CITATION: Regional Group of Companies Inc. v. 1760452 Ontario Inc., 2015 ONSC 3514

COURT FILE NO.: 13-57029

DATE: 2015/06/17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

REGIONAL GROUP OF COMPANIES INC.

Plaintiff

– and –

1760452 ONTARIO INC., ARIF ENTERPRISES INC. and SYNERCAPITAL REAL ESTATE INVESTMENT SERVICES INC.

Defendants

COUNSEL:

Cheryl G. McLuckie, for the Plaintiff

Dana Tierney, for the Defendant 1760452 Ontario Inc.

HEARD: February 19 and May 21, 2015 (at Ottawa)

REASONS FOR JUDGMENT

Kane J.

[1] Regional Group of Companies Inc. (“Regional”) seeks summary judgment for real estate lease commission in the amount of $138,820 including HST, against 1760452 Ontario Inc. (“176”) pursuant to a written Listing Agreement dated April 25, 2011 (“Regional Listing Agreement”). The parties to that contract are Regional as leasing broker and Arif Enterprises Inc. (“Arif Enterprises”) as property manager of 176 of its building located at 251 Bank St. in Ottawa (“251 Bank”).

[2] Regional’s claim is for a 2% leasing commission on a lease price of $6,142,500 in relation to one lease of three floors for varying periods of office space at 251 Bank to Under One Roof (“UOR”) as lessee and from 176 as lessor. UOR is one of several tenants in the office building at 251 Bank.

[3] 176 denies being a party to appointing Regional as its leasing agent. 176 denies any knowledge of such appointment or of the Regional Listing Agreement.

[4] 176 denies it authorized its property manager Arif Enterprises to engage Regional on its behalf as leasing broker pursuant to the Regional Listing Agreement. 176 denies any liability to Regional.

[5] By cross-motion, 176 seeks summary judgment dismissing this action by Regional against it, as Regional has failed to establish that 176 authorized the appointment of Regional as its leasing broker.

[6] If it is bound by the listing agreement, 176 submits that:

(a) No commission is owing to Regional; and

(b) Regional should be denied summary judgment as there are genuine issues which require a trial, namely:

i. Whether or how much commission is owing;

ii. The evidence of Under One Roof (“UOR”) and Arif Enterprises is required as to whether UOR was, in the language of the Regional Listing Agreement, “first introduced” to 251 Bank during the term of the listing agreement; and

iii. Evidence of UOR and Arif Enterprises is required as to whether they intended the August 22, 2011 lease offer to be a “valid offer to lease” during the Regional listing period.

[7] As to the scope of evidence on these motions; since filing its cross-motion to dismiss Regional’s claim, 176 filed additional affidavits, namely:

(a) Two affidavits from Mr. A. Arif who is a Director and President of Arif Enterprises and Synercapital Real Estate Investment Services Inc. (“Synercapital”);

(b) Two affidavits of Diane Touchette, President of UOR; and

(c) A second affidavit of Mr. Maddalena, a Director and Officer of 176.

[8] Mr. Arif, Ms. Touchette and Mr. Maddalena were cross-examined. Transcripts thereof are in evidence.

[9] 176 did not cross-examine the principal of Regional who filed two affidavits on these motions.

[10] Although served with Regional’s motion record and other materials filed and with the cross motion record of 176, neither Arif Enterprises nor UOR attended the argument of these motions.

[11] 176 finds itself in a difficult position. It granted a 10-year lease to UOR of three floors of office space in 251 Bank. In relation to that lease:

(a) Regional is claiming a leasing commission in this proceeding;

(b) 176 agreed to pay a leasing commission to Synercapital and has already paid one-third thereof;

(c) Devencore Real Estate Services Ltd. (“Devencore”) as real estate agent of UOR, in a separate proceeding against 176 and others, is claiming lease commission from UOR and damages against 176 and others, and

(d) Although not claimed in this proceeding, the property management agreement between 176 and Arif Enterprises states such manager is entitled to a “leasing fee” for “all new Leases entered into by the Property Manager” at 251 Bank.

DEVENCORE PROCEEDING

[12] Evidence filed on these motions indicates that Devencore in its proceeding claims damages of $150,000 for breach of contract and unpaid brokerage commission against UOR and its principal, Canadian Center for Policy Alternatives (“CCPA”), pursuant to Devencore’s real estate brokerage agreement to find commercial space to lease or purchase by UOR. Devencore alleges it is owed commission by UOR and CCPA as a result of the lease signed by UOR at 251 Bank.

[13] Devencore also claims:

(a) damages in the amount of $150,000 for intentional interference with economic relations against 176, Diane Touchette, Arif Enterprises, Synercapital, Mr. Arif and against Diane Touchette for misrepresentation related to the lease between 176 and UOR; and

(b) 2.5 % sales commission against all defendants, if CCPA or UOR purchase 251 Bank.

[14] At the court’s invitation, counsel for Devencore attended at commencement of argument of these summary judgment motions. Counsel was asked whether Devencore’s interest was impacted by these motions. Counsel replied in the negative and stated that Devencore’s lawsuit is based on contractual obligations between itself , CCPA and UOR and elected not to participate.

[15] The defendants in the Devencore proceeding, some of their conduct and the lease from 176 to UOR are common to this proceeding.

ISSUES

[16] Regional alleges that:

(a) It was appointed as the exclusive leasing broker of 176 for 251 Bank; for four months, from April to August of 2011;

(b) Arif Enterprises had actual authority to enter into the Regional Listing Agreement on behalf of 176, and did just that;

(c) Pursuant to the terms of the Regional Listing Agreement, Regional is entitled to the commission claimed because an offer to lease was received during the four month listing period which resulted in the signed lease to UOR. Regional alleges that because the accepted offer to lease was presented by another broker, Regional is entitled to the reduced commission of 2% under the Regional Listing Agrement and is suing in contract for that commission;

(d) Regional would have been entitled to a 5% commission if, as required by the Regional Listing Agreement, 176 and its agent Arif Enterprises had referred UOR and its expressed intention to lease to Regional; and

(e) Regional’s claim against Arif Enterprises and Synercapital is for interference in economic relations.

