(LINDSAY) DIVISIONAL FILE NO.: 0049/05
SMALL CLAIMS COURT FILE NO.: 004451
DATE: 20051201
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
B E T W E E N:
Bradley Bird – Mincom Plus Realty Inc.
G. Whitford - counsel, for the Plaintiff/Respondent
Plaintiff (Respondent)
- and -
Carl M. Ireland and Sheila M. Ireland
T. Gain - counsel, for the Defendant/Appellant Sheila Ireland
Defendant (Appellant)
HEARD: November 22, 2005
AMENDED REASONS FOR JUDGMENT
Clark J.
Background
[1] This is an appeal from the result in a Small Claims court trial.
[2] The appellant, Sheila Ireland, retained the services of the respondent, Brad Bird, a real estate agent, to sell her home in Omemee, Ontario. When she declined to act on an offer for the full asking price, the plaintiff successfully sued to recover the commission. An appeal from that decision resulted in an order for a new trial. The second trial was heard by Deputy Judge D.R. Gemmill, who found for the plaintiff. The appellant now appeals that decision and the judgment on costs in the matter.
Issues
[3] The appellant argues that the trial judge erred:
(i) by holding that the offer was the same as the listing agreement;
(ii) by holding that the offer had been presented;
(iii) by holding that the plaintiff was entitled to his commission because the language of the agreement in that behalf was clear and unequivocal; and
(iv) by fixing an amount for costs that was excessive and beyond his jurisdiction, by virtue of misapplying Rules 14.07 and 19.04 of the Small Claims Court Rules and section 29 of the Courts of Justice Act.
Was the Offer the Same as the Listing Agreement?
[4] Mrs. Ireland first listed her home for sale in February 2002. The Listing Agreement[^1], signed February 21, 2002, stipulated that the appellant was prepared to sell her property for a price of $123,900.
[5] On April 5, 2002, Bird presented Ireland with an offer[^2] for $120,000 which she refused, insisting that she wanted her full asking price.
[6] On April 17, 2002, Bird presented Ireland with a second offer[^3] from the same prospective purchaser for the full asking price. It is that offer upon which the plaintiff sued.
[7] As did the first offer, the second offer had two conditions: (i) that the vendor warrant that the water on the property was potable and available in sufficient quantity for normal household purposes and (ii) that the vendor warrant that the septic system was free from problems. There is no evidence that the appellant ever agreed to these conditions. Respondent’s counsel asserts, however, that such evidence is not necessary in order to hold the appellant accountable for commission on the basis of her refusal to honour her agreement to sell at the stipulated price.
[8] Firstly, the respondent relies on the fact that the appellant indicated in the Seller Property Information Statement[^4] that she was unaware of any problems with either the quality or quantity of the water on the property. Respecting the offer the respondent testified at trial[^5] that:
A. And 9 is the fax covering letter. Number 10 is the second offer or re-write of the first offer, and as you can see it’s full price. There’s the normal warranties that the agents would put in…
Q. And the normal warranties are what?
A. The normal warranties is[sic]the pump and related equipment to perform adequately for safe and significant household use.
Q. Okay.
A. And the other warranty is on the septic system, that it is in good working order.
[9] It is telling that Bird indicated that the warranties were “the normal warranties that the agents put in.” It is clear that the respondent simply assumed that, because the appellant indicated in the Seller Property Information Statement that she was not aware of certain problems, she was prepared to warrant that such problems did not exist. This he was not entitled to do. There is no evidence that the appellant ever agreed to such conditions. It is one thing to state that one is not aware of any problem with the water and quite another thing to warrant as a positive fact that there is no problem. The former case presupposes merely a state of ignorance on the part of the vendor, from which a potential purchaser may, perhaps, take some limited comfort. Absent fraud or willful blindness, however, no liability attaches to stating the simple fact that one is not aware of any problem. In the latter case, however, one is stating positively the existence of a particular state of affairs and, by so doing, exposing oneself to liability if it should prove otherwise. Therefore, the mere fact that the vendor had indicated that she was unaware of any problems with the water or sewage systems is not to say that she was content to warrant that there were no such problems.
[10] Secondly, respondent’s counsel took the position in oral argument on this appeal that because the appellant sold the property in the following year on the basis of an offer containing the two conditions, the fact of the conditions being in the offer that was refused conditions ought not to amount to a basis upon which she was entitled to reject the offer. This position was adopted by the trial judge in his reasons.[^6] I respectfully disagree. Firstly, the conditions in the agreement by means of which the property was finally sold, while similar to the conditions in the offer at issue in the case at bar, were not the same.[^7] They required the vendor to warrant less and thus, in my view, were less likely to expose the vendor to potential liability.
