Court File and Parties

Court File No.: CV-24-86064 Date: October 9, 2025 Superior Court of Justice – Ontario

Re: Panthea Afshari, Plaintiff - and - Maurizio Privitera, Defendant

AND BETWEEN: Maurizio Privitera, Plaintiff by Counterclaim - and - Panthea Afshari and Royal LePage State Realty Brokerage, Defendants by Counterclaim

Before: MacNeil J.

Counsel:

• Viktoria Anteby – Lawyer for the Moving Party/Defendant by Counterclaim, Royal LePage State Realty Brokerage
• Maurizio Privitera – Self-represented, Responding Party/Plaintiff by Counterclaim

Heard: July 7, 2025

Reasons for Decision

Introduction

[1] This is a motion made by the defendant by counterclaim, Royal LePage State Realty Brokerage ("Royal LePage"), seeking summary dismissal of the counterclaim brought against it by the plaintiff by counterclaim Maurizio Privitera ("Mr. Privitera").

[2] Mr. Privitera is the defendant in the main action. In that statement of claim, dated June 17, 2024, the plaintiff, Panthea Afshari ("Ms. Afshari"), claims various relief against Mr. Privitera arising out of a private real estate transaction between Ms. Afshari and Mr. Privitera with respect to a residential property located on Lloyminn Avenue ("the Property"), including a declaration that he breached an agreement of purchase and sale, dated February 12, 2024; a declaration that, as a result of that breach, the plaintiff is entitled to forfeiture of any deposits; and general and compensatory damages for breach of contract.

Facts

[3] On February 1, 2024, Ms. Afshari entered into a written agreement for Royal LePage to list and sell the Property, commencing February 1, 2024 and expiring on July 31, 2024 ("the Listing Agreement").

[4] At the time of entering into the Listing Agreement, Ms. Afshari was a real estate agent and broker associated as an independent contractor with Royal LePage.

[5] As required, Ms. Afshari completed a "Registrant Disclosure of Interest – Disposition of Property" (OREA Form 161) advising that she owns the Property ("the Disclosure"), in preparation for listing of the Property on the Multiple Listing Service ("the MLS").

[6] On February 2, 2024, the Property was listed on the MLS for both sale and lease. In both MLS listings, it refers to the "Disclosure".

[7] On February 13, 2024, at 11:40 a.m., Ms. Afshari signed a "Cancellation of Listing Agreement – Authority to Offer for Sale" (OREA Form 242) and a "Cancellation of Listing Agreement – Authority to Offer for Lease" (OREA Form 214). Both of the Cancellations were also signed by Ms. Afshari's Broker of Record/Manager, B. Gillis, on February 13, 2024 at 12:13 p.m. The stated reason for the cancellations was: "Seller has decided to take off market".

[8] However, after Ms. Afshari cancelled the Listing Agreement she continued to negotiate the sale and lease of the Property to Mr. Privitera, unbeknownst to Royal LePage.

[9] On February 13, 2024, Ms. Afshari and Mr. Privitera signed an Agreement of Purchase and Sale ("the Purchase Agreement") and an Agreement to Lease ("the Lease Agreement") with Ms. Afshari as seller and landlord and Mr. Privitera as purchaser and tenant. Mr. Privitera further signed a confirmation of acceptance for both agreements on February 13, 2024 at 4:43 p.m.

[10] The Purchase Agreement shows "N/A" on the lines for each of listing brokerage and buyer brokerage. Further, Schedule A to the Purchase Agreement contains the following term: "The Buyer acknowledges that The Seller is a licenced real estate broker in the province of Ontario and that there are no brokerages or realty fees involved in this agreement."

[11] The Lease Agreement shows "N/A" on the lines for each of listing brokerage and buyer brokerage. Further, Schedule A to the Lease Agreement contains the following term: "The Tenant acknowledges that the Landlord is a licensed real estate broker and further acknowledges that there are no real estate brokerages or fees involved in this agreement."

[12] Neither of the Purchase Agreement nor the Lease Agreement make any reference to any agent/brokerage information, and there is no reference to Royal LePage as being involved as a broker or in any other way in the two transactions.

[13] The deposit paid by Mr. Privitera under the Purchase Agreement was paid in trust to Ms. Afshari's real estate lawyer and not to Royal LePage.

