2016 ONSC 2474

COURT FILE NO.: DC-15-82

DATE: 2016 04 12

DIVISIONAL COURT - SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Homelife/Premium One Realty Corp Brokerage and Anwarul Islam

BEFORE: Tzimas, J.

COUNSEL: HomeLife/Premium One Realty Corp Brokerage, in person Jayson W. Thomas, for the Appellant

HEARD: April 1, 2016

E N D O R S E M E N T

[1] This is an appeal from the trial judgment of Deputy Judge Richardson of the Small Claims Court Division of the Superior Court of Justice dated July 3, 2015. The trial judge held that the appellant, Anwarul Islam was liable to the Respondent, Homelife/Premium One Realty Corp. Brokerage, in the amount of $17,091.25, plus costs of $2,500 for a real estate commission arising out of a Buyer’s Representation Agreement, (BRA).

[2] The judgment, in favour of the Homelife, turned on the issue of whether or not Mr. Islam knowingly signed a BRA. The trial judge came to the conclusion that Mr. Islam knew that he was signing a BRA.

[3] In his appeal before this court, Mr. Islam submitted that the trial judge made a palpable and overriding error of fact because she misapprehended Mr. Islam’s evidence that he signed the BRA. His evidence was that he never signed such a document. Mr. Islam also submitted that the trial judge erred when she concluded that Mr. Islam knowingly signed the BRA. Mr. Islam’s evidence was that his English language comprehension was limited. The implication of that evidence was that if his language comprehension was limited he would not have understood the content or implications of the BRA and therefore he did not knowingly sign the BRA.

[4] Mr. Arora, who was the real estate agent who interacted with Mr. Islam and who attended before this court on behalf of Homelife with the authority to bind Homelife submitted that the trial decision should be “honoured”. By that he meant that the decision should be upheld. He said that there were no palpable and overriding errors of fact by the judge because Mr. Islam deliberately misled Homelife when he refused to provide Mr. Arora with any information concerning his purchase of a property, separate and apart from the sale of his other property. In his submissions, Mr. Arora did not address the particular errors raised by Mr. Islam. In other words, he did not explain how or why the trial judge did not err in her findings of fact. In a sense, what Mr. Arora really argued was that the trial judge came to a just decision because Mr. Islam was dishonest in his dealings.

[5] For the reasons that follow, the appeal is allowed. I find that while the trial judge identified the issue to be determined correctly, she misapprehended Mr. Islam’s evidence concerning the execution of the BRA. I also find that the trial judge failed to take into account or consider at all the unequivocal evidence that Mr. Islam’s English skills were limited and that he relied on others, namely his wife, for explanations, when she concluded that Mr. Islam understood the BRA. These failures are crucial and amount to palpable and overriding errors of fact that affected the trial judge’s assessment of whether Mr. Islam knowingly signed the BRA. In the absence of such errors, the evidence before the court supports a finding on a balance of probabilities that Mr. Islam did not knowingly sign the BRA.

[6] Regarding my first point, the trial judge found Mr. Islam’s evidence to be that he “indicates that it may well be his signature on those papers, but that he thinks it was in a pile of papers that were given to him that he signed without knowing what they were.” With respect, that was not Mr. Islam’s evidence at all. In his evidence Mr. Islam was unequivocal in his denial of any such signature. Specifically he testified that:

a) He signed documents with Mr. Arora on August 22, 2011 and January 2012 but not on September 2011, that being the date when the BRA was purportedly signed by Mr. Islam;

b) The pile of documents referenced by the trial judge related to the documents signed in January 2012 for the relisting of Mr. Islam’s property. There was no pile of documents in September 2011.

c) He was never shown the BRA. Mr. Islam said: “I was not shown this document. I was only shown the documents pertaining to the sale of my property”; and

d) He never met Mr. Arora on September 12, 2011 when Mr. Arora says the BRA was signed.

[7] Significantly, the clear evidence before the court was that Mr. Islam retained Mr. Arora for the sale of his property and not for any purchase. He said:

“The conversation that I had with [Mr. Arora] was for selling my property. And the documents that was presented to me was for selling the property, not for purchasing another property.”

When challenged about whether or not he signed the BRA, Mr. Islam reiterated that:

“I have only signed for selling my property, not for purchasing another property.”

He went on to say:

“I have not signed any document relating to the purchase of the property. What [Mr. Arora] told me was this were documents relating to the sale of my property and I have signed.”

At no time in his evidence did Mr. Islam suggest that his signature might have been included in the pile of papers.

[8] In her analysis and consideration of the evidence, the trial judge made no mention of Mr. Islam’s evidence that he never saw the document. Nor did she appear to consider the evidence noted above to the effect that according to Mr. Islam, all of his dealings with Mr. Arora related only to the sale of his property. Her reliance on a reference to a pile of papers is also problematic because Mr. Islam’s reference to a pile of papers related to a pile that he was asked to sign in January 2012, well after the BRA was purportedly signed. In this regard, most charitably, there seems to be a conflation of piles and documents. In the totality, the only plausible explanation for such a palpable and overriding factual error is a misapprehension of the evidence.

[9] I agree with the Appellant that whether or not Mr. Islam actually signed the BRA is a threshold issue and therefore a key factual issue. The trial judge’s conclusion that Mr. Islam admitted to signing the documents, when his evidence was to the contrary constitutes a palpable and overriding error of fact that affected the court’s overall assessment.

