Court File and Parties

COURT FILE NO.: CV-16-67248-R000

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: KYLE MCGUIRE, Plaintiff

AND:

WILLIAM DEJONG AND COLDWELL BANKER INTEGRITY REAL ESTATE BROKERAGE, Defendants

BEFORE: Associate Justice A. Kaufman

COUNSEL: Edward C. Conway and Daniel Ebady, Counsel for the Plaintiff

Rick D. Simmons, Counsel for the Defendants

HEARD: April 7-8, 2021

REASONS FOR JUDGMENT

[1] This action was referred to me by way of a judgment of reference under Rule 54.04 of the Rules of Civil Procedure.[^1] Pursuant to that judgment, I am to determine all questions arising in this action.

[2] Rule 55.01 provides that in a reference, the referee must devise and adopt the simplest, least expensive, and most expeditious manner of conducting the reference. The trial of this reference proceeded like a simplified procedure trial under Rule 76. The parties adduced their evidence by way of affidavit and their affiants were cross-examined virtually in court. The parties also read-in the transcripts from their examinations for discovery. The evidence and the parties’ arguments were presented over the course of two days.

Overview

[3] In May 2012, after obtaining his bachelor’s degree in economics, Mr. McGuire responded to the defendant Coldwell Banker Integrity Real Estate Brokerage (“Coldwell Banker”)’s advertisement for a sales representative position. In his application letter, Mr. McGuire wrote that he had just graduated from university and that he was enrolled in the Ontario Real Estate Association (“OREA”)’s first course: Real Estate as a Professional Career.

[4] Mr. McGuire attended two interviews with Coldwell Banker’s principals, William Dejong and Steve Pawlett. He was offered the sales associate position at the second interview and signed Coldwell Banker’s letter of offer. The contract specified that he would be paid in accordance with a commission schedule.

[5] Mr. McGuire worked for the defendants between July 3, 2012, and September 4, 2014. He worked with other real estate brokers on a total of ten transactions. Mr. McGuire brought in clients whose business generated approximately $600,000 in commissions for the defendants. Mr. McGuire received commissions on five of smaller transactions, totalling only $10,363. Coldwell Banker refused to pay commissions on the other five transactions because Mr. McGuire was “unlicensed”. Mr. McGuire sues for the remaining commissions in accordance with his contract.

[6] Unfortunately for Mr. McGuire, section 9 of the Real Estate and Business Brokers Act, 2002[^2] (“REBBA”) bars him from pursuing this action. It provides that no action may be brought for remuneration for services in connection with a trade in real estate, unless the plaintiff was registered or exempt from registration at the time the services were rendered. This is a very harsh result but as I will explain in these reasons, the services Mr. McGuire performed for Coldwell Banker are caught by s. 9 of the REBBA, as he was neither registered nor exempt from registration when he provided them. Section 9 of the REBBA also bars his claim for unjust enrichment, quantum meruit and for wrongful dismissal. This action must regrettably be dismissed.

Mr. McGuire’s work for Coldwell Banker

[7] On May 25, 2012, Mr. McGuire applied for a position of “sales associate” with Coldwell Banker. While he did not retain a copy of the advertisement, I accept his evidence that the advertisement did not specify that registration as a salesperson was a requirement for the position. I accept his explanation that he would not have applied for the job if it had been a requirement and, in any event, Mr. McGuire was candid in his application letter than he was not registered. He stated he was merely enrolled in the first course of the salesperson registration education program.

[8] The term “sales associate” is not found in the REBBA. The only registrants are “salespersons,” “brokers,” and “brokerages”. The term “brokerage” refers to the organization or entity that trades in real estate on behalf of others for compensation or reward.[^3] “Salespersons” and “brokers” are real estate professionals subject to regulation under the REBBA, who must be registered with the Real Estate Council of Ontario (“RECO”). The difference between a broker and a salesperson, is that a broker must pass additional courses and exams. The broker designation is required to become a “broker of record” and manage a brokerage. At Coldwell Banker, Mr. Dejong was the broker of record.

