COURT FILE NO.: CV-20-651729
DATE: 2021 07 02
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MARIAN ZUR, Applicant
- and -
IRENE GLADYSZ also known as IRENE ZUR and CHRISTINE KARL also known as CHRISTINE ZUR, Respondents
BEFORE: Master Todd Robinson
COUNSEL: R. Lachmansingh, for the applicant, Marian Zur
G. Malicki-Sanchez, for the respondent, Irene Zur
PARTIES: C. Karl, in person
HEARD: June 3, 2021 (by videoconference)
REASONS FOR DECISION
Overview
[1] Marian Zur, Irene Zur, and Christine Karl are sisters.[^1] They jointly own three properties and as tenants in common: 101 Galley Avenue, Toronto (the “Residential Property”), 47-49 Polish Avenue, Penetanguishene (the “Cottage Property”), and Lt 31, Con 5 Nets, Melancthon (the “Farm Property”). Marian, Irene, and Christine agree that the properties should be sold, but otherwise they agree on very little. Marian and Christine are generally aligned. A prior breakdown in the relationship with Irene has resulted in disagreement and evident mistrust, ultimately giving rise to this application.
[2] Ferguson J. has already ordered that the properties be sold with no right of first refusal. What remains to be determined are the details of the sale process, which is the subject matter of this reference. Disputed issues include appropriate listing agents, determining list prices, bidding and bid acceptance processes, and even the lawyer acting on the real estate closings.
[3] Based on the evidence and materials filed, and having considered the submissions made, I have determined what in my view is a fair and equitable sale process that should permit sale of all three properties while balancing all owners’ interests. It should also require minimal (if any) further court intervention pending sale closings and a final accounting.
Issues
[4] Consolidating the remaining issues to be decided, they are as follows:
(a) Who should be appointed to list each property?
(b) Will the listing agent determine or only recommend the list price?
(c) If the listing agent only recommends a list price, how will the list price be determined if the recommended price is disputed?
(d) How long will each property be listed?
(e) Who will coordinate cleanup, repair or other work required at the properties?
(f) With respect to pre-listing cleanup:
(i) Will Irene be required to remove her furniture from the Cottage Property?
(ii) How will items that an owner wants to keep or sell be addressed?
(g) How will unanticipated necessary repair, maintenance or other work be addressed and paid?
(h) What bidding process restrictions are required to permit Irene to bid on the properties without directly or indirectly breaching the order that there be no right of first refusal?
(i) How will offers be assessed in deciding which offer to accept?
(j) What lawyer(s) will act in the sale of each property?
(k) Will sale proceeds be disbursed following a sale, in whole or in part, or held pending final accounting?
[5] Two additional issues have been deferred to a future hearing, if required: whether and when the Farm Property should be re-leased and final accounting.
Analysis
Appropriate listing agents
[6] I have determined that Irene Kaushansky’s proposed real estate team should be appointed to handle sale of the properties.
[7] Two teams of listing agents were proposed, as follows:
(a) Irene Kaushansky as lead listing agent, who would handle the Residential Property, with Lorraine Jordan handling the Cottage Property and Roy Cado handling the Farm Property, proposed by Marian; and
(b) Tom Pobojewski as lead listing agent, who would handle the Residential Property, with Michelle Lacroix handling the Cottage Property and Halyna Zelionka handling the Farm Property, proposed by Irene.
[8] Christine previously proposed another lead real estate agent, but now supports Marian’s position. I have thereby not considered the alternative agent.
[9] In addition to proposing Irene Kaushansky and her team, Marian also suggested that, as an alternative to selecting from the proposed agents, the court could choose three agents itself not proposed by the parties, one for each property. This would ensure that there is a “level playing field” amongst all owners.
[10] It is appropriate that I select from the proposed agents. The owners have put forward information and evidence on the agents’ experience and, to some extent, proposed marketing plans. They have had an opportunity to review and consider that information and evidence. They have made submissions on the appropriateness of the proposed agents. I have no reasoned basis to disregard the agents proposed by the owners. Unilaterally imposing different real estate agents without the owners being able to consider and comment on them is neither fair nor just.
[11] It is common ground that each of the properties requires a local listing agent, and that co-listing agents should not be used. Each team comprises three agents from branches of the same brokerage, one local to each property. Both proposals contemplate a lead listing agent in Toronto who would coordinate with additional regional agents for the non-Toronto properties.
