DATE: 20030213
DOCKET: C37809
COURT OF APPEAL FOR ONTARIO
RE: ROBERT CISHECKI, PARK 2000 REALTY SERVICES INC. (Plaintiffs/Appellants) - and - IBM CANADA LTD. (“IBM”), CHRIS BROWN (Defendants/Respondents)
BEFORE: MORDEN, BORINS AND SIMMONS JJ.A.
COUNSEL: Robert Cishecki
in person for the appellants
Gavin Smyth
for the respondents
HEARD: September 26, 2002
On appeal from the judgment of Justice Douglas Coo of the Superior Court of Justice dated January 30, 2002.
E N D O R S E M E N T
[1] This is an appeal by the plaintiffs from a judgment striking out their statement of claim pursuant to rule 21.01(1)(b) of the Rules of Civil Procedure on the ground that it fails to disclose a reasonable cause of action.
[2] Mr. Cishecki is a real estate agent who, at the relevant time, appears to have been employed by the corporate plaintiff, which is a real estate broker. He is not represented by a lawyer and was granted permission by Nordheimer J. and by this court to represent the corporate plaintiff.
[1] We have experienced difficulty in determining the precise nature of Mr. Cishecki’s claim. The amended statement of claim is lengthy and poorly drafted, which is understandable given that it was prepared by a non‑lawyer. Although his claim is based on several grounds, we agree with the motion judge’s characterization of it as a “claim for damages for loss of opportunity to earn a commission” from the defendant IBM Canada Ltd. (“IBM”).
[2] The authorities are clear that before a claim can be struck out on the ground that it discloses no reasonable cause of action, it must be plain and obvious that the claim does not disclose a reasonable cause of action. Moreover, the statement of claim is to be read generously with allowance for inadequacies due to drafting deficiencies. See Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959.
[3] Where the defendant’s wrongful conduct deprives the plaintiff of a chance of profit, the plaintiff is entitled to recover damages. There have been a number of cases in contract where the defendant’s breach of contract has deprived the plaintiff of the chance of realizing some potential gain. Although the plaintiff’s chances of profit may be found to be low, damages will be assessed on the basis of the degree of the chance that the plaintiff would have earned the amount claimed but for the defendant’s breach of contract, or other wrongful act. For example, if it is found that the plaintiff had a 50 per cent chance of earning $100,000 but for the defendant’s breach of contract, the plaintiff’s damages will be assessed at $50,000. See, e.g., Multi‑Malls Inc. v. Tex‑Mall Properties Ltd. (1980), 1981 1780 (ON CA), 28 O.R. (2d) 6 (H.C.J.), aff’d (1981), 1981 3012 (ON CA), 37 O.R. (2d) 133 (C.A.), leave to appeal to S.C.C. refused 41 N.R. 360n. See, generally, S. D. Waddams, The Law of Damages, loose‑leaf ed. (Aurora: Canada Law Book 2002) at 13‑14 to 13‑20.
[4] Giving the amended statement of claim a generous reading, we are satisfied that it should not have been struck out by the motion judge as being “one of those ‘clearest cases’ in which it is ‘plain and obvious’ that the statement of claim, or cause of action, is legitimately subject to successful attack at this stage in the proceeding”. We agree with the motion judge’s finding that the plaintiffs could not succeed on their claim based on fraudulent misrepresentation. However, in our view Mr. Cishecki should be permitted to proceed to trial but only on the claim that the defendant, Chris Brown, had ostensible authority to bind her principal, the defendant IBM, to a contract with Mr. Cishecki appointing him as its agent in locating a new location for it, and that IBM wrongly terminated the contract thereby depriving Mr. Cishecki of the opportunity of earning a commission.
[5] As such, the claim is similar to that in Hampton & Sons, Ltd. v. George, [1939] 3 All E.R. 627 (K.B.), where the defendant wrongfully deprived a real estate agent of the opportunity of earning a commission, with the result that it was decided that the agent was not entitled to the full commission, but to the value of the chance of earning it.
[6] We express no opinion, of course, on whether Mr. Cishecki will succeed at trial. To do so, he must prove his claim to the satisfaction of the trial judge.
[7] Based on the foregoing analysis, it is our opinion that it is not plain and obvious that the statement of claim fails to disclose a reasonable cause of action.
[8] We are unable to accept the defendant’s position that the plaintiffs’ are precluded from asserting their claim on the basis of s. 23(a) of the Real Estate and Business Brokers Act, R.S.O. 1990, c. R. 4, which reads:
- Subject to section 32, no action shall be brought to charge any person for the payment of a commission or other remuneration for the sale, purchase, exchange or leasing of real estate,
(a) unless the agreement upon which the action is brought is in writing and signed by the party to be charged therewith or some person thereunto by the party lawfully authorized;
Section 32 has no application to the facts of this case.
[9] In our view, s. 23(a) does not assist the defendants. This provision applies to a claim for the payment of a commission for the sale, purchase, exchange or leasing of real estate, and precludes such claim where the agreement upon which it is brought is not in writing. As we have explained, Mr. Cishecki’s claim is not for a commission; it is for loss of opportunity to earn a commission arising from IBM’s alleged wrongful conduct. Moreover, his claim is not based on the sale, purchase, exchange or leasing of real estate. He does not claim to have performed any of these acts. As this court has held in explaining a predecessor of s. 23(a), the provision does not create a cause of action. It provides conditions precedent to the bringing of an action for a commission based upon whatever common law rights there may be to recover that commission: Keachie Jr. v. St. John (1958), 1958 368 (ON CA), 12 D.L.R. (2d) 21 at 22 (Ont. C.A.).
[10] Although it might be preferable to order that the plaintiffs serve an amended statement of claim that better describes their claim, given that Mr. Cishecki is not legally trained we doubt that anything would be gained by doing so. We expect that the claim upon which we have permitted this case to proceed to trial, as set out in paragraph 6, is clear to the parties and will be clear to the trial judge.
[11] Accordingly, we would allow the appeal in part, and set aside the judgment of the motion judge striking out the statement of claim in its entirety for failing to disclose a reasonable cause of action. In our opinion, this is not a proper case in which to award costs of the motion or the appeal.
“J. W. Morden J.A.”
“S. Borins J.A.”
“Janet M. Simmons J.A.”