Court File and Parties

COURT FILE NO.: CV-19-629303 DATE: 20200716 SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN:

DAWN MCINTOSH and SCOTT MCINTOSH, Plaintiffs

AND:

JASON BOCCINFUSO and HOMELIFE SUPERIOR REALTY INC. BROKERAGE, Defendants

BEFORE: Sanfilippo J.

COUNSEL: Brian N. Radnoff, for Dawn and Scott McIntosh as Plaintiffs in this 2019 Toronto Action, and as Defendants in the 2019 Oshawa Action and as Defendants in the 2020 Oshawa Action (terms defined herein) David Fogel, for Jason Boccinfuso and Homelife Superior Realty Inc. as Defendants in this 2019 Toronto Action Paul D. Mack, for Homelife Superior Realty Inc. as Plaintiff in the 2020 Oshawa Action Steven Nicoletta, for Charlotte M. Janssen and Janssen Law Professional Corporation, as Defendants in the 2020 Oshawa Action Edward Spong, for Alexandra Gunn and Glen Turpin as Plaintiffs in the 2019 Oshawa Action

HEARD: July 15, 2020

CASE CONFERENCE ENDORSEMENT

Overview

[1] On July 2, 2020, the Plaintiffs, Dawn and Scott McIntosh (collectively “McIntosh”) delivered a “Request to Schedule Short, Opposed Motion”, further to the Consolidated Notice to the Profession, Litigants, Accused Persons, Public and the Media, Regarding the Expanded Operations of the Ontario Superior Court of Justice, dated May 13, 2020 and effective May 19, 2020, and the Toronto Region’s Notice to the Profession setting out the “Toronto Expansion Protocol for Court Hearings During the COVID-19 Pandemic”.

[2] In their Request Form, McIntosh sought to schedule a motion in writing under Rule 21.01(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) to stay an action brought not in Toronto Region, but rather in Central East Region, in Oshawa (the “McIntosh Motion”). The Plaintiffs submitted that the Oshawa action should not have been brought as a separate proceeding, but rather as a counterclaim in this action. McIntosh thereby seeks to advance a motion for an order to dismiss the Oshawa action as frivolous, vexatious or an abuse of process.

[3] On July 2, 2020, F.L. Myers J., issued a Toronto Civil Short Motion Triage Endorsement (the “July 2, 2020 Order”) declining to schedule this motion at this time, writing as follows:

What benefit is there to the clients in funding a battle over the heading “counterclaim” or “statement of claim” on a piece of paper. Counsel owe a duty to cooperate on scheduling and process matters to ensure all parties a fair process. (Commentary 1, Rule 5.1, Rules of Professional Conduct). If production, oral discovery and trial will be together in either case (as they assuredly will) what substance does this proposed proceeding bring to anyone? How does the proposed motion enhance access to justice by counsel cooperating to design the most efficient, affordable procedure for the proportionate and fair resolution of the dispute?” [Emphasis from original]

[4] F.L. Myers J. directed, on the basis of Rules 50.13(1) and 50.13(2), that the parties attend a case conference, which I conducted on July 10, 2020 and continued on July 15, 2020 to allow the parties an opportunity, in the intervening time, to fully consider the issues raised, to take instructions and to allow for collaboration on the most efficient way to advance these proceedings.

[5] The parties were not able to reach any agreement on the issues raised, leaving for determination the issue of whether to schedule for hearing the motion sought to be advanced by McIntosh. I decline to do so, for reasons that I will now explain.

A. Background to the McIntosh Motion

[6] McIntosh issued in Toronto Region on October 17, 2019, this action against Jason Boccinfuso and the real estate agency with which he was associated, HomeLife Superior Realty Inc. (collectively the “Real Estate Agents”). This 2019 Toronto Action arises from McIntosh’s listing for sale of property located in Clarington, Ontario in January 2019, and McIntosh’s agreement to sell it to Alexandra Gunn and Glen Turpin (collectively “Gunn”) for consideration of $1.4 million. The completion of the sale transaction was extended from its original closing date, an interim Occupancy Agreement was entered into and the transaction completed on August 16, 2019.

[7] This is not the first court process that McIntosh issued in relation to the sale of the Clarington Property. Prior to the closing of the real estate transaction, McIntosh brought an Application in Oshawa against Gunn on July 18, 2019 in this Court’s file number 2166/19 (the “2019 Oshawa Application”). This Application was dismissed by Justice C.M. Smith on August 2, 2019.

[8] Gunn then sued McIntosh in Oshawa for, amongst other things, damages said to arise from McIntosh’s sale to Gunn of the Clarington Property. Specifically, on July 26, 2019, Gunn issued a Notice of Action against McIntosh in Oshawa in this Court’s file no. 2228/19 (the “2019 Oshawa Action”), later amended by Gunn and defended by McIntosh.

[9] To summarize, within the span of three months, July 18, 2019 to October 17, 2019, three legal proceedings were issued arising from a single real estate purchase transaction:

(a) On July 18, 2019, McIntosh sued Gunn in the 2019 Oshawa Application; (b) On July 26, 2019, Gunn sued McIntosh in the 2019 Oshawa Action; (c) On October 17, 2019, McIntosh sued the Real Estate Agents in the 2019 Toronto Action.

