ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: SC-11-10715-00
DATE: 2012-12-06
BETWEEN:
Sutton Group Innovative Reality Inc. Plaintiff – and – Sandra Turner Defendant
G. Falletta, Student at Law for the Plaintiff
B. Chudyk, Paralegal for the Defendant
HEARD: August 30, 2012
THE HONOURABLE MR. JUSTICE C.S. GLITHERO
reasons for judgment
[ 1 ] This trial commenced on August 30, 2012 at Hamilton. After all the evidence and all submissions had been completed, the deputy judge retired to consider her decision and during a review of the file realized that she had conducted a judicial pre-trial of this matter previously. She declared a mistrial.
[ 2 ] As the trial had been completed, but for judgment, the parties did not wish to start again with a new trial and accordingly consented to a Superior Court judge giving a judgment based on the transcript evidence, together with any viva voce evidence the judge felt necessary to hear.
[ 3 ] I have read the transcript and I am satisfied that a decision can be reached without hearing any evidence viva voce. The transcript reveals that while the parties disagree as to the appropriate result, it does not reveal any material credibility issues that would require me to hear the witnesses in person. I am aware from the transcript that evidence was received at trial which was hearsay if relied on for the truth of the contents. This related to comments attributed to Mr. and Mrs. Beattie, the eventual buyers, who were not called to testify. The remarks attributed to them where admissible for the purpose of explaining why Mr. Groleau and the defendant in some of the ways they did.
[ 4 ] The plaintiff seeks to recover the sum of $3356.10 as real estate commission owing on the sale of the defendant’s home.
[ 5 ] Joseph Groleau is a sales representative with the plaintiff corporate realtor. He noticed a listing of the defendant’s property on an M.L.S. system, thought it might be of interest to John and Erica Beattie, friends or clients of his, and he forwarded the listing to them. That listing document showed that it was listed for sale at $299,000.00, and indicated that the seller was offering a 1% commission. The Beatties did not respond to Mr. Groleau at the time.
[ 6 ] The Beatties saw the house, as a result of observing an “Open House” sign, and went in and viewed the house. Thereafter they called Mr. Groleau, indicated their interest, and told him they wanted to do an offer. Mr. Groleau met with the Beatties and drafted an offer to purchase and sent it to the defendant. It offered to purchase the property for $295,000.00 and contained a 2.5% commission rate. That offer was sent by email to the defendant.
[ 7 ] Ms. Turner had originally utilized the services of “Property Guys” and through them the property was put on the M.L.S. listing system. Ms. Turner took the offer received from the Beatties as drafted by Mr. Groleau to her lawyer, who advised that it was unnecessary for her to incur the cost of a commission and that she could deal directly with the Beatties.
[ 8 ] According to Mr. Groleau he and the defendant had a discussion in which she agreed to pay him a commission of 2% if he produced an offer to purchase in the amount of $297,500.00.
[ 9 ] The property sold for $297,000.00. The sale was on the basis of an agreement of purchase and sale drawn up by the defendant using materials provided by Property Guys. His understanding is that the Beatties submitted the offer through the Property Guys website. Mr Groleau testified that he never advised the defendant that he was waiving his commission.
[ 10 ] Mr. Groleau submitted a document called a commission statement to the defendant’s lawyer claiming a 1% commission, but it was never paid.
[ 11 ] Mr. Groleau had a buyer representation agreement signed by Mr. and Mrs. Beattie but it was dated May 5, 2011 and apparently was prepared in respect of a prior offer he had done for them on a different house.
[ 12 ] In cross-examination, Mr. Groleau agreed that the effective agreement of purchase and sale did not provide for payment of a commission.
[ 13 ] In cross-examination, Mr. Groleau conceded that he never visited the home in question, and incurred no expenses. His efforts in this matter were restricted to emailing a copy of the M.L.S. listing to the Beatties, and drafting an offer of purchase and sale on their behalf, which was never used. In cross-examination, he also conceded that his communications with Ms. Turner, by email, led him to understand that if he put the deal together then the defendant was willing to pay him a 1% commission. He agreed he did not put the deal together.
[ 14 ] Ms. Turner testified that she initially arranged to utilize the services of Property Guys on or about May 6, 2011, choosing to use their assistance in selling the home privately so as to avoid the costs of a commission. Subsequently on or about May 13, 2011, she agreed that the property be listed on an M.L.S. network so as to get greater exposure and agreed to pay a 1% commission to a selling agent. She held an open house on May 17, 2011 and the Beatties came through the house, liked it, and indicated they had used a friend who was a real estate agent to look at homes and felt obligated to let him know that they were interested.
