BETWEEN
ONT ARIO SUPERIOR COURT OF JUSTICE
SMALL CLAIMS COURT
Richmond Hill
ORDER OF THE COURT
Claim No. SC-20-00000319-0000
GuoJin Liu, Also known as Jimmy Liu
Plaintiff(s)
and
RE/MAX Imperial Realty Inc., Brokerage
Defendants(s)
BEFORE: HELD BY:
Deputy Judge ROSSI
XXXIXn XpeXrsXoXn D Videoconference D Teleconference
X In writing D Hybrid
EVENT TYPE:
Motion
APPEARING: (Names, emails, and phone numbers)
Plaintiff(s ): GuoJin Liu
Representati\A9: Xiaohong Chen (michelle.xh.chen@gmail.com) (416-999-3262)
Defendant(s): RE/MAX Imperial Realty Inc., Brokerage
Present D
Present D
Present D
Representati1.A9: QIULING YANG LICENSED PARALEGAL (paralegalyang@hotmail.com) (647-557-1325)
Present
March 16, 2026
See attached Order of Deputy Judge Rossi dated March 16, 2026 attached as Schedule "A".
SCHEDULE “A”
Court File No. SC-20-00000319-0000 ONTARIO SUPERIOR COURT OF JUSTICE
RICHMOND HILL SMALL CLAIMS COURT
BETWEEN:
GuoJin Liu
-and-
Plaintiff
RE/MAX Imperial Realty Inc., Brokerage
Defendant
DATE: MARCH 16, 2026
ORDER
1Further to my order dated January 27, 2026, the court has received and considered the submissions from the parties on whether this action should be dismissed on the basis of abuse of process, or by reason of cause of action estoppel or issue estoppel. For the reasons that follow, I find that this action should be dismissed. In making this order, I rely on, without limitation, Rules 12.02(1)(c), 12.02(2), 12.02(3), and 1.03 of the Rules of the Small Claims Court.
BACKGROUND
2This action was commenced on or about February 14, 2020. In the Plaintiff’s Claim, the plaintiff claims that he was a realtor with the defendant brokerage Re/Max Imperial Realty Inc. (“Re/Max”) until March 2017. He claims commissions owed to him by Re/Max in the amount of $20,953.28. During the period from March 2016 to March 2017, the plaintiff claims he was a party to a cooperation agreement (the “Cooperation Agreement”) with other realtors at Re/Max, including Mr. Hongwei Dong (also known as Harvey Dong), the Team Leader. Hongwei Dong is a director and officer of Re/Max. The plaintiff claims that pursuant to this Cooperation Agreement, the team members pooled their resources and commissions, and each member took a percentage as stipulated in the Cooperation Agreement. The plaintiff claims the defendant in this action, namely Re/Max, has withheld his commissions totalling $20,953.28 from 2017.
3The issue is that in May 2018, the plaintiff commenced a prior action in this same Richmond Hill Small Claims (Court File SC-18-00116676) in relation to the Cooperation Agreement (the “First Action”) against Hongwei Dong (also known as Harvey Dong) and another team member for damages owing under the Cooperation Agreement. The plaintiff
claimed in the First Action that he was unlawfully terminated under that agreement in 2017 and had zero income as a result.
4The trial of the First Action occurred over a four day period from September 12, 2023 to January 19, 2024 before Deputy Judge Besunder.
5In the plaintiff’s Exhibit 1 filed in the First Action (page 7), the plaintiff’s own compensation calculation alleged to be owed to him included income compensation for the same $20,953.28 commission payable which is the subject matter of this action. In that same Exhibit 1 (page 10), the plaintiff also included the same Re/Max Agent Commission Payable Review Statement for $20,953.28 commissions allegedly owed to him which is attached to the Plaintiff’s Claim in this action. Even if I accept that this commission statement was not admitted at the trial of the First Action, the income compensation calculation claimed by the plaintiff in the First Action still included the calculation of those commissions to reflect lost income claimed by the plaintiff under the Cooperation Agreement.
6On April 15, 2024, Deputy Judge Besunder dismissed the plaintiff’s claim in the First Action. In so doing, Deputy Judge Besunder made findings of credibility against the plaintiff. Deputy Judge Besunder found the plaintiff’s testimony “to be confusing at times, and contradictory…”. Deputy Judge Besunder did not accept the plaintiff’s version of events, and found that the plaintiff made the decision to leave the team and the brokerage, that the plaintiff failed to leave the team in accordance with the expectations and protocols outlined in the Cooperation Agreement, and that his claim for damages were not proven. Deputy Judge Besunder also dismissed the Defendant’s Claim. No costs were ordered.
