COURT FILE NO.: CV-18-5364
DATE: 2020 02 03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KAILASH JOGIA, Plaintiff
Self-represented
- and -
HARRY GOEL, RE/MAX REALTY SPECIALISTS INC., PAUL FLETCHER, GREGORY GILMOUR, RE/MAX ONTARIO-ATLANTIC CANADA INC., FRANK POLZLER and WALTER SCHNEIDER, Defendants
John Campbell, counsel for the Defendants RE/MAX Ontario-Atlantic Canada Inc., Frank Polzler and Walter Schneider (Moving Parties)
HEARD: January 13, 2020
REASONS FOR JUDGMENT
PETERSEN J.
OVERVIEW
[1] In this action, the plaintiff, Kailash Jogia, claims against the defendants RE/MAX Realty Specialists Inc., Harry Goel, Paul Fletcher and Gregory Gilmour (collectively the “Realty Specialists Defendants”) for, among other things, alleged breach of contract, breach of fiduciary duty and negligence. Mr. Jogia’s claims against the remaining defendants, RE/MAX Ontario-Atlantic Canada Inc. (“RE/MAX Ontario”), Frank Polzler and Walter Schneider, are principally based on a theory of vicarious liability for the alleged tortious conduct of the Realty Specialists Defendants.
[2] RE/MAX Ontario, Mr. Polzler and Mr. Schneider (the “Moving Defendants”) have brought a motion for summary judgment, seeking an order to dismiss the action as against them. Mr. Jogia opposes the motion, arguing that the claims against the Moving Defendants raise issues that require a trial. Alternatively, he requests summary judgment in his favour as against the Moving Defendants. The Realty Specialists Defendants take no position on the motion.
[3] Granting summary judgment (in favour of either the Moving Defendants or the plaintiff) would not preclude a trial of the action against the Realty Specialists Defendants. I must therefore consider whether partial summary judgment on only the claims against the Moving Defendants could result in duplicative proceedings or inconsistent findings and outcomes at trial, particularly in light of the claim of vicarious liability. The Court of Appeal for Ontario has clearly stated that these risks must be avoided: Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922, 133 O.R. (3d) 561, at paras. 1 and 32-40; Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369, at paras. 14 and 18.
[4] For the reasons set out below, I have concluded that the claims against the Moving Defendants can be readily bifurcated and dismissed without making any findings on the merits of the claims against the Realty Specialists Defendants. Moreover, the evidence relevant to the claims against the Moving Defendants does not overlap with the evidence against the Realty Specialists Defendants. Ordering partial summary judgment in favour of the Moving Defendants consequently does not create a material risk of duplicate proceedings or inconsistent findings at trial. I am therefore confident about the advisability of the summary judgment process in the context of this litigation as a whole: Butera v. Chown Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at paras. 22-35; Service Mold, at para. 14.
[5] Moreover, I am confident that the motion record enables me to make the necessary findings of fact, apply the relevant legal principles and arrive at a just determination of the issues on their merits using a fair process: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 4. For that reason and the reasons set out in detail below, I conclude that there is no issue requiring a trial of the claims against the Moving Defendants. Summary judgment ought therefore to be granted pursuant to Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
RELATIONSHIPS BETWEEN THE PARTIES
[6] The doctrine of vicarious liability applies in circumstances where the law holds one person responsible for the misconduct of another person because of their relationship: 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983, at para. 2. It is therefore important to understand the nature of the relationships between the defendants in this case.
[7] RE/MAX Ontario holds the rights in Ontario to the RE/MAX real estate sales system. It licences the right to use the RE/MAX system to individual brokers in the province. The defendant RE/MAX Realty Specialists Inc. is one such brokerage located in Mississauga, Ontario.
[8] RE/MAX Ontario and RE/MAX Realty Specialists entered into a franchise agreement in December 2010. The franchise agreement was in effect throughout the relevant time period in this matter.
[9] The individual defendants Frank Polzler and Walter Schneider are directors and officers (i.e., Chairman and President respectively) of the franchisor, RE/MAX Ontario. They have no personal involvement (as directors, owners, or in any other capacity) in the franchisee brokerage, RE/MAX Realty Specialists.
[10] The individual defendants Harry Goel, Paul Fletcher and Gregory Gilmour are realtors associated with the franchisee brokerage. Mr. Gilmour owns the brokerage. Mr. Fletcher is the broker of record. Mr. Goel is the broker who entered into property listing agreements with the plaintiff, Mr. Jogia, on behalf of the brokerage.
