COURT FILE NO.: 14-60821

DATE: 2018/03/07

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

RYAN BARRESI and 6491243 CANADA INC.

) Sean Bawden and Jennifer Thenien, for the ) Plaintiffs/Defendants by Counterclaim

Plaintiffs/Defendants by Counterclaim )

-and- )

JONES LANG LASALLE REAL ESTATE SERVICES, INC. )

Defendant/Plaintiff by Counterclaim )

Jock Climie and Porter Heffernan, for the Defendant/Plaintiff by Counterclaim

HEARD: October 23-27, 2017

REASONS FOR JUDGMENT

AITKEN J.

Nature of the Proceedings.......................

Background Facts .................... Witnesses

................... 3

..................................................................... 3

................................................................ 15

Rectification of the May Agreement............................................................................................ 17

Interpretation of the May Agreement........................................................................................... 20

Principles of Contractual Interpretation................................................................................ 20

Meaning of Ottawa Practice Lead for Investments............................................................... 21

(a) Ba1Tesi's Goals.................................................................................................. 22

(b) Evidence Regarding the Parties' Mutual Understanding about Banesi's Role.... 23

(c) Findings Regarding a Mutual Understanding re Opportunities............................ 28

Repudiation of the May Agreement............................................................................................. 33

Jurisprudence....................................................................................................................... 34

Analysis.............................................................................................................................. 35

Negligent Misrepresentation......................................................................................................... 38

Counterclaim............................................................................................................................... 41

Costs.......................................................................................................................................... 41

Nature of the Proceedings

[1] Ryan Barresi ("Ban-esi") and his company, 6491243 Canada Inc. ("649"), collectively referred to as "the Plaintiffs", seek a declaration that the Independent Contractor Agreement made between the Plaintiffs and the Defendant, Jones Lang LaSalle Real Estate Services, Inc. ("JLL"), was terminated by JLL for a reason other than an "Event of Default" on the pait of Barresi, thus rendering the debt otherwise owing by the Plaintiffs to JLL under the agreement automatically forgiven. The Plaintiffs also seek general damages for negligent misrepresentation in the amount of $500,000 and special damages in the amount of $5,000.

[2] By counterclaim, JLL seeks a declaration that the Independent Contractor Agreement was terminated by Barresi for a reason other than an "Event of Default" on the part of JLL or, in the alternative, that the agreement was terminated by JLL for an "Event of Default" on the pait of BaiTesi. JLL also seeks repayment of the balance of the outstanding loan to the Plaintiffs, together with all legal fees associated with its collection, and payment of that po1tion of advances made to Barresi under the agreement that have not been recovered by JLL from commissions owing to Barresi.

Background Facts

[3] Barresi is the sole shareholder, officer, and director of 649. He is licensed to trade real estate as a real estate broker under the Real Estate and Business Brokers Act, 2002, S.O. 2002, c. 30, Sch. C (the "Act"). Barresi is an expe1ienced real estate broker, having practised for over 25 years in the area of commercial and residential real estate. For most of his career, Barresi has been associated with the commercial real estate brokerage firm Cushman & Wakefield, a competitor of JLL. Most of BatTesi's sales of commercial real estate in the years leading up to his departure from Cushman & Wakefield were below$5 million. He had never brokered on his own properties in excess of $7 million.

[4] JLL is incorporated under the Ontario Business Corporations Act, R.S.O. 1990, c. B. 16, and carries on business in Ontario as a professional services and investment management company specializing in real estate. Its head office is in Toronto. At all material times, Brett Miller ("Miller") was the President of JLL.

[5] In approximately 2011, JLL had approached Ransome DrCar ("DrCar"), an associate of Barresi who was responsible for commercial leasing at Cushman & Wakefield. DrCar brought Barresi into the discussions. Neither man was impressed with what JLL was offering at the time. Both decided to remain with Cushman & Wakefield. In 2013, JLL initiated further overtures to both DrCar and Barresi. Both decided to take the leap from Cushman & Wakefield to JLL after both were told they could be the Ottawa Practice Lead in their respective domains. Barresi and DrCar had two meetings with Miller before signing their respective independent contractor agreements in March 2013.

[6] On March 11, 2013, BaiTesi and Miller signed an Independent Conh·actor Agreement dated March 4, 2013 (the "March Agreement"). The March Agreement stated that it was between Barresi (the "Contractor") and JLL and spoke of the services that Barresi, as a licensed real estate broker, would provide JLL. Neve1iheless, on the signing page, 649 was listed as "the Contractor" and Barresi purpotiedly signed on its behalf. DrCar also signed a parallel agreement with JLL at this time.

[7] Some of the pe1tinent terms in the March Agreement (Exhibit 1) include:

• The agreement was an independent contractor agreement, and not an employment agreement.

• The Contractor was being retained by JLL to provide real estate and related advisory services to JLL including, but not limited to, those outlined in detail in Appendix A to the agreement. These will be discussed below.

• The Conh·actor was free to perform services for other parties while performing services for JLL, unless forbidden under the tenns of the Act.

• JLL was to pay the Contractor commissions pursuant to JLL's standard commission split rates as set out in the Canada Transactor Compensation Plan (the "Plan"), attached to the agreement as Appendix B. The Contractor was to receive commission payouts following confirmation by JLL that the deal had been recognized in accordance with JLL corporate policy and the commission payment

received. Schedule A to Appendix B provided JLL's Canada Standard Commission Splits.

• JLL had not given and was not giving the Contractor any warranty or representation in any format as to his potential success in the business of real estate or as to the level of commissions he might receive.

• The Contractor was to receive a forgivable loan from JLL in the amount of

$225,000 pursuant to the terms of the promissory note attached to the agreement as Appendix C. The promissory note was in the name of 649 but Barresi signed a personal guarantee attached as Appendix D. More will be said of these documents below.

• The Contractor was entitled to a monthly advance of $6,000 up to December 31, 2014. The advance was repayable from the commissions earned by the Contractor. "In the event the remaining balance of the advances [was] not covered by accrued commissions, [the] Contractor agree[d] to pay any remaining balance owing to [JLL] directly from his own source of funds no later than 30 calendar days following the termination or expiration of [the agreement] for any reason".

• The agreement and the schedules and appendices attached to it constituted theentire understanding and agreement of the parties and superseded any prior agreements concerning services between the parties.

• The appendices attached to the agreement formed part of it. To the extent of any inconsistency between the appendices and the terms and conditions of the agreement, the terms and conditions of the agreement prevailed.