7There was no order to consolidate the First Action with this action, or any order to have them heard at the same time. The plaintiff in this action is represented by the same paralegal, and the defendant Re/Max is represented by the same paralegal used by the defendants in the First Action (including Hongwei Dong). The witnesses in this action, and the underlying facts, evidence, documents and subject matter, will overlap with those in the First Action.
FINDINGS BY THIS COURT
8The commissions claimed by the plaintiff in this action fell within the framework of the Cooperation Agreement. The plaintiff admitted in his claim that all team members pooled their commissions under the Cooperation Agreement, and took a percentage based upon the formula in the Cooperation Agreement (including calculations on profit and loss sharing). I find that the issue in this action is a re-litigation of the First Action, or at least an attempt to seek relief arising out of the same relationship and subject matter. Alternatively, this action should have been dealt with as part of the First Action. In the Plaintiff’s Claim in this action which was commenced in early 2020 (well before the trial of the First Action), the plaintiff claimed that Re/Max had no right to withhold the subject commissions. Accordingly, I find that the plaintiff was well aware of his alleged cause of
action (if any) against Re/Max long before the trial of the First Action, and in fact he must have known when he commenced the First Action in May 2018, being more than a year after the plaintiff alleged he was unlawfully terminated under the Cooperation Agreement, that he was not receiving commissions that he says he was entitled to. Accordingly, I do not know why this action and the First Action were not consolidated in 2020 where the liability of Re/Max to pay commissions (if any) could have been considered in the context of the Cooperation Agreement at the same time at the trial of the First Action in 2023, or why Re/Max was not simply added as a defendant to the First Action which could have been done well before the September 2023 trial date of the First Action.
9I would also add here that the plaintiff in this action is claiming for commissions he admits were pooled with all team members under the Cooperation Agreement, and that each member was to take a certain percentage of the pooled commissions in accordance with the provisions of the Cooperation Agreement (including calculations on profit and loss sharing). So the plaintiff is in effect now pursuing commissions directly from Re/Max, in circumstances where he already admitted those commissions were to be pooled and split between the team members in accordance with the provisions of the Cooperation Agreement, and in circumstances where the trial judge in the First Action has already determined no monies were proven to be owed to the plaintiff under the Cooperation Agreement.
10If this action proceeded to trial, it would involve yet another lengthy trial where findings of fact and credibility were already made against the plaintiff in the First Action concerning monies alleged to be owed to him (including compensation for the alleged commissions which are the subject matter of this action). As stated above, the commissions claimed by the plaintiff in this action fell within the framework of the Cooperation Agreement and were tied to it. The plaintiff is now seeking to recover compensation for the commissions from Re/Max through another trial, when the subject matter was already litigated or should have been litigated in the First Action. The plaintiff should have added Re/Max as a defendant in the First Action, or he should have consolidated this action with the First Action so that they could have been heard at the same time and dealt with together.
11The find that this action should be dismissed on the basis of issue of estoppel, and/or on the basis of cause of action estoppel, and/or on the basis of abuse of process, as follows.
ISSUE ESTOPPEL
12As indicated in the recent case of Lahey v. Lahey, [2026] O.J. No. 6 (S.C.):
- For issue estoppel to apply, the following three requirements must be present:
(1) the same question has been decided;
(2) the judicial decision said to give rise to the estoppel is final; and
(3) the parties to the judicial decision or their privies were the same persons as the parties to the proceeding in which the estoppel is raised or their privies.
(see: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, [2001] S.C.J. No.
46, 2001 SCC 44, at para. 25)
72 Different causes of action may have one or more material facts in common. Issue estoppel prevents relitigating the material facts that the cause of action in the prior action embraces (see: Danyluk, at para. 54). The question out of which the estoppel arises must be "fundamental to the decision arrived at" in the prior proceedings.
13Issue estoppel is narrower than cause of action estoppel. See Bryston Capital Corp. GP Ltd. v CIM Bayview Creek Inc., [2023] O.J. 2225 (C.A.).
14For purposes of the required element (3) above for issue estoppel, directors and officers may be considered the privies of their companies. See, for example, EnerNorth Industries Inc. (Re), 2009 ONCA 536, 96 O.R. (3d) 1 (C.A.) at para. 61.
15With respect to the first requirement, I find that the same question has been decided in the First Action (which included the plaintiff’s entitlement to the subject commissions and consideration of same). As stated above, the commissions claimed by the plaintiff in this action fell within the framework of the Cooperation Agreement and were tied to it. The plaintiff is now seeking to recover compensation for the commissions from Re/Max through another trial, when the subject matter was already litigated in the First Action. I am also satisfied that the question out of which the estoppel is said to arise was fundamental to the decision arrived at in the First Action.
