Court File and Parties
Ontario Superior Court of Justice
Re: Georgia Athanasiou aka Gina Athanasiou, Plaintiff
And: Bethany King, Century 21 Millennium Inc. Brokerage, Joanne Evans, Trevor Evans, Nasma Ali, Real Broker Ontario Ltd., and Melissa Dearden-Puklicz, Defendants
Before: M.T. Doi J.
Counsel:
- Douglas Treilhard, for the Moving Defendants Century 21 Millennium Inc. Brokerage, Joanne Evans and Trevor Evans
- Elizabeth Kurz, for the Moving Defendants Real Broker Ontario Ltd. and Melissa Dearden-Puklicz
- Phillip Mota, for the Plaintiff
Heard: June 30, 2025
Endorsement
Overview
1The moving defendants, Century 21 Millennium Inc. Brokerage ("Century 21"), Joanne Evans, Trevor Evans, Real Broker Ontario Ltd. ("RBO"), and Melissa Dearden-Puklicz, have brought motions under rr. 21.01(1)(b) and 25.11 of the Rules of Civil Procedure, RRO 1990, Reg 194, to strike the claims against them in the fresh amended statement of claim for disclosing no cause of action.
2The plaintiff, Georgia "Gina" Athanasiou, is a real estate agent who claims that she was defamed by the defendants Bethany King and Nasma Ali in content they posted to social media. Ms. King was a real estate agent at Century 21, the real estate brokerage where Ms. Evans was broker of record and Mr. Evans was a broker and branch manager. Similarly, Ms. Ali was a real estate agent at RBO, another realty brokerage, where Ms. Dearden-Puklicz was broker of record.
3In the statement of claim, Ms. Athanasiou alleges that Ms. King and Ms. Ali posted content to social media that defamed her.
4Claiming that Ms. King and Ms. Ali made their defamatory posts while acting in the course of their employment at Century 21 and RBO, respectively, Ms. Athanasiou sued Ms. Evans and Mr. Evans for negligence and Century 21 for vicarious liability in relation to Ms. King's posts. In addition, Ms. Athanasiou sued Ms. Dearden-Puklicz for negligence and RBO for vicarious liability in relation to the posts that Ms. Ali made.
5On a generous reading of the statement of claim with allowances for drafting deficiencies, I am satisfied that Ms. Athanasiou's claims in negligence and vicarious liability against the moving defendants are viable. In addition, I find that her claims for aggravated and punitive damages would also be viable if amended but for the vicarious punitive damages claim against Century 21 and RBO that plainly have no reasonable prospect of success as punitive damages cannot flow vicariously to an employer from an employee's conduct, as the plaintiff now concedes.
6Accordingly, as explained below, the claims for punitive damages against Century 21 and RBO are struck, leave is granted for Ms. Athanasiou to further amend the claim for aggravated and punitive damages in respect of the other moving defendants, and the balance of the motions to strike are dismissed.
Background
7Ms. Athanasiou is an experienced real estate agent who works for a real estate brokerage in Toronto. At all material times, she was a content creator who used social media to promote her expertise in real estate, to market services to followers, to build engagement with potential clients, and to network with other realtors for referrals. As of January 22, 2023, Ms. Athanasiou had about 2,923 followers on Twitter, 731 followers on Instagram, and 5,208 followers on TikTok.
8Ms. King is a real estate broker and agent in Brampton. At all material times, she was employed by Century 21 and used social media to market her services and build a following to attract clients and facilitate sales for the brokerage. Century 21 employed Ms. Evans as broker of record and Mr. Evans as a broker and manager at the branch where Ms. King worked. Ms. King had over 140,000 followers across TikTok and Instagram.
9Ms. Ali is a real estate broker and agent in Burlington. At all material times, Ms. Ali used social media to attract clients and facilitate sales for RBO. Ms. Dearden-Puklicz was broker of record and branch manager at the RBO branch where Ms. Ali was employed. Ms. Ali had over 17,900 followers on Twitter, 17,000 followers on Instagram, and was the administrator of an Instagram group with over 1,000 subscribers from the real estate industry.
The Claims Against Ms. King and Ms. Ali
10As noted earlier, Ms. Athanasiou has pleaded that Ms. King and Ms. Ali posted content to social media that defamed her. Certain particulars of her claims are set out below.
11Ms. Athanasiou claims that Ms. King and Ms. Ali did not like her social media posts on market trends, industry statistics, and other topics that she addressed for consumers and real estate professionals based on her 30 years of experience in the real estate industry. The claim pleads that Ms. King posted TikTok videos to disparage Ms. Athanasiou and her social media content. It also pleads that Ms. Ali and Ms. Athanasiou argued in Twitter exchanges and once competed for a Twitter-space client who ultimately retained Ms. Athanasiou as her real estate agent.
