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Cite as: Cleary v. Martin, 1990 NSSC 6 1990 S.H. No. 14441 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: WILLIAM S. CLEARY and 100068 ONTARIO LTD. , APPLICANTS - and ROBERT G. MARTIN and THE ATTORNEY GENERAL OF NOVA SCOTIA RESPONDENTS HEARD: At Halifax, Nova Scotia, before the Honourable Mr. Justice David W. Gruchy, in Chambers, on October 5, 1990. DECISION: October 5, 1990 COUNSEL: Alexander M. Cameron, Solicitor .fo.r the Applicants
1990 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: WILLIAM S. CLEARY and 700068 ONTARIO LTD. , - and ROBERT G. MARTIN and THE ATTORNEY GENERAL OF NOVA SCOTIA, GRUCHY, J. (I rendered my decision the hearing· of this matter supplement it by a written decision.) S.R. No. 74447 APPLICANTS RESPONDENTS orally at the time of and indicated that I would
- The Applicants in their action by way of an Inter Parties, and seek a required to be licensed under Licensing Act, R.S.N.S. 1989, the nature of a mandamus requiring Martin, to grant a license Cleary pursuant to the Direct Regulation Act, R.S.N.S., 1989, Chapter 129. I want to indicate position is to the effect that the are inappropriate; that is, that any declaration given would have to be so restricted in its virtually useless. Nonetheless, required jurisdication and the consideration of the matters raised, I believe, is of some and to the public. I have cases of Solosky v , The Queen R. v : Shore Disposal Ltd.: al v. Shore Disposal Ltd. Whynot et al v. The Queen (SCA I have also considered the 2 this action have commenced Originating Notice Application declaration that they are not the Real Estate Brokers' Chapter 384 and an Order in the Respondent, Robert to the Applicant, William S. Sellers' Licensing and that the Attorney General's remedies sought herein factual basis as to be the Court does have the importance to the parties particularly referred to 'the (1980), 105 D.L.R. (3d) 745, Ed DeWolfe Trucking Ltd., et (1976), 16 N.S.R. (2d) 538 and No. 01888) in this regard. usual requirements for mandamus
or declaratory relief and in particular the cases of Smith's Field Manor Development Limited 83 N.S.R. (2d) 41 (Trial); Rawdon Realties Limited v ; 56 N.S.R. (2d) 403; 117 A.P.A. 403. I will review the facts which are before as are set forth in the affidavits. Attorney General's position that any findings here will obviously be restricted to those facts. On June 6, 1990, into a franchise agreement Ontario Ltd., doing business Consul tants, ("Peartree"). Ltd., is Robert Poirier, Under the terms of the agreement, S. Cleary, was entitled to carryon business in prescribed by Peartree in Hants County and in Kings Nova Scotia. According to offers Nova Scotians who wish "unique" service. Upon entering into a contact with Peartree, - 3 v ; Halifax (City) 1988), 83 N.S.R. (2d) 29 (Appeal) and Rent Review Commission (1983), me and In keeping with the I ought particularly to note the Applicant, Cleary, entered with an Ontario company, 700069 as Peartree Home Marketing The principal of 700068 Ontario the affiant for the applicant. the Applicant, William a fashion County, the Peartree publicity Peartree to sell their own houses a
- the homeowner receives "do-it-yourself" package. buyer's guide, a standard and sale, information respecting a few other items. It consists largely of glossy material, printed forms well, the service also includes consultative service. The fee for that package and service is $345.00 payable in advance be paid to the applicant by proceeds of the sale of the the services are discontinued, in the event that the purchaser who buys the house from the the subject property while Peartree service, the $995.00 contingent fee is payable. It should also be that at no time does Peartree or presumabley its francisee, act as an agent or intermediary third parties. On July 10th, 1990, the Nova Scotia Department of Consumer Affairs for a 4 commercial advice and a The package contains signs, a form of agreement of purchase offers to purchase and some relatively and signs. Presumably as a consultation or a and in addition, $995.00 to the owner upon and from the house. Regardless of whether homeowner was introduced to the homeowner was using the noted that the applicant says between the homeowner and the Applicant applied to license
under the Direct Sellers' That application was denied. who is also the Superintendent under the Real Estate Brokers' Licensing Act and the Director of Affairs, after reviewing the nature of the services provided by the Applicant, concluded constitute "trading" under the Real Estate Brokers' Licensing Act. He advised the Applicant that he ought to seek a license under that Act. A letter to this effect was the Department of Consumer is dated July 27, 1990 and was as follows: "The particular type your company homeowners in the sale of their brings into play Brokers' Licensing Act. trading in real and a streamlined purposes of our as follows: 'Trading includes conduct which indirectly disposition, transaction or estate. I The service you to fall within the definition of trading contained in our further emphasized - 5 Licensing and Regulation Act. The Registrar, Robert G. Martin, Commercial and Consumer that the activities would forwarded by Affairs to the applicant, it of service which provides, assisting home, the Real Estate The Act defines estate very broadly, definition for the discussion might be any act or directly or furthers any acquisition, offer in real are providing appears Act. This fact is by two factors
