Court File and Parties
DIVISIONAL COURT FILE NO.: 696/25
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: ANDREW CEONGKEY GEEM, Appellant
AND: JU YOUNG LEE and LORETA DIAZ PEREZ, Respondents
BEFORE: Matheson J.
COUNSEL: Self-represented Appellant Aram Simovonian, counsel for the Respondents
HEARD at Toronto: April 27, 2026
Endorsement
Background
1The appellant seeks an extension of time to appeal the decision of Deputy Judge T. Clemenhagen dated March 4, 2024 (the Trial Decision) and has (subject to getting that extension) appealed the Trial Decision and the decision of Deputy Judge K. Quershi dated July 30, 2025, denying a new trial (the Motion Decision).
2The appellant is a real estate agent. The respondents were interested in buying a condominium. The appellant’s claim against them arose from a broker’s Buyer Representation Agreement between them dated January 27, 2019 (the BRA). After what the Deputy Judge found was a termination of the BRA initiated by the respondents, they purchased a property using another agent. The appellant sued them in the Small Claims Court, claiming the commission of about $14,000.
3Both sides were represented at the Small Claims Court trial. Both the appellant and the respondent Lee testified at the trial. The appellant has not provided the transcript of the trial evidence for this appeal but has provided the transcript of the oral reasons for decision.
4As set out in the Trial Decision, the Deputy Judge found that after entering into the BRA, the parties had a falling out. The Deputy Judge found that on Feb. 8, 2019, the respondent Lee phoned the appellant and told him that they did not want to work with him anymore. The Deputy Judge found that the appellant accepted that he was discharged. The Deputy Judge held the BRA was ended, by mutual agreement. The claim was dismissed.
5The appellant did not appeal. However, within days, he brought a motion to the Small Claims Court. His motion was initially under a rule that did not apply. Then, with direction from a Deputy Judge, he was permitted to reconstitute his motion under r. 17.04(5) of the Rules of the Small Claims Court. That rule permits relief for a purely arithmetical error (not relied on here) or because of relevant evidence that was not available at the time of the original trial and could not reasonably have been available at that time.
6On the motion, the appellant submitted that the call never took place, that the phone records submitted by the respondents at trial were forged, and that to terminate there should have been a written cancellation agreement. As set out in the Motion Decision, the Deputy Judge held that the requirement for relief under the above rule had not been satisfied and dismissed the motion. The appellant had not shown that there was new evidence that was not available to him at trial.
7In this appeal, the appellant again raises those arguments. He submits that the Deputy Judge erred in finding that there was a phone call resulting in a mutual agreement to terminate the BRA. He submits that the trial judge was given a forged phone record and erred in not following the Real Estate and Business Broker Act1 and Ontario Real Estate Board procedures.
Standard of Review
8The appellate standard of review applies. As set out in Housen v. Nikolaisen, 2002 SCC 33, the standard of review is correctness for questions of law, palpable and overriding error for questions of fact and palpable and overriding error for questions of mixed fact and law except extricable questions of law, which are reviewed for correctness.
Extension of Time
9On the motion to extend time, the appellant ought to have commenced his appeal within 30 days of the Trial Decision and did not do so. However, I will grant the extension of time. The appellant did attempt to set aside the Trial Decision within that time period, albeit through a different process, and no prejudice has been shown.
Fresh Evidence
10The respondents raise a preliminary objection because the appellant’s court materials do not comply with the Rules of Civil Procedure and there should have been a motion for leave to adduce fresh evidence on this appeal.
11Although the form of the court materials is not strictly in compliance, it is adequate to address the issues.
12While I will overlook the lack of a formal motion for leave to adduce fresh evidence, the appellant seems to be under the impression that he can continue to put forward more and more evidence on this appeal without limitation. This is not permitted. To the extent that the appellant is relying on evidence that was not put forward either at trial or on his motion in the Small Claims Court, he needs permission to do so under the limited scope for fresh evidence on this appeal.
13The proposed evidence relates to the main issue on this appeal – the factual findings about the phone call terminating the BRA. The appellant puts forward his own phone record, some images of text messages, and other proposed evidence, to submit that there was no such call or agreement to terminate the BRA.
14However, both side’s phone records show that there was a phone call. The record put forward by the respondents at trial, and the phone record put forward by the appellant on the subsequent motion, show that they had a phone call around 5PM on the day in question. The times shown for that call differ somewhat. The time on the trial document is hard to read but appears to be 16:55 or 16:56. The record submitted by the appellant on the motion to set aside says 5:10PM and another form of printout from the respondents, which was submitted on the motion to set aside, says 16:55. The documents are from different service providers in different formats.
15The appellant has not shown that these time differences are material, or that the respondents’ trial document is fraudulent.
16All of the proposed fresh evidence was available at the time of the trial. The appellant suggests that he did not have notice that the respondents would rely on phone records at trial. This is incorrect. The records were part of the respondents’ book of documents, submitted well in advance of the trial.
17This issue is similar to the test under r. 17.04(5) of the Rules of the Small Claims Court. That rule permits relief because of relevant evidence that was not available at the time of the original trial and could not reasonably have been available at that time. As set out in the Motion Decision, without error, this evidence was available at the time of trial. I would not grant leave to admit it now but note that, in any event, it would not change the outcome of this appeal.
Analysis
18On this appeal, the appellant attempts to reargue the evidence without showing palpable and overriding error. The appellant had the onus to prove his case in the Small Claims Court. The Deputy Judge heard testimony from both the appellant and the respondent who was on the phone call, as well as having documentary evidence. According to the Trial Decision, there was evidence about the phone call from both witnesses. The appellant has not provided transcripts of the trial evidence.
19Based on the materials before this Court, it was open to the Deputy Judge to make those findings of fact. The appellant has not shown a palpable and overriding error in the Trial Decision.
20With respect to the second ground of appeal, relying on the Act, the appellant has not shown any section of the Act that required that a broker representation agreement be terminated in writing. Nor is that a term of the BRA itself. The Board may provide a form that can be used to cancel an agreement, but that does mean it is mandatory. The appellant has not shown an error on this ground.
Disposition and Costs
21The appeal is therefore dismissed. The appellant shall pay the respondents costs fixed at $2,500, all inclusive.
Matheson J.
Date: April 29, 2026