QUICK HITS

• The developer’s attempt to add nearly $60,000 in extra fees beyond the APS terms was determined to be a breach of contract.
• Courts ruled that sellers must provide clear documentation and justification for any additional charges listed in statements of adjustments.
• Because the seller breached the APS, buyers were entitled to recover their deposit and upgrade payments
• Because the buyers took possession of the property for at least a year, the buyers were found responsible for paying fees totalling $68,000 to compensate the seller for the time they lived there.

In litigation arising from disputed real estate transactions, courts are frequently confronted with circumstances where a buyer tries to close for less than the agreed sale price.

In many cases where a buyer tries to close for less than the price agreed to by the parties, the buyer is the party in default, and the seller is entitled to retain the deposit paid in addition to seeking other damages from the buyer.

In some cases, however, a failure to close may be due to additional unanticipated charges imposed by the seller on top of the original agreed-upon price. A seller’s demand for more than the agreed purchase price is just as much a default as a buyer’s demand to pay less. Whether or not such charges are permitted is generally determined by the wording of the Agreement of Purchase and Sale (APS) between the parties.

Taheripouresfahani v. Dormer Bond Inc., 2025 ONSC 5833 (CanLII) arose from a dispute between the buyers and the developer/seller of a newly built property in Richmond Hill, Ont.

The purchase and disputed charges

In 2020, the buyers entered into an APS with the developer for the purchase of the property for $761,490. The buyers paid installments of more than $114,000 as a deposit and $11,540 for additional upgrades. The final closing date was to be designated by the developer’s lawyer upon at least 14 days’ notice.

Pursuant to the terms of the APS, the buyers were allowed to move into the property before the final closing date once occupancy was permitted. In April 2023, the buyers moved into the property as permitted and began to make monthly occupancy payments of $3,782.

On July 31, 2023, the developer delivered a notice scheduling the closing date of Sept. 15, 2023.

On Sept. 7, 2023, the developer delivered a Statement of Adjustments to the buyers’ lawyer, which included additional charges totaling almost $60,000. The charges were stated to be for:

• Development charges/increased levies: $8,000 plus HST
• Meters (hydro/gas): $8,163 plus HST
• Vendor’s legal and administrative fees: $8,605 plus HST
• Alternative materials cost: $27,021.08 plus HST

A flurry of correspondence ensued between the lawyers over whether or not the charges were permitted under the APS. The developer offered to reduce some of the charges but demanded a mutual release in return. The buyers refused and demanded that all the additional charges be removed. The transaction was not completed by the Sept. 15, 2023 closing date, but the lawyers continued to exchange correspondence in the following days concerning the statement of adjustments and additional charges.

On Sept. 26, 2023, the developer’s lawyer confirmed that the transaction had been terminated. The developer demanded that the buyers vacate the property.

Court finds sellers in breach

Litigation ensued, with each party moving for summary judgment.

The motion judge noted that a buyer is generally entitled to proof of figures contained in a statement of adjustments: Bellisario et al v. 2200 Bromsgrove Development Inc., 2025 ONSC 2546, at paragraph 61.

The motion judge further noted that the APS specifically stated that the balance due on closing would be adjusted to include “any development, education, park or other levies or imposed charges or taxes by Government Authority”. Accordingly, while the development charge of $8,000 was potentially allowed by the APS, the developer had an obligation to explain how the charge was calculated. The developer had failed to provide any evidence to substantiate the charge, referring only to an unexplained “formula” used by the municipality.

Further, while the APS permitted adjustments for the cost of hydro and gas meter installation, the developer did not provide any documents to the buyers or the court on the motion to demonstrate how the amounts were determined.

A similar issue arose regarding the legal and administrative fees. While the APS provided such fees to be added to the statement of adjustments under specific conditions relating to NSF or “stop-payment” cheques, these did not apply in this case.

Lastly, the motion judge found that none of the “alternative materials cost” charges were provided for in the APS and that there was no evidence to support the amount charged by the developer.

The motion judge concluded that it was not the buyers who breached the APS but the developer who tried to close for more than the agreed-upon price in the APS by adding approximately $60,000 in charges that were either unjustified or not authorized. The developer’s attempt to claim any one of these charges was a violation of the APS.

As a matter of law, the motion judge determined that the demand for additional payment as a condition of closing was an anticipatory breach of contract based on the principles discussed by the Court of Appeal for Ontario in Spirent Communications of Ottawa Limited v. Quake Technologies (Canada) Inc., 2008 ONCA 92, at paragraph 37.

The motion judge decided that buyers were therefore entitled to the return of their deposit and amounts paid for upgrades to the property.

Buyer’s occupancy and financial responsibility

While that result would have ordinarily been determinative of the dispute, the case was unusual due to the fact that the buyers had taken possession of the property in April 2023 and resided in it for at least a year thereafter. By the time of the hearing in 2025, they still had furniture in the property and continued to pay for internet and security cameras. The buyers also refused to consent to an order of possession in favour of the developer. The motion judge found the buyers’ refusal to pay the developer for their possession of the property to be an untenable position.

In the result, therefore, the buyers were found to be responsible for the monthly occupancy of $3,782 up to the date of the decision in October 2025 (totaling $68,076), as well as for reimbursement of property taxes of $6,586.56 paid by the developer during that period and unpaid condominium fees of $3,882.

Costs of the litigation based on the divided success of the summary judgment motions are to be determined.

The decision demonstrates that sellers seeking to impose additional charges on the agreed-upon purchase price will need to ground such charges in the specific terms of the APS and have an obligation to provide satisfactory back-up documentation to substantiate the charges. Buyers who take possession of a property before closing should be prepared to compensate a seller for their time in possession of the property before it is re-sold to another buyer.

