Court File and Parties

COURT FILE NO.: 14-49332 DATE: 2018-12-31 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

APEX RESULTS REALTY INC., formerly known as Sutton Group Results Realty Inc. Plaintiff

Walter R. Wellenreiter, for the Plaintiff

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SHARIEF H. ZAMAN, EMINENCE LIVING INC., and HIGHER LIVING DEVELOPMENT INC. Defendants

Ivan Marini, for the Defendants

A N D B E T W E E N:

SHARIEF H. ZAMAN, EMINENCE LIVING INC., and HIGHER LIVING DEVELOPMENT INC. Plaintiffs by Counterclaim

Ivan Marini, for the Plaintiffs by Counterclaim

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APEX RESULTS REALTY INC., formerly known as Sutton Group Results Realty Inc. Defendant by Counterclaim

Walter R. Wellenreiter, for the Defendant by Counterclaim

HEARD: December 10, 2018

REASONS FOR JUDGMENT

The Honourable Mr. Justice J. R. H. Turnbull

Nature of the Motion

[1] This is a motion by the plaintiff Apex Results Realty Inc. (Apex) for summary judgment against the defendants, jointly and severally, pursuant to Rule 20.01(1).

[2] The plaintiff sues for the payment of commissions owed under a buyer representation agreement (BRA) signed on February 12, 2012 by the defendant Zaman personally and in trust for a company to be incorporated. The plaintiff alleges that it was read, understood, and executed by the defendant Zaman and it provides for the payment of commissions owed on two properties that were purchased by the defendants during the effective period of the BRA.

Overview of the Facts

[3] The parties agree that a 2012 BRA was executed on February 12th, 2012 by the defendant with its effective date being February 10th, 2012. It was to expire on January 31st, 2013. That agreement appointed the plaintiff Apex Realty and its agent Naeem Rahman the exclusive agent representing the defendants with respect to the acquisition of commercial properties suitable for development and/or residential dwellings for resale in the Greater Toronto Area and the surrounding towns and cities in Ontario. [^1] Paragraph 2 of the agreement reads as follows:

In consideration of the brokerage undertaking [^2] to assist the buyer, the buyer agrees to pay commission to the brokerage as follows: if, during the currency of this Agreement the buyer enters into an agreement to purchase or lease a real property of the general description indicated above, the buyer agrees the brokerage is entitled to receive and retain any commission offered by a listing brokerage or by the seller. The buyer understands that the amount of commission offered by a listing brokerage or by the seller may be greater or less than the commission stated below. The buyer understands that the brokerage will inform the buyer of the amount of commission to be paid to the brokerage by the listing brokerage or the seller at the earliest practical opportunity. The buyer acknowledges that the payment of any commission by the listing brokerage or the seller will not make the brokerage either the agent or subagent of the listing brokerage or the seller.

If during the currency of this agreement, the buyer enters into an agreement to purchase or lease any property of the general description indicated above, the buyer agrees that the brokerage is entitled to be paid a commission of 2.5% of the sale price of the property or commission as offered by the listing brokerage plus HST thereon.

The buyer agrees to pay directly to the brokerage any deficiency between this amount and the amount, if any, to be paid to the brokerage by a listing brokerage or by the seller. The buyer understands that if the brokerage is not to be paid any commission by a listing brokerage or by the seller, the buyer will pay the brokerage the full amount of commission indicated above.

The buyer agrees to pay the brokerage such commission if the buyer enters into an agreement within 90 days after the expiration of this agreement (holdover period) to purchase or lease any real property shown or introduced to the buyer from any source whatsoever during the term of this agreement.

[4] Paragraph 4 of the agreement provided as follows:

The buyer agrees that during the currency of this buyer representation agreement the buyer will act in good faith and work exclusively with the brokerage for the purchase or lease of a real property of the general description indicated above. The buyer agrees that during the currency of this agreement, the buyer shall advise the brokerage immediately of any property of interest to the buyer that came to the buyer’s attention from any source whatsoever and all offers to purchase or lease submitted by the buyer shall be submitted through the brokerage to the seller.