[12] Irene Kaushansky and Tom Pobojewski both appear very qualified real estate agents, although there is greater detail on Ms. Kaushansky’s experience in the materials filed. Both are vague on their marketing plan. Irene has included a marketing plan in the chart filed for this hearing, but there is no evidence that the plan was, in fact, proposed by Mr. Pobojewski. Based on the experience of Lorraine Jordan and Roy Cado outlined in Ms. Kaushansky’s letter, both are qualified for selling the Cottage Property and Farm Property, respectively. More detail has been provided on Michelle Lacroix than any other real estate agent, and I am satisfied that she is qualified to list the Cottage Property. There is no information before me on Halyna Zelionka’s experience or qualifications.
[13] Marian and Christine object to Mr. Pobojewski, who they characterize as a “discount” real estate agent. That characterization appears solely based on Mr. Pobojewski’s agreement to a reduced commission. Mr. Pobojewski’s letter dated May 11, 2021 states as follows (emphasis in original):
We are also prepared to offer a very competitive commission package for all three properties as follows of 3.5% (1.0% listing fee and 2.5% co-op fee) plus applicable taxes.
[14] Notwithstanding the above statement, which outlines a 3.5% commission “for all three properties”, Irene submits that the 1% listing commission only applies to the Residential Property and only applies if Royal LePage gets all three listings. The Cottage Property and the Farm Property would be listed with the standard 5% commission shared equally by the listing and purchasing agents. Mr. Pobojewski’s letter does not reference either Michelle Lacroix or Halyna Zelionka. It appears that, with the addition of those Royal LePage agents more local to the Cottage Property and the Farm Property, the 3.5% commission rate cannot be extended.
[15] Marian argues that Mr. Pobojewski cannot reasonably market the Residential Property on a 1% commission and, further, will put little effort into selling the Residential Property with such a low commission. Irene argues that she worked hard to negotiate an excellent commission rate, and that a lower commission on the Residential Property translates into a larger profit from the sale proceeds. An appraisal from November 2018 obtained by Irene valued the Residential Property at $1.41 million. Based on that value, the reduced listing commission correlates to $21,150 in additional profit.
[16] I have no concerns with Mr. Pobojewski’s commission rate, so it is not a factor in my determination. Nothing in the record supports that Mr. Pobojewski is a “discount” agent other than the fact of a reduced commission. I was directed to nothing supporting that Mr. Pobojewski is less capable or would do anything less in marketing the property than Irene Kaushansky.
[17] Since listings will no doubt be concurrent, an integrated team will benefit the listing agents and owners, rather than having three separate agents dealing with each of the owners. I am convinced by Marian’s arguments that using one brokerage with a lead listing agent makes the most sense, rather than appointing agents for properties from each of the proposed teams.
[18] I am concerned with the lack of clarity on coordination in Tom Pobojewski’s “team”. Mr. Pobojewski’s original proposal was, on its face, that he would list all three properties. That has since been updated so that Mr. Pobojewski is only listing the Residential Property, with the other two agents added to list the Cottage Property and Farm Property. Although Irene’s counsel confirmed that Mr. Pobojewski recommended the other two agents, there is no indication of any relationship or coordination between the three of them. Conversely, Irene Kaushansky’s letter suggests there will be direct coordination with Lorraine Jordan and Roy Cado, all of which are within the overarching Keller Williams brokerage.
[19] I am further concerned that I am asked to appoint Halyna Zelionka as part of Mr. Pobojewski’s listing team for the Farm Property without any information on her experience or qualifications. Roy Cado’s experience, outlined in Ms. Kaushansky’s letter, includes sale of agribusiness and development farmlands, such as horse farms, greenhouses, and vacant land. Nothing before me supports that Halyna Zelionka has any experience selling farms. I find no basis to appoint her.
[20] Information before me on Michelle Lacroix’s experience, qualifications and even marketing plan are much more detailed than those provided for Lorraine Jordan. However, I cannot say that Ms. Lacroix is clearly more suited than Ms. Jordan.
[21] Considering all these factors, I conclude that Irene Kaushansky’s team should be appointed.
