Court of Appeal for Ontario

Date: 2019-09-30

Docket: C66461

Judges: Juriansz, Benotto and Miller JJ.A.

Between

Apex Results Realty Inc., formerly known as Sutton Group Results Realty Inc.

Plaintiff/Defendant by counterclaim

(Respondent)

and

Sharief H. Zaman, Eminence Living Inc. and Higher Living Development Inc.

Defendants/Plaintiffs by counterclaim

(Appellants)

Counsel

Saba Ahmad as agent for Ivan Marini, for the appellants

Walter R. Wellenreiter, for the respondent

Heard

September 24, 2019

On Appeal

On appeal from the judgment of Justice James R. H. Turnbull of the Superior Court of Justice, dated December 31, 2018.

Reasons for Decision

[1] The motion judge granted summary judgment on the respondent's claim for commissions on the sale of two properties bought by the corporate appellants controlled by the appellant Zaman. The motion judge found that Zaman had executed a buyer representation agreement that provided that the respondent's agent would receive a commission for properties he purchased. The motion judge rejected Zaman's claims that he did not understand the agreement because he suffered from dyslexia, that a different buyer representation agreement governed one property purchased, that in relation to the other there were oral amendments to the agreement that the vendor would pay the commission, and that the respondent failed to inform him of the commissions payable as soon as possible after the sales as required by the agreement. The motion judge granted summary judgment on the respondent's claim for the commissions due under the contract.

[2] On appeal Zaman advances a new argument. He submits that the motion judge failed to conclude that summary judgment was not appropriate in the interests of justice because he counterclaimed for substantial damages based on alleged negligence on the part of the respondent. The motion judge simply said "Counsel did not make any submissions to the court with respect to the disposition of the counterclaim. Hence, I will make no ruling with respect to it". He argues that the motion judge should have concluded summary judgment was inappropriate because the counterclaim is inextricably intertwined with the claim giving rise to the probability of duplication of proceedings and the possibility of inconsistent results.

[3] The motion judge was aware of the counterclaim, but understandably did not discuss it as Zaman did not raise it in response to the motion for summary judgment on the commission. Nor did he raise the allegation of the respondent's negligence. It is evident the motion judge took the view the counterclaim was not inextricably intertwined with the claim. We agree. On our reading of the counterclaim, it is not inextricably intertwined with the claim. Indeed, it is premised on the existence of a valid buyer representation agreement between the parties. When pressed counsel was unable to identify the specific issues that were duplicative. We do not give effect to this argument.

[4] We do not accept Zaman's other arguments. The motion judge's factual error about a date was not material, and the adverse inference the motion judge made because Zaman failed to fulfil an undertaking was permissible.

[5] The appeal is dismissed. The respondent's costs are fixed in the amount of $8,000.00, all-inclusive, as agreed by counsel.

"R.G. Juriansz J.A."

"M.L. Benotto J.A."

"B.W. Miller J.A."