If the buyer arranges a valid agreement to purchase or lease any property of the general description indicated above that came to the attention of the buyer during the currency of this agreement and the buyer arranges said agreement during the currency of this agreement or within the holdover period after expiration of this agreement, the buyer agrees to pay the brokerage the amount of commission set out above in paragraph 2 of this agreement, payable within 5 days following the brokerage’s written demand therefor.

[5] On the last page of that BRA, the defendant Sharief H. Zaman signed that he had read and fully understood the agreement and acknowledged on the date that he signed that he has received a true copy of the agreement. That paragraph is shown is bold dark lettering.

[6] Just above that paragraph, paragraph 9 of the agreement specified:

If there is any conflict or discrepancy between any provision added to this agreement and any provision in the standard pre-set portion hereof, the added provision shall supersede the standard pre-set provision to the extent of such conflict or discrepancy. This agreement, including any provisions added to this agreement, shall constitute the entire agreement between the buyer and the brokerage. There is no representation, warranty, collateral agreement or condition, which affects this agreement other than as expressed herein.

[7] The plaintiff submits and I find on the evidence that:

a) the defendant Zaman purchased 86 Dundas Street East, Mississauga, Ontario using his closely-held corporation, Higher Living Development Inc. during the currency of the 2012 BRA on October 2nd, 2012 for $1,740,000.00;

b) Zaman purchased 45 Agnes Street, Mississauga, Ontario using his closely-held corporation, Eminence Living Inc., during the currency of the 2012 BRA on November 1st, 2012, for the price of $3,750,000.00;

c) Zaman and his closely-held corporations did not disclose to the plaintiff the fact that:

i. They entered into a firm and binding agreement of purchase and sale with the sellers of 86 Dundas Street East and 45 Agnes Street, respectively; and

ii. They closed on the purchases of 86 Dundas Street East and 45 Agnes Street using his closely-held corporations.

[8] Mr. Marini, counsel for the defendants, agreed that those corporations were closely-held corporations controlled by Mr. Zaman. The plaintiffs contend that Mr. Zaman and his closely-held corporations are in breach of the 2012 BRA because they refused and failed to pay the commission that is lawfully due and owing to the plaintiff regarding those purchases.

Background

[9] In November 2010, the defendant Zaman began enlisting the services of Mr. Rahman as a real estate sales representative to assist him in buying and selling properties in the Greater Toronto Area. In November 2010, the plaintiff Apex first had Mr. Zaman sign a BRA for the period November 16th, 2010 to September 11th, 2011.

[10] On May 30th, 2011, Mr. Rahman stopped working for Apex and began new employment as a real estate agent with Breckland Realty (Breckland). On July 17th, 2011, Mr. Rahman had Mr. Zaman sign a new BRA with Breckland. A copy of that agreement was not able to be located by counsel but both counsel were agreed that Breckland went bankrupt just prior to February 2012. In the period July 17th, 2011 to February 1st, 2012, much of the work pertaining to the purchase of 86 Dundas Street was performed by Mr. Rahman pursuant to the Breckland BRA and not pursuant to the Apex BRA.

[11] However, on February 2nd, 2012, as a result of the bankruptcy of Breckland, Mr. Rahman returned to work for Apex, the plaintiff in this action. Shortly thereafter, on February 12th, 2012, the BRA between Apex and the defendant Mr. Zaman was signed with the effective date February 10th, 2012. During his examination for discovery, Mr. Zaman agreed that Mr. Rahman was a responsible and helpful real estate agent who worked hard, listened to Zaman and his partners, answered questions and requests, and obtained information on pricing on comparable properties. In other words, he did what was reasonably asked of him as a real estate sales representative.

[12] Mr. Rahman has sworn in his affidavit that at all material times while working with Mr. Zaman, he made certain that the brokerage for whom he was working was covered by a written and signed BRA.