12Ms. Athanasiou claims that Ms. King and Ms. Ali were well acquainted with one another and conspired to defame and injure her reputation on social media. On October 29, 2022, Ms. Ali posted on Twitter that a person, later identified on Instagram as Ms. Athanasiou, had harassed and bullied her. On October 31, 2022, Ms. King made a TikTok video claiming that she was bullied by a realtor who resembled Ms. Athanasiou. On November 1, 2022, Ms. Ali made a Reddit post containing allegations similar to those in her October 29, 2022 post on Twitter.
13On November 7, 2022, Ms. King emailed Ms. Athanasiou, Ms. Evans, and Mr. Evans with untrue and baseless allegations that: (1) Ms. Athanasiou was criminally harassing her; (2) police and RECO had enough evidence to bring a criminal and regulatory case against Ms. Athanasiou; and (3) a TikTok video and related comment thread that Ms. King made on October 31, 2022 had referred to Ms. Athanasiou. Disclosure later obtained through freedom of information requests revealed that police never had evidence of criminal activity committed by Ms. Athanasiou. She claims that Ms. King's email of November 7, 2022 defamed her by making outright lies to maliciously injure her reputation, cause her problems, intimidate her, and thwart her from raising valid claims against Ms. King herself.
14On November 22, 2022, Ms. Ali made Twitter posts with content similar to her post on October 29, 2022 in which she claimed to be criminally harassed or abused by envious agents with little business. She also posted an Instagram story with an altered TikTok video that she played in a misleading way to falsely suggest that Ms. Athanasiou was bullying her.
15On January 4, 2023, Ms. King posted a "live" TikTok in which she claimed to have been bullied by someone that she reported to police, social media providers, and RECO.
16On March 28, 2023, a close work colleague of Ms. Ali at RBO posted a short-form video on Instagram with a dated image and a TikTok satire used out of context to portray Ms. Athanasiou as having bullied the colleague. The video "reel" negatively portrayed Ms. Athanasiou who claims that Ms. Ali incited the colleague to disparage her in the clip.
17On September 5, 2023, Ms. King posted a TikTok video in which she stated that she was "bullied nonstop online" by other realtors that stressed her and her unborn baby despite police and RECO finding this to be false. On September 6, 2023, Ms. Ali lost access to her @agentclique Twitter account that she was instructed to preserve. Ms. Ali then launched a new Agent Clique group. Ms. King was among the first to subscribe to the new group.
18On March 5, 2024, Ms. King appeared on a podcast with Kate Broddick, a real estate agent with over 60,000 followers, and publicly made the same allegations against Ms. Athanasiou that she previously raised in a dismissed RECO complaint, police report, and other correspondence. Promotional short-form clips of the podcast repurposed for Instagram and other social media platforms garnered tens of thousands of views that month and were recirculated to hundreds of thousands of viewers who were directed back to the original long-form podcast that was posted on March 5, 2024.
19On April 1, 2024, Ms. Athanasiou asked Ms. Broddick to remove the defamatory material from the March 5, 2024 podcast.
20In early April 2024, Mr. Evans made a RECO complaint accusing Ms. Athanasiou of directing harassment, intimidation, and threatening behaviour towards Ms. Broddick and Ms. King. Around this time, Ms. King made a complaint to accuse Ms. Athanasiou of intimidating, abusing, harassing, and unduly pressuring Ms. Broddick by asking her to remove the defamatory podcast from social media.[1]
The Claims Against the Moving Defendants
21The particulars of Ms. Athanasiou's claims against the moving defendants are set out in the fresh amended statement of claim filed January 31, 2025 as follows:
Ms. Dearden-Puklicz and Ms. Evans ("Brokers of Record"), and Mr. Evans ("Manager")
The brokers of record and managers in this matter are liable for negligence, as Ms. King and Ms. Ali were acting within the scope of their employment and performing work-related duties at the time of the incidents. The brokers of record and managers had a duty to maintain professional standards among their agents and to address complaints in a diligent and effective manner, a duty which they failed to uphold. Furthermore, the actions or omissions of the brokers of record and managers materially increased the risk of harm to the plaintiff.
The brokers of record were notified of the defamation on or about November, 2022, but did nothing to address the issues regarding Ms. King and Ms. Ali. They didn't make any effort to investigate the matter, or resolve the issue. The brokers of record did not respond to the plaintiff's attempts to have a discussion, and they didn't advise Ms. King and Ms. Ali to refrain from making further public comments until they could investigate.
Century 21 and Real Brokers Ltd. ("Brokerages")
- It is claimed that the brokerages, duly incorporated in Ontario to engage in real estate transactions, employ Ms. King, Ms. Ali, the brokers of record, and the managers. As such, the brokerages are vicariously liable for the negligence of their brokers of record and managers, as well as for the malicious and defamatory statements made by Ms. King and Ms. Ali, respectively.
Legal Principles on Motion to Strike
22A party may bring a motion before a judge to strike a pleading for disclosing no reasonable cause of action: r. 21.01(1)(b). When used cautiously, r. 21.01(1)(b) is a valuable tool for weeding out unmeritorious claims: R. v. Imperial Tobacco Ltd., 2011 SCC 42 at para 20.