[8] In regard to referrals, the March Agreement stated:

E. Referrals

1. The Contractor acknowledges the importance of the Company referral system and will make best commercial efforts to refer each request for real estate services in another city to a Jones Lang LaSalle broker or agent. Such referral is to be in writing and processed through the Managing Broker of each applicable Jones Lang LaSalle office.

2. The Company will promote the services of the Contractor throughout the Jones Lang LaSalle network and do whatever is reasonably necessary to assist the Contractor to develop business opportunities.

[9] In regard to termination, the March Agreement stated:

0. Termination of Agreement

1. In the event the Contractor violates any material te1m of this Agreement or othe1wise fails to conduct business in accordance with the te1ms of this Agreement or fails to maintain his authorization/license as a real estate broker, the Company will advise the Contractor in writing as to the violation or wrongful conduct and the Contractor will be given ten (10) calendar days to cure any breach of this Agreement that is curable. Failure on the patt of the Contractor to cure any breach or violation of this Agreement will constitute a material breach ("Event of Default") and the Company may then terminate this Agreement immediately without advance notice and no payment/cancellation fees being paid as a result. Such termination by the Company must be in writing and must state the full details of any breach or violation.

2. Either the Contractor or the Company may te1minate this Agreement for

convenience on one (1) month written notice to the other.

[10] Appendix A to the March Agreement read as follows:

March 5, 2013 To replace Appendix A appearing in the Agreement dated March 4, 2013

APPENDIX A - SERVICES

General Services:

• Contribute to professional business development activities.

• Provide a professional level of real estate based advisory and transactional services to clients.

• Contribute to the Company achieving its gross revenue and net operating income objectives.

• Contribute to the general business development efforts of the Company by representing the Company.

• Contribute expe1tise in a team-based setting to various business opportunities conducted by other Company employees.

• Constantly maintain an active inventory of "deals in progress" through ongoing client marketing and deal generation activities.

Specific Services:

In particular, you will be responsible for providing the following services:

• Provide leadership of the Ottawa investment [sic] including team management, recruiting, expense control and revenue generation such subject to meeting all the criteria to be a Practice Lead as per the Company's Practice Lead Compensation Plan.

• Generating annual revenue by completing real estate transactions to meet at least minimum revenue/perfmmance targets as reasonably determined from time to time in good faith by the President of the Company or acting Local Practice Leader (if applicable).

• Any other reasonable duties and responsibilitiesthat may be assigned to you by the President of the Company or acting Local Practice Leader (if applicable).

[11] The Practice Lead Compensation Plan (the "PLC Plan") was also attached to the March Agreement. The following excerpt from the PLC Plan outlined the general duties of practice leads:

Practice Leads are expected to carry out the following duties:

(a) Active involvement in the recruiting process;

(b) Mentor, train and develop your junior brokers;

(c) Increase productivity for everyone on your team;

(d) Manage your team and budgets effectively;

(e) Act as a leader and ambassador for JLL Canada (both internally and in the community); and

(f) Resolve conflicts amongst team members.

[12] Aside from dealing with performance bonuses, annual evaluations, performance reviews, and the fact that the PLC Plan was separate from the independent contractor agreement signed by the parties, the PLC Plan did not set out any obligations of JLL toward practice leads.

[13] Upon reflection, both Barresi and DrCar were of the view that the agreements they signed in March did not adequately protect their interests. They engaged in further negotiations with Miller to ensure that their status as Local Practice Lead was reflected in the written agreements. Miller was amenable to the proposed changes.

[14] On approximately May 6, 2013, Barresi and Miller signed and initialled a revised Independent Contractor Agreement (the "May Agreement"), which revised the March Agreement as follows:

• The commencement date of the agreement was revised to be July 2, 2013.

• The $225,000 forgivable loan was to be advanced on the commencement date.

• Barresi 's entitlement to a full recourse advance and draw was extended from December 31, 2014 to December 31, 2018.

• In the event of the termination of the agreement "without cause", any outstanding amount owed by Barresi on account of the full recourse advance would be forgiven.

• Section S. Practice Lead, detailed below, was added to the agreement.

• In Appendix A - Services, the following provision that had been included in the March Agreement did not appear:

Provide leadership of the Ottawa investment [sic] including team management, recruiting, expense control and revenue generation such subject to meeting all the criteria to be a Practice Lead as per the Company's Practice Lead Compensation Plan.

[15] Section S. Practice Lead in the May Agreement read as follows:

The parties expressly acknowledge and agree to the following:

(a) In addition to can-ying out your duties under this Agreement, you have also agreed to accept a separate role as a Company Local Practice Lead for the Office on a probationary basis in accordance with the terms contained under the Practice Lead Guidelines attached hereto as Appendix D.

(b) You will be evaluated on a regular basis as to your suitability to continue to act as a Practice Lead for the office and the Company reserves the 1ight to revoke your status as a Local Practice Lead at any time and without prior notice in accordance with the terms of the attached Practice Lead Guidelines. Just because you may no longer be a Local Practice Lead in the future does not mean that you are no longer a valued member of the Company.

(c) The terms of the attached Practice Lead Guidelines is a separate and distinct airnngement from this Agreement.

(d) This Agreement will not terminate just because you are no longer acting as a Local Practice Lead, and you expressly waive your right to bring a claim against the Company in the event that your status as a Local Practice Lead is revoked. To be clear, you agree that you have no claim whatsoever against the company in the event of the revocation of your status as a Local Practice Lead.

[16] During his tenure with JLL, Barresi was expressly authorized to hold himself out as a Vice President of JLL and the Local Practice Lead in the Ottawa area, though he was not permitted to list these titles on his business cards.

[17] The parties agree that the May Agreement is valid and enforceable. The parties disagree as to whether the court can or should rectify the terms of the May Agreement pmsuant to any discretionary powers it may have under the circumstances. The patties also disagree as to whether the May Agreement is ambiguous or unclear and whether reference should be made to other evidence to determine its meaning.

[18] Pursuant to the tenns of the May Agreement, Barresi received a forgivable loan in the amount of $225,000 from JLL. The terms of the forgivable loan were detailed in the Promissory Note given by 649 and guaranteed by Barresi. The Promissory Note provided that:

For value received the undersigned MAKER, 6491243 Canada Inc., executes this Promissory Note ("Note") in favour of HOLDER, Jones Lang LaSalle Real Estate Services, Inc. (or its successors and assigns) ("HOLDER"). Maker promises to pay to or to the order of Holder the sum of TWO HUNDRED TWENTY FIVE THOUSAND CANADIAN DOLLARS (CAD$225,000.00) (the "Debt") in lawful

money of Canada, without interest subject to and in accordance with the terms and conditions set out in the independent contractor agreement made as of March 4, 2013 (the "Agreement") between the Maker and the Holder and in accordance with the provisions of this promissory note ("Note").

