JUDGMENT

Dates of Trial: Monday, November 3, 2025, and Wednesday, December 17, 2025.

Date of Decision, Monday, January 5, 2026.

Representative for Ivanov and Hometrade: DERYA VURAL,LSO# P18738, Licensed Paralegal, vurallegalservices@vlspc.com, 647-949-4653 or derya@vlspc.com

Representative for Kiselman and Solar: DAKOTA KELLY, LSO # P19490, Licensed Paralegal, 416-262-7053, austinlakelegal@gmail.com,

Representative for Shoikhedbrod: ELENA SHOIKHEDBROD, in person.

No one appearing for Forest Hill.

TABLE OF CONTENTS

Para Numbers

I. INTRODUCTION 1–5

II. BACKGROUND AND CHRONOLOGY 6–23

A. FINDINGS OF FACT ON DISCRETE ISSUES 24

A 50/50 Split of the Entire Commission Was

Verbally Agreed to for the “Three Transactions” 25–35

The February Correspondence did not

Change the Verbal Agreements into

Written Agreements 36- 41

The Court Should Rely on the Unamended

February 2, 2021, BRA with Hometrade 42-55

Mr Kiselman Could Not Unilaterally Invalidate

the February 2, 2021, Hometrade BRA 56-64

Mr Kiselman Did Not Disclose the Hometrade

BRA to Forest Hill 65-70

III LEGAL ANALYSIS

A. MR KISELMAN’S CLAIMS FOR COMMISSIONS ON THE

THREE TRANSACTIONS. RAISED IN SC-23-1888 (PART 1) 71

Not Formally an Agreement to Split Commissions 72 - 74
Contrary to the “in writing” and “signature”

requirements in the Statute of Frauds 75 - 116

The Part Performance Exception 117- 124

B. Mr Ivanov and Hometrade’s Claim for their split of

the commission on the purchase of the office units on

Wynford Drive (SC-23-1804) 125-134

C. The Defendants’ Claim Against Forest Hill and Ms Elena Shoikhedbrod for Contribution and Indemnity

(SC-23-1804-D1) 135-137

D. Mr Kiselman and Viva’s Claim for a Share of the Commissions arising out of Sale of the 18 Wynford Drive Offices

(SC-23-1888 (Part 2)) 138-158

IV CONCLUSION 159-161

I. INTRODUCTION

[1]. There are three separate cases before the Court.

[2]. First, there is CS-23-1888, Uri Kiselman [Mr Kiselman} and Viva Solar Inc [Viva] v Andrei Ivonov [Mr Ivonov] and Hometrade Realty Inc, [Hometrade]. That case is primarily dealing with a claim for real estate commissions arising out of the purchase and sale of three properties [the “three transactions”] which occurred in March of 2017, February of 2018 and May of 2018. It also includes a claim for commission money in a fourth transaction in 2021 (described below).

[3]. Second, there is CS-23-1804, Ivanov and Hometrade v Kiselman and Viva. That case is primarily dealing with a claim for commission money arising out of the purchase and sale of office space at 18 Wynford Drive in Toronto in March of 2021. That office space was purchased by a company, 871 Ontario (“871 Ontario”). This is referred to as the fourth transaction.

[4]. Third, there is CS-23-1804-D1, Kiselman and Viva v Forest Hill Real Estate Inc. [Forest Hill] and Elena Shoikhedbrod, a real estate agent who was, at the time, with Forest Hill. This is a Defendant’s Claim in which Mr Kiselman and Viva seek contribution and indemnity from Forest Hill and Ms Shoikhedbrod should Mr Kiselman or Viva be ordered to pay Mr Ivanoff and Hometrade damages in SC-23-1804.

[5]. There was a request on the first day of trial by Mr Kiselman to file with the Court an Amended Defendant’s Claim in SC-23-1804D1. In it, Mr Kiselman and Viva claimed damages directly from Forest Hill and Ms Shoikhedbrod. I ruled that this new pleading would not be entertained by the Court because a) it was not served and filed 30 days before the trial and b) it was clear that Ms Shoikhedbrod was seriously prejudiced by this new claim against her. While Forest Hill did not file a Defence or appear at trial that may have been based on its assessment that it was unlikely to be in legal jeopardy when the claim was based only on contribution and indemnity . That calculation may have been different if Forest Hill had received the Amended Defence within the Rules..

II. BACKGROUND AND CHRONOLOGY

[6]. Uri Kiselman is a business man and entrepreneur. He owns and operates an ethnic language newspaper. He is not a real estate broker or agent. While his first name is sometimes referenced as Yuri he spelled it out as Uri on the first morning of trial. I have amended the style of cause to be uniform by using Uri for all three cases.

[7]. Andrei Ivanov is a real estate broker and, with his wife, owns and operates Hometrade.

[8]. In the past Mr Ivanov and Mr Kiselman were friendly with each other and had known each other for more than 15 years.

[9]. Prior to 2017, Mr Kiselman testified that he entered into a verbal arrangement with Mr Ivanov and Hometrade concerning a preconstructed condominium unit at 1990 Yonge Street. As was standard in the industry, the builder, as seller of the property, offered a 4% commission on the sale if a realtor brought a purchaser. Mr Kiselman was shown this early investment property by Mr Ivanov.

[10]. Mr Kiselman testified that he agreed to purchase this property using Hometrade as his broker provided that Mr Ivanov split the commission on a 50/50 basis. No documentation was shared regarding this agreement, no proof of payments, or any corroborating evidence. The 50/50 arrangement on the Yonge Street property was not, however, disputed in Mr Ivanov’s testimony.

[11]. On March 21, 2017, the parties made another verbal agreement to split the commission offered by the builder and seller of unit 50, 505 Power Street in Toronto.

[12]. On February 3, 2019, the parties made another verbal agreement. This was, again, to split the commission on the sale of unit 1306, 8 Tippet Road in Toronto.

[13]. On May 13, 2018, another verbal agreement to split commissions was made on the sale of unit 0712, 4 Tippet Road in Toronto. The Buyer in this agreement was Mr Kiselman’s son, Mark Kiselman.

[14]. The verbal agreements referred to in paragraphs 11 to 13 are referred to as the “three transactions”.

[15]. For the three transactions the evidence established that the builder selling the unit made commission payments in instalments. To date, Mr Kiselman received 50% of the commission payments on only the first instalments for the three transactions.

[16]. On February 2, 2021, Viva, whose sole director is Mr Kiselman, entered into a written Buyers Representation Agreement (BRA) with Hometrade. This time the 50/50 split of the commission was expressly set out in writing.

[17]. On February 3, 2021, Hometrade begins to forward listings of various properties to Mr Kiselman. This includes a listing for two units at 18 Wynford Drive in Toronto.

[18]. On February 13 and 14, 2021, Mr Kiselman and Mr Ivanov exchanged email correspondence concerning the alleged unpaid portions of the commission on the three transactions.

[19]. On February 18, 2021, Mr Kiselman purports to have sent Mr Ivanov a “cancelation letter” in which he seeks to unilaterally treat the February 2, 2021, BRA with Hometrade to be “null and void”.

[20]. On February 19, 2021, 871 Ontario, which has Mr Kiselman as its sole director, entered into a BRA with Forest Hill. This BRA contains an express written clause with respect to splitting the commission which reads as follows: “The Agent Agrees to pay 50% of her commission to the Buyer (After the brokerage deducts 10% of their fees)”

[21]. On March 17, 2021, 871 Ontario, using Forest Hill as its broker, closed on units 104 and 105 at 18 Wynford Drive in Toronto.

[22]. In October 2021, Mr Ivanov and Hometrade convoke arbitrations proceedings before the Toronto Real Estate Board against Forest Hill and its agent, Elena Shoikhedbrod. The arbitration is settled. In exchange for a Full and Final Release signed by Mr Kiselman, Forest Hill and Ms Shoikhedbrod paid Mr Ivanov and Hometrade $11,250 plus HST for a total sum of $12,712.50.

[23]. Mr Ivanov and Hometrade commence their action in the Small Claims Court on March 13, 2023 (SC-23-1804). Two days later, Mr Kiselman and Viva launched their action in the same Court (SC-23-1888).

A. FINDINGS OF FACT ON DISCRETE ISSUES

[24]. The Court is called upon to make findings of fact as well as findings of mixed fact and law on several discrete issues.

1) A 50/50 Split of the Entire Commission Was Verbally Agreed to for the “Three Transactions”

[25]. Mr Kiselman testified that the verbal agreement for the three transactions in 2017 and 2018 was that there would be a 50/50 split of the entire commission monies received from the builder. In contrast, Mr Ivanov was insistent that the verbal agreement was for a 50/50 split of only the first instalment payment from the builder, i.e., for a part of the entire commission.