[13] Mr. Rahman has testified on his examination and in his affidavit filed in support of this motion that he reviewed the BRA with Mr. Zaman in detail before it was signed. Mr. Zaman admits he signed the 2012 BRA but he denies that it binds him because he purports to have had an oral collateral “understanding” with Mr. Rahman. That understanding, according to Mr. Zaman, is that Mr. Rahman always recognized that any commission would be payable by the vendor on any property he purchased. Mr. Rahman denies that any such “understanding” existed and relies upon the terms of the written 2012 BRA.

[14] I have no hesitation in finding on the facts of this case that no collateral understanding as suggested by Mr. Zaman existed or would be enforceable in the face of the specific provisions of the 2012 BRA. I will return to that issue in my analysis below.

[15] Bob Van De Vrande is the president and broker of record for Apex. He has sworn that the 2012 BRA is the agreement that governed the relationship between the plaintiff and Zaman at all material times.

86 Dundas Street East

[16] In and around May 2011, Mr. Zaman became interested in purchasing adjacent properties located at 86 and 90 Dundas Street East in Mississauga for development purposes. Mr. Rahman then began investigating title and ownership to these properties pursuant to the BRA in effect at that time. Initially, Mr. Zaman wanted to purchase both properties. However, only 90 Dundas Street East was listed for sale on MLS. The two properties had separate and unrelated owners. Multiple offers to purchase were prepared and presented by Mr. Rahman on behalf of the defendant on both 90 Dundas Street East and 86 Dundas Street East. Because 86 Dundas Street East was not listed on MLS, Mr. Rahman had to research, identify and locate the representatives and owners of that property. Mr. Rahman prepared and presented several offers executed by the defendant Mr. Zaman to purchase 86 Dundas Street East. The offers increased from $1,350,000.00 to $1,550,000.000 and finally to $1,590,000.00.

[17] Finally, on or about September 1st, 2011, an agreement in principle was reached with the seller of 86 Dundas for a purchase price of $1,590,000.00. As part of this offer, Mr. Rahman delivered a $100,000.00 deposit cheque to the sellers’ real estate representative. The agreement also contained a provision whereby the seller would pay the buyer’s brokerage (i.e. Breckland) commission of 2.5 percent of the total purchase price.

[18] However, in February, 2012, during the due diligence and title searching phase, the lawyers for Mr. Zaman discovered that 86 Dundas Street East (and 90 Dundas Street East) were located on and subject to flood plain issues that negatively impacted Mr. Zaman’s development plans. As a result, Mr. Zaman and his partners decided to terminate the agreement with respect to the purchase of 86 Dundas Street East. On the evidence it appears that the seller was upset about the termination of the agreement and for a time did not want to relinquish the $100,000.00 deposit. Mr. Rahman successfully recovered the $100,000.00 as confirmed by Mr. Zaman during his cross-examination.

[19] Shortly thereafter, Mr. Zaman’s consultants advised him that the flood plain issues could be mitigated. Mr. Zaman and his partners then reconsidered their position and decided that it was worthwhile to purchase 90 Dundas Street East and 86 Dundas Street East. Zaman testified on his cross-examination that eventually he and his partners were facing a “crisis” situation because he had a firm deal to purchase 90 Dundas Street East but the seller of 86 Dundas Street East was resistant and no longer wanted to sell. By March 2012 they had already agreed on closing on the purchase of 90 Dundas Street East. I should note that the plaintiff Apex was properly paid its commission on the purchase of 90 Dundas Street East.

[20] In or about April, 2012, Mr. Zaman asked Mr. Rahman to locate and provide him with the name and direct contact information for the owner of 86 Dundas Street East so that Mr. Zaman could meet personally with her. Mr. Rahman complied and in July or August 2012, Mr. Zaman began meeting directly with her. In due course, after some negotiations, Mr. Zaman and the vendor were able to conclude an agreement whereby Mr. Zaman would purchase the property through one of his holding companies. As noted above, Higher Living Developments Inc. purchased the property on October 2nd, 2012 for the sum of $1,740,000.00. From the time of giving the contact information of the vendor to Mr. Zaman, Mr. Rahman had no further discussions with Mr. Zaman relative to the status of that property. The plaintiff Apex and Mr. Rahman were unaware that the transaction had closed until sometime in 2014.

