I suggest what's sometimes called an "agent de son tort". if A affects to act vis-a-vis B as if he were C's appointed agent, A comes under a fiduciary duty to C, since it does not lie in his mouth to say there was no relationship in fact between them. See English v Dedham Vale Properties [1978] 1 W.L.R. 93 and Montrod Ltd v Grundkötter Fleischvertriebs GmbH [2002] 1 WLR 1975 at [72] and [78]. I can't see why he shouldn't also be liable to C for exceeding the authority he pretended to have.

Andrew

Is this a case of malicious or injurious falsehood, in a domestic context? Deceit normally is a tort arising in a commercial context, but has been recognised (for example in Magill v Magill) as potentially applicable in wider circumstances. 

Stephen

Sent from my iPhone

On 16 Jun 2018, at 23:59, Stephen Pitel <spitel@uwo.ca> wrote:

Here is the actual decision:

https://www.canlii.org/en/on/onsc/doc/2018/2018onsc3684/2018onsc3684.html

The defendant did not appear so this is a default judgment.

The main cause of action is deceit (para 25).  Maybe Jason can explain how the facts fit the law? 

The judge did discuss the applicable law (paras 10-15).  In Ontario proceedings any foreign law usually has to be both pleaded and proven (with evidence as to its content).  Absent those things the court applies the law of the forum (Ontario law).

The plaintiff did plead that Quebec law (as the place of the wrong) applied.  But he did not tender any evidence of the content of Quebec law.  So the court applied Ontario law.

The judge (para 14) incorrectly refers to "the presumption of similarity" - an outdated doctrine that states that in the absence of proof of the content of the foreign law, it is presumed to be the same as the law of the forum.  This is one of the law's more ridiculous fictions.  The better view is that the court should not invoke any such presumption and instead rely on the notion that in the absence of proper proof of the content of the foreign law, forum law applies as the default.

Jurisdiction over the defendant was also discussed, though it probably should not have been.  With proper service on the defendant (in Quebec) it is for the defendant, not the court, to raise any concerns about jurisdiction.  The defendant did not raise such a challenge. 

Having waded into the jurisdiction waters, the judge gets caught somewhat in the tide.  He resolves the issue in part on the basis that the plaintiff had pleaded that the defendant was an Ontario resident, and takes that fact as true because of the default in appearing (para 8).  But that is circular.  A challenge to jurisdiction would be brought prior to a defence and at that point the plaintiff could not rely on facts pleaded in the claim as true.  Fortunately, he also resolves the issue based on affidavit evidence that the defendant was resident in Ontario at the time of the litigation (para 9), a perfectly satisfactory basis for jurisdiction.

The decision raises some very interesting quantification of damages issues.

Stephen

On 16/06/2018 7:27 AM, Summers,AD wrote:

This would make a great storyline for a problem question, except that I don’t know the answer…!

 

http://montrealgazette.com/news/local-news/mcgill-music-student-awarded-350000-after-girlfriend-stalls-career

 

Girlfriend secretly declines boyfriend’s offer of a scholarship place at a top music school. Boyfriend finds out several years later, sues, wins $350k damages (including aggravated damages).

 

But what is the cause of action? (And first of all, what law applies?)

 

Case was heard in Ontario. Claimant and defendant were both students at McGill at the time; offer was from a music school in Los Angeles.

 

Best wishes,

Andy

 

 

--


Professor Stephen G.A. Pitel
Faculty of Law, Western University
(519) 661-2111 ext 88433
President, University of Western Ontario Faculty Association

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