[19] Provision was made in the Promissory Note for an amount to be, in essence, forgiven each year that the agreement remained in effect based on a percentage of the annual gross revenue presumably generated by Barresi. In addition, the following te1ms were included in the Promissory Note regarding its repayment:

(a) The balance of the Debt then outstanding shall be repayable by the Maker in the event that the Contractor terminates the Agreement for convenience pursuant to the provision of Section N thereof. [This should read Section 0.2 thereof.]

(c) The balance of the Debt then outstanding shall be repayable should the Maker terminate the [sic] for any reason other than an Event of Default by Holder, or if the Holder te1minates the Agreement on the occurrence of an Event of Default on the part of the Contractor (the Maker herein) pursuant to the provisions of Section N thereof. [This should read Section 0.1 thereof.]

(d) Subject to paragraph (e), the balance of the Debt shall be forgiven immediately in the event that the Agreement is terminated by the Holder for any reason other than the occurrence of an Event of Default on the part of the Contractor (the Maker herein) or pursuant to Section N.2 of the Agreement. [This should read Section 0.2 thereof.]

(h) In the event the remaining balance of the Debt becomes repayable in accordance with paragraph 1(c), Maker agree to pay on demand all out-of-pocket costs and expenses of Holder (including the reasonable legal fees and out-of-pocket expenses of counsel to Holder) incurred in connection with the enforcement of this Note.

[20] Barresi did not provide services to JLL until approximately August 15, 2013.

[21] Barresi, DrCar, and Miller all agree that, during the pre-contract discussions, the existence of national groups at JLL was discussed. I accept Barresi's evidence that the existence ofa national investment group was not of concern to him; they existed in all large brokerage firms. His only concern was that, if members of the national investment team came into the Ottawa market, they would work with Barresi and share commissions with him. His expectation was that the national investment team would speak to the local practice lead for investments and together they would decide how best to serve the client's needs. Barresi understood this to be the form of collaboration and cooperation that Miller discussed at length with him and DrCar during the negotiation stage for their contracts. Miller said nothing to disabuse Barresi of that understanding and confirmed that JLL had fee or commission-sharing policies that would apply in the situation.

[22] It was only at the new employee orientation meeting in Toronto on October l, 2013, that Barresi learned in greater detail about the existence of the National Retail Investment Group ("NRIG") of JLL. NRIG consisted primarily of two very experienced and successful commercial real estate brokers, Matthew Smith and Hugh O'Connell ("O'Connell"), who, since 2002, had specialized in thesale of major commercial real estate properties across Ontario and, in more recent years, throughout Canada. Matthew Smith and O'Connell joined JLL in January 2013 with a view to expanding their national practice, though their arrival at JLL was not officially announced until later in the year.

[23] In early December 2013, at a Toronto meeting ofpractice leads, each practice lead provided a slide presentation to introduce himself or herself and to explain what he or she hoped to

accomplish at JLL. Mathew Smith made such a presentation for NRIG. Andrew MacLachlan, the local Calgary Practice Lead, raised concerns at the end of the meeting about the potential impact NRIG's activities could have on the business opportunities and potential commissions of local brokers. I accept Barresi's evidence that Miller undertook to consider how NRIG should operate in local markets with local brokers so that everyone was satisfied with the anangement. There was no evidence that Miller dealt with the concerns raised by local brokers.

[24] As an aside, in the slide presentation made by Barresi as to his role as the Ottawa Practice Lead for investments, he described his concentration in the investment business as being on privately owned properties wo1ih $3 to $20 million.

[25] Although Miller had no recollection of Banesi personally raising any concerns with him about NRIG, I find that Barresi did so following the December meeting. As Miller, himself, acknowledged, Banesi was very focused on protecting his status as Ottawa Practice Lead for investments. I have no doubt that, in communications with Miller following the December meeting, BmTesi voiced his personal concerns. Miller again promised to consider the concerns and get back to Barresi. At the time, he undertook to advise Barresi if and when properties were going to be listed by NRIG in "his market", Ottawa.

[26] In late 2013, during a monthly update call with the Ottawa office, Miller learned from Barresi that he would be submitting an offer to the Toth brothers, significant real estate investors in the Ottawa area, in regard to one of their Ottawa shopping plazas, the Towne and Country Village. The offer was from an out-of-country client of Barresi and, according to Banesi, he was authorized to submit the offer in the name of 649 because the client was unavailable to sign any paperwork. The offer was for $13,175,000. Miller told Banesi that he should contact NRIG to get their help on the file. Barresi was non-committal in this regard. Miller also advised Barresi that he was not in favour of Banesi engaging in off-market sales, where he took an offer to the vendor without first getting a listing agreement with the vendor. Barresi had operated on this basis many times in the past and wanted to continue doing so.

[27] At some later date, Miller learned from NRIG that they would be listing two Toth shopping plazas in Ottawa - the Towne and Country Village (for $16,000) and the Towngate Shopping Centre (for $35,000). At that point, Banesi had not contacted NRIG in regard to the Toth

properties, and neither Matthew Smith nor O'Connell had contacted Barresi to advise him of their activities in Ottawa.

[28] In early April 2014, NRIG prepared postcard advertisements for the two Toth prope11ies. Neither Barresi's name nor his contact information was provided on those postcard advertisements. Neither NRIG nor Miller advised Banesi that JLL (through NRIG) was marketing these two prope11ies. Barresi found out about the listings when his clients called to inquire why his name did not appear on the advertisements.

[29] On April 9, 2014, Barresi emailed Miller to raise his concerns about NRIG's move into the Ottawa market. When he did not hear from Miller, he sent him a follow-up email on April 23, 2014. In that email, he stated that he had been hired to lead the investment practice in Ottawa and to participate in all investment transactions in the Ottawa market. He bemoaned the fact that his brand and JLL's brand in the Ottawa market had been diluted by his not being included in the listing. He also stated that the NRIG platform did not comply with JLL's cross-selling guidelines and he expected to receive 60% of any fees generated from the NRIG sale of the properties in question.

[30] On April 24, 2014, Miller responded with an apology (Exhibit 19). He stated:

When Matt and Hugh talked to me about the Ottawa file we had a discussion about who should reach out to you. We decided that it was best for me to do so and mea culpa [sic], my bad and completely inexcusable ... I neglected to call you to provide a heads up on the file. I am sorry for this. It slipped off my radar and thus you first learned of the file through the market. I understand how this could cause embarrassment and I take full responsibility for the mistake. It will not happen again.

