Century 21 Dome Realty Inc. v. Rosa Brittner, 2018 SKPC 024

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2018 SKPC 024 Date: April 26, 2018 File: SC 50/17 Location: Regina _____________________________________________________________________________ Between: Century 21 Dome Realty Inc. and Rosa Brittner - and - Andrea Brittner and David Nicurity Eric Lanoie For the Plaintiffs Self-Represented For the Defendants _____________________________________________________________________________ JUDGMENT J. RYBCHUK , J _____________________________________________________________________________ INTRODUCTION [ 1 ] This case is an unfortunate example of how badly things can sometimes go when doing business with family members.

Andrea Brittner (“Andrea”) hired her cousin’s wife, Rosa Brittner (“Rosa”), a real estate agent with Century 21 Dome Realty Inc. (“Century 21”) to help sell her house. Rosa did such a fine job of quickly selling the house that Andrea and her husband, David Nicurity (“David”) also asked Rosa to help them find a new house as well. [ 2 ] While in the process of selling the old house and looking for a new house, the parties all got together the evening of June 27, 2016 to sign some documents.

One of those documents was an Exclusive Buyer’s Brokerage Contract (“Contract”) in which the Defendants agreed to employ and exclusively use the services of the Plaintiffs to find a new home during the period June 27, 2016 until August 31, 2016. In return, the Plaintiffs would receive a commission of 2% on any home that the Defendants might purchase during that period of time. [ 3 ] Unfortunately, the purchase of the new home did not go as well as the sale of the old home. The Defendants ended up hiring another cousin, Jessica Brittner, who is a realtor and purchased a home with her on July 10, 2016.

This was during the term of the Contract the Defendants had with the Plaintiffs. [ 4 ] The Plaintiffs now bring this legal action against the Defendants seeking payment of the commission owing to them on the purchase of this home while still under Contract with the Plaintiffs. The Defendants deny signing the Contract or owing any commissions to the Plaintiffs whom they feel did not do an adequate job for them as their real estate agent. ISSUES [ 5 ] The issues to be decided in this case are: 1) Is there a contract? 2) Has the contract been breached? 3) What are the damages?

LAW & ANALYSIS 1) Is there a contract? [ 6 ] A photocopy of the Contract between the Defendants as “Buyers” and Rosa as real estate agent and sales representative for Century 21 as the “Buyer’s Brokerage” was entered into evidence as Exhibit P1 – 10. It is a standard form contract developed and provided for use only to members of the Association of Saskatchewan Realtors. The Plaintiffs are such members. The blank portions of the Contract were filled out in handwriting by Rosa.

This included the 2% commission and the date that it was signed. [ 7 ] It is a two page document that was initialed at the bottom of the first page by the Defendants and signed at the bottom of the second page by all of the parties. Rosa witnessed each of the Defendants’ signatures and Andrea witnessed Rosa’s signature. [ 8 ] The Defendants took issue with this photocopied version of the Contract.

Bernard Weinbender, an official with Century 21 testified that the original version of the Contract was delivered by Rosa to the head office of the company where it was photocopied, scanned and placed in electronic and physical storage locations off-site. He indicated the original of the Contract could be provided to the Court, but it would take some time as it was located in physical storage outside the city of Regina. [ 9 ] Ordinarily, the “best evidence rule” requires the best possible evidence be provided to the Court, meaning judges prefer original documents over copies.

However, there is a common-law and statutory exception to this hearsay rule for business records created in the ordinary course of operations which can be admitted into evidence in lieu of the original. [ 10 ] Sections 49 and 51 of The Evidence Act , c E-11.2 provide as follows: DIVISION 3 Business Records

Interpretation of Division 49 In this Division: . . .

“photograph” means a photograph taken digitally or by use of photographic film and includes: . . . (

d) a photocopy, including an enlargement or reduction; (

e) an image created by the electronic scanning of a document; . . . Photographs as permanent records 51

(1) In the absence of evidence indicating that the photograph is not genuine, a photograph of a document kept or held by a business is admissible in evidence in all cases and for all purposes for which the original document would have been admissible if: (

a) the document was photographed in the course of an established practice of that business of photographing documents in order to keep a permanent record of them; and (

b) the document: (

i) has been destroyed by or in the presence of one or more of the officers or employees of the business; (ii) has been delivered to another person in the ordinary course of business; or (iii) is lost.

