ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: 54473/13
Date: 2014/08/13
BETWEEN:
ALISON WISE
S. J. Erskine, for the Plaintiff
Plaintiff
- and -
ELEMENTA GROUP INC.
G. G. Beaulne, for the Defendant
Defendant
Heard: July 28, 2014
The Honourable Mr. Justice Robert Nightingale
Introduction
[1] The Plaintiff in this action seeks damages against the Defendant in the amount of $117,473.32 representing her claim under a consulting services agreement with the Defendant signed March 16, 2012.
[2] The matter originally proceeded before me by way of a motion for summary judgment by the Plaintiff. Because of the conflict in the parties’ affidavits and the need for me to decide the factual dispute after cross examinations of the parties, the motion was dismissed but the trial was expedited with the affidavits of the parties constituting their evidence and examinations in chief. Counsel were entitled to cross-examine the opposite party for one hour with a right of re-examination restricted to 15 minutes.
Factual Background
[3] The Plaintiff is an executive and strategist consultant with 20 years’ experience living and working in Denver, Colorado. She specializes in Clean Technology, renewable energy including raising capital for innovation and strategic consulting for large corporations, among other things.
[4] Her evidence was given in a frank and fair manner and she was not successfully challenged to any significant extent in cross-examination. I accept her evidence and, for the reasons noted below, especially when it conflicts with the evidence of the Defendant’s representative, Jay Zwiershke.
[5] The Plaintiff flew to Canada for an interview with Zwiershke, the CEO of the Defendant and its vice president Garry Rawson on March 5, 2012 after she was contacted by the Defendant on seeing her internet business advertisement. During that interview, she spoke to Zwiershke regarding her job requirements who suggested to her she needed some time to learn about the company by her being in Canada for a period of time. She understood she was going to work there part-time initially but understood clearly from Zwiershke that the majority of her time would be working in the United States to attempt to arrange venture-capital financing there for the Defendant’s business and technology. She understood that her working in Canada on a part-time basis was only temporary of approximately 2 weeks per month when she started so as to get to know the management people there but it was not to be for the entire duration of the contract.
[6] She then spent five days at the Defendant’s headquarters in Niagara-on-the-Lake for that purpose and frankly conceded that she told the Defendant staff during that time that she would be back on a regular basis.
[7] Ms. Wise confirmed she then entered into a consulting services agreement with the Defendant on March 12, 2012 to assist them with its communications, financing and partnership/innovation endeavours. The agreement, which was specified to be on a month-to-month basis only, provided for reimbursement of her consulting services fees in the amount of $11,666.67 per month plus payment of her reasonable expenses incurred. The agreement made it clear that she was not to be an employee of the Defendant but rather was an independent contractor. The Defendant and in particular Zwiershke drafted the entire agreement which was similar to other consulting services agreement it had in the past with other consultants it retained.
[8] The schedule attached to that agreement provided details of the required services of the Plaintiff under the headings of communications, financing, and partnerships/innovation.
[9] The Plaintiff’s evidence was that she was hired as a consultant by the Defendant because of her expertise as a business strategist to help create a business framework so that the Defendant could be successful. She had contacts with a significant group of large American venture-capital corporations interested in clean tech technology such as the Defendant’s and her job was to work with and help the Defendant raise $7-$10 million in capital for its technology innovations by the end of August 2012. She was not responsible herself for raising that money and the payment of her consulting fees was not contingent on her actually obtaining financing commitments from American investors .
[10] Those job responsibilities were confirmed in the written services agreement which clearly stated under the financing section that she was to “develop presentations and filter select finance groups/investors through direct contact, research, networks and investment criteria and value creation for Elementa’s $7 – 10 M raise by 3rd 2012 (closing)”. The agreement stated that she was to work with the Defendant’s CEO and financing team to prepare initial presentations and develop a matrix for selecting the best firms to represent or invest in Elementa.
