DATE: 20020912
DOCKET: C36373
COURT OF APPEAL FOR ONTARIO
RE: STEVE WONG REAL ESTATE LIMITED (Appellant) - and - STOCKTON & BUSH ACQUISITION CORP. (Respondent)
BEFORE: WEILER, ROSENBERG and FELDMAN JJ.A.
COUNSEL: Joyce Harris, for the appellant Morris Cooper, for the respondent
HEARD: SEPTEMBER 10, 2002
E N D O R S E M E N T
[1] [1] In spite of the excellent submissions made by Ms. Harris on behalf of the appellant, we are not persuaded that the trial judge erred in concluding that there was no agreement between the appellant and the respondent whereby the respondent agreed to pay a commission to the appellant.
[2] [2] From the reasons of the trial judge, it is apparent that he concluded that the three “flips” of the property were all part of one transaction under which the appellant earned a commission of $210,000. At paragraph 34 of his reasons he stated:
The plaintiff well knew that in order for him to earn the $375,000, or as it turned out $210,000, commission, there had to be a completed sale of the subject property which, in the circumstances, required the defendant to complete the purchase of that property.
[3] [3] Based on that finding, as well as the refusal of the defendant to sign an agreement to pay a finder’s fee, it was open for the trial judge to conclude that the defendant had not agreed to pay the plaintiff any further amount for commission to facilitate the transaction.
[1] [4] As that conclusion is sufficient to dispose of the appeal, it is not necessary for the court to comment on the fiduciary duty issue or the definition of “offer” in s. 23(b) of the Real Estate and Business Brokers Act.
[2] [5] On that basis, the appeal is dismissed, with costs to the respondent on a partial indemnity scale. If the costs of the appeal cannot be agreed upon, the respondent shall submit a bill of costs within 7 days with any brief submissions, and the appellant shall provide any responding submissions within 5 days thereafter.
Signed: K. M. Weiler J.A.”
“K. Feldman J.A.”
“Mr. Rosenberg J.A.”