[11] More importantly, however, it must be remembered that the appellant testified that she became aware of a problem with the water in approximately May of 2002, at a time after the offer had been made and rejected. She then spent money to remediate the problem. It is not surprising, then, that she would be prepared to accept conditions similar to, though less onerous than, those she was not prepared to accept in April 2002, because she had reason to know that the problem she had discovered, subsequent to the offer, was fixed, such that she could safely give the warranty. That later event, namely, the appellant discovering a problem with the water, simply underscores, to my mind, that she would have been unwise to give the warranty at the time of the April 2002 offer when it was demanded of her.
[12] The trial judge, however, considered the Listing Agreement and the second offer to be the same, as evidenced by the following remark from his judgment: “A subsequent offer was procured by the Plaintiff at a full listing price and without conditions.”[^8]
[13] The Listing Agreement states, in the first paragraph, that the appellant gave the right to the respondent to list the property for sale at a price of $123,900 “…upon such terms particularly set out herein, or at such other price or terms acceptable to [her]”. Beneath that first paragraph of the Listing Agreement the “terms set out [t]herein” are listed. The second of such terms deals with commission. The first sentence of the commission term reiterates the above mentioned aspect of the agreement, namely, that the parties agreed that the arrangement was to be governed by the “terms and conditions set out in this agreement OR such other terms and conditions as I may accept.” [emphasis in original]
[14] There is no term, or other reference whatsoever, concerning the water or the septic system “particularly set out” in the Listing Agreement. The two conditions were “other…terms” within the meaning of the agreement. That being said, according to the wording of the Listing Agreement, for the offer to be binding upon the appellant it was necessary that the other terms be “acceptable to [her]”. Thus, on a plain reading of the two documents, in my view, it cannot fairly be said that the offer was the same as the Listing Agreement. As stated above, there was no evidence that these other terms were ever accepted by the vendor.
[15] In this regard, however, the trial judge held[^9]:
Lastly, Ms. Ireland put forth the notion that she balked at signing an offer because of conditions with respect to sewer and water about which she had concerns. Yet within one year she sold for the same price obtained by this Plaintiff and did issue those warranties…
With respect, that statement is incorrect in that (i) although it is a small point, the one condition had to do with a septic and not a sewer system; (ii) as noted above, the conditions in the offer that eventually culminated in the sale of the property were not the same as those embodied in the offer at issue here; and (iii) the sale price was not the same. Findings of fact by a trial court are, for the most part, entitled to appellate deference. They are not entitled to deference, however, where they are predicated on a misapprehension of the evidence. In my view, the factual findings underlying the judge’s conclusion that the offer was without conditions were based on a misapprehension of the evidence.
[16] Even leaving aside the question of misapprehension of the evidence, the finding that the offer was without conditions was a conclusion of law and, as such, is not entitled to appellate deference. That said, for the reasons stated above, I respectfully disagree that the offer had no conditions and, in holding that the plaintiff procured a full price offer without conditions, the trial judge was in error.
[17] Before leaving this subject, it is worthy of note that the trial judge was of the view that the appellant wanted not to sell the property and was simply looking for an excuse not to close. He based this on the fact that he refusal to sign the offer “was ‘after’ Sheila Ireland attempted to obtain a cease action order on the property and could not do so because the Defendant, Carl Ireland, would not sign it”[^10] [emphasis in original] It may well be that the appellant did not want to sell the house. However, even if that were so, it would not disentitle her to rely on her rights under the Listing Agreement, including the right not to accept any offer except on terms agreeable to her, and the right to require the respondent to present any offer upon which he later wished to claim his commission. Nor does a reluctance to close on the part of the appellant, remove the obligation on the part of the respondent to express clearly and unequivocally the terms of any agreement on commission, before such a term can be binding on the appellant.
Was the Offer Presented?
[18] The trial judge held that “…if the offer was not presented the Plaintiff’s claim must fail.” I agree. The appellant argues that the offer was not presented.
[19] In presenting an offer the agent must, according to the Code of Ethics of the Real Estate Council of Ontario, bring the offer to the attention of the vendor and advise the Client “about the facts and considerations that are relevant to the Client’s decision to …accept [the] Offer.”[^11] While the Code of Ethics does not have the force of law, it is, it seems to me, a good guideline to use in determining the legal issue of whether there was in the case at bar a proper presentation of the offer upon which the respondent can now rely to claim his commission under the clause in the Listing Agreement.