[14] In the statement of defence and counterclaim, dated June 29, 2024, Mr. Privitera denies the bulk of the allegations continued in the statement of claim, and makes various allegations as against Ms. Afshari and pleads that Royal LePage is responsible for her alleged wrongful conduct.

[15] In the counterclaim, specifically, Mr. Privitera sues both Ms. Afshari and Royal LePage alleging that Ms. Afshari conducted herself in a negligent and fraudulent manner in both the sale and lease of the Property; that she committed the act of fraud through misrepresentation, lack of disclosure and conflict of interest on behalf of her brokerage, Royal LePage; that Ms. Afshari committed the crime of public mischief under s. 140(1) of the Criminal Code of Canada; that Ms. Afshari committed the act of defamation, including slander and libel; that she breached the Residential Tenancies Act; and that she failed to meet her fiduciary duties.

[16] Mr. Privitera seeks various relief, including the following:

(a) a declaration that the agreement of purchase and sale for the Property signed on February 12, 2024 is void;

(b) a declaration that, as a result of the defendants' misrepresentation and fraudulent actions, he is entitled to forfeiture of any deposit;

(c) an order that the deposit be released to him within 14 days of determination of the counterclaim;

(d) general and compensatory damages for misrepresentation and fraud in a sum to be particularized prior to trial for out of pocket expenses, including all moving and relocating costs, as well as costs for any expenses that were the responsibility of the landlord, Panthea Afshari;

(e) compensatory and special damages for misrepresentation, conflict of interest, fraud, defamation of character both slander and libel, lack of privacy and enjoyment of property, breach of contract in the original agreement, emotional distress, and financial losses in the sum of not less than $400,000.00;

(f) an order that Panthea Afshari and Royal LePage fulfil the original agreement of purchase and sale for $1,465,000.00; and,

(g) an order that Panthea Afshari and Royal LePage pay to Mr. Privitera the costs of the action.

[17] Royal LePage's evidence is that it had no involvement with the Property after the cancellation of the Listing Agreement(s); and it did not receive a commission, remuneration or any realty fees from the sale or the lease of the Property to Mr. Privitera. Royal LePage had no knowledge of any dealings between Ms. Afshari and Mr. Privitera as alleged because they were private transactions conducted by Ms. Afshari on her own account. Royal LePage only became aware of the Purchase Agreement and the Lease Agreement when it received a copy of the statement of defence and counterclaim (unissued) by email on July 5, 2024.

[18] No responding materials were filed by Mr. Privitera in response to Royal LePage's motion, although duly served with the motion record. There were no cross-examinations of Royal LePage's affiant, J. Ferrante, on his affidavits.

[19] At the outset of the hearing of the motion, Mr. Privitera sought an adjournment. For oral reasons given at the hearing, I did not grant that adjournment. However, Mr. Privitera was permitted to make oral submissions to the court respecting the motion and the relief sought by Royal LePage.

Issues

[20] The following issues will be determined:

(a) Is this an appropriate case for partial summary judgment?

(b) Should the counterclaim against Royal LePage be dismissed under rule 20 on the basis that there is no genuine issue requiring a trial?

(c) Should the counterclaim against Royal LePage be struck under rule 21.01(1)(b) as disclosing no reasonable cause of action in law?

(d) Should the counterclaim against Royal LePage be dismissed under rule 21.01(3)(d) and rule 25.11?

Position of the Moving Party

[21] Royal LePage submits that, on the facts put forward in the statement of defence and counterclaim, Mr. Privitera cannot establish liability against Royal LePage as there is no basis on which vicarious liability can be established for the acts of Ms. Afshari in relation to the sale and lease agreements because Ms. Afshari was not acting on behalf of Royal LePage when she sold and leased the Property to Mr. Privitera. She was acting solely in a private capacity.

[22] Further, Mr. Privitera appears to be making various additional allegations of fraud, misrepresentation and negligence, etc. as against Royal LePage. Royal LePage contends that, based on the facts as pleaded taken as true in the counterclaim, these claims should be struck, without leave to amend, as disclosing no reasonable cause of action and /or as being an abuse of process.