BACKGROUND FACTS
Listing for Sale of Mr. Jogia’s Residential Properties
[11] The facts giving rise to this action relate to the sale of two residential properties. In 2017, Mr. Jogia and his spouse co-owned and occupied one of the properties, which was located on Georgian Road in Brampton. They had purchased two additional properties in Brampton that were both new-build homes, one located on Longevity Road and the other located on Blue Silo Way. Their agreement to purchase the Longevity Road property (which was still under construction) was scheduled to close on May 30, 2018. Their purchase of the Blue Silo Way property was scheduled to close on April 5, 2018.
[12] It was their intention to move into the home on Blue Silo Way. They wished to sell the Georgian Road property and to assign the Longevity Road property. They needed to complete these transactions expeditiously in order to manage their financial obligations.
[13] They initially listed the Georgian Road property for sale with ComFree network at a price of $899,900 in November 2017. They listed the Longevity Road property with ICI Source Real Asset Services at a price of $1,859,000 in December 2017. These services are essentially “sale by owner” listings. Neither property sold immediately.
[14] In January 2018, Mr. Jogia contacted Mr. Goel. After meeting with Mr. Goel, he cancelled the two previous listings. He and his spouse then entered into listing agreements for the properties with RE/MAX Realty Specialists. On or about January 21, 2018, they executed an agreement to list Georgian Road for sale at a price of $849,000 from January 22, 2018 to May 31, 2018. On or about January 22, 2018, they executed another agreement to list Longevity Road for sale at a price of $1,809,900. Both agreements included a sales commission fee of 3.5%.
[15] The duration of the Longevity Road listing agreement is in dispute. Mr. Jogia claims that it was to expire on April 30, 2018. In their Statement of Defence, the Realty Specialists Defendants plead that both listing agreements were to terminate on May 31, 2018.
[16] Mr. Jogia requested, in late February and again in early March 2018, that he and his spouse be released from the listing agreements because he had lost confidence in Mr. Goel and RE/MAX Realty Specialists. His requests were denied, initially by Mr. Goel and subsequently by Mr. Fletcher and Mr. Gilmour, to whom he addressed his concerns.
[17] The Georgian Road listing agreement was, however, cancelled and replaced by two successive agreements between Mr. and Mrs. Jogia and RE/MAX Realty Specialists. In February 2018, the first replacement agreement changed the list price for that property from $849,000 to $819,000. A further replacement agreement in March 2018 changed the list price again to $799,900.
Claim Against the Realty Specialists Defendants
[18] In his Statement of Claim, Mr. Jogia pleads that he was “compelled” by the Realty Specialists Defendants to agree to reduce the list sale price of Georgian Road. He asserts that the Realty Specialists Defendants were aware of his financial circumstances and of the timing of his obligations with respect to impending closings on the newly constructed homes. He alleges that they intentionally exploited his financial vulnerability for their own gain.
[19] Mr. Jogia claims that Mr. Goel induced him and his spouse to enter into the listing agreements by making misrepresentations. He alleges that Mr. Goel then failed in his duty to act in their best interest as their real estate agent. He asserts that Mr. Goel devoted insufficient attention to the listings and neglected to advertise and market the properties for sale. He contends that Mr. Goel deliberately chose not to promote the properties because he wanted to sell them to a buyer represented by RE/MAX Realty Specialists in order to avoid splitting the sales commission with an independent broker.
[20] Mr. Jogia claims that Mr. Fletcher and Mr. Gilmour supported Mr. Goel “so as to make more money as a team” at his expense. His Statement of Claim includes a pleading that the Realty Specialists Defendants “didn’t put required efforts to sell plaintiff’s Georgian Road property to any other co-operative broker’s buyer until they found their own buyer.”
[21] Mr. Jogia further pleads that Mr. Goel promised to cancel the Longevity Road listing agreement if he sold the Georgian Road property “to his own customer so as to retain full sale commission without splitting with anyone.” The Georgian Road property ultimately sold for $773,000. Mr. Jogia pleads that it was sold to Mr. Goel’s “own buyer at an extremely low throw away price at a very critical time just few weeks before the plaintiff’s closing date of new purchased home.”