[21] Mr. Zaman testified during his cross-examination that he did not prevent Mr. Rahman from continuing to “assist” with the purchase of 86 Dundas Street. His evidence is that Mr. Rahman unilaterally stopped his involvement with the purchase of this property. Mr. Rahman said that he felt that Mr. Zaman was avoiding him pertaining to the purchase of 86 Dundas but Mr. Zaman rejected that assertion. I do note that the 86 Dundas Street property had been listed with another real estate agent whose name was “Mr. Lee”. In response to questions during the cross-examination on his affidavit filed in support of this motion, Mr. Rahman said he had been attempting to contact Mr. Lee through phone calls and emails but he had been unsuccessful in reaching him. He also gave an undertaking to produce any emails that he might be able to find relating to those alleged efforts to contact him but that undertaking had not been completed as of the time of this motion. In the circumstances I do not feel that the failure to complete that undertaking is fatal to this motion as the defendants had the obligation to have any offer they made to purchase the property presented through the plaintiff’s agent (Mr. Rahman).

[22] The defence has argued that by virtue of the Breckland BRA, Mr. Rahman has misrepresented his claim for commission for 86 Dundas Street because the evidence is clear that the vast bulk of the efforts he made to assist Mr. Zaman with the purchase of 86 Dundas Street was done under the provisions of an entirely different BRA with Breckland. Mr. Zaman also argued that the suggestion that he was allegedly avoiding Mr. Rahman is directly contradicted by the evidence of Mr. Rahman himself because Mr. Rahman agreed he had continued to have meetings with Mr. Zaman after connecting the vendor with Mr. Zaman, but during those subsequent meetings Mr. Zaman allegedly never raised the topic of 86 Dundas Street during the meetings. I have no doubt that if Mr. Zaman had advised Mr. Rahman that an agreement had been reached for the purchase of 86 Dundas Street, the issue of commission would have been raised at that time and not two years later in 2014.

[23] Mr. Marini argued that if the plaintiff seeks commission for the Dundas Street purchase, he must come to court with clean hands. He noted that in the affidavit filed by Mr. Rahman on this motion, he neglected to mention that most of the work done by him relating to the purchase of 86 Dundas was under the Breckland BRA and not under the Apex BRA. He further noted that the Apex BRA was dated February 12, 2012 but stated to be effective as of February 10, 2012. That latter date is the same date that the last offer was prepared and presented by Mr. Rahman on Zaman’s behalf.

[24] I reject that submission. The fact that some or most of the work done by Mr. Rahman may have occurred prior to the BRA signed with the plaintiff is irrelevant. The BRA provides that Apex will undertake to assist the buyer and does not require the agent to actually assist in every aspect or any aspects of a purchase unless requested and directed by the client. In this case, Zaman effectively cut him out of the negotiations once he and his partners decided to resurrect the deal. If Mr. Rahman had failed to assist when requested or to act appropriately, the defendant arguably could claim the plaintiff had breached the BRA and therefore was disentitled to its commission under the agreement. I do not find that occurred in this matter.

5 Agnes Street

[25] In October 2011, Mr. Zaman advised Mr. Rahman he was interested in purchasing 45 Agnes Street in Mississauga. The property was not listed for sale. As such, Mr. Rahman researched and investigated title and learned that the owner of 45 Agnes Street was a corporation, namely, Cook Street Lands (FBM) Ltd. and that the individual owners behind the corporation were Morris and Fab Lucchese. Mr. Rahman engaged in a series of negotiations on behalf of Mr. Zaman and his closely held corporations with the owners for the purchase of 45 Agnes Street. He assisted in the preparation of offers to purchase and in June of 2012 he delivered a deposit cheque of $100,000.00 to the sellers. Mr. Rahman also included a provision for the seller to pay his brokerage’s (Apex’s) commission of 2.5 percent of the sale price. Once again, in August 2012, Mr. Zaman requested that Mr. Rahman provide him with the direct contact information for the sellers. Shortly thereafter, Mr. Rahman testified that Mr. Zaman stopped communicating with him with respect to 45 Agnes Street. As things evolved, Mr. Zaman personally negotiated a binding agreement of purchase and sale with the seller for a purchase price of $3,750,000.00. Mr. Rahman was not informed that such an agreement had been reached. Mr. Zaman did not inform Mr. Rahman about the changes in price which had been negotiated. He also did not inform Mr. Rahman that the sale would close on November 1st, 2012. Furthermore, Mr. Zaman did not, as required by the BRA, request Mr. Rahman to present the proposed offer (which had been prepared in consultation with his lawyers due to the complex nature of it). [^3] Mr. Zaman has stated the transaction did close on November 1st, 2012 with Mr. Zaman’s closely-held corporation Eminence Living Inc. acquiring it for the purchase price of $3,750,000.00.