Determining list prices
[22] I have determined that the listing agent will recommend a list price for each property. If the owners disagree on the recommendation, they should seek to resolve their disagreement in consultation with the listing agent. If they cannot, and the dispute falls within 15% of the recommended list price, then the highest proposed list price shall be used. Otherwise, the owners may return to court for my determination.
[23] Marian and Christine propose that the court should decide list prices from the recommendations of the listing agents, with the agents providing comparative market analyses in support of their recommended list prices. Irene prefers for the parties to agree on the list price, failing which the listing agent would fix it. In my view, somewhere between the two positions is more appropriate.
[24] I agree with Irene Zur that returning to court for judicial determination on list prices will further delay listing and add expense. That is particularly true if the parties are able to reach consensus on list prices and an attendance amounts to nothing more than judicial approval of their agreement.
[25] I do not agree, however, that the listing agent should be given absolute authority in the event that the parties cannot agree on a list price. The three owners have agreed on very little so far, but it would be unjust to preclude them from returning to court in the event of a legitimate dispute over list prices. Such a return, though, should be limited to a genuine dispute that requires directions from the court.
[26] I anticipate the listing agent will conduct comparative market analysis in coming to the recommended list price, which I understand is done in the ordinary course. If the listing agent’s recommendation and rationale is not accepted by one or more of the owners, and they cannot agree on a higher or lower list price, at that point it may be appropriate to re-attend court for a judicial determination based on evidence of list and sale prices of comparable properties. A threshold of 15% variance from the agent’s recommended list price, although somewhat arbitrary, is intended to be a practical threshold providing some assurance that a re-attendance is necessary and proportionate.
Listing duration
[27] Marian and Christine propose that the listing period be fixed by the court with input of the regional listing agent for each property. Irene’s proposal is that the listing period should be 90 days, as extended by agreement of the parties for additional 30-day periods.
[28] I prefer Irene’s proposal with the addition of discretion for the owners to agree to an alternate initial listing period (i.e., shorter or longer than 90 days), as the listing agent may recommend. All three owners agree that the listing agent should have input into the listing duration. Limiting the need for court supervision and approval to genuine disputes is, in my view, more proportionate and cost-effective.
[29] If any of the properties have not sold by the end of a listing period, and the parties cannot agree on extending the listing or other listing particulars, they may return to court for further directions on a new listing period, listing agent, or listing particulars.
Cleanup, repair and other work
[30] Some agreement was reached on the issue of cleanup, repair and other work for listing the properties. It is undisputed that the properties should be sold as-is, without any staging or repairs performed prior to listing. For the Residential Property, that means existing problems identified in the application materials filed, such as high lead drinking water, potential mould, foundation cracks, and aging hydro service, roof, soffits, and eavestrough, will not be remediated or repaired.
[31] There is general agreement that some cleanup work needs to be done prior to listing. There is also at least acknowledgement that unanticipated repair, maintenance or other work may arise during the ongoing listings, such as a need for emergency repairs or compliance with municipal orders. Disputes remain regarding the extent of required pre-listing cleanup, whether certain items should be sold or thrown away, responsibility for coordinating necessary work, and whether and how any post-listing work should be done.
(a) Cleanup coordination
[32] It is appropriate that Marian, as the applicant, be the party responsible for coordinating the pre-listing cleanup and junk removal at the properties. The scope of cleaning and removal will be agreed by the owners or recommended by the listing agent. It is open to the owners to agree to have another of them responsible at one or more of the properties, instead of Marian.
[33] I am mindful that Marian has given evidence regarding health conditions that may limit her ability to perform the coordination function. However, Marian’s responsibility for coordinating cleanup does not mean she must herself perform or direct the necessary work. Irene’s counsel confirmed that Irene was not opposed to Marian having discretion to retain third parties to assist her, with the cost shared equally by the parties. Christine did not object.
[34] Accordingly, Marian shall be entitled to retain any third parties that she deems necessary to assist with coordinating or conducting required cleanup and storage (if any), with the cost of such third parties shared equally by the parties and paid from the joint Scotiabank account.
[35] Christine submits that Marian should be entitled to compensation for her coordination and cleanup work. Irene disagrees, taking the position that each of the owners has put uncompensated “sweat equity” into management of the properties. Marian did not request compensation during oral submissions, but also did not concede she should not be compensated.
