COURT FILE NO.: CV-18-1231-00

DATE: 2022-02-02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

RE/MAX REALTY SPECIALISTS INC.

Plaintiff

Ben Hanuka for the Plaintiff

• and -

2452303 ONTARIO INC., SANDEEP JHUTTY aka STEVE JHUTTY and HARJINDER KARU JHUTTY

Defendants

Daniel Chitiz and Kevin Massicotte for the Defendants

HEARD: December 13, 2019, February 9,10, June 28, 29, and July 2, 16, 2021

REASONS FOR JUDGMENT

SHAW J.

OVERVIEW

[1] The trial in this matter commenced in December 2019. It was to continue in 2020 but due to the COVID-19 pandemic, the trial did not resume until 2021. As per the order of Ricchetti J. dated August 28, 2019, the only issue to be determined is whether an initial beside a particular clause in a Buyer Representation Agreement (“BRA”) is that of the defendant, Mr. Jhutty. If I find that it is Mr. Jhutty’s initials, meaning he signed it, the parties agree that the defendants will owe the plaintiff a commission of $250,000 with respect to the purchase of some industrial property in Mississauga. If it is not his initials, then nothing is owed, and the plaintiff’s claim is dismissed.

[2] There were four witnesses called at trial. Mr. Ray Datta, a real estate broker employed by the plaintiff, testified on behalf of the plaintiff. Mr. Jhutty, an officer of 2452303 Ontario Inc. (“245”), testified. The defendant, Harjinder Jhutty, is Mr. Jhutty’s wife. She is also an officer of 245. She did not testify. Both parties also called handwriting experts who provided opinion evidence regarding the initial that is in dispute. In these reasons, the initial in dispute will be referred to as the “questioned initial”.

[3] 245 is part of a trucking business that Mr. Jhutty operates. Mr. Jhutty moved to Canada in 2001 and worked for a transportation company. In 2010, he started his own company, Spartan Freight Systems (“Spartan”). It is a transportation and logistics business of which he is President and CEO. The business owns approximately 100 trucks that haul freight throughout North America. While no evidence was presented, I assume that Spartan is owned by 245 or that they are somehow related companies. Nothing turns on that determination.

[4] In 2010, Spartan rented property in Mississauga from which it operated. As the business was expanding, in 2011, Mr. Jhutty leased another property in Mississauga. Mr. Jhutty located the properties and negotiated the terms of both leases without retaining a real estate agent.

[5] In 2015, Spartan moved again. That year, 245 purchased a property on Cardiff Boulevard in Mississauga. Mr. Jhutty located the property on a website he used called realtor.ca. He hired a real estate agent for that transaction. In 2017, Spartan was operating its trucking business from the Cardiff property and from another property it owned in Windsor, Ontario.

[6] In 2016, Mr. Jhutty was again looking to purchase property from which to operate Spartan and made an offer to purchase property on Drew Road in Mississauga. Mr. Jhutty hired a real estate agent for that purchase, but the offer was not accepted. That property was located next to property on Tranmere Drive (the “Tranmere property”) that 245 eventually purchased in the latter part of 2017.

[7] Mr. Jhutty and Mr. Datta agree that they met at a men’s social club. Mr. Jhutty was a member of the club and Mr. Datta was a guest. There is no dispute that in 2017, Mr. Jhutty hired Mr. Datta to negotiate the purchase of property located on Vipond Drive in Mississauga (the “Vipond property”) on behalf of 245. The offer was made on January 9, 2017. After negotiations and a series of counteroffers, by the end of January 2017, 245’s last offer for $9.2 million was not accepted and the property was not purchased.

[8] When the initial offer was made for the Vipond property, Mr. Jhutty signed a BRA dated January 9, 2017, on behalf of 245. Mr. Jhutty does not dispute signing the document. He also signed his signature and initials at various spots on the document. He says the signatures and all the initials are his except for one initial on the first page of the BRA, which is beside a paragraph that sets out the term or period for which the BRA was in effect.

[9] In the fall of 2017, 245 purchased the Tranmere property for $12.5 million. Mr. Datta was not involved with that purchase and became aware of it after the transaction was completed. If I find that Mr. Jhutty signed the questioned initial on the BRA, the parties agree that the BRA covered the purchase of the Tranmere property and 245 owes a commission to the plaintiff in connection with that purchase.

[10] It is not in dispute that a BRA establishes an exclusive relationship between a real estate brokerage and a buyer for a specified period. The agreement sets out the duties and responsibilities of both parties, and the commission owing to the broker if a property covered by the BRA is purchased during the term of the BRA.

[11] When Mr. Jhutty signed the BRA on behalf of 245, he gave the plaintiff RE/Max Realty Specialists Inc. (“Re/Max”), exclusive and irrevocable authority to act as 245’s agent to purchase property during the term of the BRA. The preprinted form states that if the term of the BRA exceeds six months, the buyer must initial the paragraph extending the term of the BRA. The questioned initial is beside the paragraph that extends the term of the BRA to one year from January 9, 2017, to December 31, 2017.

[12] For the following reasons, I find that the plaintiff has discharged its burden and established, on a balance of probabilities, that Mr. Jhutty signed the questioned initial. Accordingly, the defendants owe the plaintiff a commission of $250,000.

POSITION OF THE PARTIES

[13] Re/Max’s position is that the defendants breached the BRA when 245 purchased the Tranmere property during the term of the BRA and did not pay Re/Max the commission owing to it. Re/Max says the property was purchased while the BRA was in effect and thus a commission of 2 per cent of the purchase price of Tranmere Drive, or $250,000, is owing to it. Re/Max alleges that Mr. Jhutty is now denying he signed the questioned initial to avoid paying the commission owing to it.

[14] The plaintiff’s position is that Mr. Datta is a credible and reliable witness whose evidence should be preferred over Mr. Jhutty’s evidence. The plaintiff also relies on its expert’s opinion and urges this court to either not qualify the defendant’s witness as an expert or to place little weight on her opinion if she is qualified.

[15] The defendants’ position is that the questioned initials are not Mr. Jhutty’s initials and therefore the BRA was only in place for six months. Furthermore, Mr. Jhutty says that it was his understanding that he was only hiring Mr. Datta in January 2017, to purchase the Vipond property and he believed that the BRA only related to that property. As such, the defendants say there was no breach of the BRA and no commission is owed to Re/Max. The defendants claim that someone else signed the questioned initial to attempt to extract a commission on the purchase price of the Tranmere property from 245 even though Mr. Datta was not involved in the purchase of the property.

[16] The defendants’ position is that Mr. Datta is not a credible or reliable witness. They suggest he fabricated evidence to support his version of the nature of his relationship with Mr. Jhutty. They argue that Mr. Jhutty’s evidence that he did not sign the questioned initials should be preferred by this court as he is a credible and reliable witness.

[17] The defendants also argue that the plaintiff’s expert gave a very qualified opinion that this court cannot rely on, to support the plaintiff’s position that it was Mr. Jhutty who signed the questioned initial. They urge the court to accept their expert’s less equivocal opinion that Mr. Jhutty did not sign the questioned initial.

REVIEW OF THE EVIDENCE

a. The BRA

[18] The BRA is a three-page pre-printed document from the Ontario Real Estate Association (“OREA”). It is an agreement that requires a prospective purchaser of real estate to deal exclusively with a particular real estate broker for the purchase of property during the term of the BRA. It also describes the type of property and the geographic location to which the BRA applies.

[19] The first page of the BRA identifies the parties to the agreement as Re/Max and 245. According to the BRA, 245 agreed to work exclusively with Re/Max for the purchase of real property. On the first page of the BRA, the real property covered by the agreement was described as “Industrial, Land”. The geographic location was identified as Mississauga. The words “Industrial, Land” and “Mississauga” were typed onto the pre-printed form. The BRA did not apply to other types of real property purchased in other geographic locations.

[20] Mr. Datta and Mr. Jhutty initialled the bottom of the first two pages and signed and dated the last page of the BRA. These initials and signatures are not in dispute.

[21] The clause of the BRA on the first page, that is at the heart of this litigation, reads as follows:

The Buyer hereby gives the Brokerage the exclusive and irrevocable authority to act as Buyer’s agent commencing at 10:00 a.m. on the 9 day of January 2017 and expiring at 11:59 p.m. on the 31 day of December 2017.

Buyer acknowledges that the time period for this Agreement is negotiable between the Buyer and the Brokerage, however, in accordance with the Real Estate and Business Brokers Act of Ontario (2002), if the period for this Agreement exceeds six months, the Broker must obtain the Buyer’s initials

for the purpose of locating a real property meeting the following general description:

Property Type (Use): Industrial, Land

Geographic Location: Mississauga

[22] The bolded terms above were bolded in the BRA. The time and dates for the term of the BRA were typed on to the form, as were the terms “Industrial, Land” and “Mississauga”.

[23] To the right of second paragraph were the words “Buyer’s Initials”. Above that, in an oval, are the questioned initials.

[24] Paragraph three of the BRA sets out the responsibilities of the buyer. This included advising Re/Max of any property of interest that came to 245’s attention from any source during the term of the agreement, and submitting through Re/Max all offers by 245 during the term of the BRA to purchase real property of the general description in the agreement. The BRA states that Re/Max is to be paid a commission of 2 per cent with respect to any property purchased by 245 that was covered by the BRA.

[25] Paragraph three also include a requirement that the buyer submit to Re/Max all offers by the buyer within 90 days of the expiration of the BRA for the purchase of any property that came to the buyer’s attention from any source during the term of the BRA.

[26] Mr. Jhutty signed his name on two places on the last page of the BRA. Above his second signature was the following:

The Buyer(s) hereby acknowledge that the Buyer(s) fully understand the terms of this Agreement and have received a true copy of this Agreement on the 09 day of January 2017.

[27] The “09” and “January” and “17” were written into the preprinted form.

b. Events Prior to January 9, 2017

[28] Mr. Datta has been a real estate broker for 12 years. He works as an independent contractor for Re/Max. He deals mostly with residential properties but has done some commercial work as well.

[29] Mr. Datta testified that he first met Mr. Jhutty in 2011, when he was invited as a guest to attend a men’s social group. He said that Mr. Jhutty was a member of the group and he was invited as a guest. According to Mr. Jhutty, this social group is made up of business owners/friends who gather every two weeks to drink, socialize and play cards.