[26]. The evidence indicated that the three transactions worked in the same way as did the property at 1990 Yonge Street. The builder would offer a 4% commission to the realtor who brought in a Buyer. What was explained to the Court was that with these newly constructed condominium buildings the commission payments did not come all at once. They came in two or even three instalments. The first instalment may occur before there is even shovels in the ground. The second instalment may be when the building is completed and habitable and the final instalment may be when the units were cleared by the municipality for closing of the real estate transaction.

[27]. Rather than characterize the commission payments by Hometrade to Mr Kiselman as commission income, Mr Ivanov would characterize the portion of the commission he sent to Mr Kiselman as money for the purchase of advertising space in the ethic newspaper published by Mr Kiselman. These advertisements would appear in the newspaper. However, there was consensus that the amounts of money received for Mr Kiselman’s 50% share of the entire commissions would be exponentially greater than the amount any other patron would pay for the same size of advertisement. Mr Ivanov testified that he characterized the payments on invoices as “advertising” at Mr Kiselman’s request. Apparently, this was financially advantageous to Mr Kiselman with respect to his HST obligations.

[28]. I find that, on a balance of probabilities, Mr Kiselman’s version is preferable. Mr Ivanov’s testimony that the verbal agreements only entitled Mr Kiselman and Viva to a share of only the builder’s first instalment of the commission, is not supported by the evidence and the surrounding facts for four main reasons.

[29]. First, based on the uncontradicted testimony of Mr Kiselman, for the earlier transaction at 1990 Yonge Street, Mr Kiselman’s evidence was that he received his full 50%. It is likely that the same arrangement would follow for the 2017 and 2018 purchases.

[30]. Second, Mr Ivanov and Hometrade’s pleadings did not describe the partial payments that Mr Kiselman did receive as a first instalment. They were described in the pleadings as gratuitous payments that, it was explained by counsel, are akin to a finder’s fee. By pleading the payment was gratuitous but testifying later that it was a split of only the first instalment, Mr Ivanov’s position lacks consistency. Such ambiguity in this key area suggests that the claim that the split was only on the first instalment” arose late in the day as a convenient explanation for only providing partial payments.

[31]. This gives rise to the third reason to support Mr Kiselman’s position that the verbal agreement was for 50% of the entire commissions. This is the email exchange between the parties over two years after the three transactions were concluded. These emails occurred on February 13 and 14, 2021 and are found as Exhibit E at page A-1-164, of Claim SC-23-1804.

[32]. The email of February 13, 2021, from Mr Ivanov to Mr Kiselman reads:

Here is what payments for each units you have got

willson unit 1306 $6,245.10 this is first instalment

Wilson unit 712 $6,146.10 – first instalment

Great Golf you have received $3,517,92. Total at the closing should be $11,050.20 based on already received payment closing $7,532.28

Total $35,832.60

Mr Kiselman responds to Mr Ivanov early afternoon on February 14, 2021:

By Great Gulf Power Broker Referral Program, 2% fee is paid 230 days after down payments cleared. Last of 5 downpayment cheques was cleared 1 March 2019, almost 2 years ago. Nothing is said about delay of 2% fee to closing or change of payments.

Seven minutes later on February 14, 2021, Mr Ivanov writes back:

I can pay you even upfront if y need money now to buy an office :)

[33]. These emails constitute an after-the-fact confirmation of the verbal agreements entered 2 to 3 years prior concerning the three transactions in this litigation. Mr Ivanov does not say: “I’ve already paid you a founder’s fee” or “you’ve already received your share of the first instalment and we never agreed to share more”. The February 13, 2021, email does say that Mr Kiselman has already received his share of the first instalments for the three properties. It then refers to the ‘total at closing” amounts. Why would Mr Ivanov tell Mr Kiselman how much could be expected at closing if Mr Kiselman had already received his share of the builder’s first instalment payment? Why would Mr Ivanov offer to “pay you even upfront” if he was not explicitly offering to pay some of the outstanding amounts owed or owing?

[34]. Finally, the Court notes that Mr Ivanov changed his position after he received the above email exchange in Mr Kiselman’s Claim in SC-23-1888. That email refers to the payments that Mr Kiselman had received so far as a portion of the first instalment of the commission payments from the three builders. Mr Ivanov may have been trying to turn this damning email on its head by picking out only the words “first instalment”. But the email has to be read in context. In the emails Mr Ivanov refers to the ‘total upon closing” and appears to offer a loan pending that closing so Mr Ivanov can purchase office property. This is an acknowledgement by Mr Ivanov that Mr Kiselman will receive more money once the three transactions formally close.

[35]. In the final analysis the balance of probabilities favours Mr Kiselman’s testimony as to the content of the verbal agreement. The two parties verbally agreed to a 50/50 split of all of the commission money. Mr Kiselman’s share was not a lesser amount characterized as a finder’s fee or as only a portion of the first instalment commission payments.

2) The February Correspondence did not Change the Verbal Agreements into Written Agreements

[36]. Mr Kelly, Mr Kiselman’s representative submitted that the February 13 and 14 emails, (and arguably the February 18, 2021, cancelation letter) can constitute a written memorandum or note which will satisfy the “some memorandum or note in writing” requirement in the Statute of Frauds, RSO 1990, c. S.19. He relied on the case of Leoppky v Meston, 2008 ABQB 45 [Leoppky]..

[37]. In Leoppky, there were numerous emails back and forth between the parties before the deal was finalized. These emails, in fact, formed the terms and conditions of the agreement. The agreement itself was captured in writing in the final email denoting acceptance. In the case at bar the February 13 and 14, 2021, emails and the February 18, 2021, cancelation letter purport to describe the terms and conditions of the verbal agreements already created two and three years previous. They do not, themselves, create an agreement.

[38]. I make the following observations concerning this email exchange and the cancellation letter. :

The email exchange occurs approximately three years after the alleged verbal 50/50 split agreements arose. From a timing perspective, it can’t be said to create a written agreement nunc pro tunc (now for then);
The exchange describes a pre-existing verbal agreement rather than creates such an agreement ab initio;
There are no signatures in the email exchange signifying agreement as to terms and conditions for the transaction. There is not even an “email signature” (a pdf of a hand written signature). A signature is required under the Statute of Frauds.
One would normally expect a document creating a binding agreement between two parties to contain a clause stating that it was binding. The fact that, years later, the exchange depicts ambiguity in who owed what, speaks to the wisdom of the Statute of Frauds requiring a written agreement.

[39]. In Canadian Western Trust Company v. 1324789 Ontario Inc., 2019 ONSC 4789 at para 27 the Court declined to find an email exchange to satisfy the written memorandum or agreement requirement of the Statute of Frauds:

Counsel for the Beach parties pointed to an email exchange which he maintained constituted an agreement in writing not to enforce the mortgages. In the first email, Mr. Marshall “authorized and directed [Canadian Western] to suspend future payments.” In the second email, Mr. Beach thanked Mr. Marshall for having done so. Whatever else this email exchange may be, it is not “an agreement…memorandum or note thereof … in writing and signed by the party to be charged therewith” as required by s. 4 of the Statute of Frauds.

See also: Heliotrope Investment Corporation v. 1324789 Ontario Inc., 2021 ONCA 589at para 15; Bravar Custom Builders Ltd. v. Long Island Homes Inc., 2015 ONSC 6627, at paras. 24-25

[40]. While I have no doubt that there may be situations where an email exchange or similar means of electronic communications can satisfy the “in writing” and signature requirements in the Statute of Frauds, this is not such a case. See: M.H. Ogilvie, “The Statute of Frauds in the Email Age: Druet v Girouard, 2014, 65 University of New Brunswick Law Journal, 2104 Docs 92.

[41]. If this were the case then all that a party seeking to rely on an alleged verbal agreement would need to do is write a letter years, even decades, after the alleged verbal agreement was created. Indeed, a reference in a pleading to the verbal agreement would, under this approach, be sufficient.

3) The Court Should Rely on the Unamended February 2, 2021, BRA with Hometrade

[42]. As noted above, on February 2, 2021, Mr Kiselman, on behalf of Viva, signed a BRA with Mr Ivanov and Hometrade.

[43]. Viva needed new office space in Toronto. This was required in a hurry as Mr Kiselman’s indicated that the lease on his then current place of business was ending. Mr Kiselman testified that he was trepidations to work with Mr Ivanov as he felt he was taking too long to pay him the outstanding commission amounts from the three transactions. For this reason, on February 2, 2021, Mr Kiselman insisted that the parties enter into a written Buyer Representation (BRA) which explicitly referenced the 50/50 split in commissions.

