Agents often require buyer clients to enter into a Buyer’s Representation Agreement (BRA), which sets out the buyer’s agreement to pay the agent a commission on certain terms. The BRA is intended to provide an agent with some protection when working for a buyer to look for a home, without any guarantee that a deal will ever result. Often a BRA may have a term that requires a buyer to pay a commission if they find another property using the services of another agent during a specified period of time.

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Agents must ensure that their clients understand and agree to the terms of the BRA or it may not be enforceable.

In Sutton Group-Admiral Realty Inc. v. Taborovska, 2021 ONSC 2837 (CanLII), the applicant agent worked with two clients for more than a year trying to find a home in the Greater Toronto Area for their daughter, Ganna. In November 2018, the parents decided to make an offer on a property in Mississauga for $2.1 million. As they lived in Kiev, the offer was made in Ganna’s name to avoid the Non-Resident Speculation Tax.

The agent spoke several times by telephone with Ganna’s father before the offer was signed. However, he never showed Ganna the Mississauga property or spoke to her about it before he prepared the offer documents for her to sign.

At 6:12 p.m. on Nov. 12, the agent sent a 19-page document to Ganna’s father by email, containing the draft Agreement of Purchase and Sale (APS), the BRA, a Confirmation of Co-operation and Representation form, a Realtor Customer Relationship acknowledgment form, an Individual Identification Information Record and an Offer Summary.

At 10:21 p.m. on Nov. 12, Ganna returned the executed documents, including the APS and the BRA, to the agent by email. No changes or amendments had been made to the documents. The BRA entitled the agent to a 2.5-per-cent commission on the Mississauga property or any other single-family home Ganna bought in the Greater Toronto Area commencing Nov. 12, 2018 and ending four months thereafter on March 11, 2019.

The offer on the Mississauga property was rejected. On Nov. 22, just 10 days after signing the BRA, Ganna made an offer on another home in Toronto through a different real estate agent for $3 million. That offer was accepted and the deal closed on Jan. 4, 2019.

The agent subsequently brought an application for an order requiring Ganna to pay him a 2.5-per-cent commission on the Toronto property. In response, Ganna sought a declaration from the court that the BRA was void and unenforceable.

A trial of the issues was heard by Justice Breese Davies in late 2020. At trial, Ganna did not dispute signing the BRA or that she bought a property in Toronto 10 days later with another agent. As a matter of contract, the agent was therefore entitled to a 2.5-per-cent commission on the Toronto property unless the BRA was determined to be unenforceable.

In that regard, Ganna raised the defence of “non est factum” which essentially means that a party signing a contract did not understand what they were agreeing to. This position is obviously prone to abuse by parties seeking to avoid contractual obligations and requires convincing proof that (i) they were mistaken about the nature of the contract; (ii) the mistake as to the nature of the contract was the result of a misrepresentation by the other party; and (iii) they were not simply careless in signing the contract without reading it.

Justice Davies ruled in favour of Ganna on all three parts of the test.

First, Justice Davies found that most of the communications regarding the BRA were between the agent and Ganna’s father, rather than Ganna. Ganna had a very limited role in the prospective house purchase and was not actively involved in the telephone conversations between the agent and her father. Justice Davies found that the agent did not explain the BRA to Ganna directly and that any information she received about the BRA came from her father.

Second, Justice Davies determined that the agent had misrepresented the fundamental nature of the BRA to Ganna’s father by telling him that it related to the prospective Mississauga property only, and without expressly confirming that the commission would be payable for other properties if the transaction did not proceed. Ganna’s father relayed this incorrect information to her before she signed the BRA. In Justice Davies’s view, Ganna therefore misunderstood the fundamental nature of the BRA and her misunderstanding was the result of the agent’s misrepresentation to her father.

The final issue was whether Ganna was careless by signing the documents based on her father’s description of the documents. Understandably, the agent argued that by signing and returning the documents to him without any changes or inquiries, Ganna was at least careless in the manner that she signed the BRA.

