Oceanview v. Hiltz et al Date:, 2014 BCPC 322

Citation: Oceanview v. Hiltz et al Date: 20140108 2014 BCPC 0322 File No: 11-2750 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: OCEANVIEW REALTY LTD. CLAIMANT AND: TIMOTHY CLEVE HILTZ and MARK WILLIAM HILTZ DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE CHALLENGER Appearing in person: J. Flemming Appearing on his own behalf: T. Hiltz Appearing on his own behalf: M.

Hiltz Date of Hearing: January 8, 2014 Date of Judgment: January 8, 2014 [ 1 ] THE COURT: The claimant, Oceanview Realty Ltd., asks the court to award damages for real estate commission they say is owed to it by the defendants. The defendants were the sellers of the subject property and were represented by a real estate agent, Mr. Russ Qureshi.

[ 2 ] The buyer's agent was Ms. Kaizer and Oceanview is her broker. The buyer was Mr. Zverina. [ 3 ] A Real Estate Board of Greater Vancouver multiple listing agreement between Mr. Qureshi's broker, Remax Top 20, and the defendants was in effect from May 5, 2009, to April 30, 2010. Remax Top 20 declined to pursue the payment of commission because Mr. Qureshi and Mr. Tim Hiltz had an ongoing business relationship, and Mr. Qureshi had agreed to waive his commission.

Thus, the agreement was assigned to Oceanview to allow them to pursue this claim. [ 4 ] This matter arises or turns on Clause 5 of that agreement which states: LISTING BROKERAGE'S REMUNERATION: The Seller agrees: A. To pay to the Listing Brokerage a gross commission of 7 percent on the first 100,000 and 2.5 percent on the remainder of the sale price of the Property, plus applicable Goods and Services Tax and any other applicable tax in respect of the commission (commission + tax = remuneration) if: (

i) a legally enforceable contract of sale between the Seller and a Buyer is entered into during the term of this Contract; or (ii) a legally enforceable contract of sale between the Seller and a Buyer who is introduced to the Property or to the Seller, by the Listing Brokerage, a Cooperating Brokerage or any other person including the Seller during the term of this Contract is entered into: (

a) within sixty (60) days after the expiration of the term of this Contract; or (

b) any time after the period described in (

a) where the efforts of the Listing Brokerage or the Cooperating Brokerage were an effective cause; provided, however, that no such commission is payable if the Property is listed with another licensed brokerage after the expiration of the term of this Contract and sold during the term of that listing contract; or (iii) an offer to purchase is obtained from a prospective buyer during the term of this Contract who is ready, willing and able to pay the Listing Price and agrees to the other terms of this Contract, even if the Seller refuses to sign the offer to purchase; B.

The remuneration due to the Listing Brokerage shall be payable on the earlier of the date the sale is completed, or the completion date, or where no contract of sale has been entered into seven (7) days after written demand by the Listing Brokerage; and C. That to assist in obtaining a buyer for the Property, the Listing Brokerage will offer to Cooperating Brokerages a portion of the Listing Brokerage's commission in the amount of 3.255 percent on the first 100,000 and 1.1625 percent on the remainder . . . [ 5 ] The property was sold to Mr. Zverina on June 22, 2010. Mr. Zverina had been a client of Ms.

Kaizer's up to May 10, 2010. The claimant says that the efforts of Ms. Kaizer were "an effective cause of the sale". The defendants say, in addition to other concerns, she was not an effective cause of the sale. [ 6 ] Ms. Kaizer negotiated an offer to purchase on behalf of Mr. Zverina dated March 15, 2010. The seller signed that offer on March 16th. The offer was subject to the purchaser obtaining financing by March 31st. The evidence is clear that up to the time the offer to purchase expired on March 31st, that Ms. Kaizer was actively involved with the buyer and was performing the duties required of an agent.

The buyer, through Ms. Kaizer, asked for an extension of the offer to purchase, which was refused by the sellers. [ 7 ] At that time, the buyer was unable to secure financing, but was close to doing so. He had been referred to the mortgage broker he was dealing with by Ms. Kaizer. Ms. Kaizer and the mortgage broker were in contact, with a view to securing financing for the buyer. [ 8 ] As a result of the defendants losing a tenant on the property due to what was anticipated to be a sale of the property, and due to the buyer's strong interest in purchasing the property, Ms. Kaizer put Mr.

Zverina in direct contact with the sellers to make arrangements to rent or lease the property pending financing. [ 9 ] The relationship between Ms. Kaizer and Mr. Zverina, and efforts to secure financing, continued until May 10th when Mr. Zverina contacted Ms. Kaizer and discharged her as his agent. Up to that time, Mr. Zverina had indicated that he wished Ms. Kaizer to continue to act as his agent. The email sent by Mr. Zverina makes clear that Mr. Tim Hiltz interfered with the relationship between Ms. Kaizer and Mr. Zverina by disparaging her competence. [ 10 ] On May 21st, Mr.

Zverina executed a disclosure of interest in trade, listing Mr. Tim Hiltz as the agent who was selling his own

property. A contract of sale and purchase dated June 22, 2010, between Mr. Hiltz's brokerage and Mr. Zverina is identical in its materialterms to that negotiated by Ms. Kaizer. [11] The defendants say that they should not have to pay the commission for the following reasons: - there was a lack of professional courtesy between the brokerages and himself as the agent, himself being Tim Hiltz; - the assignment of the listing agreement is somehow invalid or illegal; - as the sellers' agent waived his commission, there is no commission payable to the buyer's agent; - in Mr. Tim Hiltz' opinion, Ms.

