COURT FILE NO.: CV-18-595447

DATE: 20190403

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Marci Cook

Plaintiff

– and –

Harvey Kalles Real Estate Ltd.

Defendant

Michael Kestenberg, for the Plaintiff

Milton Davis and Martine Garland, for the Defendant

HEARD: January 10, 2019

REASONS FOR decision

NISHIKAWA J.

Overview

[1] The Plaintiff, Marci Cook, was a real estate agent with the Defendant, Harvey Kalles Real Estate Ltd. (“HKRE”), a real estate brokerage in the Greater Toronto Area. Ms. Cook brings this motion for summary judgment for $187,500.00 plus HST for a real estate commission (the “Balance”) earned on the purchase of a property by her client. The Balance is currently being held in trust by HKRE. Ms. Cook also seeks the return of $3,220.50 (the “Fees”) that she claims HKRE improperly deducted from her commission on the sale of another property.

[2] HKRE submits that Ms. Cook’s claim to the Balance ought to be dismissed because Ms. Cook agreed to share the commission on the purchase of the property with a third party, Melinn Godfrey. Ms. Godfrey is not a party to this proceeding. On the Fees, HKRE claims that they were properly deducted as fees owing by Ms. Cook.

[3] For the reasons that follow, I grant the Plaintiff’s motion for summary judgment.

Issues

[4] The issues to be determined on this motion for summary judgment are as follows:

(a) Did Ms. Cook and Ms. Godfrey enter into an agreement to share the commission on the purchase of the property?

(b) If there was an agreement to share the commission, can it be enforced?

(c) Was HKRE entitled to deduct the Fees from Ms. Cook’s commission on the sale of another proeprty?

Facts

The Agreement Between HKRE and Ms. Cook

[5] Ms. Cook is a salesperson licensed to sell real estate in the Province of Ontario. Ms. Cook was a real estate agent with HKRE for approximately twelve years, until she terminated her relationship with HKRE in January 2018. Ms. Cook is currently an agent with Forest Hill Real Estate Inc.

[6] HKRE is a well-established real estate brokerage in the Greater Toronto Area specializing in high-end residential properties. It has six offices and approximately 200 affiliated real estate agents. The broker of record for HKRE is Michael Kalles, who is the President of HKRE.

[7] On the sale of a residential property, the commissions from the sale are paid to the broker. The broker then pays the agent or salesperson the portion to which the agent is entitled pursuant to the terms of their agreement. There was no written agreement between HKRE and Ms. Cook. The parties agree that since at least 2011, Ms. Cook received 90 percent of her gross commissions and that HKRE retained the remaining 10 percent.

[8] Ms. Cook further claims that on properties that she listed for sale, she received a commission of 1.5 percent of the sale price plus HST. When Ms. Cook represented the purchasers of properties, she received a commission of 2.5 percent of the purchase price plus HST. The evidence shows that while this was generally the case, on occasion, the percentage varied and commissions were split with other agents.

[9] Ms. Cook paid HKRE a monthly fee of $950.00 plus HST for a total of $1,073.50. The parties dispute the basis for the fee, as will be further detailed below.

[10] Ms. Cook was required to reimburse HKRE for expenses incurred on her behalf. While the parties disagree as to whether those expenses had to be pre-approved by Ms. Cook, this is no longer at issue in this motion.

Introduction to the Forest Hill Property

[11] In May 2017, Ms. Godfrey contacted Mr. Kalles and told him that her friends, Natty and Mark Nashman, were interested in seeing a property that was listed by HKRE. Mr. Kalles was also a friend of the Nashmans. He agreed to meet Ms. Godfrey and Ms. Nashman at the property the next day.

[12] Ms. Godfrey was previously a real estate agent, but her licence had lapsed in 2007. In the spring of 2017, Ms. Godfrey was working toward having her licence reinstated. Ms. Nashman was not aware of this.

[13] While they were visting the property, Ms. Nashman expressed an interest in viewing a nearby property on Forest Hill Road (the “Forest Hill Property”) that was listed by Elise Kalles, Mr. Kalles’ mother, who is also a real estate agent. Mr. Kalles arranged a viewing for the following day. After visiting the property, Ms. Nashman was interested in it and asked her husband to come view it that same day.

