Court File and Parties

COURT FILE NO.: CV-14-1270 DATE: 2019 04 01

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

EDMUND MURPHY Self-Represented Plaintiff

• and -

SUTTON GROUP REALTY SYSTEMS INC., BROKERAGE, TREVOR J. SCHULTZ and MARY-ANNE SEMEN D. Conway for the Defendants Defendants

HEARD: January 7, 8, 10, 11, 14 and 15, 2019

REASONS FOR JUDGMENT

DOI J.

Overview

[1] The Plaintiff, Edmund Murphy, is a real estate agent who formerly worked with the corporate Defendant, Sutton Group Realty Systems Inc. (“Sutton Group”), a real estate brokerage in Toronto. As a result of several matters that led to the termination of his work contract with the Sutton Group brokerage, and later with other brokerages, he seeks damages for defamation and economic interference from the Defendant brokerage and the personally-named Defendants who are Mary Ann Semen, the Sutton Group broker of record, and Trevor Schultz, a Sutton Group manager.

[2] In arriving at my decision, I have carefully considered and weighed all of the evidence given by Mr. Murphy, who was the only person to give viva voce evidence, and all of the exhibits entered, notwithstanding that I may not make specific reference to a piece of testimony or evidence in these reasons.

Facts

[3] On December 1, 1993, Mr. Murphy began to work as a real estate agent at the Sutton Group brokerage. On November 30, 2013, the brokerage terminated his work contract and registration following several conduct-related matters. He is 74 years old and currently works as a real estate agent with another brokerage.

i. Personal Items Stored at the Brokerage

[4] Early in his tenure with Sutton Group, Mr. Murphy rented a private office on the second floor of the brokerage where he worked and stored personal items. Over time, he stopped renting the private office and shared rent-free work space with other realtors at the brokerage. The shared space included two “closing” rooms used to meet clients and close real estate transactions. One closing room was on the second floor, and the other was on the ground floor of the brokerage. Although Mr. Murphy stopped renting a private office, he continued to store personal items on the second floor of the brokerage.

[5] In early May 2013, brokerage staff at Sutton Group asked Mr. Murphy several times to remove his personal items so that contractors could access the space for wiring upgrades and other improvements. He ignored their requests. Ms. Semen then asked him to move his items. His response led her to call police over concerns for her safety. Insisting that she had overreacted, Mr. Murphy explained that police had attended the brokerage but did not pursue the matter further. Following the incident, Mr. Schultz gave Mr. Murphy a reprimand for his behavior and directed him to leave the office premises if no one else was present when Ms. Semen was at the brokerage.

[6] Mr. Murphy continued to disregard requests to remove his items from the Sutton Group brokerage. As a result, Mr. Schultz issued him another reprimand and instructed Mr. Murphy to move his items by May 31, 2013. Mr. Murphy did not comply, and claimed at trial that he had no place to move them to. Instead, he unsuccessfully asked to be paid to move his items. He felt that his request for payment was justified as the earlier payments he had made to rent his private office years ago had, in his view, entitled him to store his personal items at the brokerage indefinitely.

[7] Mr. Murphy also felt entitled to store his items indefinitely at the Sutton Group brokerage based on the January 2009 decision to discontinue the “duty sheet” roster for walk-in clients at the brokerage. The roster had been a monthly schedule that assigned a few realtors each day to serve new “walk-in” clients (i.e., who attended the brokerage to meet with a realtor). Mr. Murphy disagreed with the decision to eliminate the roster, as he believed that it had led him and other realtors at the Sutton Group brokerage to lose walk-in clients who took their business to other nearby brokerages that offered better service. He remained disgruntled by this, and claimed that the elimination of the roster in 2009 gave him a further basis to not move his items from the Sutton Group brokerage when asked to do so in 2013.

ii. Office Incident with G.T.

[8] On May 28, 2013, Sutton Group brokerage staff asked Mr. Murphy to remove his items from the second floor office as it had been rented out to a new agent as of June 1, 2013. He was given a deadline of 6pm on May 31, 2013 to move his items, and advised that any remaining items would be placed in storage at his expense. He did not respond when asked to arrange a time to remove his items.

[9] In June 2013, the new agent, G.T., began working from his rented office on the second floor of the brokerage. G.T.’s office had been converted from a closing office that Sutton Group realtors previously shared.

[10] On June 3, 2013, G.T. found Mr. Murphy sitting at his desk after having removed G.T.’s items from the office. Mr. Murphy explained that he was waiting to meet a client and needed the office for the meeting. G.T. took issue with Mr. Murphy using his rented office. Later that evening, G.T. returned to find Mr. Murphy continuing to occupy his office. Following a verbal exchange with Mr. Murphy, G.T. made a complaint to Ms. Semen.

[11] On June 5, 2013, G.T. called police after finding Mr. Murphy occupying his office again. By his own admission, Mr. Murphy had gained entry to G.T.’s office by forcing open the lock on the door. Police attended the brokerage, but did not pursue the matter further. Following this incident, G.T. left the brokerage and did not return.

[12] Mr. Murphy felt entitled to use G.T.’s office as he believed that it should have remained a shared office for Sutton Group brokerage realtors to continue using. He viewed the shared closing office on the ground floor of the brokerage as inadequately small and lacking privacy. He also felt that the fees paid by realtors to cover their overhead costs at the brokerage somehow extended to include their ongoing shared use of G.T.’s office, which he continued to regard as a shared work space despite knowing that G.T. had paid to rent it. In cross-examination, Mr. Murphy acknowledged that G.T.’s office arrangement had mirrored Mr. Murphy’s own prior arrangement to rent a private office when he first started working at the Sutton Group brokerage.

[13] Mr. Murphy claims that Ms. Semen had arranged for G.T. to rent the office to aggravate him as part of an effort to orchestrate his departure from the Sutton Group brokerage. Describing G.T. as a large and intimidating man who excessively consumed alcohol, Mr. Murphy felt vulnerable if G.T. were to confront him.

iii. The Fire Doors

[14] Back on April 26, 2016, Toronto Fire Services had conducted a fire safety inspection at the Sutton Group brokerage. During the inspection, fire officials had found that the second floor fire doors to the brokerage had been wedged open contrary to the Fire Code. To address this breach, fire officials issued a warning to the brokerage that a further contravention could be punishable by a fine and/or imprisonment.

[15] Keeping the fire doors locked and secured became an ongoing issue for the brokerage. According to Mr. Murphy, brokerage staff periodically wedged or “jimmied” open the doors (i.e., by inserting paper into the door jams so the doors would not lock) to more conveniently exit and re-enter the premises, or to access the office washrooms located behind the fire doors. Mr. Murphy also admitted that he occasionally kept the fire doors open to improve air circulation in the office.

[16] After developing a fear that G.T. might attack or assault him, Mr. Murphy called Toronto Fire Services to explain his need for an automatic locking system to be installed on the upstairs fire doors. He framed it as a necessary safety measure so that he could quickly exit the premises if G.T. were to confront him. In response to his call, Toronto Fire Services scheduled a site inspection at the brokerage for June 5, 2013.