[9] Mr. McGuire accepted Coldwell Banker’s offer on June 20, 2021. He was offered “employment as an independent contractor (sales representative)” commencing on July 3, 2012. Mr. McGuire would be compensated on a commissions basis and a commissions chart was attached as a schedule to the offer. Pursuant to that schedule, Mr. McGuire would split his commission with the brokerage equally (50/50) on the first $100,000 of gross annual revenues. If he generated between $100,000 and $250,000 of revenues, Mr. McGuire would then be entitled to 87% of the commission, and the defendant brokerage the remaining 13%.

Coldwell Banker’s defences

[10] In their defence, the defendants plead that Mr. McGuire was hired as an unpaid and unlicensed intern / trainee. The defendants also plead that Mr. McGuire misrepresented himself to members of the firm and lead them to believe he was registered when he was not. Finally, they plead that Mr. McGuire is not entitled to compensation because he did not have a valid licence.

a) Mr. McGuire was hired as commissioned sales representative, not as an intern.

[11] The defendants plead that the contract was “to determine his relationship with the company once he was actually licensed”. I do not accept this submission.

[12] Mr. McGuire accepted a “sales representative” position. The contract also contained a commission schedule which was described as “very favourable”. The letter of offer made no mention of licensing or registration. The offer also contained an “entire agreement” clause.

[13] Moreover, within weeks of being hired, Mr. Dejong ordered business cards for Mr. McGuire which displayed his title as “sales representative”. As will be seen below, Mr. McGuire worked on real estate transactions and was paid commissions on five transactions in accordance with the commission schedule.

[14] The suggestion that Mr. McGuire was hired to work as an unpaid intern contradicts the letter of offer’s terms and is inconsistent with the evidence which shows that he was, in fact, paid on commission.

b) Mr. McGuire did not misrepresent his registration status.

[15] The defendants also allege that Mr. McGuire misrepresented “his RECO license status to the Coldwell brokers who supervised his training”, and that he “withheld the fact that he had not completed his licensing exams”. The defendants’ only evidence on this issue was entirely hearsay. Mr. Dejong testified that Mr. Pawlett told him that “Kyle was ready to go” and that business cards could be ordered for him. Mr. Dejong also testified that Mr. McGuire worked with three registered sales agents who believed that Mr. McGuire was “licensed”, and that Mr. McGuire withheld from them that he was not. I do not accept this evidence.

[16] The defendants had many years to prepare for this trial and could have called Mr. Pawlett or the other brokers with first-hand knowledge to testify. Mr. McGuire, on the other hand, testified that he never said or implied that he was a registered real estate agent. In fact, he stated in his application letter that he was enrolled in the first course. According to Mr. McGuire, it takes approximately two years to complete all the required courses and become registered.

[17] I accept Mr. McGuire’s evidence that he did not misrepresent his status, for several reasons. Mr. Dejong knew that Mr. McGuire was not registered when he hired him. Mr. McGuire could not have completed all the OREA course requirements between June 20, 2012, when he was hired, and July 11, 2012, when Mr. Dejong ordered his business cards. Mr. Dejong must have known that one cannot possibly complete all the required steps in a mere 22 days.

[18] More fundamentally, it was Mr. Dejong’s responsibility as Coldwell Banker’s broker of record to ensure that salespersons working for him complied with the REBBA and its regulations.[^4] Pursuant to s. 4 of the REBBA, no person may trade in real estate unless registered.[^5] To become a registered salesperson, an application in the requisite form must be submitted to the RECO.[^6] The form, which was attached as an exhibit to Mr. McGuire’s affidavit, requires the employer’s signature. Because Mr. Dejong did not sign Mr. McGuire’s application for registration until April 1, 2014, he must have known that Mr. McGuire was not a registered salesperson before that date.

[19] Mr. Dejong, as a broker of record, was required to know the registration status of the brokerage’s sales agents, as a matter of statutory duty. Section 30 of the REBBA prohibits a brokerage from employing an unregistered person to perform a function for which registration is required. If he had any doubts, Mr. Dejong could have easily verified Mr. McGuire’s registration status.