Discussions Regarding the Referral Arrangement

[14] Also in the spring of 2017, Ms. Godfrey and the Plaintiff, Ms. Cook, met and became friends. Ms. Godfrey told Ms. Cook that she was working to have her real estate licence reinstated. Ms. Godfrey had a lot of contacts in the Forest Hill area. They discussed the possibility of Ms. Godfrey starting a referral business and referring clients to Ms. Cook for a fee. Over the next couple of weeks, Ms. Cook and Ms. Godfrey had a number of discussions about a referral fee arrangement.

[15] Ms. Cook spoke to Mr. Kalles in July 2017 and told him that she agreed to a referral arrangement with Ms. Godfrey pursuant to which Ms. Godfrey would receive 50 percent of the selling commission payable to HKRE. Ms. Cook asked Mr. Kalles how the arrangement would work, since Ms. Godfrey did not have a real estate licence. Mr. Kalles advised that HKRE would hold Ms. Godfrey’s share until her licence was reinstated.

The Agreement of Purchase and Sale of the Forest Hill Property

[16] In July 2017, Ms. Godfrey introduced Ms. Cook and Ms. Nashman. Ms. Cook became the Nashmans’ agent. In the fall of 2017, Ms. Cook visited the Forest Hill Property approximately six times with Ms. Nashman.

[17] In late October 2017, Ms. Nashman decided to make an offer on the Forest Hill Property. There were further exchanges between the seller and the Nashmans about the price. Mr. Kalles was particpating in the process on behalf of the seller because Elise Kalles was the listing agent and was unavailable at the time. He also met with the Nashmans during the negotiations.

[18] At some point during the evening of October 26, 2017, Ms. Cook became anxious about whether the Nashmans would go through with the purchase. Unbeknownst to Ms. Nashman, she contacted Ms. Godfrey and asked her to speak with Ms. Nashman, saying “I can’t tell her what to do with the money but you can.” Ms. Godfrey spoke to Ms. Nashman and also gave Ms. Cook advice about how to handle the situation with Ms. Nashman.

[19] Ms. Nashman testified on cross-examination that she consulted with Ms. Godfrey as a confidante, and sought her advice because Mr. Nashman was out of the country when offers were being exchanged. Ms. Nashman had received information from Ms. Godfrey that a third party was going to make an offer on the Forest Hill Property, which caused her to act more quickly than she otherwise might have.

[20] On October 26, 2017, the Nashmans accepted the seller’s counter-offer for $15 million. The closing was scheduled for March 27, 2018. On November 14, 2017, the Nashmans listed their home (the “Nashman Home”) for sale with both Ms. Cook and Elise Kalles as the listing agents.

Further Discussions Regarding the Referral Arrangement

[21] On November 16, 2017, Ms. Cook and Ms. Godfrey had the following exchange of text messages:

MC: Hi Hon, We need to solidify the deals. I confirmed with Michael that he can’t release money to you through Harvey Kalles unless you are a legally registered agent. So for me to pay you out of my net numbers, you legally have to invoice me and I can pay you direct. But you have to claim it as income… maybe think about how you want me to pay it – either to a numbered company or to you direct. You may want to consult with an accountant. As well, we discussed referrals being anywhere from 25 to 50 percent – depending on the transaction. Let me know the percentage you want from the purchase of [the Forest Hill Property] and the list of [the Nashman Home]. The only ones privy to this are you, me and Michael and we need to keep it that way.

MG: OK great. I have a company you can personally pay me no worries.

MC: What are your expectations re: percentage of commission? We need to have clarity[.]

[22] After Ms. Cook sent this text message, she and Ms. Godfrey had a telephone conversation during which they discussed sharing the commissions, with each receiving 50 percent. Ms. Cook then requested that Ms. Godfrey send her a text message confirming their conversation. Approximately one hour later, Ms. Godfrey sent the following message:

Hi Marci

I’m reflecting on our conversation with regards to our arrangement. In relation to [the Forest Hill Property] I’m very content with our 50/50 split. As for the listing of [the Nashman Home], it was you[r] decision to bring Elisa on board and I am concerned about how that will effect me. I believe that her share of the 2.5% is more than [fair] especially concerning that Harvey Kalles fees are going directly back to her so she is receiving more commission both ways.

I look forward to working on many more deals together but I think we should not bring in other Agents as per our original agreements because it changes our split agreement.

