COURT FILE AND PARTIES

COURT FILE NO.: 08-CV-42927
DATE: 2012/05/ 31

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 1005139 Ontario Ltd., Plaintiff

AND

Donald Abraham and Re/Max Metro-City Realty Ltd., Defendants

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Craig M. Bater, for the Plaintiff

Hans Engell, for the Defendants

HEARD: April 16, 17, 18, 19, and 20, 2012

JUDGMENT

[ 1 ] The Plaintiff is a family held company that sold its significant real estate holdings in 2007. It is seeking damages from the Defendants, who are the Real Estate agent and the broker, as a result of that sale, and a return of the real estate commission.

[ 2 ] The Defendant Re/Max Metro-City Realty Ltd. has admitted for the purposes of this action that it is vicariously liable for the actions of agent Donald Abraham.

Issues

[ 3 ] There are three central issues to be resolved:

1. Did Donald Abraham breach one or more fiduciary duties to the Plaintiff?

2. Was Donald Abraham entitled to the commission taken on the sale?

3. If the answer to the first question is affirmative, what are the damages?

Facts as Found

[ 4 ] The Khouryati family ran a bakery business in Ottawa called L’Ami Des Gourmets. In 1995 they created the Plaintiff holding company and purchased a commercial property at 2570 Edinburgh Place. The shares in the Plaintiff were held by parents Fahed and Marie Khouryati at a 51 percent 49 percent split respectively. Shortly after the purchase, the bakery moved into the building, such that the Khouryati bakery was renting from the Khouryati holding company. The property at 2570 Edinburgh Place had other rental units as well.

[ 5 ] Soon after the move Fahed Khouryati retired from the bakery business, but Marie Khouryati and two of the now adult children John and Christine stayed involved. From 2003 until December 31, 2004, Donald Abraham was hired by the Plaintiff as the formal property manager for 2570 Edinburgh Place.

[ 6 ] The Plaintiff decided to list the property for sale with Mr. Abraham in 2005 at a price of 1.2 million dollars. Although there were no offers to purchase the property, Mr. Abraham did actively market it at that time.

[ 7 ] In early 2006 Mr. Abraham was directly involved as a dual agent in negotiations for a lease between the Plaintiff and Kurt Storm Ltd. After the negotiations started Mr. Abraham approached the Plaintiff on March 10, 2006 through its president Mr. Khouryati to sign two new listing agreements, which he did. One was for a lease and the other for a sale of 2570 Edinburgh Place with an asking price now of $1.1 million. These agreements were to expire on August 31, 2006. The Listing Agreement for the lease contained a provision for a 5 percent commission. The Listing Agreement for the sale was blank with respect to commission.

[ 8 ] After negotiations spanning at least a month the Plaintiff and Kurt Storm Ltd. executed an Agreement to Lease dated March 30, 2006, that was signed on April 23, 2006. Mr. Abraham took a commission on the lease of $6,750 plus tax.

[ 9 ] The Agreement to Lease contained an Option to Purchase in Schedule ‘C’. It gave the tenant three years within which to exercise this option allowing him to purchase the property for $900,000 plus a guarantee of three years rent. What this guarantee means which will be looked at below.

[ 10 ] When the formal Lease dated June 1, 2006 was prepared by the Plaintiff’s lawyer it incorporated the Option to Purchase but left out the commission clause. So after it was executed Mr. Abraham prepared and Mr. Khouryati signed a Memorandum of Understanding on June 29, 2006, to deal with his commission if the Option to Purchase were exercised.

[ 11 ] After the lease Mr. Abraham did no further active marketing to sell the property, and indeed no further listing agreement was signed. The bakery business, which had been declining since Mr. Khouryati retired in 1996, closed at the end of 2006.

[ 12 ] On November 28, 2007, about a year and a half into the lease, Mr. Abraham called the Khouryati family to invite himself over indicating that he “might have some good news.” He attended the Khouryati home and told them he had received an offer on the property from the current tenant Kurt Storm Ltd. He met with the family around the kitchen table, namely Fahed, Marie, and Christine Khouryati. This was the first time that the family had heard of any offer.

[ 13 ] Mr. Abraham did not show the Khouryatis an Agreement of Purchase and Sale at that time. Given that the first signature on the document by Todd Storm on behalf of Kurt Storm Ltd. is dated the next day, there was some question as to whether there was even an offer in the sense that it had been signed by Mr. Storm. Mr. Abraham says it was signed, Marie and Christine Khouryati never saw it, and Fahed Khouryati and Todd Storm did not testify.