[30] According to Mr. Datta, in 2014 or 2015, he and Mr. Jhutty discussed Mr. Jhutty’s interest in purchasing some land in Windsor or London, Ontario for his trucking business. Mr. Datta’s evidence is that he sent information to Mr. Jhutty, but Mr. Jhutty decided that those locations were too far from his property. There was no evidence with respect to when Mr. Jhutty purchased property in Windsor, but it is not in dispute that his business owned property and was conducting operations from there in 2017.

[31] Mr. Jhutty denies that he had these discussions with Mr. Datta.

[32] According to Mr. Datta, in late 2016, Mr. Jhutty told him at one of these social gatherings that he was looking to expand his business and double or triple the size of the land from the current location on Cardiff. He told Mr. Datta that, as he was in the trucking business, that land rather than a building, was important to him. Mr. Datta testified that he told Mr. Jhutty he would be in touch. He also testified that they discussed a few properties and one of them was the Tranmere property. According to Mr. Datta, Mr. Jhutty told him that he was also looking at properties on the website realtor.ca.

[33] Mr. Jhutty denies that he and Mr. Datta discussed the Tranmere property.

[34] Text messages between Mr. Datta and Mr. Jhutty were filed as exhibits. The first was from Mr. Datta to Mr. Jhutty and is dated September 22, 2016. In that text, Mr. Datta said,” Hi Deep, please call me for any of your real estate needs. I will be glad to help. Thanx. Romi.”

[35] According to Mr. Jhutty, he must have had a conversation with Mr. Datta prior to this text and told him that he might be looking for property at some point and would let him know. Mr. Jhutty’s evidence was that prior to this date, he had no conversations with Mr. Datta about any real estate issues.

[36] The next text is dated December 6, 2016, from Mr. Jhutty to Mr. Datta and it says, “W3649644. Can you send me the details of the listing and see if it’s still available.” Mr. Datta responded by text and said he would be glad to, within the next hour. The number in Mr. Jhutty’s text was a real estate listing number for property on Vipond Street in Mississauga (the “Vipond property”) from the multiple listing service (“MLS”). Mr. Jhutty’s evidence is that he was on realtor.ca and saw the Vipond property listed, so he sent this text to Mr. Datta looking for information.

[37] The parties agree that they had no discussions about any property issues between the texts exchanged in September and December 2016.

[38] Mr. Datta’s evidence is that on December 6, 2016, he emailed Mr. Jhutty property listings for several commercial properties, including the Vipond property. These ten listings were filed as evidence. Each listing had a print date on the form of December 6, 2016, and a time of 6:51:59 p.m. The listing for the Vipond property also had a print date of December 6, 2016, but the print time was 11:58:42 a.m.

[39] An email dated December 6, 2016, was sent to Mr. Jhutty at 11:38 a.m. from Ray Datta at lisings@trebnet.com, which Mr. Datta says enclosed the ten MLS listings. Mr. Datta, at getraydatta@gmail.com, was copied with the email. The subject line says, “Properties of interest 4 DEEP”. That email says, in bold, “please find info you requested and will call you to follow up soon, if you have any querries please call me. Thanx.” The next line says, not in bold, “Listed below is a link to properties that may be of interest to you. Click on the link to view the property information. This link will be active for a two-week period.” This was followed by a line that said, “View Details”. The email also said, “Reply by sending email to RAY DATTA.” The next line said, “To unsubscribe, click here to email RAY DATTA, Salesperson.”

[40] The email also had a paragraph near the bottom that said, “This email is sent to you by the Toronto Real Estate Board on behalf of RAY DATTA, Salesperson, RE/MAX REALTY SPECIALISTS INC, BROKERAGE, 490 Bramalea Road Suite 400 Brampton, ON L76OG1”.

[41] Mr. Datta was not asked any questions in chief or on cross-examination about how this email was generated or why there are two different emails. His evidence, which was not challenged, was that he sent the email to Mr. Jhutty. What was challenged on cross-examination was whether the email attached any listings other than the listing for the Vipond property.

[42] While Mr. Jhutty acknowledged receiving this email on December 6, 2016, his evidence was that it was only with respect to the Vipond property and was in response to the text he sent to Mr. Datta that same day with the MLS number for the Vipond property. He did not recall if Mr. Datta sent him information about any other properties. He testified that he did not remember speaking to Mr. Datta about any other property. He also testified that he had no interest in any property other than the Vipond property.

[43] Mr. Datta sent another email to Mr. Jhutty on December 6, 2016, at 12:09 p.m., shortly after the first email. The email was sent from the email address getraydatta@gmail.com. The subject line says, “Fwd: 6505 Vipond”. The email says. “Hi Deep, Please find attached more info on the property. Kindly call me if you wish to view it or have any further queries. Thanx. Best in health. Regards”. Mr. Jhutty and Mr. Datta agree that this email attached additional information about the Vipond property.

[44] The next text was from Mr. Datta to Mr. Jhutty dated December 20, 2016, and it says that an appointment was confirmed for the following day. Mr. Datta and Mr. Jhutty agree that this was the appointment to view the Vipond property and they both attended. There is no dispute that this was the only property they viewed together.

[45] Mr. Datta’s evidence is that in early December 2016, he told Mr. Jhutty that he would have to sign some forms before he could show him any properties. This included the BRA. His evidence was that Mr. Jhutty told him that he first wanted to see how Mr. Datta worked and if he felt comfortable with him, he would sign the documents. Mr. Datta therefore agreed to arrange a viewing of the Vipond property on December 21, 2016, before Mr. Jhutty signed any forms, including the BRA.

[46] After the showing on December 21, 2016, Mr. Datta said that Mr. Jhutty was happy with Mr. Datta’s work. Mr. Datta also testified that Mr. Jhutty told him that men from the men’s club had given good references for him. As the agent for the sellers of the Vipond property was on holiday, Mr. Datta said nothing could be done at that time and so the BRA and offer to purchase were not signed until January 9, 2017.

[47] On January 4, 2017, Mr. Jhutty texted Mr. Datta with an MLS number for another property and asked Mr. Datta to check the zoning on the property. Mr. Datta agreed on cross-examination that he believes he sent Mr. Jhutty the information on this property. Mr. Jhutty’s evidence is that he was advised that the property was not zoned for the use his business needed so no further steps were taken regarding that property.

[48] Mr. Datta filed as evidence, listings and additional information for a further six properties that he said he printed out and took with him when he met with Mr. Jhutty to sign the BRA and the offer for the Vipond property on January 9, 2017. Those listings record a print date and time of January 6, 2017, at 1:16:43 p.m.

[49] Mr. Jhutty’s evidence is that he does not recall if Mr. Datta sent him information on any other properties. He does not recall discussing any other properties with Mr. Datta. It was his evidence that at the time he was dealing with Mr. Datta, he was only interested in the Vipond property.

[50] On re-examination, Mr. Jhutty testified that he did not ask Mr. Datta to send him any listings other than information for the Vipond property in December 2016. If Mr. Datta sent him any other listings, he did not discuss them with him.

[51] Mr. Datta testified that his practice is to have all his clients sign a BRA. It was also his evidence that most BRAs are in place for a term of a minimum of six months when dealing with residential properties. As commercial transactions can take longer, he said that one-year terms are recommended for BRAs when dealing with commercial properties. Mr. Datta also said this was his usual practice.

[52] On cross-examination, Mr. Datta testified that he told Mr. Jhutty at the beginning of December 2016, that he normally has clients sign a BRA before showing any property to them. He agreed that he told Mr. Jhutty that for commercial purchases, his customary practice is to have clients sign BRAs with a one-year term. Mr. Jhutty denies that Mr. Datta told him prior to January 9, 2017, that he would be required to sign a BRA before he could put an offer on the Vipond property.

[53] Mr. Datta agreed that at examinations for discovery, he was asked to produce BRAs for a five-year period that show a one -year term for commercial transactions was his normal practice. He agreed that of the six he produced, only one was for a commercial transaction. His evidence was that he has done other commercial transactions acting for vendors and BRAs are not signed when acting for vendors. The one BRA he produced for a commercial purchase had a term of 14 months and the remaining five were for residential properties with terms ranging from seven to 14 months.

[54] He did not agree with the suggestion that it was misleading to tell Mr. Jhutty that his customary practice is a one year term for a BRA in commercial matters when he could only produce one that he had been involved with during the previous five years.

c. Signing the BRA on January 9, 2017

[55] Mr. Datta testified that he brought the BRA and Working with a Commercial Realtor forms, and the offer to purchase the Vipond property, with him when he met with Mr. Jhutty on January 9, 2017, at his business on Cardiff. According to Mr. Datta, he reviewed the forms in detail with Mr. Jhutty and explained that the forms had to be signed. He also told Mr. Jhutty that the BRA would cover the period of January 9, 2017, to the end of December 2017. He said that Mr. Jhutty said nothing about that term and was “ok” with it. He told Mr. Jhutty that the BRA covered industrial land, which was the type of property Mr. Jhutty was looking to purchase. The agreement was also limited to property located in Mississauga, as Mr. Jhutty told him he was looking for property close to 245’s current location in Mississauga. Mr. Datta said he explained to Mr. Jhutty that by signing the BRA, 245 was bound to use Re/Max as its real estate agent should 245 purchase industrial property in Mississauga during the term of the BRA. He told Mr. Jhutty that the BRA did not apply to property that 245 might buy outside of Mississauga. He said that he also discussed with Mr. Jhutty that a commission of 2 per cent would be paid to Re/Max if 245 purchased any property covered by the BRA.

[56] On cross-examination, Mr. Datta denied that there was any discussion with Mr. Jhutty that the BRA only applied to the Vipond property.

[57] Mr. Datta testified that Mr. Jhutty signed and initialled the forms. Mr. Datta gave Mr. Jhutty copies of the forms. Mr. Datta said they each used their own pens to sign the BRA.

[58] Mr. Jhutty also signed the offer to purchase the Vipond property at that meeting. The original offer was for a purchase price of $8 million. The listing price was $9.9 million. According to Mr. Datta, prior to the meeting, Mr. Jhutty informed him by phone call of his intention to offer $8 million so when Mr. Datta met with him on January 9, 2017, he already had the offer prepared for that purchase price.

[59] Mr. Jhutty’s evidence about the January 9, 2017, meeting with Mr. Datta is quite different. He agrees that Mr. Datta came to his office on January 9, 2017. He said that while he signed the documents, including the BRA, he did not initial the form on the first page beside the paragraph that said the term of the BRA was from January 9, 2017, to December 31, 2017. He acknowledged that the other two initials on the bottom of each page of the agreement were his, as were his two signatures on the last page. He denied receiving a copy of the BRA after he signed and initialled it. His evidence was that he only received a copy in March 2018, when he was contacted by the plaintiff’s lawyer after he purchased the Tranmere property.

