Court File and Parties

COURT FILE NO.: CV-18-135098 DATE: 20180727 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Winniefred W. Lee and Prospective Reality Inc., Plaintiffs AND: Her Majesty the Queen in Right of the Province of Ontario and The Minister of Government and Consumer Services, Defendants

BEFORE: The Honourable Mr. Justice R.E. Charney

COUNSEL: Nansy Ghobrial, Counsel for the Defendants

HEARD: In-Writing

Endorsement

[1] This matter was referred to me by the Registrar’s Office pursuant to rule 2.1.01(7) following receipt of a written request of counsel for the defendants under rule 2.1.01(6).

[2] The defendant seeks the dismissal of this action on two grounds. First, the plaintiffs’ claim seeks to have an order of the Licence Appeal Tribunal set aside, and the defendant argues that such a remedy is not available by way of civil suit. Second, the defendant argues that the plaintiffs’ claim fails to make any claim against the named defendants. All of the plaintiffs’ complaints arise out of their dealings with the Real Estate Council of Ontario (“RECO”) and its employees. The named defendants are not vicariously liable for any alleged conduct of RECO or its employees.

[3] The Registrar notified the plaintiffs that the court was considering making an order to stay or dismiss the action under rule 2.1. Their submissions dated April 30, 2018 were delivered to the court, and I have now had an opportunity to review them, as well as the response filed by the defendant on June 1, 2018.

The Statement of Claim

[4] The plaintiff, Winniefred Lee, owns and operates a real estate brokerage.

[5] The Statement of Claim makes broad allegations of “defamation, slander and libel”, “conspiracy, collusion and corruption”, “breach of trust”, “abuse of authority, abuse of power, and public mischief”, “breach of confidence”, “intimidation, harassment and stalking”, and “fraudulent misrepresentation”. To the extent that any of these allegations include any statement of material facts, the allegations all relate to the conduct of RECO and its employees. RECO is sometimes referred to as the “The Minister of Government and Consumer Services (RECO)”, and sometimes just “RECO”.

[6] The allegations appear to relate to a decision of the Licence Appeal Tribunal dated August 26, 2016, although neither the substance of the decision nor the precise nature of the relationship between the decision and the alleged misconduct is clear from the Statement of Claim.

[7] RECO is not named as a defendant in the Statement of Claim. The defendants are Her Majesty the Queen in Right of the Province of Ontario and The Minister of Government and Consumer Services.

[8] The Statement of Claim seeks a variety of relief, including:

i. A total of $11 million damages for the named torts ii. Reversal of the Order of the Licence Appeal Tribunal dated August 23, 2016 iii. Annulment of charges by RECO iv. A “Judicial Inquiry” into the conduct of RECO v. Removal of certain content from RECO’s website

Rule 2.1.01

[9] Rule 2.1.01(1) authorizes the court to stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.

[10] The Court’s review of the pleadings under rule 2.1.01 is limited to the face of the statements of claim to assess whether it appears to be frivolous, vexatious or an abuse of the process of the court. As noted by Myers J. in Covenoho v Ceridian Canada, 2015 ONSC 2468, these are not generally close calls.

[11] While the court is not to consider evidence in a proceeding under rule 2.1.01, the court may consider the pleadings and judicial decisions in other court cases.

[12] In Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733 the Ontario Court of Appeal stated, at para. 8:

[T]he court has recognized that the rule should be interpreted and applied robustly so that a motion judge can effectively exercise his or her gatekeeping function to weed out litigation that is clearly frivolous, vexatious, or an abuse of process. However, the use of the rule should be limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to support the resort to the attenuated process.

[13] See also: Van Sluytman v. Muskoka (District Municipality), 2018 ONCA 32.

Analysis

[14] The Safety and Consumer Statutes Administration Act, 1996, S.O. 1996, c. 19, authorizes the relevant Minister to enter into an “administrative agreement” in relation to a designated authority with respect to designated legislation. These “administrative authorities” are not for profit corporations incorporated under the laws of Ontario or Canada.

[15] One of the designated statutes pursuant to General, Ont. Reg. 187/09 is the Real Estate and Business Brokers Act, 2002. Section 4 of that regulation establishes the Real Estate Council of Ontario, which is incorporated under the laws of Canada, and which entered into an administrative agreement with the relevant Minister on March 1, 1997, “as the sole administrative authority for the purpose of administering the provisions of the Real Estate and Business Brokers Act, 2002 and the regulations made under that Act…”

[16] Pursuant to s. 10(1) of the Safety and Consumer Statutes Administration Act, 1996:

Designated administrative authorities and their members, officers, directors, employees and agents, together with the persons whose services the authorities retain, are not agents of the Crown and shall not hold themselves out as agents of the Crown.

[17] Moreover, s. 9(2) of the Safety and Consumer Statutes Administration Act, 1996 provides:

Persons whom a designated administrative authority employs or whose services the authority retains under subsection (1) and members, officers, directors and agents of a designated administrative authority are not and shall not be deemed to be employees of the Crown, and they shall not hold themselves out as such.

[18] Finally, s. 11(3) of the Safety and Consumer Statutes Administration Act, 1996 provides:

No action or other proceeding for damages shall be instituted against the Crown for damages that a person suffers as a result of any act or omission of a person who is not an employee or agent of the Crown.

[19] It is clear from these statutory provisions that that RECO is a separate legal entity from the Crown and the Minister, and that neither Her Majesty the Queen in Right of Ontario nor the Minister of Government and Consumer Services can be sued with respect to the alleged conduct of RECO or its employees. The plaintiffs’ claims against the named defendants must therefore be dismissed on this ground alone. The Statement of Claim simply fails to make an allegation against the named defendants.

[20] In addition, s. 11(1) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Schedule G, provides that a party to a proceeding before the Licence Appeal Tribunal relating to a matter under the Real Estate and Business Brokers Act, 2002, may appeal to the Divisional Court on questions of law. It is an abuse of process to attempt to appeal and reverse a decision of the Licence Appeal Tribunal by way of civil suit. This is an additional reason why this specific relief claimed by the plaintiff should be struck out.

Conclusion

[21] The plaintiffs’ action against Her Majesty the Queen in Right of Ontario and The Minister of Government and Consumer Services is dismissed in accordance with rule 2.1.01.

Justice R.E. Charney Date: July 27, 2018