- pertaining to your of operation: - The prominence of the Peartree name in the homeowners. the payment included a significant payable if the using the Peartree service. payment very a commission for the part played by Peartree in the horne. This being the case, it is the opinion of this Department should license under Brokers • Licensing the Director Sellers' Regulation Act." This application as a result of that letter. I will now turn to the issues as the facts before me. I see issue in this application is whether applicant· consti tutes "trading in real estate" for purposes of Section 3(a) of the Real Estate Brokers' Licensing Act: "No person shall 6 company's method signs provided to scheme, which amount property sells This much resembles sale of the that your firm the Real Estate Act rather than Licensing & for mandamus has been taken I see them on that the central or seminal the business of the
- (a) trade in real is licensed as a broker or as a salesman of a licensed broker: And Section 2(1) defines fltrade fltrade" or "trading" dispostion or transaction in real purchase, agreement for sale, exchange, option, lease, and any offer or attempt to list real estate for the disposition or transaction, act, advertisement, negotiation, directly in furtherance acquisition, transaction, attempt ... " It is to be noted that this definition is not in exclusive terms. The ordinary meaning of fltrade" and "trading" continue to apply together with the to htose words by that sub-section. The word "trade" in ordinary use has a wide variety of meanings. The meaning which intended to apply in the context of the Real Estate Brokers' Licensing Act is that which is 7 estate unless he fl fl as follows: includes a acquisition of or estate by sale, rental or otherwise purpose of such a and any conduct or or indirectly, of any disposition, offer or additional meaning attributed I believe the legislature found in the Webster's New
- International Dictionary (2nd Ed.) as follows: "Act or business commodities by barter, and selling for money: ... " The Concise Oxford Dictionary (4th Edition) describes "trade", in part as follows: "exchange of commodities or other commodities, commerce: ... " Black's Law Dictionary, 5th follows: "The act or the and selling for money: traffic: barter." The case law in this area of qui te unsatisfactory: nevertheless, dealt with certain aspects reviewed. The first case is v. Mont (1986), 74 N.S.R. (2d) 211, a decision of the Supreme Court Trial Division wherein the plaintiff was a real estate 8 of exchanging or by buying for money Ed., defines "trade" in as business of buying law I found to be several cases have of this issue and ought to be a Nova Scotia case, Ritchie
- salesman but was not representing his broker in the particular transaction considered. The property transaction and provided The defendant was unable to the plaintiff to negotiate The plaintiff asked for ten fee and the defendant agreed. fell through, the defendant refused to pay and claimed that the plaintiff was illegally trading in real estate contrary to Section 3(a) of the Real Estate Brokers' Tidman, J., determined that Section 3 (a) but was simply carrying out He stated at page 218 of his decision: " In any event, the plaintiff "was estate", but rather carrying out a is not a' case of earning on a sale of real estate of being paid for rendered." R. v , Sutcliffe Agencies 245, (Manitoba Court of Appeal) is also of relevance. case involved an Ontario real estate 9 defendant had commenced a a deposit to the vendor. close the sale and employed an extension of the agreement. percent of the deposit as a When the transaction eventually Licensing Act. the plaintiff had not breached a business deal. I do not believe trading in real in this case was business deal. It a commission but rather a business service Ltd. (1980), 17 R.P.R. That agent who negotiated