[60] According to Mr. Jhutty, he told Mr. Datta that he did not agree to a one-year BRA. His evidence was that Mr. Datta told him not to initial the paragraph as the BRA would then have a term of six months and not one year. Mr. Jhutty testified that he did not think of crossing out the dates in the BRA that extended its term for a full year as he thought it was sufficient not to initial the paragraph.

[61] Mr Jhutty testified that he also had a discussion with Mr. Datta that even though he was just putting an offer on the Vipond property, it was standard procedure and just a formality for Mr. Jhutty to sign the BRA before the offer for the Vipond property could be submitted. According to Mr. Jhutty, his understanding was that the BRA only applied to the Vipond property.

[62] Mr. Jhutty testified that the questioned initials are not his. His evidence is that the questioned initials do not look like his other initials and he would never sign his initials like that.

[63] On cross-examination, Mr. Jhutty agreed with the suggestion that he could have signed a BRA in the past, but he could not specifically recall. He said if it is a standard form, then he must have signed one in the past, but he could not recall.

[64] Mr. Jhutty agreed that when he signed the BRA, he knew there were dates on the form about when the agreement commenced and when it ended. He agreed that he knew the BRA described the type of property and geographic location before he signed it. He agreed that the agreement stated that the start date was January 9, 2017, and the end date was December 31, 2017. His evidence was that he objected to those dates and Mr. Datta told him to leave the initial area blank and then the agreement would be for a shorter period. For that reason, he did not cross out the dates. He agreed that he had experience crossing things out on other real estate documents and had done so in the past.

[65] Mr. Jhutty agreed that he was aware of the paragraph that extended the BRA for 90 days, but his understanding was that also only applied to the Vipond property.

[66] Mr. Jhutty agreed that he knew the BRA did not identify the Vipond property on it, but he said the description and location of the property described the Vipond property. He agreed that the description also covered other properties. He testified that it did not occur to him to put the Vipond address in the BRA even though he thought the BRA only covered that specific property.

[67] Mr. Jhutty agreed on cross-examination that he had experience looking on web sites for property and could have contacted the listing agent for the Vipond property himself rather than using Mr. Datta. His evidence was that sometimes agents do not take you seriously if you approach them directly or might not give you information you ask for and that it is easier to go through your own agent.

d. Events after January 9, 2017

[68] Mr. Datta’s evidence is that after the purchase of the Vipond property fell through at the end of January 2017, Mr. Jhutty told him in February 2017, that he had some tax issues and did not have funds to pay a deposit to purchase a property and was not going to purchase another property until his tax issue was resolved.

[69] Mr. Datta testified that Mr. Jhutty also told him that he would have to sell the property on Cardiff to purchase the Vipond property. Mr. Datta therefore prepared a listing agreement for Cardiff. It was not signed, as Mr. Jhutty told him that he wanted to put a hold on that until the tax issues were resolved.

[70] According to Mr. Datta, in 2017, he saw Mr. Jhutty every two weeks at the men’s social club gatherings and would ask him for updates. Each time, Mr. Jhutty told him he would let him know when he was ready to proceed once his tax issues were resolved. Mr. Datta also testified that Mr. Jhutty told him he knew that they had a contract and he would let Mr. Datta know when he was ready to purchase property.

[71] On cross-examination, Mr. Datta testified that after Mr. Jhutty told him of his tax issues, Mr. Datta continued to look for properties. He did not send him any other listings by email or text, but gave them to him directly when he saw him at the men’s social gathering. He testified that he would keep Mr. Jhutty abreast of any new listings on the market. He agreed that Mr. Jhutty did not ask him about any other property after he told him of his tax issues. He agreed that there were no texts or emails to Mr. Jhutty discussing any other property or sending him any new listings.

[72] On cross-examination, Mr. Datta was asked about his daily calendar. A copy of his calendar for January 4-13, January 16, 18, 19, 23, 25-27, 30, February 1, March 14-16, June 7, August 2, 23, November 27, 2017 was filed as evidence. On those dates, there were entries such as “call Deep” and “update Steve”. (Steve is Mr. Jhutty.) He was asked about an entry on March 15 which said, “Met Steve & advised to keep looking for other property but also let him know if deal falls [ ] for Vipond” and an entry on March 16 that said “update Steve [ ] Vipond and advise him of other properties.” Mr. Datta did not agree with the suggestion that he created these entries after the events to create a false impression that he continued to discuss real estate issues with Mr. Jhutty after the Vipond purchase did not close. In essence, it was suggested to him that he falsified this evidence to support his oral evidence that he continued to look for other properties on behalf of Mr. Jhutty after the purchase of the Vipond property fell through.

[73] According to Mr. Jhutty, after his unsuccessful attempt to purchase the Vipond property, he thought his relationship with Mr. Datta was at an end. Mr. Jhutty said he continued to look on realtor.ca for other properties. In March 2017, he saw that the Vipond property was still listed on MLS, so he texted Mr. Datta on March 15, 2017, and asked him if it was still for sale. Mr. Datta responded that same day and told him there was still a conditional offer that had been extended to the end of the month. This seems to be consistent with the entry in Mr. Datta’s calendar that day.

[74] According to Mr. Jhutty, he had no further discussion with Mr. Datta regarding any property other than the Vipond property, including after the purchase did not close at the end of January 2017.

[75] Mr. Jhutty denied that he had any tax issues between September 2016 until the end of January 2017, nor did he recall telling Mr. Datta he had any such issues.

[76] Mr. Jhutty was asked about an email to himself dated March 3, 2017, from Mr. Datta from the email listings@trebnet.com. The subject line is “Properties of Interest”. The email said, “Listed below is a link to properties that may be of interest to you. Click on the link to view the property information. This link will be active for a two-week period.” There was a “view details” link and the next line said, “Reply by sending email to RAY DATTA.” The wording in this email is essentially identical to a portion of the wording in the first December 6, 2016, email. Mr. Jhutty could not recall what information he received from this email and thought that it was a generic email automatically generated and sent from the sender’s email address. His evidence was that he did not discuss this email with Mr. Datta.

[77] Mr. Jhutty agreed that he continued to see Mr. Datta at the men’s social club in 2017, but never discussed any property with him, nor did Mr. Datta give him any information about properties at those social gatherings.

[78] Mr. Jhutty testified that he did not use a real estate agent when the Tranmere property was purchased in 2017. He said that the property was listed to be leased. He contacted the listing agent and the owner agreed to sell it to him. On cross-examination, he was shown a document entitled “Confirmation of Co-operation and Representation”. He agreed that the listing agent insisted on acting as agent for both seller and purchaser and therefore this document was signed for the purchase of the Tranmere property.

[79] The Tranmere property was purchased for $12.5 million but the public records listed the price as $2. Mr. Jhutty denied that he was trying to hide the purchase price. His evidence was that the seller required that a confidentiality agreement be signed regarding the price. He sought permission to disclose the purchase price to Mr. Datta. A copy of the confidentiality agreement was filed as evidence.

[80] I do not accept the plaintiff’s suggestion that Mr. Jhutty was deliberately trying to conceal his purchase of the Tranmere property to avoid paying the commission. The confidentiality agreement he filed was clear that it was the seller who wished to keep details of the transaction confidential.

[81] It is not disputed that Mr. Datta was not involved with the purchase of the Tranmere property.

[82] Mr. Jhutty agreed that after plaintiff’s counsel sent him a letter and a copy of the BRA in March 2018, he posted an online review that said:

Be very careful when you deal with this guy. He will make you sign contracts by not indulging the correct details and in case you do not buy property through him he will put a case against you and sue you. I personally got sued for $250,000 by him and am currently in process of fighting the claim.

[83] Mr. Jhutty’s evidence was that he was upset when he posted this comment and wanted to warn others not to deal with Mr. Datta. He testified that he knew it was not his initials when he first looked at the BRA after he received it from his lawyer. He explained that he did not put in the review, the claim that his initials were forged as he did not know who did it. He also did not want to blame anyone and did not want to make that allegation against Mr. Datta.

[84] In my view, that is a reasonable explanation for the wording of the online comments, and nothing turns on what Mr. Jhutty did or did not say in the review.

REVIEW OF THE EXPERT EVIDENCE

a) Samiah Ibrahim

[85] Ms. Ibrahim has 20 years of experience as a forensic document examiner. She explained that her work, amongst other things, involves identifying handwriting and signatures on a document. She has her own consulting business and since 1999 has worked for the Canada Border Services Agency (“CBSA”) as the manager of the forensic document examination section. She also worked with the Canadian Security Intelligence Service (“CSIS”) as a forensic document examiner.

[86] Ms. Ibrahim has an undergraduate degree in biology and one in political science. She trained to become a forensic document examiner between 1995 and 1997 with CSIS. This was a full-time apprenticeship program. The first year was a study on handwriting examination.

[87] Ms. Ibrahim has attended numerous professional development and training conferences throughout her career and is a member of multiple organizations such as the American Society of Questioned Document Examiners, American Academy of Forensic Sciences and Canadian Society of Forensic Sciences. She has also authored papers and given several presentations in her field. She has been qualified as a forensic document examiner expert by courts across Canada.

[88] There was no contest regarding her qualifications, and she was therefore qualified as forensic document examiner to provide opinion evidence regarding the author of the questioned initial.

[89] Ms. Ibrahim was retained by the plaintiff to examine the BRA and related documents to determine whether the person who signed the questioned initial was the same person who signed and initialled the balance of the BRA. To do so, Ms. Ibrahim reviewed the BRA, Working with a Commercial Realtor forms, and copies of the offer to purchase the Vipond property. All documents were initialled and signed by Mr. Jhutty and Datta on January 9, 2017, and January 30, 2017.

[90] Ms. Ibrahim examined the original documents. She testified that it was important that she reviewed the original documents with original initials and signatures as it enabled her to determine how the initials were created and the sequence of the stroke. This helped to determine if there were any similarities with the questioned initial. She explained that when examining copies of an original, depending on the type and quality of copy used, it may be difficult to examine pen pressure details or where a stroke starts and finishes.

[91] Ms. Ibrahim testified that she followed methods in her analysis from international standards including SWGDOC and best practice guides from Europe and Australia-New Zealand. SWGDOC is the acronym for the Scientific Working Group – Documents (“SWGDOC”). She explained that SWGDOC develops standards and guidelines for the field of forensic document examination. While it is an American standard for handwriting examination, she testified that it is accepted throughout the world. Ms. Petty, who was retained by the defendants, also used the SWGDO methodology in her examination of the questioned and known initials.