[20] The trial judge accepted the respondent’s evidence that he telephoned the appellant on April 15, 2002, to advise that he was expecting a full price offer to be forthcoming shortly. According to the respondent, the appellant requested that he send the offer to her to the appellant’s solicitor, Mr. McVicar. Pursuant to that request, he said, he sent the offer by facsimile transmission to the solicitor. He sent it, however, with no instructions whatsoever. The facsimile cover page[^12] merely stated that the offer was attached and invited the recipient to telephone the sender if he had any questions.
[21] Mr. McVicar’s evidence was put before the court by way of witness statement[^13]. The respondent did not seek to cross-examine on that statement. McVicar acknowledged having received the offer, but indicated that, because there were no instructions and because he had not been retained by the appellant to act for her in any connection to do with selling her house, he did nothing with the offer. He did not communicate with the client in respect of this until approximately May 6, 2002, at which time she contacted him as a result of having received the respondent’s letter threatening legal action.
[22] On the basis of this evidence, the trial judge found that the offer was presented. I disagree. With respect, the trial judge made several errors in coming to this conclusion.
[23] Firstly, the trial judge said: “Mr. McVicar is known to have expertise in real estate matters and I take judicial notice of same.”[^14] A court may take judicial notice of things that are “so notorious or generally accepted as not to be the subject of debate among reasonable persons; or capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.”[^15] The reputation of a particular member of the local legal community for expertise in a particular area of the practice of law is not, with respect, a fact respecting which a court can properly take judicial notice.
[24] Secondly, having wrongly taken ‘judicial notice” of Mr. McVicar’s expertise, the trial judge compounded this error by drawing certain conclusions, based on that expertise, respecting the appellant’s credibility:
I simply do not believe that Mr. McVicar did not discuss a potential lawsuit and did not explain the potential liability of the indemnity agreement for her estranged partner, Carl Ireland. Conversely Ms. Ireland asserts Mr. McVicar never discussed the offer at any time, nor did he discuss the purport of the ‘indemnity agreement’
In fact Mr. McVicar’s affidavit indicates he did discuss the impending law suit (Tab 20, Paragraph 4) presumably after the May 6th letter from the Plaintiff: - when this matter still could have closed. I note with interest, Mr. McVicar does not refer to the execution of the indemnity agreement.
For all of these reasons above I find as a fact, that Ms Ireland directed Mr. Bird to send this ‘full offer’ to her solicitor, Mr. McVicar. I find this to be ‘presentation of the offer’ within the requirements of the law.[^16]
[25] Thirdly, the trial judge erred by finding that the offer was capable of being resurrected as of May 6, 2002. The offer was dated April 16, 2002, and was irrevocable by the prospective purchaser until April 19, 2002. The respondent testified that as of May 6, 2002, when a letter was sent to the appellant and her solicitor threatening legal action to recover the commission, there was still time “[t]o get that offer back.”[^17] In my view, the only person who could properly say whether he was prepared to extend the offer would have been the purchaser himself, but he did not testify. Through the mouth of the respondent, however, that assertion was hearsay and ought not to have been admitted. Thus, at the end of the day, there was no admissible evidence that the purchaser was still willing to purchase as of May 6, 2002. That being the case, the fact that McVicar may have, round and about May 6, 2002, discussed matters concerning the offer, and liability for refusing it, was irrelevant and ought not to have been considered by the trial judge in determining the issue of whether the offer had been presented to the appellant.
[26] Fourthly, the trial judge erred, in my view, in finding that Mr. McVicar was “at all material times the solicitor for the Defendant, Sheila Ireland.”[^18] While it was true that McVicar was acting for the appellant during the period in question, the appellant’s evidence was that he was acting for her in respect of a family law matter and not with respect to the sale of her house. For his part, McVicar indicated clearly in his witness statement, which was not challenged by way of cross-examination, that prior to receiving the respondent’s facsimile transmission he had had no discussion with the appellant to the effect that any offer would be forwarded to him and, further, that he had nothing whatsoever to do with the sale of the home in question until after he received the respondent’s letter of May 6, 2002, by which time the offer had expired. Therefore, to say that he was her solicitor “at all material times” and to draw therefrom the inference that he must have advised her of the import of the offer, and the potential liability she would face by refusing to accept it, is tantamount to rejecting McVicar’s statement. In my respectful view, in the absence of cross-examination on his statement, it was inappropriate to reject McVicar’s evidence out of hand. Moreover, even had he been acting for her in respect of the sale of the house, and even in the face of the trial judge’s finding of fact that the offer had been directed to McVicar by the respondent at the appellant’s insistence, that still would not absolve the respondent of the obligation to present the offer to the appellant.