[17] 176 submits that:

(a) Arif Enterprises had no actual authority to enter into the Regional Listing Agreement on its behalf;

(b) The property management agreement appointing Arif Enterprises contains no authority to contract and bind 176 for these exclusive brokerage services of Regional;

(c) 176 is not named as a party in the Regional Listing Agreement;

(d) 176 had no knowledge of such contract until the commencement of this proceeding; and

(e) Regional pursuant to the terms of the Regional Listing Agreement, is not entitled to a commission regarding the lease to UOR or in the alternative, is not entitled to the amount of commission claimed.

SUMMARY JUDGMENT- GENERAL PRINCIPLES

[18] The following are some of the relevant principles regarding a Rule 20 summary judgment motion from Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at paras. 32-34, 36, 43-45, 50, 57-58, 62, 66 and 68:

(a) Judges must actively manage the legal process in line with the principle of proportionality.

(b) Proportionality is a comparative principle, it compels a motion judge to question whether the added expense and delay of fact finding at trial is necessary to a fair process and just adjudication between the parties.

(c) The summary judgment motion can enhance access to justice because it can provide a cheaper, faster alternative to a full trial.

(d) Summary judgment pursuant to Rule 20 is a legitimate alternative means for adjudicating and resolving legal disputes.

(e) Pursuant to R. 20.04(2)(a), the court shall grant summary judgment if there is no genuine issue requiring a trial. The test is no longer whether there is “a genuine issue for trial”.

(f) If the parties on the summary judgment motion provide the court with the evidence required to fairly and justly adjudicate the dispute; there will be no genuine issue requiring a trial.

(g) A judge on a summary judgment motion shall decide the dispute:

i. If the necessary evidence has been presented on the motion to fairly and justly adjudicate the issue; and

ii. Unless the judge is satisfied that there is a genuine issue which requires the added expense and delay of fact finding at trial.

(h) If there appears to be a genuine issue requiring a trial, the court should then determine if the need for that trial can be avoided by using the new discretionary power under R.20.04 (2.1) and (2.2), namely by weighing of the evidence, evaluating credibility and the drawing of reasonable inferences.

(i) The court on a motion for summary judgment is required to assume the parties have presented all evidence that will be available at trial.

(j) The court shall decide whether it can make the necessary findings of fact, apply the law to the facts and thereby achieve a fair and just adjudication of the action based on the evidence presented.

(k) The test whether proceeding by motion will provide a fair and just adjudication is not whether the procedure is as exhaustive as a trial. The test is the court’s confidence level as to its ability to make findings of fact to apply the relevant legal principles to resolve a dispute on the motion.

(l) Proportionality may require the motion judge to assess the relative cost, speed and efficiencies of proceeding by summary judgment rather than a trial. It may include what evidence would be available at trial.

(m) The court must ask why it should not grant summary judgment.

(n) If summary judgment cannot be granted, the court is to decide any issues that can be determined pursuant to the same principles and identify the steps to be undertaken to enable the court to decide the remaining issues.

CONTEXT

[19] The Court, in interpreting a contract, is permitted to consider evidence of surrounding contextual facts to assist in the interpretation of the wording of the contract. Permissible facts include:

(a) Objective evidence as to the background facts at the time of the execution of the contract;

(b) Knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contract; and

(c) Anything which would have affected the way in which the language of the document would have been understood by a reasonable person: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, (2014), 373 D.L.R. (4th) 393 at paras. 56-58.

[20] The principals of Regional, 176 and Mr. Arif carry on different businesses under separate corporate entities.

Mr. Arif

[21] Arif Enterprises carries on the business of property management of commercial properties.

[22] Arif Enterprises was appointed property manager of 251 Bank by 176 pursuant to a written property management agreement signed by each of them and dated February 15, 2011 (the “PMA”)

[23] Synercapital is a real estate agency for the purchase and sale of commercial properties.

[24] Neither Arif Enterprises nor Synercapital ever provided real estate services regarding the lease of property prior to this lease by UOR from 176.

[25] As stated, Mr. Arif is President of Arif Enterprises and Synercapital.

[26] Synercapital was involved as a real estate agency in 176’s purchase of 251 Bank in December, 2010.

176

[27] In addition to ownership by 176 of 251 Bank, the principals of 176 operated other businesses including restaurants located elsewhere.

[28] 251 Bank was purchased by the principals of 176 as an investment. Those principals were passive owners and engaged the services of Arif Enterprises to manage this office building.

Mr. Agulnik

[29] Mr. Agulnik is a broker and a principal of The Regional Group of Companies Inc. and NAI Commercial.

251 Bank

[30] 251 Bank is an office building. It was for sale in the fall of 2010.

[31] UOR viewed 251 Bank and was interested. UOR with the real estate assistance of Devencore, unsuccessfully attempted to purchase 251 Bank in October of 2010. 176 submits that pursuant to para. 2 of the Regional Listing Agreement, this failed attempt to purchase was UOR’s “introduction” to 251 Bank and that October 2010 “introduction”, disentitles Regional to a lease commission 11 months later pursuant to the Regional Listing Agreement.

[32] Having been unsuccessful buying 251 Bank, UOR thereupon began to consider other properties, including a property on MacLaren St.

[33] 176 purchased 251 Bank on December 20, 2010.

[34] Arif Enterprises began to act as property manager of 251 Bank for 176 immediately as of December 20, 2010. 176 and Arif Enterprises entered into the written PMA on February 15, 2011, retroactive to December 2010.

[35] As of April, 2011, 251 Bank contained vacant office space. 176 wanted it rented. Neither Arif Enterprises nor Synercapital carried on the business of leasing commercial space. Arif Enterprises engaged Regional for that purpose.

[36] Arif Enterprises on behalf of the unnamed owner of 251 Bank, entered into the Regional Listing Agreement on April 25, 2011. The term thereof expired four (4) months later, on August 25, 2011.

[37] Regional thereupon obtained permission from Arif Enterprises and attached its corporate sign of available space for lease on the 251 Bank building in May, 2011.

[38] 176, using a different real estate listing brokerage, accepted a 30-day conditional offer of purchase of 251 Bank on June 30, 2011 with the Church of Scientology.

[39] UOR meanwhile, using Devencore as its agent, submitted an offer to lease the MacLaren office space on July 8, 2011.

[40] The conditional period under the Scientology agreement of purchase and sale of 251 Bank had been extended to August 20, 2011. The Church of Scientology wanted a further extension beyond August 20, 2011.

[41] 176 had to decide.

UOR’S “REINTRODUCTION” TO 251 BANK

[42] Mr. Arif was aware of 176’s sale negotiations with the Church of Scientology and tried to contact UOR between July 30 and August 1, 2011 about 251 Bank.