[36] In my view, deciding Marian’s entitlement to compensation for her efforts is premature. If Marian seeks compensation for her time and efforts, and the parties cannot agree, it is more properly addressed as part of a final accounting. If any other owner seeks similar compensation, that is also properly addressed at the time of final accounting.
(b) Payment of cleanup and other expenses
[37] Each owner has agreed to pay $500 into the joint Scotiabank account to fund necessary expenses, and add additional funds if required. Since expenses are to be shared, topping up the joint bank account and paying expenses from it makes the most sense. Each owner will accordingly top-up the bank account with $500 within the next two weeks, and pay in an additional $500 if the balance falls below $500 (or such other threshold agreed by the parties).
[38] Except as otherwise ordered, costs incurred for pre-listing cleanup, as well as removal and storage of any items, shall be shared by all owners and paid from the Scotiabank account.
(c) Removal of Irene Zur’s furniture
[39] Irene has agreed to remove her personal effects from the Cottage Property before it is listed. She also has some personal furniture (such as a table, sofa, and appliances). Marian and Christine feel the Cottage Property will show better without the furniture there. However, Irene currently intends to bid to purchase that property, so does not want to remove it. If the property is sold to someone else, there is no dispute that Irene’s furniture will need to be removed. Irene argues that if she does make an offer and is the successful bidder, the expense and effort of removing the furniture will have been unnecessary. She argues the property will show better with the furniture.
[40] Nothing before me supports that the furniture must be removed. Marian and Christine may be correct that the Cottage Property will show better without Irene’s furniture. Irene may also be correct that it will show better with it. That is advice best obtained from the listing agent. The parties should seek that advice.
[41] If the listing agent recommends removal of Irene’s furniture, then the furniture will be removed and stored as part of cleanup (unless Irene elects to remove it herself), without prejudice to future argument about who should bear the removal and storage costs.
(d) Sale of items
[42] Irene has identified various items at the Residential Property that she submits should be sold: an old television, a refrigerator, a lawn mower, and various pieces of furniture. Irene submits that these items are common property that should not be thrown away, but rather sold with proceeds divided equally. Neither Marian nor Christine agree. Christine also submits that the lawn mower is not something jointly owned by all three owners.
[43] There are only a limited number of items (so it seems) that any owner wants to keep or have sold, rather than thrown out. Each owner should identify items she wishes to keep or sell to the other two owners in writing. That owner should also mark the items at each property. If anyone opposes an item being kept by another owner or wants an item kept instead of being sold, they should provide a prompt written objection.
[44] For items to be kept, disputes about who keeps the item or whether the owner keeping an item should compensate the others may be addressed at final accounting (if the parties cannot agree themselves). Items that someone wants should be kept, including items proposed to be sold that another party wants, until the parties have agreed on what to do with those items or the dispute is brought before me for determination. The owner wanting the item will be responsible for removing and storing it, unless the owners otherwise agree.
[45] For items being sold, it makes practical sense that the owner wanting an item sold be responsible for selling it. Proceeds of sale will be deposited to the owners’ joint Scotiabank account with information and documentation (if any) about the sale shared with the other parties and retained. Any disputes about sharing proceeds of sale are properly addressed with final accounting, if not agreed by that time.
(e) Unanticipated and necessary repair and maintenance work
[46] Marian requests that I impose a process to deal with unexpected repairs or necessary work (such as maintaining complaint smoke alarms) until the properties are sold, with expenses up to $125 authorized without prior approval. Christine agrees. Irene does not.
[47] Marian wants flexibility to address unforeseen matters like leaks, new batteries in smoke alarms, and addressing municipal orders to comply (a concern given the amount of junk at the Residential Property). Irene suggests no further work be done. If there is a leak, for example, she suggests turning off the water.
[48] Matters may arise during listing that reasonably need to be addressed. I accept that unforeseen plumbing concerns, furnace problems, ensuring smoke detectors are active, and similar repair and maintenance items may not be properly ignored. The proposed $125 threshold before consulting with other owners is arbitrary, but reasonable.
