ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: 12-37464SR
Date: 2013-11-19
B E T W E E N:
Homelife Professional Realty Inc., Brokerage and Tino Goritsas
Sharoon Gill, for the Plaintiffs
Plaintiffs
- and -
Paramjit Moondi and Bhupinder Moondi
Amandeep Walia, for the Defendants
Defendants
Heard: October 24, 2013
The Honourable Mr. Justice H. S. Arrell
[1] The plaintiff Homelife is a real estate brokerage firm. The plaintiff Goritsas is a real estate agent with Homelife.
[2] The defendants were the owners of a home at 247 Chambers Drive in Ancaster.
[3] The defendants wished to sell their home. They had tried to do it privately prior to entering into a listing agreement with the plaintiffs on May 6, 2012. The commission was to be 5 percent. The agreement provided that if within 60 days after the expiration of that listing agreement the defendants sold the house to someone who had previously been shown the house during the term of the listing agreement the commission would be paid.
[4] The buyer of this property was Ms. Al-Dallal and her husband. She swears in her affidavit that she knew a neighbor of the defendants and saw the house when it was listed privately. She was taken to the house subsequently by her agent Fodeles, when listed by the plaintiffs, but states that since she had previously seen the home she did not go in. She eventually told her agent Fodeles to put in an offer on the home for $525,000.00 on May 17, 2012 without having inspected the home with her then current agent. There is no affidavit from the agent Fodeles.
[5] The offer was communicated verbally by the plaintiff to the defendant who rejected it out of hand over the telephone as too low. The formal offer appears to have never been physically shown to the defendants. They allege they were never advised as to who made that offer.
[6] The property was then taken off the market and a cancellation of listing agreement was entered into on June 21, 2012, which had the same 60 day holdover clause. Allegedly the house was removed from the market because of an issue the defendant had with Revenue Canada over an HST rebate on a new home purchase. Once that was straightened out and confirmation letters received on July 6 and 10, 2012 the defendants decided to again re-list their house.
[7] The difficulty with this explanation from the defendants is that they re-listed the property with a new agent on June 26, 2012, well before receiving any confirmation letters from Revenue Canada.
[8] The new agent then received an offer from the buyer, through a new agent, dated July 3, 2012, also before any confirmation letter from Revenue Canada. The house sold on July 27, 2012 for $530,000 being $5,000 more than the offer made by the buyers on May 17, 2012.
[9] Significantly, the buyers were threatened with litigation by their former agent who had put in the earlier offer. They settled for the full amount of the owed commission on October 22, 2012.
Position of the Parties:
[10] The defendants say that there was no conspiracy to defeat the plaintiffs of their commission. They swear they never knew there was ever any offer by the buyers while the listing agreement was in place and that the buyer never actually saw the home during the listing agreements, therefore no commission is owed.
[11] The plaintiffs of course take the position that the story of the defendants is simply not credible given the evidence. They argue that the defendants and the buyers plotted this scenario to save the cost of two commissions, the one to the plaintiffs being approximately $30,000.
Analysis:
[12] The Court of Appeal has indicated quite clearly that the test for the judge before granting summary judgment is to ask the question”…can the full appreciation of the evidence and the issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial.” Combined Air Mechanical Services Inc. v. Flesch, [2011] ONCA 764, at paras. 50 and 51, (Ont.C.A.)
[13] The court on a summary judgment motion may weigh the evidence, evaluate credibility and draw reasonable inferences from the evidence.
Combined Air Mechanical Services v. Flesch, supra
[14] The onus is on the moving parties to persuade me there is no genuine issue for trial.
[15] The defendants, significantly, did not advise Revenue Canada that they had re-listed the property, which they did well before receiving written confirmation that the HST problem had been resolved.
[16] The defendants in their defence allege they wanted to keep the property and rent it out and therefore cancelled the listing agreement On discoveries they swore that they cancelled the listing as a result of the re-assessment by Revenue Canada of the HST.
[17] It is significant that the defendants re-listed the property, with a different agent, 5 days after cancelling the prior listing agreement with the plaintiffs. The difference in commission payable was also very significant at 5 percent versus $1,500.00 with the new agent.
[18] I have concluded that I prefer the evidence of the Plaintiffs where it is contrary to the evidence of the defendants. The explanations of the defendants as to the reason for re-listing the property are contradictory and lack credibility. The affidavit of the buyer appears to be inaccurate when she says she told the agent she had never seen the property before with an agent when in fact she had previously put in an offer through an agent.
[19] This is a case where a trial is not required. The evidence is before me and it is assumed in law that both parties have put their best foot forward and nothing new will be learned from a trial. Discoveries have been conducted and disclosure is therefore assumed to be complete.
[20] I have no hesitation in finding for the plaintiffs and they will have judgment for $29,945.00 plus interest pursuant to the Courts of Justice Act from the date of the closing of the purchase of the defendants’ home.
[21] The plaintiffs also seek punitive damages on the basis that the acts of the defendants were…”an actionable wrong which caused the injury complained of.” Vorvis v. Insurance Corp. of British Columbia, 1989 93 (SCC), 1989 CarswellBC 76.
[22] In essence the plaintiffs argue that there was a civil conspiracy by the defendants and the buyers to avoid paying the commission. I am not persuaded that the plaintiffs have produced evidence to justify such a conclusion. I have also not received any evidence of any independent injury or claim suffered by the plaintiffs other than nonpayment of the commission, that cannot be compensated for in costs.
[23] I therefore reject the argument that this is a case where punitive damages are payable.
[24] If the parties are unable to agree on costs they may file written submissions of no more than 3 pages double spaced in addition to any draft bills of costs and applicable offers within 30 days of the release of this decision. If no submissions are received by December 21, 2013 it will be deemed that costs have been resolved.
Arrell J.
Released: November 19, 2013
COURT FILE NO.: 12-37464SR
DATE: 2013-11-19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Homelife Professional Realty Inc., Brokerage and Tino Goritsas
Plaintiffs
- and –
Paramjit Moondi and Bhupinder Moondi
Defendants
REASONS FOR JUDGMENT
Arrell J.
HSA:mg
Released: November 19, 2013