Claim No: 319869
IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Cite as: O’Neil v. MacLeod, 2010 NSSM 14
BETWEEN:
JENNIFER O’NEIL
Claimant
- and -
DAVID F. MACLEOD and REGAL MARKETING GROUP
Defendants
REASONS FOR DECISION
BEFORE
Eric K. Slone, Adjudicator
Hearing held at Dartmouth, Nova Scotia on January 5, 2010
Decision rendered on January 6, 2010
APPEARANCES
For the Claimant self-represented
For the Defendants David F. Macleod
BY THE COURT:
1 The Claimant signed a contract with the Defendant Regal Marketing Group Ltd., to act as a sub-agent representing Regal in the sale of vehicle protection programs to auto dealers. She sues both Regal and its principal, David Macleod, for commissions that she claims were due and not paid to her.
2 The Claimant signed the contract on January 11, 2009 and performed her duties until her resignation on April 22, 2009.
3 Briefly put, the claim consists of two components:
a. She seeks payment of commissions for policies sold in what she regarded as her exclusive territory, although she was not actively servicing those dealers, and
b. She seeks payment of commissions on policies sold during the months of May and June after she had resigned.
4 The total of the claims is $7,230.00.
5 The Defendant has counterclaimed for $810.00, based upon what he claims was the Claimant’s failure to give proper notice of resignation.
6 The contract contains certain provisions which I regard as crucial to the case.
a. Article 1 gives the Claimant the “nonexclusive right to solicit and service the program” within a geographical area which includes Dartmouth and the balance of Nova Scotia to the east.
b. Article 7 entitles the Claimant to be paid a commission for contracts “issued and paid for by the Dealers with whom the sub-Agent has installed a Dealer Participation Agreement and is currently servicing such dealer account.” (My emphasis)
c. Article 18(b) states that either party may terminate the agreement without cause by giving (60) sixty days written notice to the other.
The Dartmouth territorial claim
7 The Claim for policies sold in Dartmouth by dealers not being serviced by the Claimant would require a finding that the Claimant had exclusive rights. She clearly did not, under the written contract.
8 The Claimant testified that the Defendant verbally promised her some exclusive rights, but she also stated that the Defendant advised her that there were some dealerships being serviced by others in Dartmouth, so there is an inconsistency there. In any event, I believe the written contract - which is a professionally drawn, detailed document - is the best evidence of what was agreed to. This portion of the claim accordingly cannot succeed.
The May and June commissions
9 The claim for May and June commissions is, in my opinion, defeated by the terms of Article 7. The Claimant resigned on April 22, 2009 and immediately went to work for a competitor which was about to take over the products previously sold by Regal.
10 She claims that she nevertheless was servicing the dealers for 60 days after her resignation, but if she was doing so, it could hardly be seen as representing Regal. She argued that Regal was still receiving some carry over commissions, but that is very much in doubt. It appears that Regal never did receive payment, in part because of actions taken by the Claimant and her lawyer, taken to try to secure her entitlements.
11 In my view, the terms of the contract would only entitle the Claimant to commissions for policies sold while the contract was still in force. Having repudiated the contract on April 22, 2009, she cannot take advantage of any of its terms thereafter. This part of the claim also fails.
The counterclaim
12 In my view the Claimant was in breach of contract by failing to give adequate notice. She says she had no choice, as she had advance warning that Regal was about to lose the rights to represent the main products that she was selling. This led her and another sub-agent to resign one day before Regal received word that it was losing its representation rights. That same day the Claimant and her confrere surfaced with another agency, and curiously one of the reasons cited by one of the companies for terminating Regal was that it had lost its sales force. It is a bit hard to determine which came first - the resignation of the Claimant or the loss of Regal’s representation rights.
13 Had the Claimant waited until Regal acually lost its rights, she could probably have succeeded in arguing that she had a right to terminate her contract summarily - i.e. for cause - but in my view she acted precipitously.
14 The claim for $810.00 is based upon the Defendants’ projection that had the Claimant given 60 days notice, it would have retained its representation rights and sold a certain number of its policies during that time. The Defendants rely on the fact that it was the Claimant’s resignation that allegedly triggered the loss of the contract.
15 I have serious doubts that the real reason, or the only reason, that Regal lost the contract was because the Claimant resigned. That sounds very much like a convenient, after the fact excuse offered by the company, perhaps to avoid delivering a harsher message. In any event, I find that the Defendants have failed to prove on a balance of probabilities that any losses were incurred due to the untimely resignation of the Claimant.
16 In the result, both the claim and counterclaim are dismissed, without costs.
17 As such it is unnecessary for me to determine whether Mr. Macleod would bear any personal liability as the claim has not succeeded in any respect.
Eric K. Slone, Adjudicator