[26] The defendants contend that with respect to this transaction, the evidence confirms that the plaintiff’s entitlement to commission, if any, was to be obtained from the seller/owner of the property in question. Mr. Marini in support of that position drew the attention of the court to a copy of a “Customer Service Agreement” dated April 27th, 2012. [^4] That document is described as “a Non-Exclusive Customer Service Agreement” and the only parties to the agreement were the plaintiff and the seller. The agreement contained a specific provision pertaining to the payment of commission in paragraph 2 of the agreement which reads as follows:

“In consideration of the brokerage procuring offer that is closed the seller agrees to pay the brokerages’ commission of 2.5 percent plus taxes of the sale price of the property, commission payable only on closed transaction procured by brokerage.”

[27] The defendant contends that this confirms that as between the plaintiff and the defendants, the plaintiff was at all material times aware that its commission would allegedly be paid by the seller. It is argued that the conduct of the plaintiff, by virtue of the above-noted agreement, is consistent with that fact. The plaintiff submitted that pursuant to its obligation to assist the purchaser in any transaction, it simply was trying to clarify in writing for the benefit of the purchaser, who at all times was responsible for payment of any commission under the BRA, that the seller would pay the commission. I accept the plaintiff’s argument in that respect. Furthermore, I note that that agreement was presented in April 2012 and was not accepted by the vendors.

[28] In support of the defendants’ position, Mr. Zaman relies on a series of emails dated June 20th, 2012, which involved Mr. Rahman, Mr. Zaman and the owners of the property, being Morris Lucchese and Fab Lucchese. In time sequence, the first email is from one of the owners, Mr. Morris Lucchese, to Mr. Rahman, dated June 22nd, 2012, at 16:30:13. [^5] In that email addressed to Mr. Rahman, Mr. Lucchese contended that the Customer Service Agreement, dated April 27th, 2012, was null and void. He then alleged that based on their anticipated net proceeds he was willing to offer a one percent referral fee on successful completion of the sale rather than the fee previously discussed.

[29] Mr. Rahman, after receiving Mr. Lucchese’s email, forwarded his own email to Mr. Zaman, approximately three hours later. That email indicates that he had forwarded Mr. Lucchese’s email to Mr. Zaman.

[30] Nine minutes after receiving Mr. Rahman’s email, Mr. Zaman responded to Mr. Rahman as follows, “As I have said U negotiate W seller. When U made me sign it yesterday you said I had nothing to do with it. I’ve also said you’ve done very little on this deal so keep that in mind when you work it out with the seller. Thanks. Sharief”. The defendants argue that Mr. Rahman is attempting to seek his commission for the transaction from the defendants when he was aware, or ought to have been aware, his commission entitlement on this transaction was only payable by the vendors.

[31] Ultimately, Mr. Zaman negotiated a final agreement with the vendors. This took place during a backyard discussion at his residence in August of 2012. The defendant suggests that the evidence must be seen in the context that the agreed increased price of $50,000.00 that he paid to the vendors was so that the vendors could pay the plaintiff its real estate commission.

[32] I do not concur with that interpretation at all. There was no evidence offered by the defendant from Morris and/or Fab Lucchese that was their intention in obtaining the additional $50,000.00. Additionally, of note, is that the defendants have not added Morris and Fab Lucchese or their company as third parties to indemnify them for any commission payable with respect to the purchase of 45 Agnes Street.