[11] The Plaintiff shortly after that signing returned to the Defendant’s offices for six or seven days to get to know and work with the management team as she understood she was required to at the outset. The Defendant’s evidence from Zwiershke that her attending at the Defendant’s offices in Ontario to interview for the position was the last time she stepped foot into their offices is rejected as not being factual.
[12] However, on April 9, 2012 when she attempted to return again, she was stopped at the Canadian border and prevented from entering the country because she did not have a labour market opinion (LMO) which allegedly was required. The Plaintiff had understood she was exempt from that requirement because of her being an independent management consultant with specialized skills. She spoke to Zwiershke and offered to get a hotel at the border as her base there but was told by him to return to Denver and do her work there and she did so. That evidence was not contradicted or challenged by Zwiershke.
[13] She immediately did her research and filled out the required forms for the Canadian immigration authorities to allow her to work in Canada as a specialized management consultant for the Defendant and forwarded those to the Defendant as the Defendant was required to submit those to the Canadian immigration office. She received an email response from Zwiershke telling her not to worry about it. Zwiershke’s evidence confirmed that he received those completed forms but admitted that Elementa did not complete or fill them in as required nor did it submit them even though it was their responsibility to do so. He admitted sending the email to the Plaintiff of April 19, 2012 telling her not to worry about it and “we will get this resolved” and that the Plaintiff was to continue to work in the United States. No reasonable explanation was given for the Defendant’s failure to forward the completed forms and follow-up the matter with the Canadian immigration authorities.
[14] The Plaintiff continued with her consulting and strategist services in the United States on behalf of the Defendant. She coordinated with various venture-capital firms on behalf of the Defendant, attended and participated at several Clean Tech conferences with the approval of the Defendant to promote their technology. She arranged meetings with several venture-capital firms and stated she was not able to close any investments from them because of the lack of communication internally with the Defendant and her inability to get the Defendant management to commit to meet face-to-face with these investors or conduct conference calls with them. In fact, she stated that Zwiershke canceled some meetings she had arranged with American investors at the last minute including one with Trans Energy and one in the spring of 2013 which required the attendance of the Defendant’s CEO Zwiershke or its VP .The Plaintiff attended nevertheless but the company did not invest in Elementa because of the Defendant’s failure to attend. That evidence was not challenged or contradicted by Zwiershke who simply stated that he never attended any meeting with the Plaintiff. He also admitted sending an email to her on November 15, 2012 confirming that the Plaintiff was doing an amazing job to support Elementa given, among other things, “very little communications given his ungodly schedule”.
[15] The Defendant throughout this entire time after April 19, 2012 did not raise the issue of her not spending time in Canada except to compliment her on her doing an amazing job on its behalf as indicated above. Nevertheless, the Defendant failed to make payments for her services as required under the agreement and by June 1, 2012, the Defendant owed her $38,775.31 for services she had delivered under the agreement.
[16] Because of the Plaintiff’s concerns with nonpayment, she requested and received a signed letter from Zwiershke dated June 15, 2012. That letter stated as follows:
Pursuant to the terms of our services agreement executed March 16, 2012 for work commencing on March 5, 2012 and given the invoices that are in arrears for $38,775.31 as of June 1, 2012, we the undersigned intend to fulfill the terms of the agreement in full as soon as the company has the solvency with which to do so.
In the interim, in order to honor our obligations to the degree by which we are able, we intend to remunerate on a semi- weekly basis in the amount of $5384.62. Upon achievement of solvency, we intend to compensate the full amount to date. Continued services for the Corporation are contingent upon the receipt of said weekly compensation. This document does not supersede the services agreement dated March 16, 2012 and weekly compensatory deposits will reflect remuneration for current services, with any fiscal discrepancy between agreed-upon terms and actual receipts invoiced on a monthly basis per original agreements.
We understand that should the terms of this letter be violated, we may be subject to other means of persuasion to collect including but not limited to legal action.
We intend to make the initial compensatory deposit on June 22, 2012 for current service and to fulfill our obligation for invoices in arrears as soon as it is viable.