23It is well-established that the bar for striking a pleading is very high: PMC York Properties Inc. v. Siudak, 2022 ONCA 635 at paras 30-32, leave to appeal refused.
24In deciding the motions to strike under r. 21.01(1)(b), I am guided by the principles that Gomery J.A. recently summarized in Rivard v. Ontario, 2025 ONCA 100 at para 22:
A claim should only be struck under r. 21.01(1)(b) if it is plain and obvious that there is no reasonable prospect it can succeed: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at p. 980; Guergis v. Novak, 2013 ONCA 449, 116 O.R. (3d) 280, at para. 34; Frank v. Legate, 2015 ONCA 631, 390 D.L.R. (4th) 39, at para. 36. A court must assume that all facts pleaded in the statement of claim are true, unless they are patently ridiculous or incapable of proof: Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441, at pp. 486-87; Hunt, at pp. 977-979; McCreight, at para. 29; Connor v. Scotia Capital Inc., 2018 ONCA 73, at para. 3. The court must read the statement of claim as generously as possible, with a view to accommodating any inadequacies in the pleading: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at paras. 21-22. A claim should not be struck just because it is novel, or because the underlying law is unsettled, or because the plaintiff's odds of success seem slim: Hunt, at pp. 979-80.
See also: Ottawa Community Housing Corporation v. Sloan Valve Company, 2025 ONCA 586 at para 13; McKee v. Shahid, 2025 ONCA 666 at paras 35-37.
25The power to strike a claim must be used with care as the law is constantly developing. On a motion to strike, it is not determinative that the law has not yet recognized a particular claim. The court should consider whether the pleadings as they stand, or as they may reasonably be amended, disclose a question that is not doomed to fail: Atlantic Lottery Corp. Inc., v. Babstock, 2020 SCC 19 at para 90. Pleadings are read generously with accommodations for drafting deficiencies to allow cases to be decided on their merits: PMC at para 31. Claims with a reasonable prospect for success should be allowed to proceed to trial: Imperial Tobacco at para 21. Courts should take a generous approach and err on the side of allowing novel but arguable claims to proceed: Ibid.
26The same "plain and obvious" test to strike a pleading under r. 21.01(1)(b) for failing to show a reasonable cause of action is also used to decide whether a pleading should be struck for being frivolous, vexatious, or an abuse of the court's process under r. 25.11: Resolute Forest Products Inc. v. 2471256 Canada Inc. (Cob Greenpeace Canada), 2016 ONSC 5398 (Div Ct) at para 17; Del Giudice v. Thompson, 2021 ONSC 5379 at para 56, affirmed 2024 ONCA 70, leave to appeal refused; 2766264 Ontario Inc. v. Garik Gevorkian, 2025 ONSC 5727 at para 6. A claim may be frivolous, vexatious, or an abuse of process by asserting untenable pleas or lacking sufficient material facts to support its assertions: Del Giudice (SCJ) at para 57; Howell v. Cullen, 2025 ONSC 1449 at para 8. The abuse of process doctrine engages the inherent power of the court to prevent the misuse of its procedure in a way that would be manifestly unfair to a party to litigation: SIF Solar Energy Income & Growth Fund v. Aird & Berlis LLP, 2024 ONCA 946 at para 31, citing Toronto (City) v CUPE Local 79, 2003 SCC 63 at para 37.
27There is a strong presumption in favour of granting leave to amend pleadings, with leave to amend being denied only in the clearest of cases: Burns v. RBC Life Insurance Company, 2020 ONCA 347 at para 22. In exercising its discretion to grant or deny leave, the court may consider whether the party seeking leave has provided specifics to address the deficiencies in the existing pleadings, including a draft amended pleading: Ottawa Community at para 14; Ontario v. Madan, 2023 ONCA 18 at para 68; Heydary Hamilton Professional Corporation v. Hanuka, 2010 ONCA 881 at para 16, leave to appeal refused [2011] SCCA No 100. The court may deny leave if it is plain and obvious that there is no tenable cause of action, the proposed pleading is scandalous, frivolous or vexatious, or there is non-compensable prejudice to the defendants: Ottawa Community at para 14; Fernandez Leon v. Bayer Inc., 2023 ONCA 629 at para 5; McHale v. Lewis, 2018 ONCA 1048 at para 6. If necessary, a plaintiff may amend a pleading after discoveries to give further particulars as needed: PMC at para 63; Catalyst Capital Group Inc. v. Veritas Investment Research Corporation, 2017 ONCA 85 at para 26.
Analysis
28As explained in the following reasons, I am satisfied that Ms. Athanasiou has sufficiently pleaded a cause of action against the moving defendants.
a. The Negligence Claim against Ms. Dearden-Puklicz, Ms. Evans and Mr. Evans is Viable
29I am satisfied that Ms. Athanasiou has adequately pleaded a cause of action in negligence against the individual moving defendants. Applying the Anns/Cooper test to the facts as pleaded in the statement of claim, I am not persuaded that it is plain and obvious that a duty of care to the plaintiff by these defendants cannot be recognized at law.
