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Legal Topics in the Works




AGENCY


1. Definition of Agency
2. Formation of an Agency Relationship

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1. Definition of Agency

In 1196303 Inc. v. Glen Grove Suites Inc. (Ont CA, 2015) the court cites the definition of agency as follows:
[69] An oft-cited definition of agency comes from Gerald Fridman, in Canadian Agency Law, 2d ed. (Markham: LexisNexis, 2012), at p. 4:
Agency is the relationship that exists between two persons when one, called the agent, is considered in law to represent the other, called the principal, in such a way as to be able to affect the principal’s legal position by the making of contracts or the disposition of property.
See also Applewood Place Inc. v. Peel Condominium Corp. No. 516 (2003), 11 R.P.R. (4th) 253 (Ont. S.C.), at para. 35.

2. Formation of an Agency Relationship

In 1196303 Inc. v. Glen Grove Suites Inc. (Ont CA, 2015) the court discusses the formation of an agency relationship:
[70] In order for a consensual[4] agency relationship to exist, both principal and agent must agree to the relationship, and the principal must give the agent the authority to affect the latter’s legal position: Fridman, at pp. 4-5; see also Applewood, at para. 35.

[71] While agency is often created by an express contract, setting out the scope of the agent’s authority, the creation of an agency relationship may be implied from the conduct or situation of the parties: see Francis v. Dingman (1983), 1983 CanLII 1985 (ON CA), 2 D.L.R. (4th) 244 (Ont. C.A.), per Lacourciere J.A., at p. 250, leave to appeal to S.C.C. refused, (1984) 23 B.L.R. 234n. Whether an agency relationship exists is ultimately a question of fact, to be determined in the light of the surrounding circumstances: Ogdensburg Bridge & Port Authority et al. v. Edwardsburg (Township) (1966), 1966 CanLII 223 (ON CA), 59 D.L.R. (2d) 537 (Ont. C.A.), at p. 542, leave to appeal to S.C.C. refused (1967), 59 D.L.R. (2d) 546n.
In Rougemount Capital Inc. v. Computer Associates International Inc. (Ont CA, 2016) the Court of Appeal comments about what evidence is had regard to on making a finding of agency:
[35] As recently noted by Weiler J.A. in 1196303 Inc. v. Glen Grove Suites Inc., 2015 ONCA 580 (CanLII), 337 O.A.C. 85, at para. 71:
While agency is often created by an express contract, setting out the scope of the agent’s authority, the creation of an agency relationship may be implied from the conduct or situation of the parties. Whether an agency relationship exists is ultimately a question of fact, to be determined in the light of the surrounding circumstances. [Citations omitted.]
[36] In our opinion, there is no reason for taking a different approach to determining the scope of an agent’s authority. It is a question of fact to be determined in light of the circumstances, including the conduct or situation of the parties.

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Sources

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