[17] The Plaintiff’s evidence, which I accept, is that based on the assurance in that letter that she would be paid for all services provided to date, she continued to perform her required services under the services agreement with the Defendant. As a result of her consulting services, Elementa expanded its public and investor relations, was introduced to financing groups and investors and increased its shareholder/stakeholder value. She admitted, although her fees were not contingent on that, that she was not successful in obtaining investment capital for the Defendant but in part because of the Defendant’s failure to communicate and attend investors’ meetings she had set up.
[18] The Defendant despite its letter of June 15, 2012 failed to make the required semi-weekly payments even though the Plaintiff continued with her work. On November 14, 2012 the Plaintiff sent Zwiershke an email again insisting of being paid her required compensation and confirming that the Defendant had remunerated her only $32,232.71 of an expected $128,333.33 owing representing just one quarter of what should have been paid. She asked him to tell her what was going on.
[19] His response of November 15, 2012 is most significant stating:
“You are doing an amazing job to support us, given cash flow issues, border crossing disasters, very little communications given my ungodly schedule. Let’s talk tomorrow at 4:30 that works for me.
I do have some good news, the PPA is here by early next week. We had a great meeting with the OPA today and my investors are ready to cut more cheques!
I am looking forward to our call”
[20] The Plaintiff then asked for financial details. Zwiershke responded in an email of November 26, 2012 when he stated “I feel like the ass for not communicating with you. We will have some money to you ASAP.”
[21] Those emails in my view confirmed that the Defendant was also working on its own projects and the sale of its technology and that the Plaintiff was only to provide assistance. Nevertheless, the Defendant forwarded no funds to the Plaintiff but never complained regarding the work she performed stating only that she was doing an amazing job giving only the reason that it simply didn’t have the funds to pay her for services.
[22] The Plaintiff continued to perform her work to advance the Defendant’s business strategy and technology to investors throughout the world and continued to insist on payment of her account. Zwiershke’s email of December 24 to her confirmed he could wire some funds to her by the end of that week stating that “2013 would be a great year for all of us” and thanking her for her amazing patience and extraordinary efforts. Despite that and a follow-up email from the Plaintiff of December 27, no such payment was made. The Defendant in fact only made two partial payments in January and February 2013.
[23] On January 16, 2013 Mr. Rawson, the Defendant’s vice president, sent an email to the Plaintiff after the Plaintiff confirmed that the “check is in the mail” could not continue and that she was open to a conversation about her taking equity in lieu of part of the cash owing to her for some payment . Mr. Rawson made it clear in that email that the Defendant was close to reaching a deal with the Ontario Power Authority and that they had several investors ready to write cheques and were waiting for approval of this OPA deal. He extended apologies for what this had done to her and that they were confident that in a matter of weeks it would get caught up on everything and get Elementa’s house in order. He appreciated her offer of shares for compensation and said he would discuss that with Zwiershke and get back to her on that shortly thanked her for “hanging in there with this”. He also stated “we look forward to when we can use your talents to their fullest which is very soon that can help catapult Elementa into the next phase of growth. We have much good news to convey and will do so when these troubles are behind us”.
[24] What is clear from all of this evidence is that the only reason Plaintiff was not being paid for her services was allegedly because of the lack of funds or simply the refusal of the Defendant to pay the Plaintiff for her consulting services. In particular, at no time since the Plaintiff was hired by the Defendant did the Defendant ever state or convey to her that they were not satisfied with the work she was performing, that she was not complying with her obligations under the agreement, that payment of her consulting fees were contingent on her successfully obtaining significant capital financing for the Defendant, or that she was not able to actually work in Canada at the Defendant’s offices.
[25] Moreover, the Defendant even though they could have terminated the agreement with one month notice for any reason, at no time did so. In fact, Zwiershke made it clear in his evidence that he communicated specifically with her thanking her for her patience notwithstanding the cash flow problems of the company so that she would continue to work for the Defendant. He admitted he promised to personally get the funds owing to her sent out by his email of January 16, 2013 so that she would still work for the Defendant.