(2) Proof of the compliance with the conditions set out in this

section may be given by any person having knowledge of the facts, either orally or by affidavit sworn or affirmed before a person authorized by law to administer oaths. [ 11 ] The Contract is a form of agency agreement between a brokerage and a buyer for a trade in real estate governed by the provisions of The Real Estate Act , c R-1.3.

Section 57 of that Act provides: Agency agreement 57

(1) Every written agency agreement is to be executed in the presence of a witness.

(2) A written agency agreement is not valid unless: (

a) it contains an expiry date; (

b) it contains only one expiry date; (

c) the expiry date is less than 12 months from the date of the agency agreement; (

d) it shows the total amount of commission, as a lump sum or as a percentage, to be paid to the brokerage; and (

e) a true copy of the agency agreement is immediately delivered to the seller or buyer who signed the agency agreement. [ 12 ] The statutory requirements of these pieces of legislation have been met. There is no dispute that the parties got together the evening of June 27, 2016 and signed some documents. Rosa testified that the Contract was signed at the same time that other documents were signed relating to the sale of the old home and purchase of a new home. There were multiple impressed carbon copies of each real estate document that had been signed.

Rosa provided true copies of everything they signed, including the Contract, to the Defendants. She provided the originals to the office of Century 21 for storage as a permanent record of the company as she does with all of her documentation in the ordinary course of her business as a realtor with Century 21.

[13] The Defendants have no memory of signing the Contract or what happened with it. They claim not to remember signing theContract and argue that it was not their initials and signatures on it. They did not claim the Contract was a fake or forgery in theirDispute Note, but came close to asserting this at trial when they stated that the signatures on it did not look like their own signatures andthat they sign differently. At one point David even suggested the signatures appeared altered.

However, they quickly resiled from thisposition and clarified that they were not alleging the signatures had been forged or that the Plaintiffs were fraudulent in any way. Theysimply claimed to have no knowledge of the Contract whatsoever. [14] There was no evidence indicating the photocopy of the Contract was not genuine, and so there was no need to obtain theoriginal in these circumstances.

In other words, procuring the original of the Contract would have made no difference where theDefendants merely claimed not to remember signing it or that it was not signed by them at all. [15] This is, in effect, the classic plea or defence of “non est factum” – an ancient Latin phrase meaning “it is not my doing”; themodern day equivalent being “it wasn’t me.” [16] Unfortunately, this defence does not protect people who are careless in signing documents without understanding the natureof the documents they are signing.

In times past, the fact that a contract had been signed at all was likely to be taken as conclusiveevidence that the signer had accepted the terms of the contract (L’Estrange v F. Graucob Ltd., [1934] All ER Rep 16 (Eng. K.B.)). [17] This old English common law was softened by the Supreme Court of Canada in Marvco Colour Research Ltd. v Harris (SCC), [1982] 2 SCR 774; 141 DLR (3d) 577 (Marvco).

The Saskatchewan Court of Appeal followed Marvco in Co-operative Trust Company of Canada v Receveur (1985), (SK CA), 40 Sask R 315 (SKCA) where Vancise J.commented on the decision of Estey J. in Marvco as follows: [11] ...There, Estey J. reviewed the development of law as it relates to non est factum and concluded that the dissenting opinion ofCartwright J. in the Prudential Trust Co Ltd et al v.

Cugnet et al, (SCC), [1956] S.C.R. 914, correctly stated the law.Cartwright, J., stated the general principles in these terms: [G]enerally speaking, a person who executes a document without taking the trouble to read it is liable on it and cannot plead that hemistook its contents, at all events, as against a person who acting in good faith in the ordinary course of business has changed hisposition in reliance on such document. . . . [13] Estey, J., summed up the opinion of Cartwright, J., in these terms at page 581.