[20] I find that the defendants knew that Mr. McGuire was not registered when they offered him a commissioned sales representative position. I also conclude that they portrayed his contract as one of unpaid internship and accused him of misrepresenting his status, in order to divert blame onto him for their own failure to comply with their statutory duties. These findings will be relevant to the issue of costs which will be addressed below.

c) Mr. McGuire’s action is barred by s. 9 of the REBBA

[21] The defendants plead that Mr. McGuire is not entitled to compensation because he was not licensed at the relevant time. Although the REBBA speaks of registration as opposed to licensing, the defendants are correct on this issue.

[22] Section 4 of the REBBA prohibits persons from trading in real estate unless they are registered under that Act.[^7] If unregistered persons provide services in connection with a trade in real estate despite this prohibition, they cannot bring any actions for remuneration in connection with these services. Section 9 of the REBBA reads as follows:

Registration a requirement to bring action

9. No action shall be brought for remuneration for services in connection with a trade in real estate unless at the time of rendering the services the person bringing the action was registered or exempt from registration under this Act and the court may stay any such action upon motion.

[23] As will be seen below, the services Mr. McGuire provided were “connected to trades in real estate”, he claims remuneration for these services, and he was not exempted from registration.

Mr. McGuire rendered services in connection with trades in real estate

[24] Mr. McGuire worked with other Coldwell Banker brokers on ten transactions involving four clients. When several persons worked on a transaction, their practice was to split the commission in proportion to each person’s contribution.

[25] Mr. McGuire worked with Steve Pawlett to obtain a commercial lease for a company called Ideal Tool and Die in the summer of 2012. He also worked with John Whitaker, another broker, to find a commercial lease for Forming Technologies in early 2014. Even though he worked with Mr. Pawlett on the first transaction, Mr. McGuire kept the entire commission. He shared it 50/50 with the brokerage in accordance with the contract’s commission schedule. He split the commission on Forming Technologies 75/25 with John Whitaker, who received the 75%. Mr. McGuire was paid half of the 25%, in accordance with the contract.

[26] All the commissions claimed in this action relate to two clients: Cogent Power (“Cogent”) and Cancable Inc. (“Cancable”).

The Cogent transactions

[27] Mr. McGuire contacted Cogent’s president on December 7, 2012 and discussed Cogent’s real estate requirements with another Cogent employee at a bar in March 2013. Cogent was expanding and required more space. Mr. McGuire testified that he conceived of a “design-build” strategy, which involved a series of transactions: the purchase of vacant land, the construction of a new building, and the leasing of new premises while the building was being constructed.

[28] Mr. McGuire does not take credit for all the work completed for Cogent, but by his own description, the services he provided related to the acquisition of real estate. He describes his involvement as an integral team member in his affidavit:

I was involved in all important Coldwell steps with regard to the determination of build or rent. This determination process was complex and obviously involved Giffels the builder, heavily promoting the plan, but Coldwell was equally involved in the assessment of why it was best to provide space in the specific way that was decided upon: that Giffels would buy the vacant land, build a purpose build building to Cogent’s specifications, Cogent would commit to a 15 year lease after which Cogent’s commitment was at an end. I was not the main player in every aspect of the analysis but I participated as a team member […].

[29] Coldwell Banker received commissions in tranches from the various Cogent transactions. In November 2013, Coldwell Banker received commissions of $13,546.44 from the leasing of the temporary offices while Cogent’s building was being constructed. That commission was split evenly between Mr. McGuire, and brokers Mike Forward and Mike Mikitchook. On the trade record sheet, Messrs. Forward and Mikitchook are listed as selling salespersons / brokers while Mr. McGuire’s compensation is described as a “referral fee”.

[30] Coldwell Banker received substantial commission tranches from the other Cogent transactions. It received $82,165.12 on September 4, 2014, $183,993.86 on November 20, 2014, and another $183,996.86 on October 2, 2015. Mr. McGuire did not receive any share of these commissions. Instead, they were split between Mike Forward, Mike Mikitchook and Mr. Dejong.

[31] Mr. Dejong did not work on these transactions, but apparently received Mr. McGuire’s share of the Cogent commissions.