[ 14 ] Mr. Abraham indicated that he explained the offer that day, which led to a somewhat heated meeting. The two issues of concern for the family were the purchase price of $933,250 and the provision of a vendor take-back mortgage for $700,000. Marie Khouryati thought the offer was low compared to the Option to Purchase, and made it very clear in her evidence that she was opposed to any mortgage. For some unknown reason, with a sitting tenant who was not going anywhere and who held a separate Option to Purchase that was still valid for well over a year, there was a 24-hour irrevocability clause in the offer.

[ 15 ] The offer was not dismissed out of hand. Mr. Abraham advised Mr. Khouryati to make an appointment with his lawyer Izzy Farber. Christine Khouryati indicated that she wanted her father to meet with his accountant John Clipsham and with a family friend, Gerry Matlashewski, who is a lawyer and who helped them negotiate the Agreement to Lease in 2006. Mr. Abraham left that evening without leaving any documentation with the family.

[ 16 ] Christine Khouryati made an appointment for her father with the accountant John Clipsham the next day. She called Mr. Abraham and asked him to pick up Mr. Khouryati, who didn’t drive, and take him there, which he did. Marie Khouryati didn’t feel the need to go, although she says she reminded Mr. Abraham again that morning that she was opposed to a mortgage, which he denies. Christine intended to make the meeting although she acknowledged that it was possible she might not as she had a conflicting medical appointment. Mr. Clipsham confirmed that there was a discussion that Christine would be coming, but indicated that plans changed. There was no indication that the meeting was to wait until Christine Khouryati arrived or that it started earlier than planned. The meeting took place and Christine Khouryati did not attend.

[ 17 ] Mr. Abraham indicated that on the drive over to Mr. Clipsham’s he explained to Mr. Khouryati how the price in the offer was arrived at by the purchaser, and also discussed the vendor take-back mortgage in general terms. He did not explain to Mr. Khouryati the risks. He acknowledged at trial that mortgages were not his area of expertise.

[ 18 ] Mr. Clipsham said the meeting lasted about forty minutes, fifteen of which was small-talk. All he gave was tax advice. He was unaware of the Option to Lease and neither Mr. Khouryati nor Mr. Abraham brought it to his attention, so it was not discussed. He assumed Mr. Khouryati had seen a lawyer. After speaking with Mr. Clipsham, Mr. Khouryati signed the Agreement of Purchase and Sale with Mr. Abraham while still at Mr. Clipsham’s office. There was only one small amendment, allowing the Plaintiff ninety days to remove its bakery equipment from the property, which technically resulted in a counter-offer that the purchaser Kurt Storm Limited accepted later that day. There was no counter-offer made by the Plaintiff on the price or on the vendor take-back mortgage, nor any discussion between Mr. Abraham and Mr. Khouryati about such a response. Mr. Abraham knew that Mr. Khouryati had not seen a lawyer, and had not been given any legal advice on the vendor take-back mortgage. He said he assumed the family had decided not to go to a lawyer, but he did not ask.

[ 19 ] When Mr. Khouryati returned home the family was clearly unhappy that an Agreement of Purchase and Sale had been signed on those terms. The Plaintiff later refused to complete the transaction. Negotiations followed between the purchaser’s and vendor’s real estate lawyers that resulted in an increase of the purchase price after the fact by $30,000. There was no evidence about the nature of those negotiations. The deal eventually closed on December 19, 2007.

[ 20 ] Through a number of clerical steps Mr. Abraham took a 5% commission of $46,662.50 plus $2,799.75 G.S.T. for a total of $49,462.25. This sum was deducted from the buyer’s deposit held in trust by the Defendants. His entitlement to that commission is one of the main issues in this case.

[ 21 ] Fahed Khouryati remained the president of the Plaintiff until he resigned in 2010. Mr. Khouryati was 79 years old at the time of the Agreement of Purchase and Sale. He did not testify as he currently lives in Lebanon and suffers from Alzheimer’s disease. There was no cogent evidence at trial to prove that he lacked capacity to contract in November/December of 2007.

Dual Agency

[ 22 ] The Agreed Statement of Facts filed by the parties states: “Abraham was acting as dual agent representing the interests of both the buyer and the seller in this transaction.”

