COURT OF APPEAL FOR ONTARIO
CITATION: First Contact Realty Ltd. (Royal LePage First Contact Realty) v. Prime Real Estate Holdings Corporation, 2016 ONCA 156
DATE: 2016-02-25
DOCKET: C61001
Gillese, Hourigan and Brown JJ.A.
BETWEEN
First Contact Realty Ltd. c.o.b. as Royal LePage First Contact Realty
Plaintiff (Respondent)
and
Prime Real Estate Holdings Corporation
Defendant (Appellant)
Richard Quance, for the appellant
Eric Gionet, for the respondent
Heard: February 22, 2016
On appeal from the judgment of Justice Susan E. Healey of the Superior Court of Justice, dated September 3, 2015, with reasons reported at 2015 ONSC 5511.
ENDORSEMENT
THE APPEAL
[1] The plaintiff real estate brokerage (“Royal LePage”) was granted summary judgment against the defendant corporation (“Prime”) in a judgment dated September 3, 2015 (the “Judgment”). The Judgment orders Prime to pay approximately $100,000 plus HST, interest and costs. That sum represents the amount of real estate commission owing on the purchase of a property in Barrie, Ontario.
[2] Prime appeals.
[3] In its factum, Prime submits that the motion judge erred in finding that:
Royal LePage had not released Prime from its obligations under the Buyer Representation Agreement (“BRA”); and
Royal LePage continued to assist Prime after September 10, 2012.
[4] In making these findings, the motion judge relied, in part, on credibility determinations. Prime contends that such credibility determinations could not be fairly made without a trial. Consequently, it submits, the motion judge also erred in failing to find that there is a genuine issue requiring a trial, in accordance with rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[5] In oral argument, Prime submitted that the motion judge erred in her articulation of the legal principles in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, and stressed that, given the credibility dispute, the “interests of justice” required the motion judge to refer the matter to trial.
BACKGROUND IN BRIEF
[6] Walter Doret is a real estate broker with Royal LePage. Chris Hinn is Prime’s principal.
[7] Doret acted for Hinn on a number of real estate transactions. When Prime became interested in purchasing vacant lands in Barrie, Ontario (the “Property”), Hinn – acting on behalf of Prime – retained Doret and Royal LePage to act on its behalf.
[8] The Property had once housed a Molson Brewery plant but later became home to a substantial commercial marijuana grow-op. A restraint order was placed against the Property pursuant to the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “Restraint Order”). The Restraint Order prevented the owner from dealing with the Property without the written consent of counsel for the Attorney General of Canada. It also caused complications and significant delays in Prime’s purchase of the Property.
[9] During the course of the relationship, the parties executed three BRAs, all of which contained similar terms, apart from the fact that they covered different time frames.
[10] On November 16, 2011, Doret prepared an agreement of purchase and sale on Prime’s behalf, in which Prime offered to purchase the Property for $7,350,000. Due to complications arising from the Restraint Order and the resultant delays, the agreement was amended on 15 separate occasions between November 16, 2011, and July 13, 2012. Doret prepared each of the amendments. Ultimately, on or about September 10, 2012, the agreement was terminated by a mutual release executed by the owner of the Property, Prime and their respective brokerages. Prime was represented by legal counsel at the time.
[11] On October 29, 2012, Prime entered into a second agreement of purchase and sale in respect of the Property. This was within the time frame contemplated by the third and final BRA. The purchase price, the Property and the buyer were identical to those in the first agreement. However, the vendor had changed as Prime was proposing to purchase from First Ontario, who entered into the agreement and proposed to sell the Property under power of sale provisions contained in its charge against the Property.
[12] The second agreement ultimately closed on September 19, 2013, at which time Prime bought the Property for $7,350,000. This generated a real estate commission owing in the amount of just under $92,000. Royal LePage rendered an invoice for the commission but Prime refused to pay it.
[13] Royal LePage then sued for the unpaid commission, taxes, interest and costs. Thereafter, it brought the summary judgment motion which led to the Judgment and this appeal.
[14] Before the motion judge, Prime contended that on September 10, 2012, the parties entered into a verbal agreement to terminate the BRA. The motion judge rejected this contention.
[15] First, the motion judge found that Hinn’s evidence, if accepted, was insufficient to establish the essential elements of an agreement.
[16] Second and in any event, the motion judge found that no such agreement was made. She set out numerous examples of evidence that was inconsistent with the alleged termination of the BRA. She described Doret’s continuing involvement after September 10, 2012. Had the BRA been terminated, it made no sense that he would continue to assist in the purchase. Furthermore, there was no evidence that Hinn or his lawyer suggested that Doret’s inquiries and assistance after September 10, 2012, were unfounded or that he was to have no further involvement. In addition, there was email correspondence that was inconsistent with the suggestion that the BRA had been terminated on the mutual agreement of the parties.
[17] The motion judge also rejected Prime’s contention that Royal LePage had failed to fulfill its obligations under the BRA. In so doing, she rejected, as false, Hinn’s affidavit evidence that Doret and Royal LePage had no further dealings with the Property after September 10, 2012. The motion judge found that Doret assisted in Prime’s purchase of the Property. She found that Doret continued to check in and offer his assistance with the deal, though there was little for him to do given that the matter was a complicated transaction being handled by legal counsel. She found that Doret had worked diligently to prepare, and attempt to keep alive, the first agreement of purchase and sale and that the second such agreement, which eventually took effect, largely “piggy-backed” on those efforts. The motion judge further found that Prime advanced this contention to seek to avoid its obligations under the BRA.
ANALYSIS
[18] As noted above, Prime submits that the motion judge erred in her articulation of the legal principles established in Hryniak.
[19] We do not agree.
[20] At para. 20 of her reasons, the motion judge correctly noted that Hryniak directs that on a motion for summary judgment under rule 20.04, the court should first determine if there is a genuine issue requiring a trial based only on the evidence before it, without using the new fact-finding powers. If there appears to be a genuine issue requiring a trial, the court should then determine if the need for a trial can be avoided by using the new powers under rules 20.04(2.1) and (2.2). The court may, in its discretion, use those powers provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a while.
[21] In the present case, the motion judge stated that she had no difficulty making the necessary findings of fact and that there was no need for a trial to reach a determination on the merits. We see no error in that determination.
[22] The other grounds of appeal rest on an attack of the motion judge’s findings of fact. As counsel for the appellant conceded, those findings attract deference on appellate review.
[23] These fact-based grounds of appeal were raised as issues below. As indicated above, the motion judge gave thorough reasons for rejecting Prime’s contention that the parties had terminated the BRA and that Royal LePage ceased to assist it after September 10, 2012. There is no need to repeat those findings. In our view, the motion judge’s findings are solidly grounded in the evidence. Indeed, on the record, they are virtually inescapable.
[24] Accordingly, there is no basis for appellate intervention.
DISPOSITION
[25] For these reasons, the appeal is dismissed with costs to Royal LePage fixed at $5,000, all inclusive.
“E.E. Gillese J.A.”
“C.W. Hourigan J.A.”
“David Brown J.A.”