Cancable transactions

[32] In January 2013, Mr. McGuire “cold called” Cancable’s president and set up a meeting with her to discuss her real estate requirements. He attended the meeting with Mark Forward. After the meeting, Cancable forwarded eight of its leases for review. Mr. McGuire testified that he carried out a comprehensive lease review and sent Mr. Forward the lease abstracts on February 14, 2013.

[33] Mr. McGuire worked with Mr. Forward on several Cancable transactions. They proposed amendments to two of Cancable’s leases with better terms. Through Coldwell Banker, Cancable also subleased space from American Express, leased additional space in Hamilton, and renewed a lease in Ottawa.

[34] Mr. McGuire received commissions arising from two out of the four Cancable transactions, which were split with Mark Forward and another broker, Ed Glavin. Mr. McGuire’s share of these commissions was $2,198.98.

[35] Coldwell Banker received commissions of $16,174.97 on February 3, 2014, and $81,726.12 on April 9, 2014, for work on the Hamilton sublease and lease. Mr. McGuire did not share in these commissions. They were split between Messrs. Forward and Glavin.

Mr. McGuire played a significant role in these transactions

[36] Mr. Dejong minimized Mr. McGuire’s involvement in the various transactions which are the subject of this action but conceded in cross-examinations that he was not personally involved in them. The defendants did not call any witnesses with direct knowledge of Mr. McGuire’s role in these transactions. I prefer Mr. McGuire’s evidence on this issue because his account was detailed, he made appropriate concessions, and his evidence is consistent with the contemporaneous documents.

[37] I accept Mr. McGuire’s evidence that he was responsible for bringing in Cogent and Cancable as clients. This is supported by the trade record sheet in which his commission was described as a “referral fee” on the first Cogent transaction.

[38] As for Cancable, Mr. McGuire initially worked with Mr. Forward, but Ed Glavin, another broker, later became involved. Mr. McGuire objected to Mr. Forward’s decision to split the Cancable commissions 75% (between Messrs. Forward and Glavin) and 25% for himself. Mr. Dejong arbitrated this commission split dispute and ruled that Mr. McGuire would receive 35% of the Cancable deal. Mr. Dejong concluded that: “[w]hile normally a straight referral fee would net an agent 20% of a deal for just turning it over, Kyle [McGuire] should receive more than that as it was not a straight hand off and he was also part of the team, if only in a junior capacity”. Mr. Dejong accordingly admitted that Mr. McGuire found the Cancable client and worked on the transactions as a junior member of the team.

[39] Mr. McGuire’s evidence that he worked with the other brokers on the Cogent and Cancable transactions is also supported by the documentary evidence filed in this proceeding. Mr. McGuire set up meetings, attended meetings, prepared presentations and lease abstracts, and was copied on emails that pertained to these transactions.

Statutory prohibition from remuneration

[40] Under the REBBA, the word “trade” includes “a disposition or acquisition of or transaction in real estate by sale, purchase, agreement for purchase and sale, exchange, option, lease, rental or otherwise and any offer or attempt to list real estate for the purpose of such a disposition, acquisition or transaction, and any act, advertisement, conduct or negotiation, directly or indirectly, in furtherance of any disposition, acquisition, transaction, offer or attempt, and the verb “trade” has a corresponding meaning.”[^8] The words “real estate” include leasehold interests.[^9] Moreover, the words “in connection with” have a very broad meaning. The services Mr. McGuire rendered need only be connected to a trade in real estate. The actual trade in real estate need not arise from, or out of, the services he rendered.[^10]

[41] Remuneration is defined under the regulations as “any form of remuneration, including any commission, fee, gain or reward, whether the remuneration is received, or is to be received, directly or indirectly”.[^11] Whenever remuneration depends on the eventual sale of property and is calculated as a percentage of the sale price, compliance with the REBBA is required.[^12] The same conclusion applies to remuneration tied to the acquisition or disposition of real property by lease.

[42] By his own account Mr. McGuire’s services were connected to, and in furtherance of, leasing transactions and, in the case of Cogent, the acquisition of a building designed to its specifications.

