Jeffrey Sol Klein

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 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 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.