James R.G. Cook

James Cook is a partner at Gardiner Roberts in Toronto and has been with the firm since he articled there in 2002. As a litigator in the firm’s Dispute Resolution Group, he has experience in a broad range of commercial, real estate and professional liability litigation. Phone 416-865-6628; email jcook@grllp.com. This article is provided for educational purposes only and does not necessarily reflect the views of Gardiner Roberts LLP.

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You can see it in the systems we log into, the rules they embed and the rituals that follow. It governs without ever being named; a living document we inherit but no longer author. 

Over the past several years, new technologies, leadership shifts and branding debates have revealed just how far that constitution has drifted from its original intent.  

What follows isn’t a history – it’s an excavation and, I hope, the beginning of a rewrite. 

I. The illusion of control 

Every morning, Realtors log into the systems that decide what they can say, how they can say it and how visible their work will be. 

We call it technology, but it’s governance by another name; a rulebook written in code instead of bylaws. 

This is about power, and how quietly it moved out of reach. 

Each field, validation rule, and search filter enforces policy in ways few members ever see. 

We think we’re entering data; we’re actually performing compliance. 

The platforms we use don’t just reflect the profession; they define it, and somewhere between the first upload and the latest system migration, control slipped. 

Organized real estate still speaks the language of democracy, but its constitution has already been rewritten inside the software. 

II. From representation to ritual 

Boards were never meant to be monuments. They were tools built by practitioners to solve shared problems. But over time, the procedure became the product. 

Today, most boards operate less like professional communities and more like small parliaments. Quorums small enough to fit in a classroom can amend bylaws for tens of thousands of members. Proxy stacking concentrates control. Consultations are staged after decisions are made. 

This isn’t malice; it’s muscle memory. Every cycle inherits the same playbook: stability first, scrutiny second. “Continuity” becomes “competence.” “Dissent” becomes “disloyalty.” 

And soon, the process itself becomes proof of purpose. 

When power becomes insulated, accountability fades. What follows is a ritual in the absence of reform. 

The ritual looks busy: new logos, new task forces, new vendor contracts. 

But motion isn’t evolution.

Outside, the species looks unchanged.  

III. From bylaw to backend 

Governance didn’t die; it migrated into software. 

Every time a listing rejects an input because a field doesn’t exist, that’s regulation. 

Every time Realtor.ca decides which properties rise to the top of a search, that’s policy. 

Every automatic warning, every hard stop, every required field, every “invalid value” message is a digital descendant of a forgotten committee motion. 

But unlike those committees, code doesn’t interpret intent. It enforces outcomes. 

When a provincial prop-tech collective expanded its MLS infrastructure through subscription agreements in 2024 (a shift that brought most Ontario boards into a unified subscription framework), decisions about listing standards and data structure effectively moved from volunteer committees to contract clauses. 

And when its leadership quietly changed earlier this year through an internal governance realignment, oversight of Ontario’s core MLS infrastructure shifted again. 

No member referendum. No public notice. Just a new slate, appointed internally.   

That’s not scandal. It’s system design. 

Governance didn’t fail; it changed medium.   

Realtors still carry the liability for every misstep the system allows or forbids. 

If an input error misrepresents a property, the board doesn’t face the client. The agent does. The brokerage shoulders the risk. Yet neither has meaningful authority over the infrastructure that defines compliance. 

That’s the quiet inversion of power: the governed held accountable for rules they no longer write. 

IV. Paying to be governed

Membership used to buy representation. Now it buys access. 

Realtors pay dues to boards. Boards pay vendors to manage the systems. Vendors, in turn, enforce compliance frameworks that determine how Realtors work. 

It’s a closed loop of authority without ownership. 

At the national level, the same pattern repeats. CREA licenses the trademarks and operates Realtor.ca; the public face of the profession. 

Yet the listings feeding it come from local systems governed by independent contracts, each with its own structure and rules. 

The result is a federation of dependencies: members finance everything but control nothing. 

Sold as modernization, this consolidation resembles enclosure more than efficiency. 

When Realtor.ca was restructured into a for-profit subsidiary, the move was practical but symbolic. 

It marked the moment the profession’s most visible asset became a product. 

Belonging turned into a business model and representation became a side effect. 

We stopped belonging to the system when the system learned to bill us for belonging. 

V. The relevance test: What is a board for? 

If access to data is all we value, then the question isn’t whether boards are broken; it’s whether they’re still necessary at all. 

Only one board in Ontario owns the technology. The rest are tenants, licensing the systems they claim to govern. 

They administer dues, hold meetings, and issue statements, but their primary role is custodial: collecting money on behalf of platforms they don’t control. 

As a couple of writers have recently debated, the Realtor identity itself is under review. 

Some call the name baggage, tied to NAR’s scandals and American dysfunction. 

Others defend it as a badge of honour, a symbol of professionalism and trust hard-won over decades. 

I would argue that both sides miss the point. The word isn’t the issue. The structure beneath it is. 

If governance and accountability collapse, even the most sacred title loses meaning. 

The brand can survive scandal; it cannot survive structural irrelevance. 

The Ontario Real Estate Association (OREA)-led call for Ombudsman oversight of the Real Estate Council of Ontario (RECO) exposed that hollowness. 

It sounded bold, but misunderstood the law it invoked. 

The Ombudsman Act excludes self-regulating professions. 

If boards truly want to end self-regulation, they should say so. 

If they don’t, then the campaign misled the very members who fund it. 

Realtors didn’t connect with that letter because it wasn’t written for them. 

It was written to look responsive. It was a performance of relevance, not an act of it. 

VI. The ROI of representation 

If advocacy is the last defense of organized real estate’s layered structure, then it’s fair to ask: what’s the return? 

Every Realtor measures productivity and cost-per-lead.  

But the organizations that preach professionalism can’t quantify their own value. 

OREA’s own disclosures show millions spent annually on advocacy and communications, yet no member-facing metrics explain outcomes or savings. 