Position of the Responding Party

[23] Mr. Privitera submits that his initial telephone call about the Property went to Royal LePage and, at that time, Ms. Afshari was working with the brokerage's Levie Team. When he first met with Ms. Afshari about the Property, he understood that she was an agent of Royal LePage. He contends that it was not until he received a February 11, 2024 text from Ms. Afshari that she informed him that she was the owner of the Property and told him that he should get another agent. It was only after he and Ms Afshari finalized the purchase and lease terms that Ms. Afshari then texted him that, for her to save on commission and brokerage fees, they should do the deals privately.

[24] It is Mr. Privitera's position that Ms. Afshari acted under the Royal LePage banner and that Royal LePage is legally responsible for their employees. It was Ms. Afshari who reneged on their agreements and then tried to take advantage of the situation. Royal LePage is now trying to sidestep its brokerage obligations when it failed to monitor or scrutinize its agent, Ms. Afshari. Royal LePage needs to be involved in the litigation even if it was a private sale between him and Ms. Afshari.

[25] Mr. Privitera submitted that he was ready to complete the Purchase Agreement; and that he has since been evicted from the Property.

Analysis

(a) Is this an appropriate case for partial summary judgment?

[26] Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that the court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[27] In the case of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (S.C.C.), the Supreme Court of Canada established a two-step approach to Rule 20 motions. In the first step, the motion judge is to take a hard look at the evidence to determine whether there is a genuine issue requiring a trial. If there is no genuine issue for trial, summary judgment will be granted.

[28] In the second step of the process, the motion judge shall consider the evidence submitted by the parties, and may exercise the additional powers of weighing the evidence, evaluating credibility, and drawing reasonable inferences as set out in Rule 20.04(2.1) to determine whether there is a genuine issue, unless it is in the interest of justice for such powers to be exercised only at a trial: Hryniak, at paras. 49-52.

[29] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination based on the merits on a summary judgment motion. This is the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to those facts, and (3) is a proportionate, more expeditious, and less expensive means to achieve a just result than going to trial: Hryniak, at para. 49.

[30] The onus for proving that there is no genuine issue requiring a trial is on the moving party. Once the moving party discharges their burden, the onus shifts to the responding party to provide evidence that there is a genuine issue that requires a trial. The responding party cannot rely on mere allegations or denials in their statement of defence. Rule 20.02(2) provides that, in response to affidavit material or other evidence supporting a motion for summary judgment, a responding party must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.

[31] An adverse inference can be drawn if the responding party fails to present affidavit material or other evidence to support the allegations or denials in their pleadings: Pearson v. Poulin, 2016 ONSC 3707, at para. 40.

[32] On a motion for summary judgment, the court is entitled to assume that the record contains all the evidence that the parties would present if the matter proceeded to trial and that each party has "put their best foot forward" with respect to the existence or nonexistence of material issues to be tried: Galal v. Hale, 2018 ONSC 5502, at para. 14; Georges v. Nahri, 2016 ONSC 2294, at para. 19.

[33] Based on the evidentiary record before me, I am satisfied that I can make the necessary findings of fact and apply the relevant legal principles to arrive at a just and fair determination of the issues in dispute.

Partial Summary Judgment

[34] Since only Royal LePage is moving for summary judgment, this motion is properly characterized as a partial summary judgment motion.

[35] In Malik v. Attia, 2020 ONCA 787, at para. 62, the Ontario Court of Appeal set out three additional criteria a moving party must satisfy when the court is being asked to grant partial summary judgment:

(i) demonstrate that dividing the determination of the case into several parts will prove cheaper for the parties;

(ii) show how partial summary judgment will get the parties' case in and out of the court system more quickly; and,

(iii) establish how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.

See also Hayles et al. v. Durham College, 2021 ONSC 3585, at para. 26, citing Malik.

[36] I am aware that the Ontario Court of Appeal in Butera v. Chown, Cairns LLP, 2017 ONCA 783, at para. 34, has held that partial summary judgments should be considered "rare" procedures and "reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost-effective manner."

