Court File and Parties

Court of Appeal for Ontario Date: 20230316 Docket: C70396

Fairburn A.C.J.O., Brown and Sossin JJ.A.

Between

Re/Max Realty Specialists Inc. Plaintiff (Respondent)

And

2452303 Ontario Inc., Sandeep Jhutty aka Steve Jhutty and Harjinder Kaur Jhutty Defendants (Appellants)

Counsel: Daniel F. Chitiz, for the appellants Ben Hanuka, for the respondent

Heard and released orally: March 14, 2023

On appeal from the judgment of Justice M.J. Lucille Shaw of the Superior Court of Justice, dated February 2, 2022, with reasons reported at 2022 ONSC 776.

Reasons for Decision

[1] The appellants, 2452303 Ontario Inc. (“245”), Sandeep Jhutty, and Harjinder Jhutty, appeal the February 2, 2022 judgment in which the trial judge required them to pay the respondent broker, Re/Max Realty Specialists Inc., a commission on a real estate transaction, together with interest and costs. Pursuant to an earlier consent order made by Ricchetti J., the only issue for trial was whether Sandeep Jhutty, on behalf of 245, had initialed the acknowledgement on the Buyer Representation Agreement that the term of exclusive representation exceeded six months. The trial judge held that he had.

[2] The appellants advance two arguments on appeal.

Burden of proof

[3] First, they submit the trial judge reversed the onus of proof and failed to require the respondent to prove, on a balance of probabilities, that Sandeep Jhutty had initialed the acknowledgement box. We see no merit to this submission.

[4] Throughout her reasons the trial judge stated that the respondents bore the burden of establishing on a balance of probabilities that Mr. Jhutty signed the questioned initial: Reasons, at paras. 12, 127, 176, 177, 232 and 234. The appellants acknowledge the trial judge did so.

[5] In her review of the evidence of Messrs. Datta and Jhutty, the trial judge explained why, on the totality of their evidence, she was unable to conclude that Mr. Datta’s evidence on its own discharged the respondent’s burden of proof: at para. 117. She went on to consider the opinion evidence given by the two expert witnesses. The trial judge explained, in detail, why she preferred the opinion evidence of Ms. Ibrahim, the handwriting expert called by the respondent. Given that Ms. Ibrahim’s opinion was that there was some evidence that Mr. Jhutty wrote the questioned initial, the trial judge concluded that that opinion evidence, on its own, would be insufficient for the plaintiff to discharge its onus.

[6] The trial judge then considered the totality of the evidence. She concluded that when the evidence was taken as a whole, she was satisfied the respondent had discharged its burden to prove that Mr. Jhutty signed the questioned initial.

[7] The appellants contend this was an error. They submit that having found neither Mr. Datta’s evidence on its own nor Ms. Ibrahim’s evidence on its own established, on a balance of probabilities, that Mr. Jhutty wrote the questioned initial, it was not open to the trial judge to conclude that taken together such evidence did.

[8] We disagree. It is well-established that the standard of proof applies only to the trier of fact’s final evaluation of liability on an issue and is not to be applied piecemeal to individual items or categories of evidence: see R. v. Ménard, [1998] 2 S.C.R. 109, at para. 23. The trial judge’s reasons clearly disclose that when she looked at the totality of the evidence, she was satisfied that the respondent had demonstrated, on a balance of probabilities, that Mr. Jhutty wrote the questioned initial, which was the only issue in dispute at the trial. She committed no error in so concluding.

Joint and several liability of the individual appellants

[9] The appellants further submit the trial judge erred by finding the individual appellants jointly and severally liable with 245 without providing any reasons. We see no error. Her conclusion was consistent with the consent directions for trial given by Ricchetti J., which stated:

On consent, both motion/cross motion withdrawn w/o costs. Parties agree that sole issue is whether the Defendant’s initial on first page are forgery or not. If forgery – action dismissed. If not forgery judgment for plaintiff. Damages agreed to 2% of $12,500,000.

[10] In its statement of claim, the respondent sought judgment against all three defendants and specifically pleaded that the corporate veil should be pierced. It was against that background that Ricchetti J. made the consent order. The order is clear: if, at trial, it is found that the questioned initial was not a forgery, judgment would go in favour of the plaintiff, i.e. against the defendants. The trial judge’s disposition of the proceeding followed the consent order of Ricchetti J. There is no evidence in the record before us that the issue of whether that consent order excluded any liability on the part of the individual appellants was raised at trial. Accordingly, we see no error by the trial judge in granting judgment against all the defendants.

[11] The appeal is dismissed.

[12] Pursuant to the agreement of the parties, the appellants shall pay the respondent its costs of the appeal fixed in the amount of $10,000, inclusive of disbursements and applicable taxes.

Fairburn A.C.J.O.

David Brown J.A.

L. Sossin J.A.