30To succeed with a negligence claim, a plaintiff must establish four (4) essential elements: (1) the defendant owed a duty of care to the plaintiff; (2) the defendant's conduct breached that duty by failing to observe the applicable standard of care; (3) the plaintiff sustained damage; and (4) the damage incurred by the plaintiff was caused, in fact and in law, by the defendant's breach: 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35 at para 18.
31In determining whether a defendant owes a duty of care to a plaintiff, the court must first decide whether the relationship between the parties falls within an established duty of care category or reflects one that is analogous to an established category: Childs v. Desormeaux, 2006 SCC 18 at para 15; Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at para 5.
32If the relationship does not fall within an established category, the court is to perform a full duty of care analysis under the two-stage Anns/Cooper test to decide whether a novel duty of care should be recognized: Anns v. Merton London Borough Council, [1978] AC 728 (HL); Cooper v. Hobart, 2001 SCC 79. Under the first stage, the court asks whether a prima facie duty of care exists between the parties by deciding whether the harm was a reasonably foreseeable consequence of the defendant's conduct and whether there is "a relationship of proximity in which the failure to take reasonable care might foreseeably cause loss or harm to the plaintiff": Rankin (Rankin's Garage & Sales) v. J.J., 2018 SCC 19 at para 18. Proximity arises in relationships where the parties are in a "close and direct" relationship to make it "just and fair having regard to that relationship to impose a duty of care in law upon the defendant": Cooper at paras 32 and 34; Nelson (City) v Marchi, 2021 SCC 41 at para 17.
33Should sufficient proximity exist to ground a prima facie duty of care, the court is to then consider the second stage of the Anns/Cooper test to ask whether there are residual policy concerns outside the relationship of the parties that may negate the imposition of a duty of care: Cooper at para 30; Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 at para 20; Imperial Tobacco at para 39; Nelson (City) at para 18.
34The second stage of the Anns/Cooper analysis considers any residual policy reasons for negating a prima facie duty of care. At this stage, the analysis is not concerned with policy reasons arising from the relationship between the parties but with the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally: Cooper at para 37; McKee at para 70. These broader policy considerations can include such things as concerns over indeterminate liability or a chilling effect: Cooper at para 37; Holland v. Saskatchewan, 2008 SCC 42 at para 10; McKee at para 70.
35It follows that the plaintiff must show that the pleaded negligence claim, (1) falls within an established or analogous duty of care category, or (2) is grounded by the plaintiff's relationship with the defendant that gave rise to a duty of care based on proximity, reasonable foreseeability of harm, and an absence of countervailing public policy factors under the Anns/Cooper test: Nelson (City) at para 16; Price v. Smith & Wesson Corporation, 2025 ONCA 452 at para 22.
36On this motion to strike, the focus is on whether, as a matter of law, the moving defendants arguably owed the plaintiff a duty of care in the circumstances of the case.
37In the statement of claim, Ms. Athanasiou pleads the alleged duty of care and negligence of Ms. Dearden-Puklicz, Ms. Evans, and Mr. Evans in the following manner that is reproduced for convenience:
Ms. Dearden-Puklicz and Ms. Evans ("Brokers of Record"), and Mr. Evans ("Manager")
The brokers of record and managers in this matter are liable for negligence, as [the defendants] Ms. King and Ms. Ali were acting within the scope of their employment and performing work-related duties at the time of the incidents. The brokers of record and managers had a duty to maintain professional standards among their agents and to address complaints in a diligent and effective manner, a duty which they failed to uphold. Furthermore, the actions or omissions of the brokers of record and managers materially increased the risk of harm to the plaintiff.
The brokers of record were notified of the defamation on or about November, 2022, but did nothing to address the issues regarding Ms. King and Ms. Ali. They didn't make any effort to investigate the matter, or resolve the issue. The brokers of record did not respond to the plaintiff's attempts to have a discussion, and they didn't advise Ms. King and Ms. Ali to refrain from making further public comments until they could investigate.
38Ms. Athanasiou claims that Ms. Dearden-Puklicz, Ms. Evans and Mr. Evans each turned a blind eye to her defamation complaints against Ms. King and Ms. Ali. She also claims that they negligently failed to impose professional standards for the agents, investigate her complaints, have the agents refrain from posting the defamatory content pending an investigation, or otherwise remove the posts. The failures are said to have materially increased the risk of harm to her by essentially permitting the defamatory content to remain posted on social media and be viewable by the public at large.
39I find that the duty of care proposed in this case does not fit within an established duty of care category. The parties did not refer to any cases for the proposition that an employer with an employee using social media to promote its business owes a duty of care to a competing influencer, or otherwise argue that an analogous category of proximity should apply to this case. As I was unable to find caselaw to support this proposed duty of care, I accept that this duty does not seem to fall within an established or analogous category. Accordingly, I shall turn to the Anns/Cooper analysis to consider whether Ms. Dearden-Puklicz, Ms. Evans, and Mr. Evans arguably owe a duty of care to the plaintiff under this novel theory.