[26] The Defendant nevertheless by early April 2013 had only paid her a total of $38,775.31 for her services even though she was then owed $151,666.71 leaving a balance owing of $117,473.32. The Plaintiff stopped work at that time and through her lawyer demanded payment of the funds owing to her. At no time did the Defendant respond to that letter before the commencement of this litigation suggesting the Plaintiff was not entitled to those funds, that she had not complied fully with the terms of her services agreement, that the agreement was frustrated because of her inability to work in Canada or that she breached the agreement because of her repudiation of the agreement which was only first mentioned in its statement of defence.
[27] Zwiershke in his evidence most significantly confirmed that indeed in January 2014 the Defendant signed what appears to be a very substantial agreement lasting 20 years with the Ontario Power Authority to generate electricity at a municipal waste fuel plant to be built in Sault Ste. Marie using its Clean Tech energy. The logical inference from this evidence was that this was likely a multimillion dollar agreement. Zwiershke confirmed but did not fully explain that it was a two-year +18 year contract and that it would take longer to get paid. Nevertheless, despite essentially assuring the Plaintiff in January 2013 that she would be paid when this OPA agreement was reached, the Defendant simply failed or refused to do so even after the commencement of this litigation.
[28] Zwiershke, the founder, CEO and president of the Defendant confirmed in cross examination that he would normally communicate to the members of his organization telling them in writing when they were doing a good job. Obviously, he did exactly that in this case with the Plaintiff.
[29] He also confirmed that he drafted the services agreement with the Plaintiff himself based on previous company agreements he had, was always aware she lived in Denver Colorado and that he could terminate the agreement at any time on one month’s notice . However, he insisted initially that the written agreement required her to work in Canada for at least two weeks per month. When confronted in cross examination to point out specifically where it said that, he then read the agreement, hesitated in his evidence and then conceded that there was no such term in the written agreement. He then attempted to backtrack, stating that to his understanding it was verbally communicated to the Plaintiff that it was critical for her to be in Canada to come up to speed regarding the Defendant’s finances and work with senior management on a regular basis.
[30] I do not accept that evidence as being factual given his attempt to insist on an oral understanding once he realized his mistake on the wording of the written agreement and given his own evidence that the primary objective for obtaining her consulting services was to help Elementa arrange capital financing from larger US firms as compared to smaller capital firms located in Canada. Obviously, that could only take place if she spent her time in the USA. She had already spent two weeks in Canada at the Defendant’s offices working with senior management and it is inconceivable in this modern age of technology why she was needed to spend any more time in Canada. The fact is Zwiershke never raised the issue with her again after April 19, 2012, never attempted to obtain an LMO allowing her to return to Canada and always complimented her for the amazing job she was doing for the Defendant.
[31] Furthermore, even though the Defendant quickly was significantly in arrears for payment of her consulting fees, Zwiershke admitted he sent the letter of June 15, 2012 to the Plaintiff essentially stating that she would be paid as soon as financing became available and acknowledging the Defendant’s responsibilities under the services agreement. He admitted the letter did not say that payment to her for her fees was contingent on her actually being able to raise money for the Defendant. He readily signed the letter that he said the Plaintiff provided to him and that after providing her with that letter, she continued to provide her consulting services for the Defendant working with potential investors including at conferences in Hawaii and Denver.
He stated he signed that letter of June 15, 2012 letter “as a personal favour to Alison” because she needed to show she would have some future income for her family. I reject that evidence as being factual which undermines his entire credibility as the real reason he obviously signed it was to convince her to continue to work for his company notwithstanding he said the company didn’t have the cash flow to pay her then.
[32] He admitted emailing to her November 26, 2012 assuring that he would have some money to her as soon as possible but never sent anything and even then only made a partial payment in January 2013. He also admitted sending an email to her of December 24, 2012 thanking her for her amazing patience and extraordinary efforts on behalf of Defendant and promised payment in a week.