[17] On June 4, 2013, the building’s landlord advised Sutton Group brokerage staff that an exterior fire door had been left open after hours. This raised a security issue for the brokerage, which was punctuated by the upcoming fire safety inspection the next day. For his part, Mr. Murphy construed the fire door matter as a further source of unwarranted friction with the Defendants given his encounters with G.T. which had led him to worry about his own safety.

iv. The Quebec Avenue Property

[18] Around June 2013, Mr. Murphy listed a property for sale on Quebec Avenue. On June 25, 2013, the co-operating broker acting for the purchaser asked Mr. Murphy to ask his client, the vendor, to initial and return the missing first page of the Confirmation of Co-Operation and Representation form which had to be completed before the offer could be presented to satisfy regulatory requirements. Mr. Murphy responded that the form was fine and dealing with it further was unnecessary. Earlier, the co-operating broker had tried unsuccessfully to ask Mr. Murphy to persuade his client to accept the purchaser’s offer. In light of this, Mr. Murphy formed the view that the co-operating broker had raised the Confirmation form as a shrewd pressure tactic to complicate the deal and thereby prompt him into urging his client to accept the offer. Instead, Mr. Murphy refused to pressure his client, who held firm. His client ended up accepting a higher offer from the purchaser. Mr. Murphy felt that he had given good advice to his client, who did well on the transaction.

v. The Leeward Glenway Property and the Complaint by G.D.

[19] Later in 2013, Mr. Murphy acted as the co-operating broker for a purchaser, G.D., who wished to buy a condominium unit located on Leeward Glenway. Under an arrangement with G.D., Mr. Murphy had listed and sold G.D.’s previous home, at no commission, on the understanding that he would earn a commission on G.D.’s purchase of a new home. Mr. Murphy went to considerable time and effort to show a range of different homes before G.D. decided to buy the condominium unit on Leeward Glenway, which was listed under a power of sale by TD Bank. Mr. Murphy felt that G.D. had been particularly well served. However, a number of issues arose with the transaction that raised concerns over Mr. Murphy’s behavior and professional conduct.

[20] The printed agreement of purchase and sales for the condominium unit ended up with a number of handwritten edits, which the parties initialed to acknowledge them. As it turned out, G.D. did not initial a number of handwritten edits on the agreement. In addition, the statutory declaration at Schedule “D” of the agreement was not commissioned by a commissioner of oaths, as required under the terms of the form.

[21] To ensure that the agreement of purchase and sale was constituted properly, a realtor at the vendor’s brokerage asked Mr. Murphy to arrange for G.D. to provide the missing initials and to commission the statutory declaration. Mr. Murphy refused and claimed that there was nothing wrong with the agreement. He further took the position that it would have been improper for G.D. to add the missing initials to the agreement, as that would have compromised the binding nature of the contract. He felt the appropriate recourse would have been for the vendor to draft and deliver an executed amendment to the contract (i.e., to confirm the handwritten edits) for G.D.’s signature.

[22] The vendor’s brokerage also raised a concern over G.D.’s deposit cheque for the transaction. Mr. Murphy felt that the concern arose because the vendor’s broker insisted on receiving a certified cheque for the deposit. Since the agreement did not expressly call for a certified deposit cheque, and as G.D. was away on vacation in Mexico and unavailable, Mr. Murphy refused to seek to obtain a certified cheque.

[23] However, Mr. Murphy also acknowledged that the vendor’s broker had raised a concern that G.D. incorrectly had signed on the memo line of his deposit cheque and not on the proper signature line for the cheque which bore G.D.’s hand printed name. To rectify this, the vendor’s brokerage asked for G.D. to re-sign and return the deposit cheque. Mr. Murphy refused to arrange for this, and claims that G.D.’s hand printed name as it appears on the signature line to the cheque is actually his signature. I cannot accept Mr. Murphy’s explanation. By comparing G.D.’s signature in several different places on the agreement of purchase and sale, it is apparent that he signed on the memo line of his deposit cheque.

[24] After staff at the vendor’s brokerage encountered challenges in dealing with Mr. Murphy on the transaction, the vendor’s broker complained to the Sutton Group brokerage and asked for all future communications with the purchaser to be made through Ms. Semen.

[25] TD Bank’s representative also raised an issue. Pursuant to the agreement of purchase and sale, the purchaser was required to obtain and provide a status certificate for the property. After unsuccessfully taking initial steps to obtain the status certificate, Mr. Murphy grew frustrated over his inability to identify the certificate provider, which had changed, and with the excessive time it was taking him to procure the certificate. He then decided to adopt a literal interpretation of the term under the agreement of purchase and sale that required the purchaser to obtain the status certificate, and formed the view that G.D. personally was responsible for obtaining the status certificate. As G.D. was away on vacation in Mexico, the status certificate remained outstanding and prevented the deal from closing. When TD Bank’s representative raised the issue with Mr. Murphy, his response led the representative to complain to the Sutton Group brokerage and refuse to deal further with Mr. Murphy.

[26] In response to these complaints, Ms. Semen asked Mr. Murphy to arrange for a different Sutton Group agent to act for G.D. on the transaction. He did not comply, despite her repeated direction over several days to do so. Mr. Murphy felt that he had done nothing wrong and that involving another Sutton Group agent would not serve G.D.’s interests. He continued to communicate directly with the vendor’s brokerage in an effort to close the deal. He also ignored Ms. Semen’s direction to provide her with the agreement of purchase and sale and G.D.’s contact information, which she had requested in order to review the contract and address the outstanding issues. Believing that she unfairly or improperly had assessed the transaction and his involvement with it, Mr. Murphy sent Ms. Semen an email which told her bluntly, “ do not bother me with this ” and “ do not treat me like a child. ” He felt that Ms. Semen was inexperienced and lacked transaction knowledge. He also accused her of acting against G.D.’s interests by improperly acquiescing to the complaints. By comparison, he pointed to his success in closing the Quebec Avenue property earlier in the year as demonstrating the correct approach to use in closing a contentious transaction.

[27] On September 24, 2013, Sutton Group’s legal counsel wrote to Mr. Murphy to advise that his failure to comply with Ms. Semen’s direction had compromised the Leeward Glenway transaction. Given the outstanding issues, the vendor’s brokerage and TD Bank were not prepared to close the deal. His refusal to give Ms. Semen the agreement and G.D.’s contact information prevented her from addressing the issues. To enable the brokerage to deal with the situation, counsel asked Mr. Murphy to provide G.D.’s contact information within 24 hours. Counsel also advised Mr. Murphy that his actions had triggered legal exposure for himself and the brokerage.

[28] On September 27, 2013, Sutton Group’s counsel wrote to Mr. Murphy to ask for a complete package of transaction documents, which he did not provide earlier.

[29] Mr. Murphy did not comply with the requests from Ms. Semen and Sutton Group’s counsel after forming an entrenched belief that they were unnecessary and misguided, and not in the best interests of his client. He felt the best course of action was for G.D. to obtain the status certificate. Believing strongly that the agreement and deposit cheque were perfectly fine and wholly adequate, Mr. Murphy felt that the vendor could be convinced to accept the existing documents and close the deal despite the contrary indications from TD Bank and its realtor. Mr. Murphy’s thinking was influenced by his lengthy experience as a real estate agent, and particularly by his success closing the Quebec Avenue property transaction by maintaining a firm position.

[30] After returning from vacation, G.D. contacted Ms. Semen on September 27, 2013 for help to resolve the outstanding matters and save the transaction. As the vendor was prepared to accept a reconstituted offer by G.D. that it could sign to close the deal, Ms. Semen asked G.D. to direct his lawyer to prepare the offer. She also asked Mr. Murphy to obtain the status certificate.

