This November, Ontario’s Court of Appeal provided some well-received direction for buyers and sellers of corporations who have to manage the fickle issue of employment during a transaction.
Filed under Blog, Buying / Selling a Practice, Staff · Tagged with APS, asset purchase agreement, asset purchase transaction, asset purchases, asset sale, buy a dental office, buy sell dental practice, buyer, buying and selling assets, consideration, continued employment, ESA, Jonathan Borrelli, Krishnamoorthy v. Olympus, ONCA, sell a dental practice, seller, shares vs. assets, SPS, termination, transfer assets, vendor
Nope. Not all at. Not unless you want to pay 10% of the sale price to them and think they offer you some kind of magical value. The truth is: prospective purchasers form part of a pool of candidates. And we all have access to that same pool. That’s right: we have access to thousands of prospective purchaser dentists in Ontario. So what is it that a broker really brings to the table?
Let’s see the top 5 reasons why Brokers want dentists to use them…
1. They’ve Been Around
True. Brokers have been around for a while. And they’ve done a lot of deals. But you know who else was around for a while? Blockbuster. But you know what happened to them, right? When they kept charging their exorbitant fees and stopped adding value, they went belly up. We charge fixed fees based on the specific elements of the deal. Our fees aren’t tied in to the purchase price.
2. They’ll Get You the Highest Price
Actually, the market will dictate what price you get. All they can do is market your practice. But if it’s a dud practice (demo clause, no staff on contract, financials going down), you’ll get a dud price. If it’s a great practice (Kudos to you by the way!), you’ll get a great price. And guess who else can market your practice (eBlasts, open houses, calling up dentists, etc.)? That’s right – WE CAN! FYI, the best practice we sold in 2016 year had 40+ people attend the open house, 15+ registered offers, and it ultimately sold for 1.6 x appraised. Talk about us getting our dentist client an awesome return!
3. They Represent Your Best Interests
That’s a little hard to swallow given that they pay for marketing out of their own pocket and only get paid WHEN the deal closes. So they have an inherent conflict because they are incentivized to close quickly and perhaps take a less than ideal offer to recoup their initial expenses. That differs from us: we get paid based on doing our job (marketing + legal). It’s fixed. You know our fees in advance. And because we are lawyers and held to that very high professional standard (like dentists, but not like others), we have a duty to zealously represent your interests above our own and above others. And because we’ll be involved from the transaction LONG before you actually sell (for example, by putting your staff on contract, renegotiating your lease, helping you purify your corporation), we’ll have cleaned up all those pesky things that could come back during a sale to cost you HUNDREDS OF THOUSANDS of dollars. Can brokers do that? NOPE!
4. They Prepare Appraisals
Truth is: depending on WHO prepares the appraisal, you’ll get a lot of different values. And MANY appraisals we’ve seen are incomplete, deficient, and inaccurate. They’ll over-value the practice. They’ll include revenues which shouldn’t be there. They’ll under-or-over state expenses. They’ll get the patient information (active patient charts) all wrong, or won’t even go down that path of trying to tell you how many there are. Their marketing demographics are virtually non-existent. And what’s the value of an appraisal? $5k? If I had one chance to sell, I would go with Dental Strategy to prepare my appraisal. Yes, they may cost a little more, but they are way more comprehensive and actual highlight the opportunities for a buyer to make more MONEY post-closing! What a great document to help sell the practice. Not all appraisals are the same; and I call ‘bullSh$%’ on a lot of what’s out there. Also, depending on who’s name is on the appraisal, our firm may not even GET INVOLVED in helping a purchaser buy because we simply don’t trust the appraisal AT ALL.
5. Brokers Are Afraid of DSOs and Dental Consolidators
DSOs or dental service organizations team up with dentists to acquire practices. The non-dentist part of the DSO model offers support services (business and admin) to the dental practice to make it easier for patients to be cared for (the dentist focuses on the clinical things; the DSO focuses on streamlining and making the practice more efficient).