[ 23 ] Although Mr. Abraham had acted as dual agent for the Plaintiff and Kurt Storm Ltd. in April of 2006 regarding the Agreement to Lease, it was still necessary that he explain to the Plaintiff the limited role he was taking. The Agreement of Purchase and Sale was a new transaction, different from the lease negotiations, and over a year and a half later. For example, if Mr. Khouryati was relying on Mr. Abraham to advise him on the price, as might be expected from a non-dual agent, Mr. Khouryati might assume that no mention of a counter-offer meant his agent thought that the price was good. If he was unaware that the agent was a dual agent and could not recommend a counter-offer price, there is a real possibility of a misunderstanding and a missed opportunity to negotiate a better result.

[ 24 ] Regulation 580/05 to the Real Estate and Business Brokers Act , 2002, titled ‘ Code of Ethics ’ deals with this. The brokerage is required in section 10 to inform the seller of the nature of its services. It goes further at section 16 to deal with the specific issue of dual agency:

16. A brokerage shall not represent more than one client in respect of the same trade in real estate unless it has disclosed the following matters to the clients or prospective clients at the earliest possible opportunity:

17. The fact that the brokerage proposes to represent more than one client in respect of the same trade.

18. The differences between the obligations the brokerage would have if it represented only one client in respect of the trade and the obligations the brokerage would have if it represented more than one client in respect of the trade, including any differences relating to disclosure of information or the services that the brokerage would provide.

[ 25 ] Mr. Abraham agreed that he was subject to this Code of Ethics . Between the time when the Agreement of Purchase and Sale was presented and when it was signed, Mr. Abraham was only alone with Mr. Khouryati once, in the car ride to Mr. Clipsham’s office on November 19, 2007. In his examination in-chief Mr. Abraham said that along with some discussion about family during that ride he explained certain aspects of the deal to Mr. Khouryati. He did not mention a discussion about his dual agency role. However, when challenged at the end of his cross-examination Mr. Abraham added, somewhat conveniently, that he also explained dual agency to Mr. Khouryati during this drive. When questioned about his obligation to disclose before, not after, starting to act as a dual agent role, Mr. Abraham said he had “no chance” when he met at the Khouryati home the day before. This is despite claiming that he reviewed the Agreement of Purchase and Sale with Mr. Khouryati at that time. Mr. Abraham was in fact already a dual agent when he presented the offer to the Khouryatis on November 18, 2007, having already received instructions from the purchaser Todd Storm.

[ 26 ] There is a ‘Multiple Representation’ clause in the Agreement of Purchase and Sale. However, Mr. Abraham did not show or leave a copy of the Agreement of Purchase and Sale with the Khouryati family so there is no evidence that Mr. Khouryati would even have seen it until he was actually signing the agreement. He never received legal advice with respect to it.

[ 27 ] The Code of Ethics addresses conflicting evidence about disclosure by requiring that it be done in all cases in writing in advance:

17. If a registrant represents or provides services to more than one buyer or seller in respect of the same trade in real estate, the registrant shall, in writing, at the earliest opportunity and before any offer is made, inform all buyers and sellers involved in that trade of the nature of the registrant’s relationship to each buyer and seller.

[ 28 ] Mr. Abraham admits that he did not comply with this section. He did not at the outset inform Mr. Khouryati in writing the nature of dual agency or how it affected their relationship.

Issue 1 – Did Donald Abraham breach one or more fiduciary duty to the Plaintiff?

[ 29 ] In Hodgkinson v. Simms , 1994 70 (SCC) , [1994] 3 S.C.R. 377, La Forest J. for the majority of the Court at para. 35 said: “The existence of a fiduciary duty in a given case will depend upon the reasonable expectations of the parties, and these in turn depend upon factors such as trust, confidence, complexity of subject matter, and community or industry standards.” At paragraph 42 he went on to say: “Indeed, nobody would argue against the endorsement of fiduciary duties in policing the advisory aspect of solicitor-client relationships … Similar rules apply in the fields of real estate and insurance counseling …” Many cases assume without analysis that the agent/principal relationship in a real estate context is a fiduciary one, for example Raso v. Dionigi , 1993 8664 (ON CA) , [1993] O.J. No. 670 (Ont.C.A.), and Guttman v. Vaillancourt , [1996] O.J. No. 2428 (Gen.Div.) .

