Court File and Parties

CITATION: Tran v. Brickman, 2025 ONSC 4341

DIVISIONAL COURT FILE NO.: 319/24

DATE: 2025-07-23

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Helen Tran, Appellant -and- Katherine Brickman and Brett Miller, Respondents

BEFORE: FL Myers J. (Orally)

COUNSEL: Aidan Birman, for the Appellant Katherine Brickman & Brett Miller, self-represented Respondents

HEARD at Toronto: September 16, 2024

Oral Reasons for Decision Dictated in Court on September 16, 2024

[1] Ms. Tran appeals the decision, dated April 29, 2024, of Deputy Judge McNeely, in the Toronto Small Claims Court, holding her liable for $28,600 in damages for negligent misrepresentation.

[2] Ms. Tran was selling her house in 2020. The respondents were the ultimate purchasers. In February, 2020, Ms. Tran was unsuccessful in her efforts to sell the property for $1.5 million. The respondents bid $1.25 million in that process.

[3] Ms. Tran delisted the house because she could not get her price. She then relisted the house in March of 2020 at $1.25 million. She undervalued the house hoping to create an auction. She was an experienced real estate agent at the time.

[4] Early on, the respondents’ agent told Ms. Tran that they were willing to go to $1.3 million and they were straining at the top of their budget to get there. Ms. Tran’s evidence was that she required $1.305 million as a hard minimum.

[5] After hearing from the respondents, Ms. Tran told them that she had two other registered offers. The trial judge held that that was not a truthful statement. Ms. Tran submits on this appeal that the Judge erred in failing to find that other offer from the agent Ms. Yang and one other were “registered offers” and the Judge instead erroneously classified them as “phantom offers.”

[6] The Trial Judge found that there were no offers received in writing by Ms. Tran and therefore no registered offers received. Moreover, I note that in the text message at 4:29 on the day of the offers, Ms. Tran told the respondents’ agent that she had an offer that she could accept at 11:00 p.m. that night unless the respondents increased their bid. That statement was not true as well.

[7] Relying on Ms. Trans’ misrepresentations, the purchasers bid $1.305 to obtain the property. Ms. Tran accepted their offer.

[8] There was no written offer capable of acceptance received from Ms. Yang. No offer was even capable of presentation received from Ms. Yang because her offer was not in writing as required by s. 35.1 of the Real Estate Business Brokers’ Act, 2002, the Statute of Frauds, and the common law. It may well be that it is industry standard for agents to exchange informal verbal offers in advance of the formal presentation. None of that is relevant to whether the respondents were induced by misrepresentations in this case.

[9] To register an offer, there must be a presentable offer. I agree with the Trial Judge that the existence of oral back and forth was not a registered offer under RECO rules or as a matter of law.

[10] I expressly disagree with Mr. Birman’s submission that a registered offer simply means that there are interested parties. Oral puffery is not a registered offer or an offer capable of acceptance or presentation as represented by Ms. Tran.

[11] In addition, Ms. Tran challenges the Trial Judge’s finding that she was motivated to sell and would likely have decreased her asking price below $1.305 million had a negotiation continued. This is a finding of fact which Mr. Birman correctly says is appealable only if the Trial Judge made a palpable and overriding error.

[12] A palpable and overriding error is an error of fact where the Judge has either made a finding on virtually no evidence or the Judge has missed obvious evidence, and the finding is of overriding importance. In this case, the evidence was that Ms. Tran had listed the property at $3.5 million and terminated the listing when she did not receive desired price. But this was not the first listing. This time she induced an auction by undervaluing the asking price.

[13] When the respondents decreased to $1.25 million and Ms. Tran said orally that she wanted $1.305 million, she showed a willingness to move from her prior fixed minimum of $1.35 million. Moreover, Ms. Tran engaged throughout the day with back and forth talk with the respondents’ agent and extensively with others, playing each off against the other. As I noted previously, at 4:29 p.m. she threatened to accept Ms. Yang’s current number which was not then $3.05 million. So, it was possible that she would have taken something under her fixed minimum at that time.

[14] I cannot find that there is a palpable and overriding error made by the Judge in this case. It was open to the Judge to find that given the different circumstances at play in the final auction process, Ms. Tran was indeed motivated to take less than what she was saying orally was her minimum.

[15] Damages are an issue in this case as well. The respondents initially offered $1.25 million and Ms Tran said she wanted $1.305 million. That is a swing of $55,000. But the whole effort to bridge that gap then became infused by Ms. Tran’s misrepresentations. The Trial Judge discussed the loss of chance or loss of opportunity doctrine and that is the correct doctrine to apply in this case in my view.

[16] It is clear in the case law that it is an error of law for a judge to simply split the difference between the parties’ positions. There has to be a principled basis on which to arrive at a damages number.

[17] Here the Judge did not accept Ms. Tran’s hard minimum of $1.305 million largely because he rejected her credibility as a witness. This finding was open to him after his finding that she made misrepresentations. Ms. Tran says there should only be $5,000 in damages based on the difference between her $1.305 million and the offer by respondents’ agent of $1.3 million at the beginning of the day. I agree with Mr. Birman that that was puffery. Had the misrepresentations not been made, there should have been a fair back and forth, not infused by unlawful conduct. If the respondents were the only game in town and Ms. Tran was motivated as found by the Judge, then a finding of $28,600 or the midpoint between bid and ask is completely reasonable. The Trial Judge assessed her view of the likely outcome given the parties’ proven positions.

[18] I am mindful specifically of s. 25 of the Courts of Justice Act, which provides that the Small Claims Court is supposed to make orders that are just and agreeable to good conscience. In my view, that is precisely what the Trial Judge did in this case.

Costs

[19] The costs of a proceeding are at the discretion of the judge under s. 131 of the Courts of Justice Act. I am guided by a number of factors that are set out in Rule 57.01. I am also required to take into account proportionality and ensure that the amount of costs being ordered does not surprise the paying party to an extent that it would be an impediment to access to justice. Moreover, in this case, the respondents are self-represented. Under the Court of Appeal’s caselaw they are not entitled to legal fees or costs in relation to time spent unless they can show that they gave up remunerative work in order to spend time on legal work for themselves.

[20] Here, the respondents seek $3,000 as a disbursement for a professionally prepared factum and they seek $1,000 for their time. In my view, I am not satisfied that the respondents are entitled to anything for their time, but I see no reason why they should not have the reimbursement for the disbursement for their factum which was helpfully drafted by someone on their behalf. Accordingly, costs are payable by the appellant to the respondents in the amount of $3,000.

FL Myers J.

Date: July 23, 2025