[10] The extent to which the court’s misapprehension of the facts concerning Mr. Islam’s signature affected its overall assessment of the facts is reflected in the court’s reliance on the existence of Mr. Islam’s signature, to then conclude that since he signed the BRA, Mr. Islam must have understood it and therefore, knowingly signed it. Such circular reasoning is especially troubling, given the trial judge’s parallel observation that agreements such as the BRA “should be better explained to the other side”. But then, rather than consider whether Mr. Arora engaged in such an explanation with Mr. Islam and whether Mr. Islam would have understood that explanation, the trial judge abandoned her concern, and without much further explanation concluded that since Mr. Islam signed the BRA, he must have understood it and he must have known what it was that he was signing. She supported that finding by suggesting that there was something suspicious in Mr. Islam’s decision to re-list the property without wanting to involve Mr. Arora in the purchase transaction. The added difficulty with this analysis is that it veers away from the evidence and results in a highly problematic assessment of the facts.

[11] Apart from the circular logic, the court’s conclusion regarding Mr. Islam’s knowledge as to what he was signing is problematic because on the evidence before the court, Mr. Islam’s English was poor to fair. Mr. Arora offered that assessment in his own evidence and added that often he required the assistance of Mr. Islam’s wife, to explain their particular communications. In the face of such difficulties, and combined with the trial judge’s concerns about how well people understand documents such as a BRA, Mr. Islam could not be found to have knowingly signed the BRA or in any event be bound by it. Compounding this difficulty is the lack of any evidence that Mr. Arora took steps to enable Mr. Islam to understand the meaning and implications of the BRA. In other words, there was no evidence before the court that Mr. Arora encouraged Mr. Islam to obtain legal advice or make inquiries about the legal significance and implications of the BRA. Nor was there any evidence before the Court that Mr. Islam and Mr. Arora discussed the prospect of Mr. Arora acting on Mr. Islam’s behalf for the purchase of another property.

[12] Mr. Arora raised before this court some detailed conversations he said he had with Mr. Islam about purchase inquiries that Mr. Islam was making in the fall of 2011 with another agent. He said that the September meeting he had with Mr. Islam where the BRA was purportedly signed, was triggered by information that Mr. Arora received from other agents concerning Mr. Islam’s inquiries about a potential purchase. Mr. Arora agreed that he did not lead such evidence before the trial judge, even though it is a narrative that Mr. Arora could have raised. It is therefore not fresh evidence that I might take into account or rely on to evaluate the trial judge’s findings.

[13] I would go further to note that on my review of the evidence, the focus in the interaction between Mr. Islam and Mr. Arora was the sale of Mr. Islam’s property and not any other transaction. Mr. Arora’s current explanation, even if admissible, would not support his contention that Mr. Islam knew what he was signing. If anything, it could serve to confirm that at least until September, Mr. Islam was not bound by any BRA. His conduct was consistent with that fact. After September, given his consistent refusal to engage Mr. Arora for any purchase, the reasonable inference to be drawn is that he did not sign a BRA and had no intention of doing so.

[14] Going back to the issue of Mr. Islam’s comprehension, I agree with the submissions of the appellant’s counsel that in circumstances such as these, where the trial judge raised concerns over the explanation of agreements such as a BRA, and where Mr. Islam testified through an interpreter, it was all the more important that she consider Mr. Islam’s language comprehension and make a finding regarding his own language abilities and whether they were sufficient to allow him to understand what it was that he was signing. This did not occur. In the absence of such findings it is impossible to conclude that Mr. Islam knew what he was signing. The fact of a signature on the BRA as the foundation for the finding that Mr. Islam knew what he was signing especially when the evidence of the signature is suspect at best, and unsupported by the evidentiary record amounts to an additional palpable and overriding error of fact that affected the trial judge’s overall assessment.

[15] The only conclusion I can come to is that the trial judge failed to appreciate the significance of Mr. Islam’s limitations and was misdirected by her assumption that Mr. Islam’s signature could be relied upon to support the overriding finding that Mr. Islam knowingly signed the BRA. In my review of the evidence, I have no difficulty finding on a balance of probabilities that Mr. Islam’s capacity to know what it was that the BRA said, was seriously compromised by his language limitations and the failure by Mr. Arora to engage in any discussion about the implications or even the need for a BRA.

[16] I might have come to a different conclusion if the evidence before the court included evidence about, a prospective purchase transaction, details about how the BRA was explained, and communications between Messrs. Islam and Arora about listings and possible viewings. Such evidence could cast Mr. Islam’s comprehension in a different light because it would offer a context within which the BRA would be raised. On the evidence before the court, the existence of the BRA hangs in a vacuum. In the result, even if I were to accept the finding that Mr. Islam signed the BRA, which I am not, the evidence at trial supports the finding that he did not know what he signed. The signature, in those circumstances, did not amount to knowledge.

[17] Accordingly, on the basis of the noted palpable and overriding errors of fact, I conclude that the trial judgment should be set aside. My finding that Mr. Islam’s language skills were insufficient to allow him to understand what it was that he was signing is dispositive of the question of whether or not he knowingly signed the BRA and therefore dispositive of the action. It is therefore appropriate that the action be dismissed.

[18] Regarding costs, they are awarded in favour of the Appellant in the sum of $3,500. Furthermore, having been advised by counsel that the sheriff garnished the Appellant’s bank account, despite the launching of this appeal, such garnishment or other freezing of the account arising out of this proceeding and the judgment shall be lifted forthwith. Any monies already paid out to Mr. Arora are also to be repaid to Mr. Islam forthwith.

Tzimas, J.

DATE: April 12, 2016

2016 ONSC 2474

COURT FILE NO.: DC-15-82

DATE: 2016 04 12

DIVISIONAL COURT

SUPERIOR COURT OF JUSTICE ONTARIO

RE: Homelife/Premium One Realty Corp Brokerage and Anwarul Islam

BEFORE: Tzimas, J.

COUNSEL: Jayson W. Thomas, for the Appellant

Homelife/Premium One Realty Corp Brokerage, In-person

ENDORSEMENT

Tzimas, J.

DATE: April 12, 2016