



COURT OF APPEAL FOR ONTARIO

CITATION: Apex Results Realty Inc. v.
    Zaman, 2019 ONCA 766

DATE: 20190930

DOCKET: C66461

Juriansz, Benotto and Miller
    JJ.A.

BETWEEN

Apex Results Realty Inc.,
    formerly known as Sutton Group Results Realty Inc.

Plaintiff/Defendant by counterclaim

(Respondent)

and

Sharief H. Zaman, Eminence
    Living Inc. and Higher Living Development Inc.

Defendants/Plaintiffs by counterclaim

(Appellants)

Saba Ahmad as agent for Ivan Marini,
    for the appellants

Walter R. Wellenreiter, for the
    respondent

Heard: September 24, 2019

On appeal from the judgment of Justice James
    R. H. Turnbull of the Superior Court of Justice, dated December 31, 2018.

REASONS FOR DECISION


[1]

The motion judge granted summary judgment on the
    respondents claim for commissions on the sale of two properties bought by the
    corporate appellants controlled by the appellant Zaman. The motion judge found that
    Zaman had executed a buyer representation agreement that provided that the
    respondents agent would receive a commission for properties he purchased. The
    motion judge rejected Zamans claims that he did not understand the agreement
    because he suffered from dyslexia, that a different buyer representation
    agreement governed one property purchased, that in relation to the other there
    were oral amendments to the agreement that the vendor would pay the commission,
    and that the respondent failed to inform him of the commissions payable as soon
    as possible after the sales as required by the agreement. The motion judge granted
    summary judgment on the respondents claim for the commissions due under the
    contract.

[2]

On appeal Zaman advances a new argument. He submits
    that the motion judge failed to conclude that summary judgment was not
    appropriate in the interests of justice because he counterclaimed for
    substantial damages based on alleged negligence on the part of the respondent.
    The motion judge simply said Counsel did not make any submissions to the court
    with respect to the disposition of the counterclaim. Hence, I will make no
    ruling with respect to it. He argues that the motion judge should have concluded
    summary judgment was inappropriate because the counterclaim is inextricably
    intertwined with the claim giving rise to the probability of duplication of
    proceedings and the possibility of inconsistent results.

[3]

The motion judge was aware of the counterclaim,
    but understandably did not discuss it as Zaman did not raise it in response to
    the motion for summary judgment on the commission. Nor did he raise the allegation
    of the respondents negligence. It is evident the motion judge took the view
    the counterclaim was not inextricably intertwined with the claim. We agree. On
    our reading of the counterclaim, it is not inextricably intertwined with the
    claim. Indeed, it is premised on the existence of a valid buyer representation
    agreement between the parties. When pressed counsel was unable to identify the
    specific issues that were duplicative. We do not give effect to this argument.

[4]

We do not accept Zamans other arguments. The
    motion judges factual error about a date was not material, and the adverse
    inference the motion judge made because Zaman failed to fulfil an undertaking was
    permissible.

[5]

The appeal is dismissed. The respondents costs
    are fixed in the amount of $8,000.00, all-inclusive, as agreed by counsel.

R.G. Juriansz J.A.

M.L. Benotto J.A.

B.W. Miller J.A.