[43] UOR told Mr. Arif on August 2, 2011 that it was considering an offer from the owner to purchase the MacLaren property. UOR asked if Mr. Arif would be interested in purchasing MacLaren and working together with UOR.

[44] On August 10, 2011, 176 received an offer to buy 251 Bank from another purchaser.

[45] Mr. Arif advised UOR on August 11, 2011, that his information from 176 indicated that now was a good time if UOR wished to submit an offer on 251 Bank. UOR was delighted to hear this and asked to meet that day with Mr. Arif and the floor design planner (“Cohen”) used by 176 for 251 Bank.

[46] 176 heard about UOR’s interest in 251 Bank and advised on August 12, 2011 that 176 needed to know that day whether UOR was interested. Mr. Arif obtained an extension from 176 until August 15, 2011 to permit UOR to determine what it wished to do regarding 251 Bank.

[47] UOR on August 15, 2011 sent Mr. Arif a letter of intent and floor plan regarding 251 Bank. UOR offered to pay rent to 176 of $25/sq. ft. starting in November, 2011, on terms which included a rent free period and identified what elements in the building 176 would be responsible for. UOR further stated that in the alternative, that if Mr. Arif was willing to finance the purchase, he and UOR could buy the MacLaren property together. The offer of $25 per square foot exceeds the rate per square foot on p. 1 of the Regional Listing Agreement.

[48] Commission is earned by the broker under the Regional Listing Agreement “for any valid offer to lease…whatsoever received during the Listing Period…”(emphasis added)

[49] On August 16, 2011 Mr. Arif told UOR he had obtained a few options from 176 regarding 251 Bank and they should meet. UOR agreed and wanted Cohen to attend as well. Those three parties met on August 17, 2011 regarding 251 Bank.

[50] Mr. Arif on cross-examination stated that in these negotiations between 176 and UOR as to 251 Bank, he was acting for 176 and UOR.

[51] What Mr. Arif personally, as property manager for and agent of 176 failed to do as required by para. 4 of the Regional Listing Agreement, was to advise Regional immediately that UOR wanted to lease office space in 251 Bank and to submit to Regional “all offers to lease”.

[52] Even though Arif Enterprises and Synercapital had never to that point acted as real estate agents in the leasing of commercial space, Mr. Arif was good at math. The offer to lease by UOR and the eventual lease and accompanying purchase option agreement, oblige 176 to pay to Synercapital, as UOR’s exclusive agent:

[53] Lease commission of $134,000; and

[54] $178,000 real estate sales commission if UOR exercised its purchase option of 251 Bank.

[55] Mr. Arif prepared an offer to lease to 176 from UOR of three (3) floors in 251 Bank which included a purchase option. Midday on August 18, 2011, Mr. Arif sent UOR a “final version” of the UOR offer to lease 251 Bank. The rent per square foot (per floor) exceeded the rent per square foot stated on p. 1 of the Regional Listing Agreement.

[56] The offer to lease dated August 18, 2011 obliges 176 to pay a leasing commission to Synercapital as exclusive agent of UOR.

[57] UOR later on August 18, 2011, asked Mr. Arif if he would agree to divide the lease commission payable by 176 to Synercapital equally with Devencore, amend UOR’s signed offer to 176 accordingly and asked what remaining commission UOR would then owe to Devencore.

[58] On August 19, 2011, UOR received from its designer, Magdalena, preliminary floor layout design of UOR’s occupancy at 251 Bank. The layout design is dated July 13, 2001. UOR forwarded this lay plan to Mr. Arif on August 22, 2011.

[59] Magdalena updated its UOR floor plan at 251 Bank which is dated August 22, 2011 and forwarded that to Mr. Arif that same day.

[60] On August 22, 2001, Ms. Touchette on behalf of UOR, initialled each page of the original August 18, 2011 version of the offer to lease, dated it August 22, 2011, signed the offer and then returned UOR’s signed written offer to lease to Mr. Arif on August 22, 2011. The signed offer to lease and Ms. Touchette’s email forwarding the same to Mr. Arif and Mr. Cohen does not state that the offer to lease is conditional Synercapital and Devencore sharing the lease commission payable by 176.

[61] UOR now alleges it never intended this August 22, 2011 signed offer to lease to be a “formal offer” to 176. 176 submits that the August 18, 2011 offer to lease was not, within the wording of para. 2 of the Regional Listing Agreement, a “valid” offer to lease because UOR on August 18 asked if the lease commission could be shared with Devencore.

[62] Mr. Arif and UOR in the interim had Cohen prepare a space plan for UOR’s occupancy of the 251 Bank leased premises. Cohen sent a preliminary draft thereof to 176 and Mr. Arif on August 24, 2011.

[63] On August 26, 2011, UOR and Cohen suggested amendments to the offer to lease. Later that day, Mr. Arif and Synercapital prepared and sent UOR a revised offer of lease dated August 26, 2011, which is one day after the expiration of the term of the Regional Listing Agreement. That offer to lease provides for a sharing of lease commission between Synercapital and Devencore.

[64] In an attempt to protect itself, UOR later on August 26, 2011, sent this latest version of the offer to lease to Devencore and stated; “Guess what! the 251 Bank building just became available again … The owners contacted us (UOR) directly … Please take a look at the attached offer (of course, you’re in there and they know you were our agents from the very beginning), and let me know if this works for you.”

[65] Devencore replied with comments on August 26, 2011 and concluded by stating its objection to “Synercapital creeping” into UOR’s offer to lease and Devencore having to give up one-half of its commission as a result of not working the deal through Devencore. Devencore requested that the phrase that Synercapital “…acting as sole Agent for the Tenant” be deleted from the offer.

[66] UOR and 176 signed the offer to lease dated August 26, 2011, on August 29 and 31, 2011 respectively. They signed UOR’s lease of 251 Bank on September 21, 2011.

[67] On September 27, 2011, Regional stated to Mr. Arif that it was still waiting for a meeting with Arif Enterprises. Arif Enterprises replied to Regional that day and stated Regional “may have heard through the grape vine that the 5th and 2nd floor (at 251 Bank) have been leased out.” Regional was asked not to divulge this information to the existing tenants on those two floors who would be moved out after which, “we will not have much to lease if any at all”. Regional was asked to remove its leasing sign from the 251 Bank building.