[31] Miller went on to propose a conference call meeting the following day in Ottawa to discuss a variety of topics, including:

• JLL approach to business lines and geographies;

• NRIG's mandate and functioning;

• the Ottawa Investment Team - its commitment from JLL, market niche, market coverage, collaboration with other teams, market expertise, operating model, mandated versus off market business, and database build;

• the Practice Leader - role and responsibilities, connection with the JLL platform, team leadership, role in the Ottawa office, availability and presence;

• training - integration into the JLL platform, connecting with the Capital Markets teams; and

• any contractual issues that BatTesi wanted to discuss.

[32] When BatTesi responded that he did not want to have a conference call until Miller responded in writing to the concerns Barresi had raised about NRIG, Miller offered to come to Ottawa early the following week for a face-to-face meeting. That meeting occurred at the airport on the morning of April 29, 2014. According to BatTesi, Miller was firm that there was a $10 million cap on the value of properties he could market in Ottawa and that, if he wished to market a retail property with a higher value, he was obliged to involve NRIG. NRIG would then determine whether they would handle the transaction on their own or include Barresi on the marketing team. Miller also told Barresi that JLL was folTillng other national groups for industrial and multi­ residential properties. Like NRIG, those groups would be free to market properties across Canada with a value in excess of $10 million without necessarily involving the local practice leads. Miller instructed BaiTesi to focus on transactions in the $1 to $10 million dollar range.

[33] Miller testified that BaITesi was confrontational at the meeting and demanded to know what Miller was going to do about NRIG moving into the Ottawa market with no advance warning to or involvement of BatTesi. Miller tried to expand the conversation to include his concerns about Barresi's poor performance over his time at JLL. According to Miller, BatTesi had not closed one transaction; he was not making use of two powerful software tools that would help Barresi, but also JLL more generally, in marketing endeavours; he was not paiticipating regularly on national practice lead calls; and he was focusing on endeavours such as off-market transactions and syndications that were outside the area of expertise for which he had been hired by JLL. According

to Miller, Barresi did not want to address any of those concerns but instead focused solely on the two NRIG listings in Ottawa.

[34] I find that, at the April 29, 2014 meeting, Miller made it clear to BatTesi that NRIG was entitled to pursue all retail investment opportunities in Ottawa of a value in excess of $10 million with no obligation on NRIG's part to advise Barresi of their activities, to partner with BatTesi, or to include him in some fashion in the project.

[35] I find that, in an eff01t to be conciliatory, and as a good-will gesture only, Miller offered to share with Barresi some of the company's portion of any commission earned by JLL on the Toth deals. This was a one-off offer and would not involve any reduction in the commissions earned by members ofNRIG. There was no acknowledgement that Barresi was entitled to any portion of the commissions earned from the sale of the Toth prope1ties or that he would be entitled to any such sharing in the future. According to Miller, no resolution was arrived at during the meeting, but he hoped that Barresi would consider both his offer and how Barresi could improve his performance.

[36] Instead, Barresi's Statement of Claim in this action was issued on May 9, 2014.

[37] Meanwhile, on April 9, 2014, Barresi had contacted Nathan Smith, his former mentor at Cushman & Wakefield, for advice as to how to deal with Miller in regard to the NRIG issue. On May 14, 2014, Barresi entered into an independent contractor relationship with Cushman & Wakefield. Barresi transferred his RECO licence back to Cushman & Wakefield from JLL effective May 15, 2014. Barresi received no payment from Cushman & Wakefield in consideration of his return.

[38] Barresi earned $84,000 in gross revenue in 2014, while under contract with JLL.

[39] Barresi received a draw against commissions from JLL in the amount of $48,000, and

$42,000 of that draw was paid down through his share of the commissions which he earned while under contract with JLL. Six thousand of that draw remains outstanding.

[40] The outstanding amount of the $225,000 forgivable loan from JLL to 649 is $216,600, not including interest.

[41] Barresi earned the following incomes while engaged by Cushman & Wakefield:

• 2009: $108,785 (employment income)

• 2010: $235,349 (employment income)

• 2011: $176,868 (employment income)

• 2012: $233,141 (commissions)

• 2013: $73,700 (commissions)

[42] In 2014, Barresi's reported gross business income was $25,005. In2015, Barresi's reported gross business income was $54,145.

[43] When Barresi left JLL, DrCar remained as the Ottawa Practice Lead for tenant representation at JLL. He testified on behalf of JLL.

Witnesse

[44] Barresi was a tentative witness with a poor memory. Throughout much of his testimony, he had difficulty remembering when and where events occurred, who was present at those events, what precisely was discussed, who made handwritten changes to documents, who initiated those amendments, and who initialled the changes. BatTesi acknowledged by the end of his testimony that he had trouble remembering much of what happened two and a half years ago. Barresi's poor memory was apparent in his response to a Request to Admit and in responses at his examination for discovery. Although Barresi was not a reliable witness in many respects, I find that he was not making a conscious effort to mislead the court and, on some key points, I accept his evidence as being more accurate than that of Miller.

[45] Nathan Smith's testimony was of marginal relevance to the issues at this trial. His explanation of how Cushman & Wakefield operate their offices and referrals from one region to another helps to explain the assumptions made by Barresi when he joined JLL, but does not assist in interpreting the May Agreement between Barresi and JLL. His evidence supports Barresi's

claim that his standing in the Ottawa commercial real estate community was damaged by his name being left off the JLL listing of the two Ottawa shopping plazas.

[46] Miller provided his evidence in a confident fashion. Much of that evidence related to his vision for JLL and the standard spiel he gave to those he was trying to recruit for JLL, like Barresi and DrCar. When it came to specifics regarding pre-contract and post-contract discussions with Barresi, on most occasions, Miller could recount more detail than Barresi. That being said, there were problems with aspects of Miller's evidence.

[47] I find that Miller purposely underestimated the ambiguity created by the lack of a written description of "Ottawa Practice Lead for investments" in the May Agreement. He danced around the issue of NRIG's interface with local practice leads and the local market, and how he had explained that over time to Barresi. Although he spoke proudly of the values of cooperation, collaboration, and transparency that were to infuse the interactions between JLL personnel, he could not adequately explain why those same values and derivative expectations in practice did not apply to NRIG in their interactions with the local JLL offices. Finally, he offered no credible reason as to why Ba1Tesi - a very knowledgeable and experienced commercial real estate broker in Ottawa - would bring no value whatsoever to the marketing of the Toth properties in Ottawa. Toth was a local Ottawa businessman. Barresi knew Toth and had brought him offers in the past. Barresi knew and had worked with other private family investors in Ottawa with the financial means to purchase these properties. Barresi knew about the communities where these properties were situated. Clearly Barresi could have offered some value to a team effort to sell these prope1iies. It did not do Miller's credibility any credit to insist that that would not have been the case.

