Court of Appeal for Ontario

Date: 2021-10-12 Docket: C68157

Before: Hourigan, Huscroft and Coroza JJ.A.

Between: RE/MAX Realtron Realty Inc. Plaintiff (Appellant)

And: 2458313 Ontario Inc., 2524991 Ontario Corporation, Qingxin Shao also known as Newry Shao and Zoubo Gu also known as Steven Gu Defendants (Respondents)

Counsel: Paul Starkman and Calvin Zhang, for the appellant Jordan Goldblatt and Victoria Wicks, for the respondents

Heard: October 8, 2021 by video conference

On appeal from the judgment of Justice Edward M. Morgan of the Superior Court of Justice, dated January 29, 2020.

Reasons for Decision

[1] The appellant’s claim for commission on the sale of a Toronto property was dismissed following a mini-trial, which was ordered in the context of the respondents’ motion for summary judgment. The trial judge determined that a numbered company, 2458313 Ontario Inc. (“245”), whose purchase of the property was terminated, and the numbered company that subsequently purchased the property, 2524991 Ontario Corporation (“252”), were separate corporate entities with overlapping but distinct interests and people. The trial judge found, further, that even if the corporate veil were pierced as the appellant requested, it would do no good because the people behind the two corporations were different. They were therefore not responsible for each other’s contractual obligations and the holdover clause in the purchase and sale agreement with 245 did not apply.

[2] The appellant raises several issues on appeal that, taken as a whole, essentially invite this court to retry the case. That is not our role.

[3] The appellant has not established that the trial judge made a palpable and overriding error that would justify this court’s intervention. The trial judge found that 245 did not include several people involved in 252. Those people contributed half of the funds for the acquisition of the property by 252, had a majority of the corporate officers, owned 50% of the shares, and negotiated the second agreement of purchase and sale on behalf of 252. These findings were open to the trial judge on the record that was before him. The trial judge went on to apply the test set out by this court in Yaiguaje v. Chevron Corp., 2018 ONCA 472, leave to appeal refused, [2018] S.C.C.A. No. 255, and found that the criteria for piercing the corporate veil were not met. 252 was not a mere façade for 245, nor was either company nothing more than the authorized agent of its members. These findings reveal no error and are entitled to deference.

[4] As to the causes of action pleaded by the appellant, the trial judge found that 245’s intention in terminating its agreement of purchase and sale was not to save commission. Instead, several individuals who were going to invest in the purchase were concerned by the state of the building and were simply not satisfied with the deal, so it did not proceed. The appellant clearly knew of this, as its agent had participated in group chats about their concerns. A different group made a different offer using its own real estate agent. In the absence of evidence of underlying wrongdoing or unlawful intent, the various causes of action advanced by the appellant necessarily failed. We see no error in the trial judge’s analysis.

[5] The motion judge awarded the respondents $143,931.31 in costs. He took into account that the respondents had made two offers to settle and had been entirely successful. He found that the appellant’s case “completely missed the mark” and that both the trial and the summary judgment motion could have been avoided had the offers to settle been accepted. Thus, the motion judge awarded partial indemnity costs up to the date of the second offer and substantial indemnity costs thereafter.

[6] The costs award is indeed large, but the appellant has not established that the motion judge made an error in principle or that the quantum of costs is unreasonable in the circumstances, which include the appellant’s rejection of two offers to settle. As the trial judge noted, given the appellant’s knowledge of what had occurred, it is not clear why it was necessary for this case to be tried.

[7] Accordingly, the appeal is dismissed. Leave to appeal costs is denied.

[8] The respondent is entitled to costs in the agreed amount of $20,000, all inclusive.

“C.W. Hourigan J.A.”

“Grant Huscroft J.A.”

“S. Coroza J.A.”