In business, unmeasured value isn’t value. It’s overhead. 

The loss of the OREA College exposed that vacuum. 

Education once gave OREA purpose: a tangible service tied to competence. 

When that mandate moved to the regulator, what remained was advocacy without measurement. 

And advocacy without measurement is faith, not strategy. 

Would we, knowing what we know now, voluntarily build a system that compels every Realtor to join an association, fund mandatory insurance and underwrite lobbying whose outcomes we can’t audit? 

If this system didn’t already exist, could you convince anyone to invent it? 

If we built a system today, we would not build this system. 

VII. The case for a controlled burn 

That doesn’t mean demolition. It means renewal. 

The first boards were grassroots cooperatives: small, voluntary networks built on trust and reciprocity. 

They created order before law. Their purpose was cooperation, not control. 

Over time, that cooperative impulse hardened into hierarchy. 

What began as a network of peers became a lattice of dues, committees and closed sessions. 

We now call that professionalism, but is it? 

The future doesn’t need to abolish boards; it needs to release them. 

As one industry commentator recently wrote, even Microsoft now behaves like a startup, forced by AI to relearn how to innovate. 

Real estate could do the same, not by chasing disruption but by rediscovering ownership. 

Innovation without consent isn’t transformation. 

Sunsetting legacy structures isn’t destruction; it’s hygiene. 

A controlled burn clears what it is that protects structure over service. 

The replacement need not be ideological. 

Imagine a platform cooperative: a Realtor-owned, technology-driven utility where brokerages and agents hold real stakes. 

Policy would be ratified by digital referendum. 

Vendor contracts would expire automatically unless renewed by member vote. 

Data standards and governance would be transparent by design. 

Boards that survived such a transformation wouldn’t have to defend their relevance. 

They have already proven it. 

VIII. The constitutional moment 

Every profession has a constitution: an unwritten agreement about who decides what. 

Ours has been rewritten without consent. 

Control migrated from members to boards, from boards to associations, and from associations to vendors. 

Elections continue, meetings occur, minutes are approved, but democracy isn’t procedure. 

It’s consent. 

When governance moves into code, consent becomes a checkbox. 

When advocacy drifts into performance, representation becomes branding. 

When boards mistake data for trust, the profession loses both.   

This isn’t a technical crisis, it’s constitutional.  

The choice ahead is stark but simple:   

1. Continue the drift and let governance consolidate in the hands of those who own the tools. Or;  
2. Reclaim authorship and rebuild from the ground up, guided by the same cooperative instinct that once defined the Realtor. 

If we built organized real estate today, we wouldn’t replicate the layers. 

We’d design a single, accountable, member-governed institution: transparent, data-competent and morally literate. 

IX. The path back to purpose 

Boards were never meant to be monuments. They were instruments built to serve those who work in the field, not to rule over them. 

We still need cooperation. We still need shared data, clear standards and public trust. 

But those don’t require the architecture we’ve inherited. 

They require will, imagination and consent.   

If organized real estate still believes it exists to put members first, it must prove it. Not with statements, but with structure. 

If access is all that defines membership, the public will soon ask what defines the Realtor. 

Our constitution isn’t in Ottawa or Toronto. It lives in the collective consent of those who practice. 

The system won’t rewrite itself. 

Brandon Reay

Brandon Reay brings a multifaceted background in real estate practice, policy, and governance. Before stepping into brokerage leadership, Brandon spent several years in organized real estate, contributing to strategic initiatives and advocacy efforts with CREA and OREA, and various Chambers of Commerce. His work has included shaping housing policy, supporting regulatory reform, and improving REALTOR® engagement across the country.

Brandon’s approach blends hands-on brokerage experience with a systems-level understanding of how policy, market forces, and professional standards intersect. He is known for helping professionals navigate evolving market conditions and advocating for higher standards within the industry. In addition to his leadership role at RE/MAX Hallmark Realty Group, he remains an active REALTOR® focused on agent development, business strategy, and client service.

Brandon regularly contributes commentary on market trends to media outlets and industry publications and has served as a spokesperson on housing issues in Ottawa. He is also a frequent speaker at real estate events, offering data-driven insights on brokerage strategy, professionalism, and the future of the industry.

He holds a Master of Business Administration from the Sprott School of Business. Brandon lives in Ottawa, where he remains closely involved in local policy discussions on housing affordability and real estate governance.

The post Reay: The hidden constitution of real estate appeared first on REM.

Each month, REM shares brokerage expansions and conversions, leadership appointments and other key industry moves. Have an announcement to share? Email your news to editor@realestatemagazine.ca by the 26th of each month, and don’t forget to include a photo!

Expansions, mergers and conversions

Sutton Group expands in the west

Real estate company Sutton Group is expanding its reach with two new offices.

This month, Sutton announced the grand opening of Sutton Beeline Calgary and Sutton Centre Kelowna.

The establishment of the new locations was strategic, says Sutton, as both Kelowna and Calgary offer “significant market opportunities for growth.” 

Sutton Beeline in Calgary is led by managing broker Zaeena Gul, while Sutton Centre Kelowna is co-led by managing brokers Emily Coates and John Skender. 

“The opening of Sutton Beeline Calgary and Sutton Centre Kelowna represents a significant step forward for Sutton,” said Beatrice Cosentini, vice-president of Sutton’s western region.

“In a market where there is increased demand for innovative solutions, this team exemplifies the forward-thinking vision and enthusiasm required to drive meaningful change in the market.”

Royal LePage welcomes Saskatchewan brokerage

Mark Zawerucha

Royal LePage is announcing the opening of Royal LePage Success Realty, based in Yorkton, Sask. 

The brokerage will serve clients in Yorkton, as well as surrounding communities including Melville, Springside, Saltcoats, Theodore, Good Spirit Lake and beyond. 