[48] DrCar remains an independent contractor of JLL. This raises an issue as to his independence in providing evidence helpful to JLL. A further issue was raised as to the potential tainting of his evidence due to JLL's counsel showing him a document prepared by Ba1Tesi during contract negotiations for submission to JLL's investment committee. In that document, Barresi indicated that he intended to work on projects having a value in the range of $1 to $10 million. During examination-in-chief, DrCar referred to Barresi having expertise in the mid-market investment brokerage, which DrCar pegged at the $1 to $10 million range. Under cross-

examination, it became apparent that DrCar had chosen this range to describe the type of work that Barresi was supposed to do for JLL after having been influenced by what he read on the document shown to him by JLL's counsel during trial preparation. He could not recall Barresi ever identifying himself as "a $1 to $10 million dollar guy".

[49] During examination-in-chief, DrCar gave the impression that during pre-contract discussions between himself, Miller, and Barresi, the role ofNRIG inthe JLL framework had been explained in some detail. Under cross-examination, DrCar clarified that national groups had been referenced during those discussions, but he could not recall what exactly had been said about a national retail investment group. As well, as far as DrCar could remember, Miller did not tell Banesi and DrCar the names of the members ofNRJG.

[50] Matthew Smith, a member of NRJG, also testified on behalf of JLL. The most significant aspect of his evidence was that, despite the emphasis Miller placed on collaboration, cooperation, team work, transparency, service to clients, and maximization of company potential at JLL Canada, Matthew Smith saw no need to advise Barresi that he was coming to Ottawa to meet with the owner of two shopping plazas in an effmt to get the listings for those propetties. He did not meet with Barresi when he was in Ottawa. He and O'Connell proceeded to get the listings and adve1tise the prope1ties, without advising Barresi. No reason was given as to why, in the environment oflofty ideals at JLL, no effmt whatsoever was taken to respect Barresi's position in the local market, to take advantage of his knowledge and client base, or even to act in a courteous and collegial way with him. No doubt the prospect of not having to share any potential commissions was a powerful antidote to collegiality, and remains a powerful motivator to this day.

Rectification of the May Agreement

[51] Barresi asks that "Specific Services" in Appendix A to the May Agreement be rectified to include the first paragraph appearing under this heading in Appendix A to the March Agreement. That paragraph reads:

In particular, you will be responsible for providing the following services:

• Provide leadership of the Ottawa investment [sic] including team management, recruiting, expense control and revenue generation such subject to meeting all the criteria to be a Practice Lead as per the Company's Practice Lead Compensation Plan.

[52] There is no disagreement that a typographical enor was made in the first line of the bullet point and the missing word following "investment" is ''team".

[53] In Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56, [2016] 2 S.C.R. 720, at para. 38, Brown J. summarized the law relating to rectification as follows:

To summarize, rectification is an equitable remedy designed to conect errors in the recording of te1ms in written legal instruments. Where the error is said to result from a mistake common to both or all parties to the agreement, rectification is available upon the court being satisfied that, on a balance of probabilities,there was a prior agreement whose terms are definite and ascertainable; that the agreement was still in effect at the time the instrument was executed; that the instrument fails to accurately record the agreement; and that the instrument, ifrectified, would cany out the parties' prior agreement.

[54] I accept Barresi's evidence that, when he signed the May Agreement, he understood that Appendix A from the March Agreement had remained unchanged in the May Agreement. His attention was not drawn to the fact that the first paragraph under "Special Services" had been deleted.

[55] I find that Miller, on behalf of JLL, also understood that Appendix A from the March Agreement remained unchanged in the May Agreement. He acknowledged under cross­ examination that JLL intended Banesi to do the same services as those listed in the first bullet point under "Special Services" in the March Agreement. He acknowledged at discovery that there had been no intention to remove that bullet point from the operative contract. Miller had not instructed JLL's counsel, Paul Greven ("Greven"), to delete the first bullet point under "Special Services" when amending the March Agreement to become the May Agreement. Miller had simply instructed Greven to add section S. Practice Lead into the body of the May Agreement. When Greven sent the amended agreement to Miller on April 26, 2013, Greven provided a list of the changes he had made to the March Agreement - that list did not include any reference to the deletion of the first bullet point under "Special Services". When Miller forwarded the agreement to Barresi on April 29, 2013, he made no reference to any deletion having been made. Neither Miller nor Barresi initialled Appendix A in the May Agreement to acknowledge the existence of an amendment from the March Agreement. Finally, Miller acknowledged that he had not drawn

Barresi's attention tothedeletion of the first bullet point when the two were initialling amendments to the May Agreement and signing it.

(56] When asked on discovery whether he, or JLL, intended the first bullet point to form part of the agreement between JLL and Barresi, Miller answered with an unequivocal "yes". Under cross-examination at trial, Miller tried to backpedal from this admission - but without conviction. He suggested that section S. Practice Lead in the May Agreement included the same content as that in the first bullet point under "Special Services" in the March Agreement, rendering that bullet point redundant. However, that is not the case. Section S. Practice Lead does not include any statement incorporating the terms in the first bullet point under "Special Services" in the March Agreement.

(57] Barresi has succeeded in showing that:

• He and Miller, on behalf of JLL, had a common continuing intention prior to the making of the May Agreement that the first bullet point under "Special Services" in Appendix A to the March Agreement would be included under "Special Services" in Appendix A to the May Agreement.

• That intention remained unchanged or existed at the time when the May Agreement was signed.

• By mistake, the parties signed the May Agreement with an Appendix Athat did not accurately reflect their common intention.

(See McLean v. McLean, 2013 ONCA 788, 313 O.A.C. 364, at paras. 45 and 60.)

(58] For these reasons, I rectify the May Agreement between the paities by adding the first bullet point under "Special Services" in Appendix A to the March Agreement to Appendix A to the May Agreement. The understanding of Miller and Barresi, when both signed the May Agreement, was that Banesi would be the Ottawa Practice Lead for investments and that, as the Ottawa Practice Lead, he would provide leadership of the Ottawa investment team.

