COURT OF APPEAL FOR ONTARIO
Tulloch C.J.O., Rouleau and Lauwers JJ.A.
BETWEEN
Florenta Daniela Cusnir a.k.a Daniela Cusnir, Referring Party
Plaintiff (Appellant)
and
Mary Louise Taylor a.k.a. Mary Taylor “Listing Agent”, Royal LePage Real Estate Ltd. Glen Abbey “Brokerage”, Lloyd’s Underwriters “Insurers”
Defendants (Respondents*)
Florenta Daniela Cusnir a.k.a Daniela Cusnir, acting in person
Brett Rideout and Stefan Jakovljevic, for the respondent Royal LePage Real Estate Ltd. Glen Abbey “Brokerage”
Laura Day and Robert Stefanelli, for the respondent Lloyd’s Underwriters “Insurers”[1]
Heard: June 12, 2026
On appeal from the order of Justice Colleen Yamashita of the Superior Court of Justice, dated June 25, 2025, and from the costs order, dated September 4, 2025.
REASONS FOR DECISION
1The appellant Florenta Daniela Cusnir started this action making claims against Mary Louise Taylor, Royal LePage Real Estate Services Ltd., and Royal LePage’s professional liability insurer Lloyd's Underwriters. She claims sales commission for the sale of a farm property, and for the sale of a commercial property. She also believes that she is entitled to commission because her work resulted in at least one other property sale on which she has no identifying information. The respondents moved to strike Ms. Cusnir’s statement of claim.
2The context is framed by Deputy Judge Hoffman’s finding[2] in the earlier Small Claims action that Ms. Cusnir had no valid claim to commission in respect of the sale of the farm property: Ms. Cusnir was not a registered agent at the time of the sale; the finders fee was a “trade” pursuant to s. 4 of the Real Estate and Business Brokers Act, 2002, S.O. 2002, c. 30, Sched. C[3] and therefore any payment of such a fee would have been in contravention of the Act; and s. 9 of the Act further prohibited recovery of any remuneration in connection with a trade in real estate unless the person is registered or exempt. Deputy Judge Hoffman also held Ms. Cusnir’s claims of unjust enrichment and quantum meruit were similarly barred. Ms. Cusnir did not appeal the Deputy Judge’s decision, which therefore remains binding on her and on this court with respect to commission on the farm property.
3The motion judge whose decision is under appeal before us found that Ms. Cusnir’s claim against Lloyd’s was an abuse of process. The only way for Ms. Cusnir to recover under an insurance policy that was not her own is under s. 132 of the Insurance Act, R.S.O. 1990, c. I.8. Ms. Cusnir had not shown that there was liability for physical damage to a person or property, or that there was an enforceable but unsuccessfully executed judgment in her favour against the insured parties. The motion judge further found that there was no stated cause of action against Lloyd’s, and that the statement of claim therefore did not contain a concise statement of material facts as required by r. 25.06(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Ms. Cusnir has not persuaded us that the motion judge erred in dismissing the action against Lloyd’s. Ms. Cusnir has no cause of action and no claim against Lloyd’s.
4The motion judge found that the claim against Royal LePage had already been decided in the Small Claims action. She held that the entire claim was an attempt to relitigate the enforceability of the commission contract with Ms. Taylor. Ms. Cusnir has not persuaded us that the motion judge erred in this finding in relation to the the farm property.
5However, in the Superior Court of Justice action, Ms. Cusnir also claimed for commission for the sale of a commercial property. Deputy Judge Hoffman had found that the commercial property claim was not referenced in the statement of claim in the Small Claims Court action, and therefore, any reference to it had to “be excised from the trial”. Deputy Judge Hoffman stated that Ms. Cusnir would have to “form a separate Claim” and that Ms. Cusnir “may wish to reconsider that option.” That is the option Ms. Cusnir took in bringing this action for commission on the sale of the commercial property and any other properties sold by Ms. Taylor drawing on Ms. Cusnir’s efforts.
6The Deputy Judge’s decision expressly did not reach the commercial property or, inferentially, any other properties sold by Ms. Taylor on which Ms. Cusnir might have a claim for commission. Therefore, the motion judge’s finding that the claim relating to the commercial property was res judicata in light of the Small Claims Court action was an error. In the circumstances we strike the statement of claim but grant Ms. Cusnir leave to file an amended statement of claim but only in respect of the commercial property and any other properties to which the agreement between Ms. Taylor and Ms. Cusnir might apply, if any.
7Lloyd’s has been entirely successful in this appeal and is therefore entitled to costs which we fix in the amount of $5,000 all-inclusive payable within 30 days by Ms. Cusnir to counsel for Lloyd’s.
8Royal LePage was unsuccessful in this appeal. It was awarded costs in the lower court in the amount of $7,500 all-inclusive and sought costs in the appeal in the amount of $11,678.55 all-inclusive. We reduce the amount awarded to Royal LePage in the lower court to $3,750 all-inclusive reflecting the result on this appeal.
9Ms. Cusnir is self-represented. She presented a bill of costs as though she were a lawyer, claiming substantial indemnity at an hourly rate of $400 plus HST, and disbursements in the amount of $787.28, for a total of $159,936.48. Her claimed partial indemnity rate is $300 per hour, for a total of $125,810.48. This is clearly completely unreasonable, as is underlined by the more modest costs claims of the represented parties.
10Fees should only be awarded to those self-represented lay litigants who can demonstrate that they: (a) devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation; and (b) as a result, incurred an opportunity cost by foregoing remunerative activity: Girao v. Cunningham, 2021 ONCA 18, 13 C.C.L.I. (6th) 1, at para. 9; citing Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228, 433 D.L.R. (4th) 112, at paras. 19, 27, and Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (C.A.), at para. 26. This is because self-represented litigants “should not recover costs for the time and effort that any litigant would have to devote to the case”: Fong, at para. 26. Where there is little evidence of lost opportunity costs, any award will likely be nominal: Girao, at para. 11; Benarroch, at para. 35. Lump sum costs awards may be preferable in order to avoid requiring the self-represented litigant “to account for every minute of the day and prove every penny of revenue”: Girao, at para. 13; Benarroch, at para. 18.
11In light of these principles, we accept the Royal LePage appeal costs estimate as reasonable. Ms. Cusnir provided no evidence that would justify a higher costs award for the appeal than Royal LePage claimed but since she is self-represented, we award her $3,750 all-inclusive in costs for the appeal payable by Royal LePage.
“M. Tulloch C.J.O.”
“Paul Rouleau J.A.”
“P. Lauwers J.A.”
1It is noted in the order below that Royal LePage Real Estate Ltd. was improperly referred to as Royal LePage Real Estate Ltd. Glen Abbey “Brokerage” and Lloyd’s Underwriters was improperly referred to as “Lloyd’s Underwriters “Insurers” in the Fresh as Amended Statement of Claim.
2Reasons for Judgment dated March 25, 2024.
3The Real Estate and Business Brokers Act, 2002 has been renamed the Trust in Real Estate Services Act, 2002, S.O. 2002, c. 30, Sched. C.