Qureshi v. Zeema Investments Incorporated, 2026 ONCA 413
A recent decision of the Ontario Court of Appeal provides an important lesson for real estate professionals, brokers, and purchasers regarding commission agreements. In Qureshi v. Zeema Investments Incorporated, 2026 ONCA 413, the Court confirmed that a purchaser could not be held liable for a realtor’s commission where the contractual documents failed to clearly establish such an obligation.
The decision highlights a fundamental principle of contract law:
Courts will enforce the agreement that the parties actually made, not the agreement one party later wishes they had made.
The Background
Nadeem Qureshi was interested in purchasing a commercial property as an investment. He approached realtor Nik Handa of Re/Max Realty Services Inc. for assistance. Mr. Handa identified a property owned by Zeema Investments Inc. that was not listed for sale and suggested that Mr. Qureshi submit an offer.
On October 29, 2019, Mr. Qureshi signed several documents, including a Buyer Representation Agreement (“BRA”).
The BRA provided that the brokerage would be entitled to receive a commission, but the amount of that commission was stated simply as:
“TBD” (To Be Determined).
The agreement further stated that the Buyer would be responsible for paying the commission even if a transaction failed to close because of the Buyer’s default or neglect.
However, the BRA did not specify:
- the amount of the commission;
- the rate of commission;
- how the commission would be calculated; or
- any mechanism for determining the commission in the future.
Subsequently, Re/Max entered into a separate Commission Agreement with the Seller, Zeema Investments Inc., under which Zeema agreed to pay a commission of $650,000, inclusive of HST.
Importantly, Mr. Qureshi was not a party to that agreement.
The parties eventually executed an Agreement of Purchase and Sale, and Mr. Qureshi paid deposits totaling $750,000. The transaction, however, did not proceed to closing when Mr. Qureshi decided not to complete the purchase.
Following the collapse of the transaction, Re/Max invoiced Mr. Qureshi for the $650,000 commission. Mr. Qureshi refused to pay, resulting in litigation.
The Motion Judge’s Decision
The Motion Judge dismissed the brokerage’s claim.
The Court found that the BRA contained no enforceable agreement requiring Mr. Qureshi to pay a commission because the amount was left as “TBD” and no method was provided for determining it.
The Court also noted that:
- Mr. Qureshi was not a party to the separate Commission Agreement between Re/Max and Zeema;
- the BRA did not incorporate the Commission Agreement by reference;
- the BRA contained an entire agreement clause; and
- a later representation agreement specifically stated that the commission was payable by the Seller pursuant to the Commission Agreement.
As a result, there was no contractual basis upon which the brokerage could require Mr. Qureshi to pay the commission.
The Appeal
The brokerage and realtor appealed.
They argued that the documents should be read together and that the reference to “TBD” in the BRA meant that the amount of the commission would be determined later. According to the appellants, the subsequent Commission Agreement fixed the commission at $650,000 and therefore established the amount payable by the purchaser if the transaction failed to close.
The Court of Appeal rejected this argument.
The Court of Appeal’s Analysis
The Court emphasized that contractual interpretation is a highly fact-specific exercise and that appellate courts owe substantial deference to a motion judge’s interpretation of a contract.
The Court accepted that Mr. Handa may have genuinely believed that Mr. Qureshi would become responsible for the commission if the transaction did not close. Nevertheless, the issue was not what one party subjectively intended, but rather what the parties objectively agreed to in their written contracts.
The Court concluded that the Motion Judge’s interpretation was entirely reasonable.
Nothing in the BRA stated that Mr. Qureshi agreed to be bound by any future commission agreement negotiated between Re/Max and the Seller. Nor did the later representation agreements create such an obligation.
The Court found that the parties simply never reached an enforceable agreement requiring the purchaser to pay the commission.
Accordingly, the appeal was dismissed.
Lessons for Real Estate Professionals
This decision contains several practical lessons for real estate professionals.
1. Commission Terms Must Be Certain
An agreement that leaves a material term such as commission “to be determined” may be unenforceable if it does not provide a clear mechanism for determining that amount.
2. Incorporation by Reference Must Be Explicit
If parties intend that another agreement will determine a buyer’s commission obligations, the representation agreement should clearly and expressly incorporate that document.
3. Consistency Across Documents Is Essential
Multiple agreements prepared during a transaction should be reviewed carefully to ensure that they consistently identify who is responsible for paying commission.
4. Courts Will Not Rewrite Contracts
Even where fairness may favour one party, courts will not create obligations that the parties failed to include in their agreements.
Considerations
The decision in Qureshi v. Zeema Investments Incorporated serves as an important reminder that commission claims rise or fall on the wording of the governing agreements.
Although the purchaser defaulted on the transaction, the brokerage was unable to recover its commission because the Buyer Representation Agreement failed to specify the amount of commission or establish a mechanism by which it would be determined. The purchaser was not a party to the separate Commission Agreement with the Seller, and the Court refused to imply terms that the parties themselves had not included.
Commission provisions must be drafted with precision. Ambiguity concerning who pays commission, and in what amount, can prove costly when a transaction fails to close.
Brian Madigan LL.B., Broker