[59] As hard fought as this issue was at trial, the rectification of the agreement still leaves open the issue as to the exact meaning of the Ottawa Practice Lead for investments or the practice leader of the Ottawa investment team within the context of the agreement as a whole.

Interpretation of the May Agreement

Principles of Contractual Interpretation

[60] As stated in Ventas, Inc. v. Sunrise Senior Living Real Estate Investment Trust, 2007 ONCA 205, 85 O.R. (3d) 254, at para. 24, a commercial contract is to be interpreted:

(a) As a whole, in a manner that gives meaning to all of its te1ms and avoids an interpretation that would render one or more of its terms ineffective;

(b) By determining the intention oftheparties in accordance with the language they have used in the written document and based upon the 'cardinal presumption' that they have intended what they have said;

(c) With regard to objective evidence of the factual matrix underlying the negotiation of the contract, but without reference to the subjective intention of the patties; and (to the extent there is any ambiguity in the contract),

(d) In a fashion that accords with sound commercial principles and good business sense, and that avoids a commercial absurdity.

(See also Manulife Bank of Canada v. Conlin, 1996 CanLII 182 (SCC), [1996] 3 S.C.R. 415, 139 D.L.R. (4th) 426, at para. 79; Kentucky Fried Chicken Canada v. Scott's Food Services Inc. (1998), 1998 CanLII 4427 (ON CA), 114 O.A.C. 357, 41 B.L.R. (2d) 42 (Ont. C.A.), at para. 27; 1298417 Ontario Ltd. v. Lakeshore (Town), 2014 ONCA 802, 326 O.A.C. 322, at para. 59.)

[61] The following principles regarding commercial contract interpretation and the role played by surrounding circumstances can be gleaned from Creston Moly Corp. v. Sattva Capital Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 47-48, 57-58, 59-61, and the cases cited therein:

• "The oveniding concern is to determine 'the intent of the parties and the scope of their understanding' " (para. 47).

• "[A] decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract" (para. 47).

• "In a commercial contract, it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the

genesis of the transaction, the background, the context, the market in which the patties are operating" (para. 47, quoting Reardon Smith Line v. Hansen-Tangen (1976), [1976] 1 W.W.R. 989, [1976] 3 All E.R. 570 (U.K.H.L.), at 574).

• The goal of examining evidence of the surrounding circumstances is to deepen a decision-maker's understanding of the mutual and objective intentions of the parties as expressed in the words of the contract - such evidence cannot be used to deviate from the text of the contract in a way that amounts to creating a new agreement (para. 57).

• Evidence of surrounding circumstances consists of evidence of anything which would have affected the way in which the language of the document would have been understood by a reasonable person. It is knowledge that was or reasonably ought to have been within the knowledge of both patties when the contract was entered (para. 58).

Meaning of Ottawa Practice Lead/or Investments

[62] The terms, "Practice Lead", "Ottawa Practice Lead", "Ottawa Practice Lead for investments", and "Company Local Practice Lead for the Office" were not defined in the May Agreement.

[63] No geographical definition was provided for the term "Ottawa". In the absence of any definition, I take Ottawa to mean the City of Ottawa and everything within its official city boundaries.

[64] The term "investments" was not defined. There was nothing in the May Agreement that delineated the investment or property value of the transactions over which Barresi would exercise leadership or control as the Ottawa Practice Lead for investments. Of particular significance is that the term "investments" was not qualified to be "retail investments of a value not exceeding

$10 million".

[65] There was nothing in the May Agreement that specifically guaranteed the Ottawa Practice Lead for investments exclusive rights to act as broker or share commissions based on geographical

area, investment value, or property value. There was no specific provision in the May Agreement that guaranteed Barresi, as the Ottawa Practice Lead for investments, an entitlement to a certain level or percentage of commissions or any particular income or benefit. In fact, subparagraph 4 under section C. Compensation specifically stated that JLL was not giving and the Contractor was not relying on any warrnnty or representation in any form as to his potential success in the business ofreal estate or as to his level of earnings.

[66] Thus the question arises as to how "Company Local Practice Lead for the Office" (subparagraph (a) under section S. Practice Lead) and "Practice Lead" for the Ottawa investment team (Appendix A, first bullet) was understood by the patties in the context of the May Agreement. As stated by Cory J. in TransCanada Pipelines Ltd v. Northern & Central Gas Corp., (1983), 41

O.R. (2d) 447, 1983 CanLII 1617 (ON CA), 146 D.L.R. (3d) 293, at para. 11:

... where parties have set out the terms of their contract in a written document, as a general rule, extrinsic evidence is not admissible to add to, vary, or subtract from or contradict the terms of the written instrument. Where a doubt arises as to the true sense and meaning of the words themselves or there is any difficulty as to their application in the circumstances, then the sense and meaning of the words used in the written document may be investigated and determined by viva voce and documentary evidence outside of the instrument in dispute.

That investigation is called for here.

(a) Barresi's Goals

[67] Barresi testified that, prior to signing on with JLL, he had advised Miller of his goal to have access to a greater range of investments and clients than he did at Cushman & Wakefield so as to increase his business opportunities. Miller did not dispute this. Miller was aware that the chief reason Barresi was moving to JLL was to gain independence to pursue business oppmtunities without having to work under Nathan Smith, who had cornered the real estate investment market in Ottawa for Cushman & Wakefield, and who determined all commission splits on transactions on which Barresi worked. Miller knew that Barresi wanted the opportunity not only to expand and solidify his own client base in Ottawa for $1 to $10 million dollar deals, and have greater autonomy in determining commission splits, but also to gain more access to vendors with higher-valued properties and to expand his knowledge and expertise regarding deals in a higher range. Thus, there was a mutual understanding as to what Barresi wanted to achieve by moving to JLL.

[68] I find that, at no time prior to Ba1Tesi signing the May Agreement, did Miller ever advise him that these opportunities would not be available to him as the Ottawa Practice Lead for investments.

[69] That being said, the evidence presented at trial, regarding the parties' mutual understanding as to how Barresi would achieve his goals at JLL, was contradictory. What is specifically in dispute is what the understanding of Barresi and Miller was, prior to signing the March or May Agreement, as to whether Ba1Tesi could market prope1ties of a value in excess of $10 million without involving NRIG, and as to whether NRIG was free to pursue transactions in Ottawa of a value in excess of $10 million without involving Ba1Tesi in some fashion. There was no dispute that, in regard to JLL marketing investment properties in Ottawa of a value up to $10 million, Ba1Tesi would be in control.