As a general rule in Ontario law, a person who executes a document without taking the time to read it cannot later argue that she was mistaken as to its contents. See Isaacs v. Royal Bank of Canada, 2010 ONSC 3527 (CanLII) at para. 37. The rationale for this rule is that a party should not be able to rely on their own carelessness to avoid liability to an innocent party to the contract who acted in good faith.

Once again, the agent’s main failing was that he never spoke directly to Ganna about the BRA to explain the document to her. At the least, the agent had an obligation to ensure that Ganna understood the documents he was asking her to sign rather than relying on her father to act as the conduit of (incorrect) information. As between the agent and Ganna, Justice Davies found that it was reasonable for Ganna to rely on the information she received from her father and she was not careless in doing so. Having failed to communicate directly with Ganna about the terms of the legal agreement she was entering into, the agent was not permitted to enforce the terms of the BRA against her.

In the result, the agent’s application was dismissed and the court determined that the BRA was unenforceable.

One has sympathy for the agent, who will receive no compensation after spending a year trying to find a home for Ganna’s parents in the GTA. To avoid similar results, agents who wish to rely on a BRA should take steps to ensure that the party who is signing it has the opportunity to review it, to ask any questions, and positively confirms that they understand under what circumstances the commission is payable, and for what period of time.

Often a BRA is presented to a client at the same time as the Agreement of Purchase and Sale and several other documents, and there is little time to review the terms of the BRA in any detail. Agents may wish to consider taking the time to review the terms of a BRA with a client well before a potential deal is finalized so that the client cannot complain thereafter that its terms came as a complete surprise.

25 COMMENTS

  1. A BRA contract should be explained and executed at the onset of the working relationship. Doing this at the time of contract does not seem appropriate to me.

  2. No! no sympathy at all for the agent! S/he writes contract for a living and didn’t bother to properly advise the person signing the contract? S/he is lucky if a dismissal is all they got – they deserve a heavy fine , enforced education and a possible investigation by the constabulary.

    But there’s just so much more wrong with what this agent did even though unstated, we can deduce the agent also:

    -sent an individual Identification form to the father? What for, so that the father would do the identifying of himself or Genna?

    -prepared the APS without the authority to do so.

    -dealt with someone who had no power of attorney for the client.

    – and worst of all – assisted non-residents in the circumvention of Canadian law and evasion of taxes.

  3. Right, there’s the 2nd buyer agreement – how was it understandable, and a years search – not a one show slam dunk, hard to see it as a case of naive school children – by the way where is FINTRAC on this ?

  4. This judge was faced with a decision as to whether Gana was liable for a second $75,000. commission to be payable to a Realtor who did not perform the activity for which he wanted to be paid. What’s not stated in this article is whether or not Gana was fed up with the original Realtor’s previous year-long behaviour, thus causing her to seek help elsewhere. I don’t think there’s a judge on earth who would have enforced this BRA.

    I’ve heard from more than one legal beagle that most judges will go out of their way to find reasons to interpret real estate contracts such as to rule against Realtors, because they quite simply don’t like real estate agents in general. It’s a case of the bad apples leaving a bad taste in the mouths of those who can get back at them (judges), sometimes ruling against possibly innocent Realtors. Even judges can fall victim to smearing everyone of a certain distasteful venue—in their minds—with the same brush. They’re human after all, and thus, individual real estate-industry innocents can suffer poor legal outcomes as the result of negatively-held holdover bias internalized from others’ suspicious actions.

    This Realtor was clearly negligent according to the facts as presented herein, and negligence should not be rewarded with a $75,000. pay cheque.

    It’s not a good idea to allow a party to a contract to sign same without making sure the signator understands every single word within. Doing so constitutes willful/fraudulent misrepresentation by way of omission, in my book.

    Want to be thought of as a pro? Behave as one, no matter how long that might take.

    • Shades of the hate campaign lady in the huge competition bureau fiasco, Brian. You will surely recall the thoughts that the follow-up tragedy brought to the fore, readers thinking she likely felt she had been abused in a real real estate transaction and that was her way of being a disrupter of the day, in an effort to bring the real estate industry to its knees in retribution. Many thought she used abuse of power to get her point across.