He concluded, therefore, that any person who fails to exercise reasonable care in signing a document is precluded from relying on theplea of non est factum as against a person who relies upon that document in good faith and for value. [18] Estey J. provided the policy rationale for this principle of law in Marvco: This principle of law is based not only upon the principle of placing the loss on the person guilty of carelessness, but also upon arecognition of the need for certainty and security in commerce.

This has been recognized since the earliest days of the plea of non estfactum. [19] In Marvco, the Supreme Court of Canada followed a decision of the British House of Lords in Saunders v Anglia BuildingSociety, [1971] AC 1004 (H.L.) where Lord Pearson found that a 78 year old widow who had just broken her glasses and was thereforeunable to read, and had been deceived by her trusted nephew into signing a document for the transfer of her house, was neverthelesscareless in signing the deed and still bound by it.

Simply put, a person who fails to exercise reasonable care in signing a document isprecluded from relying on non est factum as against a person who relies upon that document in good faith for value depending on thecircumstances of each case. [20] Therefore, a party to a contract cannot escape liability under it simply because they fail to take the necessary time tofamiliarize themselves with its contents.

By example, in Rogers v Lane Realty Corp 2005 SKQB 330 [Rogers] Barclay J. held that a realestate agent was not required to disclose to the vendor the terms of a listing agreement that were clearly set out in the agreement. Theagreement could have easily been read by the vendor before signing it. Had the vendor done so, he would have realized the termrequiring him to pay a commission if the property was sold during the term of the listing.

There was no breach of the fiduciaryobligation between a realtor and vendor in these circumstances. [21] The Defendants have not alleged that Rosa misrepresented the nature of the Contract to them such that they signed adocument fundamentally different from what they thought they were signing. They remembered signing many real estate documentswith Rosa during the time they worked with her, just not this one document.

They even claimed to use signing software and apps such as‘Docusign’ to sign some of the documents electronically, although no electronic evidence of the use of such signing software and apps byemail or text was ever put forward at trial. [22] The Defendants’ initials and signatures on the Contract appear the same or similar to their initials and signatures on the otherdocuments that they acknowledged signing the evening of June 27, 2016, namely: Exhibit D1-3 - the Residential Contract of Purchase and Sale for the home that was being sold; and

Exhibit P1-11 - the Residential Contract of Purchase and Sale for the home they were making an offer on. [ 23 ] Rosa witnessed the Defendants signing of these documents as well. [ 24 ] The Defendants’ initials and signatures also look the same or similar to those contained on a sampling of other documents they initialed, signed and filed in these proceedings, including: Exhibit D1-1 - the Seller’s MLS Brokerage Contract; Exhibit D1-2 - the Residential Saskatchewan MLS Data Input Form; Exhibit D1-3A -

Schedule A; Exhibit D1-3B - the Limited Dual Agency Acknowledgment Form; Exhibit D1-3C - Notice to Remove Conditions; and Exhibit D1-4 - the Residential Contract of Purchase Sale for the house they bought through another realtor and initialed and signed on July 10, 2016. [ 25 ] The Contract is only two pages long and contains the following statement of the Defendants in bold and capital letters directly above their signatures at the bottom of page 2: BY SIGNING THIS CONTRACT THE BUYER ACKNOWLEDGES HAVING RECEIVED AND READ THE BROCHURE PUBLISHED BY THE ASSOCIATION OF SASKATCHEWAN REALTORS® ENTITLED, “AGENCY DISCLOSURE.” The Buyer acknowledges having read and understood this Contract, that it accurately describes the agreement with the Buyer’s Brokerage, and that a copy of it has been received by the Buyer this date.

The Buyer certifies that he/she does not have an Exclusive Buyer’s Brokerage Contract with any other Brokerage. [ 26 ] I conclude that the Defendants were simply not paying attention and were careless in ascertaining which documents they signed on the evening of June 27, 2016. The Plaintiffs relied in good faith upon the signed Contract by providing real estate agency services to the Defendants. As such, the defence of non est factum is not available to the Defendants in the circumstances of this case. [ 27 ] The Defendants also allege a lack of privity of contract and a lack of legal consideration.