40As discussed below, I accept that Ms. Athanasiou has shown that Ms. Dearden-Puklicz, Ms. Evans, and Mr. Evans arguably owed her a prima facie duty of care.
41A positive duty of care may exist if harm is foreseeable and other aspects of the relationship between the plaintiff and the defendant create a special relationship of proximity. Without such a special relationship, common law does not oblige the defendant to act to prevent foreseeable harm because a duty to take positive action in the face of risk or danger is not freestanding: Childs at para 31. A special relationship of proximity is recognized in three (3) situations. The first arises where the defendant intentionally attracts and invites third parties to an inherent or obvious risk they created or control. The second concerns paternalistic relationships of supervision and control, such as those of parent-child or teacher-student, and rests on the plaintiff's special vulnerability and the formal position of power of the defendant. The third involves defendants who exercise a public function or engage in a commercial enterprise that includes attendant responsibilities to the public at large to act with special care to reduce risk: Childs at paras 35-37. These three situations are not strict legal categories but illustrate the types of factors that may give rise to a positive duty to act. The common features in all three situations are the defendant's material implication in creating or controlling a risk to which others are invited, the reasonable expectations of those who accept the invitation, and the autonomy of the individuals affected by the positive duties the plaintiff seeks to impose: Childs at paras 34, 38-40.
42By having Ms. King and Ms. Ali actively use social media to promote the commercial activities of their respective brokerages and compete for clients as part of their employment, I find that Ms. Dearden-Puklicz, Ms. Evans, and Mr. Evans arguably created, controlled, and engaged in a commercial endeavour with the intention of attracting other realtors, including Ms. Athanasiou, to participate in online exchanges. On a generous and liberal reading of the statement of claim, I accept that Ms. King and Ms. Ali are alleged to have competitively promoted the business of their brokerages by making provocative posts to target Ms. Athanasiou as a self-promotional effort that arguably created a risk of harm to which she was invited. By creating this form of social media content for others to view and share, I am persuaded that a special relationship of proximity arguably arose for which these moving defendants had an attendant responsibility to act with care and take reasonable precautions to avoid or minimize the associated risks of this activity from materializing, and to take appropriate action if the risk materialized: Childs at paras 37-40.
43The moving defendants argue that posting content to social media without more should not give rise to a risk that triggers a positive duty of care to third parties like Ms. Athanasiou. However, on a generous and liberal reading, I find that the claim sufficiently pleads that Ms. Dearden-Puklicz, Ms. Evans, and Mr. Evans created or enhanced a risk of defamation by having Ms. King and Ms. Ali make edgy or provocative posts to arguably establish the degree of proximity required to impose a duty of care to Ms. Athanasiou given her vulnerability to the social media posts that both real estate agents made while performing commercial activities for their employers.
44Having regard to the particular context of this case, I find that these parties arguably were in sufficiently close or direct proximity to make it just and fair to impose a duty of care in law on the individual moving defendants: Cooper at paras 32 and 34; Nelson (City) at para 17. In arriving at this finding, I accept that it was arguably foreseeable that the alleged failures by the defendant brokers and manager to put policies in place, to maintain or uphold professional standards for their agents' activities on social media, or to investigate Ms. Athanasiou's complaints and take remedial action materially increased the risk of harm to the plaintiff. To this end, a failure to have a policy or procedure in place has been found to support a claim in negligence, albeit in a different context: Youssef v. Redi-Mix Limited, 2018 ONSC 6409 at para 45, reversed in part on other grounds, 2020 ONCA 83 at para 4, leave to appeal refused.
45Having accepted that there is arguably sufficient proximity to ground a prima facie duty of care, I shall turn to consider the second stage of the Anns/Cooper test to ask whether there are residual policy concerns outside the parties' relationship that should negate the prima facie duty of care: Cooper at para 30; Nelson (City) at para 18.
46I am not persuaded by the moving defendants' submission that jurisprudence relieves them of a duty of care to the plaintiff with whom they purport to have no direct relationship, and that imposing liability would be tantamount to imposing indeterminate liability to the world. In making this submission, they rely on caselaw in support of the principle that a realtor generally owes a duty of care only to a client and buyers with whom they communicate, subject to a duty to disclose honest information to the public: Luminary Holding Corp v. Fyfe, 2021 BCSC 167 at para 131; varied in part on other grounds: 2022 BCCA 185; Gupta v. Gill, 2024 BCSC 193 at para 92, citing Beacock v. Moreno, 2019 BCSC 955 at paras 106-8, affirmed 2021 BCCA 412. But Ms. Athanasiou has pleaded that the moving defendants arranged for Ms. King and Ms. Ali to post content to social media to promote their businesses and compete for clients with other realtors, including herself. On a generous and liberal reading of the statement of claim, I accept that Ms. King and Ms. Ali are said to have performed marketing and promotional activities to raise or amplify interest in their brokerages by leveraging trust and credibility to influence behaviour and drive higher engagement with followers. Given this unique and contemporary context, I am not persuaded that the duty of care in relation to the individual moving defendants should be narrowly construed on residual policy grounds under traditional jurisprudence to remove their liability in the circumstances as pleaded.