[27] Respecting the presentation of the second offer to the appellant, the respondent was asked in cross-examination what he went over with the appellant. His reply was[^19]:
A. Well, I’d still like to go back to the first offer with Mrs. Ireland and everything was fine except for the price, and she wanted to sign that offer back. I went over the warranty and everything was fine then. When I went to fax it to her on the Monday and she’d have nothing to do with the offer anymore, no I didn’t go over the second offer except for I told her it was a full price offer with no conditions in it, which was better than the first offer. She was going to sign back, plus it was more money.
The respondent’s evidence is somewhat troubling in terms of what he says he discussed with the appellant concerning the first offer, inasmuch as the facsimile cover sheet[^20] that accompanied it says merely: “Please look over offer and call me at the office when you decide and I will let you know where to initial”. That wording does not suggest to me that there was any meaningful discussion about the contents of the first offer. Although that first offer is not directly in issue in this case, it is nonetheless material inasmuch as in the evidence quoted above the respondent attempts to rely on his explanation of the warranties in connection with the first offer to overcome the fact that he did not explain the warranties when the second offer was forthcoming.
[28] More importantly, however, in the above quoted answer Bird says that he discussed “the warranty” with the appellant in connection with the first offer. There were, however, two warranties. Accordingly, taking his own evidence at face value, it is not clear which of the two he discussed with her. What is clear, however, is he did not, by his own admission, discuss both warranties in connection with the first offer and, further, he did not discuss either warranty in connection with the second. All he told her was that the purchaser was now offering her the full asking price.
[29] Furthermore, there was also another change between the offers that he did not discuss with the appellant, namely, the fact that the prospective purchaser was no longer requiring that the appellant include in the bargain the numerous chattels listed in the first offer.[^21]
[30] Lastly, by his own evidence, Bird told the appellant that the new offer had no conditions. That, however, was clearly not the case. For that reason alone, it cannot be said that he presented the offer to her.
[31] The respondent takes the position that the lack of explanation is overcome by the fact that he was directed by the appellant to send the offer to her lawyer. I disagree. As stated above, Bird was not entitled to delegate his responsibilities to McVicar merely because he had been asked by the appellant to forward a copy of the offer to the solicitor.
[32] As earlier mentioned, a trial judge’s findings of fact are entitled to appellate deference. However, the trial judge’s conclusion that the offer was presented to the appellant by the respondent, predicated as it is on findings of fact that are not supported by the evidence[^22], is not, with respect, entitled to deference. I have concluded that the offer was not presented as required by law and for that reason the respondent is not entitled to now claim his commission.
Language of the Commission Term
[33] The appellant also argues that the language of the commission term of the Listing Agreement is not sufficiently clear so as to permit the respondent to now recover his commission. The trial judge found that the wording was sufficiently clear that the plaintiff should be entitled to his commission. In this behalf the trial judge said:
I have reviewed the commission clause in the listing agreement which is set out in both parties [sic] Factums (Plaintiff at Tab 2; Defendant at Tab 1). I find as a fact the language to be clear and unequivocal and I also find that interpreting that within the residential real estate industry it is generally accepted that a realtor procuring a full price offer has earned the commission.
With respect, the finding is not one of fact; rather, it is a conclusion of law, and one with which I respectfully disagree.
[34] In Jaques v. Lloyd D. George & Partners Ltd., [1968] 1 W.L.R. 625 (C.A.)[^23], Lord Denning, M.R., said the following:
The principles which in my opinion are applicable are these: When an estate agent is employed to find a purchaser for a business or a house, the ordinary understanding of mankind is that the commission is payable out of the purchase price when the matter is concluded. If the agent seeks to depart from that ordinary and well-understood term, then he must make it perfectly plain to his client. He must bring it home to him such as to make sure that he agrees to it.
[35] There is no evidence in this case that the respondent explained the commission term to the appellant. That being said, if the agent seeks to rely on the wording of the clause itself, the wording must be clear and unequivocal.
[36] In this case the provision that the respondent was to be paid even in the event of a sale not being completed is found in the commission term. It states as follows:
I agree to pay such commission as described above even if the transaction contemplated by an agreement to purchase or lease agreed to or accepted by me or anyone on my behalf is not completed, if such non-completion is owing to or attributable my default or neglect.