[44]. The Court was presented with two BRAs for February 2, 2021, a photocopy and a carbon paper copy. Initially, at the opening of trial, I ruled the carbon paper copy provided by Mr Kiselman should not be admitted into evidence as it was not served and filed 30 days before trial (due to only recently being found, according to Mr Kelly). However, on the second day of trial, I revisited that ruling when the representative for Mr Ivanov presented the document to Mr Kiselman on the witness stand. By doing so, this document was brought back into contention. I also noted that opposing counsel had now had the document for six-weeks and was no longer prejudiced or caught by surprise. It was admitted as Exhibit 5 to these proceedings. The carbon paper copy is also referred to as the Unamended BRA.

[45]. The Unamended BRA lists only Viva as the Buyer and is silent as to the length of the holdover period. Under the commission clause the Unamended BRA includes the following sentence: “I agree the Broker is entitled to be paid a commission of:

4% 50% of the commission shall be paid to the client upon closing.”

[46]. This can be contrasted with the photocopy version of the BRA that was introduced into evidence by Mr Ivanov. This is referred to as the Amended BRA. It lists both Viva and Mr Kiselman as the Buyer and the number “90” has been included in the spot on the form for the number of days for the holdover period. The Commission clause includes the underlined addition: “I agree the Broker is entitled to be paid a commission of:

4% 50% of the commission shall be paid to the client upon closing for lease.”

[47]. When examined together it is plain and obvious that Mr Kiselman’s signature on both copies is identical. This means that the signature shown on the photocopied page also formed the signature on the carbon page at the same moment in time.

[48]. Mr Ivanov explained that he works with an old BRA template from the early 2000’s that uses carbon paper to make an original version and two carbon copies. He testified that he didn’t need all three pages. Thus, he explained, he ripped out the bottom copy and tossed it in to the garbage. He said that he also threw if out because the handwriting of the bottom copy was faded. Mr Ivanov speculated that this unamended BRA must have been picked out of the garbage can by Mr Kiselman.

[49]. Following Mr Ivanov’s narrative, the parties would have signed the BRA agreement before they were finished filling out all its terms and the amended BRA formed. It seems unlikely that after all signatures were executed would they have gone back to identify the buyer(s), the length of the holdover period and added the “for lease” language.

[50]. Mr Kiselman testified that the 3 changes were added some time after he signed the BRA and that he did not consent to these changes. For example, he states that he would never have agreed to such a long holdover period as 90 days, particularly as he was starting to have misgivings at that time with Mr Ivanov’s integrity.

[51]. In the Court’s view, Mr Ivanov’s version of events seems unnecessarily complex and improbable. It is unlikely the filling out of material terms of the BRA would be paused, formally signed, and then filled in later. A signature usually denotes finality as to the terms. In addition, if there were agreed upon additions after signing, one would have expected the initials of the party’s next to those amendments. This shows the reader that the signatory consents to the amendment. There are no fresh initials from Mr Kiselman to the three additions to the document.

[52]. Mr Ivanov, though alive to the claim that he unilaterally added to the BRA after it was signed on November 3, 2025, (first day of trial), did not produce what he claims is the original handwritten version (the top page of the carbon copy package) when the trial continued some six-weeks later.

[53]. I have also considered who benefits most from the amendments. Mr Ivanov does. He doubled the number of buyers which serves to ensure his commission if the property is bought by Mr Kiselman or Viva. He gets a valuable three-month hold over period. Finally, Mr Ivanov in his testimony was of the view that the additional words “for lease” after “closing” meant that he would receive the if a property was sole or leased.

[54]. On a balance of probabilities Mr Kiselman’s version of events is more likely than Mr Ivanov’s. I find that Mr Ivanov made the three changes to the BRA after it was signed by Mr Kiselman and did so without his consent I find that these were material changes, i.e., the identity of the buyer to now include Mr Kiselman personally, going from no overholding period to a 90-day period, and the purported capture of both buying or leasing of property in the exclusivity agreement.

[55]. Accordingly, as there was no meeting of minds with respect to the amended version of the BRA, it will not be considered further in these reasons. Instead, the Court will rely on the unamended carbon paper BRA version. It is the only enforceable BRA. It shall be hereafter referred to as the Hometrade BRA.

4) Mr Kiselman Could Not Unilaterally Invalidate the February 2, 2021, Hometrade BRA

[56]. After the February 2, 2021, signing of the BRA, Mr Ivanov testified that he persuaded Mr Kiselman to also look at purchasing, not just leasing, new office space. In fact, he sent a draft offer on February 9, 2021, but it was not returned.

[57]. In the letter dated February 18, 2021, the cancellation letter, Mr Kiselman states that the BRA signed on February 2, 2025, with Hometrade was ”null and void”, effectively because of a loss in trust due to his not receiving the entire 50% commission on the three transactions from 2017-2018.

[58]. Mr Ivanov testified that he didn’t receive this February 18, 2021, letter until many months later. He argues that Mr Kiselman sent it well after-the-fact to shore up his legal position. Based on my legal finding below that Mr Kiselman could not unilaterally invalidate the Hometrade BNA I need not decide this factual dispute regarding the date the letter arrived.

[59]. The Hometrade BRA itself contained no “termination clause” and has no express terms allowing one party to get out of the agreement before it expires. However, an agreement can be ended by other means.

[60]. It clearly can be done if both parties agree. The Court notes that there is a Form 122, Mutual Release, available from the Ontario Real Estate Association. There is also a Form 301 with the title: “Cancelation of Buyer Representation Agreement”. Form 301 is only effective if the broker also agrees to the cancelation and signs the agreement. As well, Form 301 explicitly states that if the buyer entered into an agreement to purchase property or a lease prior to the expiry and holdover period in the BRA regarding a property that came to his or her attention after the commencement but before the cancelation of the BRA, then the Form 31 Cancelation Agreement is null and void.

[61]. Short of a mutual release, the common law can invalidate a real estate agreement where there is evidence of fraud, duress or misrepresentation such that the party can be said to have signed it by mistake. As this Court explained in Re/max Realty Enterprises Inc. v Zhibareva, 2023 62004at paras 50 (ON SCSM):

The principle of non est factum is a special category of the law of mistake and is extremely narrow in scope. It is a defence which may be available to someone who has been misled into executing a deed or signing a document which is fundamentally different from that which he intended to execute or sign. His mistake must have been as to the essential nature of the transaction, rather than as to its terms; a mistake as to the legal effect of those terms by the signatory or by his legal adviser will not suffice. In most cases in which the defence is raised, the mistake will have been induced by fraud, though this is not an essential or decisive factor. (citing Farrell Estates Ltd v Win-Up Restaurant Ltd, 2010 BCSC 1752at para 82)

[62]. Mr Kiselman explained in his testimony that during the period from February 2, 2021, (the signing of the Hometrade BRA) to February 19 (the signing of the Forest Hill BRA), he ruminated on the fact that Mr Ivanov was not providing his full 50% commission on the three transactions. He concluded that he had been cheated. He did not wish to work with Mr Ivanov anymore. This is reflected in the February 18, 2021, “cancelation letter”.

[63]. Nowhere does Mr Kiselman allege that he was induced into signing the Hometrade BRA through duress, misrepresentation or fraud. He is effectively arguing that because of alleged misrepresentations in three verbal agreements from 2017-2018, he could treat a fresh 2021 agreement as invalid. The causal link is absent. Mr Kiselman had already taken steps to guard against any further misrepresentations by insisting that the 2021 Hometrade BRA be in writing. Indeed, he testified that he had raised with Mr Ivanov his concern about the outstanding commissions from the three transactions prior to executing the Hometrade BRA, and again after execution, as shown in his email exchange on February 13 and 14, 2021. Mr Kiselman knew what he was doing when he signed the Hometrade BRA on February 2, 2021.

[64]. Accordingly, I find that Mr Kiselman could not unilaterally cancel the February 2, 2021, BRA that he entered into with Hometrade.

5) Mr Kiselman Did Not Disclose the Hometrade BRA to Forest Hill

[65]. On February 19, 2021, 871 Ontario, another company allegedly controlled by Mr Kiselman signed a new BRA with Forest Hill. Mr Kiselman affixed his initials next to the “warranty clause” on the Forest Hill BRA that states:

The Buyer hereby warrants that the Buyer is not a party to a representation agreement with any other registered real estate brokerage for the purchase or lease of a real property of the general description indicated above. Buyor's Initial: YK [hereafter the “warranty clause”]

[66]. On this issue, there was the conflicting testimony of Mr Kiselman and Ms Shoikhedbrod. Mr Kiselman testified that he told Ms Shoikhedbrod that he and his other company, Viva, had a BRA with Hometrade. Since 871 Ontario was a different legal person from Viva or Mr Kiselman, the suggestion was that Ms Shoikhedbrod was okay with his initials on the warranty clause. It was, after all. technically, true.