[37] In my view, partial summary judgment is appropriate in the context of this litigation as a whole. In determining this, I have considered the following:

(a) the issues before me can be completely determined summarily without any effect on Mr. Privitera's claims against Ms. Afshari;

(b) by dismissing the counterclaim against Royal LePage, the scope and issues of the remaining litigation will be narrowed and discovery and trial preparation will be more focused and properly limited;

(c) it would be disproportionate, inefficient, and costly to require Royal LePage to remain as a defendant by counterclaim in the proceeding; and,

(d) granting partial summary judgment will reduce the cost of the litigation and expedite the trial without any risk of inconsistent or duplicative findings.

(b) Should the counterclaim against Royal LePage be dismissed under rule 20 on the basis that there is no genuine issue requiring a trial?

[38] The bulk of what is pleaded in the counterclaim relates to the alleged dealings between Ms. Afshari and Mr. Privitera regarding the Property and Ms. Afshari's conduct respecting same. It raises allegations about Ms. Afshari's attempts to have him vacate the Property, exchanges between their lawyers, Ms. Afshari getting the police involved, the state of the Property, the lack of peace and enjoyment of the Property, and Ms. Afshari's harassment of Mr. Privitera.

[39] In terms of damages, Mr. Privitera seeks $500,000.00 on the basis that Ms. Afshari and her lawyer harassed him; that Ms. Afshari made false accusations against him; that she acted in bad faith; that she did not fulfill her duties as a landlord; that Ms. Afshari lied to her legal representatives, her brokerage and the police; that she has not complied with her duties as a licensed real estate agent; that she has defamed him; and that she has committed breach of contract, breach of trust and fraud.

[40] In none of the allegations and facts pleaded in the counterclaim does Mr. Privitera describe any actual acts or conduct on the part of Royal LePage. There are only a few mentions of Royal LePage in the counterclaim. Within those, there is only one paragraph that makes a specific claim of vicarious liability against Royal LePage, paragraph 41, which reads:

41. That Royal LePage be held liable for the conduct for the actions of Panthea Afshari and responsible for the total damages of $500,000.00 and that the Defendant is liable to the Plaintiff for the quantum of the above total amount suffered as liquidated damages.

[41] Vicarious liability has been described by the Supreme Court of Canada as "the event when the law holds one person responsible for the misconduct of another because of their relationship": 671122 Ontario Ltd v. Sagaz Industries Canada Inc., 2001 SCC 59, at para. 2.

[42] As the Supreme Court of Canada explained in Bazley v. Curry, [1999] 2 S.C.R. 534, at para. 41:

… The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer's desires. Where this is so, vicarious liability will serve the policy considerations of provision of an adequate and just remedy and deterrence. Incidental connections to the employment enterprise, like time and place (without more), will not suffice. Once engaged in a particular business, it is fair that an employer be made to pay the generally foreseeable costs of that business. In contrast, to impose liability for costs unrelated to the risk would effectively make the employer an involuntary insurer. [Emphasis in original.]

[43] In order to hold an employer vicariously liable, the enterprise and employment must have "materially" enhanced the risk, in the sense of significantly contributing to it: Bazley, at para. 40.

[44] Where a plaintiff in a personal capacity has dealt or entered into a contract with an employee in a personal capacity, the employer will not be vicariously liable: Hawa v. Singh, 2020 ONSC 3507, at paras. 15-16, citing Bago v. Tasker, [1993] O.J. No. 1734 (Gen. Div.), at paras. 41-43; Campbell v. Sherman, [1993] O.J. No. 2815 (Gen. Div.), at paras. 168, 170; Bourgeault v. McDermid, Miller & McDermid Ltd. (1982), 140 D.L.R. (3d) 174, para. 16-18; Rowe v. Investors Syndicate Limited, [1984] O.J. No. 346 (H.C.J.), paras. 150-162.

[45] I find that there is no evidence of a "significant connection" between the alleged wrongdoing of Ms. Afshari and the "creation or enhancement of a risk" by Royal LePage accruing to that wrongdoing.

[46] Ms. Afshari cancelled the Listing Agreement(s) for both the purchase/sale and the lease of the Property on February 13, 2024 at 11:40 a.m.; her Broker of Record/Manager of Brokerage signed off on the cancellations that same day at 12:13 p.m. Ms. Afshari and Mr. Privitera then proceeded to enter into the sale and the lease of the Property without Royal LePage's involvement, signing the Purchase Agreement and the Lease Agreement on February 13, 2024, with Mr. Privitera confirming acceptance as of 4:43 p.m. that day.