[33] He confirmed that he continued to have feedback with her and that he was happy with her work and that the company did not terminate its contract with her.
[34] I also reject his evidence that the Plaintiff failed to report her work to him and submit information about the hours she had put in or otherwise failed to perform her contractual obligations relating to financing. The evidence at trial which I accept is clearly to the contrary and there was never any complaint by the Defendant of the Plaintiff’s work she performed until it filed its statement of defence in this action. The Defendant wanted her experience in accessing American investors as the main focus of the contract and it was not her fault that she was not successful in obtaining financing for the Defendant nor did she fail to fulfill her contractual obligations by not being able to do so.
Analysis
[35] There is no dispute between the parties that if the contract between the parties was not frustrated, was not unenforceable because of illegality, and the Defendant did not breach her obligations under the contract, the balance owing to her for her 13 months of services is $117,473.32.
[36] The Defendant states that it is not required to pay any more funds to the Plaintiff other than what was paid already as the contract was frustrated, was void ab initio under the doctrine of illegality and that the Plaintiff material breached the agreement because of her inability to legally work in Canada and by her failure to introduce a single viable investor to the Defendant.
Frustration
[37] The Defendant’s position is that the Court, in interpreting the agreement, should give effect to the intentions of the parties as evident from the contract as a whole and attempt to give effect to all the parts of the contract avoiding interpretations which produced commercially unreasonable results.
[38] It urges that the intention of the parties and the contractual relationship required the Plaintiff to work in Canada at least part of the time as a necessary component of discharging her contractual duties especially those involving developing and implementing comprehensive financing and other business strategies and programs at Elementa.
[39] I disagree. In fact, on the evidence at trial which I have accepted, the parties’ intention was that the Plaintiff was only temporarily and initially required to spend some time in Canada to get to know and work with senior management to understand the Defendant’s business and technology so that the Plaintiff could then spend her time in the USA trying to attract American venture capital companies to invest in the Defendant’s technology and business.
[40] The Plaintiff in fact spent all the time that was required at the outset at the Defendant’s offices and when she could no longer attend because of border crossing issues, the Defendant simply told her to continue with her work in USA to try and promote the Defendant’s business there to investors. If the intention of the Defendant was for the Plaintiff to regularly attend in Canada as a requirement of the contract, surely it would have expressed that to her sometime after April 19, 2012 but it never did so. It also never attempted to terminate the contract which it easily could have done on 30 days notice. In fact, it said nothing about her inability to attend in Canada after that and did nothing to try and comply with its obligations to file the forms the Plaintiff had filled out for an LMO or exemption under the Canadian immigration legislation.
[41] The Defendant was aware at the outset of the potential issue of the Plaintiff not being able to work in Canada given her residing and working in Colorado and its having another American expert consultant working for them already. Her inability to work in Canada was certainly foreseeable to the Defendant and it would not be reasonable for the Defendant to claim the contract was frustrated as any alleged frustration was self-induced by its own failure to act on the immigration issue. In fact, the parties carried on throughout the next year as originally expected and intended that the Plaintiff would be working in the USA on the Defendant’s behalf.
[42] Accordingly, the agreement was not frustrated because of the Plaintiff’s inability to legally work in Canada and there is nothing in the evidence to suggest that her performance of her services actually performed was radically different from that which was undertaken by the contract. Naylor Group Inc. v. Ellis Don Construction Ltd. 2001 SCC 58. It makes no practical business sense for her to be required to work in Canada two weeks of every month once she had spent the initial two or three weeks at the Defendant’s offices at the outset getting to know the management team and business of the Defendant when the main focus of her work was to promote the Defendant’s technology for investment purposes in the USA. The Defendant’s own evidence confirms that that was the primary objective of her services which did not require her to work in Canada for approximately half the time. I do not accept the evidence Mr. Zwiershke that her doing so was of fundamental importance to the Defendant and that had he known that she could not legally work in Canada, Elementa would never have entered into the agreement. That evidence simply makes no common sense as once he did know she could not legally work in Canada, he did nothing to terminate the agreement on 30 days’ notice but rather directed her to return to the US to work on the primary objective of the contract which would require her to work there.
