055774 N.B. Ltd. v. Midwinter (G.) & Associates Ltd. et al., (2002) 253 N.B.R.(2d) 126 (TD)

• Judge: Glennie, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: October 02, 2002
• Jurisdiction: New Brunswick
• Citations: (2002), 253 N.B.R.(2d) 126 (TD);2002 NBQB 312

055774 N.B. v. Midwinter & Assoc. (2002), 253 N.B.R.(2d) 126 (TD);

    253 R.N.-B.(2e) 126; 660 A.P.R. 126

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2002] N.B.R.(2d) TBEd. OC.007

055774 N.B. Ltd., doing business as Castlebridge Real Estate (plaintiff) v. G. Midwinter & Associates Ltd. and DP Consultants, a division of G. Midwinter & Associates Ltd. and Graham Midwinter (defendants)

(S/C/1089/00; 2002 NBQB 312)

Indexed As: 055774 N.B. Ltd. v. Midwinter (G.) & Associates Ltd. et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Glennie, J.

October 2, 2002.

Summary:

The defendant property owner sold com­mercial property during the term of an ex­clusive listing agreement with the plaintiff. The defendant refused to pay a commission, submitting that the listing agreement was void where no true copy of the agreement was ever delivered by the plaintiff, as re­quired by s. 22(1) of the Real Estate Agents Act, and that the plaintiff waived his en­titlement to a commission. The plaintiff sued.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the action. Section 22(1) was not violated. There was no waiver. The defendant did not deal with the plaintiff honestly, fairly and in good faith. The defendant acknowledged owing a commission while at the same time embark­ing on a course of conduct to deprive the plaintiff of that commission.

Brokers - Topic 4040

Compensation - Right to compensation - Waiver - A vendor submitted that a real estate agent waived its right to commission on a sale - The New Brunswick Court of Queen's Bench, Trial Division, rejected the submission - The evidence clearly estab­lished no waiver - There was no unequivo­cal and conscious intention by the agent to abandon its right to a commission - See paragraphs 105 to 106.

Brokers - Topic 4069

Compensation - The compensation agree­ment - Real estate listing agreement - A landowner listed commercial property (building and 5.5 acres) for sale with the plaintiff real estate agent - The defendant acquired title by foreclosure - The plaintiff and defendant agreed that the original listing agreement applied and extended the term - The building and 2.5 acres were sold - The defendant never paid a commis­sion, but acknowledged the plaintiff's entitlement - The defendant made unilat­eral changes to the listing agreement, taking the position that the plaintiff would have to "earn" its commission by selling the remaining 3.0 acres - When the re­maining acres were sold, the defendant still refused to pay - The defendant pleaded s. 22(1) of the Real Estate Agents Act (agreement void for nondelivery of true copy of agreement) and waiver of the commission - The New Brunswick Court of Queen's Bench, Trial Division, held that the plaintiff was entitled to the agreed commission.

Brokers - Topic 4074

Compensation - The compensation agree­ment - Effect of breach of statute - Section 22(1) of the Real Estate Agents Act pro­vided that a vendor was not bound by a listing agreement "if the agent does not deliver a true copy of the agreement to the person who signs the agreement" - The New Brunswick Court of Queen's Bench, Trial Division, stated that "a true copy, be it an original, a duplicate original, a carbon copy, a xeroxed copy 'or some other re­production of the original', is intended to provide the parties with a clear record of all the material terms and conditions of the listing agreement ... for the purpose of preventing fraud or hard dealing on the part of the broker or salesman" - The court held that s. 22(1) was complied with where the vendor retained all of the original copies - Accordingly, the submission that the listing agreement was void because true copies were never delivered to the vendor by the plaintiff was without merit - See paragraphs 93 to 103.

Contracts - Topic 1106

Formation of contract - General principles - Duty to negotiate in good faith - The New Brunswick Court of Queen's Bench, Trial Division, stated that "good faith has been regarded as an implicit, necessary obligation in all contractual relationships. ... There is an obligation to bargain and negotiate in good faith, reasonable expecta­tions within the bargaining process being used to define the content of the good faith obligations."

Cases Noticed:

Aiello v. Lowenberg, [1963] 2 O.R. 458 (C.A.), refd to. [para. 96].

Saskatchewan River Bungalows Ltd. and Fikowski v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490; 168 N.R. 381; 155 A.R. 321; 73 W.A.C. 321, refd to. [para. 106].

Houle v. Banque Nationale du Canada, [1990] 3 S.C.R. 122; 114 N.R. 161; 35 Q.A.C. 161; 74 D.L.R.(4th) 571, refd to. [para. 107].

Crawford et al. v. Agricultural Develop­ment Board (N.B.) et al. (1997), 192 N.B.R.(2d) 68; 489 A.P.R. 68; 13 R.P.R.(3d) 215 (C.A.), refd to. [para. 107].

International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57, refd to. [para. 108].

Valley Equipment Ltd. et al. v. Deere (John) Ltd. (2000), 233 N.B.R.(2d) 264; 572 A.P.R. 264 (T.D.), refd to. [para. 108].

Del Bro Real Estate Ltd. v. Goldstein (1991), 76 Man.R.(2d) 57; 10 W.A.C. 57 (C.A.), refd to. [para. 110].

Smalley Agencies Ltd. v. Hill-Everest Holdings Ltd. et al. (1992), 80 Man.R.(2d) 56 (Q.B.), affd. (1993), 83 Man.R.(2d) 240; 36 W.A.C. 240 (C.A.), refd to. [para. 111].

Luxor (Eastbourne) Ltd. v. Cooper, [1941] A.C. 108; 110 L.J.K.B. 131 (H.L.), refd to. [para. 112].

Galan v. Alekno, [1950] O.R. 387, refd to. [para. 113].

Murray (Tony) Associates Co. v. Morris (1980), 26 Nfld. & P.E.I.R. 31; 72 A.P.R. 31 (Nfld. T.D.), refd to. [para. 113].

Authors and Works Noticed:

Atiyah, P.S., Contract and Fair Exchange (1985), 35 U.T. Law J. 1, p. 17 [para. 108].

Foster, William F., Real Estate Agency Law in Canada (2nd Ed. 1994), pp. 78 [para. 97]; 79 [para. 98]; 127, 128 [para. 115].

Law Society of Upper Canada Special Lectures (1995), Good Faith in Canada Contract Law, pp. 73 to 92 [para. 108].

Counsel:

Howard A. Spalding, Q.C., and Colin D. Feltham, for the plaintiff;

Allen I. Murray, for the defendants.

This action was heard on July 16-17, 2002, before Glennie, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following judgment on October 2, 2002.