[49] Each of the owners shall accordingly be entitled to incur repair and maintenance expenses, in their sole discretion, of up to $125. Notice of the work and copies of invoice(s) for the expenses will be provided to all other owners. All owners must be consulted on work over the $125 threshold. If they cannot agree on such work being done, then Marian will determine whether work will proceed and be responsible for coordinating that work, for the same reasons I determined she should be responsible for coordinating pre-listing work.
[50] For emergency matters that reasonably cannot wait for approval by all owners, each owner will have discretion to arrange the necessary repair or maintenance work in excess of $125 without prior approval. Prompt notice about the nature of emergency, the work performed, and cost incurred will be provided to the other owners, together with any supporting estimates, invoices, and receipts. Each owner should provide prompt notice to the others of any matter that may require urgent repair or other action.
[51] All discretionary, approved, and emergency repair and maintenance expenses will be paid from the joint Scotiabank account. Any disputes over necessity of repair, maintenance or other costs and who should bear those costs will be addressed with final accounting.
Bidding process restrictions
[52] Bidding process terms or restrictions are only needed if an owner wishes to purchase a property. Irene has expressed interest in purchasing the Cottage Property and possibly the Residential Property. Neither Marian nor Christine want to purchase any of the properties.
[53] I agree with Marian and Christine that Irene cannot wear both hats of seller and purchaser at the same time. Doing so would seem to circumvent Ferguson J.’s order that there be no right of first refusal. Knowing offer amounts and terms may give Irene an unfair advantage in the bidding process, allowing her to increase her bid to the highest. Having potential communication with other bidders may allow Irene to discourage other bids in favour of her own. The inequity is greater if, after initial offers are presented, bidders are permitted to “sharpen their pencils” (as is often done).
[54] Irene must provide prompt notice of her intention to bid on a property prior to or upon listing, although an offer need not be made at that time. For clarity, once a property has been listed and an offer has been received by the listing agent, Irene will be deemed to have elected not to bid on that property.
[55] If Irene does elect to bid on a property, I conclude that the following terms are necessary to ensure a fair bid process that does not provide Irene with a de facto right of first refusal:
(a) Irene must bid through a licensed real estate agent who is not from the same brokerage as the listing agent.
(b) Irene will take the same position as any other bidder. In particular, neither she nor her agent will be entitled to any information from the listing agent unless another bidder or potential bidder would also be entitled to it. For greater certainty, once Irene has elected to bid, the property listing agent will not communicate with Irene about bid process, inquiries from bidders or potential bidders, or bid selection.
(c) Pre-emptive or “bully” offers will only be considered on properties that Irene does not want to purchase, if the offer is worth considering in the discretion of the listing agent. Irene is not entitled to make a pre-emptive or “bully” offer.
(d) Questions from bidders or potential bidders will not be answered by Irene.
(e) Other bidders or potential bidders should not be aware that a co-owner is bidding. Irene must not knowingly communicate with other bidders or potential bidders in any way, directly or indirectly.
(f) All offers will be blind offers submitted directly to the listing agent at a specific date and time to be determined by the listing agent, with an irrevocability period of no less than 24 hours, unless the listing agent advises and the owners agree to a shorter period. No late offers will be accepted, but bidders may be offered one opportunity to increase their offer if they are not the high bidder. The listing agent will communicate these requirements to bidders and potential bidders.
(g) Irene is entitled to withdraw her election to bid on a property, provided she does not have an offer to purchase that property open for acceptance. If she withdraws her election to bid, she will be entitled to all information and the same role as the other owners.
[56] If Irene does not bid a property, then the bidding process will be agreed by the owners based on the advice of the listing agent. If they cannot agree, then the same blind offer process outlined above will apply, with pre-emptive offers entertained and accepted only by agreement of all owners.
Bid selection process
[57] Realistically, I cannot be involved in selecting the successful offer. Inability to obtain a prompt hearing before me may result in offers expiring. There needs to be a framework that maximizes the parties’ discretion in bid selection with a fallback in the event they cannot agree.
[58] I have determined that different bid selection processes are necessary depending on whether Irene Zur wishes to purchase a property. Like the bidding process, once Irene Zur elects to bid, she cannot fairly be involved in the bid assessment and selection process.
(a) Bid selection when Irene Zur does not bid
[59] At the hearing, all three owners agreed that conditional offers should not be considered or accepted. In my view, though, a direction that the highest unconditional offer should be accepted in all circumstances may preclude consideration of an overall better offer, such as where the highest bid contains a minor or unproblematic condition.