[ 15 ] Ms. Turner’s evidence is that after receiving the offer as drawn by Mr. Groleau on behalf of the Beatties, she went to her own lawyer who asked why the Beatties were using an agent, and asked whether they had a “buyer’s agreement”. As Ms. Turner didn’t know, she phoned Mrs. Beattie and she testified that Mrs. Beattie indicated that she did not have any buyer’s agreement with Mr. Groleau. Her evidence is that Mr. Groleau subsequently phoned her and said he wanted a 6% commission, to which Ms. Turner replied that she had listed with Property Guys so as to avoid having to pay a commission and reiterated that the maximum she would be willing to pay would be 1%.
[ 16 ] Ms. Turner also testified that after receiving the offer as drawn by Mr. Groleau, and phoning the Beatties to ascertain whether they had a buyer’s agreement, she was also told by Mr. and Mrs. Beattie that they had contacted Mr. Groleau and he had agreed to “step back”. Accordingly, when the Beatties then proceeded with a new offer of purchase and sale, prepared by the Beatties’ lawyer and her lawyer, she understood that Mr. Groleau had indeed stepped back and was no longer part of the equation. She accepted the offer and the transaction subsequently closed.
[ 17 ] Ms. Turner’s position is that the only thing Mr. Groleau did was to write up an offer that was not accepted. Her position is that the Groleau’s found the house themselves by virtue of the Property Guys Open House sign on her lawn. Mr. Groleau didn’t negotiate the final deal as it was done between Ms. Turner and Ms. Beattie.
[ 18 ] The offer as drawn by Mr. Groleau came in at 2.5% commission and Ms. Turner replied by email indicating that she was willing to increase the commission to 2% if the offer was increased to the full selling price of $299,900, or that she would be willing to pay 1.5% commission if the offer was presented in the amount of $297,500.00.
[ 19 ] Her position continues that her willingness to pay Mr. Groleau a commission changed after the Beatties advised that Mr. Groleau had stepped back and that they were presenting their own offer through their lawyer, and further that even in accordance with the original offer she made to pay commission, Mr. Groleau never presented an offer in either of the two amounts she had indicated would be acceptable and generate a commission.
[ 20 ] On behalf of the plaintiff it is submitted that Mr. Groleau had performed many of the services a realtor would in proceedings concerning the sale of the home. It is submitted Mr. Groleau represented the Beatties, that he introduced them to the property, and that he negotiated with the defendant so he is entitled to his commission. It is agreed that the offer, as prepared by him, was not accepted, but then it is claimed that he was “basically forced out”.
[ 21 ] On behalf of Ms. Turner, it is submitted that the effective offer which led to the sale was one prepared utilizing materials available through the Property Guys website. The agreement does not provide for the payment of any commission and accordingly there was no contractual obligation on the part of the defendant to pay commission to the plaintiff.
[ 22 ] In my opinion this action must fail. It is not unusual that realtors expend time and effort on the part of a prospective purchaser, provide listing materials, show the property and prepare offers, all of which prove unfruitful as no agreement for the sale of the property is ever reached. Efforts expended merely to try and obtain a contract for the sale of the property are insufficient to generate payment, at least from the seller, if no agreement for the sale of the property is ever reached.
[ 23 ] Here, the evidence of Ms. Turner is that she was told by the Beatties (who were not called to give evidence at trial) that they became aware of her property as a result of seeing the Open House sign on the lawn and that at that time they had not even associated that property with the M.L.S. listing that had been sent to them previously by Mr. Groleau as material he sent did not have a photograph in it. Mr. Groleau does not refute that evidence.
[ 24 ] What Mr. Groleau did do was prepare an offer of purchase and sale, which was unaccepted. He then had an exchange with Ms. Turner in which she agreed to pay a 2% commission if he provided her with an offer for the full listed sale price, or agreed to pay a 1% commission if he provided an offer in the amount of $297,500.00.
[ 25 ] Mr. Groleau never provided an offer which was accepted, and he also never provided an offer for the $297,500.00 figure, or the full listed price.
[ 26 ] In my opinion, in these circumstances, there was no obligation on the part of the defendant to pay a commission.
[ 27 ] The action is dismissed.
[ 28 ] It may well be that this is not an appropriate case for costs. If the successful defendant wishes to claim costs she should make submissions to me in writing, not to exceed 5 typed pages, explaining why she feels entitled to costs and how much she claims, and what disbursements she has incurred. Such written submissions must also be served by mail on the plaintiff. Such submissions are to be sent to my chambers at 20 Weber Street East, Kitchener, Ontario, N2H 1C3 by Dec 31, 2012. Any reply submissions on behalf of the plaintiff should then be sent to my chambers within 21 days of receipt of those of the defendant. If no submissions are received within such time periods then there will be no costs ordered.
C.S. Glithero J.
Released: December 6, 2012
COURT FILE NO.: SC-11-10715-00
DATE: 2012-12-06
ONTARIO SUPERIOR COURT OF JUSTICE
Sutton Group Innovative Realty Inc. – and – Sandra Turner
REASONS FOR JUDGMENT
C.S. Glithero J.
Released: December 6, 2012