Jeffrey Sol Klein

The appellants, a real estate brokerage and its realtor, appealed a summary judgment dismissing their claim for a $650,000 commission from the respondent purchaser after a commercial real estate transaction failed to close.

The motion judge found that the Buyer Representation Agreement, which listed the commission as 'TBD', did not contractually bind the purchaser to pay the commission amount set out in a separate agreement between the brokerage and the seller.

The Court of Appeal dismissed the appeal, holding that the motion judge made no reviewable error in his contractual interpretation and that his conclusion was open to him based on the highly fact-specific circumstances.

A receiver appointed over Wynn Realty Corporation sought approval of a proposed distribution of recovered funds to the plaintiff and intervenors who initiated the receivership.

The insurance coverholder objected, asserting subrogated and assigned claims on behalf of the insurer for amounts paid to fraud victims under a mandatory consumer deposit insurance policy.

The court rejected both the subrogation claim and the assignment-based claim, finding that the common law prohibition against insurers suing their own insureds applies and cannot be circumvented through assignments.

However, the court determined that the proposed distribution improperly excluded other similarly situated consumers and directed that all known consumers be included in an equitable distribution.

The court granted summary judgment in favour of the plaintiffs, ordering the return of their deposit for an assignment of a property that was never built.

The defendant was not entitled to retain the deposit or deduct expenses, and the real estate agent (Hometown) was required to return its commission, as the underlying transaction did not close due to the builder's bankruptcy.

The decision turned on the interpretation of the relevant agreements and the application of contract law principles.

The court considered whether to permit a motion for summary judgment in a real estate dispute involving the failed sale of three properties.

The plaintiff, Michelle Fraser, sought summary judgment against the defendant, Mathew Pearson, who in turn brought third-party claims against his former counsel and a title insurer.

The court declined to schedule the summary judgment motion at this stage, citing the likelihood of conflicting expert evidence and the need for a more complete record.

The parties were directed to develop an expedited trial preparation plan.

The defendants Nik Handa and Re/Max Realty Services Inc. brought a motion for summary judgment seeking $650,000 in commission from the plaintiff Nadeem Qureshi, related to an aborted real estate transaction where Re/Max acted as Qureshi's agent.

Qureshi brought a cross-motion to dismiss the counterclaim.

The core dispute involved the interpretation of the "To Be Determined" (TBD) commission clause in the Buyer's Representation Agreement (BRA) and whether subsequent agreements (Commission Agreement and revised Co-op Agreement) incorporated a fixed commission amount binding on Qureshi.

The court found that the commission amount was an essential term not sufficiently determined in any contract signed by Qureshi, and the revised Co-op Agreement did not incorporate the Commission Agreement's terms to bind Qureshi for payment.

The defendants' motion for summary judgment was dismissed, and Qureshi's cross-motion was granted.

The plaintiffs brought a motion to enforce a Mareva injunction, alleging the defendants were dissipating assets by selling automobiles through an intermediary.

The individual defendant appeared self-represented, stating he had retained counsel who was unavailable and had not explained the injunction terms to him.

The court declined to make a finding of contempt without responding materials but issued a final warning to the defendant, reiterated the terms of the injunction, and adjourned the motion peremptorily.

The applicants sought a declaration that an Agreement of Purchase and Sale (APS) for a property was null and void after the respondent purchasers failed to waive inspection and financing conditions by the deadline.

The respondents had proposed an amendment to the APS instead of waiving the conditions, which the applicants did not accept.

The respondents subsequently registered a Purchaser's Lien on the property.

The court held that the APS was null and void because the conditions were not explicitly waived or fulfilled in writing as required.

The court ordered the Purchaser's Lien discharged and the deposit returned to the respondents, finding no breach of the duty of good faith by the applicants.

The plaintiffs entered into an Agreement of Purchase and Sale with the defendant seller and provided a deposit to the defendant real estate brokerage.

The seller repudiated the agreement but refused to consent to the return of the deposit, forcing the plaintiffs to commence an action and bring a motion for summary judgment.

The seller eventually consented to the return of the deposit after the motion record was served.

The court awarded the plaintiffs substantial indemnity costs against the seller due to his unreasonable conduct, but awarded no costs against the brokerage.

The defendant, Prudential Select Realty Inc., brought a motion for summary judgment to dismiss the plaintiff's claim against it.

The plaintiff alleged that Prudential Select was responsible for the wrongful conduct of its agent, Mr. Singh, who sold a property to the plaintiff in his personal capacity before completing his own purchase of the property.

The court found that Mr. Singh acted as a principal in the transaction, without the involvement or knowledge of Prudential Select, and that Prudential Select did not receive any commission.

Applying principles of vicarious liability, the court determined there was no genuine issue for trial against Prudential Select, as Mr. Singh's actions were not connected to his authorized employment with the brokerage.

The motion for summary judgment was granted, and the claim against Prudential Select was dismissed with costs.

On appeal from a motion judge's decision, the Court of Appeal considered whether real estate sales commissions collected by a receiver of an insolvent brokerage firm constitute trust funds for the real estate salespersons who effected the sales, or form part of the assets available to creditors.

The motion judge found no trust existed, concluding that certainty of intention to create a trust had not been established.

The appellants (agents and their insurer) challenged this conclusion on two bases: that the motion judge erred in attaching significance to evidence weighing against a trust, and that he failed to attach sufficient significance to evidence supporting a trust.

The Court of Appeal upheld the motion judge's decision, finding no palpable and overriding error in his weighing of evidence.