They argue Rosa’s services would have been available to them in any event. [ 28 ] Rosa’s supervisor at Century 21 was Bernard Weinbender, a broker/manager responsible for all agents and staff in the company. He provided supervision, guidance and direction to all real estate agents at Century 21. He testified that the Real Estate Commission and Real Estate Association recommend all realtors execute the standard form Exclusive Buyers Brokerage Contract with all of their clients. He strongly recommends that all agents of Century 21 ensure that this document is always signed.

The document is prepared and provided by the Association of Saskatchewan Realtors to its members for their use whenever providing services to a potential buyer to find a property which the buyer may be interested in purchasing. He conceded that this was not the general practice followed by all realtors. [ 29 ] Rosa did choose to follow this recommended practice and had the Defendants sign the Contract approximately three weeks after she began working with them to find a new home.

The services Rosa provided were not part of the Listing Agreement for the sale of the previous home, nor were they a familial obligation. [ 30 ] The services Rosa provided to the Defendants were extensive and included her searching for, and providing the Defendants with, information about houses listed for sale on the Multiple Listing Service of the Regina Real Estate Association and other properties known to Century 21.

She contacted listing agents to arrange viewings and obtain home inspections. [ 31 ] She ascertained the Defendants’ changing requirements or parameters for the new home purchase which included: 5 bedrooms (minimum and not negotiable); walk-in off the master; 4 bathrooms; Henry Janzen school area, but must be Winston Knoll school area as well; 2 car garage; bonus/den; en suite; half decent size yard;

kitchen counter space/cupboards; [32] Rosa testified that she showed the Defendants at least 20 houses while the Defendants felt that it was closer to 12 houses. Rosa previewed all of these houses herself before showing them to the Defendants. She worked with the listing agents to arrange theviewings. She viewed each and every house with them. [33] Rosa drafted at least two Offers to Purchase for houses, one of which was conditionally accepted by the sellers. Rosa was inconstant contact and communication with Andrea almost every day in June by text, email and telephone.

They discussed and consideredvarious houses, locations and options. They strategized and negotiated terms. [34] These real estate services were provided by Rosa both before and after the parties entered into the Contract. The evening theContract was signed, the Defendants also signed an Offer to Purchase for another house. Rosa delivered this Offer to Purchase to thesellers’ realtor later that night. This offer was accepted by the sellers subject to a home inspection. [35] Rosa then arranged the home inspection.

She came back from vacation on July 5, 2016 specifically to participate in the homeinspection and assist the Defendants with it. There were a series of texts and emails exchanged between Rosa and Andrea relative to thepurchase of this house and the Defendants’ sudden decision to back out of that deal and request their deposit back on July 6, 2016. All ofthis occurred after the Contract was signed and just days before the Defendants made another Offer to Purchase for another house withanother realtor on July 9, 2016.

I, therefore, conclude that there was valuable legal consideration flowing between the parties to theContract. [36] Rosa had signing authority and executed the Contract as sales representative on behalf of Century 21. Rosa is not a party tothe Contract in her personal capacity, but Century 21 is a party and privy to the Contract with legal capacity to sue on it. [37] I, therefore, find the Contract constitutes a legally valid and binding agreement between the parties. 2) Has the contract been breached? [38] The terms of the Contract include: 1. TERM OF CONTRACT . . . C.

This Contract shall come into full force and effect on the 27th day of June, 2016 until 11:59 p.m. on the 31st day of August, 2016unless renewed in writing. . . . 4. BUYER’S BROKERAGE’S REMUNERATION A. The Buyer agrees to pay to the Buyer’s Brokerage a commission equal to the greater of . . . (ii) $ or 2% % of the purchase price (fill in one only – lump sum or commission %) plus applicable taxes in respect to thecommission (commission + tax = remuneration) if: (

a) a legally enforceable Contract of Purchase and Sale between a Seller and the Buyer for a purchase of a property is enteredinto during the period of this Contract; [39] In H.W.

