Painchaud v Krimker, 2025 ONSC 1669
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HEIDI PAINCHAUD and GUY PAINCHAUD
Plaintiffs
– and –
JOSEPH KRIMKER and KATHLEEN KRIMKER.
Defendants
-and-
JOSHUA CHISVIN and PSR BROKERAGE
Third Parties
Scott McGrath, Lawyers for the Plaintiffs (not appearing)
Simon Bieber and David Ionis, Lawyers for the Defendant
Gavin J. Tighe and Daria Risteska, Lawyers for the Third Parties, Joshua Chisvin and PSR Brokerage
HEARD: March 3, 4, 5, 6, 7 and 10, 2025
G. DOW, J.
REASONS FOR DECISION
1This trial proceeded over six days with five exhibits tendered and two additional documents referred to and marked as lettered exhibits. The defendants, Joseph and Kathleen Krimker testified along with an expert to give opinion evidence on the standard of care of a real estate agent. Joshua Chisvin testified on his own behalf. Exhibit 1 was a 65 tab Joint Book of Documents in which the parties addressed the requirements contained in Bruno v Dacosta, 2020 ONCA 602 (at paragraph 53).
2This action arises as a result of a failed Agreement of Purchase and Sale for a residential property, 5 Suncrest Drive. It was listed for sale June 16, 2024 for $6.950 million. The Agreement of Purchase and Sale was entered into between Heidi and Guy Painchaud, who became the plaintiffs, and Joseph and Kathleen Krimker who became the defendants. It was completed on September 1, 2020, without conditions, after five days of negotiation.
3Joshua Chisvin, a sale representative with PSR Brokerage, who became the third parties, acted on behalf of the Krimkers. The seller’s agent was Peter Panagiotakopoulos, also a sales representative with PSR Brokerage.
4The Agreement of Purchase and Sale provided for delivery of a $350,000 deposit within 24 hours of acceptance of the agreement or, in this matter, by 9:37 pm on September 2, 2020. That deposit was never paid and the Painchauds retained counsel and sought damages in the days following. The property ultimately sold in November, 2020 for $6,189,750.
5This litigation was partially resolved on January 8, 2025 with a Settlement Agreement (Exhibit 3) wherein the Krimkers began paying $22,500 per month for the next 10 months starting on March 8, 2025. The Settlement Agreement states the total amount is inclusive of interest and costs (Exhibit 3 at paragraph 1). Should any lump sum be awarded and received by the Krimkers as a result of their Third Party Claim which proceeded to trial, that recovery shall be immediately transferred to the Painchauds.
Background
6At its core, the Krimkers’ maintained they were advised that any agreement to purchase 5 Suncrest Drive was conditional on delivery of the deposit. This is what they testified they were told by Joshua Chisvin. That is, they had the last say in determining whether to proceed with the purchase. To the contrary, Joshua Chisvin, who could not precisely remember all of the details of his discussions with the Krimkers, denied ever telling the Krimkers they were entitled to get a mutual release if they chose not to pay the deposit (transcript of cross-examination of Joshua Chisvin, March 7, 2025 at pages 50-51).
7Joseph Krimker, age 35, obtained his Bachelor of Business Administration degree from the Schulich School of Business and subsequently successfully completed two other Harvard University business courses as listed on his Linkedin profile (Exhibit 1, tab 64). He met his spouse through work in 2010 and they purchased their first home, a bungalow in Scarborough in 2013. They were involved in a second real estate transaction in 2017 when they purchased a Yorkville condominium (which closed) and a third, pre-construction condominium in which they exercised a 10 day buyer protection clause not to proceed. Joseph Krimker has an older brother, Lawrence with whom he is quite close. In fact, they appeared to have worked together in various entrepreneurial businesses. Most importantly, Lawrence Krimker offered financial support to his younger brother in the purchase of 5 Suncrest Drive.
8Kathleen Krimker, age 34 has a high school diploma and worked until 2020. As indicated, she met her spouse in 2013 while employed at Sparkle Window Cleaning and her Linkedin profile lists her as the President and CEO of the Green Living Show from February, 2018.
9This evidence was apparently tendered to demonstrate the Krimkers’ high level of business and real estate experience and to undermine their version of events regarding the transaction events described below.
10Joshua Chisvin, age 37, first met Joe Krimker in secondary school when they were both attending Westmount Collegiate. They reconnected when he began working at Sparkle Window Cleaning about 2009-2010. Joshua Chisvin was hired to do door-to-door sales among other jobs. This included contact with Lawrence Krimker.