[68] Regional responded it was entitled to payment of earned lease commission fees for 251 Bank, including the lease to UOR.

[69] Arif Enterprises, on October 5, 2011, denied liability to Regional for lease commission for the lease to UOR, because Regional’s listing agreement had expired on August 25, 2011.

PMA AND ACTUAL AUTHORITY

[70] As to the Regional Listing Agreement,176 submits that the PMA contains no actual authority to Arif Enterprises to sign it on behalf of 176; and

(a) Regional, in dealing with an agent, has the onus of proving that the agent had actual authority to bind the principal: Maritime-Ontario Freight Lines Limited v. Callidus Capital Corporation, 2014 ONSC 1019 at para. 409 (O.S.C.)

(b) An agent cannot delegate his duties without the authorization of the principal Summers v. Commercial Union Assurance Co., (1881), 1881 7 (SCC), 6 S.C.R. 19, 1881 CarswellOnt 246 at para. 3.

(c) An unauthorized delegation by an agent to a sub-agent, does not create privity of contract between the agent’s principal and the sub-agent: S/S Steamship Co. v. “Alchatby”(The), 1986 CarswellNat 1061, F.T.R. 253, at para. 18 and 717807 Ontario Ltd. v. Douglas Traffic Co-ordinators, 1991 CarswellOnt 21 at para. 16.

(d) A delegation of authority requires that there must be precise and exact expression that a principal has authorized an agent to create privity of contract between the principal and the sub-agent Calico Printers’ Association v. Barclays Bank, 52 – Vol 145, The Law Times (1931 Court of Appeal decision of the Supreme Court of Judicature).

[71] Acts which the principal expressly or impliedly consents the agent shall do on the principal’s behalf, results in the agent having authority to so act. This authority constitutes a power to affect the principal’s legal relations with third parties: Lewaskewicz at p.17 and Bowstead and Reynolds on Agency, p. 137.

[72] The authority of an agent may be:

(a) Actual (express or implied) where it results from a manifestation of consent that he should represent or act for the principal expressly or impliedly made by the principal to the agent himself; or

(b) Apparent, where it results from such a manifestation made by the principal to third parties; and

(c) Actual authority, sometimes referred to as express authority, is authority which the principal gives the agent wholly or in part by means of words or writing, or is regarded by the law as having been given him because of the interpretation put by the law on the relationship and dealings of the two parties, namely implied authority.

[73] Actual authority is a legal relationship between principal and agent created by a consensual agreement to which they alone are parties. Its scope is to be ascertained by applying ordinary principles of construction of contracts, including any proper implications from the express words used, the usages of the trade, or the course of business between the parties: Freeman & Lockyer v. Buckhurst Park Properties (Mangal) Ltd., [1964] 2 Q.B. 480 at 502 and Maritime-Ontario Freight Lines Limited at para. 38.

RETENTION BY AGENT OF SUB-AGENT

[74] The general principles as to this issue are:

(1) An agent may not delegate his authority in whole or in part except with the express or implied authority of the principal;

(2) The authority of the principal is implied however in the following cases:

(a) Where the principal knows and accepts, at the time of the agent’s appointment, that the agent intends to delegate his authority.

(b) Where the authority conferred is of such a nature as to necessitate its execution wholly or in part by means of a sub-agent.

(c) Where the employment of a sub-agent is justified by the usage of the particular trade or business in which the agent is employed, provided that such usage is not unreasonable and not inconsistent with the express terms of the agent’s authority.

(d) Where in the course of the agent’s employment, unforeseen circumstances arise which render it necessary for the agent to employ a sub-agent.

(e) Where, from the conduct of the principal or of the principal and the agent, it may be presumed to have been intended that the agent should have power to employ a sub-agent.

(3) Acts done on the principal’s behalf by a sub-agent whose appointment was authorised or ratified by the principal, bind the principal just as if they had been performed by the agent himself: Lewaskewicz v. Chender, 2007 NSCA 108 at paras. 45 and 48 and Bowstead and Reynolds on Agency, 17th Edition (London, Sweet & Maxwell, 2001) p. 137.

[75] Regional in argument advised it relies upon the actual authority of Arif Enterprises in the PMA to bind 176 to the Regional Listing Agreement. Regional does not rely in this motion upon ostensible authority of Arif Enterprises by 176, nor ratification by 176 of that agent’s authority, to bind 176 to the obligations in the Regional Listing Agreement.

[76] Regional acknowledges on its motion that actual authority from 176 to enter the listing agreement, or the lack of such actual authority, cannot be found/supported/altered by:

(a) The terms of the Regional Listing Agreement, or by

(b) The knowledge of 176 as to the existence of or activities of Regional in this matter.

[77] In the result, the authority of Arif Enterprises to enter into the Regional Listing Agreement and bind 176 to the obligations thereof is to be determined and must be found within the PMA.

[78] If an agent is expressly or impliedly authorized to contract with a third person on behalf of the principal and the third person knows it and deals with the agent on that basis, a contract is then formed between the principal and the third party.

[79] The principal’s instructions to the agent, unknown to the third party, do not alter the reasonableness of the third party’s expectation. In such circumstances the principal is liable if the agent acts within the apparent or ostensible authority. The third party’s expectation is preferred to the principal’s express wish not to contract. An agent has no “right” to disregard the principal’s instructions. A principal can sue the agent for breach of contract in such case however the agent has a power to bind the principal as to the third party. One of two innocent parties in such case must suffer for the agent’s default. That risk is placed on the principal who has the better opportunity to investigate the agent’s trustworthiness and the principal should perhaps absorb as a costs of the business the loss caused by the agent’s default. If a principal leads the third party to believe that the agent had authority, such principal may not deny such authority after the third party’s reliance on the agents’ authority: Ellas Restaurant (Scarborough) Limited v. Zejnelovski-Veseli, 2005 25888 (ONSC) paras. 44-45 and S.M. Waddams, “The Law of Contracts” Chapter 7.

[80] An undisclosed principal is one whose existence is not made known by the agent to the third party; the latter therefore is contracting with the agent under the belief that the agent is the other party, that is, a principal in his own right. While, exceptionally, the common law permits an undisclosed principal to acquire rights and be subjected to liabilities as a consequence of a contract made by his agent on his behalf,” in some circumstances this will not be so. If the identity of the contracting party is important to the third party transacting with the agent, if the agent was unauthorized in what he did, if the existence of some other principal is expressly or impliedly excluded by the contract between agent and third party, the undisclosed principal is precluded from being a party to the contract.