Dental consolidators are dentists who own multiple practices. They’re smaller scale DSOs.
Here’s the thing: Brokers are afraid of DSOs and Dental Consolidators. Why? Because DSOs and Dental Consolidators TEND NOT to buy from brokers. They don’t want to pay for a broker’s commissions.
Bottom Line: Brokers Make You… Broke-er 😉
If you’re thinking of selling your dental practice, contact DMC LLP well in advance!
We’ve just looked back at the last 50 transactions we’ve been involved with (for buyers and sellers) and here’s what we learned:
Please don’t rely upon the above if you’re looking to buy or sell a specific practice. This data came from transactions throughout Ontario over the past many months and things change over time. If you want specific insights into a particular practice, contact DMC LLP.
This has been a long-time in the making… On October 16 / 17, we packed a bus full of dentists to go from Toronto to Niagara Falls to enjoy some great food, wine, and company. In my humble opinion: it was a great success. Everyone enjoyed themselves and I believe new friendships were formed. We visited 4 wineries (Southbrook Vineywards, Pelleteri winery, Trius Winery, Peller Estates) and had a sumptuous five-course meal at Peller Estates before heading to the Casino and then retiring to the Hilton.
FYI, the participants included: Michael Carabash, David Mayzel, Dr. Hans Viergever and Barb Viergever, Dr. Norman Falk and Harriet Falk, Dr. Arthur Train and Ruth Train, Dr. Bob Lubin and Katie Lubin, Dr. Paul Shutsa and Dr. Diane Smith, Dr. Larry Rotman and Shelley Rotman, Dr. Dagmar Justa, Dr. Seema Steffens and Nelson Steffens, Dr. Cesare Franzoi and Deborah Franzoi, Dr. Arsalan Poorsin and Melody Shahidi, Dr. Deborah Williams and Mark Coombs, Dr. Gintare Sungaila and Oscar Valverde, Dr. Marija Ilic and Zvonko Ilic, Dr. Minola Diacicov-Negrini and Sorin Diacicov-Negrini, and Danielle Martin.
Here are some pics… (FYI: notice something in the second last picture? That’s right… “Team Triple P” lives on).
Some might even dare to say: “Now That’s a Group of Internationally Good-Looking People!”
Some dentists call us because they’ve signed a listing agreement with a real estate salesperson (often called a “broker”), have a prospective buyer who has presented an offer (which they are negotiating or have accepted), but now want to back out of paying the typical 10% commissions (based on the sale price) to the real estate salesperson.
First, let me begin by saying that dentists are generally expected to be a smart group. They go to university for a long time, study / read a lot, etc. I would expect that they understand the terms and conditions of any agreement that they sign. If they don’t understand, they can and should always get independent legal advice from a dental lawyer or law firm.
Second, real estate salespeople require dentist sellers to sign a ‘listing agreement’ that gives them the exclusive right to sell their practice and collect commissions (typically 10% of the purchase price). Real estate salespeople invest a lot of time, money and effort up front in marketing a practice. They need to recoup their investment. And the ‘listing agreement’ typically gives them a time frame (e.g. 6 months) to sell a practice and get their fees paid.
SO… with these things being said, where does that leave the dentist who suddenly has a change in heart and no longer wants to pay the 10% commissions? Well, there’s a lot of ‘it depends’ going on in here.
For starters, if the ‘listing agreement’ says that the 10% commissions are only payable if the practice is sold within a certain time frame and that time frame expires, then no commissions would be payable, right? So the selling dentist would just need to run out the clock. But what if the ‘listing agreement’ says that, even if the time runs out, if the real estate salesperson introduced the ultimate purchaser to the seller through their marketing efforts, then they would still get their commissions. So this comes down to: how did the purchaser come to know about the practice and get introduced to the seller? Finally, the ‘listing agreement’ may say that if ANYONE becomes aware of the practice during the time frame but actually buys it later, then the selling dentist is still on the hook for the commissions. So you see: it all comes down to what the ‘listing agreement’ actually says.
