Sale of 115-year-old home derailed by thumbs up emoji lands in B.C. Supreme Court
A dispute over an alleged real estate transaction that partially hinged on the use of a popular emoji made it to the B.C. Supreme Court this month.
Brothers Kyle Joseph Garvey and Matthew Thomas Garvey brought the application against real estate developer and realtor Daniel Bryan Ross to the province’s superior trial court.
Ross has sued Kyle and Matthew to enforce what he feels is a binding contract to purchase their property on Cook Street in Saanich, B.C.
The brothers refute the claim on the basis that they never actually signed a purchase and sale agreement with Ross.
The one-story, two-bedroom home in Saanich was built around 1910 on a residential lot a little over 8,000 square feet. The house, less than a 10-minute drive from Downtown Victoria, is described in the ruling as being unoccupied and in poor condition.
According to B.C. Assessment, the property on Cook Street has a 2025 assessed value of $801,000. The building on the property only makes up $24,000 of the total.
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Kyle and Matthew put the property up for sale last September at a listing price of $759,000, choosing to represent themselves without a realtor. Ross saw that the property was up for sale and, soon after a viewing on Sept. 19, 2024, submitted an offer of $750,000.
“Unfortunately, we will not be accepting your offer for the property this evening,” replied Kyle in an email cited in the B.C. Supreme Court decision. “I encourage you to submit further offers in the future, should you still be interested.”
“I won’t be submitting further offers,” responded Ross. “Typically, if you saw things you wanted differently, you would send me a counteroffer. So, may I ask what you would want changed?”
The sellers and the interested buyer exchanged several phone calls and text messages over the next few days, and Ross received a counteroffer by email from the owners on Sept. 24, 2024. It included a new purchase price of $769,000, a higher deposit of $25,000, and a reduction in the buyer’s brokerage fee from two per cent to 1.5 per cent.
The reasons for judgment by Justice Brongers noted that neither Kyle nor Matthew signed the counteroffer document, electronically or otherwise, with only Ross’ electronic signature and initials appearing on the documentation as they were on the initial offer.
Ross sent a reply to the owners by email, indicating that he accepted their counteroffer along with a message for the brothers.
“When providing a counteroffer to me, you would typically have signed and initialled everywhere. Including the additional forms and disclosures I made. I understand you’re kinda learning as you go. I’m providing this signed and accepted offer to you as per our email and text conversations stating that you were providing me with a ‘counteroffer.’
“I would ask you to please sign and initial everything as soon as possible.”
Ross and Kyle, the latter of whom holds a 99 per cent share of the property, also exchanged text messages the same day.
The reasons for judgment show that Ross confirmed that he had sent an accepted offer in the email thread, and that Kyle replied with a “thumbs up emoji.”
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While Ross encouraged Kyle to sign and return the counteroffer by that evening, Kyle stated that he needed to discuss things over with his brother and lawyer.
“Man, I wish you had a realtor,” responded the Victoria-based realtor. “When you send me a ‘counteroffer’ and I accept without changes, that is done. And the date of acceptance is today. There isn’t another round.
“I’m in a really tough spot as I’m not your representative, and you don’t have one. At this point, you’ve created a binding accepted offer with me that should have all signatures attached.”
Ross filed a notice of civil claim against Kyle and Matthew in November of last year, claiming that he had accepted their counteroffer and created a binding and enforceable contract for the purchase and sale of the property. A certificate of pending litigation (CPL) was also registered the same day.
The brothers denied that an enforceable contract existed for several reasons, including that the counteroffer was simply “discussion correspondence” and that they never signed the counteroffer.
Justice Brongers found the brothers’ discussion correspondence claim to be “wholly disingenuous.”
“Such an assertion cannot be accepted when Kyle used the terms ‘counteroffer’ and ‘counter’ to describe the contents of the electronic document he named ‘Cook-Counteroffer.pdf’ that was sent to Mr. Ross from the Owners’ Gmail address.”
The B.C. Supreme Court Justice also ruled that an unsigned counteroffer did not invalidate the contract’s existence
B.C. Assessment
“I am of the view that the presence or absence of party signatures goes to the issue of contract enforceability, which will be discussed below. It is not strictly relevant to the question of contract formation, given that contracts may be made orally and by conduct, as well as in writing.”
However, Brongers also ruled that the existence of a contract doesn’t make it enforceable, especially when one party is resisting enforcement. And the thumbs up emoji played a pivotal part in the decision.
B.C.’s Law and Equity Act (LEA) states that contracts regarding land must be in writing and signed to be enforceable.
“I also cannot conclude that the sending of a separate text with a thumbs up emoji constitutes a signature on a contract for the purposes of… the LEA,” read Brongers’ reasons for judgment.
“Accepting that a contract can be ‘signed’ by simply sending a thumbs up emoji in a text disconnected from the contractual document itself is no different than accepting that a text containing just the word ‘yes’ constitutes a valid signature. To do so would require treating… the LEA as if the word ‘signed’ does not appear at all in the legislation.”
Brongers ruled that the contract was not signed by Kyle and Matthew and could not be enforced by Ross upon them. However, he did not order the immediate cancellation of the CPL on the property, though the brothers were told they were free to renew their request should Ross choose to appeal.