[43] Mr. McGuire argues that “sales representatives” need not be registered, and he filed three recent job postings for “real estate administrators” or “business development sales agent” which did not list registration as a job requirement. It is not for me to determine if these postings contravene the REBBA or not. In this case, I conclude that Mr. McGuire rendered services connected to trades in real estate which are barred by s. 9 of the REBBA.

Mr. McGuire was not exempted from registration

[44] Section 5 of the REBBA authorizes certain classes of persons to trade in real estate without being registered. The following persons are exempted from registration:

(a) an assignee, custodian, liquidator, receiver, trustee or other person acting under the Bankruptcy and Insolvency Act (Canada), the Corporations Act, the Business Corporations Act, the Courts of Justice Act, the Winding-up and Restructuring Act (Canada), or a person acting under the order of any court, or an executor or trustee selling under the terms of a will, marriage settlement or deed of trust;

(b) an auctioneer if the trade is made in the course of and as part of the auctioneer’s duties as auctioneer;

(c) a person who is registered under the Securities Act if the trade is made in the course of and as part of the person’s business in connection with a trade in securities;

(d) a financial institution described in subsection (1.1), if the trade is in real estate owned or administered by the financial institution;

(e) a person in respect of any mine or mining property within the meaning of the Mining Act or in respect of the real estate included in a Crown grant or lease, a mining claim or mineral lands under the Mining Act or any predecessor of that Act;

(f) a full-time salaried employee of a party to a trade if the employee is acting for or on behalf of his or her employer in respect of land situate in Ontario;

(g) a solicitor of the Superior Court of Justice who is providing legal services if the trade in real estate is itself a legal service or is incidental to and directly arising out of the legal services;

(h) a person, on the person’s own account, in respect of the person’s interest in real estate unless,

(i) the trade results from an offer of the person to act or a request that the person act in connection with the trade or any other trade, for or on behalf of the other party or one of the other parties to the trade, or

(ii) the interest of the person in the real estate was acquired after the offer or request referred to in subclause (i) whether or not the trade is the result of the offer or request;

(i) a person in respect of the provision for another, for remuneration other than by commission, of all consultations, undertakings and services necessary to arrange for the routing of a right of way including the acquisition of land or interests in land for the purpose, and the person’s employees engaged in the project;

(j) a person who trades in real estate solely for the purpose of arranging leases to which the Residential Tenancies Act, 2006 applies; or

(k) such persons or classes of persons that are prescribed as exempt from registration in respect of any class of trades in real estate. 2002, c. 30, Sched. C, s. 5 (1); 2006, c. 17, s. 255; 2007, c. 7, Sched. 7, s. 190 (1).

[45] Mr. McGuire did not argue that he fell within any one of these exemptions. Nevertheless, I considered whether he could bring himself within any of the listed exemptions but conclude that they do not apply to him.

Claims for quantum meruit, unjust enrichment and wrongful dismissal are also barred

[46] Section 9 of the REBBA also bars actions based on quasi-contract or equity such as unjust enrichment and quantum meruit. In Windrock Associates Ltd. v. Miniccuci[^13] Justice Spies dismissed claims based on the doctrines of unjust enrichment and quantum meruit because “section 9 of REBBA does not only apply to claims in contract; it applies to any action where there is a claim for commission or other remuneration for services rendered in connection with a trade in real estate”.[^14] The Court of Appeal for British Columbia recently reached the same conclusion in respect of British Columbia’s equivalent to section 9 of the REBBA, holding that it was not open to the trial judge to award damages pursuant to a claim in quantum meruit given the legislature’s absolute statutory ban.[^15]

[47] Mr. McGuire also claims that he was wrongfully dismissed from his employment on September 4, 2014, when he received Mr. Dejong’s termination letter. In that letter, Mr. Dejong congratulated Mr. McGuire on his new job as a mortgage broker consultant with the National Bank of Canada and terminated his employment effective immediately. The grounds for termination were that Mr. McGuire had not renewed his insurance and that he would not be working full time in the industry.

