Hahn v Durstling, 2023 ABKB 36

Court of King’s Bench of Alberta Citation: Hahn v Durstling, 2023 ABKB 36 Date: 20230119 Docket: 2103 12609 Registry: Edmonton Between: Larry Hahn Plaintiff - and - Darren Durstling and Laurel Durstling Defendants Corrected judgment: A corrigendum was issued on January 24, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Applications Judge W.S. Schlosser _______________________________________________________ [ 1 ] This is a defendant's application for

summary dismissal of the plaintiffs claim. The plaintiff is a realtor claiming compensation for the sale of the defendants’ home. Much of the evidence conflicts. [ 2 ] Mr. Hahn had an ongoing commercial relationship with the male defendant. The relationship soured. There were lawsuits. Mr. Hahn’s real estate license was suspended October 13, 2020. [ 3 ] Prior to this, in the fall of 2019, and in July of 2020, Mr. Durstling discussed selling the defendants’ luxury home with Mr. Hahn. Mr. Hahn said that he would contact some of his buyers.

There was no written listing agreement or, for that matter, any exclusive listing agreement. [ 4 ] Mr. Hahn showed the Durstling property to the eventual purchasers, the Priestners, on two occasions in early 2020. The home wasn't exactly what they were looking for. The Priestners wanted to put their own stamp on it and too much would be involved.

But the location was good. This portion of the evidence is uncontroverted. [ 5 ] The Priestners made a low offer, via Mr. Hahn, that was rejected by the Durstlings. [ 6 ] Then, in the summer of 2020, the property was significantly damaged by fire. In early 2021, the Priestners visited the property again but with another realtor and saw an opportunity to build what they wanted. The Priestners then made two offers to the Durstlings; one in April and one in June 2021 through the new realtor. Both were rejected. A third offer was made in late June 2021. It was successful.

The deal closed in late July. [ 7 ] At the time of the sale, Mr. Hahn was a suspended realtor. He was not ‘the holder of the appropriate authorization issued by the [Real Estate Council of Alberta] authorizing him to render real estate agency services’. Further, he was not exempt from this authorization as required by the Real Estate Act, RSA 2000, c R-5 , s 21 (paraphrased above) and the Real Estate Exemption Regulation , AR 111/96. Mr. Hahn also was not then a qualified ‘industry member’ and thus not able to take advantage of a commission sharing arrangement.

This is not a situation caught by Equity Network Inc v Reid, 2001 ABQB 254 (aff’d 2002 ABCA 270 ), thus inviting a trial on that basis alone. [ 8 ] If this were an action for something other than a commission; Mr. Hahn would have to demonstrate that his efforts were inextricably linked to the sale and were payable regardless of the outcome: Rajakaruna v Campbell, 2006 ABPC 62 per O’Ferrall (then) PCJ. [ 9 ] At the conclusion of oral argument, the Court sought some evidence about the events that led to the change in realtors and the eventual closing of the process that Mr. Hahn had initiated.

The Priestners declined to give evidence. The purchasers’ agent provided some evidence, though much of it was on information and belief with no source identified. [ 10 ] A real estate agent’s entitlement to a commission “on any sale or exchange resulting from negotiations commenced or instituted during the currency of [a] listing” is only payable if the agent is the ‘effective cause’, or has ‘materially contributed to the sale’.

CB Richard Ellis Alberta Limited v 505070 Alberta Ltd , 2009 ABQB 274 at para 24 and, Pemberton Holmes Realty Ltd v Miller , 2008 BCSC 1790 . [ 11 ] Real estate agency is a specialized and highly regulated form of agency. Despite the shortcomings in the evidence, I am satisfied that even though Mr. Hahn first introduced the purchasers to the property, he cannot overcome the hurdles imposed by the Real Estate Act in all the circumstances of this case and on the most charitable reading of the evidence in his favour.

The point of the Act is to prevent situations like this from arising in the first place: Real Estate Professionals Inc v Calgary Drop-In & Rehab Centre Society , 2015 ABQB 530 (at para 81 ). Whatever obligations the Durstlings may have owed Mr. Hahn for getting him involved in the first place and for setting this things in motion, the relationship does not give rise to legally enforceable obligations. [ 12 ] The defendants’ application is allowed. The plaintiff’s claim is dismissed. Heard on the 29 th day of September, 2022. Dated at the City of Edmonton, Alberta this 19 th day of January, 2023. W.S.

Schlosser A.J.C.K.B.A. Appearances: Larry Hahn for the Self-Represented Litigant Donald J. Wilson, K.C. DLA Piper (Canada) LLP for the Defendants

_______________________________________________________ Corrigendum of the Reasons for Decision of the Honourable Applications Judge W.S. Schlosser _______________________________________________________ The date of the hearing has been corrected to read: 29 th day of September, 2022.