47Ms. Athanasiou's negligence claim essentially alleges that the personal moving defendants knew or should have known about the defamatory content against her that Ms. King and Ms. Ali posted to social media and, thus, should have taken remedial action. She also claims that they lacked proper standards and procedures to properly address the defamation. On a motion to strike, pleadings are read generously and pleaded facts are taken to be true. Despite being allegations at this point, the assertions in the statement of claim are that the brokers and manager knew of the misconduct by their respective agents and negligently failed to reasonably intervene. By owing a duty of care (i.e., by being materially implicated in creating a risk of harm from the defamatory postings) and by failing to observe and discharge the duty (i.e., by not upholding professional standards for the agents or otherwise investigating or addressing complaints about their behaviour), the moving defendants are alleged to have breached their duty of care and caused foreseeable damages to the plaintiff: Rankin's Garage at para 18; Maple Leaf at para 18.
48The individual moving defendants submit that the only act or omission alleged to have harmed the plaintiff occurred after the posts to social media were made (i.e., after the alleged damages arose). However, the defamatory posts arguably continued to cause her harm until they were deleted or removed from the public domain where they continued to be accessible.
49Although the plaintiff's claim is novel and based on unsettled law, I do not find it plain and obvious that the claim should be struck for having no reasonable prospect of success: Hunt v. Carey Canada Inc., [1990] 2 SCR 959 at 979-980; Rivard at para 22. In my view, the negligence claim is not doomed to fail and should be allowed to proceed: Babstock at para 90; Imperial Tobacco at para 21. Taking everything into account, I am satisfied that the claim arguably raises a tenable cause of action in negligence against Ms. Dearden-Puklicz, Ms. Evans, and Mr. Evans.
50I do not find that it is plain and obvious that residual policy considerations should prevent the claim from continuing at the pleadings stage. On their own, these types of policy considerations should rarely be sufficient to dismiss a claim at the pleadings stage: Deloitte & Touche v. Livent Inc., 2017 SCC 63 at para 41. Residual policy considerations must disclose "a real potential for negative consequences" to defeat the court's recognition of a new duty of care, and speculation is not sufficient: Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 at para 48; Fullowka v. Pinkerton's of Canada Ltd., 2010 SCC 5 at para 57; McKee at para 72. At this stage of the proceedings, I am unable to find that imposing the novel duty of care would improperly trigger indeterminate liability. In my view, the court cannot properly assess the potential concerns over indeterminate liability on the pleadings alone and instead should decide the issue at trial with the benefit of a fulsome evidentiary record: McKee at para 73.
51Having regard to the negligence claims in their entirety, I accept that the moving defendants have adequate particulars of the alleged facts and legal conclusions taken from them to properly understand and defend the claim. In addition, discoveries will allow them to further pinpoint the facts supporting the claims: Temilini v. Ontario Provincial Police Commissioner (1990), 73 OR (2d) 664 (CA) at 668; Miguna v. Toronto Police Services Board, 2008 ONCA 799 at para 54. The plaintiff may amend the negligence claim after discoveries to plead further particulars as required: PMC at para 63; Catalyst at para 26.
52Accordingly, I am satisfied that the negligence claims in the fresh amended statement of claim against Ms. Dearden-Puklicz, Ms. Evans, and Mr. Evans should be allowed to continue.
b. The Claims for Aggravated and Punitive Damages
53The moving defendants submit that the plaintiff's claims for aggravated and punitive damages against them are not viable based on the allegations in the statement of claim.
54Aggravated and punitive damages may be awarded for defamation if the defendant's conduct has been high-handed and oppressive: Hill v. Church of Scientology, [1995] 2 SCR 1130 at paras 190 and 196; Konstan v. Berkovits, 2024 ONCA 510 at para 115. Aggravated damages are compensatory and require actual malice that increased the injury to the plaintiff by spreading further afield the damage to their reputation, or by increasing their mental distress and humiliation: Hill at para 190; Konstan at para 115; [Plester v. Wawanesa Mutual Insurance Co., leave to appeal refused; McIntyre v. Grigg at para 50. Punitive damages are available in only exceptional circumstances for "high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour" and, therefore, deserves full condemnation where compensatory damages are insufficient to achieve the objectives of retribution, deterrence and denunciation, among other things: Whiten v. Pilot Insurance Co., 2002 SCC 18 at para 94; Blackwater v. Plint, 2005 SCC 58 at para 91.
55The plaintiff submits that she suffered reputational harm and related injury from the individual moving defendants who deliberately and maliciously engaged in a sustained pattern of escalating supervisory or managerial indifference to support the punitive damages claim: Whiten at para 94; McIntyre at paras 56-57.