[ 30 ] I find that a fiduciary relationship existed between Mr. Abraham and the Plaintiff. Mr. Abraham held himself out as an expert in respect of the purchase, sale and leasing of commercial real estate property. He was very clear in his evidence that he had established a relationship of trust with the family years before the events in question. This particular real estate transaction was a complex matter beyond the independent expertise of the principals of the Plaintiff company. As to the industry standards, each party called an expert to assist the Court regarding the extent of Mr. Abraham’s duties in the context of this particular transaction.

Advice re Counter-Offer

[ 31 ] The Plaintiff’s expert was adamant that Mr. Abraham failed in his duty to advise the Plaintiff to make a counter-offer. The Defendants’ expert, while indicating that in “most cases” a first offer should be countered, felt that in this case that was not critical as the parties knew each other and had previously come to an agreed price in the Option to Lease.

[ 32 ] While the Option to Purchase was the product of extensive negotiations a year and a half earlier, it was not an ‘agreed price’ for the purpose of future dealings. It was an option for the benefit of the tenant. Some assumptions used to arrive at that price were in fact wrong, or at least wrong by November of 2007. For example, Mr. Abraham said he discounted the price in the Option to Purchase for things like repairs that he felt needed to be done. Yet those repairs had in fact been completed.

[ 33 ] Mr. Abraham assumed the price was fair and did not see any need for the Plaintiff to try to obtain a better deal. As such he did not suggest or recommend that Mr. Khouryati consider a counter-offer.

[ 34 ] I find that Mr. Abraham had a duty to at least recommend to Mr. Khouryati that he consider the possibility of making a counter offer. By not doing so he imposed on the Plaintiff his view of the fairness of the transaction. The Plaintiff lost an opportunity to negotiate a better price. A higher price was in fact obtained after the Agreement of Purchase and Sale was signed.

Disclosure

[ 35 ] Another aspect of the fiduciary duty in this context is that both experts agreed that every agent has a duty to bring to the attention of the client important factual matters that would be relevant to the client in assessing the offer. Per the Defendants’ expert, this is a positive duty and the agent has to be proactive in fulfilling it. This is also established in the case law (see Raso v. Dionigi , supra ).

[ 36 ] Applying the duty to this case, both experts agreed that during the meeting with the accountant Mr. Abraham should have made sure that the accountant had in hand the Lease containing the Option to Purchase so that it could be reviewed in comparison to the offer. Mr. Abraham failed in this duty. He suggested that he simply did not get a chance to raise it. The Court accepts Mr. Clipsham’s evidence to the contrary that Mr. Abraham did much of the talking at the meeting. Mr. Clipsham added that if he had been made aware of the Option to Purchase he would have reviewed it and in all likelihood have indicated to Mr. Khouryati that it was better than the offer on the table.

Legal Advice

[ 37 ] Both experts were very clear that in a dual agency role the agent has a duty to ensure that the client is strongly encouraged to obtain legal advice before entering into an agreement. The strongest indication came from the Defendants’ own expert who mentioned the need for legal advice at least six times in his evidence, and said more than once that he would have made sure a lawyer was involved for the Plaintiff.

[ 38 ] Mr. Abraham did not meet this duty. His evidence was that he only suggested legal counsel once, at the Khouryati residence on the evening of November 28, 2007. That was in the context of a meeting where he thought there was turmoil and misunderstandings. He maintained, however, that because the family chose to have Mr. Khouryati see the accountant the next day he simply ‘assumed’ that they had decided to forgo seeing a lawyer. There is no evidence of him recommending or ever mentioning the advisability of obtaining legal advice again, which is troubling given the following context.

[ 39 ] During the drive over to the accountant’s office on November 19, 2007, Mr. Abraham attempted to provide some advice to Mr. Khouryati about the value of the vendor take-back mortgage contained in the offer. He told Mr. Khouryati that the offered interest rate was a “good rate”. However, Mr. Abraham conceded that he did not have the qualifications to advise Mr. Khouryati on the mortgage as it was not his area of expertise, and acknowledged that he did not explain the risks. Indeed, it was clear in cross-examination that Mr. Abraham still does not have a full appreciation the complexities of such a financing arrangement, and at one point he even commented that it was up to the lawyer to explain these to the client. Mr. Abraham being present for the meeting with the accountant had to be aware not only that Mr. Khouryati had not received any legal advice about the transaction, but also specifically that he had signed before speaking to anyone who could explain the vendor take-back mortgage.