[22] Mr. Jogia alleges that Mr. Goel subsequently broke his promise to cancel the Longevity Road listing agreement. He accuses the Realty Specialists Defendants of extending the Longevity Road listing agreement by one month and falsifying a document to make it appear that the agreement was in effect until May 31, 2018, when in fact it expired on April 30, 2018. He asserts that his and his spouse’s signatures were forged on the falsified agreement. Specifically, he pleads,
The purpose of the alleged unlawful extension of sale agreement was to continue holding plaintiff’s Longevity Road property with the broker [Mr. Goel] and brokerage [RE/MAX Realty Specialists] to create profit opportunity with expectations that, the plaintiff will sell this property at any low cost prior to May 30, 2018. This will also provide an opportunity and more time to the broker and the brokerage to sell this property to own buyer so as to pocket full sale commission.
[23] At the heart of Mr. Jogia’s action is the allegation that the Realty Specialists Defendants held him “captive” by refusing to cancel the listing agreements, while simultaneously failing to fulfill their contractual obligations set out in the agreements.
[24] Mr. Jogia and his spouse did not assign their agreement to purchase the Longevity property. They were unable to close the purchase as scheduled on May 30, 2018. They consequently forfeited a substantial deposit to the builder.
[25] In this action, Mr. Jogia is seeking to recover specific damages to compensate for the lost deposit on Longevity Road ($155,781) and for the difference between the original listing price and the ultimate sale price of Georgian Road ($76,900), as well as general, aggravated and punitive damages in the amount of $10,000,000. Although his Statement of Claim is not drafted using this specific language, he is effectively alleging intentional infliction of emotional and mental suffering, in addition to breach of fiduciary duty, negligence and breach of contract on the part of the Realty Specialists Defendants.
[26] The Realty Specialists Defendants dispute most of the facts pleaded in the Statement of Claim and deny all allegations of wrongdoing.
Claim Against the Moving Defendants
[27] The Moving Defendants were not involved in Mr. Jorgia’s property listings or in any efforts to sell his properties. His Statement of Claim does not allege that they breached any contractual provisions, nor does it claim that they are direct tortfeasors. Rather, Mr. Jogia pleads that as the franchisor, and as officers and directors of the franchisor, the Moving Defendants are vicariously liable for the wrongs committed by the franchisee and its representatives (i.e., by the Realty Specialists Defendants).
[28] Mr. Jogia pleads that RE/MAX Ontario and RE/MAX Realty Specialists had an agency relationship. He claims that the Moving Defendants exercised control over the operations of the Realty Specialists Defendants. He submits that the Moving Defendants established business standards with which the Realty Specialists Defendants were obligated to comply, yet they took no action to address serious non-compliance issues that he brought to their attention.
[29] Mr. Jogia claims that the Moving Defendants had knowledge that the Realty Specialists Defendants were engaging in misrepresentation, negligence and other “unlawful” conduct, including forgery and falsification of documents, but took no steps to intervene nor even to investigate Mr. Jogia’s complaints. He pleads that their failure to take reasonable steps to enforce compliance standards renders them vicariously liable (with the Realty Specialists Defendants) for harm caused to him by the Realty Specialist Defendants’ alleged wrongdoing.
[30] Furthermore, Mr. Jogia asks this court to pierce the corporate veil. He argues that RE/MAX Ontario is liable for the alleged wrongdoing of the Realty Specialists Defendants on the ground that RE/MAX Realty Specialists is not truly a separate corporation and is being used to facilitate improper conduct by RE/MAX Ontario. Mr. Jogia pleads that RE/MAX Realty Specialists is “merely the alter ego and nothing more than a conduit used by [RE/MAX Ontario] to avoid liability, especially on compliance matters”. He claims that the RE/MAX Realty Specialists brokerage was “being used for improper purpose” by RE/MAX Ontario. He submits that the Moving Defendants are therefore jointly and severally liable for the damages that he claims were caused by the Realty Specialists Defendants’ alleged breach of contract and tortious conduct.
[31] The Moving Defendants submit that, even if Mr. Jogia had a valid claim against the Realty Specialists Defendants (which is denied by all defendants), there would be no basis for a finding of vicarious liability or joint liability on their part. That submission is the primary basis upon which the Moving Defendants seek dismissal of the action as against them.
ANALYSIS
[32] Although the onus is on the Moving Defendants to show that there is no genuine issue requiring a trial, Mr. Jogia cannot simply rest on the pleadings in his Statement of Claim to respond to the summary judgment motion. He must set out, in an affidavit or other evidence, the facts supporting his pleadings: Rules of Civil Procedure, R.R.O. 1990, Reg.194, r. 20.02(2).
