DATE: 20020425 DOCKET:C34735
COURT OF APPEAL FOR ONTARIO
O’CONNOR A.C.J.O., GOUDGE AND MACPHERSON JJ.A.
B E T W E E N:
DANIEL HELSBERG
P. E. Manderville for the appellants
Plaintiff (Respondent)
- and -
HILDA ALLISON, KARIN TIMLIN, ROBERT LEWIS, NRS 2000 INC. AND SUDBURY 2000 REALTY INC.
D. P. Kuyek for the respondent Helsberg; J. Virtue for the respondent Allison
Defendants (Appellants)
Heard: April 16, 2002
On appeal from the judgments of Madam Justice Louise L. Gauthier dated June 29, 2000 and September 27, 2000 respectively reported at [2000] O.J. No. 2656 and [2000] O.J. No. 3618.
BY THE COURT:
[1] This case is about the right of a real estate agent to share in a commission lawfully earned by the real estate brokerage at which he worked. There is no doubt, and indeed all parties agree, that the vendor here was obliged to pay the commission to the appellant brokerage because of the listing agreement between the vendor and the brokerage.
[2] This case is not about whether a real estate agent, with no more in hand than an offer to purchase which does not close, can compel the vendor to pay him a commission.
[3] In this case, the appellant brokerage had a listing agreement which did not exclude its right to a commission if the property was purchased by the minority shareholders of the vendor. Those shareholders held the right of first refusal in the event of an offer from a third party. The respondent Helsberg, who worked as an agent at the appellant brokerage, succeeded in eliciting from a third party an offer to purchase the property. The trial judge found that this offer “triggered” the minority shareholders’ offer, using their right of first refusal. As a result, the offer obtained by the respondent Helsberg never closed. Once the offer from the minority shareholders closed, the appellant brokerage received the commission to which the listing agreement entitled it.
[4] The first issue is whether the trial judge was correct in finding that the appellant brokerage breached its Independent Contractor Agreement with the respondent Helsberg when it failed to provide him with any portion of this commission. That agreement governed its relationship with its agents.
[5] The applicable clause in the Independent Contractor Agreement is Clause 5.01. It reads in part as follows:
When the Broker receives any real estate commission because a property has been sold or leased as a result of the Salesperson’s negotiations, the Broker shall divide such commission between listing and selling brokers or salespersons or otherwise in accordance with the custom of the trade at the applicable time. [Emphasis added.]
[6] The trial judge accepted the expert evidence before her that in the circumstances of this transaction, the custom of the trade was that the respondent Helsberg would get 50% of the commission received by the brokerage. This finding was open to her on the evidence. Hence in our view, the trial judge did not err in finding that clause 5.01, as applied to the facts of this case, required the appellant brokerage to pay to the respondent Helsberg 50% of the commission. This ground of appeal therefore fails.
[7] The appellants raise as a second argument that the trial judge should have rendered judgment in favour of the respondent Helsberg against the respondent Allison on the basis of unjust enrichment. Allison was the real estate agent working at the appellant brokerage to whom it paid almost the entire commission.
[8] We disagree with this argument. While the respondent Helsberg pleaded unjust enrichment, he did not pursue that claim at trial or in this court. Only the appellant brokerage is doing so as a defence to its own liability, although it has made no claim over against the respondent Allison. Where the plaintiff has essentially abandoned his claim for unjust enrichment, we agree with the trial judge’s conclusion not to grant relief on this basis.
[9] Finally the appellants and both respondents complain about the decision of the trial judge concerning costs. However, the trial judge carefully considered the various circumstances before her and determined that the appropriate conclusion was that there be no costs to any party. In our opinion she did not err in principle and we would not interfere with the exercise of her discretion in making this order.
[10] In the result the appeal is dismissed. The respondent Helsberg shall have his costs from the appellant brokerage fixed at $5000. There will be no other costs of the appeal.
Released: April 25, 2002 “DO”
“Dennis O’Connor A.C.J.O.”
“S.T. Goudge J.A.”
“J.C. MacPherson J.A.”