By Don Procter

After a years-long legal battle, a Burlington, Ont.-based real estate brokerage recently won a court case and was awarded 100 per cent of its claim for unpaid commissions. However, the case is being appealed.

Bob Van de Vrande, broker of record for the plaintiff Apex Results Realty, says that as result of the judgment by Superior Court Justice J.R.H. Turnbull, “We feel vindicated that our salesperson . . . will be appropriately paid for the work that was done.”



The case could have precedence regarding the 2.5 per cent commissions owed to Apex sales agent Naeem Rahman. It was for the purchase of two properties in Mississauga in 2012 by the defendant Sharief H. Zaman.  Eminence Living Inc. and Higher Living Development Inc. – Zama’s “closely held corporations” – are also named as defendants, says Van de Vrande.

The purchases were for roughly $5.5 million plus HST. The commission judgment, including court costs, was more than $200,000.

Rahman had a real estate contract with Zaman under a buyer representation agreement (BRA) – a standard form used by Realtors throughout Ontario.

Contrary to evidence, the defendant contended that due to a side agreement, if Rahman had any entitlement to commission it was to be obtained only from the seller/owner of the property in question, says Van de Vrande.

“That was simply his false assertion and his way of trying to avoid paying the commission,” he says.

“Our position all along was that there was no side agreement and as the judge found…even if it did exist, which in this case it did not, it is not enforceable because any agreement or amendment must be in writing and that wasn’t the case,” says Van de Vrande.

The BRA stipulates “that we attempt to obtain the commission from the sellers or the sellers’ real estate brokerage but the buyer is responsible for the commission . . . if the seller does not pay,” he says.

“What became problematic in this case is that our salesperson was excluded from the negotiations by the buyer (with the seller). He didn’t, in fact, know that the transaction was being done until after the closing date.”

Van de Vrande says after having made several offers on one of the properties with the agent, the defendant went back on his own, “offered more money (to the seller) and made the deal happen without our salesperson and contrary to the terms of the agreement.”

The BRA stipulates that all negotiations are to be done through the sales representative.

Van de Vrande says Rahman met all of the contractual obligations of the BRA. “The actual terms of the contract are discussed and negotiated between the parties.”

He says the case highlights the importance of a buyer representation agreement. “We are hoping that will be precedent in other cases… salespeople can rely on the contracts and they have recourse if those terms are breached.”

In the judgement, Apex was also awarded pre- and post-judgement interest, “which is significant because of the money involved and the length of time to resolve the claim,” says Van de Vrande.

Apex’s lawyer, Walter Wellenreiter, says, “The total costs, plus disbursements plus interest that we sought was $70,861.02 plus a post-judgment per diem interest rate of $12.75 per day. Justice Turnbull awarded $58,855.95 plus the per diem of $12.75 per day (from January 11, 2019 forward), a difference of $11,975.07.”

Van de Vrande says it’s important that agents have complete and accurate documentation in place for every contract. That includes listing agreements, agreements of purchase and sale and leases. What happened to Rahman is uncommon but it occurs more frequently in the industry than it should, he says.

“Not all cases are pursued in court (or at all),” says Van de Vrande, noting he had another experience where a buyer client bought a property they viewed on their own at an open house. “I was able to resolve the matter with the listing agent at the open house, who simply agreed to pay me the commission.”

To ensure brokerage and agent protection, Apex stipulates that all agents have a BRA. Van de Vrande says a BRA also offers “significant benefits” to buyer clients because “it allows their agent to negotiate the best possible terms on their behalf. It is a very balanced agreement.”

The case was conducted through a summary judgment – a process where a judge determines the outcome without impaneling a jury or requiring witness evidence in court.

“When documentation is all in place and the circumstances are clear, as in this case, then a summary judgment can be deemed appropriate,” Van de Vrande says.

