Court of Appeal for Ontario

Hammerschmidt v. Capannelli Construction Limited

Date: 2003-02-14

Counsel: Peter H. Griffin and Eleni Maroudas (Lenczner, Slaght, Royce, Smith, Griffin), for the plaintiff/appellant; None disclosed for the defendant/respondent.

File: (C36742)

Reasons for Decision

[1] By the Court: The trial judge found as a fact that the principal of BVI "wanted no part of [the appellant's] earnings however derived and whatever called". There was no evidence of any other agreement between the appellant and BVI and certainly no agreement that the split would be 35-65. BVI continued to be bound by the agreement made by its principal even after the sale to the new shareholder. The fundamental error by the trial judge was in finding that the fact that the new shareholder was not party to any waiver of commissions had any legal significance. That holding fails to take into account the distinction between the corporation and its shareholders.

[2] Whether or not s. 30 of the Real Estate and Business Brokers Act gives BVI a civil remedy it certainly does not dictate that the broker is entitled to take a % of the commissions when it has agreed not to.

[3] Accordingly, the appeal is allowed and the judgment of Hawkins, J., is set aside. We are satisfied that this issue was pleaded. The appellant is entitled to her costs of the trial and the appeal. The costs of the trial are to be assessed. The costs of the appeal on a partial indemnity basis are fixed at $15,000 inclusive of disbursements and GST.

Appeal allowed.