The new brokerage is led by Mark Zawerucha, formerly an associate broker with Re/Max, who brings nearly a decade of real estate experience to his new ownership role.

“In the short term, my goal is to establish Royal LePage Success Realty as a trusted name in Yorkton and surrounding areas,” said Zawerucha. “Long term, I want to grow a strong team of professionals who share my commitment to delivering outstanding service to clients.”

Executives Property Management and Century 21 Assurance Realty Ltd. join forces

Treena Piva

Property management company Executives Property Management (Formerly Real Property Management), which services Kelowna and the B.C. Interior, has merged with Century 21 Assurance Realty Ltd.

Treena Piva and Aaron Piva of Executives Property Management will continue their leadership as managing directors of property management.

Century 21 Assurance Realty is led by managing broker Kim Davies.

“Our mission has always been to serve with integrity, lead with purpose, and create value for both investors and residents,” said Treena Piva. “Together, we’re taking that promise to the next level – continuing our commitment to redefine and elevate the expectations of property management through strategic innovation, advanced technology, and next-level service.”

Corcoran Horizon Realty opens new Hamilton office

Corcoran Horizon Realty is deepening its roots in Ontario with the opening of its newest office in Hamilton. 

Heading up the office as broker/managing partner is Martinus Geleynse, who brings over 16 years of experience in real estate, marketing and community development to the role, according to a company statement. 

“Our new Hamilton office reflects our belief in the city’s resilience, diversity and unmatched character,” said Cliff Rego, CEO and broker of record for Corcoran Horizon. “Hamilton is a place of reinvention and grit, where heritage meets innovation. We’re proud to establish a presence in a city that’s not only steeped in history but also driving forward with creativity, entrepreneurship, and community spirit.”

Corcoran is already established in the markets of Kitchener, Cambridge, Port Severn and Toronto.

Odyssey Retail Advisors expands to Canada

Odyssey Retail Advisors, a premier real estate advisory firm, is expanding into the Canadian retail market with a footprint in Toronto.

Headquartered in New York, with offices in Miami, Chicago and Los Angeles, the firm advises luxury and contemporary retailers in expanding their presence worldwide and guides developers in creating upscale shopping destinations.

Joining Odyssey as part of the Canadian expansion are Casdin Parr, David Bishop and Ryan McCarthy as executive vice presidents, along with Lesia Czech as director.

Together, they bring decades of experience advising national and international retailers across the Canadian retail landscape, says a company statement.

“This is a pivotal step in Odyssey’s continued evolution as a global advisory platform,” said Rich Johnson, principal at Odyssey Retail Advisors.

“Casdin, David and Ryan are widely respected for their deep client relationships, market expertise, and strategic thinking. Their presence enhances our ability to support clients in one of the most important luxury markets in North
America.”

Important milestones

New HQ for Berkshire Hathaway HomeServices Québec

Berkshire Hathaway HomeServices Québec is celebrating the grand opening of its new headquarters in Montreal.

Located minutes from Royalmount, dubbed the largest private development underway in the province, the move marks a step forward for the brokerage, which established itself in Québec in 2020.

The 2,000-square-foot space, located in suite 290 of 5929 Trans-Canada Highway, is designed to have the look and feel of a penthouse condominium, rather than an office, according to a company statement.

The brokerage is led by founder and CEO Sacha Brosseau, who is planning to expand across the province. 

“We will grow with the right people, at the right pace,” he said in a statement. “We’ve witnessed what happens when large corporations prioritize spreadsheets over their brokers, and we are building a different kind of company—one where growth serves to strengthen and support every member of our organization.”

Engel & Völkers Ottawa signs up for another decade

Engel & Völkers Ottawa recently announced the renewal of its franchise agreement, marking a decade in Ottawa’s high-end real estate market and committing to another 10 years under license partners John King and Larry Mohr. 

Since 2016, Engel & Völkers Ottawa has expanded to four shops across the metropolitan region. 

The brokerage has become a major player in Ottawa’s luxury segment, representing 12 per cent of all properties sold over $1 million and a commanding six per cent of the overall market share, according to a company statement.

Their 150 advisors make up three per cent of the local real estate board. 

The post The Real Deal: Industry highlights for October 2025 appeared first on REM.

This week, the provincial government proposed to rebate the full eight per cent provincial portion of the HST for first-time buyers on new homes valued up to $1 million. 

The province’s proposal, which will be included in the 2025 Fall Economic Statement, would save first-time home buyers up to $80,000 off the cost of a new home when combined with existing provincial relief.

While homes valued up to $1 million would qualify for the full rebate, there will be partial rebates on a phased-in basis for homes valued up to $1.5 million. 

Combined with the federal government’s proposed removal of its five per cent portion of the HST, first-time buyers could save a further $50,000.

In a statement, Ontario Real Estate Association (OREA) president Cathy Polan called the plan a “step in the right direction for the future of this province.”

She said this type of action “is exactly what we need to help young Ontarians and their families get a foot on the homeownership ladder.”

‘A drop in the bucket’

Evan Malach, a Toronto Realtor with Harvey Kalles Real Estate, specializes in working with first-time buyers, and says he sees the struggles people face as they pinch every penny to break into the market.

Malach says he welcomes action from political leaders to address the housing crunch, but does he think this new rebate would make a meaningful difference?

“In one sense, yes, and in another, it’s a drop in the bucket,” he told Real Estate Magazine. “It depends on where you’re looking.”

He sees some potential for the rebate to boost new condo sales, a market that’s at its lowest level in decades.  

“I think it remains to be seen how much this (rebate) will actually make any kind of difference. I think it’s a start, but there’s a lot more that could and should be done.”

Interest rates still hitting hard

Carl Gomez, chief economist and head of market analytics at CoStar, said he thinks the rebate could have a marginal impact, but not enough to make a big difference in overall affordability. 