[31] By September 30, 2013, Mr. Murphy had not obtained the status certificate. Instead, he told G.D. to get it himself. Despite exercising best efforts, G.D. was unable to obtain the certificate. Ms. Semen asked Mr. Murphy to obtain the certificate, to prepare an amendment to extend the condition on the status certificate, and to provide her with the agreement of purchase and sale and all related transaction documents immediately. When Mr. Murphy did not respond, Ms. Semen personally intervened by delivering G.D.’s replacement deposit cheque, ordering the status certificate, and preparing an amendment to extend the status condition.

[32] On October 1, 2013, G.D. complained to Ms. Semen about his experience with Mr. Murphy. G.D. felt that Mr. Murphy put him to inconvenience by telling him to get the status certificate when that really was Mr. Murphy’s responsibility, by delaying his deal for almost a month and putting it at risk of being lost, by aggravating the vendor and its brokerage into not wanting to deal with him, by causing inconvenience and unnecessary legal costs, and by exposing him to the risk of legal liability. Having lost confidence with Mr. Murphy, who received a copy of the complaint, G.D. also asked for a different realtor to be assigned to him.

[33] Mr. Murphy remains of the view that the transaction documents were completely fine. He maintains that no remedial steps were needed to close the deal.

[34] On October 3, 2013, Ms. Semen provided a written submission to the Real Estate Council of Ontario (“RECO”), a provincial agency that regulates the real estate industry in Ontario, in response to its inquiries into G.D.’s transaction following a complaint (RECO Case File “096”) to the regulator. Her submission included a package of written materials for the transaction. On October 29, 2013, RECO advised that it was closing its file as the complaint had been resolved through mediation.

[35] In his evidence, Mr. Murphy suggested that the Defendants likely made this complaint (Case File “096”) to RECO in an attempt to discredit him with the regulator. However, he later acknowledged RECO’s letter to him of October 29, 2013 which had enclosed its decision for the complaint in Case File “096” that he had made to the regulator. While RECO’s actual decision on the complaint was not entered into evidence, I am quite satisfied from its October 29, 2013 letter that Case Number “096” resulted from a complaint that the Plaintiff had made to RECO.

[36] On January 20, 2014, G.D. made a complaint to RECO (Case File “178”) over Mr. Murphy’s conduct on his transaction. G.D.’s complaint essentially reiterated the concerns he had raised with Ms. Semen on October 1, 2013, as described above. Following its investigation into the complaint, which included a review of Mr. Murphy’s responding submissions to the allegations, RECO determined that he had failed to provide competent service and issued a warning under ss.19(4) of the Real Estate and Business Brokers Act, 2002. Mr. Murphy did not appeal RECO’s findings or its decision to issue a warning to him.

vi. The Haddington Avenue Listing Agreement

[37] On January 23, 2013, Mr. Murphy obtained a listing to sell a reconstructed property on Haddington Avenue. The property was owned by another agent at the Sutton Group brokerage and her husband. They asked Mr. Murphy to list the property as he had sold numerous reconstructed homes in the area and was familiar with the neighborhood. Later, they took back the listing after an issue arose with the listing agreement that Mr. Murphy had prepared for the transaction.

[38] Paragraph 2 (Commission) of the listing agreement that Mr. Murphy prepared stated that the sellers agreed to pay the listing brokerage a fixed commission of $6,000.00. Paragraph 4 (Representation) of the agreement provided that the sellers authorized the listing brokerage to co-operate with any other registered real estate brokerage representing the interests of the buyer, known as the co-operating brokerage, and to pay the co-operating brokerage a commission of 2.5% of the price of the property “ out of the commission the seller pays the listing brokerage .”

[39] The listing price for the Haddington Ave. property was $1,750,000.00. It follows that paragraph 4 of the listing agreement obliged Mr. Murphy’s brokerage to pay $43,750.00 (i.e., 2.5% of $1,750,000.00) as a co-operating commission to a co-operating brokerage from the commission paid by the sellers. But under paragraph 2, the sellers only agreed to pay a fixed $6,000.00 commission to the listing brokerage, as explained above. As it stood, had Mr. Murphy actually listed the property and attracted a buyer who was represented by a co-operating brokerage, his listing agreement would have created a $37,750 debt obligation or shortfall (i.e., reflecting the $43,750.00 co-operating commission payable under the agreement, less the $6,000.00 listing commission that it would have received from the sellers) that either the sellers and/or the Sutton Group brokerage may have been liable to pay to the co-operating brokerage. As mentioned earlier, the sellers took back the listing from Mr. Murphy. While he flatly denies having lost the listing because the sellers lost confidence with him, the foregoing would have given the sellers a basis for concern.

vii. The Renforth Drive Showing and the Complaint by J.G.

[40] On September 14, 2013, J.G., a real estate agent, left several messages at the Sutton Group brokerage asking for Mr. Murphy to call her back. J.G. had a client who wanted to view a property on Renforth Drive that Mr. Murphy had listed for sale. Mr. Murphy did not immediately return J.G.’s call as the tenant living at the property had asked him to not show the property that day for family reasons.

[41] Mr. Murphy later called J.G. to offer a viewing time during the week. During the call, he declined to give J.G. the combination number to the lock box containing the key for the property. He claims that he did so for security reasons. As J.G. initially did not identify herself as a real estate agent, Mr. Murphy did not know her as someone whom he could entrust with the lock box number to access the property. When J.G. later identified herself as a real estate agent, Mr. Murphy required her to follow a further protocol before he would divulge the lock box number. Given the security risks inherent in releasing this information to a caller, Mr. Murphy’s practice was to only provide a lock box number to a real estate agent who called for a viewing from a brokerage land-line phone so that staff taking the call at the Sutton Group brokerage could confirm the caller as a realtor who could be entrusted to access the property. As J.G. had called him on her cell phone, Mr. Murphy felt that he could not sufficiently confirm her identity and refused to give her the lock box number.

[42] On September 19, 2013, J.G. advised Mr. Murphy that she had made a formal complaint to RECO (Case File “043”) regarding his conduct when she tried to book an appointment to view the Renforth Drive property. Her complaint stated that Mr. Murphy had been rude and hostile when they spoke. It claimed that he had expressed disbelief when J.G. identified herself as a realtor, and demanded her brokerage’s name and office phone number before saying that he would call her office to confirm that she was an agent. It also claimed that Mr. Murphy hung up on her, and refused to take her calls after she called back five (5) times and paged him.

[43] On September 19, 2013, Mr. Murphy wrote to J.G. stating that her complaint had no merit, that his refusal to show the property reflected the tenant’s instructions, and that she was the only real estate agent to display an attitude and not attend to view the property. Mr. Murphy maintained these views at trial.

[44] Under cross-examination Mr. Murphy conceded that the MLS listing he had prepared for the property did not mention a tenant living on the premises. He disagreed that it was a significant omission for a potential purchaser deciding whether to buy the property, and dismissed suggestions that a tenant lease agreement could be a serious concern for a potential purchaser wishing to occupy the property.

[45] On June 16, 2014, RECO issued a warning to Mr. Murphy for having acted unprofessionally by refusing to speak with J.G., a fellow registrant, to schedule a showing for the Renforth Drive property. RECO’s warning admonished him to provide conscientious services to clients with reasonable knowledge, skill and judgment, and without unprofessional omissions. Mr. Murphy did not appeal the warning.

viii. Termination Letter

[46] By letter delivered September 30, 2013, the Sutton Group brokerage’s solicitor gave Mr. Murphy notice that the brokerage was terminating its work agreement with him in sixty (60) days. Its decision to terminate the agreement followed his conduct with the Leeward Glenway transaction and the Renforth Drive showing, and his prior conduct that led to his earlier reprimands, as described above. The solicitor explained that the notice period was to give Mr. Murphy time to remove his items from the office, conclude his business affairs with the Sutton Group brokerage, and secure alternate work arrangements with a different real estate brokerage.