The Referral Arrangment is Disclosed

[23] On November 19, 2017, Ms. Godfrey sent Ms. Cook text messages advising her that she “felt guilty” and would tell Ms. Nashman about the referral arrangement. While Ms. Cook initially expressed indifference, in subsequent text messages she discouraged Ms. Godfrey from doing so. Ms. Godfrey did not disclose the arrangement to Ms. Nashman.

[24] On December 14, 2017, Ms. Cook disclosed the referral arrangement with Ms. Godfrey to Ms. Nashman. The Nashmans were understandably upset that they did not know about the arrangement, and expressed the view that HKRE ought to have disclosed it. Ms. Nashman consulted with Ms. Godfrey about the purchase of the Forest Hill Property as a friend, and did not know that she would be profiting from the purchase. The Nashmans felt that the process had been “tainted” and that this may have affected the price. The Nashmans cancelled the listing for the sale of their home with HKRE. The property was relisted with only Ms. Cook as agent and Forest Hill Real Estate Inc. as the broker.

[25] In December 2017, Mr. Kalles had a couple of discussions with the Nashmans to clarify the situation. He also advised them that HKRE would honour the referral arrangement with Ms. Godfrey. The Nashmans told Mr. Kalles that they did not agree with this, but would not tell Mr. Kalles how to run his business.

[26] The sale of the Forest Hill Property closed on March 27, 2018. In June 2018, after this proceeding was commenced, HKRE paid Ms. Cook $187,467.00, representing half of the commission on the sale. HKRE is holding the Balance in trust, in order to honour the agreement with Ms. Godfrey. In his affidavit, Mr. Kalles states that HKRE’s intention was to hold the Balance in trust until Ms. Godfrey’s licence was reinstated, and that it does not intend to retain the amount for its own benefit.

The Trade Record Sheets

[27] A brokerage that represents a client who enters into an agreement for the purchase or sale of real estate is required to complete a “trade record sheet” that includes certain information: O. Reg. 579/05, s. 17(1). After the Agreement of Purchase and Sale for the Forest Hill Property was signed, Ms. Cook completed a “commission information sheet” that would be used to enter the information for a Trade Record Sheet. She specified her commission at 2.5 percent. A Trade Record Sheet dated November 20, 2017, identified her commission at 2.5 percent, for a total of $337,500.00 plus HST. Ms. Godfrey’s name does not appear on the Trade Record Sheet.

[28] On March 26, 2018, a second Trade Record Sheet was entered for the Forest Hill Property. The second Trade Record Sheet identifies “Outside Broker TBA” and names Melinn Godfrey as agent. Ms. Cook’s commission is stated as $168,750.00 plus HST and Ms. Godfrey’s commission is stated as $187,500.00 plus HST. The second Trade Record Sheet is signed by Michael Kalles as Broker of Record for HKRE. The signature lines for the agents are blank.

The Fees

[29] Ms. Cook seeks the return of $3,220.50, which she claims that HKRE has improperly withheld from her commission on the sale of a property on Tyrell Avenue in Toronto (the “Tyrell Property”). The Tyrell Property sold for $1,185,000.00 and closed in February 2018. HKRE paid Ms. Cook a commission of $8,855.72, after withholding certain amounts for expenses and $3,220.50 in fees.

Analysis

A. Principles on a Summary Judgment Motion

[30] Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states that a court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[31] The Supreme Court of Canada has held that “summary judgment must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.” Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 5. An issue should be resolved on a motion for summary judgment if: (i) the motion affords a process that allows the judge to make the necessary findings of fact, (ii) apply the law to those facts, and (iii) is a proportionate, more expeditious, and less expensive process to achieve a just result than going to trial: Hryniak, at para. 49.

[32] On a motion for summary judgment, the judge must first determine whether there is a genuine issue requiring a trial based only on the evidence before them, without using the fact-finding powers. If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the powers under rr. 20.04(2.1) and (2.2): Hryniak, at para. 66.

[33] On a motion for summary judgment, the court is entitled to assume that the record contains all the evidence that the parties would present if the matter proceeded to trial: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at paras. 26-27, aff’d 2014 ONCA 878, leave to appeal to SCC refused, [2015] S.C.C.A. No. 97. Each party must “put their best foot forward” with respect to the existence or non-existence of material issues to be tried: Sweda, at para. 26.