[43] The crucial question is whether the alleged frustrating event prevented the Plaintiff from performing the essential functions of her role for a time sufficient to say that, in a practical or business sense, the object of the contract had been frustrated. Cowie v. Great Blue Heron Charity Casino, 2011 ONSC 6357. There was no such frustrating event in this case and the Plaintiff not only performed the essential functions of her role as required by the contract, she was praised by the Defendant for performing in an amazing and extraordinary fashion on its behalf.
[44] Lastly, even if it was a condition of the contract that the Plaintiff performed a good part of her consulting services in Canada, the Defendant clearly waived that condition of the contract. By April 19, 2012 it was aware of the issue and clearly and unequivocally abandoned any alleged reliance on that alleged term of the contract. It took no steps to resolve the issue on its own or proceed with filing the required forms the Plaintiff had filled out and it told her not to worry about the immigration issue as “we (i.e. Elementa) will get this resolved”. It never raised the issue with her again as being a problem or as a reason for nonpayment of her fees and continued to insist and rely on her assistance and services being performed throughout. The Defendant clearly took steps which amount to foregoing reliance on some known right or defect in the performance of the Plaintiff which would constitute waiver of those rights. Saskatchewan River Bungalows Limited v. Maritime Life Insurance, 1994 100 (SCC), [1994] 2 SCR 490.
Illegality
[45] The Defendant suggests that the doctrine of illegality provides where the contract is expressly or impliedly prohibited by statute or common law, the court will refuse to grant relief to the party when it all the circumstances, it would be contrary to public policy. Still v. Minister of National Revenue, 1997 6379 (FCA), [1998] 1 FC 549.
[46] It suggests that under the Immigration and Refugee Protection Act (“IRPA”), a foreign worker must generally receive a positive LMO before a work permit will be issued and that it is an offense to fail to comply with a condition or obligation imposed under the IRPA or employ a foreign national in a capacity while the foreign national is not authorized to be employed.
[47] The Defendant’s position is that the requirement in the agreement for the Plaintiff to work in Canada two weeks out of every month resulted in the agreement being prohibited by the IRPA. The contract would be illegal because the Plaintiff did not have a positive LMO and did not qualify for an exemption.
[48] I disagree. Firstly, I have found that the agreement did not require the Plaintiff to work in Canada two weeks out of every month for the balance of the agreement. Secondly, the responsibility for obtaining the LMO and filing the appropriate forms was on the Defendant not the Plaintiff and the Defendant simply declined to file the documents. One would have thought that if it was important for the Defendant to have the Plaintiff work two weeks every month in Canada, it would have done so. Even if the contract was illegal, it was the Defendant’s failure to file the documents and follow up with immigration authorities to rectify the situation that was responsible for that.
[49] Thirdly, there is no question that the primary purpose of the agreement was for the Plaintiff to provide her services to help the Defendant obtain substantial investments from American venture capital companies because they couldn’t get investments from Canadian companies. It is hard to imagine that the Defendant hiring the Plaintiff to do her work in the US for that purpose would, in those circumstances, undermine the purposes of the IRPA to protect employment opportunities for Canadian citizens.
[50] Lastly, our courts recognize the desirability of balancing the need to preserve public policy by not enforcing illegal agreements and the need to avoid unjust enrichment. The striking of the balance may depend in each case on the extent of the illegality and the unjust enrichment. Berne Development Ltd. v. Haviland et al. (1983) 1983 1955 (ON SC), 40 OR (2d) 238. In this case, the Plaintiff provided valuable services for the Defendant throughout at the Defendant’s request and which was in compliance with her primary objectives under the agreement to try and obtain American investors for the Defendant. She promoted the Defendant’s business in the USA as contemplated by the agreement and kept the Defendant informed of her efforts on a regular basis. The Defendant readily accepted her services even though it was the Defendant who canceled investment meetings and conference calls with investors she had met with and arranged to meet with the Defendant. In addition, the Defendant took no stops to resolve the issue of her not working in Canada despite its representations it would do so. It is the Defendant which benefited throughout because of the Plaintiff services in the USA and the Defendant would be unjustly enriched if it was not obligated to pay for her services. The Plaintiff did nothing wrong and did not benefit from any alleged wrongdoing on her part.