11After this position, Joshua Chisvin trained for and became a real estate agent joining PSR Brokerage in about 2015. This brokerage focused on properties in Forest Hill and in Muskoka. The contact with Lawrence Krimker continued through attending the same fitness facility. This involved social contact as well as showing him properties in both Toronto and Muskoka.
12Joshua Chisvin and Joseph and Kathleen Krimker reconnected in the summer of 2020 in Muskoka with an initial request to show the Krimkers a Muskoka property. They subsequently switched to houses in Toronto. Joshua Chisvin was aware of the Krimkers’ initial budget of $4 to $5 million and it being subsequently increased by Lawrence Krimker’s willingness to assist financially. Joshua Chisvin testified and I accept that he was not provided details aside from being aware of the Krimkers’ willingness to look at properties listed in excess of $6 million.
13Joshua Chisvin organized the Krimkers to see a property on Austin Crescent which they quite liked but sensibly wanted to view comparable properties before proceeding. This included the Yorkville and Forest Hill neighbourhoods.
14This resulted in Joshua Chisvin setting up a day of showings on August 24, 2020 which included 5 Suncrest. The Suncrest property backed onto Sunnybrook Park. In addition, the owners, Heidi and Guy Painchaud were architects and disclosed they had constructed the home in a manner and with plans for a third floor. This offered an opportunity to significantly increase the value of the property.
15The end result was Joseph and Kathleen Krimker signed and delivered an Agreement of Purchase and Sale on August 28, 2020 in the amount of $6.15 million. The deal was to close on October 15, 2020. It was open for acceptance until August 29, 2020 at 7:30 pm.
16Attached to the Agreement of Purchase and Sale was a Schedule A where additional details about final payment, the condition of chattels and fixtures, how notices and counter-offers could be delivered, prior uses of the property and their representations under the Real Estate and Business Brokers, Act and that this was explained before either parties signed the document. There was a Confirmation of Cooperation and Representation form which confirmed each side’s awareness the listing brokerage was representing both the seller and the buyer. Finally, the Agreement of Purchase and Sale attached a Schedule B which confirmed the parties were not getting any legal advice from the broker and not only had they had the opportunity to obtain legal advice before signing but the brokerage had recommended that they do so.
17The wording was clear, that is, it had no conditions and required the $350,000 deposit be paid within 24 hours of acceptance. The evidence of Joseph and Kathleen Krimker was, despite having understood and/or read the document and having gone over it with Joshua Chisvin, it was their understanding it was non-binding until payment of the deposit. The Krimkers admitted reviewing it with Joshua Chisvin and his having explained it to them. In addition, given Lawrence Krimker’s financial support, he was to view the property in advance of completing any deal. However, there was also evidence Lawrence Krimker was unavailable as of August 27 until September 2 (Examination for Discovery, transcript of Joseph Krimker, page 94, questions 339-342).
18There were also discussions about including some of the seller’s furniture in the deal. However, the Agreement of Purchase and Sale clearly lists under Clause 4 “Chattels included” what the Krimkers were seeking to have included (appliances as to opposed to any furniture). In the next Clause, “fixtures excluded”, the counter-offer identified only a “Light fixture in Office”.
19Much time at trial involved reviewing the emails and text exchanges between those involved, particular between Joshua Chisvin and Joseph Krimker (Exhibit 1, tab 44).
20The Krimkers’ offer was returned at $6.72 million open until August 30 (Exhibit 1, tab 2). This also included the Confirmation of Co-operation and Representation form given both agents were with PSR Brokerage. The attached Schedule B initialled by the parties also confirmed legal advice had been recommended to them and that neither agent was providing such advice.
21The Krimkers’ counter-offer was at $6.25 million and moved the closing date to January 15. This was not accepted. The deposit clause remained the same throughout. Further offers were exchanged narrowing the price to $6.5 million with a closing date of October 29, 2020. The third floor plans were to be included in a user friendly/architect format but not warranted to have been approved in any form to any relevant body.
22The final offer of September 1, 2020 that was agreed upon required the $350,000 deposit be paid in trust to the brokerage by 9:37 pm on September 2, 2020 (Exhibit 1, tab 20).
23Joshua Chisvin proceeded with emails to his assistant to provide Joseph Krimker with details for the wire payment of the deposit (Exhibit 1, tab 22).
24No mention of this being optional was made. There were key text exchanges between Joshua Chisvin and Joseph Krimker on September 2 starting shortly after noon. The first involved redirecting a portion of the commission Joshua Chisvin was to receive. That is, it was to be split between he and Joseph Krimker. This was described at trial as a “kickback”. It involved 1% of the purchase price, that is $65,000. This amounted to 40% of the commission available to Joshua Chisvin and may have its origins in dealings he had previously with Lawrence Krimker.