This provision is found in a lengthy paragraph of small print, taking up approximately one third of the page of the listing agreement, all having to do with various aspects of the obligation to pay commission.
[37] More importantly, however, the sentence speaks of “an agreement to purchase…agreed to by me”. In this case, however, the appellant did not agree to accept the offer. The argument that the appellant defaulted is predicated on the fact that she refused to agree to the proposed offer. There is no language in the commission term that addresses that fact scenario. Therefore, to my mind, it is not at all clear what the vendor’s obligation would be, if any, in the situation where she has not agreed to the proposed offer.
[38] I have concluded, therefore, that the language of the term is not sufficiently clear and unequivocal as to permit the respondent to rely on it to claim his commission.
Costs Award at Trial
[39] This was a one-day trial. The amount recovered was $6,628.65, plus pre-judgment interest of $1,551.84. The appellant raised no issue on this appeal concerning the amount of the prejudgment interest. The trial Judge awarded costs in the amount of $2,000. He came to this figure by the following calculus. Purporting to apply s. 29 of the Courts of Justice Act, [“CJA”] he took 15% of $6,628.65, the principal amount awarded to the plaintiff at trial, namely, $994.28 and, purporting to apply Rule 14.07 of the Small Claims Court Rules he doubled that amount to arrive at $1,988.56. He then rounded this figure upward to $2000. In my respectful view, he erred in several respects.
[40] Rule 19.04 of the Rules provides that, where the amount claimed by the successful party exceeds $500, and the party is represented by counsel, the maximum costs award is $300 per day. Rule 19.02 indicates that any power under the Rule is subject to s. 29 of the CJA. Rule 14.0 provides that where the successful party has made an offer to settle, which is not accepted and later gets a judgment that is as favourable, or more favourable, than the offer, the court may award an amount not exceeding twice the costs of the action. Combining the two rules then, and assuming that the judgment was as favourable, or more so, than the offer, the Deputy Judge was permitted to award a maximum of $600 costs. Section 29 of the CJA provides that an award of costs in the Small Claims Court shall not exceed 15% of the amount claimed unless the court considers it necessary to penalize a party for unreasonable behaviour in the proceeding.
[41] It is clear that the power to award costs conferred by Rule 19 is limited by s. 29 of the CJA. Thus, the award in this case, before the application of Rule 14.07, would be $300. In my view, section 29 was intended by the legislature to limit the power of the Small Claims Court to award costs, not to increase it. The purpose of s. 29, it seems to me, is to keep costs awards in proportion to the amounts recovered. If it had been the intention of the legislature to simply impose a general rule whereby costs awards were to be 15% of the amount sued for, R. 19.04 would be superfluous. The Deputy Judge, however, used s. 29 to increase the amount of costs he could award and in so doing ignored Rule 19.04. With respect, he erred in this approach.
[42] Secondly, he compounded his initial error by doubling the 15% figure he had initially determined. Rule 14.07 applies where the successful party gets a judgment as or more favourable than his earlier offer to settle. The appellant contends that, although it appears so at first blush, the respondent did not satisfy that condition in the case at bar. That is so, says the appellant, because the trial judge did not consider the $2,000 the appellant had paid into court. In her judgment allowing the appeal and ordering a new trial, Madam Justice Eberhard ordered indicated that that sum “may be added or set off against any new court orders.” The total of the award and pre-judgment interest equals $8,151. Subtracting $2,000 from that figure, leaves $6,151, or less, in other words, than the $6,300 offered by the plaintiff.
[43] In my view, however, although the $2,000 paid into court could later be set off against the amount ordered to be paid by the judgment, it was irrelevant to the determination of whether the judgment itself was as more than the offer. In this case the offer was $6,000 plus $300 pre-judgment interest. As mentioned above, the judgment was $6,600 plus $1,551.84 pre-judgment interest, clearly more favourable than the offer. That being said, the trial judge was correct to double the initial costs amount. He erred, however, by applying R. 14.07 to the sum of $994.28; rather, as indicated above, he should have applied it to the sum of $300.
[44] For the foregoing reasons, even if the judgment as to liability were to stand, the costs award would have to be set aside.
Result
[45] In summary, I have made the following findings:
(i) the second offer contained conditions that were not in the Listing Agreement;
(ii) the conditions embodied in the offer were not agreed to by the appellant;
(iii) the offer was not presented to the appellant;
(iv) the language of the commission term was not clear and unequivocal and was not explained to the appellant;
(v) by reason of (i) through (iv) above, the appellant is not bound by the commission term of the Listing Agreement; and
(vi) the costs award at trial exceeded the maximum permitted by the Small Claims Court Rules and Section 29 of the CJA.
