"Business Common Sense" Determines Winner Of Commission Dispute

When courts have to decide whose version of a conversation is more likely to have occurred, recourse must often be had to the surrounding circumstances and any available contemporaneous documentation. In addition, in assessing the conduct of parties in a commercial dispute, the courts will sometimes apply a lens of "business common sense" when reviewing the historical evidence.

In Notsch-Kupcho v. NY Brand Studio Inc, 2021 ONSC 4271 (CanLII), Justice F.L. Myers was faced with this situation in a dispute involving a telephone conversation between a commercial real estate broker and his client over the amount of commission the client agreed to pay.

The sole issue in the dispute was whether the client had accepted an offer made by the broker to reduce his commission from 1.5% to 0.75% (a difference of $127,500), on a transaction involving the purchase of a building in Toronto for $17 million. There was no question that the buyer had agreed to pay a commission. The