[47] I find that, in entering into the Purchase Agreement and the Lease Agreement, Ms. Afshari was dealing with Mr. Privitera in her personal capacity and not as an employee or agent of Royal LePage. I also find that Mr. Privitera was aware that Ms. Afshari was cutting Royal LePage out of any involvement. Text messages sent between Mr. Privitera and Ms. Afshari on February 12, 2025, that were in the record before the court, show Mr. Privitera texting that he wanted to do a "private" sale with her and not pay realtor fees of 2% and that he would buy the Property for $1,465,000.00 if they could go private. Ms. Afshari responded: "But I need to cancel both listings and tell everyone I decided not to sell" and Mr. Privitera agreed to this.

[48] In the counterclaim, Mr. Privitera pleads this exchange at para. 1(q), stating: "February 12th, 2024, at 12:52 PM, Panthea Afshari Text messages and says that she needs to 'cancel both listings and tell everyone she decided not to sell', cutting out the 'Levie Team' at Royal LePage, and her Brokerage."

[49] It is clear on the face of the counterclaim that Mr. Privitera knew that Royal LePage was going to be excluded from the sale and lease transactions involving the Property, and the text messages show that he was agreeable to that.

[50] I accept the uncontroverted evidence of Royal LePage's representative that it had no knowledge that Ms. Afshari was continuing to negotiate with Mr. Privitera after she cancelled the Listing Agreement(s). I also accept that Royal LePage would have had no opportunity to supervise or control Ms. Afshari's conduct once the listing agreements were cancelled.

[51] Since Royal LePage was not involved in either the final sale or lease transactions between Ms. Afshari and Mr. Privitera, it cannot be held to have materially increased the risk of the alleged wrongdoing by Ms. Afshari in connection with either the sale or lease. Ms. Afshari acted wholly on her own in entering into both the Purchase Agreement and the Lease Agreement and in her own personal capacity as owner/landlord. Royal LePage did not act as the brokerage for either transaction. It was not listed as the brokerage. Royal LePage did not receive any commission or fee in relation to either transaction. Once the listings were cancelled, Royal LePage had no knowledge of the final sale and lease transactions between Ms. Afshari and Mr. Privitera.

[52] Further, there was no agency agreement between Royal LePage and Mr. Privitera. For the brief amount of time that Royal LePage was involved as the listing brokerage for the Property, it was representing Ms. Afshari, not Mr. Privitera as a potential purchaser/tenant. There is no evidence that Mr. Privitera placed his trust and confidence in Royal LePage to look after his interests in any respect.

[53] I am satisfied that Royal LePage has met its onus of proving that there is no genuine issue requiring a trial. I find that the facts and evidence before the court do not warrant the imposition of vicarious liability on Royal LePage in the circumstances. There is no evidence that Royal LePage increased the risk that Ms. Afshari would act unlawfully or commit any wrongdoing in connection with the sale or the lease of the Property to Mr. Privitera.

[54] Mr. Privitera has not met his onus of establishing a viable claim against Royal LePage or that there is a genuine issue requiring a trial. He has failed to present any affidavit material or other evidence in support of the allegations made against Royal LePage in the counterclaim.

[55] I conclude that the counterclaim against Royal LePage should be dismissed under rule 20 on the basis that there is no genuine issue requiring a trial.

(c) Should the counterclaim against Royal LePage be struck under rule 21.01(1)(b) as disclosing no reasonable cause of action in law?

[56] Royal LePage submits that the counterclaim should be struck as it discloses no reasonable cause of action against Royal LePage.

[57] A pleading should be struck out if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no cause of action. A pleading cannot contain only bald allegations. Facts must also be provided, with reasonable specificity, to enable a party to know the case they have to meet.

[58] In Deep v. Ontario; affirmed, Spence J. summarized the applicable tests under Rule 21 and Rule 25 for striking out pleadings as follows (at paras. 32-38):

Rule 21

32 Rule 21.01(1)(b) provides that a judge may strike out a pleading if it discloses no reasonable cause of action. The purpose of a rule 21.01(1)(b) motion is to test whether a plaintiff's allegations state a legally sufficient or substantively adequate claim. Where it is plain and obvious that is [ sic ] discloses no cause of action, it should be struck: Rule 21.01(1)(b); Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at 976-977.