[33] In a series of exchanges during his examination for discovery, at pages 117 to page 119 and pages 120 to 124, Mr. Zaman asserts that it was Morris Lucchese who insisted on an increase in the purchase price of $50,000.00 because “I have to take care of Naeem”.

[34] During his examination for discovery, Mr. Zaman agreed that Mr. Rahman (and the plaintiff Apex) were entitled to a commission on the sale of 45 Agnes but asserted it was 100 percent payable from the vendor. Mr. Zaman stated that in his view the only reason Naeem Rahman did not get paid was that he never approached the vendors because he was “so far removed from them by the time the end happened”.

[35] Counsel for the plaintiff quite properly has noted that to conclude this transaction, Mr. Zaman negotiated directly with the seller. Mr. Rahman was not involved in those negotiations. The offer to purchase which was presented to the vendors was not presented by Mr. Rahman or any other agent of the plaintiff in direct violation of the terms of the BRA.

Issues

Is this an appropriate case for summary judgment under Rule 20?

[36] Rule 20.04 (2) of the Rules of Civil Procedure provides that when the Court is satisfied that there is no genuine issue requiring a trial with respect to a claim, the Court shall grant summary judgment.

[37] In Hryniak v. Mauldin, 2014 SCC 14, the Supreme Court of Canada held that on a motion for summary judgment under rule 20.04, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the new fact-finding powers enacted when Rule 20 was amended in 2010. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure.

[38] In Hryniak supra, the court, in a unanimous decision, gave direction to judges hearing summary judgment motions. In determining whether there is not a genuine issue requiring a trial, the judge hearing the motion must determine if she/he is able to make necessary findings of fact, if he/she can apply the law to the facts so found, and as a result, he/she is satisfied that granting summary judgment is a proportionate, expeditious and cost effective means of rendering a just result.

[39] If, however, there appears to be a genuine issue requiring a trial, then the court should determine if the need for a trial can be avoided by using the new powers under rules 20.04 (2.1) and (2.2). As a matter of discretion, the motion judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if their use will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation.

[40] On a motion for summary judgment, each side must put its best foot forward with respect to the existence or non-existence of material issues to be tried. A party is not entitled to sit back and rely on the possibility that more favourable facts may develop at trial.

Position of the Defendants:

[41] Mr. Zaman argues that despite having signed the BRA and the bold letter acknowledgement within that document confirming that he did in fact read and understand its contents, he was never bound by it (or any other written buyer representation agreement that he read, initialed and signed) because he had an undocumented collateral verbal “understanding” that Rahman and his brokerage would only be paid a commission by the seller of a property that Zaman (and his closely held corporations) purchased.

Analysis

[42] The case at bar involves the interpretation of a contract and weighing the evidence of the parties based on the transcripts of the examination for discovery, the affidavits filed in support of their respective positions and the transcript of the defendant’s cross examination on his affidavit filed in opposition to this motion. It is not a terribly complex matter and in my view is the type of case which warrants such a motion being brought in the interests of expediting the altogether too slow and expensive civil litigation process in this province.

[43] I find that Mr. Zaman read, understood and signed the 2012 BRA personally, and on behalf of his closely held corporations. The 2012 BRA is a valid and enforceable written contract that clearly expresses the intentions of the parties and binds the defendants to pay the plaintiff’s outstanding commissions.

[44] I find that at all material times Mr. Rahman was willing to assist the defendants in any way he could as required under the BRA. It was the defendant Zaman who chose not to involve him in the negotiations and the presentation of the offers which preceded the closing of both transactions.

[45] The defendant Zaman signed the bolded paragraph at the end of the contract which confirmed that he had read and understood the agreement. The record shows that he had participated in a number of real estate transactions and that he was not a novice in the business of buying real estate.