[34] In this case, both parties agree that the matter is appropriate for summary judgment. The evidentiary record includes affidavits from Ms. Cook, Mr. Kalles, Ms. Godfrey and Ms. Nashman, all of whom were cross-examined. Based on the issues and the record before me, I have determined that the motion affords a process that allows the court to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious, and less expensive process to achieve a just result than going to trial.

B. Who Is Entitled to the Balance?

The Parties’ Positions

[35] Ms. Cook’s position is that there was no binding agreement between herself and Ms. Godfrey. Alternatively, Ms. Cook submits that if there was an agreement, it was between herself and Ms. Godfrey, and that HKRE was not a party to the agreement. Further, any agreement between herself and Ms. Godfrey was contingent upon the reinstatement of Ms. Godfrey’s licence or the authorization of the arrangement by the Real Estate Council of Ontario (“RECO”). Since neither event occurred before the transaction closed, Ms. Cook argues that any agreement that might have existed cannot be enforced because it is contrary to s. 9 of the Real Estate Brokers Act, 2002, c.30, Sched. C (“REBBA”), which prohibits payment of a commission to an unlicensed person.

[36] HKRE’s position is that there was a “three-way” agreement among HKRE, Ms. Cook and Ms. Godfrey that Ms. Cook would receive 50 percent of the commissions on the sale of the Forest Hill Property and the Nashman Home, and the remaining 50 percent of the commissions would be held by HKRE in trust for Ms. Godfrey until her licence was reinstated.

Was There A Binding Agreement to Share the Commissions?

[37] A contract exists where there is a “meeting of the minds” between the parties and the essential terms of the agreement are sufficiently clear:

[T]he parties will be found to have reached a meeting of the minds, in other words be ad idem, where it is clear to the objective reasonable bystander, in light of all the material facts, that the parties intended to contract and the essential terms of that contract can be determined with a reasonable degree of certainty.

UBS Securities Canada Inc. v. Sands Brothers Canada Ltd., 2008 CarswellOnt 2503 at paras. 40-42 (S.C.), aff’d 2009 ONCA 328.

[38] In order to determine whether the parties intended to enter into a contract, a court will consider all of the circumstances between the parties, including their words and conduct: UBS Securities Canada, at para. 41.

[39] In this case, I find that the circumstances support the existence of an agreement between Ms. Cook and Ms. Godfrey to share the commissions on the purchase of the Forest Hill Property and the sale of the Nashman Home. The evidence demonstrates that the essential terms of the agreement were sufficiently clear and were agreed to by both parties. As evidenced by their text messages, Ms. Cook and Ms. Godfrey agreed to split the commissions equally between them. The terms of their agreement included an arrangement through which Ms. Cook would pay Ms. Godfrey from her share. If Ms. Godfrey remained unlicensed, Ms. Cook would receive the commission and pay 50 percent of the amount to Ms. Godfrey personally or to a numbered company.

[40] On cross-examination, Ms. Cook stated: “Yes, I fully admit that there was – there was an arrangement.” She further admitted that “I agreed to pay her something.” She also acknowledged that when Ms. Godfrey sent the text message regarding a 50/50 split, she did not dispute the 50 percent arrangement. While Ms. Cook testified on cross-examination that she would only have paid the 50 percent if Ms. Godfrey was licensed or if it was “okay with RECO”, the exchange with Ms. Godfrey make no mention of any condition. In an earlier text message, Ms. Cook advised Ms. Godfrey that she spoke with Mr. Kalles and that if Ms. Godfrey was licensed, her share would be paid from HKRE to Ms. Godfrey, but that if she was not licensed, it would have to be paid from Ms. Cook’s share. This shows that the agreement was not contingent upon Ms. Godfrey’s licence being reinstated.

[41] Ms. Cook acknowledged the existence of the agreement in her text message sent on November 19, 2017:

Melinn, I can promise you one thing – this arrangement between you me and Michael will never be spoken about from me. If you choose to disclose – that is your business. I sent you the text because I never want confusion between you and I on commission. Has nothing to do with Natty. These things are always documented – but it never was between us and I do not want a problem. Hi [sic] and Michael initially discussed the 50 / 50 but that was under terms of you getting licensed. I needed to clarify with you on OUR arrangement. Surely you can understand that[.]