33 A claim will be found to be legally insufficient when either the allegations it contains do not give rise to a recognized cause of action, or it fails to plead the necessary legal elements of an otherwise recognized cause of action. As explained by Borins J.A. in Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 164 D.L.R. (4th) 257 at p. 264 (C.A.),

In some cases, a statement of claim will be vulnerable to dismissal under rule 21.01(1)(b) because the plaintiff has sought relief for acts that are not proscribed under the law. The typical textbook example is a statement of claim that alleges that the defendant made a face at the plaintiff, or that the defendant drove a car of an offensive colour. In other cases, however, the statement of claim may be defective because it has failed to allege the necessary elements of a claim that, if properly pleaded, would constitute a reasonable cause of action.

34 In order to survive the second type of rule 21.01(1)(b) motion, a plaintiff must, at minimum, plead the basic elements of a recognized cause of action pursuant to which an entitlement to damages is claimed. The absence of a necessary element of the cause of action will constitute a radical defect on the basis of which it is plain and obvious that the plaintiff cannot succeed. Accordingly, such a claim should be struck out.

35 On a motion under Rule 21, the plaintiff has the benefit of an assumption that the facts pleaded are true or capable of being proven. Accordingly, the court is left to consider the legal sufficiency of the plaintiff's claim stated in its best and most positive light by the plaintiff himself. However, a court is not required to take "allegations based on assumptions and speculations" as true for the purpose of assessing the cause of action at issue. A party may therefore not supply a missing element of a cause of action by pleading speculative allegations: Region Plaza Inc. v. Hamilton Wentworth (Regional Municipality) (1990), 12 O.R. (3d) 750 at 754 (H.C.).

36 Rule 21.01(1)(b) permits the court to strike out less than the entire pleading, where the portion being struck is a distinct purported cause of action. In exercising its discretion, the court should consider whether or not "paring down" the pleadings will actually result in savings of money or time for the parties. Montgomery v. Scholl-Plough Can. Inc. (1989), 70 O.R. (2d) 385.

Rule 25

37 With respect to the need to plead material facts in support of allegations, Rule 25.06 provides that:

25.06 (1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved. R.R.O. 1990, Reg. 194, r. 25.06(1).

(2) A party may raise any point of law in a pleading, but conclusions of law may be pleaded only if the material facts supporting them are pleaded. R.R.O. 1990, Reg. 194, r. 25.06(2).

(8) Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred. O. Reg. 61/96, s. 1.

38 Allegations of legal conclusions are not facts and are insufficient for the purposes of pleading. This is particularly so where allegations of intentional or malicious conduct are made. A plaintiff must plead circumstances, particulars or facts which are sufficient to enable a trier of fact to properly infer intentional or malicious conduct. Conacher v. Rosedale Golf Assn. Ltd., [2002] O.J. No. 575 (S.C.J.); Pispidikis v. Scroggie (2003), 62 O.R. (3d) 596 at paras. 35-36 (S.C.J.); Wilson v. Toronto (Metropolitan) Police Service, [2001] O.J. No. 2434 at paras. 66-67 (S.C.J.), aff'd., , [2002] O.J. No. 383 (C.A.)

[59] I find that the counterclaim as against Royal LePage does not meet the requirement of pleading a concise statement of material facts alleging a legally sufficient claim. Mr. Privitera has not pleaded any material facts that would support a direct or indirect contractual, equitable or other direct relationship between him and Royal LePage. The counterclaim fails to set out how or what conduct of Royal LePage caused Mr. Privitera's alleged damages. Rather, the allegations in the counterclaim focus on the conduct of Ms. Afshari and then simply asserts that Royal LePage should be held liable for the actions of Ms. Afshari, without anything more.

[60] Further, the counterclaim does not set out any elements necessary to establish a cause of action against Royal LePage, whether in misrepresentation, fraud, breach of contract, defamation, conflict of interest, or negligence.