[67]. In contrast, Ms Shoikhedbrod testified that she was not told anything at all about Hometrade or that another BRA was in existence or had also been signed 16 days earlier. If she had been aware she would have proceeded differently, if at all. On this issue I found the testimony of Ms Shoikhedbrod to be credible, concise and consistent with her pleading. She was forthright in admitting that she did not probe more deeply or ask Mr Kiselman if he or any of his companies had an outstanding BRA or take other proactive steps. Instead, she relied on the fact that Mr Kiselman was a sophisticated purchaser who initialed the box next to the warranty clause.

[68]. In contrast, on this issue I found that Mr Kiselman’s testimony was less clear due to the passage of time. He testified that he generally “told Elena”. He also was less than clear as to when he told her, whether it was before or after executing the Forest Hill BRA and whether it included any details of the content. It was also in Mr Kiselman’s self-interest to initial the warranty clause as that allowed him to rapidly purchase the Wynford Drive property without having to obtain a mutual release. It is also in his self-interest to recall “having told” Ms Sholkhedbrid of the Hometrade BNA, and received a green light from her, which could, if found as a fact, support a claim for contribution and indemnification.

[69]. Ms Shoikhedbrod is a sophisticated real estate agent. I have no doubt that if she had heard that another BRA had been signed earlier that month with another broker, notwithstanding Mr Kiselman claiming that he had unilaterally made it invalid, she would have immediately taken steps to either rectify the situation with Hometrade (such as a mutual release) or refuse to provide services to Mr Kiselman. It is simply not credible to believe that she would have taken no steps at all if she had “been told”.

[70]. On the balance of probabilities I find that Mr Kiselman did not tell Ms Shoikhedbrod that Viva had an existing BRA with Hometrade..

III LEGAL ANALYSIS

A. MR KISELMAN’S CLAIMS FOR COMMISSIONS ON THE THREE TRANSACTIONS. RAISED IN SC-23-1888 (PART 1)

[71]. I have found that the agreement regarding real estate commissions on the three transactions were a verbal agreement. I have examined whether these three verbal agreements are enforceable. I have considered three grounds:

a) They were characterized to a government body not as verbal agreements to split commissions, but as a means of payment for advertising services;

b) They are contrary to in writing requirement in the Statute of Frauds;

c) There is no evidence to support the equitable exception to the Statute of Frauds of part performance of the agreement.

1) Not Formally an Agreement to Split Commissions

[72]. First I accept Mr Ivanov’s testimony that the arrangement entered into was one in which Mr Ivanov was paid the real estate commission from the builder and gave a portion of that money to Mr Kiselman to purchase advertising in Mr Kiselman’s ethnic language newspaper. Written receipts for these advertising services were issued and entered into evidence. Mr Ivanov testified that this was the arrangement that Mr Kiselman wanted because it had tax advantages for him with respect to HST.

[73]. If the parties chose to represent their financial arrangement, in writing, as one in which, for Revenue Canada’s purposes, the money in issue was for the purchase of advertising services, then shouldn’t this Court accept that arrangement at face value? If it is good enough for the Canada Revenue Agency to characterize this transaction as the purchase of advertising, rather than the splitting of real estate commissions, then should it not be good enough for this Court?

[74]. I have no doubt and find as a fact that Mr Ivanov and Mr Kiselman regarded the advertising arrangement as a convenient fiction. The amount normally charged for the advertising was a fraction of the amounts actually received through the commission sharing arrangement. Whether it was tax evasion, or tax avoidance, is for another body to decide. In substance, the verbal agreement was to split commissions and to also pay for advertising. Therefore, I have gone forward with my legal analysis on the basis that there was, in substance, a verbal commission sharing agreement.

2) Contrary to the “in writing” and “signature” requirements in the [Statute of Frauds](https://www.canlii.org/en/on/laws/stat/rso-1990-c-s19/latest/rso-1990-c-s19.html)

[75]. Second, as the subject matter of the verbal agreement is at its heart an agreement to split the commissions, then based on the current state of the law in Ontario, such a verbal agreement is not enforceable.

[76]. Mr Ivanov’s representative, Ms Vural, relies on s. 4 of the Statute of Frauds. That section currently provides as follows:

Writing required for certain contracts

4 No action shall be brought to charge any executor or administrator upon any special promise to answer damages out of the executor’s or administrator’s own estate, or to charge any person upon any special promise to answer for the debt, default or miscarriage of any other person, or to charge any person upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them, unless the agreement upon which the action is brought, or some memorandum or note thereof is in writing and signed by the party to be charged therewith or some person thereunto lawfully authorized by the party. [emphasis added]

[77]. Ms Vural relies on the emphasized words in bold to argue that commissions on real estate transactions is a “charge” upon the “sale of lands” . . . “or any interest in or concerning” the sale of lands. Counsel argued, that as the payment of commission is a part of the sale of land, the recipient of the commission has an “interest in or concerning” that sale. This may best be described as the broad interpretation.

[78]. There are, however, two arguments to the contrary.

[79]. First, it can be argued that a commission agreement is not a charge upon a sale of lands. The recipient of the commission receives money, not real property. No title or fee simple is normally obtained by the broker receiving the commission. Rather, a commission is a form of remuneration for providing services that ultimately lead to a real estate transaction. The interest is not in land. It is in compensation. This may be referred to as the narrow interpretation.

[80]. In support of the narrow interpretation is the argument that, the word “interest” is not meant in the colloquial sense, i.e., something that someone is “interested in”). Rather, in this context, interest has the legal meaning, i.e., a right to use the property, such as an easement, mineral rights, a right to occupy the property or exercise control over a part of the land by a leaseholder.

[81]. Two Supreme Court of Canada case support this narrower reading of “interest” and “concern”. In Stuart v. Mott (1894), 1894 91 (SCC), 23 SCR 384 a verbal agreement was made that when Mott sold a gold mine, Stuart would receive one-eighth of the proceeds. It was argued that because this verbal agreement was not in writing it was contrary to the Statute of Frauds of Nova Scotia and hence invalid. Chief Justice Strong disagreed. At page 388 he stated:

Then it was said that the Statute of Frauds was a defence. The answer to this is that the agreement which is now sought to be enforced was not, as in the former case, one conferring an interest in land but exclusively relating to an interest in money; it is true this money is to arise from the sale of land or of a mining interest, but that on authority can, I conceive, make no difference after the land or money interest has been actually sold. It is not sought to enforce any trust or contract to sell the land; that would have been a different case; here the sale has taken place and the only question is as to a share of the price received. [emphasis added]

[82]. Similarly, in the case at bar, the sale of the three properties has already taken place and the question in issue is a share of the money paid for that sale, i.e., the commissions.

[83]. in Harris v. Lindeborg, 1930 28 (SCC), [1931] SCR 235 the agreement in issue was once again to share in the profits of the sale of a mining claim. At page 243 the Court held that “[a]n agreement for the division of the proceeds of the sale of land is not an agreement within the fourth section of the Statute of Frauds”.

[84]. Similarly, it is argued, because a commission payment comes out of the amount paid for the property, it too evidences a division of the proceeds of the sale.

[85]. A more recent decision by the Ontario Superior Court is to the same effect. In Medjed v 1007323 Ontario Inc., [2004] OJ No. 4728 (Ont SC). It was alleged that two parties entered into a verbal agreement to split the proceeds from the sale of an apartment building on a 50/50 basis.

[86]. The Superior Court considered whether the oral agreement was rendered unenforceable by the Statute of Frauds, given that the transaction dealt with real property. The Court answered in the negative. Justice Garton explained at paras 64 and 65:

64 Even if the Statute of Frauds had been pleaded, it would not be applicable in the present case. The Supreme Court of Canada has determined that an agreement for the division of the proceeds of the sale of land is not an agreement within the meaning of the Statute. Such an agreement does not confer an interest in land, but rather an interest in money only: see Harris v. Lindeborg, 1930 28 (SCC), [1931] 1 D.L.R. 945; Kulczycki v. Stupka (1984), 1984 2498 (SK QB), 32 Sask.R. 57 (Q.B.); Dirom v. Perera [2004] A.J. No. 990.

