



COURT OF APPEAL FOR ONTARIO

CITATION: First Contact Realty Ltd. (Royal LePage First
    Contact Realty) v. Prime Real Estate Holdings Corporation, 2016 ONCA 156

DATE: 20160225

DOCKET: C61001

Gillese, Hourigan and Brown JJ.A.

BETWEEN

First Contact Realty
    Ltd. c.o.b. as Royal LePage First Contact Realty

Plaintiff (Respondent)

and

Prime Real Estate Holdings Corporation

Defendant (Appellant)

Richard Quance, for the appellant

Eric Gionet, for the respondent

Heard: February 22, 2016

On appeal from the judgment of Justice Susan E. Healey of
    the Superior Court of Justice, dated September 3, 2015, with reasons reported
    at 2015 ONSC 5511.

ENDORSEMENT

THE APPEAL

[1]

The plaintiff real estate brokerage (Royal LePage) was granted summary
    judgment against the defendant corporation (Prime) in a judgment dated
    September 3, 2015 (the Judgment).  The Judgment orders Prime to pay
    approximately $100,000 plus HST, interest and costs.  That sum represents the
    amount of real estate commission owing on the purchase of a property in Barrie,
    Ontario.

[2]

Prime appeals.

[3]

In its factum, Prime submits that the motion judge erred in finding
    that:

1.

Royal LePage had
    not released Prime from its obligations under the Buyer Representation
    Agreement (BRA); and

2.

Royal LePage continued
    to assist Prime after September 10, 2012.

[4]

In making these findings, the motion judge relied, in part, on
    credibility determinations.  Prime contends that such credibility
    determinations could not be fairly made without a trial.  Consequently, it
    submits, the motion judge also erred in failing to find that there is a genuine
    issue requiring a trial, in accordance with rule 20.04(2)(a) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg.
    194
.


[5]

In oral argument, Prime submitted that the motion judge erred in her
    articulation of the legal principles in
Hryniak v. Mauldin
, 2014 SCC 7,
    [2014] 1 S.C.R. 87, and stressed that, given the credibility dispute, the
    interests of justice required the motion judge to refer the matter to trial.

BACKGROUND IN BRIEF

[6]

Walter Doret is a real estate broker with Royal LePage.  Chris Hinn is
    Primes principal.

[7]

Doret acted for Hinn on a number of real estate transactions.  When
    Prime became interested in purchasing vacant lands in Barrie, Ontario (the
    Property), Hinn  acting on behalf of Prime  retained Doret and Royal LePage
    to act on its behalf.

[8]

The Property had once housed a Molson Brewery plant but later became
    home to a substantial commercial marijuana grow-op.  A restraint order was
    placed against the Property pursuant to the
Controlled Drugs and Substances
    Act
, S.C. 1996, c. 19

(the Restraint Order).

The Restraint
    Order prevented the owner from dealing with the Property without the written
    consent of counsel for the Attorney General of Canada.  It also caused
    complications and significant delays in Primes purchase of the Property.

[9]

During the course of the relationship, the parties executed three BRAs,
    all of which contained similar terms, apart from the fact that they covered
    different time frames.

[10]

On
    November 16, 2011, Doret prepared an agreement of purchase and sale on Primes behalf,
    in which Prime offered to purchase the Property for $7,350,000.  Due to
    complications arising from the Restraint Order and the resultant delays, the
    agreement was amended on 15 separate occasions between November 16, 2011, and July
    13, 2012.  Doret prepared each of the amendments.  Ultimately, on or about
    September 10, 2012, the agreement was terminated by a mutual release executed
    by the owner of the Property, Prime and their respective brokerages.  Prime was
    represented by legal counsel at the time.

[11]

On
    October 29, 2012, Prime entered into a second agreement of purchase and sale in
    respect of the Property.  This was within the time frame contemplated by the
    third and final BRA.  The purchase price, the Property and the buyer were
    identical to those in the first agreement.  However, the vendor had changed as
    Prime was proposing to purchase from First Ontario, who entered into the
    agreement and proposed to sell the Property under power of sale provisions
    contained in its charge against the Property.