Kaizer's conduct was not highly competent and somehow failed to meet the ethical standards of theirprofession. [12] None of these assertions is made out in the evidence, and as far as I can understand the position of the defendants, none has anybasis whatsoever in law. [13] I find to the contrary as the evidence makes abundantly clear that it was the defendant Mr. Tim Hiltz who acted unethically anddishonestly. As one example, Mr. Tim Hiltz, who conducted the trial for the defendants, repeatedly asserted that Ms.

Kaizer wasincompetent for not knowing about a Department of Transport easement that does not appear on title. However, this easement waswithin the knowledge of the defendants, and they not only failed to disclose this on the property disclosure statement, but assertedpositively that they were unaware of any registered easements. [14] This was, and continues to be, an egregious and utterly unfounded attempt by the defendants to damage the professionalreputation of Ms. Kaizer. [15] One of the grounds raised by Mr. Zverina in discharging Ms.

Kaizer was, in fact, that she had failed to advise him of thisunregistered easement. [16] The law regarding the issue before the court is clear and the court provided the following authorities to the defendants on anearlier date. In Re/Max v. Friesen, 2002 BCPC 229, my brother Judge Brecknell was dealing with a similar set of circumstances and anidentical term in a listing agreement.

He summarized the law commencing at paragraph 52: The Contract: [52] The parties agree that the Claimant's right to remuneration, if any, is based on the Contract. [53] The specific contract wording in this case, combined with the peculiar facts that each presents, reduces the comparison to othercases to helpful but non-binding dissertations. In Nicholson v. Debuse (AB CA), [1927] 3 W.W.R. 799, Beck, J.

A.says: "Whether in any particular case the agent found the person to whom the owner eventually sold is a pure question of fact depending onthe particular facts and circumstances of each case, and therefore decisions in other cases on other facts and circumstances are of little orno value." Effective Cause: [54] In order to be an effective cause of a sale, an agent has a duty greater than the mere introduction of buyer and seller. [55] In Stratton v.

Vachon (1911), (SCC), 44 S.C.R. 395, Davies J. states as p.401: "The knowledge on the part of the vendor that the person with whom he completes the sale was introduced by the agent is not the test ofhis liability to pay commission, but the fact whether the agent's acts have really been the effective cause of the sale, and if the agent'sacts have brought a person or persons into relation with his principal as an intending purchaser, and the sale is effected, the agent hasdone what he contracted to do and is entitled to be paid." The Broken Chain:

[56] If the Claimant is unable to show an unbroken continuity between its efforts and the eventual sale, it cannot be successful. [57] In Bow's Emporium Ltd. v. A.R. Brett & Co. (1927) 44 T.L.R. 194 at p.199, Lord Shaw states: "

(1) When it is proved - and it must, of course be proved - the parties to a transaction are brought together, not necessarily personally,when the relation of buyer and seller through the agency of an intermediary employed for the purpose, the law simply is that if atransaction ensues, then that intermediary is entitled to his reward as such agent;

(2) Nor is he disentitled thereto because delays have occurred, unless the continuity between the original relation brought about by theagent and the ultimate transaction has been not merely dislocated or postponed, but broken; and

(3) Finally, the introduction by one of the parties to a transaction of another agent or go between does not deprive the original agent ofhis legal rights, and he cannot thus be defeated therein." [17] At paragraph 63, the court stated: The issues of whether or not the Claimant's agents were the effective cause of sale, and whether or not there was a "break in chain" ismore a matter of objectively looking at the evidence as a whole rather than closely analyzing the subjective views of each of the parties. See also Homelife Okanagan Realty Inc. v. Galvagno, (BC SC). [18] It is clear that Ms.

Kaizer was an effective cause in the sale of this property. As I have already noted, but for the intervention ofMr. Hiltz, I find Mr.

Zverina would have continued to use her as an agent and she would have been, in that way, entitled to hercommission. [19] I find the claimant is entitled to judgment in the amount of $15,825 in commission, plus $1,107.75 in GST, and I will hear fromcounsel with respect to the issue of any other costs or disbursements. [20] In addition, pursuant to Rule 20(5) of the Small Claims Rules, which reads: A judge may order a party to pay the other party up to 10% of the amount claimed or the value of the claim or counterclaim if the partymade a claim, counterclaim or reply and proceeded through trial with no reasonable basis for success. [21] I find that applies in this case and I am awarding a penalty in favour of the claimants of 10 percent or $1,693.23. [22] MR.

FLEMMING: Pre-trial interest, Your Honour? [23] THE COURT: Yes, there will be interest on that. There is no contractual interest. [24] MR. FLEMMING: No, but -- [25] THE COURT: Pre-judgment interest. [26] MR. FLEMMING: No. [27] THE COURT: All right, then that would be from -- [28] MR. FLEMMING: Court-ordered -- court-ordered interest, sorry. [29] THE COURT: Yes. From July -- when would that have been paid? [30] MR. FLEMMING: The date of filing, Your Honour, was -- sorry, the date of filing was February 14th, 2011. [31] THE COURT: But they are entitled to it from July 15th.

When would the commission have been payable to them? Whenwould they have received it? [32] MR. FLEMMING: They would have received it, the closing was July 15th. [33] THE COURT: All right. [34] MR. FLEMMING: 2010. [35] THE COURT: Pre-judgment interest will run from July 15, 2010. Are you seeking any costs, other than the 156 filing and $60service fees? [36] MR. FLEMMING: I don't think I'm entitled to.

[ 37 ] THE COURT: There is hard copy -- or hard costs, photocopying. [ 38 ] MR. FLEMMING: No, I'm not. [ 39 ] THE COURT: All right. (REASONS CONCLUDED)