In Tran v. Brickman, 2025 ONSC 4341, the Divisional Court looked at a case involving misrepresentation of Offers.
Ms. Tran was a real estate agent listing and selling her own property. She said that there were other Offers. There weren’t any.
She initially listed at $1.5 million and then lowered it to $1,25 million.
The Court said:
The Trial Judge found that there were no offers received in writing by Ms. Tran and therefore no registered offers received.
- Moreover, I note that in the text message at 4:29 on the day of the offers, Ms. Tran told the respondents’ agent that
- she had an offer that she could accept at 11:00 p.m. that night unless the respondents increased their bid.
- That statement was not true as well.
- It may well be that it is industry standard for agents to exchange informal verbal offers in advance of the formal presentation.
- None of that is relevant to whether the Brickmans were induced by misrepresentations in this case.
- To register an offer, there must be a presentable offer.
- I agree with the Trial Judge that the existence of oral back and forth was not a registered offer under RECO rules or as a matter of law.
- I expressly disagree with Mr. Birman’s submission that a registered offer simply means that there are interested parties.
- Oral puffery is not a registered offer or an offer capable of acceptance or presentation as represented by Ms. Tran.
The Court decided that damages being the mid point between the Buyers’ and the Seller’s Offers made sense and compensated the Buyers with $28,000.00
Comment
Phantom Offer legislation has been in since 15 July 2015. An agent cannot talk about it. It’s a lie, if it doesn’t exist.
Effectively, this type of misrepresentation amounts to fraud.
While the Courts have not really gone there at this point, this might be an element of “good faith negotiating”.
Brian Madigan LL.B., Broker