[60] Discretion to accept a conditional offer or negotiate with a conditional bidder, if recommended by the agent and agreed by the parties, makes sense. If the parties cannot agree, though, then the highest unconditional offer will be accepted. The owners have agreed to a presumptive 60-day closing, unless they otherwise agreed. Negotiation with the bidder of the highest unconditional offer may be required to extent or abridge the offered closing.
(b) Bid selection when Irene bids
[61] The bid process I have directed places Irene solely in the role of a bidder, but she remains a co-owner. It is unfair for Marian and Christine to have sole discretion on offer selection if Irene bids on a property. It could allow Marian and Christine to block Irene from purchasing it. I have no basis to believe they would do so, but I also cannot say that they will not. Since neither Marian nor Christine oppose Irene bidding on the properties, it is just that all three owners be in the same position.
[62] Marian has proposed that the highest unconditional offer be accepted for any property on which Irene bids. Irene suggests that the listing agent identify the highest and strongest offer and allow the remaining bidders to increase their offers, without communicating any offers to the owners. A final chance would be given to the highest bidder if they are outbid. Each bidder would be given one hour to increase their bids.
[63] I find it appropriate that the highest unconditional offer be accepted for any property for which Irene Zur has made an offer. I agree with Irene, though, that the listing agent should have discretion to ask low bidders to “sharpen their pencils” before final offer acceptance. Maximizing the sale price is to the advantage of all owners.
[64] It is unfair to Irene if Marian and Christine know the bid amounts before Irene. However, with irrevocable offers, disclosure of the bids is not needed for the listing agent to seek increased bids without jeopardizing the highest bid. Irene’s proposal requires the agent to do so, but I find that doing so should be in the agent’s discretion.
[65] Accordingly, once the listing agent has reviewed all offers (without disclosing the bidders or bids to the owners), the listing agent may, if they deem it appropriate and advisable, identify the highest unconditional offer (or multiple offers if there is a tie) and communicate with the other bidders one opportunity to give their best offer. If an updated offer becomes the new highest unconditional offer, then the former highest bidder (or bidders) will also be given one opportunity to give their best offer. In the event of a tie for highest offer, tied bidders will be given a final opportunity to revise their bids. To ensure that no offers expire, all revised offers must be solicited and received within the original irrevocability period, without abridging that irrevocability period.
[66] Following any revised bidding, or if the listing agent decides there should be no revised bidding, all offers will be presented to all owners. The owners are at liberty to mutually agree to accept any offer, but if they cannot agree, then the highest unconditional offer will be accepted, with negotiation (if necessary) for a 60-day closing, unless otherwise agreed by the owners.
Real estate lawyer
[67] Divergent positions on who should act as the real estate lawyer were put forward. Irene ultimately proposed Robert Beaumont, a lawyer who previously dealt with real estate and estate matters for the owners’ family. Christine agrees with Mr. Beaumont. Marian did not object. I am unclear if Mr. Beaumont has been consulted or confirmed he will act.
[68] Accordingly, I direct that Robert Beaumont will act as the owners’ lawyer for the real estate closings on all three properties, unless he declines to act. Closing costs will be paid out of closing funds and any disputes regarding equal contribution to Mr. Beaumont’s fees and disbursements may be addressed in the final accounting.
Sale proceeds
[69] All owners agree that sale proceeds should be disbursed as the properties are sold. I see no need to restrict disbursement of the sale proceeds pending a further hearing. The only necessary direction is that funds be withheld in trust that are sufficient to cover the extent of any dispute over shared allocation of expenses, claimed compensation for any work performed, or other financial matters that would result in an unequal distribution of funds. Those disputes may be addressed in the final accounting.
[70] If the parties cannot agree on an appropriate withholding amount from sale proceeds to cover disputes, then the maximum amount identified by an owner as being required to address outstanding disputes will be held in trust by the real estate lawyer pending further court order.
Disposition
[71] I accordingly order as follows:
(a) Irene Kaushansky, Lorraine Jordan, and Roy Cado are hereby appointed as listing agents for, respectively, the Residential Property, the Cottage Property, and the Farm Property. Irene Kaushansky shall act as lead listing agent and coordinate listing details as between the listing agents and the parties.