“I don’t think it’s a silver bullet, per se,” he said.

He said in the metro regions, there is low inventory for homes under $1 million, except for small condos. 

“There is not that much supply out there for first-time buyers to open up the door,” he said. “But, it is a step.”

He said financing is a major part of the equation for first-time buyers, and mortgage rates are still a barrier.

“Your traditional five-year mortgage rate is still relatively high compared to where it was pre-pandemic,” he said, adding that rates are contributing to worse affordability conditions today than the historical average. 

While the Bank of Canada cut the key interest rate on Wednesday to 2.25 per cent, Gomez pointed out that the five-year Government of Canada bond yield, which is what fixed rates are based on, actually went up. 

“On the rate relief side, it’s still tough for those first-time buyers,” he said. “The borrowing environment is still the biggest factor that’s causing first-time buyers, and even investors, to wait on the sidelines.”

Courtney Zwicker

Courtney Zwicker is a digital reporter and associate editor for REM. Based in Atlantic Canada, she has over a decade of experience covering daily business news.

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The following is a joint statement released on Oct. 27 by members of Ontario’s housing sector, including the Toronto Regional Real Estate Board (TRREB) and Ontario Real Estate Association (OREA).

Ontario is facing a housing emergency. Projects are stalling, builders are cancelling developments and families and individuals are being priced out of the market.

As the provincial and federal governments prepare to release their fall economic statement and budget respectively, our message is urgent: bold, coordinated action is needed to boost housing construction, lower costs and bring affordability back within reach for residents.

Housing is more than just shelter; it’s the foundation of our economy and the heart of our communities. Today, Ontario’s housing sector, from builders, Realtors, business groups, trade associations, not-for-profit organizations and rental providers, speaks with one clear voice. Together with governments at all levels, we must move swiftly to unlock housing supply, cut costs, and restore affordability by accelerating ownership and rental housing delivery.

We acknowledge the positive work done so far by the federal, provincial and municipal governments regarding policy developments, zoning reform and funding programs to encourage more housing construction, including the most recent provincial housing bill, Fighting Delays, Building Faster Act, 2025, which signals the government’s intention to take further practical steps in cutting red tape, lowering construction costs and restoring confidence and investment in the rental housing market by speeding up slow resolution processes to adjudicate landlord and tenant disputes. Other efforts include the Housing Accelerator Fund, the Apartment Construction Loan Program, Build Canada Homes, the Building Ontario Fund, the Municipal Housing Infrastructure Program, reform to end exclusionary zoning and allow as-of-right construction of multi-plexes on single lots and the Building Faster Fund, among other projects. However, more action is still needed.

We also recognize that potential disruptions impacting the housing ecosystem that are outside the direct control of governments and industry, such as trade wars, geopolitical tensions and economic uncertainty, need to be considered as we navigate an uncertain environment at the macro level. 

Housing remains the backbone of Canada’s economy. It supports over 1.2 million jobs and contributes more than $143 billion in economic activity yearly to Canada’s Gross Domestic Product (GDP). However, rising costs, difficult regulatory environments, economic uncertainty and constrained supply have slowed new housing starts and home purchases, putting tens of thousands of skilled trade jobs at risk. This will impact spin-off economic activity in related sectors and push both home ownership and rental housing further out of reach for many residents.

To meet Ontario and Canada’s housing challenge, a united focus on delivery is required. By reducing construction costs, attracting investments and aligning tax policy, zoning and approval systems, governments at all levels can restore confidence, protect jobs and support innovation at the speed and scale Canadians urgently need.

Policy priorities for immediate action

To restore affordability and confidence in the housing market, we are calling on municipal, provincial and federal governments to work collaboratively with the housing sector by adopting the following measures:

1. Position and profile housing as an economic driver: To ensure housing policy is economic policy, recognize housing construction and trade as a core driver of employment and GDP, adopt a framework to preserve the tremendous job creation that the housing industry generates, and acknowledge that housing unaffordability is also affecting our overall economic productivity, especially in the Greater Toronto Hamilton Area (GTHA).

2. Modernize outdated tax rules: Extend the GST/HST exemption on new homes up to $1.5 million for homebuyers, reflecting current market realities, particularly in major urban centres, and encouraging new construction.

3. Cut costs for homebuyers: Align cost recovery with actual service delivery and housing goals to reduce barriers to construction and costs to homebuyers. Municipalities and provinces need to collaborate with industry to modernize the fee structure applied to new housing, which is currently inflating housing costs and constraining new supply.

4. Build faster through innovation in parallel to traditional building: Support the advent, inclusion and expansion of modern construction methods – including panelized systems, modular building, robotics and other emerging technologies that embrace productivity, reduce costs and construction time, and enable homebuilding at scale. These need to be supported by an innovation policy framework created in partnership with the industry that provides incentives for early adopters and customers of new solutions, as well as investments in Canadian companies providing new solutions. Scaling up pioneering methods should be done in addition to supporting the ongoing innovation and productivity of traditional construction techniques.

5. Free up land and end exclusionary zoning: Act decisively to end outdated zoning restrictions to permit gentle density and a wider mix of housing types, especially missing-middle and multi-unit dwellings in more communities.

6. Incentivize private capital: Encourage programs that incentivize private capital, both investment and philanthropic, for both rental and ownership housing to accelerate market and non-market construction. This should include reintroducing the Multiple Unit Residential Building (MURBS) tax incentive.

The housing sector stands ready to partner with every level of government. Together, we can reignite momentum, rebuild confidence, restore affordability through partnership, innovation and investment, and deliver the homes our communities urgently need.