[33] In a summary judgment motion, each party must “put their best foot forward” and “lead trump or risk losing all”: Lawless v. Anderson, 2010 ONSC 2723, at para. 17, aff'd 2011 ONCA 102; Babjak v. Karas, 2018 ONSC 2093, at para. 10. The court is entitled to assume that the motion record contains all the evidence that would be presented at trial: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 27, aff’d 2014 ONCA 878, leave to appeal dismissed, [2015] S.C.C.A. No. 97.
[34] In this case, there is simply no evidence to support Mr. Jogia’s claim that RE/MAX Realty Specialists was incorporated for an improper purpose. Nor is there any evidence that RE/MAX Realty Specialists constitutes a shell company or a front for RE/MAX Ontario to insulate itself from liability. Mr. Jogia makes bald allegations to that effect in his affidavit, which essentially mirror his pleadings, but there is no foundation established for any of his statements. There is no supporting evidence in the record. There are therefore no grounds upon which to pierce the corporate veil: Yaiguaje v. Chevron Corp., 2018 ONCA 472, 141 O.R. (3d) 1, at para. 66, leave to appeal refused [2018] S.C.C.A. No. 255.
[35] For the reasons set out below, I have concluded that there is also no basis upon which RE/MAX Ontario could be held vicariously liable for any alleged wrongdoing of the Realty Specialists Defendants.
[36] The classes of relationships that attract vicarious liability are neither exhaustively defined nor closed. The most common are those of employer/employee and principal/agent. Although there are limited exceptions based on policy reasons, the employer/independent contractor and owner/independent contractor relationships typically do not attract vicarious liability: Sagaz, at paras. 33-35.
[37] In Sagaz, at paras. 34-47, the Supreme Court of Canada discussed the concept of vicarious liability in the employment context and provided the following guidance on the analytical approach to determine whether a person is an employee or an independent contractor:
What is the difference between an employee and an independent contractor and why should vicarious liability more likely be imposed in the former case than in the latter? This question has been the subject of much debate. The answer lies with the element of control that the employer has over the direct tortfeasor (the worker). If the employer does not control the activities of the worker, the policy justifications underlying vicarious liability will not be satisfied. See Flannigan, supra, at pp.31-32:
This basis for vicarious liability discloses a precise limitation on the scope of the doctrine. If the employer does not control the activities of the worker it is clear that vicarious liability should not be imposed, for then insulated risk-taking [by the employer] does not occur. Only the worker, authorized to complete a task, could have affected the probability of loss, for he alone had control in any respect. Thus, because there is no mischief where employer control is absent, no remedy is required.
Explained another way, the main policy concerns justifying vicarious liability are to provide a just and practical remedy for the plaintiff’s harm and to encourage the deterrence of future harm (Bazley, supra, at para.29. Vicarious liability is fair in principle because the hazards of the business should be borne by the business itself; thus, it does not make sense to anchor liability on an employer for acts of an independent contractor, someone who was in business on his or her own account. In addition, the employer does not have the same control over an independent contractor as over an employee to reduce accidents and intentional wrongs by efficient organization and supervision. Each of these policy justifications is relevant to the ability of the employer to control the activities of the employee, justifications which are generally deficient or missing in the case of an independent contractor.... However, control is not the only factor to consider in determining if a worker is an employee or an independent contractor....
Although there is no universal test to determine whether a person is an employee or an independent contractor, ... [t]he central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In making this determination, the level of control the employer has over the worker’s activities will always be a factor. However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker’s opportunity for profit in the performance of his or her tasks.
[38] RE/MAX Ontario and RE/MAX Realty Specialists have a contractual franchisor-franchisee relationship. It is clearly not an employer/employee relationship. Moreover, Messrs. Goel, Fletcher and Gilmour personally have no contractual relationship, let alone an employment relationship with RE/MAX Ontario. They do not work for RE/MAX Ontario in any capacity. Consequently, to the extent that Mr. Jogia relies on employment cases to ground his argument for RE/MAX Ontario’s vicarious liability, those cases are distinguishable on the facts of this case.
[39] Mr. Jogia argues that RE/MAX Ontario and RE/MAX Realty Specialists have an agency relationship or a relationship akin to agency. However, the evidence does not support his argument. There is no evidence that RE/MAX Realty Specialists (the franchisee) was authorized by RE/MAX Ontario (the franchisor) to enter into listing agreements on behalf of RE/MAX Ontario. Nor is there evidence that RE/MAX Realty Specialists was at any relevant time acting within the scope of actual or ostensible authority conveyed by RE/MAX Ontario.
