Luminary Holding Corp. v. Fyfe
I find that there was no discussion of the various potential agency
relationships between Mr. Dunn and Mr. Fyfe in the days leading up
to the October 28, 2013 email exchange. Mr. Dunn only agreed that
it was possible that there was such a discussion, but also suggested
that the conversation he was thinking about could have occurred in
2015 in relation to a different transaction. Mr. Fyfe did not produce
phone records which would presumably have given weight to his
suggestion that there was such a call. When directly questioned on
this subject at his discovery, when his memory should generally
have been better, Mr. Fyfe claimed not to recall any such
conversation. Although Mr. Fyfe suggested that his memory had
improved in the 3.5 years since his discovery, it was clear to the
court that this reconstructed memory of a call was in fact the result of
(a) listening to Mr. Dunn’s testimony, and (2) creating an ex post
facto justification for some of the language in Mr. Dunn’s email.
While Mr. Fyfe suggest that the language used by Mr. Dunn in his
email tracked what he would normally have said to someone in a
conversation about a customer relationship, he acknowledges that
the term “act for” is not language he would ever have used. I
conclude that Mr. Fyfe was not reliable on the subject of the alleged
phone call ahead of the October 28, 2013 email.
Even if there was a discussion about the agency options over the
phone in the days leading up to the October 28 email from Mr. Dunn,
this email should have alerted Mr. Fyfe that Mr. Dunn did not
understand what Mr. Fyfe alleges he explained.
The fact that Mr. Dunn starts out his October 28 email by recognizing
that Mr. Fyfe has done more than a realtor would normally do should
have been another red flag for Mr. Fyfe, i.e., that he may have
already crossed the line from what a listing agent in a mere customer
relationship would normally do.
Mr. Dunn’s use of the term “act for both the seller and buyer” is very
difficult to square with a mere customer relationship. “Act for”
reasonably signifies a client relationship. Barron’s Canadian Law
Dictionary, 6th ed, defines “agent” as “one who…acts for the benefit
of another; one authorized by a party to act on that party’s behalf.”
Black’s Law Dictionary, 11th ed, defines “agent” as “someone who is
authorized to act for or in place of another”.
Further, the use of the word “both” in his email suggests that
Mr. Dunn was viewing the seller and himself as having an equivalent
relationship with Mr. Fyfe, not a relationship in which the seller was
at the higher “client” level and the he was down at the lower
Finally, Mr. Dunn’s suggestion that he had some control over how
much commission Mr. Fyfe would receive should have been a further
indication that Mr. Dunn assumed he was in a client relationship.
m) The effect of the October 28 email is that Mr. Dunn must be taken to
have been requesting Mr. Fyfe to act for him in a client relationship.