[46] The Real Estate and Business Broker’s Act requires in s. 23(1) that in order for a real estate agent or broker to collect a commission, the agreement must be in writing. Mr. Rahman did what was required of him in law in having Mr. Zaman execute the BRA. As noted, Mr. Zaman had earlier signed a BRA when Mr. Rahman was working for Breckland Realty and agreed to the same relationship and legal obligations when Mr. Rahman returned to Apex in early 2012.

[47] The court is required to interpret the contract in accordance with known and recognized commercial practice. To do otherwise would throw the real estate industry into disarray and confusion. [^6]

[48] At its best, the defendants’ position is that Mr. Zaman did not read or understand the BRA agreement he signed in February 2012. That defies logic as a similar agreement had been signed with Breckland Realty. Mr. Zaman signed the agreement indicating he did understand its terms after having read them. Mr. Rahman had sent the agreement to Mr. Zaman by email to give him the opportunity to read it. In the transaction involving the purchase of 86 Dundas Street, Mr. Zaman referred the matter to counsel to redraft and review the agreement of purchase and sale. There is no evidence that he felt it was necessary to do so before signing the BRA. Furthermore, in both acquisitions before this court, Mr. Zaman followed the same course of action to eliminate the commission otherwise payable to Apex. Mr. Rahman was excluded from the final negotiations and the offers were presented without his knowledge and participation despite a clear contractual obligation that any offer submitted was to be presented by Mr. Rahman and/or Apex.

[44] Mr. Zaman’s oral “understanding” as to commission is invalid and unenforceable. To accept his evidence on that issue would be contrary to law and contrary to the express terms of the agreement he signed. He understood that the agreement affected his legal rights and in the absence of fraud or misrepresentation, which was not argued or suggested by Mr. Marini in his able submissions, he is bound by the document. [^7]

[50] In First Contact Realty Ltd. v. Prime Real Estate Holdings Corp., 2015 ONSC 5511, the defendant signed a BRA with the plaintiff brokerage. As in the case at bar, the BRA provided that a commission was payable to the brokerage by the buyer if the buyer purchased a property during the currency of the BRA. The principal shareholder and controlling mind of the defendant entered into a second agreement of purchase and sale with respect to the same property for which an earlier, unsuccessful offer had been made through the plaintiff. The second agreement of purchase and sale was identical to the first except that the vendor’s name was different. The buyer attempted to avoid paying a commission on that second transaction by claiming that she had reached an oral agreement to terminate the BRA. The plaintiff moved for summary judgment. Healey J. of this court held at para. 25 that there was insufficient evidence to establish the essential elements of an oral agreement to terminate the BRA. The purported oral agreement lacked any specificity with respect to the terms of such agreement, as well as failing to outline the consideration for entering into such an agreement. Summary judgment was granted. I make the same finding in the case at bar with respect to the alleged oral amendment to the BRA asserted by the defendant relative to the purchase of 86 Dundas Street.

[51] In the present case, the 2012 BRA was in effect at all material times. Importantly, paragraph 9 of the 2012 BRA provides:

This agreement, including any provisions added to this agreement, shall constitute the entire agreement between the buyer and the brokerage. There is no representation, warranty, collateral agreement or condition, which affects this agreement other than as expressed herein.

[52] Mr. Rahman could not have made an oral amendment to the BRA which would bind his principal/employer as it would be contrary to law. He would have been required to have the BRA amended in writing. On review of the record, it is clear that he never agreed to such an amendment nor on the evidence do the defendants seriously suggest that he had agreed to such an amendment. At best, Mr. Zaman suggested that Mr. Rahman negotiate directly with the vendor which was not the contractual obligation of the plaintiff’s agent.

