Urban Landmark Realty Inc. v Hill 2025 CanLII 78648 (ON SCSM)
The decision in Urban Landmark Realty Inc. v Hill is a cautionary tale for both real estate professionals and buyers. It highlights a recurring issue in modern real estate practice: the enforceability of electronically signed Buyer Representation Agreements (“BRAs”), especially when presented during fast-moving offer situations.
At first glance, the case appears straightforward. A brokerage sought to recover its full commission after its clients purchased a property without involving their agent.
The claim was based on a signed BRA, which entitled the brokerage to 2.5% of the purchase price. But the Court ultimately refused to enforce that agreement. Even so, the agent was not left empty-handed.
The Relationship and the Breakdown
The agent had worked with the Buyers for nearly a year. During that time, he provided extensive services, answering questions, researching properties, arranging showings, and submitting offers. By all accounts, the quality of service was not in dispute.
The problem arose during the preparation of an offer on a property in January 2023. Facing a tight deadline, the agent sent a package of documents through Authentisign for electronic signature. Included in that package, alongside the agreement of purchase and sale and related documents was a Buyer Representation Agreement.
The Buyers signed.
However, they later testified that they believed all documents related solely to the offer.
They did not understand that:
- they were entering into a binding BRA
- that would obligate them to pay commission
- on any property purchased
- within a defined period and
- geographic area.
Weeks later, the Buyers independently found a “for sale by owner” property, negotiated directly with the Seller, and completed the purchase without involving the agent. Only after the deal was done did the brokerage assert its claim for commission.
Non Est Factum: The BRA Is Not Enforceable
The central issue was whether the BRA was enforceable.
The Buyers relied on the doctrine of non est factum, which allows a party to avoid a signed document where:
- The document was fundamentally different from what they believed they were signing,
- The misunderstanding was caused by a misrepresentation, and
- They were not careless in signing it.
The Court accepted this defence.
The judge found that the agent had effectively misrepresented the nature of the BRA, not by outright deception, but by the way it was presented.
The agreement was
- embedded within a package of offer documents,
- labeled ambiguously, and
- sent for signature under significant time pressure.
The Buyers were expecting to sign an offer, not a long-term contractual commitment governing future purchases.
Critically, the Court emphasized that a BRA is a fundamentally different document from an agreement of purchase and sale. It imposes ongoing obligations, including commission, exclusivity, and holdover provisions.
The BRA must be clearly identified and brought to the client’s attention. It should never be “slipped in” alongside offer documents in a time-sensitive transaction.
Because the Buyers were found to have been mistaken as to the nature of the document and not careless in the circumstances, the BRA was declared unenforceable.
Unjust Enrichment: A Partial Recovery
That was not the end of the matter.
The brokerage also advanced a claim in unjust enrichment, relying on the framework established by the Supreme Court of Canada in Garland v Consumers’ Gas Co. To succeed, it had to show:
- An enrichment of the defendants,
- A corresponding deprivation to the plaintiff, and
- No juristic reason for the enrichment.
The Court found all three elements were met.
Although the agent had no involvement in the final transaction, he had provided months of services that assisted the Buyers in understanding the market and ultimately acquiring a home. At the same time, the Buyers had negotiated directly with the Seller and avoided paying commission, securing a lower purchase price in the process.
The judge was also troubled by the Buyers’ conduct. After working extensively with the agent, they viewed and purchased the property without informing him, and represented to the Seller that they were not working with a realtor. While the BRA was unenforceable, the Court found that the Buyers had nevertheless benefited from the agent’s efforts and had intentionally avoided paying commission.
Result
Faced with misconduct on both sides, the Court crafted a middle-ground remedy.
Rather than awarding the full 2.5% commission, the judge granted a reduced award of 1% of the purchase price, recognizing both:
- The agent’s substantial contribution, and
- The impropriety in how the BRA was obtained.
The result was a judgment of $12,100, with no interest and no immediate costs award.
Considerations
This case underscores a critical point for real estate professionals:
how a BRA is presented can be just as important as its contents.
Electronic signing platforms and fast-paced offer environments do not excuse the obligation to clearly disclose and explain contractual commitments.
A BRA should be:
- presented separately,
- plainly labeled, and
- ideally discussed well before any offer is made.
For buyers, the decision is equally instructive. Even where a formal agreement fails, Courts may still impose liability where it would be unfair to allow a party to benefit from an agent’s work without compensation.
Conclusion
Urban Landmark Realty Inc. v Hill is not simply a case about a failed contract. It is about fairness. The Court refused to enforce an agreement obtained through a flawed process, but it also refused to let the Buyers walk away without paying anything.
In the end, the message is clear: transparency and timing matter and attempts to sidestep commission, even indirectly, may still come at a cost.
Brian Madigan LL.B., Broker
www.OntarioRealEstateSource.com