Liebig & Co. v Leading Investments Ltd., (SCC), [1986] 1 SCR 70, the Supreme Court of Canadadetermined that a real estate agent earns a commission by procuring offers to purchase and that the event upon which a commission ispayable is the completed sale or exchange of property and payment of the purchase price. [40] It is clear that the Defendants retained another realtor and entered into a legally valid and enforceable contract of purchase andsale of a home on July 10, 2016 (Exhibit D1-4).

They completed the sale by paying the purchase price of $427,000.00 and takingpossession of the home on or about August 17, 2016 (Exhibit P1-15 - Province of Saskatchewan Land Titles Registry Title). Thisoccurred during the term of the Contract. The Plaintiffs have not received any commission for this purchase and sale despite repeatedrequests for payment of it from the Defendants.

As such, the Defendants have failed to perform their legal obligations under the Contractand are in breach. [41] The Defendants, however, claim that the Plaintiffs have breached the Contract by failing to perform their obligations under it. [42] The Defendants cite six examples of breach of Contract by the Plaintiffs in their Dispute Note.

There was no evidencewhatsoever to support two of the allegations that the Plaintiffs failed to abide by promises and representations made to the Defendantsduring the finalization of the sale of their previous home or that the Plaintiffs failed to maintain the confidentiality of the Defendants’information by sharing it with Rosa’s husband and the general public via Facebook.

[ 43 ] There was scant evidence to support two other allegations of unprofessional and disrespectful conduct by the Plaintiffs and a refusal and failure to act in the best interest of the Defendants. The only evidence the Defendants could point to that even remotely touched on these subjects came from a few select texts culled from the plethora of text and email messages exchanged between Rosa and Andrea during the months of June and July, 2016 and filed as Exhibits by both parties at trial. [ 44 ] These individual texts were clearly taken out of context.

The overall tone of the text and email messaging that occurred between these parties that summer was respectful, professional and amiable. They were both clearly mixing business with family matters and intermittently joking about things. They messaged each other at all hours of the day. [ 45 ] The Defendants referred to one particular comment made by Rosa in one of her texts as proof of her unprofessionalism. The exchange occurred when the Defendants notified Rosa that they were backing out of the purchase she had arranged with them on Wednesday, July 6, 2016.

In the text Rosa merely suggested that the Defendants wait until she gets back from vacation the following Monday to look at more houses “because only I can put up with you two.” This text was followed immediately by a variety of five different smiley face emojis, laughing, crying and kissing with hearts. [ 46 ] The Defendants claimed they were so insulted by this direction or “demand” that they decided to hire Jessica Brittner.

Three days later on Saturday July 9, 2016, they viewed and made an offer to purchase on another house. [ 47 ] I do not believe any of the Defendants’ claims and I accept Rosa’s testimony wherever it conflicts with that of the Defendants. All Rosa did was request that they continue to honour the terms of their Contract and use her exclusively to look at houses. It is clear from all the texts exchanged between Andrea and Rosa during the month that this singular, isolated text was intended as just another one of the many familial and familiar jokes passing between both of them as they were looking at homes.

To now suggest that these isolated texts, taken out of context, were unprofessional or disrespectful is disingenuous and belies the generally positive working relationship that existed between these parties during the entire time Rosa was working for them. [ 48 ] The Defendants have admitted that they did not tell Rosa they were offended by any of her communications or raise this as an issue with her in any fashion at any time prior to the Plaintiffs commencing this legal action.

At no point during their interactions with the Plaintiffs did the Defendants ever raise any dissatisfaction with any of the services being provided by Rosa. I, therefore, find the Defendants’ third and fourth allegations of breach of Contract to be unfounded. [ 49 ] The Defendants’ fifth allegation of breach of contract is that the Plaintiffs failed to make arrangements to provide realtor services for them when Rosa was away on vacation following the Canada Day long weekend in early July, 2016.

They allege that had they been aware Rosa was taking vacation then, they would not have entered into the Contract with her in the first place. Rosa testified that she informed them of her family vacation plans when the Contract was signed. [ 50 ] The evidence was unclear as to the exact dates that Rosa took for vacation in early July, 2016.

What is clear from the texts and emails is that even when she was away over the Canada Day long weekend and following the aborted house purchase on Wednesday, July 6, 2016, Rosa still tried to remain in continual contact with Andrea. [ 51 ] Rosa informed the Defendants that if they required any assistance while she was away they could make use of all forms of communication including email, text message or phone either directly to herself, her office or her other team members.