[ 40 ] At the meeting on November 18, 2007, Marie Khouryati, a very significant shareholder, was opposed to the idea of a vendor take-back mortgage. The daughter Christine Khouryati’s evidence was that she said at the meeting that the plan was for her father to meet with both the accountant Mr. Clipsham and then later on in the weekend with Mr. Matlashewski, her lawyer/friend. Yet Mr. Abraham still saw Mr. Khouryati sign without questioning to him about whether he was resolved not to seek any legal advice.

Summary re Fiduciary Duties

[ 41 ] I therefore find that Mr. Abraham breached several fiduciary duties to the Plaintiff under the headings set out above. The overall impression was that Mr. Abraham hurried through this transaction. He presented the offer orally one evening, catching the Khouryati family completely by surprise as they were not expecting it. Mr. Khouryati signed the Agreement of Purchase and Sale with him the next day with incomplete tax advice because of a lack of disclosure, without any discussion about negotiating the price, and without any legal advice. The agreement was signed for the price offered which, as subsequent negotiations suggest, was at least $30,000 too low.

Issue 2 – Is Donald Abraham entitled to the commission he took on the sale?

[ 42 ] As noted above the tenant/purchaser had paid a $50,000 deposit in trust to the Defendants. Following the eventual closing, by a series of administrative actions, the Defendants deducted what they thought was the commission they were entitled to from that sum.

[ 43 ] One of the ironies in this case is that Mr. Abraham in hurrying through this deal failed to secure for himself a listing agreement or anything in writing that entitled him to a commission. The parties agreed before trial and I specifically find that the Agreement of Purchase and Sale was not an exercise of the Option to Purchase, which did contain a commission clause. The bottom line is that Mr. Abraham had no written contractual entitlement to the commission that he took.

[ 44 ] There was no evidence of any oral agreement between Mr. Abrahams and Mr. Khouryati regarding a commission. Even if there was the Code of Ethics and the Statute of Frauds , R.S.O. 1990, Chapter S.19, section 4, would preclude Mr. Abraham from relying on it.

[ 45 ] The Defendants argue that as Mr. Abraham brought the parties together and there was a successfully completed sale, the commission should simply follow based on ‘services rendered.’ After all, had the Option to Purchase been exercised Mr. Abraham would have been entitled to the commission. But the Option to Purchase was not exercised. Given the findings of his breach of his duties and the fact that the agreement had to be re-negotiated and further consideration paid, a claim for a commission along these lines must fail. This is not a case as in C.B. Ellis Agencies Ltd. v. Stony Ridge Farms Ltd ., [1979] A.J. No. 129 (Alta.C.A.) , where it was found to be against conscience and inequitable to deny retention of the commission.

[ 46 ] The Plaintiff, on the other hand, has cited a number of cases where in the face of the breach of a fiduciary duty the real estate agent was held not entitled to commission: Ocean Realty Ltd. v. A&M Holdings Ltd. et al ., [1987] B.C.J. No. 593 (B.C.C.A.) ; Raso v. Dionigi , supra ; and Gutman v. Vaillancourt, supra . While I find that Mr. Abraham had no legal entitlement to the commission in contract, if I am wrong I also find that the commission must be returned based on the equitable principles cited in those cases.

Issue 3 – Damages

[ 47 ] The Plaintiff has suggested that the measure of damages in this case should be the difference between the value of the Option to Purchase and the actual price obtained. The argument is that because of the breach of the fiduciary duties the Plaintiff lost the opportunity to obtain the better price based on the Option to Purchase.

[ 48 ] Was the price in the Option to Purchase a better one? The Plaintiff argued that the “three years rent” clause required that a full three years be added to the $900,000 purchase price regardless of whether the option would have been exercised in the first year or the last year of the lease. I find this hard to accept. The clause itself reads as follows:

The tenant hereby agrees that should he exercise the option to purchase at anytime during the first three (3) years he shall still guarantee the payment of three (3) full years rent to the landlord even in the event he should decide to exercise the option to purchase in advance.

[ 49 ] My interpretation of this clause, and particularly the word “still,” is that three years’ rent from the start of the lease was guaranteed, not that a further three years became payable upon the exercise of the option. If the option was to include a set amount, namely a full three years, it would have been easier to simply cite that number. This was not done because the rent was going to be determined based on how far the parties were into the lease.