Signed:

John DiMichele, CEO, Toronto Regional Real Estate Board

Luigi Favaro, CEO, Ontario Real Estate Association

Ene Underwood, CEO, Habitat for Humanity GTA

Michael Brooks, CEO, Real Property Association of Canada

George Carras, CEO, R-LABS Canada

Jonathan Nusbaum, CEO, Terra Modular

Marlon Bray, executive vice president, Clark Construction Management

Tony Irwin, president and CEO, Federation of Rental-housing Providers of Ontario/Rental Housing Canada

Daryl Chong, president and CEO, Greater Toronto Apartment Association

Dave Wilkes, president and CEO, Building Industry and Land Development Association

Kathy Hogeveen, chief of operations, Assembly Corp.

Jude Tersigni, vice president of planning and development, Menkes Developments

Richard Lyall, president, Residential Construction Council of Ontario

Roselle Martino, executive vice president, policy and strategic affairs, Toronto Region Board of Trade

Frank Cairo, co-founder and CEO, Caivan Communities

Nhung Nguyen, CEO, Horizon Legacy

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It was signed months, maybe even years ago, and the agent was already partially paid. Those funds are long gone, having been used to run their business and their life. Now, the developer is demanding those funds back in full.

It’s a reality more Realtors face in a market experiencing an uptick in failed new construction deals. 

The numbers are dismal: Urban Nation reports 10 projects were cancelled in 2025’s third quarter alone, bringing the year-to-date cancelled total to 18 projects and 4,040 units.  

“Prior to 2022, it was rare to see a deal fall through,” said David Ionico, partner at McHugh Whitmore law firm in Stoney Creek, Ont. “In recent years, it is unfortunately a common occurrence, and I refer failed deals to litigation on what seems like a weekly basis.”

Ionico said that reasons for failed deals vary, but most recently, they have been due to purchaser financing issues.

“Lenders seem to have gotten stricter with their requirements and are more cautious to lend,” Ionico said. “Additionally, appraisals are coming in much lower than expected at the time of purchase, resulting in purchasers not being able to obtain enough funds to close.”

Implications for agents 

Unlike the average confirmation of co-operation form for the sale of existing homes, new developers typically have Realtors sign a document called an “Agreement to Co-operate.”

It’s a schedule outlining conditions for staggered commission payouts. For example, the first commission payment of one per cent is sent upon successful completion of the building’s roof. The second payout of one per cent is sent once the developer receives a mortgage commitment, and so forth. The condition criteria and commission percentages vary from developer to developer.

There is an important clause within this agreement that has become increasingly common: the repayment clause. 

Also called a “clawback clause,” this condition allows developers to rescind commissions previously paid to Realtors should buyers be unable to close. 

A poor understanding of terms may be hurting agents

Sam Hassaan, broker of record at Royal LePage Real Estate Services in Oakville, Ont., agrees that these clauses have become the “industry standard for most major developers.” 

He said agents typically do not raise concerns about the clause – perhaps because they don’t fully comprehend them.

“A significant number of agents do sign these agreements without fully understanding the ramifications and financial risks when the deal does not close,” said Hassaan.

While Realtors may get the short end of the proverbial stick with clawback clauses, developers include this clause for a reason.

“Put simply, a lot of deals aren’t closing and, as with other types of real estate transactions, the expectation is that the non-defaulting party won’t pay any commissions if the deal doesn’t close through no fault of their own,” said Ionico. “These clauses also incentivize co-operating agents to bring purchasers that are likely to close.”

‘Read before you sign’

Hassaan notes that repayment clause enforcement has become prominent in the current market, particularly in areas with high volumes of new development such as the Greater Toronto Area. While Hassaan advises Realtors to try and negotiate this clawback clause, Ionico states negotiating this clause would be dependent on the developer.

“I’m not sure my builder clients would negotiate this, given the higher risk of deals falling through these days,” said Ionico.

And while Ionico has seen agents try to contest repayment clauses, it usually doesn’t go far.

“I’ve seen agents dispute clawback clauses but never with a legal justification to do so. Assuming the clause is properly drafted, its enforceability is undisputable.”

Knowledge is the best defense for Realtors who want to delve into the world of new development sales. While Ontario’s Real Estate Salesperson Program includes sessions on new constructions, some brokerages also offer pre-con training.

As an extra precaution, Royal LePage Real Estate Services also implemented a brokerage policy for pre-construction deals. If multiple commission installments are woven into a deal, their policy is to hold the funds until the deal’s final closing. While this could mean a significant delay in commission payout, it protects the Realtor and brokerage from being unable to pay back the developer if the deal fails to close.

Realtors can take similar measures to protect their finances should their brokerages not have such policies in place. This could be as simple as setting aside your first or second installment in a separate account for safekeeping until the final payout is complete and the deal successfully closed.

For Ionico, the best advice he gives is simple: “Read before you sign,” he said. “If anything is unclear, it’s best to have a lawyer look at it.”

Diana Faria

Having stepped into the world of real estate as a receptionist over a decade ago, Diana worked in the industry at different capacities and climbed the ladder since. She has supported Realtors as a front desk assistant, organized incoming paperwork as a deals admin, and processed closings as a head-office accountant. Working at several brokerages gave her insight into their inner workings, from recruiting, social media marketing, commission payouts, and everything in between.

The face of real estate is often portrayed as a confident Realtor, but the hardworking cogs within the real estate machine — office admins, assistants, receptionists, and clerks — are often forgotten. Using her real estate and journalism experience, Diana sheds light on everything going on behind the scenes, while keeping the machine humming along.

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Real estate platform and brokerage Wahi analyzed median home prices in the third quarter of this year in neighbourhoods with elementary schools that had achieved a score of nine or higher out of 10 in the most recent annual Report Card on Ontario’s Elementary Schools created by Canadian think tank the Fraser Institute.

About 60 public, Catholic and private elementary schools out of nearly 1,100 across the Greater Toronto Area (GTA) achieved a grade of at least 9.0, in the 2022-2023 school year. 