She testified that even when she was out of service and had to drive fifteen minutes in order to get Wi-Fi, she would contact Andrea daily at noon and at 6:00 p.m. just to see how things were going. [ 52 ] The Contract was for a term of over two months during the summer of 2016. Rosa did not breach the Contract by leaving town for a number of days at the start of July, which would have counted for only a small fraction of the total term of the Contract. This is especially so when Andrea also had access to Rosa’s assistant at Century 21 if and when she was unable to get ahold of Rosa.

I accept Rosa’s testimony that the Defendants had been in contact with Rosa’s assistant and office numerous times in June, 2016. [ 53 ] Rosa was also part of a team of realtors at Century 21. Her team included Brian Tondevold, who had almost thirty years’ experience as a realtor with Century 21, and his son Adam Tondevold, who had fifteen years’ experience as a realtor. The team covered for her when she was away.

I accept Bernard Weinbender’s evidence that realtors at Century 21 worked in teams to cover one another whenever someone was unavailable or as otherwise required. [ 54 ] The autosignature at the bottom of Rosa’s emails indicates she is part of “The Tondevold Brittner Team” and it provides the contact information for Century 21.

The Defendants did not dispute that Rosa provided them with her Century 21 business card containing contact information for her and the team at Century 21. [ 55 ] I find there is no merit to the Defendants’ suggestion that Rosa was away on vacation too long and failed to make arrangements to provide for other realtor services in her absence. [ 56 ] The sixth and final allegation of breach of Contract made by the Defendants is that Rosa failed to show them the house they eventually ended up purchasing with the assistance of another realtor. They allege that they asked her to see this house three times.

The first two requests came by way of text messages on June 16, 2016. Andrea had sent Rosa a screen capture of the MLS listing for the property which indicated at the bottom that it had “3 plus 2 bedrooms”. [ 57 ] However, a review of all of the texts on June 16, 2016 indicates that there was confusion between the parties as to how many bedrooms the house actually had. This was an important criteria for the Defendants who were blending two families and required a house with a minimum of 5 bedrooms. The searchable field for the on-line MLS listing for the house indicated it only had 4 bedrooms.

Therefore, Rosa replied to the text that it did not meet their minimum requirements. The house was also outside the school bussing area for Andrea’s daughter, which was another minimum requirement that the Defendants had and which would, presumably, disqualify this house from their consideration.

[ 58 ] Andrea then sent a second text which consisted of a photo of a handwritten list of six residential addresses. This particular house was not asterisked as a priority house for them to view. [ 59 ] The only other mention of this particular house was in an email Andrea sent to Rosa on June 19, 2016. That email contained a list of thirteen addresses that the Defendants wanted to see. Once again, it clearly indicated that this house was not one of the four priority houses they wanted to view first.

It is important to note that the Defendants viewed and ended up making an offer on one of these four priority houses which was accepted by the sellers the following week. [ 60 ] I accept Rosa’s explanation that she did not need to show the Defendants this one house because they already had an accepted offer to purchase on one of their higher priority houses.

With this sale pending, there was no reason for Rosa to keep showing other houses to the Defendants. [ 61 ] The Defendants did not provide Rosa with an opportunity to show them this house after they backed out of their house purchase with her on July 6, 2016. [ 62 ] It was only after the Defendants pulled out of their house purchase with Rosa and viewed the house with another realtor that the Defendants came up with their plan to put more bedrooms in the basement and have someone drive their daughter to school instead of having her travel by bus.

This does not, however, detract from the considerable time, effort and energy Rosa had already devoted to finding them a suitable house. I accept Rosa’s testimony that she arranged viewings and showed all the listed houses to the Defendants with the exception of this one house. She showed some of the houses to the Defendants multiple times. [ 63 ] With respect, these two texts and one email do not demonstrate either that Rosa was specifically requested to show them this house or that she refused to do so. There was confusion as to whether the house met the Defendants’ minimum requirements.