A full trial would have prolonged the case, possibly by years, he adds. Still, the matter involved years of litigation. Van de Vrande says Apex was awarded substantial costs because the defendant refused early and reasonable settlement offers. However, the defendant is now appealing the judgment.

The agent and the seller originally agreed to a one-year BRA in 2012, which stipulated that Apex Realty’s sales rep was the exclusive agent for defendants to buy commercial properties for development and/or residential dwellings for resale in the GTA and surrounding towns and cities in Ontario.

“Unfortunately, we have no control over whether another party breaches a contract but from a salesperson’s point of view…it is important to make sure all agreements are in writing and the client understands it and receives a full copy of it,” says Van de Vrande. “Then you have proper recourse if someone breaches that agreement.”

11 COMMENTS

  1. This is a win! The fact that the Court has made a decision that the BRA is a legally enforceable document is real Real Estate Justice. Bravo!

  2. Upon appeal informed lawyers will clearly be bringing up the January 2019 announcement by RAHB that their members were supplying Buyers Fake Housing Market News. When you overstate market activity by over 12% and you are forced to admit you lied….you have a major legal problem is any Buyer relied on any statements of market intel you provided.

    While this BAA (when RAHB started using the disrespectful TREB acronym I do not know) may have been enforceable I suspect the lawyer for the defendant was not availed of historical context on the obligations the Buyer Brokerage actually was under. Clearly since no REBBA requirements were cited the defendant clearly did not realize all the potential violations outlined in the court proceedings.

    Again this is now probably mute should the defendant become informed about the FAKE Housing Market news produced by RAHB and now admitted to publicly in January.

    BTW You will notice CREA has not admitted blame in this FAKE Housing Market news and is relying upon the Governments across Canada from not being informed all the housing charts produced the last 7 years as Canada’s Housing Bubble was being inflated monthly by CREA, are simply false.

    • Could you please explain what so called ‘fake’ housing market news you are referring to and what was allegedly admitted ?

      • It is posted on the RAHB Board Website in full detail. Didn’t they inform the board and the new president before posting? Especially important since Burlington Ontario now ranks as the Municipality to have the highest FAKE Housing market Sales numbers ever posted in Canadian History.

        Knocked off Calgary and Edmonton former #1 Status. CMHC dropped ReSale Homes from its charts because of Calgary and Edmonton I wonder what Passerilli thinks about all those phoney CMHC charts on Hamilton Burlington that caused a NON-Record sales to become Records.

    • The only fake news here is the unsubstantiated nonsense of “Mr. Dehoey” who is clearly embarrassed to use his/her real name. Must be taking Trump lessons. Entertaining non the less.

      • Hey Lou (former president of RAHB?)

        Really…..OK Folks here is the direct link to RAHB admission. And it is a massive revision that clearly CREA demanded RAHB take instead of TREB. You see in Alberta CREA didn’t force CREB and EREB to make a meaculpa from reporting Edmonton Sales in Calgary’s Totals then reversing the reporting rules and boosting Edmonton sales in a year their sales were falling. Hilarious!!

        https://www.rahb.ca/rahb-realtors-release-revised-2018-year-end-statistics/

        Can you imagine the Class Action against RAHB when innocent buyers find out Peak Home Sales at RAHB happened in 2015 not, 2016 or 2017 like RAHB claimed they did.

        BTW Venngo is paying great referral fees from OREA that members have no idea are taking place.

  3. Good for you for standing up for your agent. If only all agents could count on a broker helping them like you helped Mr. Rahman! I do hope that the result of the appeal is also published in REM.

  4. Terrific outcome! These unethical people think only they have a right to earn a living. Hopefully, the appeal gets tossed out quickly and doesn’t drag on. It’s just another stall tactic to prolong the inevitable. That is, the unethical buyer must fulfill his end of the BRA.

  5. It had to be stressful and time consuming to fight for principle —as much as for money. So many broker bosses would “let it go”— so crudos to you for taking a stand for your agent and real estate. Marylon Hall

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