Now, what if the seller has accepted an offer during the period of time for which the listing period applies, but then backs out to avoid paying the commission? Well, there was a case like this a few years back that went to court. In the 1991 / 1992 case of ROI Corp. v. Burnham, (1992), 1992 CarswellOnt 2562 (Ont. Gen. Div.), the selling dentist (Dr. William Lance Burnham of Aurora) refused to pay commissions sought by the real estate salesperson (Leroy Brown of ROI Corp.) in respect of the aborted sale of his practice.
Here are some key facts… During an initial conversation between Dr. Burnham and Mr. Brown, Dr. Burnham indicated that he wanted to sell because he did not like the administration involved in running his practice, that he wanted to be an associate, and that things would improve with his wife if he sold and moved out west. Mr. Brown appraised the practice for $211,670 and listed it for $250,000 (which Dr. Burnham had accepted as an acceptable sale figure). Dr. Burnham asked Mr. Brown what would happen if he withdrew his practice from the market; Mr. Brown responded that he would have to pay ROI Corp for its reasonable time and expenses as stated in the listing agreement (a sort of vague reply). Dr. Burnham and Mr. Brown then renegotiated the commission from 10% down to 9%. Dr. Burnham received an offer for $225,000; he decided to sign back the offer at $250,000, hoping that the prospective purchaser would reject the offer and that he would not be liable to pay ROI for an unspecified sum of money by taking his practice off the market. He generally hoped no one would buy the practice at the listed price, that the ‘listing agreement’ would expire and that he would retain his practice and not owe ROI Corp.
Unfortunately for him, the purchaser accepted his offer! Dr. Burnham ultimately confessed that he didn’t want to complete the transaction, saying he felt very pressured, was having marital problems and seeing a psychologist. So the deal never materialized. Dr. Burnham apparently paid the purchaser for breaching the offer to purchase. When Mr. Brown found out, he and Dr. Burnham initially spoke on the phone and seemed to reach a compromise for all the inconvenience caused by listing the practice: half of the commission was to be paid to ROI Corp. But to no avail. Dr. Burnham subsequently told Mr. Brown that he had been advised by his counsel to offer no payment and that was his position. Thereafter, Dr. Burnham stopped communicating with Mr. Brown and Mr. Brown ultimately sued Dr. Burnham for the full $22,500 commission (9% of the purchase price for the failed transaction).
The Ontario Court of Justice reviewed the legal jurisprudence concerning ‘listing agreements’ and when commissions become payable. The Court held that, where the purchaser is ready, able and willing to comply with the offer, the compensation to which a broker is entitled is the amount of the agreed fee. The Court wrote the following at paragraph 38:
38 Pursuant to the terms of the listing agreement, it is clear that Burnham is liable for the commission in that he agreed to accept an offer made by a purchaser ready, willing and able to purchase. He further agreed to complete the transaction and, failing this, agreed to pay Roi the commission in full.
The Court also referenced a seminal Supreme Court of Canada case on the matter (Leading Investments Ltd. v. New Forest Investments Ltd.,  38 R.P.R. 202,) concerning commissions and ‘listing agreements’. In that case, the Supreme Court held that, where commission is payable on a completed sale, and the sale is not completed, to collect their commission, the real estate agent must show that it was not through their fault or that of the purchaser that the sale was not completed.
Ultimately, in the case at bar, the Court found that ROI Corp. was entitled to judgment in the amount of $21,775 together with pre-judgment interest.