[47] By his own admission, Mr. Murphy did not take the September 30, 2013 termination letter seriously. Having spent years working at the brokerage, he apparently formed the impression that Ms. Semen and Mr. Schultz were emotional managers who fired realtors and staff impulsively before later disregarding the terminations. He saw himself as a successful realtor that they would not want to lose, and felt that their dissatisfaction would subside and allow him to still work at the Defendant brokerage. Leaving would also mean losing the neighborhood client base that he had built over time, which would cost him significant income. For these reasons, he continued working at the brokerage as before.

[48] By letter delivered October 24, 2013, the Defendant brokerage’s solicitor reminded Mr. Murphy that the termination of his work contract would take effect on November 30, 2013. It further reminded him to remove his personal belongings and to secure arrangements with another broker by this time. It confirmed that he would not have any further affiliation with the Defendant brokerage after November 30, 2013.

[49] By letter dated October 28, 2013, Mr. Murphy replied that he had no intention of leaving the Sutton Group brokerage. He claimed that its decision to terminate stemmed from instructions he recently gave a brokerage secretary to refer walk-in clients to an available agent without providing or soliciting other business information from them. His instructions apparently contradicted the Sutton Group brokerage’s standing direction for a secretary to obtain contact information and a general description of the potential business opportunity from a walk-in client before referring the client to an agent at the brokerage. Mr. Murphy felt that his method of referring walk-in clients made better business sense as it enabled clients to immediately speak with a realtor.

[50] On November 21, 2013, the building manager complained to the Sutton Group brokerage that Mr. Murphy was continuing to feed pigeons outside of the office despite earlier repeated requests for him to stop. Apparently, the pigeons had created a mess and damaged the building’s roof shingles. Mr. Murphy was also said to have exited the brokerage and made phone calls using the main residential lobby, which was off-limits to commercial tenants from the brokerage. The building manager also claimed that someone had left an exterior office door ajar with a handkerchief.

[51] Mr. Murphy states that he had fed only a single pigeon outside the brokerage as a marketing stunt to attract passers-by that led him to obtain one or two new deals during a neighborhood festival. He dismissed suggestions that he had fed more than one pigeon, and denied responsibility for any mess or damage caused by pigeons that congregated around the building. He also denied using the main residential lobby, and denied using a handkerchief to prop open the exterior door to the brokerage.

[52] In a letter dated November 23, 2013, Mr. Murphy wrote to the owner of Sutton Group Realty Services Ltd., the brokerage’s franchisor in Vancouver. Mr. Murphy’s letter repeated many of the statements and allegations in his earlier October 28, 2013 letter to the brokerage’s solicitor. On November 25, 2013, Mr. Murphy sent a one-page document entitled “ Cease and Desist Order ” to Ms. Semen and Mr. Schultz to put them on notice that they had made defamatory and damaging statements against him that caused him economic loss.

[53] Shortly thereafter, Mr. Murphy wrote to the Sutton Group brokerage’s solicitor to advise of his November 23, 2013 letter to the franchisor and to respond to the matters raised in her earlier September 30, 2013 letter. Mr. Murphy’s letter advised that he had no intention of vacating the brokerage before receiving the franchisor’s response to his November 23, 2013 letter. He added that he had prepared a statement of claim.

[54] Around this time, RECO’s Registration Department gave Mr. Murphy electronic confirmation that his registration with the Sutton Group brokerage would terminate on November 30, 2013. As a real estate agent is required by law to be registered with a brokerage, Mr. Murphy was on notice that his ability to work as a realtor would end on that date unless he registered with another brokerage.

ix. The Trespass Notice against Mr. Murphy

[55] Mr. Murphy candidly admitted that he did not take the termination notices seriously and continued to attend the brokerage until December 5 or 6, 2013.

[56] On December 2, 2013, the brokerage’s solicitor wrote to advise Mr. Murphy that he was trespassing and needed to leave the brokerage immediately. She warned that her client would call police to remove him if he failed to leave.

[57] Later that day, the brokerage’s solicitor emailed Mr. Murphy after he again re-attended the office. In her email message entitled “ Termination and Trespass, ” she reminded Mr. Murphy that he was strictly forbidden from entering the brokerage, and advised that a notice under the Trespass to Property Act would be posted on the premises to prohibit him from entering.

[58] Sutton Group then prepared a trespass notice, which read (sic) as follows:

NOTICE TO EDMUND MURPHY YOU ARE PROHIBITED FROM ENTERING THESE PREMISES. IF YOU ENTER THESE PREMISES YOU WILL BE COMMITTING TRESSPASS AND THE POLICE WILL BE NOTIFIED IMMEDIATELY. THIS NOTICE IS BEING GIVEN UNDER THE TRESPASS TO PROPERTY ACT AND WILL BE ENFORCEMENT IN ACCORDANCE THEREWITH.

[59] In correspondence, the brokerage’s solicitor warned Mr. Murphy that her client would call police to press charges if he violated the trespass notice. She also advised that his personal items left at the brokerage had been packed and could be retrieved from her office by calling to arrange for a pick up.

[60] Upon receiving the email, Mr. Murphy realized “ they are not kidding ” and claims to have removed his personal items and vacated the premises. He also sent a response to the brokerage’s solicitor that evening, characterizing her earlier email as “ false and a character assassination ”, and stating that he would “ see you in court .”

[61] At trial, Mr. Murphy argued that the above-mentioned email from brokerage’s solicitor had been sent to him as a “ letter of confidentiality ,” and for this reason should not be considered by the court. In his view, its confidentiality somehow precluded the Defendants from posting the trespass notice against him. When asked to explain the basis for his position regarding the email’s confidential nature, Mr. Murphy relied on the footer to the solicitor’s email message, which reads as follows:

IMPORTANT NOTICE: This message and the information contained therein is intended only for the use of the individual or entity to which it is addressed. The message may be protected by solicitor-client privilege and contain information that is confidential and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify Garfinkle, Biderman LLP immediately by contacting (416) [-*] and delete this electronic message form your computer system and that of your Internet Service Provider. Please note that any information provided via electronic messaging will be collected in accordance with Garfinkle, Biderman LLP’s Privacy Policy (the “Policy”), which adopts the “Firm Privacy Policy” provisions provided by the Lawyer’s Professional indemnity Company, in compliance with the requirements of the Personal information Protection and Electronic Documents Act, S.C. 2000 C.5., as amended. This Policy is available upon request from Garfinkle, Biderman LLP.

This text contains the type of language that is commonly included in email messages sent by lawyers to preserve any confidentiality and privileges over emails that are sent inadvertently to an unintended recipient. This footer also gives notice to recipients of the law firm’s policy with respect to the collection of electronic messages.

[62] In my view, the text in the email footer cannot reasonably be interpreted as a form of promise or representation by the brokerage’s solicitor that the Defendants would not rely on the email contents in legal proceedings or, alternatively, that they somehow could not issue a trespass notice against Mr. Murphy under the Trespass to Property Act, R.S.O. 1990, c. T.21, as amended. It is clear that the solicitor emailed Mr. Murphy to give notice that he was prohibited from re-attending the brokerage, to advise that he could retrieve his personal items from her law office by a certain date, and to warn of the consequences if he did not heed the notice. I am quite satisfied that it is entirely proper for this email message to be considered at this trial.