[51] There is no substance to this defence for non-payment of the Plaintiff’s consulting fees.
Material Breach by the Defendant
[52] The Defendant alleges that the Plaintiff material breached her agreement because of her inability to legally work in Canada and by her failure to introduce a single viable investor to the Defendant.
[53] As indicated above, given the evidence at trial that I have accepted, there is no basis or foundation that her inability to legally work in Canada constituted any breach of the agreement, let alone a material breach of the contract.
[54] The Ontario Court of Appeal in 968703 Ontario Limited v. Vernon (2002), 2002 35158 (ON CA), 58 OR (3rd) 215 identified five factors in determining whether a breach of contract reaches the level of material breach:
the ratio of the party’s obligation not performed to the obligation as a whole;
the seriousness of the breach to the innocent party;
the likelihood of repetition of the breach;
the seriousness of the consequences of the breach; and
the relationship of the part of the obligation performed to the whole obligation.
[55] The Defendant alleges that the Plaintiff’s failure to introduce a single viable investor to Elementa goes to the very foundation of the agreement and is a fundamental breach.
[56] I disagree. Firstly, the uncontradicted evidence of both parties was that payment of the Plaintiff’s consulting fees was not contingent on the Plaintiff obtaining an investor who committed an investment with the Defendant.
[57] Secondly, the evidence at trial was that the Plaintiff did succeed in arranging meetings with some American investors but it was the Defendant which canceled face-to-face meetings and conference calls with them resulting in their failure to invest with the Defendant. The Defendant conceded its own failure to communicate with the Plaintiff and acknowledged the amazing and extraordinary efforts she was performing on their behalf.
[58] Thirdly, when the Plaintiff was not successful by the end of August 2012 in obtaining American investors for the Defendant, the Defendant’s own conduct of continuing to praise the Plaintiff for her amazing and extraordinary efforts on their behalf confirmed that there was no breach of her agreement let alone a serious one by not obtaining those funds. Had it been, it only makes common sense and business sense that the Defendant would have expressed that to the Plaintiff and if it was serious enough, would have terminated the agreement by giving her 30 days’ notice. It did neither. The facts are clear that at no time throughout the entire relationship did the Defendant ever raise the issue of any breach of the agreement let alone a material breach by the Plaintiff. Rather, it continued to praise her work and induced her to continue with her work with assurances of payment for her fees for that purpose. It is the Defendant which breached the agreement notwithstanding its assurances of payment whereupon the Plaintiff finally terminated her services in April 2013 because of that.
Conclusion
[59] The Plaintiff, accordingly, shall have judgment against the Defendant in the amount of $117,473.32 together with pre-judgement interest thereon from April 12, 2013 pursuant to the Courts of Justice Act.
[60] Subject to any relevant rule 49 offers to settle, the Plaintiff would normally be entitled to her costs of this action on a partial indemnity basis.
[61] If the parties cannot agree on the issue of costs, the Plaintiff can make her written submissions of no more than three pages in length plus a bill of costs and details of any relevant written offers to settle within 15 days. The Defendant will similarly provide its written submissions within 10 days thereafter.
Nightingale J.
Released: August 13, 2014
COURT FILE NO.: 54473/13
DATE: 2014/08/13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ALISON WISE
Plaintiff
- and -
ELEMENTA GROUP INC.
Defendant
REASONS FOR JUDGMENT
Nightingale J.
Released: August 13, 2014