[ 50 ] The Plaintiff suggested that the ‘rent’ in the Option to Purchase was the full rent, namely the base rent plus what is called the ‘additional rent’. The Option to Lease was first set out in the executed Agreement to Lease and then incorporated into the formal Lease. The Lease defines “rent” generally to include both base rent and additional rent. ‘Additional rent’ is payment for the tenant’s estimated share for expenses such as snowplowing and taxes for each year, which would get adjusted either way after the year if the estimate was off. It is not a set amount, and it is not logically connected to the Option to Purchase, as after the property sells the landlord/Plaintiff would no longer have these expenses. The Plaintiff here is attempting to take advantage of some rather poor drafting when the Agreement to Lease was incorporated into the formal Lease. Neither signatory to the Agreement to Lease or the formal Lease testified. While Mr. Abraham‘s credibility suffered significantly at various times during his evidence, he maintained that the ‘three months rent’ in the Option to Purchase was intended by all to be the base rent, and for the reasons noted I accept this as correct.

[ 51 ] The Plaintiff’s third argument regarding the rent was that the Option to Purchase was not just referring to the rent to be paid by the tenant Kurt Storm Ltd., but rather the rent for the whole commercial building which contained other units. I do not accept this. In both the Agreement to Lease and the formal Lease itself references to rent were to the rent as between the tenant Kurt Storm Ltd. and the Plaintiff as landlord, and not the rent from the other tenants.

[ 52 ] Had the Option to Purchase been exercised at the time of the Agreement of Purchase and Sale the price under the former would have been $900,000 plus the base rent for the remainder of the three year term, namely nineteen months at $3,750 for a total of $971,250. The amount the tenant actually paid for the property, albeit with a vendor take-back mortgage that was not contemplated in the Option to Lease, was $963,250. The difference between the two is $8,000.

[ 53 ] I have gone through these calculations to illustrate how the Plaintiff has not established a case of improvident sale based on the previous dealings. Having said all that, I do not find in any event that the Option to Purchase is the appropriate measure of damages in this case. The reality is that the option was never exercised. There is no way of knowing whether it ever would have been exercised by the tenant Kurt Storm Ltd., or whether there was indeed a missed opportunity here for the Plaintiff.

[ 54 ] The Plaintiff has suggested that the MPAC assessment on the property could be another possible measure of damages. The evidence was that municipal governments in Ontario obtain property value assessments from a corporation called the Municipal Property Assessments Corporation on which to base their tax levies. Both experts were of the view that the MPAC assessment was one of the many factors a Commercial Real Estate agent should consider in determining what price to recommend to a seller. However, it was not established in evidence that the property was actually worth the MPAC assessed value. The MPAC assessment was not admitted as opinion evidence. In that sense this case is not unlike the decision in 1066360 Ontario Limited v. Ravells , [2010] O.J. No. 2662 (S.C.J.) , where on a summary judgment motion the Court commented that the MPAC assessment was not evidence of what the property was worth on the real estate market at a particular time.

[ 55 ] This leaves the Court with no evidence as to what the property was worth when it was sold to Kurt Storm Ltd. for $963,000 in 2007. In the context of the Plaintiff refusing to close the transaction, negotiating an increase in the sale price, and then completing the sale, I am unable to quantify any damages resulting from an improvident sale.

[ 56 ] I was fully prepared to grant the Plaintiff damages being the additional legal fees it paid to its real estate lawyer to negotiate the $30,000 increase in the sale price. However, the account from the lawyer does not break down how much of his fee was for the sale itself and how much was for this additional work. With no evidence upon which to base it I cannot arbitrarily arrive at a number.

Decision

[ 57 ] The Plaintiff shall be entitled from both defendants to the return of the $49,462.25 being the amount taken as Real Estate commission plus GST and with prejudgment interest calculated from December 19, 2007.

Costs

[ 58 ] If the parties cannot agree on costs, a date can be set for argument regarding the same.

Mr. Justice Timothy Minnema

Date: May 31, 2012

COURT FILE NO.: 08-CV-42927

DATE: 2012/05/31

ONTARIO SUPERIOR COURT OF JUSTICE RE: 1005139 Ontario Ltd., Plaintiff AND Donald Abraham and Re/Max Metro-City Realty Ltd., Defendants BEFORE: Mr. Justice Timothy Minnema COUNSEL: Craig M. Bater, for the Plaintiff Hans Engell, for the Defendants ENDORSEMENT Mr. Justice Timothy Minnema

Released: May 31, 2012