[46] In the result, then, the appeal is allowed and the judgments of the trial court on both liability and costs are hereby set aside.
[47] Moreover, on the basis of findings (i) through (iv) inclusive, it is clear that the respondent cannot succeed on a new trial. Therefore, this court gives judgment for the appellant and the respondent’s claim for commission is hereby dismissed.
[48] It is ordered that the $7,114.73 previously paid into court by the appellant be remitted to her forthwith by the Accountant of the Superior Court of Ontario.
[49] It is further ordered that the costs order of Eberhard J. on the earlier appeal be paid within 30 days of the date of the release of this judgment.
Costs of This Appeal
[50] If the parties cannot agree on the issue of costs respecting this appeal, they may arrange with the Trial Coordinator to argue the matter orally.
Mr. Justice R. Clark
Original Release Date: December 1, 2005
Amended Release Date: January 9, 2006
(LINDSAY) DIVISIONAL COURT FILE NO.: 0049/05
SMALL CLAIMS COURT FILE NO.: 004451
DATE: 20051201
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
B E T W E E N:
Bradley Bird – Mincom Plus Realty Inc.
Plaintiff
(Respondent)
- and –
Carl M. Ireland and Sheila M. Ireland
Defendant
(Appellant)
AMENDED REASONS FOR JUDGMENT
Mr. Justice R. Clark
Original Release Date: December 1, 2005
Amended Release Date: January 9, 2006
[^1]: Exhibit Book, Tab A2 or B1 [^2]: Exhibit Book, Tab A8 or B3 [^3]: Exhibit Book, Tab A10 or B4 [^4]: Exhibit Book, Tab A1 [^5]: Evidence of Brad Bird, p. 9, l. 4 [^6]: Appeal Book and compendium, Tab 3, p. 12 [^7]: The condition in the offer in dispute in the case at bar required the vendor to warrant that the water pump and related equipment had, during the period of the vendor’s occupancy, performed adequately and, further, that the well was capable of supplying safe and sufficient water for normal household use. In addition, the vendor was obliged to allow the purchaser to test the water himself. The condition in the 2003 offer, which led to the eventual sale of the property, required merely that the vendor agree to provide the purchaser with a certificate from the local health authority that there was no significant evidence of bacterial contamination in the water. It said nothing about the sufficiency of the water supply or the condition of the water system’s equipment. Respecting sewage, the condition in the offer in dispute in the case at bar required the vendor to warrant that during the period of the vendor’s occupancy the septic tank system had operated satisfactorily and, further, that it had, to the best of the vendor’s knowledge been installed according to the provisions of the health authorities. In the 2003 offer, the vendor was required to warrant merely that the system had been during occupancy, and would be on closing, “in good working order”. The condition said nothing about the system being in compliance with the requirements of any health authority. [^8]: Appeal Book and Compendium, p.8-9, Judgment [^9]: Appeal Book and Compendium, p.12, Judgment [^10]: Appeal Book and Compendium, p. 10, Judgment [^11]: Real Estate Council of Ontario, Code of Ethics, Rules and Guiding Principles, 14.3 [^12]: Exhibit Book, Tab A 11 [^13]: Exhibit Book, Tab B 20 [^14]: Appeal Book and Compendium, p. 11, Judgment [^15]: Watt, D., Watt’s Manual of Criminal Evidence, (Toronto: Thomson Carswell, 2004) p. 114. [^16]: Appeal Book and Compendium, p.12, Judgment [^17]: Evidence of Brad Bird, p. 12, l. 22. [^18]: Appeal Book and Compendium, p. 9, Judgment [^19]: Evidence of Brad Bird, p. 25, l. 9. [^20]: Exhibit Book, Tab 9 [^21]: It is interesting to note, in the context of a warranty concerning water quality, that while the purchaser was insisting in the first offer that the “water softener and equipment” be included in the deal, those chattels were omitted from the second offer. By the respondent’s own admission, this was not discussed with the appellant. [^22]: Namely, as stated above, that (i) the solicitor has expertise in real estate law; (ii) that McVicar discussed with the appellant the impending law suit and the purport of the indemnity agreement respecting Carl Ireland; and (iii) the offer could have been resurrected as of May 6, 2002. [^23]: Cited in H.W. Liebig & Co. v. Leading Investments Ltd., 1986 45 (SCC), [1986] 1 S.C.R. 70