25Within the texting by Joseph Krimker is the statement “you’re giving me 1% on this deal bro-end of discussion”. There was no responding text that was agreed to but there was texting about who would be the agent on the sale of the Krimker condominium. Part of the responding texting by Joshua Chisvin includes “I also know you’re hesitant to send deposit until things are finalized but I’d ask you to please get that done as the deal rides on it”.
26It being September 2, 2020 and with Lawrence Krimker now available, a showing for him was arranged for 6:30 that evening.
27Texting and emails involving the status of the deposit were made. At 6:40 pm, Joseph Krimker texted Joshua Chisvin “Lawrence won’t let us move forward – we are pulling out Josh. Back to square one. Let’s talk after the long weekend”. Joseph Krimker’s evidence at trial about his discussion with his brother, after Lawrence Krimker had viewed the property, included “This is a big decision. If you love this home and you see yourself raising your family there, I’ll support you and you can do it. But I don’t think that’s a good idea because you can take your time, really, really you know, be thoughtful about this.” (Trial Transcript March 3, 2025 at page 42).
28The deposit was not paid and positions began to solidify although efforts were made to resolve the matter. It was clear that the Painchauds were willing to extend the time for delivery of the $350,000 deposit but unwillingly to abandon their having a firm contract for the sale of 5 Suncrest Drive for the agreed upon terms. It was also clear that the Krimkers, after receipt of the advice of Lawrence Krimker, wished to avoid completing the purchase.
29Within these circumstances, the possibility of the mutual release being executed was raised. This Clause, contained in the Agreement of Purchase and Sale, provided for the situation where a condition of the Agreement could not be met after the Agreement had been entered into and return of the purchasers’ deposit to the purchasers from the brokerage company holding the funds.
30Joshua Chisvin admitted not being truthful with the sellers’ agent “b.s. a little bit”, (Trial Transcript, March 6, 2025, at page 68, line 4).
31As to the circumstances giving rise to the failure to deliver the deposit by the deadline of September 2, 2020 at 9:37 pm, he also admitted contacting the broker of record for advice.
32This led to a meeting between the Krimkers and the Painchauds which did not occur until September 9, 2020. It should be noted that the Labour Day long weekend was over September 5 to 7, 2020. Before same, on Friday, September 4, 2020, a letter from the Painchauds’ litigation counsel (Exhibit 1, tab 59) confirmed the sellers position a breach of the Agreement of Purchase and Sale had occurred by failure to deliver the deposit and that they would be relisting the property and claiming damages. This letter was delivered to Joshua Chisvin who failed to forward it to either of the Krimkers until September 8, 2020. In the interim, over the long weekend, Joshua Chisvin was making some efforts to line up new showings for the Krimkers.
33With receipt of the letter dated September 4, 2020 from the Painchauds’ legal counsel by Joshua Chisvin to the Krimkers on September 8, 2020, the Krimkers’ forwarding the relevant documentation to a senior litigation lawyer with whom Lawrence Krimker was familiar. Thus, the Krimkers had the opportunity to receive legal advice in advance of the September 9, 2020 meeting with the Painchauds.
34Throughout the process, the litigants were exchanging texts, including an important statement by Joseph Krimker on September 9, 2020 after 2:13 pm and before 6:16 pm of being “upset with myself” and, to Joshua Chisvin “you did your job” (Exhibit 1, tab 44, page F341). I rely on these statements in concluding Joshua Chisvin did not advise the Krimkers’ that the deal was conditional on delivery of the deposit.
35As noted in the email exchange of September 22, 2020 (Exhibit 1, tab 41, the Statement of Claim had been issued by September 22, 2020 and was in the process of being served. The Krimkers had severed their “working relationship” with Joshua Chisvin by October 31, 2020 (Exhibit 1, tab 43) and the Trial Record confirms issuance of the Third Party Claim on November 17, 2020.
36In Joseph Krimer’s evidence in chief, when referred to a text exchange November 23, 2020 (Exhibit 1, tab 44, at page F346) regarding service of the Third Party Claim, he testified having had discussions with Joshua Chisvin about the situation and being told there was “nothing to worry about because the worst case scenario is he has insurance and Kathleen and I will have no personal liability if this ends up going to court” (Trial Transcript, March 3, 2025, page 61 at line 25).