[92] Ms. Ibrahim was aware that Mr. Jhutty was the person who initialled and signed all documents she examined. She was aware that there was a dispute concerning only the questioned initials. She examined Mr. Jhutty’s signatures and initials on the documents and compared features such as alignment, connecting strokes, introductory and terminal strokes, line quality, pen lifts, pen pressure, size, proportions, and slope.

[93] Ms. Ibrahim testified about the concept of a writer’s natural range of variation in their writing. She explained that a writer never signs their signature the same way twice. There is a range in how they write. She therefore examined the habits of the writer of the known or specimen initials and compared that with the habits of the writer of the questioned initials. As part of this examination, she also examined Mr. Jhutty’s signature to determine his writing habits.

[94] Ms. Ibrahim used a visual spectral comparator to take an image of the questioned initials and enlarged it by 12 times. She was also able to examine the initials using sidelights to see the sequence of the stroke, including where it commenced and ended. It was her opinion, based on this examination, that the questioned initial was made with one pen movement.

[95] Through a demonstrative aid, Ms. Ibrahim demonstrated the pen stroke movement of the questioned initial. She described the starting movement as a tick meaning when the pen hit the paper, it was already in motion. The stroke then went to the left to form a downward triangle and then to the right to create a loop. She said the initial was written very fast using fine finger movement as opposed to movement with the hand or arm or wrist. She also noted that the initial was very small which was also indicative of the writer using tiny finger movements. She said there was a lot of redirection, meaning a change in direction of movement. The stroke ended with a long, tapered tail. She testified that the writer was a relatively skilled writer to create the fine finger movements used to write the questioned initial in one continuous pen movement.

[96] According to Ms. Ibrahim, her review of the specimen or known initials showed a wide range of variation in the initials that did not look like the questioned initial. She therefore reviewed the writing habits of the writer. In comparing Mr. Jhutty’s known initials at the bottom of page one of the BRA, she noted that there were some features missing in the known initial from the questioned initial but there were also similarities. Those similarities included the stroke movement up and down, the initial stroke movement to the left, the fine finger movements that were used to create a loop, the redirection, and then the long taper ending downward stroke. Another similarity was the small size of the initials.

[97] What was not similar between the questioned and known initials were movements in the centre of the questioned initial. She said that this difference does not mean that two different people wrote the questioned and specimen initials. Her opinion was that this divergence may be attributed to the natural variation of the writer’s handwriting habits.

[98] She was also of the opinion that the known initials were written with low to moderate complexity.

[99] According to Ms. Ibrahim, her review was focused on the stroke movement rather than the shapes created.

[100] Ms. Ibrahim also reviewed Mr. Jhutty’s signature from the BRA and again, using a demonstrative aid, showed the movement of the pen stroke for each letter. For example, she noted that the first letter “S” started with a small tick and then a movement to the left which was similar to the start of the pen stroke for the questioned initial.

[101] Based on her review, it was Ms. Ibrahim’s opinion that the habits of the writer of the signatures had similar habits of the writer of the questioned initial. She noted that while there was a wide range of variation in how the writer created each initial, there were several similarities. Those included were where the stroke started, followed by a small cluster of strokes in the middle, ending with a long, tapered finishing stroke, all written in one continuous pen movement. She noted that there were also similarities in pen pressure variation.

[102] As part of her analysis, Ms. Ibrahim also considered whether another writer forged the questioned initials. To do so, she examined the questioned initials to see if there was evidence of simulation such as tracing or disguise, meaning someone trying to change their handwriting to look like someone else’s writing. Tracing is a subset of simulation and means someone traces over another signature. She found no evidence of either simulation or tracing when she looked at the questioned initials under a microscope. The lines were smooth, there was no hesitation and no pen lifts. In short, there was no indication of unnatural movements and nothing to suggest that someone was trying to recreate the initials. She concluded that it was a genuine initial.

[103] While Ms. Petty concluded that the signature was not genuine, meaning Mr. Jhutty did not sign it, she also agreed that there was no evidence of any simulation or tracing of the questioned initial. I take that to mean that no one was trying to impersonate or forge Mr. Jhutty’s signature, but in her view someone other than Mr. Jhutty signed the initial and held it out to be Mr. Jhutty’s initial.

[104] Ms. Ibrahim also testified about the concept of chance match, meaning a writer with coincidentally similar writing to another writer. Her evidence was that given the limited distribution of the BRA, it was highly unlikely that another writer with coincidentally similar writing could have signed the questioned initial, which she noted was highly stylized.

[105] On cross-examination, Ms. Ibrahim testified that she did not consider if Mr. Datta was a chance match.

[106] Ms. Ibrahim’s opinion was that there was some evidence that the writer of the questioned initial was the same person who wrote the specimen initials on the BRA and the other documents she examined. She testified that as she only had handwriting samples from a limited period, she might not have the full range of the writer’s variation of writing. It was her opinion that it would be preferable to have writing from an extended period to gain a much better appreciation for the natural variation of the writer. She described this as a limitation with her opinion meaning that she could only conclude that there was “some evidence” that Mr. Jhutty signed the questioned initials.

b) Brenda Petty

[107] Ms. Petty was retained by the defendant to provide an opinion as to whether Mr. Jhutty signed the questioned initial. Her qualifications were challenged by the plaintiff. This was done by way of a blended voir dire. The parties agreed that I would hear Ms. Petty’s full evidence in chief and cross-examination on issues of qualifications and the substance of her opinion before making a finding on her qualifications. I will therefore review her evidence in its totality.

[108] Ms. Petty resides in Oklahoma. She does not have a post secondary degree. She and Ms. Ibrahim both testified that there is no degree conferred for forensic document examiners. She attended the International School of Forensic Document Examination in Texas between 2006 and 2008 to train to examine documents for authenticity and examine signatures and handwriting. Ms. Petty testified that her instructors were court qualified document examiners that were also in practice. Following her schooling, she then apprenticed for Mr. Curt Baggett, who Ms. Petty said is a leader in the field of document examination. While apprenticing, she also worked full time in the child support enforcement division with the State of Oklahoma as an administrative assistant.

[109] Ms. Petty also attended at the American Institute of Applied Sciences in 2007, where she earned a certificate after attending 10 to 15 hours of classes for approximately four to six months.

[110] Ms. Petty has been a member of the International Association of Document Examiners since 2016. She testified that she had to pass a test to become a member and there are yearly training requirements, such as classes, attending a seminar or writing an article to maintain your membership.

[111] According to Ms. Petty, as there is no regulatory board that a forensic document examiner must belong to, it is important to continuously train. She said most document examiners are privately trained in the United States.

[112] Ms. Petty has reviewed over 2000 signatures and samples of handwriting and tendered an opinion on more than 700 cases in the United States and internationally. She has been court qualified in 18 cases in the United States and twice in Canada – in 2018 and 2019. On cross-examination, she agreed that the proceedings in Canada were in Small Claims Court where she filed an affidavit so there was no qualification hearing. There were three occasions where she was not qualified near the beginning of her career.

[113] Ms. Petty has also studied graphology, which she says is a brand of handwriting examination that can assess a person’s personality and characteristics, and even the gender of an unborn baby, through their handwriting. She testified that she did not use that training in formulating her opinion in this matter.

[114] She explained that most handwriting examinations are performed by reviewing a signature in question and comparing it to known signatures, looking for differences and similarities based on pen strokes and skill level. She testified that she applied the SWGDOC standard in her examination, as did Ms. Ibrahim.

[115] In addition to being given the BRA and other documents signed by Mr. Jhutty as part of the offer to purchase the Vipond property, Ms. Petty was provided with several additional documents with Mr. Jhutty’s initials and signatures that were not provided to Ms. Ibrahim. She examined approximately 60 of Mr. Jhutty’s initials from these documents, which she said was a large sample size. She did not examine any original initials or signatures.

[116] Ms. Petty explained that there are two basic principles in document examination. One principle is that no two people write the same and no person writes the same each time they write. As a result, an examiner must look for the particulars in a person’s handwriting skills and traits to guide the examination.

[117] Ms. Petty testified that another principle is that a person cannot write above their skill level. Much of her evidence focused on this principle.

[118] She explained the process she followed for the examination. When she received the documents, she scanned them as a PDF document so that she could enlarge them to then take a snapshot and copy and paste the snapshot into a word document to start the examination process. She said that even though some of the initials were not as clear as others, she was able to enlarge the image to see the direction of the strokes and where the pen strokes began and ended. She was satisfied that the images she enlarged were clear and not distorted by this process.

[119] Based on her review, it was her opinion that Mr. Jhutty had a quick way of signing his initials, which was also Ms. Ibrahim’s opinion. She noted that the known initials were extremely small, which was also an observation made by Ms. Ibrahim.

[120] Her opinion was that the questioned initial had intricacy and complexity in movement and direction and that small finger movements were used to execute the initials. It was her opinion that based on the stroke movements, speed of writing and the size of the initial, the writer of the questioned initial had a high skill level in writing. This differed from the known initials which she said were very simply executed with no complexity or intricacies.

[121] Based on her review of Mr. Jhutty’s handwriting of the known initials, her evidence was that Mr. Jhutty does not have the skill level to write such a small initial so quickly with so many changes in direction as observed in the questioned initials. She said that the questioned initials demonstrated a higher skill level in writing than the known initials. She also testified that there was no complexity in how Mr. Jhutty wrote the letters in his signature. For example, there was no connecting strokes between each letter and the letters looked as if they were printed rather than written. Based on the principle that a person cannot write above their skill level, she concluded that the writer of the known initials could not be the writer of the questioned initial, as it was above their skill level.

[122] Ms. Petty testified about the difference between natural variation and differences in fundamental structure. A review of handwriting from a wide enough sample might reveal differences in writing. For example, a writer might start at the top to draw a letter and the next time may draw from the bottom. If enough samples are examined, it might be determined that that is a writer’s natural variation. If, however, a person always starts at the bottom and never at the top and then there is a signature that starts at the top, that would be a fundamental difference in writing.

[123] Ms. Petty testified that she observed a natural variation in the initials she examined, as each initial ended with a long tail. While there were differences, that was a natural variation in Mr. Jhutty’s handwriting.

[124] She said there was a difference in fundamental structure between the questioned and known initials. In the questioned initial, the writer drew an oval that looked like an “8” formation that she did not observe in any other initial. She said in the know initials, the shape looked more like a “9”.

[125] Her opinion was that the complexity and change of direction in the questioned initial was not part of the natural variation in Mr. Jhutty’s handwriting. She found that the figure “8” shape in the middle of the questioned initial was a fundamental structural difference.

