Agent contacted defendant several times to attempt to get listing for her home and asked if she could show it to purchasers. After showing, agent met with defendant to present offer, but refused to show offer until defendant agreed to listing agreement. Defendant entered listing agreement for one week and entered agreement of purchase and sale with purchasers, but refused to close. Listing agreement required payment of commission in event agreement of purchase and sale was entered during listing period. Action by real estate broker for $17,788.75 commission on basis it was payable given transaction did not close because of defendant’s refusal. Defendant clamed plaintiff materially breached listing agreement by failing to disclose agent was also representing purchasers. Action dismissed. Agent did not review dual agency provision of agreement with defendant, nor did she inform her in writing of dual agency that was in existence prior to offer to purchase, as specifically required by agreement. This requirement was a material term and the defendant testified she relied on the agent for advice, thinking she was acting only in her interests, and would not have entered listing agreement had she known about dual agency. Leaving agency pamphlet with defendant was not sufficient for agent to meet her disclosure duties under agreement. This non-disclosure was material breach that precluded plaintiff’s entitlement to commission.
Partners Realty Ltd. v. Morrow (Jan. 9, 2014, Ont. S.C.J., Pollak J., File No. 04-CV-274335SR) 236 A.C.W.S. (3d) 537.