37The evidence about the standard of care to be applied to Joshua Chisvin as a real estate agent was tendered by Barbara Brindle, real estate broker with past experience as a paralegal and teaching real estate courses to those seeking qualification to sell real estate. As accepted by Joshua Chisvin and his counsel, the standard of care is to be honest with and ensure clients understand what they are committing to and have a valid factual basis for any opinion expressed. Ms. Brindle’s evidence focused on, as was lacking here, steps that could be taken to protect the real estate agent in the event of the client later taking the position he and/or she did not understand what they were told or signed, or claimed they were told something other than what the documentation committed them to complete. This included:
a) the consequences of signing a firm and binding agreement;
b) the use of not mandatory forms (such as Form 127) to document that such a discussion has occurred on a clause by clause basis; and
c) the strong recommendation the client obtain immediate legal advice when they proceed with a course of action which breaches the contract they have signed.
38In cross-examination, Ms. Brindle acknowledged some of her evidence amounted to “best practices”. This included additional steps for disclosure when, as occurred here, both the seller and buyer had engaged the same brokerage company, a practice that is permitted.
ANALYSIS
39The Krimkers’ counsel submitted the issue between the parties was one of Joshua Chisvin having a fiduciary duty to the Krimkers. The third party PSR Brokerage is vicariously liable for the actions of Joshua Chisvin.
40As was noted by counsel for Joshua Chisvin, fiduciary duty was not pleaded. However, the existence of a “real estate agent-client relationship of trust” was pleaded (at paragraph 40 of the Third Party Claim) and the law that Joshua Chisvin was required to put the best interests of the Krimkers before his own is clear. I accept that statement of the law but do not find any action by Joshua Chisvin to be to the contrary. He assisted the Krimkers in showing them a variety of houses in a variety of neighbourhoods in the price range they were prepared to consider. He assisted them in negotiating with the Painchauds with a focus on obtaining the lowest price. I agree with the submissions by counsel for the Krimkers that the various clauses in the Agreement of Purchase and Sale plus the Schedules attached that Joshua Chisvin was not providing them with legal advice and confirming they had the opportunity to obtain same does not somehow absolve Joshua Chisvin of his duty of care to the Krimkers.
41To breach that duty, as submitted by counsel for the Kimkers, requires me to find Joshua Chisvin “actively misled the Krimkers” (at paragraph 203(a) of Krimkers’ Written Closing Submissions). This submission relies on the Krimkers being believed and what Joshua Chisvin either told them what the Agreement of Purchase and Sale and Schedules did not say or that Joshua Chisvin incorrectly understood the Agreement of Purchase and Sale with respect to its content and operation, particularly with respect to the Mutual Release Clause.
42The alternative is that Joshua Chisvin did explain what the Krimkers’ signature and subsequently initialed throughout the Agreement of Purchase and Sale and Schedules and they were committing to the purchase, if accepted, and it was they, upon deciding not to proceed with the purchase, committed to and relied on a version of events which are not accurate.
43In this regard, I agree with the statement in Premier Trust Co. v. Beaton, 1990 CanLII 6663 (ON CTGD), [1990] O.J. No. 2169 (at page 16) “it is to such things, and to a comparison of the evidence of a witness with other facts, preferably not in dispute, that a trial judge looks most often when he assesses and accepts or rejects evidence”.
44It is clear that, if Joshua Chisvin explained to the Krimkers that their repeated offers to purchase 5 Suncrest Drive “preserved for them an escape patch in the form of the Mutual Release Clause” (at paragraph 210 of Krimkers Written Closing Submissions) then he should be found liable. I cannot reach that conclusion.
45Joshua Chisvin clearly is at fault for not keeping contemporaneous notes or some form of record which would reinforce his giving the required explanation of what was occurring with the delivery of each version of the Agreement of Purchase and Sale, with Schedules, and the consequence of each offer being accepted. I find his lack of clear memory on certain important points, such as whether payment of the deposit was optional and denying that he said same, to be accurate. I accept his evidence that he did not tell the Krimkers if they did not pay the deposit, the Mutual Release Clause would absolve them of any liability (Trial Transcript, March 7, 2025 at pages 50-52).
46While the Krimkers’ counsel submitted there was the absence of “a single written record evidencing that Chisvin appropriately explained the offers” (paragraph 216 of Krimkers Written closing submissions), I disagree. That document was the Agreement of Purchase and the attached Schedules with the Krimkers’ signature and initials contained therein, repeatedly.
47To be clear, while counsel for the Krimkers relies on evidence from Joshua Chisvin that he could not remember doing certain things such as explaining the binding nature of receiving back a signed Agreement of Purchase and Sale they delivered, I do not find or equate that to it not having occurred.