[40] On the contrary, the franchise agreement between RE/MAX Ontario and RE/MAX Realty Specialists includes the following terms:
3.6 The franchisee agrees, in the use of the distinguishing characteristics of the [RE/MAX] System, to identify Franchisee as being the independent owner of Franchisee’s particular real estate offices under licence from the RE/MAX and to disclose that RE/MAX is an international network of independently owned and operated offices.
5.1 Franchisee is an independent contractor and nothing contained in this agreement shall be construed to create a partnership or joint venture between RE/MAX and Franchisee. Neither RE/MAX nor Franchisee shall act as agent for the other or as guarantor or surety for the obligations of the other. Neither RE/MAX nor Franchisee shall be responsible for the debts, expenses or obligations of the other of them.
[41] I recognize that the mere labelling of RE/MAX Realty Specialists as an independent contractor in the franchise agreement is not determinative of the nature of the relationship between the parties: 1738937 Alberta Ltd. v. Fair Waves Coffee Inc., 2017 ABQB 714, 64 Alta. L.R. (6th) 286, at para. 36. It is, however, a relevant factor in determining the nature of the relationship, as is the contractual provision that they shall not act as agent for one another. Clearly, the franchise agreement did not, itself, create a principal/agent relationship between the franchisor and franchisee.
[42] There is no evidence that any representation was ever made to Mr. Jogia suggesting the existence of an agency relationship between RE/MAX Ontario and RE/MAX Realty Specialists. Mr. Jogia’s listing agreements do not contain any information that could be construed as representing an agency relationship. Indeed, the listing agreements do not mention RE/MAX Ontario at all. They are standard-form Seller Representation Agreements developed by the Ontario Real Estate Association. They identify Mr. Jogia and his spouse as “sellers” and RE/MAX Realty Specialists Inc. as the “brokerage”. Mr. Goel is identified as the broker who is “authorized to bind the Listing Brokerage”. There is no suggestion that Mr. Goel is authorized to bind RE/MAX Ontario or that the brokerage is authorized to bind RE/MAX Ontario.
[43] There is simply no evidence to support Mr. Jogia’s claim of an agent/principal relationship between RE/MAX Realty Specialists and RE/MAX Ontario.
[44] RE/MAX Ontario and RE/MAX Realty Specialists are separately owned corporate entities. They have neither an employer/employee relationship nor a principal/agent relationship. As noted above, however, the categories of relationships that attract vicarious liability are not a closed list. In general, a franchisor/franchisee relationship is more akin to an owner/independent contractor relationship, such that the franchisor is not typically exposed to vicarious liability for alleged wrongs committed by the franchisee: Chow v. Subway Franchise Restaurants of Canada Ltd., 2017 BCSC 1034. There may, however, be circumstances in which a franchisor should be held vicariously liable for the acts or omissions of its franchisee based on policy grounds.
[45] Such a circumstance could arise where the franchisor exercises a significant degree of control over the franchisee’s day-to-day operations and stands to profit from those operations, in which case the franchisor arguably ought to assume the business risk associated with the franchisee’s operations. In this case, Mr. Jogia relies on the franchise agreement between RE/MAX Ontario and RE/MAX Realty Specialists to argue that the franchisor exercises control over the franchisee. He submits that paragraph 5.1 of the franchise agreement -- which stipulates that the franchisor is not “responsible for the debts, expenses or obligations of” the franchisee -- does not apply to “compliance issues”.
[46] Mr. Jogia cites and relies on other provisions of the franchise agreement, which set out the following terms:
a. the franchisee is permitted to use the franchisor’s trademarks in the conduct of its business, subject to quality control standards imposed by the franchisor;
b. the franchisee agrees to observe the rules of operation and quality control standards established by the franchisor, including a manual of operations and specific policy directives;
c. the franchisee acknowledges the importance of the franchisor’s quality control program and agrees to adhere strictly to the quality control standards established in the policy and procedure manuals;
d. the franchisee agrees to permit and acknowledges that it should expect regular inspection and supervision of books, records, procedures and services by the franchisor’s agents and representatives;
e. the franchisor agrees to maintain reasonable supervision over its affiliates with a view to promoting compliance with the RE/MAX real estate sales system standards;
f. if the franchisee breaches any rule of operation, quality control standard or any policy directive established by the franchisor, the franchisor has the right to terminate the franchise agreement within 10 days; and
g. the franchisor may also terminate the franchise agreement without notice if any director, officer, shareholder or broker of record of the franchisee is convicted of a criminal offence, is found to have infringed the Human Rights Code of Ontario, engaged in “conduct involving moral turpitude” or is “guilty of an act” which in the opinion of the franchisor is detrimental to the reputation of the RE/MAX group of franchisees.