(b) Each listing agent shall recommend a list price for the properties. If the parties do not mutually agree on a list price, then provided the dispute is within 15% of the listing agent’s recommended price, the highest proposed list price shall be used, failing which the parties may return to court for a determination on the list price.
(c) Subject to mutual agreement of the parties to a different listing duration with input from the listing agent for a property, each property shall be listed for a period of ninety (90) days, which may be extended by consecutive thirty (30) day periods by agreement of all parties.
(d) Following expiry of a listing period for a property, if the parties are unable to mutually agree on terms of re-listing, the parties may return to court for further directions on the sale if that property, including whether the property should be re-listed, whether the same listing agent will continue to act, listing duration, and listing particulars.
(e) Unless otherwise agreed, Marian Zur shall be responsible for coordinating the extent of pre-listing cleanup and junk removal at the properties agreed by the owners or recommended by the listing agent. Marian Zur shall be entitled to retain any third parties that she deems necessary to assist with coordinating or conducting required cleanup and storage (if any), with the cost of such third parties shared equally by the parties and paid from the joint Scotiabank account.
(f) Each party shall pay $500 into the joint Scotiabank account within two (2) weeks, and a further $500 each whenever the bank account balance falls below $500, or such other threshold agreed by the parties.
(g) If recommended by Lorraine Jordan, Irene Zur’s furniture and appliances at the Cottage Property shall be removed and stored as part of pre-listing cleanup, unless Irene Zur elects to remove and store them herself.
(h) Each party shall identify items she wishes to keep or sell to the other two parties, in writing, and shall further mark the items in some form at each property. If another party opposes an item being kept or wants an item kept instead of being sold, they shall provide a prompt written objection.
(i) For items to be kept, the party wanting the item shall be responsible for removing and storing it, unless the owners otherwise agree. Disputes about entitlement to keep the item or whether the party keeping an item should compensate the other parties may be addressed at a future hearing.
(j) For items to be sold, the party wishing to sell the item shall be responsible for selling it, with proceeds of sale deposited to the joint Scotiabank account and information and documentation (if any) about the sale shared with the other parties and retained. Disputes about sharing proceeds of sale may be addressed at a future hearing.
(k) Each party shall be entitled to incur repair and maintenance expenses, in their sole discretion, up to $125.00. Notice of the work and copies of invoice(s) for the expenses shall be provided to all other parties. For work over $125.00, all parties must consult and agree. If they cannot agree, then Marian Zur shall determine whether work is performed and shall be responsible for coordinating such work.
(l) In the event of emergency repair or other work that cannot wait for approval of all parties, each party shall have discretion to arrange the necessary work without prior approval, but shall provide prompt notice about the nature of emergency, the work performed, and costs incurred will be provided to the other owners, together with any supporting estimates, invoices, and receipts
(m) Each party becoming aware of any matter at the properties requiring repair or other immediate action, if not addressing it herself, shall provide prompt notice of the matter to the other parties.
(n) All discretionary, approved, and emergency repair and maintenance expenses shall be paid from the joint Scotiabank account, without prejudice to addressing disputes regarding the necessity of expenses and who should bear the costs at a future hearing.
(o) Irene Zur shall provide prompt notice of her intention to bid on a property prior to or upon its listing. For clarity, once a property has been listed and an offer has been received by the listing agent, Irene Zur shall be deemed to have elected not to bid on that property.