[70] I find that, in testifying as to their mutual understanding regarding the opportunities that would be open to Ba1Tesi as the Ottawa Practice Lead for investments in excess of $10 million, Ba1Tesi overstated the opportunities to which he would be entitled, and Miller understated them.

(b) Evidence Regarding the Patties' Mutual Understanding about Barresi's Role

[71] According to Ba1Tesi, he and Miller discussed Barresi being the Ottawa Practice Lead for investments, but Miller never specifically defined that te1m for him during pre-contract discussions. Ba1Tesi testified that he simply assumed that such a designation opened the door for him to participate in all investment transactions orchestrated through JLL in the Ottawa region. At one point in his evidence, BatTesi said that he assumed that his being the Ottawa Practice Lead in investments meant that he would share in all commissions earned as a result of commercial real estate transactions in Ottawa brokered by JLL, regardless of the value of the properties, even ifhe were not the agent that brought the business to JLL, he did not ultimately obtain the listing, and he did not actively participate on the file. At another point, Ba1Tesi stated that that did not mean that he would have carte blanche with all transactions, but he would be informed of them, would work on a team to finalize the deal, and would share in the resulting commissions. At the same time, he acknowledged that there were categories of investments, such as hospitals, hotels, and other large institutional properties, that he would not expect to be involved with.

[72] At different junctures when giving evidence, Ban-esi testified that he relied on certain JLL corporate documents when concluding that, as the Ottawa Practice Lead for investments, he was entitled to share in commissions earned from all JLL transactions involving investment properties in Ottawa. The first document was JLL's Cross Selling Guidelines & Fee Sharing Policy. The second document was JLL's Practice Lead Oaths. By the end of his testimony, Ban-esi had to concede that neither document was of assistance to him.

[73] In the first quarter of 2014, DrCar accessed JLL's Cross Selling Guidelines & Fee Sharing Policy (Exhibit 11), dated February 2011, on JLL's Canadian website and provided a copy to Ban-esi. According to Banesi, he assumed that Section lE - Disposition Revenue Sharing Guidelines applied in the circumstance of an out-of-town broker pursuing a commercial real estate transaction in Ottawa. For a variety of reasons, this was an incorrect assumption.

[74] First, there was no evidence to the effect that this document applied to the sale of commercial malls, aside from Barresi's statement that he believed it did. On the contrary, section 1 of the Guidelines is entitled: "America's Brokerage - Tenant Representation/Agency". The evidence of Miller is that section 1 of the Guidelines related to JLL's commercial leasing business. That, in turn, can be broken down into tenant representation and agency work. The sale of a commercial mall does not fall under this line of business.

[75] Secondly, there was no evidence that these Guidelines applied to Canada at the time. The first paragraph of Section lB - America's Tenant Revenue Sharing Guidelines specifically stated that the Guidelines applied to work done in the United States and that JLL was working to expand the Guidelines to include Canada and Mexico. There was no evidence that, at the applicable time, that had happened. In fact, Section 1G - Chart of Broker Leads and Market Directors for Primary Geographic Regions/Offices contained a map of the United States only. The map stopped at the Canadian border.

[76] Thirdly, Barresi testified that at no time did anyone in authority at JLL ever tell him that these Guidelines applied to commercial real estate brokerage work in Canada.

[77] I find that, upon seeing this document, Barresi made the incorrect assumption that it applied to him as Ottawa Practice Lead in the area of investments. He did not come to this conclusion as

a result of any representation on the part of Miller, because Miller never showed Barresi any JLL documents speaking to the issue of fee-splitting or commission-sharing. In any event, BmTesi did not see this document until long after he had signed the May Agreement. The existence of this document played no role in infmming the joint intention of the parties when the May Agreement was entered.

[78] Barresi also pointed to three Practice Lead Oaths entitled Inter Team Cooperation, Practice Leader Commitments, and Principles of Team Management. One of the entries under Principles of Team Management was to promote cross business line exposure. This document does not assist in the determination of the parties' joint intention when the May Agreement was signed. According to Miller, these documents were created at a December 2013 meeting of practice leads

• well after Barresi had signed on with JLL.

[79] There is further evidence that undermines Barresi's assertion that it was understood that he would be entitled to share in commissions earned from all Ottawa investment transactions (aside from large institutional ones).

[80] Barresi could not recount any pre-contract conversation with Miller where Miller told him that, if Barresi had the designation of Ottawa Practice Lead for investments, when NRJG came into the Ottawa market, NRJG would be obliged to work with him and share commissions with him on all transactions, regardless of the level of assistance that he could provide NRIG. There is nothing in the May Agreement or associated documents that specifically addresses this issue. As well, such an assertion does not make commercial sense, as Barresi himself acknowledged indirectly in stating that there were certain types of transactions in regard to which he did not expect to participate.

[81] As well, there is the document Barresi, himself, prepared for Miller to take to the JLL investment committee, outlining Barresi's experience to date and his goals for the future. In that document, Barresi stated that he worked "in investment sales, primarily in the private owner to mid-market range of sales, the one million to ten million dollar range". He described his vision for his practice team as being: "to build an investment practice that would have a specialist in each for the following market segments but based on the property values between one million and ten million dollars." The market fields were office, industrial, multi-residential, and retail. No

mention was made in this document of his wanting to provide leadership at JLL in the sale of Ottawa prope1ties over $10 million in value or even that he wanted to paiticipate in all such transactions in Ottawa.

[82] There is the evidence of Miller, DrCar, Nathan Smith and Matthew Smith that, in the brokerage field for real estate investments, there can be a qualitative difference between transactions at the lower value range and those at the higher range. That qualitative difference can depend on the nature of the property (institutional vs. retail, large vs. small number of tenants) or on the nature of the investor (institutional vs. private investor). Different skill sets and experience can be required depending on the nature of the transaction. Barresi acknowledged that in his own evidence. He spoke about how different properties and different owners required different marketing strategies or approaches. That being said, and I will come back to this, all witnesses agreed that there is no absolute demarcation line in te1ms of a monetary value that defines transactions in the mid-market range. Some industry insiders might situate that line at around $10 million, some at $15 million, and some at $20 million. Any value cap for such investments is arbitrary.

[83] Miller described how his negotiations with Banesi had been long and drawn out over a period of several months. One of the topics raised on a number of occasions was the range of investments for which Barresi would be responsible. According to Miller, he advised Barresi verbally prior to an agreement being finalized that Barresi's practice area would be real estate investments in the Ottawa area (particularly with private investors) in the range of $1 to $10 million

• what he referred to as mid-cap investments. According to Miller, he told Barresi that, if he landed listings involving more valuable properties, he could only work on those files after consulting and involving JLL's experts in that area- namely NRIG. Barresi forcefully denies that Miller ever put such specific limitations on his business opportunities during pre-contract discussions. Miller testified that, in regard to NRIG operating within the Ottawa market, he specifically told Barresi during pre-contract discussions that Barresi could collaborate on those projects, but only ifNRIG chose to involve him.