[126] She did not agree with Ms. Ibrahim’s opinion that the divergence between the questioned initial and the specimen initials may be attributed to natural variation. In her opinion, based on the difference in skill level and the differences in fundamental structure, she eliminated Mr. Jhutty as the person who signed the questioned initial.

ANALYSIS

a. Credibility and Reliability Assessment

[127] Before making any findings of fact, it is important to be mindful that the onus is on the plaintiff to prove, on a balance of probabilities, that the questioned initial is Mr. Jhutty’s initial.

[128] The core of the dispute is whether Mr. Datta is a credible and reliable witness when he testified that he saw Mr. Jhutty sign and initial the BRA, or whether Mr. Jhutty is credible and reliable when he says the questioned initial is not his. There were no other witnesses called to corroborate what occurred on January 9, 2017.

[129] Credibility and reliability of a witness cannot be assessed in a vacuum. It is important to consider the totality of the evidence. In that regard, the parties have also given conflicting evidence about the nature of their relationship both prior to and after the BRA was signed. They both assert that their evidence about that relationship supports their evidence about what transpired on January 9, 2017. They also both argue that the documentary evidence filed is consistent with their respective oral evidence about the nature of their relationship. Accordingly, in determining whose evidence I accept about what transpired when the BRA was signed, it is necessary to consider the totality of their evidence about the events that transpired leading up to and following January 9, 2017, together with the documentary evidence.

[130] Before embarking on an analysis of that evidence, it is important to be mindful of some general principles about credibility assessments.

[131] In R. v. Hall, 2021 ONSC 28, Goodman J. reviewed some of those general principles at paras. 23-36. While this is a civil dispute, the principles from criminal decisions are applicable.

[132] When assessing credibility, I can consider how reliably or accurately the witness recalls events and the way the witness presents their evidence. This includes whether they do so in a truthful and complete manner and whether they are being frank, biased, or careless with the truth: Hall, at para. 29.

[133] Credibility is often challenged using inconsistencies from either prior statements or evidence given by the witness, or from other evidence presented at trial. Inconsistencies can be expected, particularly as it relates to relatively minor issues or detail. If, however, the inconsistency respects a material matter that is central to the elements of the alleged offence, the court must assess whether that inconsistency demonstrates a carelessness with the truth that undermines the whole of the witness’s evidence: Hall, at paras. 30-31.

[134] Inconsistences may arise not just from a witness’s evidence at trial, but from what witnesses may have said differently in other instances. Some inconsistences are minor or deal with more peripheral issues. Some are material. Material inconsistencies, about which an honest witness is unlikely to be mistaken, may demonstrate a carelessness with the truth that should concern the trier of fact.

[135] In assessing a witness’s credibility and reliability, while I can consider the way a witness testifies, I cannot overly rely on demeanour: R. v. D.P., 2017 ONCA 263, at para. 26, leave to appeal refused, [2017] S.C.C.A. No. 261.

[136] Further, it is open to a trier of fact to believe all, none, or some of a witness’s evidence: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65. The trier of fact may also accord different weight to different parts of the evidence that has been accepted: R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 44; R. v. M.M., 2018 ONSC 1022, at para. 143.

[137] Reliability is separate from credibility. Credibility focuses on a witness’s veracity. Reliability has more to do with accuracy – the ability to observe, recall and recount events that are in issue: R. v. C.(H.), 2009 ONCA 56, 244 O.A.C. 288, at para. 41. A witness may be credible but give unreliable evidence. A witness whose evidence is not credible on a certain issue cannot be reliable on that same issue.

[138] Common sense and experience can also be drawn upon when assessing the credibility and reliability of a witness.

[139] While demeanour may be a factor to consider when assessing the reliability and credibility of witnesses, in this case, both Mr. Datta and Mr. Jhutty gave their evidence in a straightforward manner. Neither appeared to be defensive or argumentative. Both appeared to do their best to answer all questions put to them to the best of their ability. There was nothing about their demeanour that would lead me to find that one was less credible or reliable than the other.

[140] The following facts are not in dispute:

i. The parties met at a men’s social gathering in 2011-2012;

ii. They had some discussions at some point in 2016, about Mr. Jhutty possibly looking to purchase real estate;

iii. On September 22, 2016, Mr. Datta texted Mr. Jhutty saying he would be glad to help with any of his real estate needs;

iv. On December 6, 2016, Mr Jhutty texted Mr. Datta with an MLS number for the Vipond property and asked for information about the listing. Mr. Datta emailed him information that day about Vipond;

v. On December 21, 2016, they viewed the Vipond property;

vi. They met on January 9, 2017, and Mr. Jhutty signed the BRA, Working with a Commercial Realtor forms, and the offer to purchase the Vipond property;

vii There were ongoing negotiations for the Vipond property that ended at the end of January 2017, when the last offer was rejected;

viii They did not attend at or view any other property both prior to and after the purchase of the Vipond property fell through;

ix. 245 purchased the Tranmere property for $12.5 million in 2016, and did not use Mr. Datta’s services for that purchase; and

xii. Mr. Jhutty used the website realtor.ca himself to look at properties.

[141] Their evidence diverges in four areas. The first has to do with whether Mr. Jhutty hired Mr. Datta only to make an offer to purchase the Vipond property or whether it was more generally to assist him to locate industrial property in Mississauga from which he could operate his trucking business.

[142] The second area in which their evidence diverges is what was discussed on January 9, 2017, regarding the term or length of the BRA and whether it only applied to the Vipond property.

[143] The third area of divergence is whether Mr. Jhutty signed the questioned initial.

[144] Lastly, there is divergence in their evidence about the nature of their relationship after the offer to purchase the Vipond property collapsed and whether Mr. Datta continued to look for other properties for Mr. Jhutty.

[145] Neither witness was impeached by way of prior inconsistent statements given at examinations for discovery that would challenge their overall reliability or credibility. As there were no other witnesses called regarding the events that transpired between them, any external consistency with their evidence must be assessed based on the documentary evidence filed during the trial.

[146] I will deal firstly with the nature of Mr. Datta’s and Mr. Jhutty’s relationship prior to January 9, 2017.

[147] There is no dispute that Mr. Jhutty was familiar with and used the website realtor.ca to look for real estate for several years prior to 2016. He located properties in the past that he purchased through that website and he sent Mr. Datta the MLS information for the Vipond property which he found using that website. Thus, while he agreed that he used real estate agents in the past to purchase real estate, there is also evidence that he located the properties himself, which supports his evidence that he did not hire Mr. Datta to locate property, but only to collect the information on the Vipond property and then represent him in the negotiations to purchase that specific property. Furthermore, the parties agree that they only looked at the Vipond property which also supports Mr. Jhutty’s evidence of the limited basis for which he hired Mr. Datta and why he would not have signed a BRA for a one-year term.

[148] Mr. Jhutty says that the wording of Mr. Datta’s initial text to him in September 2016, also supports his position that their first discussion about any real estate issues was around the time of that email and not earlier as Mr. Datta testified. In that initial text, Mr. Datta said “Please call me for any of your real estate needs. I will be glad to help.” Mr. Jhutty argues that the only reasonable inference from that text is that Mr. Datta was offering his services for the first time in September 2016, in response to a recent discussion with Mr. Jhutty.

[149] I do not agree. In my view, the wording of that text is not conclusive one way or another about when Mr. Datta and Mr. Jhutty may have first discussed any real estate issues. That text could have been sent in response to a more recent discussion with Mr. Jhutty about 245 looking for larger property in Mississauga. It certainly does not exclude an inference that they had discussions at an earlier time, as Mr. Datta testified.

[150] Mr. Jhutty testified about very specific discussions he had with Mr. Datta when they would see each other at the men’s social gatherings. This included discussions about land in Windsor, where 245 did own property and, at some point, the Tranmere property, which Mr. Jhutty did eventually purchase. Mr. Jhutty also testified that they discussed the fact that he needed property with more land given the nature of his trucking business. The specificity with which Mr. Datta recalls these discussions in my view supports his evidence of earlier discussions with Mr. Datta about his real estate needs. He did not just testify that they had discussions in general, but he was able to provide specifics and details of those conversations.

[151] Mr. Datta agreed on cross-examination that when he texted Mr. Jhutty in September 2016, he did so as he wanted Mr. Jhutty’s business. That makes sense. Mr. Datta would know that he could earn a substantial commission if Mr. Jhutty hired him to look for industrial land for his trucking business.

[152] Mr. Datta says that in the first email, he attached 10 listings in total, including the Vipond property, and relies on the print-out of listings from that day as evidence that all these listings were sent to Mr. Jhutty and were attached to the first email. Mr. Jhutty says the two emails sent to him on December 6, 2016, were only for the Vipond property and were in response to his text earlier that day with the MLS number. He did not testify that Mr. Datta did not send him any other listings but only that he did not recall if he did.

[153] In my view, the wording of the initial December 6, 2017, email itself supports both parties. For example, in the first sentence of the email, Mr. Datta says, “please find info you requested…”. This seems to be a specific response to Mr. Jhutty’s text earlier that day asking for information about a specific MLS listing number. Other parts of that initial email supports Mr. Datta’s evidence that he sent more than one listing to Mr. Jhutty. Firstly, the first email on December 6, 2016, was from the same email address and had similar wording as the March 2017, email which also sent Mr. Jhutty information regarding other listings. In addition, the subject line of the first email of December 6, 2016, says “properties” of interest suggesting information for more than one property was attached whereas the subject line of the second email of December 6, 2016, refers specifically to only the Vipond property.

[154] Mr. Datta also presented evidence of the other listings that were attached to that email. Each listing had a print day of the same date of the email, although they were printed later in the day. I accept Mr. Datta’s evidence that these were the listings attached to the initial email on December 6, 2016.

[155] Mr. Jhutty argues that it makes no sense that on December 6, 2016, Mr. Datta would send him an email with the listings for other properties when Mr. Jhutty only asked about the listing for the Vipond property. I do not agree. In my view, it does make sense that Mr. Datta would send him other listings, in addition to the Vipond property. At this point, Mr. Jhutty had not signed a BRA. Mr. Datta testified that he wanted Mr. Jhutty’s business. Seeing a business opportunity when Mr. Jhutty asked him about one property, it is logical and reasonable that Mr. Datta would want to impress Mr. Jhutty so that Mr. Jhutty would hire him to locate property for his trucking business. As a real estate broker, social gatherings of businesspeople would be an opportunity for Mr. Datta to network and develop clients and business. Based on his own evidence, Mr. Jhutty moved his trucking operations a few times prior to 2017. He did not dispute Mr. Datta’s evidence that he told Mr. Datta his business was growing, and he was looking for property two to three times bigger than its current location on Cardiff. Mr. Jhutty would be a potential client that Mr. Datta certainly would want to impress, given the likely commission he could earn should Mr. Jhutty successfully purchase property through Mr. Datta’s efforts. Thus, when Mr. Datta emailed Mr. Jhutty on December 6, 2016, he would have seen this as an opening to convince Mr. Jhutty to hire him as his agent for his next purchase.