65 In the case at bar, the oral agreement alleged by the plaintiff purported to create an interest in money only. Accordingly, the Statute of Frauds does not apply. [emphasis and double emphasis added]

[87]. A second reason for supporting the narrow interpretation, is based on the legislative history of the Statute of Frauds. The Statute of Frauds, in the past, specifically mentioned commissions. In 1916 what was then section 12 provided:

No action shall be brought to charge any person for the payment of a commission or other remuneration for the sale, purchase, exchange, or Ieasing of real property unless the agreement upon which such action shall be brought shall be in writing and signed by the party to be charged therewith or some person thereunto by him lawfully authorized. R..0. 1927, c. 131, s. 11; 193-, c. 6-, s. 2 [emphasis and double emphasis added]

[88]. Section 12 remained largely unchanged from 1916 to 1946. Section 12 was repealed by the Statute Law Amendments Act, SO 1946 Chap 89, s.40 and was essentially moved to the Real Estate and Business Brokers Act, SO 1946 C 85. Section 39 of that Act provided:

No action shall be brought to charge any person for the payment of a commission or other remuneration for the sale, purchase, exchange or leasing of real estate, (a) unless the agreement upon which the action is to be brought is in writing and signed by the party to be charged therewith or some person thereunto by him lawfully authorized; or (b) unless the broker or his salesman has obtained an offer in writing which is accepted ; or (c) unless the broker having been authorized in writing to list the property, (i) shows the property to the purchaser, or (ii) introduces the purchaser to the vendor for the purpose of discussing the proposed sale, purchase, exchange or leasing. [emphasis added]

[89]. What is significant about this language is that under subclause (c), both items (i) and (ii) are preceded by the requirement that the broker has been authorized “in writing to list the property”. Therefore, there remained an “in writing” requirement for the broker’s agent to collect a commission from the seller of property.

[90]. This wording also remained largely unchanged over the next half century and can be found in the Real Estate and Business Brokers Act RSO 1950 c 332, section 39: RSO 1960,] c 344, section 40; RSO 1970, c 402, section 34: RSO 1980 c 431, section 23; and RSO 1990, c R.4 section 23.

[91]. In 2002 this statute underwent a major overhaul. These legislative changes came into effect in 2006. The RSO 1990 version of the statute was repealed and replaced by the new Real Estate and Business Brokers Act, 2002, S.O. 2002, c. 30, Schedule C. (Now the Trust in Real Estate Services Act, 2002. The 2022 statute, dealing with the conduct of brokers, did not specifically bar any person from bringing an action to enforce a verbal agreement concerning real estate commissions.

[92]. Indeed, it may be argued that the regulations authorized by section 51(1) 18 iv of the 2002 Act, anticipates verbal agreements for commissions. Ontario Regulation 567/05 contemplates that a buyer “representation agreement” can be verbal. Section 1 of that regulation defines a “representation agreement” as follows:

“representation agreement” means a written, oral or implied agreement between a brokerage and a person under which the brokerage and the person agree that the person will receive services from the brokerage and will receive representation from either the brokerage or a designated representative, in respect of a trade in real estate [emphasis added]

[93]. This regulation, in place at the time of the three transactions in this case, also contained a provision that was applicable to brokers regarding remuneration (which includes commissions). Section 23 of the regulation provides:.

(1) Subject to subsection 33 (3) of the Act and subsection (2), a registrant shall not charge or collect any remuneration in respect of a trade in real estate unless,

(a) the entitlement to the remuneration arises under a written agreement that is signed by or on behalf of the person who is required to pay the remuneration; or

(b) the entitlement to the remuneration arises under an agreement that is not referred to in clause (a) and,

(i) the registrant has conveyed an offer in writing that is accepted, or

(ii) the registrant,

(A) shows the property to the buyer, or

(B) introduces the buyer and the seller to one another for the purpose of discussing the proposed acquisition or disposition of an interest in real estate.

[94]. Section 23(1), when compared to section 39 of the 1946 statute set out above, no longer has an “in writing” pre-condition for the exception in section 21(1)(b)(ii)(A) and (B). Nothing prohibited a broker from suing for unpaid commissions agreed to in a verbal contract so long as the realtor could show it has introduced the buyer to the seller or has shown the property to the buyer.

[95]. Normally, when the Legislature repeals a provision that formerly prohibited conduct, that conduct becomes permissible. As stated in Sullivan, Construction of Statutes, 7th edition, §24.04: “At common law, when a repeal takes effect, the repealed legislation ceases to be law and ceases to be binding or to produce legal effects. This means that conduct that was formerly prohibited is now lawful.” [emphasis added]. See also: Sharbern Holding Inc. v. Vancouver Airport Centre Ltd., 2011 SCC 23at paras. 116, 117, 119.

[96]. Mr Ivanov, as a registrant, was entitled to receive from the seller a commission from the sale of the properties in the three transactions. Mr Kiselman, however, was not a registrant. He could not claim an entitlement to commissions, or remuneration, from the seller, under the regulation. See similar analysis in Daly v. Webster, 2013 NBQB 130 at paras 10 and 11. Mr Kiselman is not purporting to claim his split of the commission from the seller but from his own real estate agent on the basis of the separate verbal agreement that they entered into .

[97]. Based on this above, my initial inclination could be to adopt the narrower interpretation and find that the verbal agreement between Mr Ivanov and Mr Kiselman to split 50/50 the real estate commission on the three transactions was not barred by the Statute of Frauds. Specifically, if I were to find that there is no difference between the splitting of the proceeds of the sale of a property and the splitting of the commission received from the seller of the property, then I could follow the Supreme Court of Canada’s decisions in Stuart v. Mott and Harris v. Lindeborg, and the Superior Court’s decision in Medjed v. 1007323 Ontario Inc., and conclude that the interest here is about money, not land.

[98]. However, I cannot follow this inclination for a narrow interpretation for three main reasons.

[99]. First, the 2002 legislative amendments provide a carveout or exception for the hard-working registrant only. A broker or realtor can enforce a verbal agreement concerning commissions where that realtor made the effort to show the property or introduce the buyer to the seller. However, this carveout does not apply to non-registrants, such as Mr Kiselman and Viva. Non-registrants are still subject to the Statute of Frauds, which applies to “any person”. The 2002 amendments authorize a specific carveout to a general prohibition. As Professor Sullivan wrote in The Construction of Statutes, 7th Ed, § 11.02: “The fact that one provision is more general than another is not in itself evidence that the specific provision was intended to exclude the more general”.

[100]. Second, there is an arguable difference between an agreement to split the proceeds of sale and an agreement to split commissions. The former agreement is between two sellers and it only concretizes after the point of sale of a specific property. At that point in time there is no longer an interest in the “contract for sale of lands”. In contrast, an agreement to split commissions creates an inchoate right that exists and has value prior to the sale of any specific property. Indeed, a real estate agent or broker may have entered into a BRA by which he or she is entitled to receive a commission regardless of whether they found or showed the purchased property, that BRA can apply to a wide geographic area, and can operate for a long period. From the very outset of that agreement there is a continuing and ongoing “interest in the contract or sale of lands”.

[101]. Third, I am bound by the doctrine of stare decisis to follow the decisions of a higher court and I should follow the decisions of a court of coordinate jurisdiction unless there are strong reasons to the contrary. There are three decisions of a higher court that can be considered.

[102]. In 1005139 Ontario Ltd. v. Abraham, 2012 ONSC 3133 [Abraham] the Defendant did not have a written agreement that entitled him to receive a commission following the sale of property that he facilitated. This case occurred after the 2002 amendments were proclaimed into force in 2006. At para 44 the Court stated:

44There was no evidence of any oral agreement between Mr. Abrahams and Mr. Khouryati regarding a commission. Even if there was the Code of Ethics and the Statute of Frauds, R.S.O. 1990, Chapter S.19, section 4, would preclude Mr. Abraham from relying on it. [emphasis added]

[103]. Similarly, in Arnone v Amelio, 2013 ONSC 6536 at para 14 (Div. Ct.), [Arnone] an appeal from the Small Claims Court, the Divisional Court dealt with an oral agreement to pay the Plaintiff $35,000 following the sale of a home. On appeal the Divisional Court stated that the Statute of Frauds may make an oral agreement to pay money arising out of the sale of a house unenforceable. See also: Kopyshenski v. Kopyshenski Estate, [1989] S.J. No. 618 (QB).

[104]. This Court also finds, in a recent appellate decision, some indirect support for the argument that an agreement on splitting the commission is, in fact, an agreement concerning an “interest” in a contract for the sale of land, and not just an interest in money. In 2730453 Ontario Inc. v. 2380673 Ontario Inc., 2025 ONCA 112 at para 25 one example of conduct that is “unequivocally referable to the property in dispute” was identified by the trial judge as “[n]egotiating and preparing the commission agreement among the [respondent] and the brokers”. This also supports the broad interpretation.