But that wasn’t the end of that case… In 1995, that case went to the Ontario Court of Appeal [the citing reference is (1995), 1995 CarswellOnt 3189 (Ont. C.A.)]. The Court of Appeal (the highest court in Ontario) had to determine whether the trial judge had made a mistake. The Court of Appeal noted that it was the actions of Dr. Burnham that caused the the transaction to fail and that he had never (at any material time) told ROI Corp. that he changed his mind and didn’t want to sell his practice. Bottom line: the Vendor just got cold feet and didn’t want to sell and took the position that no commission was payable because the sale was not completed.
The Ontario Court of Appeal agreed with the trial judge and held that Dr. Burnham “could not rely upon his own default as a basis for repudiating his obligation to the respondent broker who brought him a bona fide purchaser. Since that purchaser was ready, willing and able to close the transaction, the respondent broker was entitled to its commissions”. So the trial judge’s decision was upheld.
Now that was a long time ago… but this could still be the law today… In the more recent Alberta provincial court case of 4th Street Holdings Ltd. v. Lannon, 2009 ABPC 387, the Ontario trial decision and Ontario Court of Appeal decision involving ROI Corp. and Dr. Burnham was cited with approval. In that case, the Alberta provincial court cited the following principles to help courts determine whether a commission was payable in light of those cases and faced with a failed sale:
31 One may be able to infer some general principles from these decisions governing real estate brokers’ entitlement to commission where there had been no sale of the property listed for sale.
• The listing or commission agreement must provide for a commission even though there has been no sale; and such provisions must be clear, unequivocal, and brought to the attention of the vendor because, ordinarily, real estate commissions are payable only upon a completed sale.
• The event or contingency which triggers the commission must have taken place, which often means there must have been a binding purchase contract and a prospective purchaser ready, willing and able to complete the sale.
• Essential terms of the aborted sale agreement (e.g., price, possession, etc.) must either accord with the terms of the listing agreement or have been agreed to by the vendor.
• The agent must show that it was not through his fault or that of the purchaser that the sale was not completed.
32 If all of the above obtain, then the compensation the agent is entitled to is the amount of the agreed fee, whether the action is based in contract, as this one was, or in quantum meruit.
BOTTOM LINE: if you are a selling dentist looking to get out of paying commissions to a real estate salesperson, your best bet is to have a lawyer read your listing agreement and advise you on your obligations. And OBVIOUSLY BEFORE YOU SIGN a listing agreement, it is imperative to have a lawyer review and advise you on your obligations.
Please note that the following is not legal advice but is provided for educational purposes only. If you require legal advice, please contact me, David Mayzel, or Ljubica Durlovska.
David Mayzel is your legal risk manager. He is a trained courtroom lawyer and has spent many years resolving disputes both in and out of court. He knows how to prepare documents and execute transactions in a way that avoids or mitigates legal risks. He can be reached at 416.528.5280. or firstname.lastname@example.org.
Michael Carabash is your business law adviser. He is an entrepreneur at heart who helps you see the big legal picture. He drafts clear and effective agreements that protect your rights while promoting your interests. He can be reached at 647.680.9530. or email@example.com.
Ljubica Durlovska is your transition lawyer. She helps you with staff and associates, maintaining your corporation, and other business matters. She can be reached at 416.443.9280, extension 206 or firstname.lastname@example.org.
Jonathan Borrelli is your employment lawyer. He helps you with staff and associates matters, including hirings, terminations, switching staff to written contracts and resolving disputes. He can be reached at 416.443.9280, extension 204 or email@example.com.
Benjamin Kong is an experienced business law clerk. He assists David and Michael with corporate matters and purchase / sale transactions. He can be reached at 416.443.9280, extension 207 or firstname.lastname@example.org.
Julie Whitehouse is an experienced business law clerk. She assists David and Michael with corporate matters and purchase / sale transactions. She can be reached at 416.443.9280, extension 203 or email@example.com.
David, Michael, Ljubica, Jonathan, Ben and Julie are a truly dynamic team. Their diverse knowledge, skills, and experiences will help you get the best deal possible while promoting your interests and protecting your rights. You can read dentist testimonials here.