[53] The parole evidence rule exists to help parties avoid this type of allegation being made by a contracting party. It effectively precludes the admission into evidence of words which would vary or contradict the terms of a written contract between the parties. Without it, it would almost be impossible to have finality or certainty in contractual relations. It further limits the ability of a party to fabricate evidence to vary or change the terms of a written contract. The parole evidence rule centres the court’s attention on the contract and what the parties have reduced to writing. It creates contractual clarity and certainty. [^8]

[54] Mr. Wellenreiter directed the court’s attention to the transcripts of Mr. Zaman’s examination for discovery held August 10, 2016 and his cross examination on his affidavit conducted July 27, 2018 where he gave certain undertakings which he did not fulfill. He undertook to to provide all emails and communications in his possession between himself and his partners and the sellers of 86 Dundas Street East and 45 Agnes Street. Mr. Zaman has failed and/or refused to answer this undertaking. I draw an adverse inference against him for this failure to produce documents which would clearly have been relevant to what actually did occur at the time that Mr. Rahman was excluded from the negotiations surrounding the final signing of documents for each purchase. At the very least, he could have shown he exercised best efforts to obtain such information. I can only infer that any information contained in that documentation would not have been favorable to him on this motion.

[55] In his motion materials, the defendant raised the suggestion that he suffers from dyslexia which limits his ability to read and understand documents such as the BRA. The allegation of dyslexia is not supported in any way. The defendant has not filed any medical or corroborating evidence to support such a contention. On a motion for summary judgment, a party is required to put his best foot forward and there is a total absence of evidence to support this alleged medical condition. I reject it as having any relevance in my consideration of this matter. Mr. Marini did not seriously pursue this argument in his submissions.

[56] I find on the facts in the record before this court that Zaman withheld relevant information, conducted meetings and negotiations to the exclusion of the plaintiff’s representative, entered into binding agreements of purchase and sale without the plaintiff’s knowledge, purchased properties using closely held corporations without disclosing the names or identify of those corporations to the plaintiff, and generally took steps that were designed to avoid paying commissions that were, and remain, properly due and owing to the plaintiff.

Conclusion:

[57] In the result, there is no genuine issue requiring a trial. The motion for summary judgment is granted.

[58] The plaintiff shall have judgment against the defendants Sharief H. Zaman and Eminence Living Inc. in the amount of $105,937.50 (inclusive of HST) plus pre-judgment interest from October 2, 2012 and post judgment interest from the date of this judgment in accordance with the Courts of Justice Act.

[59] The plaintiff shall have judgment against the defendants Sharief H. Zaman and Higher Living Development Inc. in the amount of $49,155.00 (inclusive of HST) plus pre-judgment interest from November 1, 2012 to the date of this judgment and post judgment interest from the date of this judgment in accordance with the Courts of Justice Act.

[60] Counsel did not make any submissions to the court with respect to the disposition of the counterclaim. Hence, I will make no ruling with respect to it.

[61] If the parties are unable to reach an agreement on costs, counsel may each make brief submissions in writing, not longer than three single-spaced pages. Those submissions plus any offers to settle, case law authorities and costs outline on which they seek to rely shall be served and filed in accordance with the following schedule. The plaintiff’s submission are due by January 12th, 2019, the defendants’ by January 20th, 2019 and any reply by January 25, 2019. All submissions are to be directed to the office of the judicial assistants at the John Sopinka Courthouse, suite 626.

TURNBULL J. Released: December 31, 2018

Footnotes

[^1]: Per Exhibit A to the affidavit of Naeem Rahman, sworn January 31st, 2018, Volume 2, plaintiff’s motion record [^2]: All underlining in this judgment is done by this Court for emphasis. [^3]: See Exhibit K to the Affidavit of Sharief H. Zaman, sworn July 9th, 2018 [^4]: Tab J to the Affidavit of Mr. Zaman [^5]: Tab H to the affidavit of Mr. Zaman, sworn July 9, 2018. [^6]: Salah v. Timothy’s Coffees of the World Inc., 2010 ONCA 673, at para. 16 [^7]: Aviscar Inc. v. Muthukumaru, 2009 CarswellOnt 4003 at para. 21 citing Karrol v. Silver Star Mountain Resorts Ltd., [1998] B.C.J. No. 2266 (B.C.S.C.) [^8]: Jones Collombin Investment Counsel Inc. v. Fickel, 2016 ONSC 6536 at para. 23, citing Creston Moly Corp. v Sattva Capital Corp., 2014 SCC 53 at para. 59