CITATION: AJ LAMBA REALTY v. CRAINIC, 2016 ONSC 4153
DIVISIONAL COURT FILE NO.: DC-15-40-00
SMALL CLAIMS COURT FILE NO.: SC-13-682-00
DATE: 2016 06 22
ONTARIO
SUPERIOR COURT OF JUSTICE
(SMALL CLAIMS COURT APPEAL)
B E T W E E N:
AJ LAMBA REALTY GROUP INC.
Saad Suleman, for the Respondent
Respondent
- and -
CORNEL CRAINIC
Stuart D. Reddington, for the Appellant
Appellant
HEARD: June 10, 2016
REASONS FOR JUDGMENT
[On appeal from a Decision of Deputy Justice Pettipiere of the Small Claims Court at Burlington delivered March 5, 2015]
FRAGOMENI J.
INTRODUCTION
[1] The Appellant appeals from the decision of Deputy Judge S. Pettipiere dated March 5, 2015.
[2] The only ground of appeal advanced at the appeal hearing is that the learned trial judge erred in his finding that the Respondent was entitled to the full commission of $10,750. The Appellant argues that the award should have been for only one-half of that amount.
[3] The Appellant submits that the wife of the Appellant also signed the Agreement of Purchase and Sale on the second property and as such she is not bound by the buyer representation agreement initially signed by the Appellant alone. On this basis, therefore, no liability attaches to the wife and the commission on the purchase of the second property is only one-half of $10,750 and the Respondent is only entitled to that amount.
[4] In support of his position the Appellant refers to the following areas of evidence:
(1) An email dated August 16, 2012 from the Appellant to the Respondent that sets out the following:
“Hi Joseph, I hope you are well.
I have to tell you that we found a house we liked.
The asking price was $439900 and we got it with $430000.
The only way we could get it with out getting in a bidding war as you know very well, was to get the seller agent to sell ours house too. She worked hard convincing the seller for the $430000 selling price, probably lowering the sale commission as she did with us too.
Joseph believe me I fill very bed for the whole situation,I am so sorry for you but was nothing I could do with my wife.
She was so decided to do the deal right the way,I did not have any choise.Actually our house was only in her name.
Thanks Joseph and good luck
Cornel”
(2) Trial transcript page 28, lines 18-33, Examination in-chief of Joseph Servedio of AJ Lamba Realty Group Inc.:
Q. Yes, and just to clarify, who is this email from?
A. This is from Mr. Crainic to me on August 16 at 6:03 p.m.
Q. And just briefly to look, what is your email address?
Q. Okay. Can you please read this email?
A. “Hi Joseph, I hope you are well. I have to tell you that we found a house we liked. The asking price was 439,900 and we got it with 430,000. The only way we could get it without getting in a bidding war was, as you know very well, was to get the seller agent to sell our house too. She worked hard convincing the seller for the 430,000 selling price, probably lowering the sale commission as she did with us too.”
(3) Trial transcript page 40, line 23 to page 41, line 12, Examination in-chief of Nuti Crainic, the Appellant’s wife:
“Q. What I believed at that time, yes. And when – on the – when we, he make the offer for us do – we found the house or he found that house?
A. We found the house because we live in the same street and we saw the sign in front of that house and I went first to open house there. I saw the house and after, you know, when is open house you don’t see that much. You don’t make plans and because we live in that area and we love the area you call him to come to show us that house. And he came once. He showed me. No four times, no five times, no six times. He showed me that house two times and that was it. I didn’t see another house with Joseph to show me.
Q. Okay. Did we really want to buy that house that time or he was insisting like, to go to do the document because like, we....”
MR. MCKECHNIE: Objection, Your Honour. She’s already stated that she wasn’t there when these documents were signed so she wouldn’t be able to answer that question. The offer was made with him so she is – she wasn’t there when the offer was signed so she wouldn’t really know that.
MR. CRAINIC: I signed the offer.