There were other higher priority houses to be viewed. [ 64 ] It was the Defendants who decided to back out of the house purchase just as Rosa was leaving town for a few days.

I appreciate that it may have been a relatively competitive sellers’ market at the time and that the Defendants did not have a large window of time to find a new house following the sale of Andrea’s home, but this did not give them the right to ignore Rosa or the terms of their Contract. [ 65 ] I note that despite all of their daily interactions, Andrea never once brought any of these alleged performance problems to Rosa’s attention or gave her an opportunity to fix them.

The Defendants did not inform either of the Plaintiffs of any of their concerns or give them an opportunity to remedy them prior to this legal action being commenced. I simply do not believe that the Defendants really had these concerns. I conclude that Rosa did not fail to show the Defendants the house they ended up purchasing with another realtor. [ 66 ] The Plaintiffs did not breach their Contract with the Defendants.

Even if they did, none of the minor problems complained of by the Defendants would have been sufficient to vitiate the Contract. [ 67 ] Not every breach of contract by a party entitles the innocent party to repudiate the contract and be freed from their obligations under it. As Lord Diplock of the English Court of Appeal stated in Hongkong Fir Shipping Co. Ltd. v Kawasaki Kisen Kaisha Ltd., [1962] 2 QB 26 at 66, [1962] 1 All ER 474 (Eng. Q.B.), at 485 : … in what event will a party be relieved of his undertaking to do that which he has agreed to do but has not yet done?

The test whether an event has this effect or not has been stated in a number of metaphors all of which I think amount to the same thing: does the occurrence of the event deprive the party who has further undertakings still to perform of substantially the whole benefit which it was the intention of the parties as expressed in the contract that he should obtain as the consideration for performing those undertakings? [ 68 ] In order for a non-breaching party to be discharged from a contract and be released from further performance of their contractual obligations, the breach must be of a substantial character and undermine the whole of the contract or an implied condition or essential term of it.

The whole purpose of the contract must be defeated so that the performance by the non-breaching party is rendered pointless. An aggrieved party is limited to a claim for damages only for a minor breach of contract. [ 69 ] Here, the Defendants have not brought a counterclaim for damages for breach of contract.

They simply wish to be excused from their performance under the Contract so they do not have to pay any commission owing to the Plaintiffs. [ 70 ] In order to determine whether a breach is major or minor in nature, an inquiry must be made into the seriousness of the breach and the severity of the consequences of excusing performance by the non-breaching party. [ 71 ] Only the last allegation of breach of contract made by the Defendants is worthy of such consideration.

It may be an essential term of an Exclusive Buyer’s Brokerage Contract for a realtor to show houses, but not viewing only one of many houses viewed from a couple of long lists of other higher priority houses would still only amount to a breach of this term in a minor respect.

It would not have entitled the Defendants to repudiate the Contract entirely, thereby defeating all of the other substantial work and showings that Rosa had done for them and for which she received no consideration. [ 72 ] In all of the circumstances, I find the Defendants have failed to prove a breach of Contract by the Plaintiffs, and that even if they had, none of the breaches, either in isolation or cumulatively, would be of a serious or substantial character entitling the Defendants to repudiate the Contract and be relieved of their obligations under it. 3) What are the damages?

[ 73 ] The Plaintiffs’ damages are straightforward: the commission owing to them on the purchase price of the house plus taxes equal to: 2% x $427,000.00 + 5% GST = $8,967.00 CONCLUSION [ 74 ] Century 21 shall have judgment jointly and severally against the Defendants in the amount of $8,967.00 together with pre- judgment interest thereon from August 17, 2016 to the date of judgment in the amount of $106.78, for a total sum of $9,073.78. [ 75 ] During the course of these proceedings, the Defendants were ordered to pay into court the amount of $9,968.50 to stand as credit of the successful litigants.

This leaves the sum of $894.72 ($9,968.50 – 9,073.78) still sitting in court. [ 76 ] There is also the matter of costs. The parties are directed to return to Courtroom # 12 on Thursday May 17, 2018 at 9:30 a.m. to speak to these remaining matters. ____________________ J.F. Rybchuk, J