In the neighbourhoods in which these schools are located, Wahi found that home prices can vary significantly. 

The most affordable option was the Church-Yonge Corridor, where homes near St. Michael’s Choir School (rated 10/10) had a median price of $570,000, largely due to the prevalence of condos. 

At the other end of the price range, the upscale midtown neighbourhood of Moore Park, home to two top schools, saw median home prices of $3.2 million. 

Although there were sizable gaps in pricing in certain neighbourhoods, of the 63 with top schools, 41 had a median price of at least $1 million. For comparison, the GTA-wide median price of a home was $905,000 in the third quarter of 2025.

“It’s difficult to say exactly how much school zones affect local home prices in the GTA, since so many factors are at play,” said Wahi Economist Ryan McLaughlin. 

From current market conditions to the types of homes available in a neighbourhood, local property can fluctuate considerably from place to place, he added. 

“However, we did observe that in many neighbourhoods with a top school, the median home price was well above the GTA-wide median home price,” he said.

The rankings are based on assessments from the Ontario provincial Crown agency Education Quality and Accountability Office (EQAO). The average score for all schools is six.

The top-rated Toronto elementary schools and the cost to live near them.

Proceed with caution

McLaughlin said parents should be mindful of an important caveat if schools are a major decision-maker when buying a home.

“Living close to a top-rated school doesn’t guarantee your child can enrol,” he said. “Increased density and population growth mean that in some neighbourhoods, newcomers will find local schools are already at capacity.”

   

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Nearly two-thirds of residents say they are concerned about losing their home or rental unit if their financial situation suddenly changes, while four in five are concerned about the overall state of housing in Ottawa today, according to a survey of 1,000 city locals conducted in September by Abacus Data.

“When six in ten residents worry about losing their home if their financial situation changes, it’s a clear sign that we must do more to improve housing affordability and choice,” said OREB president Paul Czan. “We must make it easier to build more homes that families need and can afford.”

OREB to meet with city officials

In a statement, OREB said it is meeting this week with Ottawa city councillors to advance policy solutions that will speed up the development of more affordable homes.

Specifically, OREB has a three-point policy plan that is asking the city to reform development charges to lower costs, pass a zoning bylaw that enables more housing choices and protect tenants while expanding rental supply. 

“Ottawa renters need protection, not more paperwork,” said Czan. “Most residents support fixing the Landlord and Tenant Board and cracking down on bad landlords, but they don’t want new red tape that drives small landlords out of the market.”

What do residents think?

When asked which issues they most want elected officials to focus on, respondents to the Abacus survey identified cost of living (47 per cent), housing affordability (44 per cent) and homelessness (29 per cent) as the most important priorities.

Two-thirds of residents (67 per cent) describe housing in their area as unaffordable, yet 71 per cent of non-homeowners still hope to buy a home someday. 

However, of all respondents doubt they’ll ever be able to afford a home in their community of choice.

“Ottawa residents are telling us that what they need are more affordable housing options—especially missing middle housing like duplexes, triplexes, townhouses and small apartment buildings that seniors, families and young people can afford,” said Nicole Christy, CEO of OREB. “The good news is that there’s broad public support for action on things like lowering development costs, modernizing zoning and reducing red tape.”

Elected leaders at all three levels of government recieved poor grades from respondents on improving Ottawa’s housing situation. Three in five residents say they are dissatisfied with the leadership shown by the federal, provincial and municipal governments alike on housing issues, while only 36 per cent believe the City of Ottawa is prioritizing housing affordability.

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In its Q3-2025 Condominium Market Survey, released Thursday, the market research and analysis firm reported just 319 new condo apartments were sold in the third quarter of 2025, down 54 per cent from a year earlier and 92 per cent below the 10-year average for the period. It was the weakest third quarter since 1990.

Weak demand crushes new projects

Developers have pulled back sharply. Ten projects with a total of 2,499 units were cancelled during the quarter, bringing the year-to-date total to 18 projects and 4,040 units. 

That already surpasses the previous record set in 2018, when 15 projects with 3,598 units were cancelled. 

Since the start of 2024, 32 projects totalling nearly 7,000 units have been scrapped, with another 20 now on hold or in receivership, according to the report.

“The condo market has clearly become depressed as it undergoes a difficult correction following excessive growth that emerged during the COVID-19 pandemic,” said Shaun Hildebrand, president of Urbanation. “However, the lack of activity occurring today will surely lead to a lack of supply in a couple years, helping to restart the engine for the market.”

Only two new projects started in Q3

In the third quarter, only two projects totalling 614 units started construction, a 77 per cent decline from a year earlier and 88 per cent below the 10-year average. Year-to-date starts of 2,176 units represented a 28-year low. 

At 59,204 units, the total number of condos under construction fell to its lowest level since Q4 2017, dropping 43 per cent from the record high reached three years ago in 2022 at 104,617 units.

Unsold new units surge 142%

Overall unsold inventory across all stages of development edged down two per cent to 22,602 units, reflecting fewer new launches and cancellations. 

However, unsold units in completed projects increased 142 per cent from a year ago to a record high 2,944 units. This figure doesn’t include all units that were pre-sold but ultimately failed to close.

Impact on prices

Prices have eased but remain elevated compared with resale, reads the report. Developer-owned unsold condos averaged $1,199 per square foot in the third quarter, down 3.5 per cent from last year. Newly completed resale units averaged $867, while unsold pre-construction units averaged $1,315.

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QUICK HITS

• Buyer refused $1.8-million farm purchase, alleging unlicensed gas wells breached environmental warranty in APS.
  
• The court ruled the warranty covered environmental matters, not gas wells; seller was entitled to $250,000 deposit plus damages.
  
• Real estate agent’s sloppy paperwork led to RECO warning, but conduct did not constitute legal negligence, the judge decided.
  
