ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 332/11 SR (Guelph)
DATE: 2012 05 15
BETWEEN:
KEVIN VAN LEEUWEN Plaintiff
– and –
PAUL MAURER and 2097749 ONTARIO INC. o/a LEESYDE PROPERTIES Defendants
P. G. Morris, for the Plaintiff
J. Pitblado, for the Defendants
HEARD: May 14, 2012
Langdon J.
[ 1 ] In order to resolve the issues between the parties on their merits, certain amendments need to be made. First, the plaintiff, in his corporate name, sued on a contract made in 2006, even though he did not incorporate until 2007 or 2008. I heard no evidence that he had assigned the contract to his company. It is plain that plaintiff should have sued in his personal capacity. I will permit an amendment of the title to show Kevin Van Leeuwen, personally, as plaintiff.
[ 2 ] The oral agreement that plaintiff and defendant made in 2006 was made very informally. At the time, they were very much dealing “man to man”. Neither of them then had any reason to believe that the other was acting as an agent for a corporation. The mere fact that plaintiff may have known that defendant owned more than one company in 2006 does not establish that he was acting for any particular one of them when the contract was formed. Plaintiff may have used a business style as Exact Construction, the name that appeared on his invoices, but there is no evidence that he was then incorporated. There is no plea that his business name was not registered. I see no prejudice to defendant if the plaintiff’s name is amended to Kevin Van Leeuwen.
[ 3 ] No objection is taken to amending the name of the defendant to its correct spelling of Maurer.
[ 4 ] I am also disposed to grant Mr. Morris’ request to add as a party defendant, the company in which defendant claims he made the contract, namely 2097749 Ontario Inc. o/a Leesyde Properties, (Leesyde). If I should dismiss the action against the personal defendant, I will award judgment against Leesyde. I see no prejudice to Mr. Maurer in so doing. It is common ground that 2097749 Ontario Inc. o/a Leesyde Properties is insolvent.
[ 5 ] If I accept the defendant’s testimony that he was acting as agent for 2097749 Ontario Inc. o/a Leesyde Properties when he made the contract, and find, as I do, that Kevin Van Leeuwen believed he was dealing with Mr. Maurer personally when he made the contract, it is clear that plaintiff has a choice to sue the agent or the principal. [1]
[ 6 ] Persons who set up after the fact that they contracted solely on behalf of another bear the onus of establishing that the party with whom they were dealing was aware of the capacity in which they acted. [2] To put the defendant’s case at its very highest, the evidence is evenly balanced on this issue. Thus, the defendant fails to discharge the onus he bears and plaintiff must succeed.
[ 7 ] There is no issue that the plaintiff’s work was not properly done, or not done in a timely manner. I award judgment against Paul Maurer for $50,000.00. Plaintiff should have his costs on a partial indemnity basis. The action against 2097749 Ontario Inc. o/a Leesyde Properties is dismissed without costs.
“original signed by Langdon J."
Langdon J.
Released: May 15, 2012
COURT FILE NO.: 332/11 SR (Guelph)
DATE: 2012 05 15
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
KEVIN VAN LEEUWEN Plaintiff - and - PAUL MAURER and 2097749 ONTARIO INC. o/a LEESYDE PROPERTIES Defendants
REASONS FOR JUDGMENT
Langdon J.
Released: May 15, 2012
[^1]: S.M. Waddams, The Law of Contract, (3d) at para. 137
[^2]: Chandaria Estate v. Stewart, [2011] O.J. No. 1938 , Div. Ct., at para. 7, citing Truster v. Tri-Lux Fine Homes Ltd (1998), 1998 3497 (ON CA) , 39 C.L.R. (2nd) 6 (Ont. C.A.) at para. 21