[48] In my view, section 9 also bars Mr. McGuire’s wrongful dismissal claim. Damages awarded in wrongful dismissal actions are meant to compensate the employee for the loss of benefits that would have been earned during the reasonable notice period.[^16] In light of the statutory prohibition against receiving remuneration for services rendered in connection with the trade in real estate, it follows that Mr. McGuire is not be legally entitled to remuneration during the reasonable notice period.

[49] Even if section 9 of the REBBA did not bar Mr. McGuire’s wrongful dismissal action, I had serious reservations about that claim. The defendants argued that Mr. McGuire was an independent contractor and not an employee. The defendants offer was ambiguous on this issue as they offered Mr. McGuire “employment” as an “independent contractor”. That said, Mr. McGuire was not treated as an employee and Coldwell Banker did not withhold and remit payroll deductions.

[50] Mr. McGuire argued that he could maintain a wrongful dismissal action as a “dependent contractor”, but he did not lead evidence that the defendants exercised the degree of control over Mr. McGuire’s work required to establish a relationship of dependency. Moreover, in determining whether a person is a dependent contractor, exclusivity of service and income are key factors.[^17] Mr. McGuire acknowledged that he worked for a golf course and for Coldwell Banker at the same time, and the relationship was accordingly not exclusive. Finally, Mr. McGuire acknowledged in discoveries that, six days before receiving Mr. Dejong’s termination letter, he sought a meeting to discuss his resignation.

Conclusion on section 9 of the REBBA

[51] The purpose of section 9 of the REBBA is to protect the public by regulating those who engage in the business of real estate.[^18] Real estate brokers have been said to possess superior knowledge, and stand in a position of trust and confidence in relation to the inexperienced public.[^19] To achieve its objective of protecting the public, the Ontario legislature has removed every incentive to engage in the trade in real estate without registration by making contracts that provide remuneration for such services unenforceable.

[52] Mr. McGuire will surely feel, and I agree, that this action’s outcome is unfair. He worked for the defendants for over two years and he brought large clients to the defendants’ business. He spent five years pursuing this litigation, no doubt at great expense. In Neiman v. Duffmits Holdings Inc.,[^20] Justice Strathy (as he then was) recognized that applying section 9 of the REBBA may appear to result in unfairness in particular cases because the plaintiff may have invested substantial time and effort on the defendant’s behalf yet the defendant receives a windfall.[^21] That unfairness is particularly striking in this case. The cases applying section 9 of the REBBA usually concern one disputed transaction. Here, the plaintiff devoted two years of his working life to the defendants and his work generated sizeable commissions. Moreover, the risk of harm to the public was low because Mr. McGuire worked with other registered brokers on all the transactions that are at issue in this action.

[53] If it were up to me, I would have allowed the plaintiff’s action. However, as Justice Rosenberg (as he then was) held in a similar case, an action cannot be decided based on sympathy for the plaintiff and the Court must apply the law as the legislature intended.[^22] In light of the statute’s clear language, I have no other choice but to dismiss this claim.

COSTS

[54] Costs of and incidental to a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.[^23] While costs are normally payable by the losing party, successful parties do not have an entitlement to costs. They merely have a reasonable expectation that they would be awarded costs absent special circumstances.[^24] The court may deprive a successful party of costs, and even order the successful party to pay costs in appropriate circumstances.[^25] In this case, I conclude that such an order is warranted because the defendants treated Mr. McGuire reprehensibly in his employment and in this litigation.

[55] Firstly, the defendants offered Mr. McGuire a commissioned sales position when they knew he was not registered. Section 30 of the REBBA prohibits brokerages from employing an unregistered person to perform a function for which registration is required and paying any remuneration to an unregistered person for such functions. The defendants must have known that offering him this job breached their statutory obligations. They advertised for this position with the aim of profiting from the business Mr. McGuire would generate. It is only when his commissions became substantial that they decided to respect their statutory obligations.

[56] It was also reasonable for Mr. McGuire to rely on the defendants’ job offer. He was a 27-year-old recent graduate and new to the field of real estate while the defendants were experienced real estate brokers several decades older than him. It was reasonable of him to assume that the contract presented to him by an established brokerage firm was legal and enforceable. The inevitable outcome of the defendants’ conduct was that the plaintiff would devote time and effort furthering the defendants’ business objectives pursuant to an unenforceable contract.