[63] Mr. Murphy testified that he never personally saw the trespass notice until a copy was disclosed by the Defendants during an exchange of productions prior to trial. He called no witnesses who actually saw the trespass notice. Instead, he invited the court to infer that his former clients living nearby the Sutton Group brokerage would likely have passed by its office and seen the posted trespass notice.

x. Mr. Murphy’s Subsequent Terminations from other Brokerages

[64] Following his termination from the Sutton Group brokerage, Mr. Murphy moved to a new brokerage, Royal Lepage Porritt Real Estate (“Royal Lepage”), where he continued working as a real estate agent. However, he did not inform Royal Lepage of G.D.’s complaint (Case File “178”) to RECO. On January 28, 2014, the broker of record at Royal Lepage advised him that she had received a copy of G.D.’s complaint to RECO and wished to discuss it. Thereafter, Mr. Murphy voluntarily left Royal Lepage and his real estate agent registration with that brokerage ended on February 24, 2014.

[65] Mr. Murphy suggested that the broker of record at Royal Lepage would have known about the RECO warning letter that arose from G.D.’s complaint as part of her due diligence when he signed on with her brokerage after leaving Sutton Group. However, he later testified that the broker of record actually had been unaware of the warning, and conceded that RECO may not actually publish or otherwise communicate warnings that it has issued to real estate agents. He also admitted to having no actual knowledge as to whether RECO disclosed warnings in responding to due diligence inquiries by brokerages, and conceded that it had been pure speculation on his part that this would have been RECO’s practice when he had suggested that it was.

[66] Shortly after leaving Royal Lepage, Mr. Murphy joined Your Choice Realty Corp. (“Your Choice”) as a real estate agent and registered with his new brokerage. Your Choice later terminated Mr. Murphy after its broker of record came to learn that RECO had issued him the above-mentioned warning. Mr. Murphy explained that the Your Choice broker of record had become quite upset upon discovering that he had not disclosed the warning from RECO when he had joined that brokerage. Mr. Murphy subsequently joined another brokerage where he now works as a real estate agent.

Analysis

The Claim

[67] The Statement of Claim broadly claims damages in defamation and economic interference, and collectively pleads all of the grounds for both causes of action without separately identifying the material facts to support each cause of action, respectively. It also discloses only minimal information as to the nature and extent of the various grounds for the claims.

[68] At the commencement of trial, the Defendants took the position that the Statement of Claim is deficiently pleaded, particularly in respect of Mr. Murphy’s claim for defamation. I recognize that the Statement of Claim leaves something to be desired. However, both sides gave opening statements which identified the same key factual allegations that frame the defamation and economic interference claims. Mr. Murphy, who is self-represented, also devoted significant time in his evidence to explain the alleged facts underpinning his claims. To secure a just and fair determination of the matters in dispute, I am exercising my discretion to review these factual allegations in my analysis of Mr. Murphy’s claim that the Defendants defamed him and used unlawful means to interfere with his commercial livelihood; Alleslev-Krofchak v. Valcom Limited, 2010 ONCA 557 at para. 38; leave to appeal refused [2010] S.C.C.A. No. 403.

Examinations for Discovery

[69] Following the commencement of trial, Mr. Murphy claimed to have been unable to conduct examinations for discovery of the Defendants after they refused to attend their examinations. The Defendants stated that they did attend for their examinations for discovery, and only refused to re-attend for additional examinations after he sought to question them further.

[70] Ahead of trial, Mr. Murphy raised this issue with the Defendants which led the parties to exchange their positions. Counsel for the Defendants advised Mr. Murphy that he could bring a motion for relief before proceeding to trial. Acknowledging that he had been apprised of this option by Defendants’ counsel, Mr. Murphy advised at trial that he decided against doing so. Instead, he elected to deliver his trial record and set his action for trial so that it would be heard at the earliest opportunity. Given these circumstances, I proceeded to continue with the trial.

The Defamation Claim

[71] To prove his claim for defamation, Mr. Murphy must show:

(1) that the impugned words by the Defendants were defamatory, in the sense that they would tend to lower his reputation in the eyes of a reasonable person; (2) the words in fact referred to him; and (3) the words were published, meaning that they were communicated to at least one person other than to him.

Grant v. Torstar Corp, 2009 SCC 61 at paras 28. If these elements are established on a balance of probabilities, the law presumes the words are false and that the plaintiff suffered general damages. As the tort is one of strict liability, the plaintiff is not required to show that the defendant intended to do harm or even was careless. If the plaintiff proves the required elements, the onus shifts to the defendant to raise a defence to avoid liability; Grant at paras. 28 and 29. Where the tort is proven, an award of general damages is intended to compensate the plaintiff for the loss of reputation and injury to his feelings, and to console and vindicate the plaintiff to re-establish his reputation; Downard, The Law of Libel in Canada (4th, 2018) at p. 3, citing Walker v. CFTO Ltd. (1987), 59 OR (2d) 104 at 111 (C.A.). A plaintiff may be awarded actual or special damages for specific losses resulting from defamation causing a loss or decline of business or patronage; Botiuk v. Toronto Free Press, [1995] 3 SCR 3 at paras. 108-111.

[72] In general, courts uphold defamation pleadings where a claimant cannot provide full particulars of every allegation but where the incidents and particulars are known to the defendant. This is the case where a claimant otherwise establishes that the impugned statements were disseminated and amount to a prima facie case of defamation: Catalyst Capital Group Inc. v. Veritas Investment Research Corporation, 2017 ONCA 85 at paras. 21 and 28.

[73] Mr. Murphy relies on several matters to ground his claim for defamation. These include: a) two (2) complaints to police; b) three (3) complaints to a regulatory agency; c) a trespass notice against him; and d) comments alleged to have been made by a former secretary at the Sutton Group brokerage.

a. Complaints to Police

[74] As explained below, there is no evidentiary basis to find that Mr. Murphy was defamed by the complaints made to police. I add that the complaints to police were subject to qualified privilege.

[75] In early May 2013, Ms. Semen made a complaint to police after her exchange with Mr. Murphy. Mr. Murphy believes that Ms. Semen completely overreacted to the situation, but acknowledged that their exchange which led her to call police had involved a form of confrontation. Notably, Mr. Murphy led no evidence as to what Ms. Semen said to police. He also led no evidence that she spoke to anyone, other than police, about her complaint against him. As such, there is simply no evidence to support a claim for defamation based on Ms. Semen’s complaint to police.

[76] I also find that qualified privilege applies to Mr. Semen’s complaint to police. A complaint or communication of information to police is potentially subject to qualified privilege; Caron v A. (Litigation guardian of), 2015 BCCA 47 at para. 37. Qualified privilege protects a person seeking to report criminal activity by making a statement or complaint to police, who share a corresponding public interest to receive the information for investigative purposes; Gittens v. Brown at para. 30. Qualified privilege serves to " rebut the inference, which normally arises from the publication of defamatory words, that they were spoken with malice. ... However, the privilege is not absolute and can be defeated if the dominant motive for publishing the statement is actual or express malice ;" Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 (S.C.C.) at para. 144. A person who makes a complaint to police in good faith for their help is protected by a qualified privilege; Cook v. Milborne, 2018 ONSC 419 at paras 23 and 25, citing Cusson v. Quan, 2007 ONCA 771 at para 39; Kolosov v. Loews Companies, 2018 ONSC 7541 at para. 463.