[81] By using someone to transact on one’s behalf, even to the extent of concealing that interrelationship, it is possible for one person to be a party to a contract which he has not made. Without the development of the notion of agency, business would have been seriously hampered and it would have been impossible for commerce, trade, and everyday life generally, to have emerged as we know it in modem times: Fridman G.H.L., The Law of Torts, 5th ed. (Toronto: Thomson Carswell, 2006) p. 193-194.

PMA TERMS

[82] The PMA is a short contract with 16 paragraphs executed on February 15, 2011. It relates to 251 Bank. It is retroactive to December 17, 2010 as Arif Enterprises had performed as property manager thereof since December 20, 2010, without a written contract.

[83] The PMA has a term of 1 year, including the retroactive period of two months, and expired on December 31, 2011.

[84] Shortly after its December, 2010 purchase, 176 began entertaining offers to sell 251 Bank. Mr. Maddalena doubts the principals of 176 attended 251 Bank during 2011. 251 Bank was an investment and possibly a short term one.

[85] The PMA is on the letterhead of Arif Enterprises which suggests Mr. Arif drafted the contract although there is no other evidence on the point. 176 in any event accepted its terms and signed it.

[86] Paragraph 1 of the PMA states Arif Enterprises is appointed property manager to be 176’s sole and exclusive representative and managing agent to manage the units.

[87] Arif Enterprises is required to enter into contracts in the name of 176 as necessary to fulfill its duties listed in paragraph 4.

[88] The “sole and exclusive representative and managing agent” appointment provision in para. 1 of the PMA, is as to “managing the units”, not as to the performance of the duties listed in paragraph 4.

[89] Regional was not appointed 176’s agent in the Regional Listing Agreement to “manage the units” at 251 Bank.

[90] The listed duties to be carried out in the PMA require that Arif Enterprises as property manager are:

(a) to use its best efforts to ensure performance by the tenants of their covenants;

(b) to use its best efforts to collect rent;

(c) to establish and maintain a trust account at a Canadian chartered bank;

(d) to enter into such contracts and agreements in the name of 176 as may be necessary to fulfill its duties listed in the PMA;

(e) to hire, supervise and dismiss persons as in its discretion may be necessary to for the proper operation and maintenance of the building units, at the cost of 176;

(f) to arrange for the rental or lease of units and to arrange for the signing of Leases where applicable of units to tenants and to arrange for the refurbishing of units prior to rental;

(g) to authorize the maintenance of units but not authorize any work, repairs or alterations in the name of 176, estimated to cost for any one item in excess of $1,000, without written authorization from the 176, unless such work was urgently required;

(h) to arrange for the advertising required in the rental of units;

(i) In the case of rental of units to new tenants, is to arrange for the advertising, promotion and merchandising at the expense of 176;

(j) to do and perform all acts necessary for the proper and efficient management of the units and to adhere to the intent of the PMA; and

(k) authorized to pay expenses incurred to perform the above work from rents received. (emphasis added)

[91] The compensation provisions of the PMA state that Arif Enterprises is to be paid fees consisting of:

(a) A percentage of the actual gross rent received by 176;

(b) A leasing fee of 5% of the gross lease amount for all new leases entered into by Arif Enterprises;

(c) $40 per hour for all Tribunal work performed by it; and

(d) $2,600 per month for superintendent duties. (emphasis added)

[92] The sooner Arif Enterprises could lease the vacant space in 251 Bank, it and 176 benefitted financially. The owner and manager shared that common objective.

[93] Arif Enterprises was not required pursuant to the PMA to perform all of the listed duties in paragraph 4 itself. Paragraph 4 specifically authorizes Arif Enterprises to engage the services of others for some of those listed duties.

[94] The above underlined portions of the property manager’s duties in the PMA indicate that:

(a) Arif Enterprises could in some areas, engage liability on behalf of 176;

(b) Arif Enterprises could enter into contracts on behalf of 176;

(c) Arif Enterprises was not required to perform all listed duties itself;

(d) Some of the listed duties required Arif Enterprises to perform such duty itself, such as to use its best efforts to collect rent, to enter into contracts on behalf of 176, to hire, to terminate, to open a trust account etc.; and

(e) In the case of other listed duties, Arif Enterprises is to “arrange for” their performance. That means and permits engaging performance of those duties and services by others.

[95] To not recognize the above performance distinction between Arif Enterprises and others ignores and renders meaningless the distinction in the contract language between “to do” (itself), versus “to arrange” (by others).

[96] The duty as to renting or leasing the units is “to arrange for” that to occur and permits the engagement of service providers to accomplish that.

[97] Authorization as to refurbishment costs required for new tenants contains no monetary limit.

[98] 176 included monetary limits it considered necessary in the duties. 176 as to other areas, included no monetary restrictions in para. 4.

[99] Unlike the $1,000 monetary limit required for expenditures for repairs, no authorization or monetary limit is included for the cost “to arrange advertising, promotion and merchandising at the expense of the Property Owner.”

[100] The meaning of “to merchandise” office space to potential commercial tenants “at the owner’s cost” is unclear in the context of leasing office space.. There normally is however a cost associated to merchandising.

[101] Regional’s “For Lease” sign on 251 Bank constitutes authorization within the duty “to arrange for advertising” at the expense of 176. The nature and cost of advertising was not subject to owner authorization or monetary limits.

[102] Brokers normally would not advertise someone’s property without compensation or potential compensation.

[103] It has to be remembered that there was significant vacancy and/or tenants with low rent in 251 Bank in April 2011. Some existing tenancies were terminated to vacate the floors to be occupied by UOR. Unoccupied space and low rents continued from December, 2010 up to April, 2011.

[104] Paragraph 6 of the PMA obligates 176 to pay a leasing fee of 5% for new leases entered into by Arif Enterprises. Regional charged 5% as well except if another broker brought in the new tenant, in which case the commission rate increased to 6%.

[105] How does this property manager, and its related company Synercapital, neither of which operate in the field of leasing commercial property, “arrange” the “advertising, promotion and merchandising” of this commercial space to new prospective tenants other than retaining a service provider in that field?

[106] While acknowledging that Regional received consideration for lease renewals and new leases it brokered during the April to August, 2011 term, 176 also financially benefited by the performance of those services by Regional by increase occupancy and rental revenue, thereby enhancing the value of an asset it was trying to sell.