[156] Mr. Jhutty also argues that Mr. Datta fabricated evidence by attaching the ten listings that Mr. Datta says were included in the December 6, 2021, email. Those listings have a print date of December 6, 2021, the same day as the email, which leads me to conclude that they were printed that day and not after-the-fact evidence. Furthermore, other than a bald assertion, there is no evidence that Mr. Datta fabricated the evidence.

[157] While Mr. Jhutty may not recall receiving information regarding any other property, based on the totality of the evidence, I am satisfied that Mr. Datta emailed property information for other listings to Mr. Jhutty on December 6, 2016. It may be that Mr. Jhutty simply did not pay attention to those other listings and therefore did not recall them, as his focus was on the Vipond property.

[158] Mr. Jhutty texted Mr. Datta on January 4, 2017, asking about another property. Although no further steps were taken regarding that property, this supports Mr. Datta’s evidence that his work with Mr. Jhutty was not just limited to the Vipond property.

[159] Mr. Jhutty testified that after the unsuccessful offer to purchase the Vipond property, he thought his relationship with Mr. Datta was over as he only hired him to assist in the negotiations for that property. There are no emails or texts exchanged between the parties after the end of January 2017, other than an email from Mr. Jhutty In March 2017, following up to see if the Vipond property had sold. In my view, this minimal communication is consistent with Mr. Jhutty’s evidence that he thought their relationship was at an end when the Vipond property purchase fell through. If Mr. Datta was hired as 245’s exclusive agent for a full year, it is reasonable to expect there to be ongoing communication between the parties about those efforts to look for another property.

[160] Mr. Datta’s explanation about the lack of ongoing efforts to locate another property was that Mr. Jhutty told him he would not be looking for property as he had some tax issues and he would let Mr. Datta know when he was ready to start looking again. Mr. Jhutty denies telling him this. Mr. Datta also testified about his ongoing discussions with Mr. Jhutty when he met him at the men’s gatherings in 2017, and that he brought property listings to show Mr. Jhutty at these gatherings. Mr. Datta’s evidence would explain the limited communication with Mr. Jhutty in 2017.

[161] There is no dispute that Mr. Jhutty received another email in March 2017, from Mr. Datta from the email address listings@trebnet.com. While Mr. Jhutty does not recall reviewing any other property listings sent to him by Mr. Datta, the subject and content of that email suggests that even after the Vipond property transaction fell through, Mr. Datta sent Mr. Jhutty property information on this date. This is consistent with Mr. Datta’s evidence that his work for Mr. Jhutty went beyond negotiating a purchase of the Vipond property.

[162] There were also handwritten notations in Mr. Datta’s daily calendar which are consistent with his evidence that in March 2017, he was still looking for other properties for Mr. Jhutty. There are entries on March 15 and 16, 2017, that refer to updating “Steve”, (Mr. Jhutty) about the Vipond property and that he told Mr. Datta to keep looking for other properties.

[163] Mr. Datta did not agree with the suggestion that his calendar entries in March 2017, were fabricated. Those entries correspond with the date that Mr. Jhutty followed up with Mr. Datta regarding the status of the sale of the Vipond property. Those entries not only mention giving Mr. Jhutty an update on the Vipond property, but also confirm that he was asked to keep looking for other properties. There is no foundation that these entries were fabricated. Had Mr. Datta been fabricating evidence by creating more entries in his calendar, why did he just fabricate those two small entries and not include more entries to corroborate his evidence? If he was fabricating evidence, as Mr. Jhutty suggests, it seems he could have done a much better job and fabricated several other entries to support his oral evidence.

[164] There are only a handful of emails and texts exchanged between the parties. They both agree that they continued to see each other at the men’s social gathering that occurred every two weeks after the failed attempt to purchase the Vipond property. Mr. Datta’s evidence is that after the Vipond purchase fell through, he brought Mr. Jhutty some more listings at these meetings and would ask him if he was ready to look for another property. Again, as a real estate agent who could earn a sizeable commission on the purchase of industrial property, it is reasonable that Mr. Datta would want to nurture his relationship with Mr. Jhutty and demonstrate that he was still looking out for properties that Mr. Jhutty might be interested in. While I am somewhat concerned that none of these listings were produced as evidence at trial, that does not cause me to reject Mr. Datta’s evidence. Furthermore, Mr. Datta’s calendar entries for March 2017, which I do not accept were fabricated, offer some corroboration of his evidence that he was continuing to look for properties for Mr. Jhutty in 2017. The email sent to Mr. Jhutty on March 3, 2017, with other listings attached is also consistent with Mr. Datta’s evidence that he did continue to send listings to Mr. Jhutty.

[165] Mr. Jhutty says two things about the BRA. First, he says that he told Mr. Datta he did not agree with a one-year term and that Mr. Datta told him by not initialing the paragraph, the shorter six-month term would apply. Mr. Jhutty also says that they discussed that the BRA only applied to the Vipond property.

[166] I reject Mr. Jhutty’s evidence that when he signed the BRA, his understanding was that it only applied to the Vipond property. Firstly, the agreement is not that specific. It very clearly says that the agreement covers industrial land located in Mississauga. It does not name the Vipond property at all. Mr. Jhutty is an experienced and successful businessperson. He would appreciate the importance of signing contracts. He agreed that he was aware of, and had in the past, crossed out portions of documents that he did not agree with – such as the various offers made for the Vipond property. Thus, if the BRA was only for the Vipond property, Mr. Jhutty could have written that onto the agreement. He did not.

[167] It is clear on the face of the BRA that it did not just apply to the Vipond property. Mr. Jhutty’s explanation that he thought the general description of industrial land in Mississauga was for the Vipond property rings hollow. That is a general description of land that applies to many properties in Mississauga. If Mr. Jhutty intended that the BRA was to only apply to the Vipond property, as an experienced businessperson, he would know that the agreement ought to have been worded to only identify the Vipond property. In addition to his experience as a businessperson, he has also purchased several other properties and would therefore understand the importance that any contract he sign clearly reflect his understanding of the agreement.

[168] Based on the totality of the evidence, I accept Mr. Datta’s evidence that his work for Mr. Jhutty was not limited to negotiating the purchase of the Vipond property. I am satisfied that as a real estate agent, Mr. Datta not only assisted in the negotiations for the Vipond property but continued to look for property that might suit Mr. Jhutty’s trucking business needs. I reject Mr. Jhutty’s assertions that Mr. Datta fabricated evidence and for that reason, he should not be considered a credible witness. The documentary evidence that I accept is consistent with Mr. Datta’s evidence that he looked for and continued to look for other property for Mr. Jhutty both prior to and after the unsuccessful offer to purchase the Vipond property. While they did not view any other property together, other than the Vipond property, that is not conclusive evidence that Mr. Datta was only hired to negotiate the purchase of the Vipond property.

[169] Having made these findings, the last issue to resolve is whether to accept Mr. Datta’s or Mr. Jhutty’s evidence regarding whether Mr. Jhutty initialled the paragraph to extend the term of the BRA to one year. I am mindful that I can accept some, none, or all a witness’s evidence. Thus, although I rejected Mr. Jhutty’s evidence about the nature of his relationship with Mr. Datta, I can still accept his evidence that he did not sign the questioned initial.

[170] Mr. Jhutty says that it is not commercially reasonable that he would hire Re/Max to be his exclusive agent for a full year when you consider the nature of his relationship with Mr. Datta and his history of using realtor.ca to look for properties himself.

[171] In my view, Mr. Jhutty’s evidence that he did not initial the BRA as he did not agree with a term for more than six months, rather than cross out the dates, is reasonable. It was not necessary for Mr. Jhutty to make any changes to the BRA to limit its term to six months. By not signing his initial beside the paragraph, the BRA clearly states that it was for a six-month term. Extending it to a full year required him to initial the paragraph.

[172] Mr. Jhutty agreed on cross-examination that based on his prior purchases of real estate, he was familiar with BRA forms. He also testified that he could not recall if he ever signed one in the past. He seemed to waiver in his evidence with respect to the degree of his familiarity with this form based on his previous experience purchasing real estate and hiring agents.

[173] Mr. Datta testified that most BRAs for commercial real estate are for a one-year period. The evidence he filed of his past practice was limited to one BRA signed by another client that was for a term of 14 months. In my view, the inference from that is that Mr. Datta had limited experience acting for purchasers of commercial property. However, that is some evidence to support his assertion that based on his experience, in commercial matters, BRAs were signed for a term of more than six months.

[174] Mr. Jhutty urges me to find that Mr. Datta fabricated evidence to support his position that Mr. Datta is not a credible witness and that therefore he should not be believed that he saw Mr. Jhutty sign the questioned initial. Having rejected the assertion that Mr. Datta fabricated evidence, the question remains whether I accept Mr. Jhutty’s evidence that he did not sign the questioned initial or Mr. Datta’s evidence that he did.

[175] I have rejected Mr. Jhutty’s evidence that when he signed the BRA, he believed it only applied to the Vipond property. In my view, there is, however, evidence consistent with his oral evidence, that he would not have given Mr. Datta the exclusive right to search for property for him for a full year and therefore would not have signed the questioned initial. In that regard, I have considered his uncontested evidence that he was familiar with looking for properties on his own through realtor.ca. Furthermore, while Mr. Datta sent Mr. Jhutty information about other properties, the uncontested evidence is that he and Mr. Datta only viewed the Vipond property together. In that context, Mr. Jhutty’s evidence that it is not commercially reasonable that he would have agreed to a one-year term for the BRA is cogent.

[176] I am mindful that the onus is on the plaintiff to prove, on a balance of probabilities, that Mr. Jhutty signed the questioned initial. When I consider the totality of the evidence, I am not satisfied that Mr. Datta’s evidence on its own discharges that burden. I reject the suggestion that Mr. Datta fabricated evidence and that he must therefore not be believed when he says he saw Mr. Jhutty sign the questioned initial. I accept that that the entries he made in his calendar in March 2017, were made at the time and not created after-the-fact to bolster his oral evidence. Those entries support his evidence that he continued to look for properties for Mr. Jhutty which in turn would support his evidence that Mr. Jhutty signed the questioned initial as he continued to work for Mr. Jhutty after the Vipond purchase fell though. Equally compelling, however, is Mr. Jhutty’s evidence that he historically looked for properties on his own and never looked at any other property with Mr. Datta which supports his evidence that he would not and did not sign the questioned initial.