56The claim does not clearly plead high-handed or oppressive conduct or the type of malice to ground an award of aggravated or punitive damages. However, on a generous reading of the claim that alludes to omissions and inaction by the brokers of record and manager who supervised Ms. King and Ms. Ali in their respective employment at the brokerages, and from the submissions of plaintiff's counsel, I am persuaded that the plaintiff has a proper basis to plead that the moving defendants engaged in high-handed or oppressive conduct by supervisory indifference constituting malicious misconduct.
57Although the claim was previously amended, I accept that the plaintiff is able to assert facts that would allow her to plead a viable claim for aggravated and punitive damages in negligence against the moving defendants.
58Accordingly, I find that leave to further amend the statement of claim to plead aggravated and punitive damages should be granted.
c. The Claim in Vicarious Liability is Viable
59As explained below, I am satisfied that the statement of claim pleads an arguable cause of action in vicarious liability against the moving defendants, Century 21 and RBO, for the alleged defamatory statements of Ms. King and Ms. Ali and for the alleged negligence by Ms. Dearden-Puklicz, Ms. Evans, and Mr. Evans, respectively.
60An employer may be vicariously liable for:
a. the acts of an employee that are authorized by the employer; or
b. unauthorized acts so connected with authorized acts that they may be regarded as modes (albeit improper modes) of doing an authorized act.
Bazley v. Curry, [1999] 2 SCR 534 at para 10.
61Vicarious liability is based on the rationale that the person who puts a risky enterprise into the community may fairly be held responsible for bearing the loss when those risks emerge and cause loss or injury: Bazley at para 31; K.L.B. v. British Columbia, 2003 SCC 51 at para 20.
62There is a three-step analysis for deciding whether vicarious liability should be imposed. The first step is to decide whether the issue is unambiguously determined by precedent. If not, a further two-step analysis is applied to determine whether vicarious liability should be imposed in view of broader policy rationales: Bazley at para 15. Under this analysis, the plaintiff must show that the relationship between the tortfeasor and the person against whom liability is sought is sufficiently close, and that the wrongful act is sufficiently connected to the conduct authorized by the party against whom liability is sought: John Doe v. Bennett, 2004 SCC 17 at para 20; Fullowka v. Pinkerton's of Canada Ltd., 2010 SCC 5 at para 142; Dunford v. Hamilton -Wentworth District School Board, 2025 ONCA 438 at para 9.
63The goal of vicarious liability is to hold an enterprise liable for risks that it created or contributed to, encourage them to take steps to reduce the risk of future harm, and provide fair and effective compensation: Bennett at para 20; Fullowka at para 142. Two key policy considerations inform the vicarious liability analysis: a) giving victims of an employee's wrongdoing a just and practical remedy; and b) deterring conduct that is likely to cause harm in the future: Bazley at paras 30-32; Bennett at para 20; Dunford at para 9.
64In deciding whether an employer is vicariously liable for an unauthorized or intentional wrong by an employee where precedent is not conclusive"[t]he fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability": Bazley at para 41. The following non-exhaustive list of factors may be relevant in deciding the sufficiency of the connection between an employer's creation or enhancement of a risk and an intentional tort committed by an employee:
a. the opportunity that the enterprise afforded the employee to abuse his or her power;
b. the extent to which the wrongful act may have furthered the employer's aims (and hence be more likely to have been committed by the employee);
c. the extent to which the wrongful act was related to friction, confrontation, or intimacy inherent in the employer's enterprise;
d. the extent of power conferred on the employee in relation to the victim;
e. the vulnerability of potential victims to wrongful exercise of the employee's power.
65The analysis of the above-noted factors will vary with the nature of each case and will not be applied mechanically but in a manner that is sensitive to the policy considerations that justify the imposition of liability: Bazley at paras 41 and 46. The inquiry is focused on the power and control exercised by the employer and granted to the employee: Bennett at para 21.
66Vicarious liability has limited reach. An employee's wrongdoing that is just coincidentally linked to their duties and the employer's activity cannot justify the imposition of vicarious liability where little could have done by the employer to prevent the wrongdoing. In those circumstances, vicarious liability would not deter future loss. Vicarious liability is generally appropriate in cases with a significant connection between the creation or enhancement of a risk and the wrong that results from it: Bazley at paras 40-41.
67The plaintiff has pleaded vicarious liability claims against the brokerages, Century 21 and RBO, by claiming that Ms. King and Ms. Ali were influencers who used social media to attract clients and sales for their brokerages as part of their employment at the brokerages. Based on this, the plaintiff has claimed damages in vicarious liability against Century 21 and RBO, respectively.
68On this motion to strike, the focus of the analysis is on whether Century 21 and RBO are arguably vicariously liable in the circumstances of the case.
69Neither side cited any precedents that conclusively considered whether an employer should be vicariously liable in defamation for an employee using social media to promote their business activities. I was unable to find any such jurisprudence. It appears that the vicarious liability claims against the employers in this case are of first impression.