      I had judges and many lawyers and bank managers over the years as clients and I was always fascinated by what all they didn’t know about the real estate business, even if it was their key earning practice. No one can know everything about any related topic. And they certainly should not let their personal experiences enter into their decision making. They have been known to misinterpret findings and sometimes there is recourse, sometimes not.

      The advantage the buyers had was that English clearly was not their first language and at the end of the day what I said in my earlier (Kiev) comment applies.

    • This whole Kiev thing raises concern…the $2 think of course wont let them off the LTT but wonder if its an attempt to hide price from the folks in the Ukraine (where there is lots of Russian money and influence)

  5. Checking the transaction on Geowarehouse [sorry, I’m not a TREB member] shows it was transferred to the new owner for the princely sum of $2—yup, a twonie- guess they were trying to save on Land Transfer Tax as well

  6. “The BRA entitled the agent to a 2.5-per-cent commission”. I’m wondering if the father and daughter fully understood that the buyer agency fees are negotiable. Why would any buyer pay 2.5% if they understood what they were signing. How many Realtors advise buyers that their fees are negotiable? I expect many Realtors continue to advise the consumer buyer that their services are “FREE” and the seller pays their fees. What buyers today would pay 2.5% if they knowingly understood they could pay 1.5% or even 1% on the purchase of a property. RECO has nothing on their website about buyer fees being negotiable. Today with the high price of real estate a buyer paying 1% rather than 2% is a huge saving to them. The seller should NOT be setting the fees for the buyer agents. This would save real estate consumers billions of dollars and increase competition within the industry. Buyer Agency has been a complete failure and buyer consumers will continue to overpay for their services by many thousands of dollars until the competition bureau steps in and studies the issue.

  7. These things always walk a fine line. You get all the documents signed, to back up all your hard work, and you get stung for it. This is exactly why I try hard to have Buyers see all the documents near the beginning of their search. It ends up speeding up the offer process down the road when you’ve already explained the contracts to them.

    However, whether it’s at the beginning or at the end, Ganna signed the documents, whether fully explained or not. And to me, that signing is her way of saying, ‘you’ve done well this past year, I appreciate it, lets move forward and try to get this house’. And yet, she has no appreciation, and offers on a different home, with another Realtor. Why the f**k do people do that?? And, did she not understand the BRA that was set in front of her when making the 2nd offer? Does it not raise a smidgeon of ‘hmm, this looks familiar’ in her mind. Give me a break… as it stands to me… the agent could have done better, Ganna needs a course in acting fairly and honestly with people, and the judge just blew it

  8. From Russia with Love?
    
    If this was to be the parent principle residence in Canada, why didn’t the buyer agent in Canada who prepared the BRA not advise Ganna to have the closing lawyer review the BRA before her signing, representing her father, who might have suggested a POA be included in the particular BRA arrangement. Or maybe noting that she was buying in trust. Or even to instruct to have his local lawyer review the contract prior to signing, as it seems the father had no idea the meaning of what he was asking his Canadian daughter to sign.

    If the agent knew all along that the transaction was a tax avoidance (was it really?) should he not be held accountable? Allegedly he drafted the BRA. Clearly not having a sufficient command of the English language, here or overseas, and specifically in regard to legal documents (and the agent would have known that) isn’t it odd that the agent didn’t initially seek his own legal advice when preparing the innards of the BRA. Seems to have been working outside his own area of expertise… where was the agent broker?

    When in doubt seek legal advice or other expert direction. This BRA and its related 19-page email situation simply could have been avoided and set up properly right from the get-go. The agent seems indeed part of the fault-finding BRA mess based on the article information provided in the REM article. Might even be real estate agent misrepresentation? Not having instructed Ganna to seek independent legal advice prior to signing the BRA here in Canada, who allegedly never seems to have read what her father had agreed to and wouldn’t have understood what she was signing in any event. Surely this is not a unique situation?