[177] When I consider the totality of the evidence, I am unable to conclude that Mr. Datta’s evidence, on its own, discharges his burden of proof. I must therefore consider the evidence of the remaining two witnesses.

b. Expert Evidence

i. Ms. Petty

[178] The plaintiff argues that Ms. Petty should not be qualified as an expert to provide opinion evidence with respect to whether Mr. Jhutty signed the questioned initial. If she is qualified, the plaintiff urges me to either reject Ms. Petty’s evidence or place little weight on it for several reasons, including her alleged bias and impartiality.

[179] When considering expert evidence, the three leading cases to consider are R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182 and R. v. Mohan, 1994 CanLII 80 (SCC), 1994 SCC 80, [1994] 2 S.C.R. 9.

[180] Mohan established the four criteria that the court must consider in determining whether to admit expert evidence. Those criteria are as follows:

(a) Relevance;

(b) Necessity in assessing the trier of fact;

(c) The absence of any exclusionary rule, separate and apart from the opinion rule itself; and

(d) a properly qualified expert.

[181] In both Abbey and White, the court concluded that there are two steps in dealing with the admissibility inquiry. In the first step, the Mohan criteria are considered. The second step is a discretionary gate-keeping function that requires a judge to balance the potential risks and benefits of admitting the evidence. Essentially, the court must determine whether its probative value is overborne by its prejudicial effect.

[182] This gatekeeping function was more recently considered by the Court of Appeal in Bruff-Murphy v. Gunawardena, 2017 ONCA 502, 138 O.R. (3d) 584. In reviewing White Burgess, the court noted that the lack of independence of impartiality of an expert goes to the admissibly of the evidence, and not just to weight. Bias should be considered at the initial threshold inquiry stage. It should also, however, be considered when the court exercises its gatekeeping exclusionary discretion; paras 38-39.

[183] The first stage of admissibility threshold is rather low. In White Burgess, the court commented that it would be quite rare for a proposed expert’s evidence to be ruled inadmissible as this state provided the expert is able and willing to carry out their primary duty to the court; para. 49.

[184] I will make a few comments about necessity. I have reviewed the many documents filed that have Mr. Jhutty’s initials and signatures. When I look at the initials, I see similarities, as described primarily by Ms. Ibrahim. It also appears to me that each initial looks somewhat different, which is explained by both Ms. Ibrahim and Ms. Petty as the writer’s natural variation. The questioned initial appears to have some additional pen strokes in the middle of the initial which do not appear to the same extent in the known initials. Thus, expert evidence is necessary to assist this court as I am unable to determine, without expert opinion, whether the person who signed the questioned initial is the same person who signed the balance of the initials.

[185] I will now consider these criteria with respect to Ms. Petty’s evidence.

[186] The onus is on the party seeking to introduce the expert to establish that the criteria of Mohan are met for the evidence to be admissible. In this matter, there is no dispute that the first three Mohan criteria are met with respect to both Ms. Petty and Ms. Ibrahim. The plaintiff argues that the fourth criteria is not met with respect to Ms. Petty on the basis she is not a properly qualified expert.

[187] The focus of the challenge of Ms. Petty’s qualifications was the nature of her training. Ms. Ibrahim testified about Ms. Petty’s training. Her evidence was that in Canada, and in most of the world, the training for forensic document examiners is two to three years of full-time training with a minimum of one year of full-time handwriting examination. Her evidence was that there was no Canadian standard for training but that the SWGDOC standards, from the United States, are industry-wide standards. The SWGDOC Standard for Minimum Training Requirements for Forensic Document Examiners, recommends the “minimum requirements and procedures that should be used for the fundamental training of forensic documents examiners”. According to standard 5.2.1, one of the requirements for a trainee candidate is that they have an earned baccalaureate degree or equivalent from an accredited college or university. According to standard 6.1, the training program that a candidate is to then attend shall be the equivalent of a minimum of 24 months full-time training under the supervision of a principal trainer.

[188] Ms. Petty testified that she applied the SWGDOC standards for conducting her handwriting analysis. During cross-examination, Ms. Petty was asked about the SWGDOC Standards for Minimum Training Requirements for Forensic Document Examiners. She distanced herself from that standard and testified that not all forensic document examiners accept all SWGDOC standards and that there is a debate about those standards.

[189] In my view, Ms. Petty may have distanced herself from the SWGDOC standards out of concern that she does not meet the minimum training requirements. While she attended the International School of Forensic Document Examiners, she agreed on cross-examination that it is not an accredited university. When asked if it was a full-time program, she said that she attended classes one to two days per week for one to two hours, for a total of four hours per week plus additional reading to do each week. It is not clear to be that this was full-time study. She testified that she also worked as an apprentice for Mr. Curt Baggett for an extended period. Mr. Baggett’s father was the president of the school she attended.

[190] Ms. Petty agreed she did not have a degree from an accredited college or university. She testified there is no regulatory board that requires a degree and that there are other ways to train and learn as there are no colleges that award degrees in document examination.

[191] Ms. Petty’s evidence that she has reviewed over 2000 signatures and samples of handwriting, has tended an opinion on more than 700 cases, and has been qualified as an expert in 18 cases in the United States, was not challenged.

[192] One of the difficulties in assessing qualification is that there is no professional body that certifies or regulates handwriting experts. There is no university that confers a degree in handwriting analysis. Both Ms. Petty and Ms. Ibrahim attended classes followed by a period of apprenticeship. Some are trained in the public field, as was Ms. Ibrahim, who was trained and received a certificate in Forensic Document Examination while at CSIS. Ms. Petty, on the other hand, attended a school and was trained privately, which she testified is the norm in the United States.

[193] While I have some concerns regarding Ms. Petty’s education, I accept that Ms. Petty has attended training, is a member of a number of relevant associations and has several years of experience working in the field. Expertise can be earned through training, knowledge, and experience. At the threshold stage, therefore, I am prepared to qualify Ms. Petty as an expert.

[194] I have concerns, however, about other aspects of her evidence which lead me to conclude that little weight should be placed on her opinion. One of the first concerns is that a significant portion of Ms. Petty’s written opinion, which must be served in advance of trial, was taken from other authors and sources without any footnote or attribution of any kind, making it appear that the wording was her own.

[195] Ms. Petty was cross-examined about the contents of her written report. Large sections of the seven narrative pages of her report were not attributed to authors and sources that she relied upon to write her report.

[196] In her report, Ms. Petty referred to an excerpt from a textbook that she said was written by leading experts on document examination. She quoted from the book and appropriately attributed the comments to the authors. She then agreed during cross-examination that everything else in her report was her work, her writing, in her words and manner of expression.

[197] On further questioning, that appeared to not be accurate. Ms. Petty then testified that there were other parts of her report that she took from some other writing, but she was not sure if she used the same words or rephrased that writing. She said if she did not take something directly from a book, she did not attribute it to anyone. She could not recall if she took anything from a paper or a blog post. She then said that, with permission, she used sentences from Mr. Baggett. She said that she did not think she had to attribute any of his work to him as she had his permission to use his writings.

[198] For example, Ms. Petty testified that she had permission from Mr. Baggett to use the following passage, found on page one of her report that she did not attribute to him:

An examination of handwriting includes establishing patterns of writing habits to help identify the author. Handwriting is formed by repeated habits of writing by the author, which are created by neural pathways established in the brain. These neural pathways control muscular and nerve movement for writing, whether the writing done is by hand, foot, or mouth.

[199] She testified about another lengthy paragraph at page two of her report that she said she found online. That paragraph dealt with a study “undertaken to objectively validate the hypothesis that handwriting is individual” and speaks about this study “as a step towards providing scientific support for admitting handwriting evidence in court”.

[200] She then testified that portions of her report dealing with the definition of natural variation in handwriting were put together from things she read online but she thought the last few sentences were her own.

[201] At page 13 of the report, she said that a full paragraph supporting her conclusion that the questioned initial was not genuine and not written by Mr. Jhutty was taken from her training material.

[202] Ms. Petty appeared surprised when questioned about her failure to attribute portions of her report that came from other sources and writers. My concern is Ms. Petty’s failure to appreciate the importance, as a proffered expert who is to provide opinion evidence to assist the court, that her report ought to be her own and that if she is using writings from another source, she should properly identify those sources. It is irrelevant if she was given permission to use excerpts from someone else. By failing to do so, she is holding out work to be her own when it is not.

[203] While these paragraphs may not be central to her final opinion, and even though she testified on re-examination that she agreed with everything she quoted from other authors, the concern is utilizing works, phrases and a manner of expression that are not her own without full disclosure: Anderson v. Pieters, 2016 BCSC 869, at para. 59.

[204] I am also concerned that including portions of her report from other sources may suggest a greater level of expertise than Ms. Petty possesses. For example, the paragraph at page one of her report that comes from Mr. Baggett discusses how handwriting is formed by repeated habits created by neural pathways in the brain. The lengthy paragraph at page two that Ms. Petty said is from an online source discusses a handwriting study.

[205] My expectation is that when a witness is proffered to be an expert to provide the court with opinion evidence to assist when matters are outside the experience and knowledge of the trier of fact, they are presented by an expert who is expressing their own views and opinions. When an expert relies on other sources, as they often do, I expect that the expert appreciates the importance of disclosing and identifying those outside sources.

[206] While this may not be a basis to disqualify Ms. Petty as a witness, it is a factor I have considered in determining how much weight, if any, to place on her opinion as it suggests a failure to fully appreciate her role as an expert.

[207] There were also several times that Ms. Petty became argumentative and defensive when being cross-examined. In my view, she also crossed the line from being an expert witness whose role is to provide independent evidence to assist the court to more of an advocate for Mr. Jhutty. While I found this to be troubling, her impartiality did not rise to the level nor is it as pervasive as in Bruff-Murphy to lead me to reject her as an expert through my gatekeeping role.

[208] This impartiality arose on a discrete issue. It occurred during cross-examination when Ms. Petty was asked questions about Mr. Jhutty’s signature and specifically whether an examination of his signature (as opposed to his initials) would assist in the formulation of her opinion. When answering those questions, she testified that she was not asked to analyze or provide any opinion regarding any of Mr. Jhutty’s signatures – only his initials. She also testified that the process is to compare initials with initials and signatures with signatures, as initials are different from signatures. She said she reviewed the signatures, but she was not asked to provide an opinion on the signatures.