[42] While the above text message from Ms. Cook to Ms. Godfrey refers to the “arrangement between you, me and Michael” the evidence does not otherwise support the existence of a three-way agreement among HKRE, Ms. Cook, and Ms. Godfrey. All of the discussions about a referral arrangement or commission split were between Ms. Cook and Ms. Godfrey. HKRE did not participate in those discussions. Ms. Cook spoke with Mr. Kalles about how the commission should be handled, but this did not form part of her agreement with Ms. Godfrey.

[43] At no time did Ms. Cook and Ms. Godfrey agree that HKRE would hold Ms. Godfrey’s share of the commissions in trust for Ms. Godfrey until she was licensed. Ms. Godfrey made no mention of HKRE holding the Balance in trust for her, either in her affidavit or on cross-examination. Indeed, Ms. Godfrey’s evidence is that she understood that as long as she was unlicensed, she would be paid from Ms. Cook’s commission. It was only if Ms. Godfrey’s licence was reinstated that HKRE would pay her 50 percent of the commission directly.

[44] Moreover, HKRE’s version of the commission agreement makes no provision for the Balance in the event that Ms. Godfrey’s licence was not reinstated. On cross-examination, Mr. Kalles testified that he did not know what HKRE would do with the Balance in the event that Ms. Godfrey’s licence was not reinstated. By the date of the motion hearing, Ms. Godfrey’s licence had not been reinstated and there was no evidence to suggest that this would take place any time in the near future. Given the evidence, not only was the trust arrangement not a term of the agreement, but interpreting the agreement in a manner that would require HKRE to hold the Balance in trust indefinitely would not be commercially reasonable.

[45] In any event, for the reasons further detailed below, it was not possible for HKRE to agree to hold the Balance in trust for Ms. Godfrey until her licence was reinstated, because such an arrangement would be contrary to s. 30 of REBBA. In order to receive a commission, Ms. Godfrey had to be licensed when the sale took place.

[46] Similarly, the evidence does not support HKRE’s position that the terms that generally governed its relationship with Ms. Cook were amended in relation to the sale of the Forest Hill Property and the Nashman House. There is no evidence of any discussion between HKRE and Ms. Cook to alter the terms under which they had been operating for almost eight years, or to allocate a different commission in relation to those properties.

Can The Agreement Be Enforced?

[47] This leaves the question of whether the agreement between Ms. Cook and Ms. Godfrey can be enforced. Since HKRE is not a party to the agreement, it is not entitled to seek enforcement of its terms. The only person who could enforce the agreement is Ms. Godfrey. She has not rendered an invoice to Ms. Cook for a referral fee and has not commenced a proceeding. This is likely because s. 9 of REBBA states that “[n]o action shall be brought for commission or other remuneration for services in connection with a trade in real estate unless at the time of rendering the services the person bringing the action was registered or exempt from registration under this Act and the court may stay any such action upon motion.”

[48] Subsection 4(1) of REBBA prohibits a person from trading in real estate unless they are registered under the Act. In addition, s. 30 states:

30 No brokerage shall,

(a) employ another brokerage’s broker or salesperson to trade in real estate or permit such broker or salesperson to act on the brokerage’s behalf;

(b) employ an unregistered person to perform a function for which registration is required; or

(c) pay any commission or other remuneration to a person referred to in clause (a) or (b).

[49] Based on the above statutory provisions, it is clear that HKRE cannot pay Ms. Godfrey a commission for the sale of the Forest Hill Property, as any payment to Ms. Godfrey for the sale of the property would be contrary to REBBA. As long as remuneration is linked to the purchase or sale of real property, it must comply with the requirements of the Act. It is not possible to circumvent the terms of the Act by calling the commission a referral fee: M.J.K. Consultants Inc. v. Citibank Canada, [1993] O.J. No. 2175 (Gen. Div.), at pp 14-15.

[50] HKRE argues that Ms. Cook should not be able to profit from her own wrongdoing and that she is not entitled to the Balance because the referral arrangement with Ms. Godfrey was an illegal contract. However, REBBA specifically precludes any portion of the Balance being paid to Ms. Godfrey. Section 30 of the Act precludes the type of arrangment that Ms. Cook entered into with Ms. Godfrey. Further, it would be illogical to rely upon the illegality of a contract to enforce the contract.

[51] While HKRE relies on the doctrine of promisory estoppel, it has no application here. HKRE cannot demonstrate a promise by Ms. Cook upon which it relied to its detriment. HKRE has done nothing in reliance on Ms. Cook’s promise, which was made to Ms. Godfrey, other than to hold the Balance in trust.