- from Ontario for a Manitoba The Manitoba Court of Appeal constituted a contravention of the "trading in real estate" provision in the Real Estate Brokers' provisions of that Act are provisions. On the specific provision, found that because the accused a sale of a parcel of land registered to do so, he had contravened that Act. A third decision which appears to be more germane to this issue is the case of R. (2d) 370. The Alberta Court a business known as "Canadian consisted exclusively of properties for rent in the City of Edmonton. Canadian Homefinders charged a constantly up-dated his lists return to the appellant for the revisions to the lists upon payment of additional fees. of trading in real estate Section 4(1) of the Real Estate Agents' Licensing Act, which is almost identical to Section 10 property over the telephone. held that such activity Act of Manitoba. The similar to the Nova Scotia the Manitoba Court had negotiated for reward in Manitoba without being v , Clark (1973), 11 C.C.C. of Appeal, there considered Homefinders". That business compiling lists of residential For such lists, fee of $20.00. The appellant and customers would often The appellant was convicted without a license contrary of 3 (a) of our own Act. Upon
- Appeal the Alberta Court of Appeal did not contravene that section page 371: "The appellant properties: did terms of rental: rental agent. appellant supplied The fee he received the information dependent upon leased." These cases seem to point involves a direct interest property transaction. Selling information in and does not constitute trading legislation. It seems to me that the rationale of these three cases is that if the fees to be charged by the "agent" lack of a better word to are dependant upon, in whole or in part, of the property, then the in real estate. That is in order to avoid the purview of 11 found that the appellant and stated as follows at did not show any not negotiate any or did not act as In substance the information only. for supplying was not in any way any premises being toward the notion that trading in the outcome of a particular of itself for the purpose of the (for describe all three individuals) the eventual sale activity constitutes "trading"
- the legislation, the agent must not have interest in the sale of the property. In the case at applicant's fee structure is such that there is a fee payable from the proceeds in the contract. That, to because it ties the applicant to the property transaction. It seems clear interest in the sale of a squarely in the business of buying and selling real property. It is also very clear from the terms of the agreement used that the applicant has a direct sale of the property forming agreement. I return to the Act. I find that by having upon the proceeds of a particular of the applicants relative conduct in the furtherance 12 a direct pecuniary hand, the arrangement of the secondary of the property identified my mind, constitutes trading outcome of the actual to me that having a financial property places the applicant pecuniary interest in the the subject matter of the Real Estate Brokers' Licensing a contingency fee dependent sale then the activity to that sale does constitute of a real estate transaction.
- Having found that I also find that the applicant's business requires licensing under that Act. In reaching this the obvious intent of the the Real Estate Brokers' Licensing Act. statute is IIAn Act for the Estate and for the Licensing was clearly passed for the protection of the public. protection was, I suggest, from unscrupulous or unqualified persons entering into a field seriously financially harmed. whereby the public, hopefully, of protectiori. It sets conditions salesman, establishes an advisory board, methods of suspending salesmen and requirements for particular, the statute establishes fund to respond to judgments against agents fraud or breach of trust. The Direct Sellers • Act, on the other hand, is the traditional "door to door" type of sales. 13 conclusion, I have considered legislature in the adoption of The title of the Regulation of Trading in Real of Real Estate Agents. II It That where the public could be That statute sets up a means will be afforded a degree for the licensing of the bonding of salesmen. In a real estate assurance resulting from Licensing and Regulation clearly designed to regulate While a degree
- of protection is provided is clearly not designed to address the intricacies of real estate sales. I was informed application that the bonding Act afford far less protection Brokers' Licensing Act in its bonding requirement or fund. The Peartree method homeowner to sell his own property. method of selling property well known that sales of real estate require kind of expertise. That not being offered by the Applicant. by the Applicant are tied directly to the successful sale of the house. The result is, therefore, that the Peartree scheme may well lead to the sell his horne by inexpert sales staff with ~ithout the protection afforded by the Act. This application costs. Halifax, Nova Scotia October 5, 1990 14 to the public by this Act, it at the hearing of this requirements pursuant to this than does the Real Estate is one which encourages the That may be a desirable in some instances, but it is a particular expertise is precisely what is Yet the fees charged homeowner being encouraged to no recourse and is with J.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.