[209] During cross-examination, when pressed about whether she should have considered the signatures in the documents to assist in determining if the questioned initial was written by Mr. Jhutty, she included in her response that in her opinion, the writing that had the most complexity was found in Mr. Datta’s signature and not Mr. Jhutty’s. She then repeated that opinion when being asked questions about Mr. Jhutty’s signature. Specifically, she was being asked about the movement in the letter “S” in his signature and whether the movement at the start of that letter was like the movement of the start of the questioned initial. Rather than answer that question, she was defensive, argumentative and gave a non-responsive answer and repeated her opinion about the similarities between the questioned initial and Mr. Datta’s signature.

[210] My impression was that Ms. Petty was being very defensive when asked questions about Mr. Jhutty’s signature and hen repeated evidence, more than once, about Mr. Datta’s signature which was not contained in her written report. Her insistence on repeating evidence about Mr. Datta’s signature, that she did not give in chief or in her written report leads me to conclude that at that point of the cross-examination, she crossed the line of impartiality.

[211] In my view, this evidence is problematic for two reasons. First, this opinion was not in her written report that was served in advance of trial. Her report did not say anything about Mr. Datta’s handwriting or signature, nor did she make any findings that he signed the questioned initial.

[212] According to Rule 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, a party who intends to call an expert witness at trial shall serve a report, signed by the expert, setting out specific information that is listed in the rule. The purpose of that rule is to avoid trial by surprise and to give the other party notice of the opinion evidence. This helps all parties to know the case they must meet at trial.

[213] Experts may not generally testify about matters beyond their report. The court has discretion to admit such evidence on terms that are just, unless doing so will prejudice the other party or cause undue delay: Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 2000 CanLII 16946 (ON CA), 51 O.R. (3d) 97, at para. 38, and Chessman et al. v. Credit Valley Hospital et al., 2019 ONSC 5738, at paras. 84, 87, 93-94 and 126-130 .

[214] In this case, the plaintiff had already closed its case when Ms. Petty gave this evidence. There was nothing in her report about Mr. Datta’s signature. In my view, this evidence amounted to trial by ambush and was of significant prejudice to the plaintiff whose expert had already testified, on a key issue.

[215] Furthermore, Ms. Petty’s own evidence was that when studying handwriting, you do not compare signatures with initials. She then testified during cross-examination that there were similarities with the questioned initial and Mr. Datta’s signature, which seems incongruous with her evidence that you do not compare signatures with initials. She also testified she was not asked to give any opinion about the signatures on the forms she reviewed. How then can she say on the one hand that you cannot compare signatures with initials and then assert that there are similarities between the questioned initial and Mr. Datta’s signature?

[216] Given the significant prejudice to the plaintiff, I have therefore disregarded and place no weight on Ms. Petty’s evidence regarding Mr. Datta’s signature and the questioned initial.

[217] This exchange regarding comparing signatures and initials was the only time I found that Ms. Petty did not maintain her impartiality as an expert. While it was on a crucial issue, in my view it is not a basis to disqualify her as an expert. To be clear, I have disregarded and have not considered her opinion regarding the similarity of the complexity in Mr. Datta’s signature and the questioned initial.

[218] Ms. Petty became very defensive when asked questions about her study of graphology, which is the study of human personality through analyzing a person’s writing. She was asked if she could also tell the gender of a baby based on a woman’s writing and she said that there are certain things that have happened that have proven to be fairly accurate. Ms. Petty appeared very earnest to explain that forensic document examination and graphology are two separate fields and she did not earn any money from that in 2020. When asked if she considered herself a graphologist, her evasive and non-responsive answer was that she also professed to be a mother but that does not have anything to do with her work as a forensic document examiner.

[219] While her defensive and argumentative manner is not a basis to disqualify her as an expert, it is a factor I have considered in determining what weight, if any, to place on her opinion.

[220] Ms. Petty was asked about her evidence that a review of original documents would not have changed her opinion. She agreed that under the SWGDOC standards, that she testified she applied to her examination, originals should be examined if available. She agreed that while it was preferred, she was satisfied that she could provide an opinion from the copies she was provided. I note that there was an attempt to arrange for her to examine the originals prior to trial at some point but there may have been some travel issues.

[221] Ms. Ibrahim testified that there are times that you only look at scanned copies as an original may not exist. Ms. Ibrahim had concerns that some of the copies of the initials Ms. Petty examined were not good copies. According to Ms. Ibrahim, if you cannot see pen pressure of line stokes due to the lack of an original document to examine, you should express a more qualified opinion. Ms. Ibrahim agreed that while your opinion might not change if you reviewed a copy and then the original, your opinion should be more qualified if you cannot review the original.

[222] In my view, there is logic to that opinion – that reviewing an original is always best. Ms. Petty was unable or unprepared to acknowledge that her opinion might be impacted by the limitation of not reviewing original documents. I contrast that with Ms. Ibrahim who was very clear about a limitation with her opinion given the limited number of documents she had to review from a brief period.

[223] Ms. Petty was cross-examined about similarities between the questioned and known initials that she did not include in her evidence. She agreed with the following similarities:

• the questioned initial was of low to moderate complexity, as were the known initials;

• the questioned and known initials were all a small size;

• the terminal stroke was similar as they each finished with a long tapering tail;

• all initials were naturally written without any hesitation;

• all initials were written with quick pen movement; and

• there was a lot of variation in the writing of the initials.

[224] While she agreed with these similarities, her opinion very narrowly focused on what she said was the skill level of the writer of the questioned and known initials. In my view, a more balanced opinion would have addressed these similarities and why those similarities nonetheless had no or little bearing on her opinion.

[225] As a result of the concerns expressed herein, with Ms. Petty’s impartiality, testifying about matters not in her report, failing to correctly identify portions of her report that were taken from other sources, failing to review original initials, failing to provide a balanced opinion by identifying similarities in handwriting, and her general defensive and argumentative demeanour, while I find Ms. Petty is qualified as a forensic document examiner, I place little weight on her opinion that Mr. Jhutty did not sign the questioned initial as it was beyond his skill-level.

ii. Ms. Ibrahim

[226] Ms. Ibrahim presented her evidence in a professional and impartial manner. She also clearly recognized and identified the limitation with her opinion given the limited number of writing samples she had to review. This differed from Ms. Petty, who was extremely reluctant to identify any possible adverse impact on her report from her inability to examine any original documents.

[227] Ms. Ibrahim testified that her opinion was provided in accordance with the SWGDOC standard. According to that standard, her final opinion is that there is some evidence to suggest that the writer in question, being Mr. Jhutty, may have executed the questioned initials. According to the SWGDOC standard, this is a weak opinion. It is not the same as saying that the “evidence indicates”. According to the SWGDCOC standards for Expression of Opinions, the report should include qualifying words such as “may have”, which I note Ms. Ibrahim did in her opinion.

[228] Ms. Ibrahim’s opinion falls short of saying that Mr. Jhutty probably signed the questioned initial. In chief, she identified two limitations in her review which resulted in what she described as a low qualified opinion. One limitation was that all the writing she examined was from a limited period, so she was not satisfied that she had a full variation of Mr. Jhutty’s handwriting. The second limitation was that the questioned initial had what she described as extra stroke in the middle. She said that she did not see that as part of the writer’s natural variation from the specimen initials. She did, however, see the same formation in the specimen signature. She was able to conclude, therefore, that it was within the known writer’s habits and abilities to write these forms, including this extra shape in the questioned initial.

[229] I found Ms. Ibrahim to be a witness who was very careful to ensure she answered questions put to her in a precise and concise manner. It was clear that while she identified several similarities in the handwriting, she also noted limitations and did not want to overstate her opinion. In my view, Ms. Ibrahim understood her role as an expert and demonstrated impartiality and independence when providing her opinion. She demonstrated skills that all experts should have when testifying. In my view, Ms. Ibrahim’s intention was to provide as much accuracy as she could to assist the court. Her demonstrative aids showing pen movement and how shapes were formed was particularly helpful. Again, she presented this evidence in an objective and precise manner. The depth of her knowledge in this field was impressive.

[230] I contrast this with Ms. Petty who I found gave much more generalized and superficial answers and was not prepared to admit any limitations with her methodology such as not examining original documents. I found her opinion lacked the detailed analysis as presented by Ms. Ibrahim. Furthermore, her opinion was not concise or precise as Ms. Ibrahim.

[231] I prefer Ms. Ibrahim’s opinion. I found her analysis to be more nuanced, specific, and detailed. She did not overstate her opinion as can sometimes occur with other experts who testify.

CONCLUSION

[232] For the reasons set out above, I place little weight on Ms. Petty’s opinion. Ms. Ibrahim’s opinion is limited as well. Her opinion that there is only some evidence that Mr. Jhutty wrote the questioned initial, on its own, would be insufficient for the plaintiff to discharge its onus, on a balance of probabilities, that Mr. Jhutty signed the questioned initial. I must therefore look to the evidence of Mr. Jhutty and Mr. Datta.

[233] In my view, Mr. Datta was a credible and reliable witness. While I find that his evidence on its own would not discharge the plaintiff’s burden, when I consider the totality of the evidence, including Ms. Ibrahim’s evidence, I am satisfied that the plaintiff has discharged its duty.

[234] I find that, on a balance of probabilities, Mr. Jhutty signed the questioned initial beside the paragraph setting out the term of the BRA to be from January 9, 2017, to December 2017. Accordingly, the defendants owe to the plaintiff a commission fee of $250,000 which shall be paid within 60 days.

The plaintiff is presumptively entitled to costs. I am not, however, aware of any offers to settle that may have a bearing in that regard. I urge the parties to reach an agreement on costs. If they are unable to do so, then the plaintiff is to submit its bill of costs and submissions, of no more than five pages, double

spaced, 12-point font, and any offers to settle by February 25, 2022. The defendants shall file their responding submissions, of the same length, and any relevant offers to settle by March 18, 2022.

L. Shaw J.

Released: February 2, 2022

COURT FILE NO.: CV-18-1231-00

DATE: 2022-02-02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

RE/MAX REALTY SPECIALISTS INC.

Plaintiff

– and –

2452303 ONTARIO INC., SANDEEP JHUTTY aka STEVE JHUTTY and HARJINDER KARU JHUTTY

Defendants

REASONS FOR JUDGMENT

L. Shaw J.

Released: February 2, 2022