[107] In signing the PMA, 176 had the opportunity to limit its monetary obligation as to the advertising and promotion of the rental of 251 Bank “at the expense of the Owner” and chose not to do so.

[108] The terms “To arrange” … the “promot(e)ion” of unit space to potential new tenants, being part of the duty “to arrange for the rental or lease of the units” at the cost of 176; are broad language. Such language permits and authorizes the engagement of services and costs of a broker to market commercial space to potential tenants and deal with such potential tenants including obtaining and presenting proposed tenants proposed terms of lease to the owner. Brokers will not provide such services however unless they have the opportunity to earn compensation.

[109] Regional was a lease broker of commercial property. Regional performed in that capacity regarding 251 Bank including negotiating with existing tenants and obtaining lease renewals based on the evidence. It also sought and presented potential new tenants for 251 Bank. It was involved in confirming insurance coverage evidence to tenants, purchased by 176. It marketed the property and performed these services during the four month term of the Regional Listing Agreement commencing April 28, 2011.

[110] The above language of the PMA permitted Arif Enterprises’ engagement of brokerage services from Regional “to advertise and promote” the leasing of 251 Bank. The PMA contains actual authority to do so, including the signing of the Regional Listing Agreement on behalf of 176.

ALTERNATIVE DEFENCES

[111] Having determined that the PMA contains actual authority to Arif Enterprises to execute contracts on behalf of and obligate 176 to the terms thereof; the alternate arguments of 176 that it is not a party to the Regional Listing Agreement, nor obligated to pay a commission thereunder as claimed will now be addressed.

REGIONAL LISTING AGREEMENT

[112] The Regional Listing Agreement indicates the signing thereof by Regional and Arif Enterprises on behalf of the owner on April 25 and 29, 2011 respectively. This is the Ontario Real Estate Listing Agreement – Commercial form. Its printed terms are a standard form used in Ontario. The hand written terms filled in the blanks.

[113] Regional signed first adding certain hand written terms. Arif Enterprises signed four days later adding other hand written terms.

PARTIES

[114] There is no issue that 176 at the time owned 251 Bank.

[115] The contract is identified by Regional as between:

(a) Broker: The Regional Group of Companies Inc., and

(b) “LANDLORD (Lessor): / PROPERTY MANAGER ARIF ENTERPRISES INC.”

[116] There is no evidence why Regional inserted the name of the landlord as such. Regional had communicated via email directly with 176’s principals in December, 2010 and knew they were officers of the new property owner. The names of numbered corporations may not readily come to mind. Regional could have determined the corporate name of the property owner. Arif Enterprises had that detail.

[117] Regional and Mr. Arif each knew however at the time of signing this contract that 176 was the owner and lessor of 251 Bank and that Arif Enterprises was, as written, merely signing as the property manager.

[118] The title of the paragraph and the “/” before the phrase “Property Manager Arif Enterprises Inc.” identifies that the owner/lessor is the unnamed party contracting with Regional.

[119] The definition section in paragraph 1 states that the “Landlord” includes the “lessor”, thereby including 176.

[120] As owner, while acknowledging the signatories interest in doing so, the evidence of the two parties signing this contract is that Arif Enterprises was engaging the services of Regional on behalf of 176. Again, there is no evidence of 176 objecting to this contract upon being provided with it on July 11, 2011, as referenced below.

[121] There was no doubt as between the signing parties that:

(a) Arif Enterprises was contracting in its capacity as agent for and on behalf of the owner; and

(b) Regional and Arif Enterprises knew the owner in question was 176.

[122] There was no ambiguity by the executing parties at the time that 176, although not named as such, was the contracting owner and a party to this contract.

KNOWLEDGE OF REGIONAL LISTING AGREEMENT

[123] 176 submits that:

(a) It had no knowledge about Regional or the Regional Listing Agreement;

(b) The UOR’s August 26, 2011, offer to lease signed by UOR on August 29, 2011, was after the August 25, 2011 expiration date of the Regional Listing Agreement and therefore results in no liability to 176; and

(c) UOR was introduced to 251 Bank in the fall of 2010, not during the term of the Regional Listing Agreement and that fact disentitles Regional to a leasing commission under the terms of the listing agreement it disputes being aware of or authorizing.

[124] 176 however had dealt with Regional directly regarding 251 Bank since becoming owners thereof.

[125] Following the purchase of 251 Bank by 176 on December 20, 2010, Regional dealt with existing tenants in 251 Bank and communicated with 176 and Arif Enterprises regarding the same.

[126] Regional acted as broker regarding the December 23, 2010 sub-lease of space in the building from an existing tenant to a new tenant, the University of Alberta. Regional prepared that lease transfer agreement which was signed by 176 and was in communication with 176 regarding the same.

[127] As to the knowledge of 176 of this Regional Listing Agreement:

(a) That is an issue between 176 and Arif Enterprises. Arif Enterprises was an agent of 176 in dealing with UOR as to its wish to lease as early as August 15, 2011;

(b) Mr. Arif in cross-examination stated that:

i. Arif Enterprises was referred by 176 to Regional which had some role in or at the time of the purchase by 176 of 251 Bank in December, 2010 and neither Arif Enterprises nor Synercapital was involved during the relevant time as agents in the business of leasing commercial space;

ii. Arif Enterprises would not have signed the Regional Leasing Agreement in the name of the owner without obtaining permission from 176;

iii. The Regional leasing signage was posted on the building commencing in May, 2011.

[128] There are two relevant emails in evidence both dated July 11, 2011. The first of these emails from Magdalena to Mr. Arif attaches the Existing Tenant Layout for 251 Bank. One hour later, Mr. Arif sent an email to two principals of 176 which states “as requested”, and attaches thereto:

(a) 251 Bank – Exiting Tenants’ Layout – July 11, 2011 pdf;

(b) Proposed Design Booklet – June 10. Pdf;

(c) Architectural Set – June 13, 2011. pdf; and

(d) Listing Agreement – Agulnik (Regional) pdf.

[129] The November, 2014 affidavit of Mr. Maddalena states he and the principals of 176 have no recollection or electronic record of receiving this July 11, 2011 email from Mr. Arif attaching the listing agreement with Regional. It is not surprising that busy executives cannot recall receiving an email sent three years ago, particularly one which does nothing other than attach four electronic documents “as requested”.