[105]. I note that these three cases have some weaknesses The comments in Abraham are obiter dicta (i.e., it was unnecessary to opine on whether an oral agreement is valid as the Court found no evidence of even an oral agreement). The holding in Arnone merely states that an oral promise may be unenforceable. Finally, the Court of Appeal’s holding in 273053 is indirect and may not be fully analogous.

[106]. I also note, in passing, Mr Kelly’s reliance on Homelife Maple Realty v Singh, 2021 ONSC 4743 (Div Ct, on appeal from the Small Claims Court) [Homelife]. The trial and appellate judges found that the absence of a signed BRA was not fatal to a claim for commissions. I note, however, that neither the trial or appellate judges referred to or even considered the Statute of Frauds and it does not appear to have been pled. It also appears that there was sufficient correspondence back and forth between the parties, including a draft BRA with a commission clause as well as a series of offers and counteroffers. It is likely that these documents would satisfy the “some memorandum or note in writing” language in s. 4 of the Statute of Frauds. See: Leoppky, supra. As such, Homelife does not constitute a precedent for the principle that the Statute of Frauds does not apply to claims for commission.

[107]. At the end of the day, I hold that I am bound by paragraph 44 of Abraham..

[108]. In Canada’s constitutional framework the Superior Court of Justice is a “superior court” whose justices are federally appointed under section 96 of the Constitution Act, 1867 and who enjoy inherent jurisdiction. A Deputy Judge of the Small Claims Court is not a federally appointed Justice of the Superior Court but is appointed under provincial legislation. He or she has the status of a statutory or inferior count in the sense that the Superior Court of Justice, through the prerogative writs, can supervise and superintend over the Small Claims Court. As well, a Justice of the Superior Court sitting as a Judge of the Divisional Court hears appeals from the Small Claims Court.

[109]. I am aware of cases in this Court which hold or suggest that only appellate decisions from the Divisional Court and above are binding. They have held that the Small Claims Court is not bound by a first instance decision of the Superior Court of Justice. As this Court noted in Sumner v Crease, 2012 98397 (ON SCSM) at para 21:

There are conflicting views on whether first instance decisions of the Superior Court of Justice are binding on lowers courts. One view is such decisions do not have binding effect: Masse v. Dietrich, 1971 554 (ON SC), [1971] 3 O.R. 359 (Co. Ct.). On this view, the decisions of the Superior Court of Justice are binding on lower courts only when they are the product of its appellate jurisdiction: R. v. Gagne, [1988] O.J. No. 2518 (Prov. Div.). This approach was recently said to be supported by the weight of the authorities: R. v. L.(D.) (No. 2), 2005 ONCJ 344, [2005] O.J. No. 3183 (O.C.J.), at para. 15-20. However the correctness of this approach has been questioned, in the name of greater certainty and predictability: Kingscott v. Megaritis, 1972 473 (ON SC), [1972] 3 O.R. 37 (H.C.J.). No doubt unanimity on this question continues to evade Ontario courts in 2012.

[110]. I need not decide whether this Court is not bound by Abraham on the basis that it was not a decision made on appeal. This is because, even if the Abraham court was, like this court, a court of first instance, the doctrine of horizontal stare decisis still binds this court to follow Abraham, subject to narrow exceptions which are not met in this instance.

[111]. In R v Sullivan 2022 SCC 19 the Supreme Court of Canada set out the test.

The Court held that judicial comity as well as rule of law principles supporting stare decisis mean that prior decisions of a court of coordinate jurisdiction except in three narrow circumstances: the rationale of the earlier decision has been undermined by subsequent appellate decisions; some binding authority in case law or some relevant statute was not considered; or the earlier decision was not fully considered, for example if it was taken in exigent circumstances.

[112]. While, as shown above, there are reasons to the contrary that suggest the Abraham decision may be wrongly decided, I am not satisfied that there are strong enough reasons to the conclude that the Abraham judgement is wrong.

[113]. Considering that one of the historical and current purposes of this statute is to prevent fraud in transactions involving real property, it is not unreasonable to adopt a broad interpretation. The words in section 4 are expansive: “any person upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them”. These words capture the “interest or concern” that a prospective recipient of a real estate commission would have in the contract for the sale of lands. This is remedial, consumer protection, legislation. It should be interpreted in a manner consistent with section 64(1) of the Legislation Act, 2006, c. 21, Sched. F.

64 (1) An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.

[114]. Indeed, the wisdom in including a requirement for a written agreement o the splitting of commissions is evident in the case at bar. Mr Ivanov viewed the split as only applying to the first instalment of the commission received by the builder whereas Mr Kiselman’s position was that all of the commission was to be split. This difference would be resolved if there were clear, written, directions in an agreement.

[115]. In the final analysis, the decision in Abraham has not been shown to have been undermined by subsequent appellate decision. I have no basis to find that a binding authority was not considered or that the decision was made per incuriam or in indigent circumstances.

[116]. As I have found that I am bound by the Abraham decision and as I have found that there is no written agreement respecting the three transactions, I hold that Mr Kiselman’s claim for the verbal three transactions would be, prima facie, barred by s. 4 of the Statute of Frauds.

3) The Part Performance Exception

[117]. There is one last exception that must be considered. A party may be estopped from relying on the Statute of Frauds where one of the parties to the verbal agreement has partially performed that verbal contract. The other party, having benefited from the part performance is effectively barred from raising the “in writing” requirement. They have, by their conduct, acquiesced to the verbal agreement by accepting the part performance.

[118]. In this respect the part performance exception is similar to the equitable doctrine of promissory estoppel. One party cannot, after promising to waive a specific requirement subsequently rely on strict adherence to that requirement, where the other party has already relied on that promise to their detriment. It is a shield, not a sword. It does not create a cause of action itself but immunizes a party from the other side relying on strict language in a contract or statute.

[119]. The part performance exception was recently explained by the Court of Appeal in

2730453 Ontario Inc. v. 2380673 Ontario Inc., 2025 ONCA 112. The Court confirmed that the part performance exception has two components, an “evidentiary” aspect and a “detrimental reliance” aspect. At para 28 the Court stated:

Conduct that satisfies the evidentiary aspect of the doctrine – because it is unequivocally referable to the property in dispute and shows some dealing with the land – is insufficient unless the detrimental reliance aspect of the doctrine is also satisfied.

[120]. Some examples of the types of conduct that would constitute part performance were described at para 36 as including:

Parties to an agreement which contemplates payment of a purchase price in exchange for transfer of title on agreed terms could therefore be expected, in the process of closing such a transaction, to identify and resolve any title concerns; to prepare closing documents and respond to requirements of the other party as to those documents; to deal with and assist in settling the form of closing documentation; and to be involved in making closing, payment and title transfer arrangements. Those matters are not separate from or merely preparatory to the performance of obligations. They are integrally connected to what is required to close the transaction, which is the circumstance under which payment and title transfer will occur.

[121]. In the case at bar there is an absence of evidence of Mr Kiselman’s involvement in any of these type of part performance steps. Indeed, at the end of his testimony, the Court had the following exchange with Mr Kiselman:

THE COURT: Mr Kiselman, I have one question. You testify that you were supposed to get 50% of the commission, which would have been 2% of the sale price. What work did you do yourself to bring about the sale? You’re not a real estate agent. You’re not a real estate broker. They’re the ones who usually get the commission. But what did you do that you think entitles you to half the commission?

MR KISELMAN: I explained this. This is the way real estate brokers and agents entice client to buy preconstruction units with their help that they could get this commission very easily. He just brought me to the property to the project that was found, then I came signed, left check, that’s it, no other work. So. this was completely the initiative of Mr ivanoff to impress me to work with him. [emphasis added]

[122]. There is no basis in the evidence to find that the part performance exception is met in this case.

[123]. Finally, I acknowledge that Mr Kelly also relied on caselaw that permitted a separate claim in equity under the doctrine of unjust enrichment. In none of these cases did this equitable doctrine constitute an exemption to the in-writing and signature requirements in the Statute of Frauds. The equitable exception that does constitute such an exemption is usually the “subsequent step” analysis considered above. Unjust enrichment was considered in Deglman v Guarantee Trust Co., 1954 2 (SCC), [1954] SCR 725 where a nephew had taken steps to improve the property because his aunt had undertaken to leave him the house in her will. There is no suggestion in the case at bar that Mr Keselman did anything to enhance the value of the property that could ground a quantum meruit claim. Even more importantly, no claim for unjust enrichment or quantum meruit was pled. It was not mentioned in Mr Kiselman and Viva’s Claim in SC-21-1884 or in their Defence in SC-23-1804. The opposing parties came prepared to argue the case on the basis of statute and contract and it would be unfair to allow an entirely new basis for the Claim to be raised for the first time in closing submissions. The principle that a party should be bound by their pleadings also operates in the Small Claims Court. See: Wong v Tang, 2025 93642 at para 391 (ON SCSM) citing CR. v AH, 2024 ONSC 1960 at para 155; Royal Bank of Canada v Korman, 2010 ONCA 63 at para 24.