[57] Secondly, the defendants wrongly alleged that Mr. McGuire was hired as an unpaid intern and accused him of misrepresenting his registration status. As I have found above, these assertions were made to justify the defendants’ failure to comply with the REBBA and its regulations. Mr. Dejong knew that Mr. McGuire was not registered when he interviewed him, and his registration status was a matter of public record. These allegations were meritless and impugned Mr. McGuire’s integrity.

[58] Thirdly, the defendants needlessly prolonged this litigation. This action was commenced in January 2016, over five years ago. The defendants’ original affidavit of documents listed only five documents. Mr. McGuire was forced to bring no fewer than four motions for disclosure which resulted in the following Court orders: Order of Master Champagne (as she then was) dated October 5, 2017, Order of Ryan-Bell J., dated December 8, 2017, Order of Kershman J., dated March 6, 2018, and Order of Corthorn J., dated January 4, 2019. The Order of Justice Kershman required the defendants to provide a detailed written explanation for their failure to provide relevant documents. Instead of making the plaintiff chase for relevant documents at great expense, the defendants should have brought a motion to stay this action pursuant to s. 9 of the REBBA immediately after it was commenced.

[59] As mentioned above, the REBBA protects the public removing any incentive an unregistered person may have to provide services in connection with trades in real estate. In the same vein, there cannot be any incentive for a brokerage to offer employment to unregistered persons – contrary to their statutory obligations – and reap the profits generated through their efforts without consequence. Mr. McGuire’s work generated over $600,000 in commissions for the defendants. This is a significant windfall. A portion of these commissions should be used to cover Mr. McGuire’s legal costs.

DISPOSITION

[60] Mr. McGuire’s action is hereby dismissed.

[61] Mr. McGuire is awarded his full indemnity costs, payable forthwith. If the parties cannot agree on quantum, they may seek directions on costs submissions from my office within the next 30 days.

Associate Justice A. Kaufman

Date: September 10, 2021

[^1]: R.R.O. 1990, Reg. 194, the ("Rules"). [^2]: S.O. 2002 c. 30. [^3]: REBBA, s. 1. [^4]: REBBA, s. 12(2) and O. Reg 567/05, s. 30. [^5]: REBBA, s. 4. [^6]: O. Reg. 567/05, s. 3. [^7]: REBBA, s. 4. [^8]: REBBA, s. 1. [^9]: Ibid. [^10]: Mantini v. Smith Lyons LLP, 2003 46933 (ON CA), at para 19. [^11]: O. Reg 567/05, s. 1. [^12]: Cook v. Harvey Kalles Real Estate Inc., 2019 ONSC 2108 (Ont. Sup. Ct.) at para 49; M.J.K. Consultants Inc v. Citibank Canada, [1993] O.J. No. 2175 (Gen. Div.) at paras 14-15. [^13]: 2016 ONSC 4504 (Ont. Sup. Ct.). [^14]: Ibid at para 130. [^15]: Lindsay v. Ambrosi, 2019 BCCA 442, at para 38. [^16]: O’Reilly v. Imax Corporation, 2019 ONCA 991, at para 23. [^17]: Thurston v. Ontario (Children’s Lawyer), 2019 ONCA 640, at para 25. [^18]: Neiman v. Duffmits Holdings Inc., 2010 ONSC 4643, at para 26. [^19]: Simpson v. Toronto Factory Properties Ltd. (1974), 4. O.R. (2d) 357, (Ont. High Ct.). [^20]: 2010 ONSC 4643(Ont. Sup. Ct.). [^21]: Ibid at para [^22]: M.J.K. Consultants Inc. v. Citibank Canada, [1993] O.J. No. 2175, at para 12. [^23]: Courts of Justice Act, R.S.O. 1990 c. C.43, s. 131. [^24]: Przuk v. Hamilton Retirement Group Ltd., 2021 ONCA 267, at para 12. [^25]: Ibid.