• Case highlights the distinction between professional conduct rules and negligence law; imperfect work isn’t always actionable negligence.

In disputes between a buyer and seller arising from an aborted transaction, the real estate professionals involved may be dragged into the dispute for their roles in the circumstances at issue. 

Real estate agents have a duty to act in accordance with the applicable standard of care and may be liable for damages when their conduct fails to meet this requirement. However, conduct may be imperfect or sloppy without amounting to negligence, as demonstrated by the trial decision in Duad Inc. v. Shi, 2025 ONSC 5258 (CanLII).

Failed farm sale

The litigation arose from the aborted sale of a farm property in Hamilton, Ont., which the buyer had agreed to purchase for $1.8 million pursuant to the terms of an “as is, where is” Agreement of Purchase and Sale (“APS”). The buyer claimed that two gas wells located on the property were not licenced and could not be legally operated. The buyer refused to complete the purchase, taking the position that the seller had breached an environmental warranty in the APS.

The seller sued the buyer for forfeiture of the deposit of $250,000 and consequential damages. The seller’s position was that the environmental warranty in the APS did not cover the gas wells and that the buyer was simply looking for an excuse to refuse to complete the transaction. Even after the transaction failed to close, the seller offered to address any issues with the gas wells, but the buyer refused to revive the deal.

Disputes involving the agent

The buyer and the seller also sued the real estate brokerage and agent, who had represented both parties in the transaction. The buyer claimed that the agent breached his duties as a Realtor by failing to follow instructions in respect of the wording of the APS and failing to disclose that he was also the agent for the seller, whose interests the agent was alleged to have preferred. Among other things, the buyer claimed that the agent inserted the “as it is, where it is” clause without his consent and misled him about the status of the wells. In turn, the seller sought contribution and indemnity from the agent for any liability to the buyer.

At trial, the court found in favour of the seller. The trial judge reviewed the wording of the warranty and found that it was intended to address “environmental matters” and not the gas wells. Immediately below the environmental warranty in the APS was a clause obliging the seller “To terminate all free use of well gas for neighbor houses”. Below this clause, both sides agreed that the property would be sold “as it is, where it is”.

While there was a specific term in the APS that addressed disconnecting gas to the neighbouring properties, there was no reference in the environmental warranty to the gas wells. Further, in the trial judge’s view, there was no evidence that the seller had breached any warranty regarding the state of the gas wells.

The seller was therefore entitled to the deposit and was awarded consequential damages relating to the costs of $287,296.57 incurred before re-selling the property, to which the deposit would be credited. The seller did not incur a loss from having to sell the property at a lower price, but rather incurred significant costs to carry and maintain the property before the resale.

Regulatory warning

As for the claim against the real estate agent, the trial judge noted that the agent had been subject to a disciplinary warning decision by the Real Estate Council of Ontario (RECO), arising from the transaction. RECO found that the agent erroneously used outdated forms from a previous transaction of the subject property to produce the offer, and he had forgotten to delete a name from an earlier Confirmation and Co-operation form, which he had used as a precedent. The warning also noted that while the brokerage was identified as both the listing and the co-operating brokerage in the APS, he failed to provide a written disclosure of the nature of his relationship to each party prior to the offer.

This did not amount to negligence, however. The trial judge accepted the opinion of a standard of care expert for the agent, who opined that the RECO decision was essentially a “slap on the wrist” for sloppy paperwork.

In the circumstances, there was no indication that the buyer was misled by the agent’s role in representing both parties to the transaction, and the buyer failed to substantiate his claims concerning the terms in the APS. Among other things, the court noted that the buyer continued to work with the agent to try to complete the deal after it initially failed to close. In the trial judge’s view, the agent’s conduct, “while clearly imperfect, did not fall below the relevant standard of care.”

The difference between sloppiness and negligence 

The trial judge referred to Charter-York Ltd v. Hurst (1978) 2 R.P.R 272 (Ont. H.C.), where a vendor’s real estate agent incorrectly advised a purchaser that the acreage being sold was contiguous. The purchaser was allowed out of the transaction, and the agent was liable to the vendor for the loss of an opportunity to sell the land prior to a decline in market value caused by the introduction of land speculation legislation. The misrepresentation in that case was a consequence of the agent’s failure to make adequate inquiries about the land. The buyer failed to establish that the agent in this matter had breached the standard of care by failing to make any required inquiries about the farm property when acting for the parties.

Of note, the issue of the gas well licences was only raised by the buyer for the first time at closing, which supported the agent’s position that the buyer either did not have the funds to close or he had a change of heart about the purchase. Further, the buyer did not adduce any expert evidence that the agent fell below the standard of care required of a Realtor to refute the expert evidence that the agent fulfilled his duty to his respective clients.  There was no indication that the buyer was misled by the agent’s role. The agent tried to make the deal work for both parties, preparing four amendments to the original APS.

The claims of the buyer and seller against the agent were therefore dismissed.

The case underscores the fact that imperfect or sloppy conduct may not amount to professional negligence, even where a formal regulatory warning has been made. The Supreme Court of Canada has affirmed that there is an important distinction between the rules governing professional conduct and the law of negligence as breach of one does not necessarily involve breach of the other: Galambos v. Perez, 2009 SCC 48, at paragraph 29. What could have been a narrow dispute between a buyer and seller over a deposit was complicated by the additional claims made against the professional involved, which may result in cost consequences for the parties who pursued those allegations through trial. 

James R.G. Cook

James Cook is a partner at Gardiner Roberts in Toronto and has been with the firm since he articled there in 2002. As a litigator in the firm’s Dispute Resolution Group, he has experience in a broad range of commercial, real estate and professional liability litigation. Phone 416-865-6628; email jcook@grllp.com. This article is provided for educational purposes only and does not necessarily reflect the views of Gardiner Roberts LLP.

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