[124]. Accordingly, the portion of Mr Kiselman and Viva’s Claim in SC-23-00001888 for their alleged share of the commissions on the three transactions is unenforceable and is hereby dismissed.

B. Mr Ivanov and Hometrade’s Claim for their split of the commission on the purchase of the office units on Wynford Drive (SC-23-1804)

[125]. Mr Ivanov and Hometrade argues that they are entitled to the full 50% of the commission from the purchase of the office spaces at 18 Wynford Drive. For this transaction there was a written BRA. dated February 2, 2021, spelling out the commission sharing agreement. Thus, the Statute of Frauds does not create a barrier. It is to be recalled that Mr Ivanov and Hometrade received $12,712.50 when it settled its arbitration at the Toronto Real Estate Board. This Claim is for the balance.

[126]. This Claim fails on three main grounds.

[127]. First, the action is barred because of the Full and Final Release entered into between Hometrade and Forest Hill Realty at the arbitration. The relevant parts of this Release are:

FULL & FINAL RELEASE WHEREAS Andrey Ivanov ("Ivanov") and Hometrade Realty Inc. ("Hometrade") (collectively, the "Applicants"), commenced an arbitration against Forest Hill Real Estate Inc. ("FHRE") and Elena Shoikhedbrod ("Shoikhedbrod"*) (collectively, the "Respondents") for the payment of commission resulting from the sale of a property at 18 Wynford Drive, Units 104-105 in Toronto (the "Property"), under Arbitration No. 21/028 (the "Commission Claim");

AND WHEREAS the Applicants and Respondents (also referred to herein as the "Parties") have settled the dispute over the Commission Claim at the hearing of the arbitration, whereby the Applicants will receive from the Respondents the amount of $11,250 plus HST on or before November 2, 2021 (the "Settlement") and whereby the Applicants will provide the Respondents with this release on or before November 2, 2021;

NOW IN CONSIDERATION OF the Settlement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, ANDREY IVANOV and HOMETRADE REALTY INC ., hereinafter referred to as the "Releasors" (which term includes their servants, agents, employees, assigns, successors and administrators, officers, directors, associated and related companies) do hereby remise, release and forever discharge FOREST HILL REAL ESTATE INC. and ELENA SHOIKHEDBROD, hereinafter referred to as the "Releasees" (which term includes their servants, agents, employees, assigns, successors, administrators, officers, directors, associated and related companies) from any and all claims, actions, demands, manner of actions, causes of actions, suits, debts, duties, accounts, bonds, warranties, claims over, indemnities, contracts, losses, injuries, undertakings, covenants and liabilities of whatever nature and kind whether actual, pending or potential, and whether in equity or at law, which against the Releasees, the Releasors now have or may hereafter, can or shall have for or by reason of any cause, matter or thing whatsoever existing up to the present time, including any claims arising out of, connected with or in any way related to, those matters and issues set out in and relating to the Commission Claim.

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, it is understood and agreed that this Full and Final Release is intended to cover, and does cover, not only all known injuries, losses und damages, but also injuries, losses and damages not now known or anticipated but which may later develop or be discovered, including all the effects and consequences thereof, with respect to the matters and issues at issue in the Commission Claim.

AND FOR THE SAID CONSIDERATION the Releasors covenant and agree not to make claim or to commence or take proceedings against any other person, firm, partnership, business or corporation who or which might claim contribution from, or to be indemnified by, the Releasees, under the provisions of any statute or otherwise in respect of those matters to which this Release applies.

AND THE RELEASORS AGREE that should they hereafter make any claim or demand or commence or threaten to commence any action, claim, or proceeding or make any complaint against the Releasees for or by reason of any cause, matter, or thing, this document may be raised as an estoppel and complete bar to any such claim, demand, action, proceeding, or complaint. [emphasis and double emphasis added]

[128]. These paragraphs, and in particular the second last paragraph, is clear and unambiguous. Mr Ivanov and Hometrade received from Forest Hill and Elena Shoikhedbrod, $12,712.50 ($11,250 plus HST). In exchange, Mr Ivanov and Hometrade promised they would not sue “persons or corporation” that might seek contribution or indemnity from Forest Hill and Elena Shoikhedbrod. Mr Kiselman and Viva are exactly such a “person or corporation”. They not only “might”, they in fact did, bring a Defendant’s Claim (SC-23-1804-D1) for contribution and indemnity from Forest Hill and Ms Shoikhedbrod.

[129]. Having signed a Full and Final Release in which Mr Ivanov and Hometrade promised not to sue, and in fact agreed that they would be estopped from doing so, it would be an abuse of process to allow SC-23-1804 to proceed. See: Garrett v Oldfield, 2014 ONSC 508 at paras 21-22 ; Toronto City v. C.U.P.E.), Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 at para. 3.

[130]. On this basis alone, Claim SC-23-1804 is dismissed.

[131]. There is a second reason. The second paragraph of the Full and Final Release advises that Mr Ivanov and Hometrade “have settled the dispute over the Commission claim”. The outcome of that settlement was the payment to them of $12,712.50. Reading the Full and Final Release as a whole I find that Mr Ivanov and Hometrade were accepting this settlement amount as final amount due to them for all of the commission arising out of the sale of 18 Wynford Drive. Indeed, the fourth paragraph confirms that the settlement covers “all known injuries, losses and damages”. Mr Kiselman’s involvement was “known” to all the parties. In short, the outcome of this settlement also acts as a bar to Mr Ivanov and Hometrade’s Claim in this Court. On this basis, as well, I would dismiss Mr Ivanov and Hometrade’s claim for a portion of the “outstanding” commissions.

[132]. Third, Mr Ivanson and Hometrade rely on the commission clause in the Hometrade BRA of February 2, 2021. I have made a finding of fact that the valid BRA signed on February 2, 2021, is the unamended carbon copy version. The Buyer in the carbon copy version is listed only as Viva. But Viva did not buy the Wynford Drive property. 871 Ontario did. Yet, 871 Ontario is not named as a Defendant in SC-23-1804, or indeed in any of the three cases before me. It has an ostensible claim to a share of the commissions arising out of the sale of 18 Wynford Drive based on the commission clause in the Forest Hill BRA. In that regard, 871 Ontario is also “a person or corporation” that might claim “contribution from, or to be indemnified by, Forest Hill Real Estate Inc. and Elena Shoikhedbrod as described in the Full and Final Release. Thus, even if it were properly named as a defendant the action against 871 Ontario would also be dismissed as an abuse of process.

[133]. Even were I to pierce the corporate veil and were to find that both Viva and 871 Ontario were alter egos or mere puppets of Mr Kiselman and even were I to find that there was a fraudulent misrepresentation on the Forest Hill BRA, Hometrade and Ivanov would still be barred from bringing this action by the express terms and conditions of the Full and Final Release.

[134]. For all of these reasons Claim SC-23-1804 is dismissed.

C. The Defendants’ Claim Against Forest Hill and Ms Elena Shoikhedbrod for Contribution and Indemnity (SC-23-1804-D1)

[135]. It follows that the companion Defendant’s Claim (SC-23-1804-D1) against Forest Hill and Ms Shoikhedbrod must also be dismissed. The Defendant’s Claim against them was only for contribution and indemnity. In other words, it would only be engaged if Mr Ivanov and Hometrade enjoyed success and a damage award in their main Claim. They did not.

[136]. In any event, had I found in favour of Hometrade in SC-23-1804, I would not have ordered contribution and indemnification from Forest Hill or its agent in SC-23-1804-D1. As I have found above in the findings of fact part of these reasons, I believed Ms Shoikhedbrod when she testified that Mr Kiselman was not forthcoming regarding the February 2, 2021, Hometrade BRA. I believed her when she says she relied on his “no” answer when reviewing the Forest Hill BRA. At all times her conduct was diligent, thorough and above all professional. She acted in accord with the highest standards of her profession. There is no factual basis for a claim of contribution and indemnity against her or her principal.

[137]. Mr Kiselman and Solar’s Defendants’ Claim seeking contribution and indemnity from Forest Hil and Ms Shoikhedbrod, (SC-23-1804-D1) is dismissed.