(p) If Irene Zur elects to bid on a property, the bidding process shall be in accordance with the following:
(i) Irene Zur shall bid through a licensed real estate agent who is not from the same brokerage as the listing agent;
(ii) Irene Zur shall be in the same position as any other bidder, including that neither she nor anyone on her behalf shall be entitled to information from the listing agent unless another bidder or potential bidder would also be entitled to such information;
(iii) For greater certainty, once Irene Zur has elected to bid on a property, the property listing agent will not communicate with Irene about bid process, inquiries from bidders or potential bidders, or bid selection;
(iv) Irene Zur shall not be entitled to make a pre-emptive or “bully” offer, and such offers shall not be considered from other bidders on properties on which Irene Zur has elected to bid;
(v) Questions from bidders or potential bidders shall not be answered by Irene;
(vi) Other bidders or potential bidders shall not be made aware that a co-owner is bidding, and Irene Zur shall not knowingly communicate with other bidders or potential bidders in any way, directly or indirectly;
(vii) All offers shall be blind offers submitted directly to the listing agent at a specific date and time to be determined by the listing agent, with an irrevocability period of no less than 24 hours, unless the listing agent advises and the owners agree to a shorter period. No late offers shall be accepted, but bidders may be offered one opportunity to increase their offer if they are not the high bidder;
(viii) The listing agent shall communicate the requirements in subparagraph (vii) above to bidders and potential bidders; and
(ix) Irene shall be entitled to withdraw her election to bid on a property, provided she does not have an offer to purchase that property open for acceptance. If she withdraws her election to bid, she shall thereafter be entitled to all information and to take the same role as the other parties.
(q) If Irene Zur does not elect to bid a property, then the bidding process shall be agreed by the parties based on the advice of the listing agent. If they cannot agree, then the same blind offer process outlined in subparagraph (p)(vii) above will apply, with pre-emptive offers entertained and accepted only by agreement of all owners.
(r) Selection of the successful bidder on a property shall be in accordance with the following:
(i) If Irene Zur does not bid, then the parties shall agree on an acceptable offer, failing which the highest unconditional offer will be accepted, with negotiation (if necessary) for a 60-day closing, unless otherwise agreed by the owners; and
(ii) If Irene Zur does bid, then the following process shall apply:
(1) Following the deadline for bids, the listing agent shall review the offers, without disclosing the bidders or bids to the parties.
(2) If the listing agent deems it appropriate and advisable, they shall identify the highest unconditional offer (or multiple offers if there is a tie) and communicate with the other bidders one opportunity to give their best offer.
(3) If an updated offer becomes the new highest unconditional offer, then the former highest bidder (or bidders) shall also be given one opportunity to give their best offer.
(4) In the event of a tie for highest offer, tied bidders shall be given a final opportunity to revise their bids.
(5) All revised offers shall be solicited and received within the original irrevocability period, without abridging that irrevocability period.
(6) Following any revised bidding, or if the listing agent decides there should be no revised bidding, all offers shall be presented to the parties.
(7) The parties shall be at liberty to mutually agree to accept any offer, but if they cannot agree, then the highest unconditional offer shall be accepted, with negotiation (if necessary) for a 60-day closing, unless otherwise agreed by the parties.
(s) Robert Beaumont shall act as the parties’ lawyer for the real estate closings on all three properties, unless he declines to act. Closing costs shall be paid out of closing funds, without prejudice to positions in final accounting.
(t) All proceeds from sale of the properties shall be disbursed equally to the parties after payment of shared expenses, subject to withholding for any disputes about shared allocation of expenses, claimed compensation for any work performed, or other financial matters that would result in an unequal distribution of funds.
(u) If the parties cannot agree on an appropriate withholding from sale proceeds to cover disputes, then the maximum amount identified by a party as being required to address outstanding disputes will be held in trust pending further court order.
(v) Following sale of the last property, unless there are no final accounting issues requiring directions from the court, the parties shall arrange a further hearing for directions for the purpose of fixing a date for submissions on outstanding issues and a final accounting, as well as a timetable for exchange of any required materials.
(w) This order is effective without further formality.
[72] Findings and conclusions on a reference are embodied in a report: Rules of Civil Procedure, Rule 54.06. Although the reference is not yet concluded, if some or all of the parties wish, my determinations and directions may be embodied in an interim report. Alternatively, they may form part of an ultimate report following a hearing for a final accounting.
[73] If the parties wish to proceed with an interim report, then a form of interim report approved as to form and content by all parties may be submitted through my Assistant Trial Coordinator in both pdf and Word format. If there is disagreement on the form and content of an interim report, then a hearing for directions to settle the form of report may be arranged.
MASTER TODD ROBINSON
DATE: July 2, 2021
[^1]: Although Irene Zur is also named Irene Gladys in the title of proceedings (and in materials filed), she prefers to be addressed as Irene Zur. To avoid confusion from referencing both Marian Zur and Irene Zur as Ms. Zur, I have used the parties’ first names in these reasons. No discourtesy is intended by using more familiar references. It is done solely for clarity.