[77] From the evidence, I am unable to find any reasonable basis to find that the actions taken by Ms. Semen, or the other Defendants for that matter, were motivated by malice. While Mr. Murphy broadly alleged that Ms. Semen had ulterior motives in making her complaint to police, there is no evidence for me to arrive reasonably at such a conclusion. To the contrary, Mr. Murphy gave evidence that he was a high performing real estate agent that the Defendants would not want to lose. I find that Ms. Semen’s complaint to police followed a confrontation that she had with Mr. Murphy, which led police to attend the brokerage to investigate. It also led Mr. Schultz to issue a reprimand to Mr. Murphy and instruct him to leave the brokerage if nobody else was there when Ms. Semen was at the premises. On these facts, I have no basis to find that Ms. Semen acted maliciously. Accordingly, I find that her complaint to police was protected by qualified privilege and cannot ground the defamation claim.

[78] The second complaint to police came on June 5, 2013 when G.T. called police to report that Mr. Murphy had broken into his private office at the brokerage. From the evidence, I find that G.T. took appropriate action by calling police to report the break-in. Mr. Murphy alleges that the Defendants arranged for G.T. to provoke him as part of a deliberate strategy to engineer his departure from the brokerage, but led no evidence to substantiate this claim. While Mr. Murphy saw G.T. on his cell phone speaking with Ms. Semen when police attended the brokerage on his complaint, he did not hear what the actually said. He also led no evidence of any statements about him that were made to police, or to anyone else for that matter, by G.T. or any of the Defendants. On these facts, there is no basis to make a finding of defamation.

[79] Given the circumstances that led G.T. to contact police, I also find that his statements to police were subject to qualified privilege. G.T. called police to report a crime which they investigated upon attending the brokerage. While Mr. Murphy broadly alleges that the Defendants influenced G.T. into making the complaint to police in bad faith, there is simply no reasonable basis to make such a finding on the evidence before me. Accordingly, I find that G.T.’s statements to police are subject to qualified privilege; Caron at para. 37; Gittens at para. 30. The defamation claim is not supported by this evidence and, therefore, fails on this ground.

b. Complaints to RECO

[80] Mr. Murphy relies on three (3) complaints to RECO for his defamation claim. For the reasons that follow, these communications are subject to absolute privilege and are not actionable. I will address each RECO complaint in turn.

i. RECO Case File “096”

[81] Case File 096 dealt with the first complaint to RECO. Mr. Murphy stated that he had no idea who filed that complaint. However, RECO’s disposition letter to him on October 29, 2013 indicates clearly that it actually was Mr. Murphy who made the complaint to RECO. It is trite that a complaint that Mr. Murphy made to RECO cannot possibly ground his defamation claim against the Defendants.

[82] In response to inquiries by RECO into Mr. Murphy’s complaint, Ms. Semen provided the regulator with written submissions and information to provide context for its investigation into the matter. I find that her written submissions gave RECO appropriate and responsive information for its investigation into the complaint. On this evidence, I am not persuaded that Ms. Semen acted improperly or in bad faith. It follows that her submissions are protected by the absolute privilege given to any person who responds to a complaint to a quasi-judicial regulatory authority; D'Mello v. The Law Society of Upper Canada, 2014 ONCA 912 at para 21; Hamalengwa v. Duncan at para 8, and Roach v. Long, [2002] O.J. No. 2471 at 3 (Div. Court). As such, her submissions do not support the defamation claim.

ii. RECO Case Files “178” and “043”

[83] RECO Case File 178 was opened when G.D. complained about Mr. Murphy to the regulator. Later, J.G. brought a complaint against Mr. Murphy to RECO in Case File 043. From the evidence, it is clear that neither complaint was made by the Defendants. Mr. Murphy invited me to find that the Defendants had engaged in nefarious activities to damage his reputation with RECO. However, there is no evidentiary basis to make such a finding. Specifically, there is no evidence that the Defendants persuaded G.D. or J.G. to make their complaints to RECO, or that the complaints were made in bad faith. As G.D. and J.G. clearly experienced issues with Mr. Murphy in dealing with him, as described above, I find that both complaints to RECO are subject to absolute privilege and cannot ground the defamation claim; Hamalengwa at para. 8.

[84] After investigating the complaints by G.D. and J.G., RECO issued two (2) warnings to Mr. Murphy. At all material times, Mr. Murphy was a licensed realtor and subject to RECO’s regulatory jurisdiction. While Mr. Murphy claims that the Defendants worked to undermine him by disparaging his professional reputation which led to the RECO warnings to him, there is no evidence to substantiate this allegation. Having carefully reviewed the evidence, I find no basis to conclude that the Defendants sought to disparage Mr. Murphy by influencing the complainants or the regulator, or anyone else for that matter.

[85] Under the doctrine of qualified privilege, a publication is privileged and immune to a claim in defamation if the publisher has an interest or duty to publish the information in issue to the person to whom it is published, and the recipient has a corresponding interest or duty to receive it; Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 SCR 3 at paras. 78-80; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at paras. 143-147; Whitfield v. Whitfield, 2016 ONCA 581 at paras. 64-69. As RECO issued its warnings to Mr. Murphy to address his professional conduct, I find that the warnings were subject to qualified privilege and cannot ground the claim in defamation.

[86] It is clear that RECO issued its warnings to Mr. Murphy in the course of discharging its role as the regulator for the industry, such that qualified privilege applies to these communications. Licensed realtors governed by RECO have a corresponding obligation to abide by its directions. Mr. Murphy has not shown that the Defendants influenced RECO to issue the warnings against him maliciously, as he suggests. There is simply no evidence to support this claim. In the circumstances, I find that qualified privilege applies to the RECO warnings which do not support the defamation claim.

c. Trespass Notice

[87] Mr. Murphy refused to vacate the Sutton Group brokerage after his work contract terminated on November 30, 2013. To prevent him from re-attending the premises, the Defendants issued a trespass notice under the Trespass to Property Act. Mr. Murphy alleges that the Defendants issued the trespass notice in bad faith and defamed him. However, he led no evidence that the notice was posted or published, or what its impact was on his reputation.

[88] Mr. Murphy does not actually know whether the trespass notice was posted or published. He consciously decided to not inquire about the trespass notice with any of his former clients, or with anyone else for that matter. He explained that doing so would have been awkward, and potentially could have compromised any future business or professional relationships he might have with them. In the absence of any evidence regarding the trespass notice, he invited the court to infer that the Defendants likely had posted it. He also asked the court to find that the trespass notice would have been viewed by anyone who passed by or entered the brokerage. Even if I were inclined to make such findings, which I am not in the absence of any supporting evidence on such key points, I am unable to conclude that the notice is defamatory.

[89] I find that the content of the trespass notice is not defamatory. The notice accurately and fairly states that Mr. Murphy was not permitted to enter the brokerage premises. The Defendants would have issued the notice to exercise rights under the Trespass to Property Act to prevent Mr. Murphy from trespassing by re-attending the premises. Based on his own evidence, it is clear that Mr. Murphy did not abide by the Defendant’s warnings to leave the Sutton Group brokerage after his November 30, 2013 termination date. By re-attending the brokerage for several days after his termination, which he admitted doing, Mr. Murphy clearly trespassed even after being warned that a trespass notice against him would be issued if he continued to return. His conduct essentially left the Defendants little choice but to exercise their rights under the Trespass to Property Act to ensure that he left the brokerage.