[130] The evidence on the cross-examination of Mr. Maddalena that the principals of 176 never attended 251 Bank in 2011 is surprising but a decision they made. That allegation however reinforce the latitude 176 granted to Arif Enterprises as to the operation and management of 251 Bank, which 176 was not intent upon retaining ownership of.

[131] On the evidence, 176 in July, 2011 had possession of and knowledge of the Regional Listing Agreement and did not object thereto prior to the negotiations leading to the offer to lease and the negotiations with UOR in August, 2011.

[132] Knowledge in any event is not determinative as the PMA granted actual authority to Arif Enterprises to sign the Regional Listing Agreement.

COMMISSION ENTITLEMENT UNDER REGIONAL LISTING AGREEMENT

[133] The Regional Listing Agreement states that Regional is given the exclusive and irrevocable right to act as the Landlord’s agent to offer 251 Bank for lease at a specified rent/square footage. Brokerage commission payable for lease offers (collectively referred to (“term commission”)) presented during the listing term are:

(a) For Regional generated new leases, a commission was 5% of gross rent;

(b) 6% of gross rent if another brokerage generates a tenant’s offer to lease; and

(c) 2.5% on lease renewals.

[134] Paragraph 2 of the Regional Listing Agreement permits the broker to earn commission for:

[135] “any valid offer to lease” … “from any source whatsoever obtained during the Listing Period….” (“Term Offer”) … “ on the terms and conditions set out in this Agreement OR such other terms and conditions as the Landlor may accept.”; and

[136] if “an agreement to lease is agreed to or accepted by the Landlord” within 90 days after the end of the listing period, if such agreement is with someone “who was introduced to the property from any source …during the Listing Period or shown the property during the Listing Period.” (Post Term Offer To Lease”)

[137] The commission obligation for a Term Offer in para. 2 does not require that the offer be in writing. Nor does that obligation require that the Term Offer be accepted by the owner. UOR submitted a Term Offer, which happened to be in writing, to the owner’s authorized agent on August 18, 2011.

[138] Depending on the net cost per square foot, UOR’s August 15, 2011 written offer to lease 251 Bank may or may not be a Term Offer as UOR offered to pay rent at the rate of $25 per square foot which exceeds the minimum of $21 requirement in the Regional Listing Agreement, it also provided for 1 year free rent. The resulting net per square foot is unknown.

[139] Regional is authorized to cooperate with and agrees to share the commission with other brokers presenting offers to lease pursuant to paragraphs 2 and 3 of the Regional Listing agreement.

[140] If the offer for lease is pursuant to a new agreement in writing to pay commission to a cooperating real estate brokerage, the Landlord’s liability for commission is reduced by the amount paid by the Landlord under the new agreement pursuant to para.2.

[141] Commission in addition is payable to Regional under para.4 if 176 fails to advise Regional of all leasing enquiries received during the listing period and a lease results within 90 days thereafter. Given the eventual lease entered into, para. 4 required that enquiries and offers to lease from UOR received prior to August 26, 2011 should have been communicated immediately to Regional. The obligation in para. 4 was breached.

[142] For the reasons stated below, 176 is liable to pay commission pursuant to the Regional Listing Agreement to Regional because:

(a) 176, through its agent Arif Enterprises, pursuant to para. 2, received a Term Offer during the listing period, namely UOR’s signed August 18, 2011, offer to lease with rental terms which meet those listed above para. 1 of the Regional Listing Agreement;

(b) Alternatively, 176 accepted the Post Term Offer To Lease of UOR within 90 days after expiration of the term of the Regional Listing Agreement and UOR was “introduced” to the availability to lease 251 Bank during the Listing Period pursuant to para. 2, for the reasons stated hereafter; and

(c) In the further alternative, 176 through its agent Arif Enterprises, failed to advise Regional of UOR’s enquiry to lease, as reflected in UOR’s offers to lease dated August 15 and 18, 2011 resulting from such enquiries and received during the listing period, which resulted in 176 accepting and signing UOR’s offer of lease within 90 days after the expiration of the listing term, as provided for in para. 4 of the Regional Listing Agreement.

ENTITLEMENT PURSUANT TO PARA 2

[143] As to the phrase at the end of the first paragraph of para. 2, namely: “…and on the terms and conditions set out in this Agreement or such other terms and conditions as the Landlord may accept”.

(a) “Agreement” is a defined term and refers to the Regional Listing Agreement, not an offer to lease; and

(b) The phrase, “or other terms the Landlord may accept”:

i. Relates to the rental terms specified in para. 2 to be communicated to potential tenants; and

ii. Does not grant the owner unilateral authority under the Regional Listing Agreement to reduce or eliminate the stated rate of commission above that phrase in para. 2.

[144] The phrase in para. 2 of the Regional Listing Agreement triggering entitlement to a commission “for any valid offer to lease the Property from any source whatsoever obtained during the listing period”, does not require such offer to be in writing; unlike the wording as to the 90 day hold over period in para. 2 which refers to “a new agreement in writing”. A valid oral offer to lease on lease terms cited above para. 1, triggers liability if received by the owner or its agent within the listing period.

[145] UOR submitted 2 written offers to lease to the owners agent during the listing period on August 15 and 18, 2011. The signed offer dated August 18, 2011 contained rental terms in accordance with those listed above paragraph 1 of the Regional Listing Agreement. There is no dispute that Arif Enterprises had authority to receive offers to lease on behalf of the owner.

[146] The August 18, 2011 Term Offer creates commission liability under para. 2 against 176, even prior to its acceptance thereof.

[147] In the alternative, 176 accepted UOR’s final August 26, 2011 written offer to lease within the 90 day holdover period. Independent of the issues below, that accepted Post Term Offer To Lease obligated 176 to pay a commission to Regional under para. 2.

INTRODUCTION OF UOR TO 251 BANK

[148] 176 alleges that no commission is payable under the 90 day hold over period because that obligation is conditional upon being “introduced to the property during the listing period” which in the case of UOR, occurred in December, 2010.