70I am satisfied that Ms. Athanasiou has shown that the employment relationships between Ms. King and Century 21, and between Ms. Ali and RBO, respectively, are sufficiently close to establish the claims against the brokerages in vicarious liability. In my view, the claim pleads a sufficiently close relationship between the agents and the brokerages that authorized or permitted the alleged defamatory conduct to ground the claims in vicarious liability against the employers.
71Turning to the sufficiency of the connection to the authorized conduct, I accept on a generous and liberal reading of the claim that the alleged defamatory conduct by Ms. King and Ms. Ali, and the corresponding failures by Ms. Dearden-Puklicz, Ms. Evans, and Mr. Evans to supervise or intervene, are sufficiently connected to conduct that the brokerages authorized or directed to arguably justify the imposition of vicarious liability.
72The claim pleads little about the connections to the agents' conduct that the brokerages allegedly authorized. However, on a generous and liberal reading, I accept that the claim alleges that both Century 21 and RBO created the negligence-based risk by giving Ms. King and Ms. Ali the opportunity or ability to engage in defamatory conduct by posting abusive social media content that harmed Ms. Athanasiou. The claim also pleads that both agents used social media to attract clients, to gain commercial opportunities for their brokerages, and to compete with other realtors for clients including a Twitter space client who chose Ms. Athanasiou over Ms. Ali as their agent. By generously reading the claim, I am satisfied that it effectively pleads that the brokerages gave their respective agents a significant opportunity to abuse their powers by engaging in defamatory conduct to compete for business in confrontational fashion to advance the commercial goals of the brokerages: Bazley at para 41; Bennett at para 21.
73Given the commercial competition associated with the social media activity, and reading the claim generously to accommodate drafting inadequacies, I accept that the alleged defamatory conduct arguably resulted from friction or confrontation inherent in the posts that Ms. King and Ms. Ali made at Ms. Athanasiou's expense to promote Century 21 and RBO, respectively, with the knowledge, approval, and support of both brokerages: Imperial Tobacco at paras 21-22. As a real estate influencer competing against Ms. King and Ms. Ali on social media, Ms. Athanasiou arguably was vulnerable to improper exercise of the agents' influencing power that the brokerages conferred without policies, procedures, or meaningful oversight. By placing both agents in their roles and having them post content on social media in this fashion, I accept that the brokerages arguably increased the risk of harm to Ms. Athanasiou and other competing realtors in material or significant fashion as both agents performed assigned employment tasks: Bazley at para 42; Jacobi v. Griffiths, [1999] 2 SCR 570 at para 79; Ivic v. Griffiths, 2017 ONCA 446 at paras 24 and 38, leave to appeal denied. In the circumstances, I find that the requisite strong connection between the influencing activity the brokerages had their agents perform and the alleged harm is arguably made out as the harm was not merely coincidental or random but the result of influencing activity to gain followers and build engagement for the brokerages. Applying this analysis with rigour to the context of this case, I accept that the plaintiff has arguably raised a tenable cause of action in vicarious liability against Century 21 and RBO on the facts as pleaded: Bazley at para 46; Ivic at para 37. In any event, the claim may be amended after discoveries to plead further particulars as needed: PMC at para 63; Catalyst Capital at para 26.
74Having regard to the circumstances of this case and the nature of the conduct that is sought to be deterred, I accept that imposing vicarious liability on the brokerages would arguably further the broader policy rationales of fair compensation and deterrence of future harm to justify the imposition: Bazley at paras 31-33; Jacobi at para 72; Ivic at para 41.
75Accordingly, I find that the vicarious liability claim against Century 21 and RBO is viable.
d. The Claim for Punitive Damages on a Theory of Vicarious Liability is Not Viable
76I am satisfied that punitive damages are not available against Century 21 and RBO on a theory of vicarious liability, as the plaintiff has conceded in submissions: Blackwater v. Plint, 2005 SCC 58 at para 91; The Dominion of Canada General Insurance Company v. Nelson 2023 ONSC 386 (Div Ct) at para 53. As a result, I find it plain and obvious that this claim has no reasonable prospect of success and should be struck: Rivard at para 22.
Outcome
77Based on the foregoing, I order the following:
a. the claims for punitive damages in respect of vicarious liability against Century 21 and RBO (i.e., at paras 1(f)(i) and 1(g)(i) of the fresh amended statement of claim) are struck for plainly and obviously having no reasonable prospect of success;
b. leave is granted for the plaintiff to further amend the statement of claim to plead allegations in support of the claim for aggravated and punitive damages; and
c. the motions are otherwise dismissed.
78If the parties are unable resolve the issue of costs for this motion, the plaintiff may deliver costs submissions of up to 2 pages (excluding any costs outline or offer to settle) within 15 days, and the moving defendants may deliver responding submissions on the same terms within a further 15 days. Reply submissions shall not be delivered without leave.
Date: October 28, 2025
M.T. Doi J.
1The plaintiff made reference to the RECO complaint in the statement of claim not to ground a claim in defamation but to support the overall narrative of retaliatory and bad faith conduct by the moving defendants.