[90] Mr. Murphy claims that the Defendants issued the trespass notice maliciously. However, for the reasons mentioned above, I accept that issuing the trespass notice was a fair and reasonable measure for the Defendants to assert their rights under the Trespass to Property Act. Moreover, since the brokerage terminated his registration as of November 30, 2013, Mr. Murphy could not work there lawfully as a realtor after that date. Accordingly, the Defendants had further reason for him to leave the premises.

[91] For the reasons mentioned above, the Defendants would have had a legal interest on this occasion to communicate a trespass notice to Mr. Murphy, who would have had a corresponding role to receive it. In these circumstances, the trespass notice would have been subject to qualified privilege; Whitfield at para. 64, citing RTC Engineering Consultants Ltd. v. Ontario (Solicitor General), [2002] O.J. No. 1001 (C.A.) at para. 16; Hill at paras. 144-146. It follows that the content of the trespass notice cannot support the defamation claim.

d. The Brokerage’s Secretary

[92] At trial, Mr. Murphy claimed that “Ashley,” a former secretary at the Sutton Group brokerage, had advised callers that “ we had to let him go ” in response to inquiries about him immediately following his departure from the brokerage in December 2013. This was not pleaded in the Statement of Claim. Mr. Murphy also confirmed that he had no proof that Ashley had made any such statement, and could only speculate that she likely would have said this to callers. He led no evidence that Ashley actually said these words to anyone, or that she had spoken to anyone about him at any time. He also conceded that he never spoke with Ashley about this matter. As such, this aspect of the defamation claim must fail.

[93] For all of the foregoing reasons, the defamation claim is dismissed.

Interference with Economic Relations

[94] There are three essential elements of the tort of intentional interference with economic relations:

i. the defendant must have intended to injure the plaintiff’s economic interest; ii. the interference must have been by illegal or unlawful means; and iii. the plaintiff must have suffered economic harm or loss as a result.

Grant Financial Management Inc. v. Solemio Transportation Inc., 2016 ONCA 175 at para. 62. To successfully establish the tort, a plaintiff must prove a causal connection between the unlawful means and the loss suffered; Alleslev-Krofchak v. Valcom Limited, 2010 ONCA 557 at para. 50; leave to appeal refused [2010] S.C.C.A. No. 403. Intentionally interfering with another person’s economic interests is not actionable if the means used are lawful; Ontario Racing Commission v. O’Dwyer, 2008 ONCA 446 at para. 57.

i. Intentional Injury

[95] To be actionable, the loss stemming from the injury to economic relations must have been the intended result of a defendant’s conduct. The tort of intentional interference with economic relations is not made out if the loss was merely a foreseeable consequence of the defendant’s conduct, or if the defendant was merely negligent, even if the defendant was reckless as to the consequences of the negligent conduct; Aleslev-Krofchak v. Valcom Limited at para. 317, upheld on appeal, supra. The intent to cause injury may be inferred if the defendant knew that injury to the plaintiff would ensue; Daishowa Inc. v. Friends of the Lubicon (1996), 27 O.R. (3d) 215 (Div Ct), leave to appeal to ONCA refused April 24, 1996.

[96] From the evidence, I am unable to conclude that the Defendants intended to injure or harm the Plaintiff’s economic interests.

[97] I find no intention by the Defendants to injure Mr. Murphy in the events leading up to the termination of his contract with the brokerage. There was no intention to injure him by asking him to remove his personal items from the brokerage to facilitate renovations and to permit a new agent to occupy rented office space. From his own account of events, I find that his persistent refusal to cooperate by removing his items from the brokerage was unreasonable. Later in his evidence, he conceded that his refusal to cooperate had been a mistake.

[98] I also find no intent to injure Mr. Murphy’s economic interests arising from Ms. Semen’s complaint to police in May 2013. Mr. Murphy claims that she overreacted to the verbal confrontation they had which led her to call police, and further claims that her complaint to police was motivated by bad faith. However, given the confrontation which prompted her call to police, I am persuaded that Ms. Semen’s actions were not unreasonable. As explained earlier, I also find that her communications with police are subject to qualified privilege and thus cannot support the claim for economic interference; Caron at para. 37; Gittens at para. 30.

[99] I am unable to find an intent by Mr. Schultz or the other Defendants to injure Mr. Murphy. Based on Mr. Murphy’s own account of events, I find that the reprimands and directions constituted a fair and reasonable response by the Defendants to address Mr. Murphy’s conduct.

[100] Similarly, I am unable to conclude that the Defendants intended to injure Mr. Murphy by their response to his dispute with G.T. over his rented office at the brokerage. His occupations of G.T.’s private office at the brokerage were wholly unreasonable and without justification, particularly on the second occasion when he forced open a locked door to break into the office. Mr. Murphy clearly knew that G.T. had rented the office as his own private space, just as Mr. Murphy had done when he first started at the brokerage. I do not accept Mr. Murphy’s claim that his actions were justified, and find that his improperly aggressive conduct led G.T. to report the break in to police. Mr. Murphy alleges that the Defendants surreptitiously arranged for G.T. to intimidate him and provoke his departure from the brokerage. However, from the evidence at trial, I am not prepared to accept his allegations and find no intention by the Defendants to injure him. As explained above, I accept that G.T.’s communications with police are subject to qualified privilege.

[101] I am not persuaded that the Defendants intended to injure Mr. Murphy by raising the fire door matter with him. Immediately prior to the Toronto Fire Service’s scheduled site visit on June 5, 2013, the building’s landlord advised the brokerage that an exterior fire door had been left open after hours. Concerned that the premises had been unsecured, and anticipating a site visit by Toronto Fire Services, the fire door was a concern for the Defendant brokerage. While Mr. Murphy claims that the Defendants tried to drive him from the brokerage by raising irritants in bad faith to orchestrate his departure and thereby injure his economic interests, there is no evidence to find any such intent to injure him. The fire door was clearly an issue, which the Plaintiff himself had raised with fire officials following his exchanges with G.T. that led him to seek a quick escape from the premises.

[102] I find that the Defendants did not intend to injure Mr. Murphy’s economic interests by taking steps to resolve the various concerns raised by the vendors regarding G.D.’s purchase of a condominium at 100 Leeward Glenway. From Mr. Murphy’s own evidence, I accept that Ms. Semen involved herself in the transaction (initially at the request of the vendor’s brokerage, and later after G.D. asked her for help) in an effort to close the deal in good faith by addressing the vendor’s outstanding issues. Mr. Murphy disagreed fundamentally with the vendor’s concerns and objected to Ms. Semen’s approach for resolving these issues. However, I find from the evidence that Ms. Semen worked to resolve the remaining issues and close the deal at G.D.’s request. It is also clear that G.D. lost confidence in Mr. Murphy’s ability to act for him on the transaction, which led G.D. to make a complaint against Mr. Murphy to RECO. None of this can reasonably be attributed to any malicious intent by the Defendants.

[103] I am not persuaded that the Defendants intended to injure Mr. Murphy’s economic interests in respect of the 198 Haddington Avenue listing. Mr. Murphy obtained the listing from another Sutton Group realtor who owned the property with her husband. However, the vendors took back the listing after an issue arose with the commission terms in the listing agreement that Mr. Murphy had prepared for the transaction. While Mr. Murphy claims that the Defendants pressured the vendors to remove him as the listing agent, there was no evidence of this before me.