[138]. This Claim is only against Mr Ivanov and Hometrade. Mr Kiselman and Viva have not made a direct claim against Forest Hill and Ms Shoikhedbrod. Their Defendants’ Claim against them is only brought for contribution and indemnity, which is not triggered in this case. Of the total of commission monies paid following the sale of 28 Wynford Drive, the evidence indicated that the settlement amount of $12,712.50 went to Mr Ivanov and Hometrade and the balance is with Ms Shoikhedbrod.

[139]. There are two main flaws with Mr Kiselman’s and Viva’s claim for a share of these commissions.

[140]. First, Mr Kiselman cannot rely on the commission clause in the February 2, 2021, Hometrade BRA. This is because he was not a party to that BRA. On the carbon copy version that was extant, Viva is the only recognized Buyer on that document. It was Viva that was entitled to split commissions under the Hometrade BRA if it purchased a property during the coverage period and the 90-day holdover period. But Viva never bought a property during this period.

[141]. Viva was the sole Buyer listed on the Hometrade BRA. When Mr Kiselman wrote the cancelation letter dated February 18, 2021, he did so on behalf of and as Director of Viva. In that letter Viva repudiated the February 2, 2021, BRA. It does not lie in Viva’s mouth to now base its claim for a split of commission on that repudiated contract. Having treated the Hometrade BRA as null and void Viva is estopped from now arguing that it is valid and operational for the purpose of splitting the commissions on the purchase of 18 Wynford Drive. Viva cannot now reverse that repudiation simply because it is now advantageous to do so.

[142]. Nor can Mr Kiselman rely on the commission clause in the February 19, 2021, Forest Hill BRA. Mr Kiselman and Viva are not parties to that BRA. 871 Ontario is the only Buyer listed and the only party that can be said to have been denied its share of the commission from the sale of 18 Wynford Drive. But, as noted, 871 Ontario is not a party to any of these proceedings, it has not sued or been sued by anyone and as such it is not entitled to damages or an equitable remedy.

[143]. The second flaw is that Mr Kiselman cannot get around the fact that he cannot pierce the veil of his own companies to argue that he is, in fact, personally responsible for the conduct of these corporations and personally entitled to the remuneration earned by these corporations..

[144]. The Supreme Court of Canada has protected the principle of corporate separateness and created a high hurdle for imposing personal liability: Sun Indalex Finance, LLC v. United Steelworkers, 2013 SCC 6 at para. 238; Continental Bank Leasing Corp. v. Canada, 1998 794 (SCC), [1998] 2 SCR 298 at paras. 108-112.

[145]. It is not enough to simply point out that Mr Kiselman is the sole director of both Viva and 871 Ontario. Nor is it enough to show that one person has all or a majority of the voting shares. If piercing the corporate veil only requires that a person has the ability to control the company then personal liability would be widespread and the benefits of incorporation largely illusory. That is why there must also be a showing that the controlling mind is using the corporation as a shield for fraudulent or improper conduct. See: Kearns v. Nickel, 2025 ONSC 6742 at paras 89 to 92; Yaiguaje v Chevron Corporation, 2018 ONCA 472 at paras 65-66; Shoppers Drug Mart Inc. v 6470360 Canada Inc., 2014 ONCA 85 at para 43; 642947 Ontario Ltd. v Fleischer (2001), 2001 8623 (ON CA), 56 OR (3d) 417 at para 68; Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co (1996), 1996 7979 (ON CTGD), 28 OR (3d) 423 at 433-34 (Gen Div), aff'd [1997] O.J. No. 3754 (CA).

[146]. In the recent case of Kearns v. Nickel, 2025 ONSC 6742 at paras 89 to 92 the Court emphasized that piercing the corporate veil is an equitable exception to the rule that directors are not personally liable for the acts of their corporations. The veil is lifted where the company is, inter alia, completely dominated and controlled by the individual and is being used as a shield from fraudulent or improper conduct or conduct that is “akin to fraud”).

[147]. Mr Kiselman is in a “Catch 22” situation. On the one hand he seeks to stay behind the corporate shield of 871 Ontario to defend against claims against him personally. Yet he is also seeking to be allowed to drop that corporate shield and claim personal entitlement to the commissions in his own name. He cannot have it both ways.

[148]. Paradoxically, in order to have the corporate shield lifted he would have to concede impropriety. He would have to disown his testimony that he had a proper purpose in using Ontario to purchase 18 Wynford Drive (i.e., that 871 Ontario had the funds available to make the purchase).

[149]. Instead, Mr Kiselman would have to admit to an improper purpose, i.e, that he was operating out of ill will toward Mr Ivanov and Hometrade because he believed he was being cheated out of the commission funds for the earlier three verbal transactions. In short, that he used 871 Ontario as the Buyer so he could represent that this Buyer had no outstanding BRAs with any other broker and deny Hometrade its commission.

[150]. However, by making such a concession of behaviour akin to fraud or material misrepresentation to remove his own corporate shield, he would become disentitled to damages. Where one party makes a fraudulent or material misrepresentation in an agreement the other party is entitled to rescind the agreement and in doing so deprive the offending party of damages. See: Canadian Imperial Bank of Commerce, [1983] BCJ No, 2653 at para 19 (CA); i Trade Finance Inc. v. Bank of Montreal, 2011 SCC 26 at para. 45.

[151]. This means that it is not necessary to decide whether Mr Kiselman’s conduct was akin to fraud or material misrepresentation. If it was not, he is not a party to any BRA that would entitle him to commission funds. If it was then he is disentitled to claim damages by that improper behaviour. He would also be denied any equitable remedies. His improper conduct means he would not come before the Court with clean hands.

[152]. If it were necessary to decide whether Mr Kiselman’s behaviour was akin to fraud or material misrepresentation, I would be required to decide on the basis of the limited and incomplete record before me.

[153]. I found the evidence on fraud, misrepresentation, improper purpose, to be wanting. Mr Kiselman was asked only about the corporate structure of Viva, not 871 Ontario. With respect to the former the only question was ambiguous: “Are you the only shareholder or are you on the corporate records as the director”. His “yes” answer could have been an affirmation that he was the sole shareholder, director, or both.

[154]. The Corporate Profile Reports for the two companies only show Mr Kiselman’s name and address as the sole director. Mr Kiselman was not subject to a vigorous cross-examination. No evidence was tendered dealing with the history or types of investments or activities that the two corporations engage in or whether they attracted different groups of investors or employees or contracts. There was no evidence, challenging Mr Kiselman’s assertion that 871 Ontario was chosen as the Buyer because it had more funds available to buy the property. Nor did either side make submissions on Re/Max Realtron Realty Inc. v. 2458313 Ontario Inc., 2019 ONSC 2282, a case very similar to the one at bar, and that shows the type of evidence that should be tendered to pierce the veil. See, in particular, subsequent judgments at: 2020 ONSC 570 (and affirmed on appeal at 2021 ONCA 715).

[155]. Considering the Small Claims Court’s mandate to “secure the just, most expeditious and least expensive determination of every proceeding” (Rule1.03), I would find that, despite the sorry state of the record and based on the extant record, Mr Kiselman on behalf of Viva was motivated by an improper purpose. On a balance of probabilities, a material misrepresentation occurred here.

[156]. This is clear from the chronology. Mr Kiselman dated the cancelation letter February 18,

Ivanov v. Kiselman, 2026 ONSC 44278

Case Summary

JUDGMENT

I. INTRODUCTION

II. BACKGROUND AND CHRONOLOGY

A. FINDINGS OF FACT ON DISCRETE ISSUES

1) A 50/50 Split of the Entire Commission Was Verbally Agreed to for the “Three Transactions”

2) The February Correspondence did not Change the Verbal Agreements into Written Agreements

3) The Court Should Rely on the Unamended February 2, 2021, BRA with Hometrade

4) Mr Kiselman Could Not Unilaterally Invalidate the February 2, 2021, Hometrade BRA

5) Mr Kiselman Did Not Disclose the Hometrade BRA to Forest Hill

III LEGAL ANALYSIS

A. MR KISELMAN’S CLAIMS FOR COMMISSIONS ON THE THREE TRANSACTIONS. RAISED IN SC-23-1888 (PART 1)

1) Not Formally an Agreement to Split Commissions

2) Contrary to the “in writing” and “signature” requirements in the [Statute of Frauds](https://www.canlii.org/en/on/laws/stat/rso-1990-c-s19/latest/rso-1990-c-s19.html)

3) The Part Performance Exception

B. Mr Ivanov and Hometrade’s Claim for their split of the commission on the purchase of the office units on Wynford Drive (SC-23-1804)

C. The Defendants’ Claim Against Forest Hill and Ms Elena Shoikhedbrod for Contribution and Indemnity (SC-23-1804-D1)