The court affirmed that formal trust agreements are not required for an implied trust to arise, but the absence of such provisions in the agent agreements, combined with financial statements showing commissions as assets rather than trust funds, supported the conclusion that no trust was intended.

The plaintiff, Homelife/Miracle Realty Ltd., brought a motion for summary judgment against the defendant 2503661 Ontario Ltd. for unpaid real estate commission.

The commission was allegedly due following a property sale that converted into a share purchase transaction.

Homelife argued that 250 was bound by the commission agreement, either directly, as a successor, or through a relaxation of the privity of contract rule. 250 denied liability and sought summary judgment dismissing the action.

The court found the evidentiary record insufficient to interpret the commission agreement and resolve the issues, particularly regarding the objective surrounding circumstances and the impact of subsequent conduct.

Consequently, both Homelife's motion for summary judgment and 250's request for summary judgment dismissing the action were denied, necessitating a trial for a fair and just determination.

The Receiver of two insolvent real estate brokerages (TRP and TRP Realty) sought the court's advice and direction on whether approximately $3.7 million in commissions owed to the brokerages' agents were held in trust for the agents or formed part of the general assets available to secured creditors.

The court applied the "three certainties" test for a valid trust, focusing on certainty of intention.

Despite some ambiguous indicators like bank account names and standard form documents, the court found that the agents' contracts and the brokerages' audited financial statements did not objectively demonstrate an intention to create a trust.

Consequently, the commissions were deemed unsecured debts, not trust funds, and thus available to the secured creditors.

The defendants moved to strike a second Superior Court action arising from a real estate transaction that had already generated a small claims proceeding, an earlier Superior Court action, and a settlement.

The plaintiff alleged deceit, conspiracy, bad faith conduct, and fraudulent or negligent misrepresentation in relation to the settlement, including against opposing counsel and insurance adjusters.

The court held the pleading contained a complete absence of material facts, failed to plead the constituent elements of the asserted torts, and impermissibly attempted a collateral attack on prior proceedings.

Although strict res judicata did not apply because the causes of action and parties were not identical, the action was found to be scandalous, frivolous, vexatious, and an abuse of process, and was struck without leave to amend.

The defendant real estate brokerage sought leave to appeal to the Divisional Court from an order dismissing its motion for summary judgment.

The underlying motion argued that the plaintiff's negligent misrepresentation claims regarding suspected mortgage frauds were statute-barred.

The motion judge had found a genuine issue for trial regarding when the plaintiff reasonably discovered the claims against the listing agent.

The Superior Court dismissed the application for leave to appeal, finding no good reason to doubt the correctness of the motion judge's decision and concluding that the discoverability issue required a trial.

The plaintiff bank brought a motion seeking leave to amend three consolidated statements of claim to add allegations of fraud and fraudulent misrepresentation against a lawyer and a property appraiser involved in mortgage transactions, and to assert that the claims survived bankruptcy under s. 178 of the Bankruptcy and Insolvency Act.

The defendants opposed the motion, arguing the amendments introduced a new cause of action after the expiry of the applicable limitation period.

The court held that the original pleadings alleged negligence only and did not contain the material facts necessary to support allegations of fraudulent misrepresentation, including knowledge of falsity or intention to deceive.

Because the proposed amendments introduced a fundamentally different cause of action, the limitation period created a presumption of non‑compensable prejudice.

The motion to amend was therefore dismissed.

The applicant filed a human rights application alleging sex discrimination and harassment at a racetrack.

The respondents argued the application should be barred under section 34(11) of the Human Rights Code or deferred because the applicant had also commenced a civil action for injuries sustained in a subsequent accident at the track.

The Tribunal found the application was not barred because the civil action did not claim a remedy under the Code.

The Tribunal also declined to defer the application, finding that while there might be some evidentiary overlap, the issues in the two proceedings were distinct.

The appellant purchased a vacant lot and hired a builder recommended by a co-worker real estate agent to build a custom home with a walk-out basement apartment.

After the builder encountered financial difficulties and failed to complete the project, the appellant sued the co-worker for negligent misrepresentation and breach of fiduciary duty.

The trial judge awarded damages for negligent misrepresentation regarding the legality of the basement apartment and punitive damages for breach of fiduciary duty.

On appeal, the Court of Appeal dismissed the appellant's appeal to increase damages, finding she failed to mitigate.

The Court allowed the respondent's cross-appeal in part, setting aside the punitive damages award because no fiduciary relationship existed between the parties.

Following a successful appeal by the defendant, the court determined the appropriate scale and quantum of costs.

The appellant sought substantial indemnity costs based on an offer to settle the appeal.

The court held that Rule 49 does not apply to offers to settle appeals and awarded costs on a partial indemnity scale.

The court fixed the costs at $12,000 for fees plus disbursements and GST, finding the appellant's claimed hours slightly excessive for a case dismissed at the pleadings stage.

The appellant appealed the dismissal of his motion for summary judgment in a defamation action brought by the respondent.

The respondent's action was based on testimony the appellant gave at a Real Estate Council of Ontario (RECO) disciplinary hearing.

The Divisional Court allowed the appeal, holding that the RECO Disciplinary Committee is a statutory tribunal and the appellant's testimony was protected by absolute privilege under the witness immunity rule.

As there was no genuine issue for trial, summary judgment was granted dismissing the action.

The appellant appealed a decision of the Ontario Court of Appeal which upheld the dismissal of a third party claim on the basis of abuse of process.

The Supreme Court of Canada allowed the appeal, agreeing with the dissenting reasons of Goudge J.A. at the Court of Appeal that it was not an abuse of process to allow the appellant to bring the claim or require the realtors to defend it.

The motion for summary judgment was dismissed.