[47] Mr. Jogia also relies on paragraph 7.12 of the franchise agreement, which states:
In the event that any director, officer or broker of record of the Franchisee shall have allegations made against him or her (even if not proved) that receive such adverse publicity that, in the reasonable opinion of [the franchisor], the RE/MAX brand has been or, is in danger of being, seriously damaged, then the person against whom such allegations have been made shall cease to have any involvement with the operations of the Franchisee until the final determination of such allegations….
[48] These provisions in the franchise agreement do not, in my view, constitute proof that RE/MAX Ontario exercised control over the daily operations of RE/MAX Realty Specialists, particularly when read in conjunction with paragraph 5.1 and other contractual provisions in the agreement. The franchise agreement stipulates that the franchisee and its brokers shall have “maximum flexibility” to decide commission rates and fees charged for services provided and how to package those services. Furthermore, the franchise agreement specifies that the franchisee will directly employ, appoint or authorize persons to act on its behalf. RE/MAX Ontario does not hire or employ workers to perform duties for RE/MAX Realty Specialists. There is no evidence of a shared workforce between RE/MAX Ontario and RE/MAX Realty Specialists. There is also no evidence that the Moving Defendants, or any one of them, were at any time directing or supervising the activities of the Realty Specialists Defendants, or any one of them, notwithstanding that some supervision was contemplated by the franchise agreement.
[49] In short, RE/MAX Ontario and RE/MAX Realty Specialists are independently owned and independently operated businesses. The franchisee brokerage runs its own independent business, for its own profit, and maintains substantial control over its day-to-day operations. The franchisor’s involvement in the franchisee’s operations is limited to the right to intervene in matters relating to the protection of the RE/MAX brand. In these circumstances, there are no policy reasons to hold the franchisor accountable for the alleged acts and omissions of the franchisee. The relationship between the Moving Defendants and the Realty Specialists Defendants is not of a nature that attracts vicarious liability.
[50] Even if I were to conclude that the corporate defendant RE/MAX Ontario could be held vicariously liable for the allegedly tortious acts or omissions of the Realty Specialists Defendants, I would find that the individual Moving Defendants, Mssrs. Polzler and Schneider, cannot be held to account personally. Corporate officers are not civilly liable for the actions of the corporation except in special circumstances, such as when the company is incorporated for an improper purpose, where those in control expressly direct a wrongful act, or when the officers’ conduct is independently actionable: Normart Management Ltd. v. West Hill Redevelopment Co. (1998), 1998 CanLII 2447 (ON CA), 37 O.R. (3d) 97 (C.A.), at para. 18.
[51] There is no evidence that RE/MAX Ontario was incorporated for an improper purpose. Mssrs. Schneider and Polzler were not involved in listing Mr. Jogia’s properties or the efforts to sell those properties. Mr. Jogia does not allege that either of them engaged in any independently actionable misconduct. There is no evidence that they directed the Realty Specialists Defendants’ actions or influenced the decision to deny Mr. Jogia’s request to be released from the listing agreements. Indeed, Mssrs. Schneider and Polzler were not even made aware of that dispute until some time after May 9, 2018, when Mr. Jogia emailed RE/MAX Ontario, requesting that his message be forwarded to them. In these circumstances, there is no basis upon which liability could be imposed upon Messrs. Polzler and Schneider personally.
CONCLUSION
[52] For all of the above reasons, I conclude that the action must be dismissed as against the Moving Defendants. The motion for summary judgment is granted.
[53] Mr. Jogia requested that I make an order pursuant to r. 20.05(2) of the Rules of Civil Procedure, providing directions to the parties and setting a timetable for the next steps to bring the action to trial. I cannot make such an order without the input of the Realty Specialists Defendants, who will be defending the action at trial.
[54] The parties to this motion are encouraged to negotiate costs. If they are unable to settle the issue of costs, they may make brief (2 pages maximum) written submissions by email, accompanied by Bills of Costs and any Offers to Settle. The Moving Defendants shall deliver their costs submissions (with a copy to Mr. Jogia) by no later than February 24, 2020. (This will allow the parties sufficient time to try to resolve the issue first.) Mr. Jogia shall deliver his responding costs submissions (with a copy to counsel for the Moving Defendants) by no later than March 9, 2020. There will be no reply submissions unless requested by me.
Petersen J.
Released: February 3, 2020