    Carolyne L 🍁

      • Life was so much simpler in sub-agency days, PED. Everyone knew where they stood even so BORs dictated commissions and who did what.
        So many agents, their brokers, lawyers, mortgage brokers, bankers, even appraisers, et al… have never cottoned on as they say in the South, but after 25 years since buyer brokerage burst upon us, there’s not likely going to be any kind of magic moment of enlightenment at this stage. There are those who simply do not accept it and no promise in sight that they ever will. Carolyne
        From my iPhone

        • AS you know the change from sub-agency began when a judge said you are not a sub-agent, you are an agent gratis for the buyer. During the old days buyers THOUGHT the agent was representing them and of course although the agent acted that way when they were supposed to be looking after the seller as sub agent. The mess had to be dealt with as imperfect as it may seem now.

          • Please say where and when it is / was written in real life: “gratis agent” for the buyer. Maybe this confirms why the press insists on writing that only the seller pays commission (maybe the commission reference should be called “representation fee,” and not be referred to as commission; and not discussed in terms of percentages; making way for flat fees – whatever a buyer agent can negotiate. And many agents in fact do believe that to indeed be true. If so whoever in the legal world drafted the legal composition of the tangible BRA physical contract structured as it is clearly indicated other than “gratis agent.” Subject to being agreed to by the said buyer.
            With a few strokes of a pen, and an accompanying signature confirmation the whole concept of gratis agent changes dramatically.

            As buyer agents we are not dealing with the semantics of the English language. If what you write quoting a judge in particular is correct then BRA’s physical contracts need to be amended immediately, even if in current use more than twenty-five years after the fact. And the seller must sign that he confirms and understands he is paying the “full” commission and that he understands the forthcoming buyer although having “legal representation” is represented by a “gratis agent.” (No commission owing.)
            (Absolutely no commission to be paid per se to said buyer rep.) The BRA would have no reason to talk about monies / commission being paid in any fashion; just authorizing “representation” only. GRATIS, since that precedent you quoted / noted would totally disband the BRA currently in use. The contract as used would appear to be against the law?

            Respectfully
            Carolyne L
            From my iPhone

  9. Interesting read. Did the buyer also not fully understand the BRA when she signed it with the second agent? The BRA clearly states that the Buyer is not party to any other BRA. This should have triggered the buyer to inquire whether they were already under contract. Poor decision by the judge.

    • I agree with you. It’s easy to claim ignorance after the fact. In any other scenario, if you are given a bunch of paper to sign and you sign it, that is on you regardless of who did or did not explain it to you. That is of course unless you cannot read / or have a language barrier – in which case the person sending you the paperwork to sign should explain it to you and advise you to have a lawyer who can explain it to you in your own language. The basics are very simple – buyers don’t pay unless the seller is not willing or is paying less than the stated amount in the BRA. The buyer, who is buying a $3M property should be by the same token be responsible for what they are signing… I don’t agree with this ruling. This sounds like a ruling to create a precedence.

    • Well that BRA is not challenged so it’s a moot point and we do not know if in this case the winning agent counselled the buyer or her father or both and even if they actually asked about the presence of an existing BRA and was told no, unless it’s in the Buyer Registry they didn’t steal a client. That is likely why the losing agent opted to go to court – arbitration probably failed to give them the commission.

      The ruling is sound – the onus is on the agent to ensure the basics of contract enforcement are in play,

  10. When the CRA sees this article and audits the Buyers for commiting tax fraud its going to cost them alot more than 2.5% comission. Bad decision by the court, I guess signed contracts don’t matter anymore.

      • Tax evasion…. did you remit the HST from that garage sale you held 4 years ago? Did you pay that contractor with cash just that one time? Rent that basement for cash and never report it as income? Unfortunately, Governments encourage it. Tax, tax, tax…. oh and now carbon tax on tax and “luxury tax.” Great!

        • I know of no garage sale that collects $30,000 a year and I don’t hold garagesales.

          Actually, yes, I insist that contractors I hire provide me with proper invoicing and their HST number. I also advise clients and friends to do the same otherwise they can kiss their money goodbye if there are any problems. Similarly, when it comes to renting real estate, I encorage my clients to do it leglally.

          But I gather that since your question was posed with the obvious inference that taxes are not collected/paid with those particular activities, you’re quite fine with tax evasion and prefer a false narrative that governments encourage it.

          I’m not quite fine, not even mildly fine with tax evasion, nor do I share your cynicism!

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