[10] McIntosh submitted that at the time they issued the 2019 Toronto Action, they thought, erroneously, that the 2019 Oshawa Action had expired or was rendered redundant by the closing of the sale of the Clarington Property. Any such aspirations were dispelled when the Gunn amended their Statement of Claim in December 2019 to plead even broader relief against McIntosh.

[11] I pause to observe that I have not identified any significant elements of these three actions that occurred in Toronto Region. The real estate transaction involved property located in Clarington, Ontario. The Real Estate Agents carry on business in Oshawa.

[12] On May 1, 2020, HomeLife Realty Inc. brought an action in Oshawa in this Court’s file number CV-20-000855, against McIntosh and real estate lawyers Charlotte M. Janssen and Janssen Professional Corporation (collectively the “Janssen Defendants”) for payment of commission on the sale of the Clarington property (the “2020 Oshawa Action”). This is the fourth legal proceeding arising out of this real estate transaction.

[13] HomeLife Realty Inc. is represented by different counsel in its capacity as Plaintiff in the 2020 Oshawa Action, as the claim for commission is an uninsured claim being pursued by HomeLife Realty Inc. corporately whereas the counsel attending to the defence of HomeLife Realty Inc. and Mr. Boccinfuso is funded by the real estate agent’s professional liability insurer.

[14] McIntosh brings this motion in the 2019 Toronto Action to stay the 2020 Oshawa Action.

B. The McIntosh Motion

[15] The relief sought in the Notice of Motion in the McIntosh Motion is set out in a single paragraph:

“An order staying or dismissing the action issued by the defendant, HomeLife Superior Realty Inc., Brokerage (“HomeLife”), in the Ontario Superior Court of Justice in Oshawa as Court File No. CV-20-000855 on May 1, 2020 (the “HomeLife Action”).”

[16] The McIntosh Motion, which McIntosh seeks to bring in Toronto in this 2019 Toronto Action, does not seek any relief in the 2019 Toronto Action. Rather, it seeks relief only in relation to the 2020 Oshawa Action, but does not seek this relief from the Oshawa Court in which the 2020 Oshawa Action is instituted and pending.

C. Analysis

[17] Rule 37.03(1) provides as follows:

All motions shall be brought and heard in the county where the proceeding was commenced or to which it has been transferred under rule 13.1.02, unless the court orders otherwise.

[18] I view Rule 37.03(1) to presumptively require that all motions affecting an action be brought (“shall be brought”) in the Region where the action is pending but leaves a discretion to the Court to control the process by ordering “otherwise”. Presumptively, then, the McIntosh Motion should be brought in Oshawa because the only relief that the motion seeks is to stay the 2020 Oshawa Action. The question then becomes whether I should exercise my discretion to order “otherwise” and thereby schedule the McIntosh Motion for hearing in Toronto.

[19] The lawyer for McIntosh contended that I should allow the McIntosh Motion to proceed in Toronto because the decision by HomeLife Realty Inc. to issue the 2020 Oshawa Action in Oshawa was a “tactical” decision designed to bolster a motion to remove the 2019 Toronto Action from Toronto to Oshawa. He submitted that the discretion provided by Rule 37.03(1) to allow a motion to proceed in a Region other than where the action is pending was specifically provided for a situation like the present, because otherwise, a party could be put to the expense of contesting, in a “distant jurisdiction”, an action improperly brought for purely strategic purposes. I do not accept these submissions. I will explain why.

[20] First, I am not satisfied that the 2020 Oshawa Action was brought improperly or for purely tactical purposes. HomeLife Realty Inc. brought the 2020 Oshawa Action in the Simplified Procedure to recover some $94,000 in commissions said to be owing. HomeLife Realty Inc. does not seek these damages from only McIntosh, but also from the Janssen Defendants.

[21] Second, there is a history of litigation in Oshawa regarding issues arising from this real estate transaction. HomeLife Realty Inc. brought its action for recovery of commissions in a jurisdiction in which an action is pending to address issues arising from the real estate transaction that gives rise to the alleged commission entitlement.

[22] Third, not only is the Oshawa Court nearby, but McIntosh is not a stranger to the Oshawa Court. McIntosh instituted the 2019 Oshawa Application in Oshawa and is defending the 2019 Oshawa Action in Oshawa.

D. Conclusion

[23] I see no reason to deviate from the presumptive requirement that the McIntosh Motion “shall be brought and heard” in the Region where the proceeding affected by the Order was brought. I thereby decline to schedule the McIntosh Motion for hearing in Toronto.

[24] I encourage the parties to argue less about whether their disputes are adjudicated in Oshawa or Toronto, whether the form of pleading is as a stand-alone claim or a counterclaim, and which party started their action first and who went second, and to work collaboratively toward the objective of securing the process that will provide the just, most expeditious and least expensive determination of this dispute on its merits. I encourage them to assess critically whether these objectives can be met through multiple proceedings in two Regions involving a dispute of this monetary magnitude. As the Supreme Court stated in Hryniak v. Mauldin, 2014 SCC 7, at para. 28: “The principal goal remains the same: a fair process that results in a just adjudication of disputes.”

[25] The terms incorporated into the July 2, 2020 Order as Schedule “A” remain effective, including that the requirement of issuance and entry of a formal order is hereby dispensed with, in accordance with Rule 77.07(6).

Sanfilippo J.

Date: July 16, 2020