[104] Mr. Murphy claims that the Defendants intended to injure his economic interests by terminating his contract with the Sutton Group brokerage. However, the contract governing his work relationship with the brokerage contained a provision which permitted the brokerage to terminate the contract. The lawful exercise of a right to terminate a work contract cannot form the basis of a tort claim; Rogers Cablesystems Limited v. Look Communications Inc. (2000), 129 O.A.C. 324 at para. 11. Once his work contract with the Sutton Group brokerage was terminated, it was open for the brokerage to advise RECO that Mr. Murphy’s registration as a real estate agent with the brokerage would also terminate. I add that the brokerage’s communications to RECO are protected by absolute privilege, and cannot ground the economic interest claim; D'Mello at para. 21; Hamalengwa at para. 8, and Roach at 3.

ii. Interference by Illegal or Unlawful Means

[105] From the evidence before me, I find that the Defendants did not interfere with Mr. Murphy’s economic interests by illegal or unlawful means.

[106] For the reasons set out earlier, Mr. Murphy’s claim for defamation is dismissed. It follows that his defamation claim cannot ground the illegal or unlawful means arm of the economic interference test.

[107] Mr. Murphy claims that the termination of his work contract with the Sutton Group brokerage resulted from efforts by the Defendants to engineer his departure in bad faith. I disagree. Mr. Murphy’s conduct led to various conflicts and concerns over the exercise of his role and responsibilities as a realtor at the brokerage, as described above. From the evidence, I find that the Defendants took reasonable steps to address the issues and dealt with Mr. Murphy using measured and proportional responses. He received ample guidance and warning, which he disregarded. After concluding that the work relationship could no longer continue, the Defendant brokerage lawfully exercised its contractual right to terminate its work contract with Mr. Murphy. In turn, his registration with RECO as a real estate agent at the brokerage was terminated lawfully to coincide with the end of his work contract. In the circumstances, the termination of his work contract and registration cannot support his economic interference claim; Rogers Cablesystems at para. 11.

[108] As explained above, I find that Ms. Semen’s communications with police were appropriate and made without malice and, therefore, were subject to qualified privilege; Caron at para. 37; Gittens at para. 30. There is no basis to find that the Defendants acted illegally or unlawfully on account of the complaints that were made by Ms. Semen and G.T. to police about Mr. Murphy.

[109] For the reasons set out earlier, I also find that Ms. Semen and the Defendants did not engage in illegal or unlawful action by providing information to RECO to aid the regulator in its investigations. As mentioned above, I find that the submissions to the regulator are protected by absolute privilege and cannot ground a tort claim against them; D'Mello at para. 21; Hamalengwa at para. 8, and Roach at 3.

iii. Economic Harm or Loss

[110] As explained below, Mr. Murphy led no evidence to show that the actions by the Defendants caused him economic harm or loss.

a. Lost Commissions

[111] In his opening statement, Mr. Murphy suggested that the Defendants caused him to lose commissions on eight (8) properties.

[112] Mr. Murphy called no evidence regarding any commissions related to the 100 Leeward Glenway property. [1] In any event, it is clear that his client, G.D., was dissatisfied with Mr. Murphy’s handling of the transaction, which led him to bring a complaint to RECO as mentioned above.

[113] With respect to the remaining seven (7) properties, Mr. Murphy broadly alleged that the Defendants harmed his reputation and caused him to lose listing opportunities with clients who would otherwise have engaged him to sell their properties. However, he did not provide actual evidence of how the Defendants’ conduct caused him to lose the listings. Instead, he filed MLS listings for these properties, with their selling prices and commission figures, and argued his claim of economic harm or loss by inviting the court to find that he did not obtain these listings because the sellers likely saw the trespass notice which led them to not retain him as their listing agent.

[114] Importantly, Mr. Murphy did not call any sellers to give evidence as to why they decided to not list their properties with him. He also confirmed that he never actually spoke with any sellers to ascertain why they did not retain him to sell their respective properties. Doing so, he stated, would have been awkward and likely would have compromised any future business opportunities he might have with them that he preferred to not jeopardize. Instead, he clearly stated that he was merely speculating as to why he had not obtained these listings. He also candidly conceded that a realtor is never guaranteed a listing no matter how well, or for how long, the realtor has established a relationship with the seller.

[115] Mr. Murphy did obtain the listing to sell a property on Richview Avenue after he left the Sutton Group brokerage to work as a realtor at the Your Choice brokerage. He then lost the listing when the Your Choice broker of record learned that RECO had issued him a warning, which he had not disclosed, and terminated his work association with the brokerage which cancelled the listing. The seller then declined Mr. Murphy’s request to re-list the property with him once he became associated with a different brokerage. Mr. Murphy testified that the seller said nothing about having seen the trespass notice, which I find had no bearing on the seller’s decision to not re-list the property with him.

[116] From the evidence, I am unable to find that Mr. Murphy suffered any economic harm or loss in respect of the foregoing listings.

b. Discontinuation of “Duty Sheet” Roster

[117] Mr. Murphy also seeks damages for economic harm or loss arising from the decision to discontinue the “duty sheet” roster at the Sutton Group brokerage, which he claims was made in January 2010. It appears that Mr. Murphy remained disgruntled by this decision which, in part, led to his confrontation with Ms. Semen in May 2013 that caused her to call the police, as explained above.

[118] Sections 4 and 5 of the Limitations Act, 2002, S.O. 2002, c.24, Sch. B, as amended, provide as follows:

Basic limitation period

4 Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

Discovery

5 (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew, (i) that the injury, loss or damage had occurred, (ii) that the injury, loss or damage was caused by or contributed to by an act or omission, (iii) that the act or omission was that of the person against whom the claim is made, and (iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and (b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

[119] The limitation period for the “duty sheet” claim is two years, which begins to run on the date of reasonable discoverability pursuant to s. 5(1)(a). A limitation period begins to run when a plaintiff has knowledge of the material facts giving rise to the cause of action; Brazeau v. Toronto (City), 2014 ONSC 2945 at paras. 15-16; Lawless v. Anderson, 2011 ONCA 102 at para. 22. A plaintiff is required to act with reasonable due diligence in investigating and determining whether he has a claim; Longo v. MacLaren Art Centre Inc., 2014 ONCA 26 at paras. 41-43.

[120] I find that the limitation period for Mr. Murphy’s cause of action arising from the discontinuation of the duty sheet began to run on January 1, 2009 when he clearly knew that the roster had been discontinued. [2] The Statement of Claim was issued on March 21, 2014, which was well outside the two year period for bringing the claim under s.4 of the Limitations Act, 2002. It clearly follows that Mr. Murphy is out of time to raise this claim, which is statute barred.

[121] For these reasons, the claim for interference with economic relations is dismissed.

Conclusion

[122] Based on the foregoing, the action is dismissed.

[123] I would encourage the parties to resolve the issue of costs for this trial. However, if they are unable, the Defendants may submit written cost submissions of up to 3 pages (excluding their bill of costs and any offers to settle) within 15 days of the release of this decision. The Plaintiff may then submit his responding cost submissions within 15 days thereafter on the same terms. No reply submissions are to be delivered without leave.

Doi J.

Released: April 1, 2019

Footnotes:

[1] Prior to trial, Mr. Murphy unsuccessfully brought a motion for partial summary judgment to collect the $2,200 commission he claimed was owing to him as the agent for the co-operating brokerage acting for the purchaser of this property. On October 1, 2015, Edwards J. dismissed his motion.

[2] Paragraph 9 of the Statement of Claim states that the “duty sheet” system for walk-in clients was discontinued in early 2010, but it is clear from Mr. Murphy’s evidence and the evidentiary record that the Defendant brokerage discontinued the system by January 1, 2009.