Trudeau v. Cochrane

On January 1, 1961, the Guardian Insurance Company referred to Laurentian the case of an accident that occurred in the Town of Mount Royal in the prohibited area on December 28, 1960 (Exhibit P-4, Vol. II).

Respondent himself did not act. It was Hébert, the employee of Laurentian, who acted. Either for the sake of economy, or else through inadvertence the stationery of the third party was used. Respondent apparently believed that this was not an act of prohibited competition because Guardian was not a regular customer of the third party. (Case Vol. I, at pp. 47, 48, 66, 68 and 111, Vol. II, at pp. 145 and 146, and Vol. IV, at p. 599).

On January 5, 1961, Hébert, an employee of Laurentian, received a file regarding an accident that occurred in Montreal, in the prohibited area, on December 26, 1960, and obtained a statement from the insured. (Exhibit P-14, Vol. III).

The evidence shows, however, that Hébert acted at the request of an employee of the third party to whom his account was sent. (Case Vol. I, at pp. 118 and 119 and Vol. III, at pp. 430 et seq.).

On February 8, 1961, Mercantile referred to Laurentian the case of an accident that occurred in Montreal, in the prohibited area, on February 6, 1961. (Exhibit P-17, Vol. IV).

Hébert, who was dealing directly with the insurance company, contacted Dubuc, an employee of the third party, to ask him to meet the persons involved in the accident living in Montreal and Verdun and send him a report, which the latter did. The third party allegedly sent its account, which was set off against others. (Case Vol. I, at p. 121). This testimony, which is corroborated by documents (Exhibit P-17, Vol. IV, at pp. 514 to

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517) contradicts appellant’s statement that he absolutely refused to act as respondent’s correspondent for cases involving claims arising in the prohibited area. (Case Vol. I, at p. 114). It is true that appellant did not act personally, any more, incidentally, than did respondent in the first case supra.

On March 1, 1961, Guardian referred to Laurentian the case of an accident that occurred in Montreal, in the prohibited area, in June 1960. (Exhibit P-12, Vol. III).

This case developed like the third case, thereby constituting a precedent prejudicial to the position of appellant, who appeared to attach no importance to it because, although Guardian referred the case to Laurentian after the contract of December 19, 1960, the accident itself occurred earlier. (Case Vol. I, at pp. 36 and 115 to 117, Vol. III, at pp. 378 and 382 et seq.).

On March 9, 1961, an employee of the third party referred to Hébert of Laurentian a case that occurred at Bois des Filions, Terrebonne County on November 5, 1960. (Case Vol. I, at p. 118 and Vol. III, at p. 402, Exhibit P-13).

Laurentian reported to the third party. At p. 409, Vol. III, a letter sent to Hébert of Laurentian by an agent of the third party attests to the co-operation between the two offices.

On April 11, 1961, Hartford referred to Laurentian the case of an accident that occurred on March 23, 1961 at Saint-Martin, in the prohibited area. (Exhibit P-7, Vol. III).

Respondent telephoned appellant, who expressed the fear, apparently for the first time, that this case constituted a precedent. Respondent withdrew and took no further part in the case. He claimed no fees. (Case Vol. I, at p. 53 and Vol. III, at pp. 321,322).

On April 18, 1961, an agent of Mont-Rolland referred to Laurentian the case of an accident that occurred in Montreal, in the prohibited area, on April 16, 1961. (Exhibit P‑15, Vol. IV).

Hébert, an employee of Laurentian, contacted appellant who agreed to Laurentian’s acting as his correspondent. A substantial part of the work was

[Page 62] carried out by Laurentian, which billed the third party. (Case Vol. I, at pp. 119, 120, Vol. IV, at pp. 443 to 489).

In April, 1961, respondent announced the opening of a Laurentian branch office at Rosemere. (Exhibit D-1, Vol. I).

The Superior Court held that this undertaking was lawful. The branch is located outside the prohibited area and serves regions that are not referred to in the prohibition. (Case Vol. I, at p. 142 and Vol. IV, at p. 622).

On July 6, 1961, the Prudential Assurance Company referred to Laurentian the case of an accident that occurred in Montreal, in the prohibited area, on June 15, 1961. (Exhibit P-6, Vol. III).

Laurentian accepted this commission directly from the insurer but in the capacity of correspondent of the third party, an employee of which later asked it to submit an account. (Case Vol. III, at pp. 301 to 320).

On July 11, 1961, the Hartford Insurance Company referred to Laurentian the case of an accident that occurred on July 10, 1961 in Laval West. (Exhibit P-5, Vol. II).

Respondent seemed to believe, as in the first case, that this was not a case of prohibited competition because Hartford was not a regular customer of the third party. (Case Vol. I, at p. 106 and Vol. II, at pp. 224 and 225).

On July 14, 1961, a Saint-Jérôme insurance broker referred to Laurentian the case of an accident that occurred on July 12, 1961 in Montreal, in the prohibited area. (Exhibit P-16, Vol. IV).

With appellant’s consent, Laurentian acted as correspondent of the third party, reported to the latter and sent it an account. (Case Vol. I, at p. 120 and Vol. IV, at pp. 490 et seq.).

On October 31, 1961, appellant’s attorney wrote a formal notice of default to respondent alleging that Laurentian was not identifying itself properly, that it was passing itself off as the third party and was in breach of the agreement of December 19, 1960. This letter enjoined respondent to cease its contraventions and suggested that he communicate with the writer of the letter (Case Vol. I, at pp. 143, 144).

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Around November 2 or 3, 1961 appellant and respondent met to discuss their disagreement. Their respective versions of the meeting are at variance. (Case Vol. I, at pp. 81, 82, 100, 101). Respondent alleges having also met appellant and his counsel in the latter’s office, but appellant and his counsel deny this.

On November 29, 1961, the Prudential Assurance Company referred to Laurentian the case of an accident that occurred at Ile Perrot, in the prohibited area, on June 25, 1961. (P-9, Vol. III).

Respondent testified that only after accepting this commission did he realize that he might be infringing the agreement of December 19, 1960. He tried to co-operate with appellant, who refused. Respondent withdrew and claimed no fees. (Case Vol. I, at p. 54 and Vol. III, at pp. 343, 338, 340).

In November 1961, appellant stopped paying on behalf of respondent the $100 per month he had undertaken to pay on a hypothecary obligation.

On December 5, 1961, Phoenix of London allegedly referred to Laurentian the case of an accident that occurred in Montreal, in the prohibited area, on October 2, 1961. (Exhibit P-8, Vol. III).

The particulars of the correspondence exchanged by the parties, to be found in Exhibit P-8, do not tally. Respondent has no copy of them. Here again, subject to the lack of agreement of the documents relating to the identity of the accident, there appears to have been an attempt to co-operate on the part of respondent, a refusal by appellant and a withdrawal by respondent. (Case Vol. IV, at p. 601 and Vol. III, at pp. 328, 329, and 326).

There was apparently another case of breach alleged by appellant with respect to an accident that occurred around November 22, 1961 at Saint-Martin.

The record of this accident has not been reproduced. There is, besides the allegation, a qualified admission of respondent that he received no fee since he had no copy of the record. (Case. Vol. I, at pp. 45, 46 and 55).

On March 23, 1962, the Zurich Insurance Company referred to Laurentian the case of an accident that occurred on March 20, 1962 at Sainte-Marthe sur le Lac. (Exhibit P‑10, Vol. III).