[5] On the basis of this evidence the Appellant submits that since the wife signed the Agreement of Purchase and Sale she is 50% owner of the property so her one-half share is not liable to any commission with respect to the Appellant’s agreement with the Respondent on the Buyer Representation Agreement.
[6] The Respondent argues that there was no evidence before the learned trial judge that the wife did in fact sign the Agreement of Purchase and Sale on the second property. The argument now being advanced by the Appellant was never put to the learned trial judge. In any event, there was no evidence that the wife signed the Agreement of Purchase and Sale and as such the learned trial judge did not make any palpable and overriding error on his findings of fact.
REASONS FOR JUDGMENT
[7] In his Reasons for Judgment the learned trial judge set out the following, in part:
“The Court: The parties entered in a buyer representation agreement dated the 11th of May, 2012, wherein the defendant agreed to pay 2.5 per cent commission on any house purchased during the term of the agreement, which was from the 11th of May, 2012, to the 30th of September, 2012.
The defendant purchased a house through another real estate agent on the 2nd of August, 2012. The plaintiff claims for lost commission due to the breach of this agreement in the amount of $10,750.
The defence pleads that he believed he was signing with ReMax, not the plaintiff. He believes he did not realize the term of the agreement, although he admits to signing and that he had an opportunity to review it. The evidence also discloses that the defendant signed a separate document acknowledgment the signing of the terms of the buyer representation agreement.
I accept the evidence of the plaintiff, that the agreement was explained and that the defendant indicated he understood the terms from his previous purchase. The defendant states he thought the term had expired. I do not accept the defendant’s evidence. I find that he knew the terms of the agreement, that he was aware of its currency when he purchased. The emails in August and the timing of the purchase are strong evidence of his state of mind. He admits that he received a reduced price on the purchase and a reduced commission on his sale by using the vendor’s agent.
I find therefore, that the defendant knew and understood the terms of the buyer’s representation agreement, that he knowingly breached the agreement, and is liable for the lost commission in the amount of $2,750 [sic].
Mr. McKechnie: It’s 10,750.
The Court: Ten thousand, seven hundred and fifty.”
[8] The email referred to by the Appellant does not state that the wife signed the Agreement of Purchase and Sale.
[9] The transcript references do not state that the wife signed the Agreement of Purchase and Sale.
[10] On the evidentiary record before him and on the basis of the position taken by the Appellant at trial, the learned trial judge did not make any error. The learned trial judge clearly sets out in his reasons the defence position at trial. As the learned trial judge stated:
The defence pleads that he believed he was signing with ReMax, not the Plaintiff. He believes he did not realize the terms of the agreement, although he admits to signing and that he had an opportunity to review it.
[11] The learned trial judge accepted the evidence of the plaintiff and on the record before him he was entitled to do so. He also found that the defendant knew and understood the terms of the buyer’s representation agreement. Again on the record before him he was entitled to. It was open to the learned trial judge to make the findings of fact he did and in doing so he did not commit palpable and overriding error.
[12] The trial transcript does not disclose that any exhibit was filed at trial confirming that the Appellant’s wife had signed the Agreement of Purchase and Sale. In any event, the Appellant never advanced an argument at trial relating to that issue and it is clear from the learned trial judge’s reasons that such an issue was never in play at the trial.
[13] The appeal is therefore dismissed.
[14] The parties shall file written submissions on costs within 10 days.
Fragomeni J.
Released: June 22, 2016
CITATION: AJ LAMBA REALTY v. CRAINIC, 2016 ONSC 4153
DIVISIONAL COURT FILE NO.: DC-15-40-00
SMALL CLAIMS COURT FILE NO.: SC-13-682-00
DATE: 2016 06 22
ONTARIO
SUPERIOR COURT OF JUSTICE
(SMALL CLAIMS COURT APPEAL)
B E T W E E N:
AJ LAMBA REALTY GROUP INC.
Respondent
– and –
CORNEL CRAINIC
Appellant
REASONS FOR JUDGMENT
Fragomeni J.
Released: June 22, 2016