48I am reinforced in this conclusion by the logic of various events which occurred in the process including the following:
a) first, the nature of the contact between Joseph Krimker and Joshua Chisvin following receipt of the accepted Agreement of the Purchase and Sale on September 1, 2020 which triggered the deposit to be paid to the brokerage by 9:37 on September 2, 2020 (Exhibit 1, tab 50, page F453 and Exhibit 1, tab 44, page F337) makes no mention of the deposit being conditional. To the contrary, Joshua Chisvin stated “the deals rides on it”. Joseph Krimker responses included, on September 3, 2020 at 10:42 am “this has been a big wake up call for me though, sorry for the flip flopping”(Exhibit 1, tab 44, page F438);
b) second, the involvement of Lawrence Krimker, who Joseph Krimker acknowledged was willing to “support you and you could do it” (Trial Transcript March 3, 2025 at page 42) and was amplified by the decision not to have Lawrence Krimker give evidence; and
c) third, I rely on the exchange after September 2, 2020 at 5:34 pm about cancelling the showing for Lawrence and asking if the deposit had been sent (Exhibit 1, tab 44, page F337) as contrary to what would have been said/texted if payment of the deposit was understood to be optional.
49Counsel for the Krimkers described the examination for discovery evidence of Joshua Chisvin not being able to remember having ever explained the Krimkers’ potential liability under the Agreement of Purchase and Sale as a critical admission. I disagree. I find his evidence going through the Agreement of Purchase and Sale and explaining its components as evidence by their signature and initials to be a sufficient description of what they were committing to, if the agreement was accepted, including payment of the deposit.
50To be clear, counsel for the Krimkers relied on the statement of law, as it applies to real estate agents (with which I agree) as found in Wemyss v. Moldenhauer, 2003 CanLII 19103 (ONSC), 2004 CanLII 46813 (ONCA) that:
a) a purchaser is entitled to rely on the expertise on his or her real estate agent;
b) the failure to obtain legal advice does not excuse the real estate agent from liability for negligence and does not constitute contributory negligence; and
c) the purchaser may rely on the real estate agent’s careful reading of the Agreement of Purchase and Sale as opposed to his or her own review of that document (at paragraphs 18-21).
51I note in Wemyss v. Moldenhauer, supra, the findings included the finding that the real estate agent admitted missing the relevant amendment during the sign back negotiations (at paragraph 13(g)(i)). That is not what occurred here. I have accepted that Joshua Chisvin explained to the Krimkers, as witnessed by their signature and initials that they were committing to purchase 5 Suncrest Drive for a fixed price to be secured until closing by payment of a $350,000 deposit within 24 hours.
CONCLUSION
52This action (or more precisely) the third party claim for indemnity is dismissed.
COSTS
53At the conclusion of the trial, I required the parties to provide their claim for costs if successful. The Krimkers uploaded to Case Center a draft Bill of Costs claiming partial indemnity fees of $164,808.30, plus HST and disbursements of $28,130.98 (inclusive of HST of which $16,525 was for expert fees). For substantial indemnity fees, the fees sought increased to $247,212.45.
54The draft Bill of Costs of Joshua Chisvin and PSR Brokerage set out a claim for partial indemnity fees of $122,639 plus HST and disbursements totalling $15,951.16 (inclusive of HST of which $10,170 were for an expert not called at trial). For substantial indemnity fees, the fees sought increased to $183,944.50.
55I was also advised Offers to Settle had been exchanged and the parties requested they not be disclosed until my decision was released to which I agreed.
56I urge the parties to agree on costs. If they cannot, the third party shall forward to my assistant (at the email address from which they received these reasons) not more than five typed written double-spaced pages complying with Rule 4.01, their submissions as to the quantum of costs being sought on or before August 22, 2025. The plaintiff shall have until September 22, 2025 to respond, identically limited. The limitation does not include essential attachments, such as the relevant Offer to Settle.
Mr. Justice G. Dow
Released: July 21, 2025
CITATION:: Painchaud v Krimker, 2025 ONSC 1669
COURT FILE NO.: CV-20-00647585-00A1
DATE: 2025-07-21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HEIDI PAINCHAUD and GUY PAINCHAUD
Plaintiffs
– and –
JOSEPH KRIMKER and KATHLEEN KRIMKER.
Defendants
-and-
JOSHUA CHISVIN and PSR BROKERAGE
Third Parties
REASONS FOR DECISION
Mr. Justice G. Dow
Released: July 21, 2025