[61] Accordingly, I conclude that the counterclaim does not disclose a reasonable cause of action against Royal LePage and should be struck out under rule 21.01(1)(b). I find that, given the non-involvement of Royal LePage with the Purchase Agreement and the Lease Agreement, and its non-involvement with the Property thereafter, it is plain and obvious that no tenable cause of action against Royal LePage is possible on the alleged facts and there is no reason to suppose that Mr. Privitera can improve his case by an amendment: TSCC Corporation No. 2123 v. Times Group Principals, 2018 ONSC 4799, at para. 56.

[62] I am satisfied that this is one of the exceptional cases where the court's discretion should be exercised and the counterclaim struck out without leave to amend.

(d) Should the counterclaim against Royal LePage be dismissed under rule 21.01(3)(d) and rule 25.11?

[63] Royal LePage argues, in the alternative, that the counterclaim as against it should be dismissed under rule 21.01(3)(d) and rule 25.11 as being frivolous, vexatious or an abuse of the court's process.

[64] Based on my ruling above that the counterclaim fails to plead a reasonable cause of action against Royal LePage, it is unnecessary for me to decide this issue. However, for the sake of completeness, I will make a ruling in this regard, as well.

[65] Rule 21.01(3) provides that a defendant may bring a motion for an order staying or dismissing an action on one of four prescribed grounds: (a) the court has no jurisdiction over the subject matter of the action; (b) one of the parties lacks legal capacity; (c) there is another proceeding pending involving the same parties and the same subject matter; and (d) the action is frivolous, vexatious, or an abuse of process. A party is not precluded from relying on evidence in support of a motion brought under subrule 21.01(3).

[66] For its part, rule 25.11 provides that the court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document, (a) may prejudice or delay the fair trial of the action; (b) is scandalous, frivolous or vexatious; or (c) is an abuse of the process of the court. There is no restriction on evidence on a motion brought under r. 25.11.

[67] Where a pleading does not meet the purposes of pleadings under the Rules of Civil Procedure, it can be struck. As Spence J. explained in Deep v. Ontario, at para. 40:

"A pleading that demonstrates a complete absence of material facts will be declared to be frivolous or vexatious. Pleadings that are irrelevant, argumentative, or inserted for colour or that constitute bare allegations should be struck out as scandalous. The same applies to a document that contains only argument and includes unfounded and inflammatory attacks on the integrity of a party, and speculative, unsupported allegations of defamation.": Senechal v. Muskoka (District Municipality), [2003] O.J. No. 885 (S.C.J.) at paras. 51, 52.

[68] I am satisfied that Mr. Privitera's counterclaim should be struck out as against Royal LePage since it contains only a bald allegation as against Royal LePage and does not plead facts or particulars sufficient to enable Royal LePage to know the case it has to meet. As I found above, the counterclaim does not set out any elements necessary to establish a cause of action against Royal LePage, whether in misrepresentation, fraud, breach of contract, defamation, conflict of interest, or negligence. Even accepting the factual allegations in the pleadings as true, I find that there is no link between Royal LePage and Ms. Afshari's alleged breaches and torts against Mr. Privitera.

[69] Accordingly, I conclude that the counterclaim is frivolous, vexatious, and an abuse of process and should be dismissed as against Royal LePage under rule 21.01(3)(d) and rule 25.11.

Disposition

[70] The motion brought by Royal LePage to dismiss and strike, without leave to amend, the counterclaim as against it is granted.

Costs

[71] The moving party, Royal LePage, was successful on its motion and so is presumptively entitled to costs.

[72] I would urge the parties to agree on costs. If they are unable to do so, then costs submissions may be made as follows and submitted to the Sopinka Judicial Assistants to my attention:

(a) By October 30, 2025, Royal LePage shall serve and file its written costs submissions, not to exceed three pages, double-spaced, together with a draft bill of costs and copies of any pertinent offers; and

(b) Mr. Privitera shall serve and file his responding costs submissions of no more than three pages, double-spaced, together with a draft bill of costs and copies of any pertinent offers, by November 13, 2025; and

(c) Royal LePage's reply submissions, if any, are to be served and filed by November 20, 2025 and are not to exceed two pages.

(d) If no submissions are received by November 20, 2025, the parties will be deemed to have resolved the issue of the costs and costs will not be determined by me.

[73] If the parties are able to settle the question of costs or if a party does not intend to deliver submissions, counsel are requested to advise the court accordingly.

MacNEIL J.

Released: October 9, 2025