[84] Miller testified that, during pre-contract discussions, he had explained in detail to Barresi and DrCar the organization of business units at JLL based on expertise and geography. Each

business unit was composed of a team of players with multiple skill sets. Each business unit operated relatively independently and was its own profit centre. The goal was for each business unit to capture a certain percentage of the market share in the niche area in which that team was operating. If opportunities arose outside the business unit's area of expertise or geographical area, that work should be referred to the appropriate team. By geographical area was meant either a city (like Ottawa), an area within a large metropolitan area (like Toronto), or the national stage. If experts from another team were brought in to help with a project, the splitting of fees would be negotiated. There was no written policy as to how this should be done. JLL did not guarantee exclusivity to any particular business unit; however, JLL would commit to not establish another business unit with the same expertise or niche market in the same geographical locale.

[85] DrCar recalled in detail the discussions that had occun-ed at the pre-contract meetings with Miller. He described Miller's vision for the company as being one with a variety of ''verticals", in other words, areas of specialization, each with a practice lead who would develop a team to work within that specific area. Thus DrCar was to be the Ottawa Practice Lead for tenant representation and Barresi was to be the Ottawa Practice Lead for mid-range real estate investments. Each would have a high level of control and independence within their stated area of expettise and would work to create a collaborative environment on their team. According to DrCar, Miller made it clear during the pre-contract meetings that the expectation was for BatTesi and DrCar to refer work outside of their area of expertise to the practice lead in the appropriate field. DrCar's evidence suppmted that of Miller that Miller's expressed intention to Barresi was that Barresi would be the Ottawa Practice Lead for mid-market real estate investments.

[86] DrCar recalled Miller, during pre-contract discussions, specifically speaking about the existence of two national groups situated in Toronto whose focus was on large transactions anywhere in the country. One, which became NBS, focused on tenant representation for approximately 200 large, institutional, clients. Another, which became NRIG, focused on large retail properties, pa11icularly shopping centres, across the country. According to DrCar, Miller mentioned that sometimes, but not always, the national investment group would work with an agent in the local market.

[87] Barresi's evidence was that, during pre-contract discussions, Miller talked at great length about the need for collaboration, cooperation, and sharing throughout the business units at JLL. Miller did not want each business unit operating as a silo, regardless of the nature of the project it was tackling. Miller wanted each business unit to reach out for help from another business unit, as appropriate, to make full use of the expertise within JLL and to maximize the service that the company could offer its clients. Miller spoke of his goal to centralize expertise in various areas, and about the national office group and the national investment group being created at JLL. Banesi inquired about how the national groups would interface with local groups. According to Barresi, Miller provided no details, aside from telling Barresi that he might be able to work with the national groups, learn from their expertise, and expand his own potential.

[88] According to Banesi, during pre-contract discussions, when Barresi asked Miller about how commissions would be shared with the national group, Miller responded that the issue was dealt with in JLL's fee-sharing policies. According to Miller, the only fee-sharing policy in place at JLL Canada at the time was the requirement for commissions or fees to be shared in accordance with the value brought to a particular project and for practice leads to negotiate such sharing. Banesi could not point to any written policy regarding fee-splitting or comrnission-shming at JLL that Barresi saw and relied on in signing the May Agreement.

(c) Findings Regarding a Mutual Understanding re Opportunities

[89] What is clear from the evidence, and what Miller and Banesi both understood when signing the May Agreement, is that there is not a clear demarcation line at $10 million differentiating mid­ range or mid-cap properties from properties with higher values in terms of the skills required to broker transactions. That being said, both Miller and Banesi understood that, once a broker is dealing with retail prope1ty valued in excess of $10 million, it is likely that the higher the value, the greater likelihood that different skills, different tools, and a different marketing approach might be required to get a listing and to finalize a sale. Both Miller and Barresi understood that, the greater the value of Ottawa retail prope1ty being marketed, the greater the likelihood that prospective buyers beyond Ottawa would have to be sought. At the same time, both Miller and Bmresi knew that there were a number of local Ottawa families and corporations with sufficient assets to buy and sell retail properties well in excess of $10 million, and Barresi already had a working relationship with a number of these.

[90] In this context, I do not find credible Miller's assertion that he told Barresi prior to Ban-esi signing the May Agreement that there was an absolute ceiling of $10 million in terms of the value of transactions that Barresi could handle on his own without seeking outside help, and that he had no claim whatsoever, in any circumstances, to be included on a team and to receive some share of commission earned from any JLL investment transaction in Ottawa exceeding $10 million.

[91] First, what was important to Miller, at that time, was that no practice leads within JLL operate beyond their area of expertise without seeking assistance from other JLL expe11s. The area of expertise of Barresi was understood by all to be mid-range or mid-cap investments and, depending on the nature of the property and the nature of the client, properties of a value somewhat in excess of $10 million could still fall within that category.

[92] Second, the way Miller described his vision for JLL at trial was, according to him, the same way he described it to Ban-esi and DrCar, and all other recrnits, during pre-contract negotiations. He emphasized each business unit had to work cooperatively and collaboratively within the unit itself and also in interactions with other business units. He took pride in the fact that JLL personnel were supposed to talk through issues as they arose and to seek common solutions. There were minimal written guidelines as to how this should be accomplished. Each situation had to be approached in a reasonable and respectful fashion. Miller took particular pride in advising that practice leads had been able to sort out all commission splits between practice groups without Miller having to become involved, despite the absence of detailed sharing guidelines.

[93] Miller's comfort level with flexibility, and the absence of specific guidelines, is more consistent with his defining Ban-esi 's role as the Ottawa practice lead for investments in a substantive way, rather than by reference to an arbitrary ceiling amount. By a substantive way, I mean by using the te1m "mid-range investments" or "mid-cap investments", a term generally understood by all concerned as encompassing a certain type of vendor, property, and marketing approach or strategy.

[94] Third, if the role of the Ottawa Practice Lead in investments was to be so strictly defined as suggested by Miller, it is inconceivable that the ceiling of $10 million in value would not have been expressed in the May Agreement. It would have been simple to include this restriction if that truly was the mutual understanding of the patties -particularly in circumstances where, according