[12]

The
    second agreement ultimately closed on September 19, 2013, at which time Prime
    bought the Property for $7,350,000.  This generated a real estate commission
    owing in the amount of just under $92,000.  Royal LePage rendered an invoice
    for the commission but Prime refused to pay it.

[13]

Royal
    LePage then sued for the unpaid commission, taxes, interest and costs. 
    Thereafter, it brought the summary judgment motion which led to the Judgment
    and this appeal.

[14]

Before
    the motion judge, Prime contended that on September 10, 2012, the parties
    entered into a verbal agreement to terminate the BRA.  The motion judge
    rejected this contention.

[15]

First,
    the motion judge found that Hinns evidence, if accepted, was insufficient to
    establish the essential elements of an agreement.

[16]

Second
    and in any event, the motion judge found that no such agreement was made.  She
    set out numerous examples of evidence that was inconsistent with the alleged
    termination of the BRA.  She described Dorets continuing involvement after
    September 10, 2012.  Had the BRA been terminated, it made no sense that he
    would continue to assist in the purchase.  Furthermore, there was no evidence
    that Hinn or his lawyer suggested that Dorets inquiries and assistance after
    September 10, 2012, were unfounded or that he was to have no further
    involvement.  In addition, there was email correspondence that was inconsistent
    with the suggestion that the BRA had been terminated on the mutual agreement of
    the parties.

[17]

The
    motion judge also rejected Primes contention that Royal LePage had failed to
    fulfill its obligations under the BRA.  In so doing, she rejected, as false,
    Hinns affidavit evidence that Doret and Royal LePage had no further dealings
    with the Property after September 10, 2012.   The motion judge found that Doret
    assisted in Primes purchase of the Property.  She found that Doret continued
    to check in and offer his assistance with the deal, though there was little for
    him to do given that the matter was a complicated transaction being handled by
    legal counsel.  She found that Doret had worked diligently to prepare, and
    attempt to keep alive, the first agreement of purchase and sale and that the
    second such agreement, which eventually took effect, largely piggy-backed on
    those efforts.  The motion judge further found that Prime advanced this
    contention to seek to avoid its obligations under the BRA.

ANALYSIS

[18]

As
    noted above, Prime submits that the motion judge erred in her articulation of
    the legal principles established in
Hryniak
.

[19]

We
    do not agree.

[20]

At
    para. 20 of her reasons, the motion judge correctly noted that
Hryniak

directs that on a motion for summary judgment under rule 20.04, the court
    should first determine if there is a genuine issue requiring a trial based only
    on the evidence before it, without using the new fact-finding powers.  If there
    appears to be a genuine issue requiring a trial, the court should then
    determine if the need for a trial can be avoided by using the new powers under
    rules 20.04(2.1) and (2.2).  The court may, in its discretion, use those powers
    provided that their use is not against the interest of justice.  Their use will
    not be against the interest of justice if they will lead to a fair and just
    result and will serve the goals of timeliness, affordability and
    proportionality in light of the litigation as a while.

[21]

In
    the present case, the motion judge stated that she had no difficulty making the
    necessary findings of fact and that there was no need for a trial to reach a
    determination on the merits.  We see no error in that determination.

[22]

The
    other grounds of appeal rest on an attack of the motion judges findings of
    fact.  As counsel for the appellant conceded, those findings attract deference
    on appellate review.

[23]

These
    fact-based grounds of appeal were raised as issues below.  As indicated above,
    the motion judge gave thorough reasons for rejecting Primes contention that the
    parties had terminated the BRA and that Royal LePage ceased to assist it after
    September 10, 2012.  There is no need to repeat those findings.  In our view,
    the motion judges findings are solidly grounded in the evidence.  Indeed, on
    the record, they are virtually inescapable.

[24]

Accordingly,
    there is no basis for appellate intervention.

DISPOSITION

[25]

For
    these reasons, the appeal is dismissed with costs to Royal LePage fixed at
    $5,000, all inclusive.

E.E. Gillese
    J.A.

C.W. Hourigan J.A.

David Brown J.A.


