) ) RE/MAX EXCELLENCE REALTY INC. C/O EXCELLENCE 100 REALTY INC. Plaintiff (Appellant) – v. –, 2013 ONSC 6408

CITATION : Re/Max Excellence Realty Inc. v. Hill, 2013 ONSC 6408 DIVISIONAL COURT FILE NO.: 254/12 DATE: 20131011 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: ) ) RE/MAX EXCELLENCE REALTY INC. C/O EXCELLENCE 100 REALTY INC. Plaintiff (Appellant) – and – DAWN MARIE HILL Defendant (Respondent) )) )) )) )) )) ))) Bruce C. Robertson and Naaila Sangrar , for the Plaintiff (Appellant) No One Appearing ) ) HEARD at Toronto: October 11, 2013 himel j. ( orally) [ 1 ] Re/Max Excellence Realty Inc. (“Re/Max”) appeals the decision of Deputy Judge M. D.

Godfrey of the Small Claims Court dated April 23, 2012, dismissing the plaintiff’s claim for what it alleges was unpaid commission owing for work done regarding the sale of the respondent’s property. Background [ 2 ] The appellant and the respondent entered into a listing agreement for the sale of the respondent’s property at 700 Humberwood Blvd., #2718, Toronto. The property was listed at a purchase price of $374,400 and sold for $380,000. The appellant claimed that $17,850 was owing as a result of a binding listing agreement providing for a 5% commission.

At trial, before the Small Claims Court Judge, the appellant produced documents (a representation agreement and a listing agreement) which the appellant said were signed by the parties. The respondent produced copies of the same documents where the amount of the commission was left blank. The respondent took the position that any commission owing to the appellant was offset by the sale of all the furniture in the unit to the parents of the agent for the appellant who were the purchasers of the property.

After the closing of the sale, the appellant was paid $2,000 for the commission and the remainder of the funds of the amount of $19,000 claimed to be owing to the appellant were delivered to the respondent as part of the purchase price. The appellant said that the respondent admitted she owed the balance but took a different position at trial. The Decision of the Trial Judge [ 3 ] In his decision, the trial judge commented that the evidence called by both parties lacked credibility. He found the

plaintiff’s witness, Mr. Da Costa, evasive and that he was attempting to by-pass the broker and have monies paid directly to him or his parents out of the closing funds to avoid accounting of the commission as income and contrary to the responsibilities of a real estate agent. He also considered the defendant to be lacking in credibility, in particular, with reference to her evidence concerning how her initials were put on the document stating that the commission was 5% and her production of a copy of the listing agreement that seemed to have been altered.

He stated in his reasons as follows: It is apparent to me that some form of side deal existed between Mr. Da Costa and the defendant which did not play out as expected… Somebody appears to have been short changed in the whole exercise but I cannot conclude on the evidence presented who that person was, or to what extent in dollar terms. As such, I cannot determine that person to be Mr. Da Costa. Furthermore, as I have already stated, Mr.

Da Costa’s attempt to use Re Max as the plaintiff is a clear abuse of process since it is apparent to me that Re Max Excellence has no vested interest in the outcome of this case and is being used as a shill only…As such, the claim is dismissed. [ 4 ] The trial judge dismissed the action and ordered costs to the defendant in the amount of $300. Position of the Appellant [ 5 ] The appellant argues that the trial judge erred by not finding an existing contract concerning the commission rate between the parties.

The appellant points to the original document produced at trial which was the listing agreement stating the commission rate of 5%. Counsel argues there is no ambiguity in the words of the contract and that the terms as expressed demonstrate the true intention of the parties. Accordingly, she submits that the trial judge should have given effect to the terms of the contract and not admitted parole evidence where there was no ambiguity.

Further, while the trial judge admitted a tape recorded statement of the respondent, the appellant had argued in written materials that the trial judge erred in not relying on her admission that the appellant had not been paid a sufficient amount for the commission as had been agreed upon. Finally, the appellant takes the position that the trial judge erred in concluding that the appellant’s use of the name of Re/Max was an abuse of process as the evidence before the court was that the appellant had the full authority of the broker to act throughout.

Decision [ 6 ] On a question of law, the standard of review of a trial judgment is that of correctness: see Housen v. Nikolaisen , [2002] S.C.C. 33 at para. 8. In reviewing this decision in detail, I note that the trial judge made findings of credibility and based his decision to a great extent on these findings in concluding that the appellant was not able to prove his claim. His findings of credibility are entitled to deference.

He was clearly in the best position to observe the witnesses and make a finding concerning who and what he believed and what weight to attach to the evidence. [ 7 ] The burden of proof in a civil action is upon the plaintiff and the standard of proof is a balance of probabilities. From the reasons, it is apparent that the trial judge was not satisfied to the civil standard. The issue of the authority to commence and prosecute the action which the trial judge considered to be an abuse of process is not integral to the decision. Rather, the issue is, did the appellant prove his claim at trial?

The trial judge found he did not. [ 8 ] I see no palpable or overriding error in the decision of the judge. It was open to him to conclude, that despite the written agreement the parties seemed to have a side deal which did not support the claim. There being no such palpable or overriding error, the appeal of the judgment of the Deputy Judge of the Small Claims Court is dismissed. Costs [ 9 ] I have endorsed the Appeal Book, “For oral reasons given, the appeal of the decision of the Small Claims Court Judge is dismissed. No order as to costs.” HIMEL J. Date of Reasons for Judgment: October 11, 2013

Date of Release: October 21, 2013 CITATION : Re/Max Excellence Realty Inc. v. Hill, 2013 ONSC 6408 DIVISIONAL COURT FILE NO.: 254/12 DATE: 20131011 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT HIMEL J. BETWEEN: RE/MAX EXCELLENCE REALTY INC. C/O EXCELLENCE 100 REALTY INC. Plaintiff (Appellant) – and – DAWN MARIE HILL Defendant (Respondent) ORAL REASONS FOR JUDGMENT HIMEL J. Date of Reasons for Judgment: October 11, 2013 Date of Release: October 21, 2013