence, as he was obliged to: see 1061590 Ont. Ltd. v. Ontario Jockey Club, 1995 CanLII 1686 (ON CA), [1995] O.J. No. 132 (C.A.) at para. 35.

[5] We see no error in the motion judge’s conclusion that there is no basis for Starwood’s agency claim. There is no evidence to suggest that Korca had actual authority to act for NRF. As for apparent or ostensible authority, there is no evidence that NRF made a representation to Starwood that Korca was its agent or could act as its agent. The only possible evidence are the two emails sent by NRF to Korca. It was Korca who then forwarded the emails to Starwood. Those “representations” are not sufficient as they did not go to Starwood from NRF, the person with actual authority: see Doiron v. Devon Capital Corp. 2003 ABCA 336, [2004] 3 W.W.R. 397 (Alta. C.A.) at para. 13.

[6] Finally, even if the emails could be interpreted as representations, Starwood could not have been induced by such representations to enter into the contract as the emails came after the contract was formed.

[7] Accordingly, as there is no triable issue, we see no basis on which to interfere with the decision below. The appeal is dismissed with costs to the respondent fixed at $6,800, inclusive of disbursements and GST.