[52] HKRE has not claimed an entitlement to the Balance, perhaps because there would be no basis for a claim. This leaves no one other than Ms. Cook who could be entitled to the Balance. In any event, the commission to which Ms. Cook is entitled is governed by the terms of her agreement with HKRE. That agreement is not illegal or contrary to REBBA, and is binding upon HKRE. Ms. Cook is thus entitled to receive 90 percent of the 2.5 percent commission on the purchase of the Forest Hill Property.

[53] My determination that Ms. Cook is entitled to the Balance should not be taken as condoning Ms. Cook’s conduct in this matter. Real estate salespersons owe a fiduciary duty to their clients. They are required to follow a Code of Ethics that includes acting with honesty and integrity and in their clients’ best interest: O. Reg. 580/05, ss. 3, 4. Ms. Cook entered into a referral arrangement that was contrary to REBBA and then sought to resile from it because she regretted agreeing to pay Ms. Godfrey 50 percent. The text messages show that Ms. Cook asked Ms. Godfrey to influence Ms. Nashman behind the scenes regarding the purchase of the Forest Hill Property. She did not disclose the referral arrangement until it appeared that Ms. Godfrey was about to do so. While this conduct causes serious concern, it does not alter the fact that the agreement between Ms. Cook and Ms. Godfrey cannot be enforced.

C. The Fees

[54] The remaining issue is whether Ms. Cook is entitled to the return of the Fees that HKRE withheld from her commission on the sale of the Tyrell Property. Ms. Cook’s understanding of the Fees is that the amount was for monthly administration fees, for services such as the use of office space, from January to March 2018. She argues that she should not have been required to pay the Fees since she resigned in January.

[55] In his affidavit, Mr. Kalles stated that the amount was for administration fees, which Ms. Cook was required to pay as long as outstanding commissions had to be paid to her. On cross-examination, Mr. Kalles stated that the amount was a “90/10 fee” which agents are required to pay on a monthly basis in order to receive 90 percent of their commissions. If the agent does not pay the fee, they receive only 65 percent of their commissions. Mr. Kalles stated that the fee was $1,073.50 per month, and would be payable until the closing of all outstanding sales.

[56] The summary of charges deducted from the amount paid to Ms. Cook for commission on the Tyrell Property states “90/10” and shows that she was charged $1,073.50 per month from September to December 2017, as well as from January to March 2018. While the initial explanation of the Fees in Mr. Kalles’ affidavit may have been overly simplified, it is not necessarily inconsistent with his evidence on cross-examination. Since the sale of the Forest Hill Property closed in March 2018, it is reasonable that Ms. Cook continued to be charged the 90/10 fee until March 2018.

[57] However, the cheque stub for the commission on the sale of the Forest Hill Property shows that the amount of $3,220.50 was deducted from that cheque as well. The description that appears next to the charge is “General Exp.” If the charge is for the same 90/10 fee described above, then it appears to have been charged twice for the same time period, January to March 2018. There is no evidence before me to suggest that this represents a different fee, and it would be an unusual coincidience that it would be for the same amount. I find on a balance of probabilities that while HKRE was entitled to deduct the Fees for January to March 2018, it appears that this was done twice. Ms. Cook is thus entitled to the return of the $3,220.50.

Conclusion

[58] Based on the record before me, I am able to make the necessary findings of fact, apply the law to the facts, and achieve a fair and just adjudication of the dispute on the merits. The Plaintiff’s motion for summary judgment is granted.

[59] According to the terms of her agreement with HKRE, Ms. Cook is entitled to 90 percent of her commissions plus HST. On the Balance, the amount is $187,500.00 - $18,750.00 + $21,937.50, for a total of $190,687.50. This amount is added to the $3,220.50 in Fees that should not have been deducted. Ms. Cook is awarded judgment in the amount of $193,908.00 plus pre and post-judgment interest.

Costs

[60] In the event that no agreement is reached on costs, Plaintiff’s counsel shall submit their costs submissions within seven days of the release of these Reasons. The Defendant’s responding costs submissions are due within seven days of receiving the Plaintiff’s cost submissions. No costs submissions shall exceed five pages, including a costs outline. If no costs submissions are received within this time frame, the parties will be deemed to have resolved costs.

Nishikawa J.

Released: April 3, 2019