[149] 176 submits:

(a) Where a buyer was first introduced to the Property prior to the Listing Agreement with Plaintiff, the buyer could not be said to have been “introduced” to the Property during the Listing Agreement and the holdover provision is inapplicable. Terry Martel Real Estate v. Lovette Investments Ltd. et al.,1981 CarswellOnt 524;

(b) “Introduction is not a term of art or a technical word. It is a word in common usage and should be given its ordinary and accepted meaning”: Martel, at para. 12; and

(c) A listing agent is generally not entitled to a commission unless the agent is the material or the effective cause of the sale upon which the agent is claiming commission: Briardown Estates Inc. v. Refers, 2010 ONSC 1040, at para.74 and diaries P. Rowen & Associates Inc. v. Ciba-Geigy Canada Ltd., 1994 CarswelOnt 234, at para 28.

(d) The court in Martel after considering several dictionary definitions of the word “introduction”, interpreted that word as connoting “initial” or “first” presentation.

(e) The Martel facts and decision deal exclusively with the vendor’s listings of sale and the agreement to purchase that ownership interest during the 90 day hold over period. UOR’s December, 2010 introduction to 251 involved a potential sale of that property. UOR tried, was unsuccessful as to that purchase opportunity and then considered other properties before learning of a different legal interest available from a new owner.

[150] To accept 176’s argument on this point would defeat any lease commission entitlement:

(a) regardless of the nature of the prior legal interest first offered and negotiated, be it sale or lease;

(b) regardless of the termination of that prior purchase opportunity;

(c) regardless that the subsequent and unrelated opportunity was to lease that property; and

(d) from a subsequent and unrelated owner.

[151] That is an inappropriate application and interpretation of the term “introduction” to exclude lease commission liability because UOR was previously “introduced” to a purchase opportunity when it unsuccessfully attempted to buy 251 Bank in October of 2010, failed to do so and then pursued other property opportunities.

[152] The intervening sale of 251 Bank to 176, 176’s subsequent acceptance of a conditional agreement to sell that property to Church of Scientology which UOR was aware of and then UOR’s intention to lease rather than outright purchase 251 Bank are intervening and unrelated events which resulted in the “first presentation” of the new legal leasehold interest which had just become available.

[153] To adopt the interpretation suggested by 176 would disentitle a broker of ever earning a commission in regards to a property, regardless of the passage of time, independent of the legal interest offered and despite changes of property ownership in the interim.

[154] To avoid the above illogical interpretation, “introduction” … “during the Listing Period” must on these facts be interpreted to include communication or notice that the property, although currently listed for sale by a new owner, is now available for lease, namely a legal interest in 251 not before offered to or considered previously by UOR.

[155] UOR was “introduced” during the term of the Regional Listing Agreement to the leasing opportunity regarding 251 Bank, being a new and different legal issue it wished to pursue and not in 2010.

ENTITLEMENT FOR NON-REFERRAL UNDER PARA. 4

[156] 176 through its agent Arif Enterprises breached the obligation to notify Regional of UOR’s enquiries as to leasing 251 Bank as required under para. 4 of the Regional Listing Agreement. Mr. Arif and Arif Enterprises personally and on behalf of 176 committed that breach for their indirect benefit and the direct benefit of a party to which they were related, Synercapital.

[157] UOR’s offer to lease accepted by 176, was presented by Synercapital as agent for UOR. 176 committed in the offer to pay the lease brokerage commission to Synercapital. That provision was carried over into the signed lease.

[158] UOR dealt with Mr. Arif and representatives of Synercapital in negotiating and preparing of UOR’s offers to lease 251 Bank. Mr. Arif inserted Synercapital as UOR’s sole real estate agent in the offers of lease to 176.

[159] The presentation of the offer to lease by a broker other than Regional, pursuant to the Regional Listing Agreement would normally result in a 6% commission payable by 176 of which Synercaptial and Regional would receive 4% and 2% respectively.

[160] Mr. Arif testified however that in the negotiations leading to the signed offer to lease from UOR and the lease to UOR, he was representing 176 and UOR.

[161] 176 by its agent Arif Enterprises cannot:

(a) breach the obligation in para. 4 to advise Regional of UOR’s wish to lease 251 Bank and thereby defeat Regional’s capacity to earn a commission in relation to UOR; and

(b) then successfully use paras. 2 and 3 of the Regional Listing Agreement as a shield to obligate Regional to reduce its commission claim by the amount of commission payable to Synercapital, which the latter would not have been “entitled” to but for the referral breach by 176 as a result of Arif Enterprises and Mr. Arif’s failure to communicate UOR’s enquiry to lease pursuant to para. 4 of the listing agreement.

[162] To permit that result is to encourage the breach of the obligation to advise a broker as required in para. 4. That is contrary to the intention under the Regional Listing Agreement.

[163] These arguments pursuant to paras. 2 and 3 to disentitle or reduce Regional’s commission are rejected for the above reasons.

QUANTUM

[164] Regional’s claim against 176 is for 2% commission, or $122,850.00, plus HST.

[165] The court calculates UOR’s “lease price” of the 3 floors for their respective terms under the lease to be $5,524,050, not $6,142,500 as stated in Regional’s invoice.

[166] $122,850 commission plus HST as claimed however is well below Regional’s legal entitlement against 176, namely what it would have received but for the breach of para. 4 of the Regional Listing Agreement by not communicating UOR’s enquiry to lease 251 Bank.

[167] In the result, Regional is entitled to summary judgment against 176 in the amount claimed.

CONCLUSIONS

[168] The above determinations are based upon the interpretation of written contracts, written documentation in relation thereto plus numerous affidavits and transcripts of cross-examination of deponents on affidavits, other the affidavit filed by Regional. The court has the necessary evidence as to the issues on these motions.

[169] A trial accordingly is not required as to the issues determined herein.

[170] Although the issues as to liability are not identical, there are common issues and much common evidence in this and the Devencore proceeding. Subject to the discretion of the trial judge, these two proceedings are to be tried together or consecutively. To not do so unnecessarily wastes time, resources and unnecessary costs to most if not all of the defendants as well as a waste of public and judicial resources.

[171] For the above reason:

[172] Regional is entitled to summary judgment pursuant to paras 2 and 4 of the Regional Listing Agreement in the amount of $138,820.50, together with pre-judgment interest from the date of Regional’s invoice for the same and post judgement interest from the date of this decision.

[173] 176’s motion for summary judgment is dismissed.

[174] Any party seeking costs shall serve and file brief written reasons within 30 days from the date hereof. Any response thereto shall be served and within 20 days after being served with the cost claim. Any reply thereto shall be served and filed within 10 days thereafter.

Kane J.

Released: June 17, 2015