16The plaintiff cannot reasonably argue that the First Action and this action are distinct and separate. The plaintiff in this action is claiming for commissions that he admitted were pooled with all team members under the Cooperation Agreement, and that each member was to take a certain percentage of the pooled commissions in accordance with the formula provisions of the Cooperation Agreement (including calculations on profit and loss sharing). So the plaintiff is in effect now pursuing commissions directly from Re/Max, in circumstances where he already admitted those commissions were to be pooled and split between the team members in accordance with the provisions of the Cooperation Agreement, and in circumstances where the trial judge in the First Action has already determined no monies were proven to be owed to the plaintiff under the Cooperation Agreement. The plaintiff’s position that he can now recover commissions from Re/Max that he has already pooled to the team members under the Cooperation Agreement to be dealt with in accordance with the sharing formula therein, is inconsistent with his position that he is now entitled to all of his commissions from Re/Max without any regard to the Cooperation Agreement which he admitted was a “binding contract” in his claim in the First Action.
17With respect to the second requirement, the judgment in the First Action was final.
18With respect to the third requirement, the plaintiff in the First Action is identical to the plaintiff in this action, and the defendant in the first Action (Hongwei Dong) is a privy to Re/Max. Directors and officers may be considered the privies of their companies. See, for example, EnerNorth Industries Inc. (Re), 2009 ONCA 536, 96 O.R. (3d) 1 (C.A.) at para. 61.
19Accordingly, I would dismiss this action on the basis of issue estoppel.
CAUSE OF ACTION ESTOPPEL
20If I am wrong about the elements of issue estoppel being present in this case, then I would still dismiss this action on the basis of cause of action estoppel.
21As also indicated in the case of Lahey v. Lahey noted above:
73 For cause of action estoppel to apply, the basis of the cause of action and the subsequent action either must have been argued or could have been argued in the prior action if the party in question had exercised reasonable diligence (see: The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, at para. 50).
22Issue estoppel is narrower than cause of action estoppel. See Bryston Capital Corp. GP Ltd. v CIM Bayview Creek Inc., [2023] O.J. 2225 (C.A.). As the court stated in the Bryston Capital Corp. GP Ltd. case:
41 The doctrine of res judicata is based on the principle that "[a]n issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner", and that "[d]uplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided": Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, at para. 18.
42 Res judicata has two main branches: cause of action estoppel and issue estoppel. Cause of action estoppel prohibits a litigant from bringing an action against another party when that same cause of action has been determined in earlier proceedings by a court of competent jurisdiction, and also prevents a party from re-litigating a claim that could have been raised in an earlier proceeding: Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company), 2021 ONCA 141, 457 D.L.R. (4th) 530, at para. 31. For cause of action estoppel to operate "it is not enough that the cause of action could have been argued in the prior proceeding. It is also necessary that the cause of action properly belonged to the subject of the prior action and should have been brought forward in that action": Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, 145 O.R. (3d) 759, at para. 50, leave to appeal refused, [2019] S.C.C.A. No. 284.
43 Issue estoppel is narrower than cause of action estoppel…..”
23As indicated in Celik v. TD Canada Trust, [2025] O.J. No. 3230 (S.C.) at para. 30, there are four elements to cause of action estoppel:
a. There is a final decision of a court of competent jurisdiction in a prior action;
b. The parties to the subsequent litigation were parties to, or in privy with, the parties to the prior action;
c. The cause of action in the prior action is not separate and distinct; and
d. The basis of the cause of the action and subsequent action was argued
or could have been argued in the prior action, if the parties had exercised reasonable diligence.
24I find that all of these elements have been met in this case.
25With respect to the first element, the judgment in the First Action was final.
26With respect to the second element, the plaintiff in the First Action is identical to the plaintiff in this action, and the defendant in the first Action (Hongwei Dong) is a privy to Re/Max. Mr. Dong is a director and officer of Re/Max. Directors and officers may be considered the privies of their companies. See, for example, EnerNorth Industries Inc. (Re), 2009 ONCA 536, 96 O.R. (3d) 1 (C.A.) at para. 61.
27With respect to the third element, I find that the cause of action in the First Action is not separate and distinct. I this regard, I repeat my comments and findings above, including (without limitation) those in paragraphs 8, 9, 10, 15 and 16 above.
28With respect to the fourth element, I find that the basis of the cause of the action and subsequent action was argued or could have been argued in the prior action, if the parties had exercised reasonable diligence. In this regard, I repeat all of my comments and findings above. The alleged cause of action in this action properly belonged to the subject of the First Action and should have been brought forward in that action.
29Accordingly, I would dismiss this action on the basis of cause of action estoppel.
ABUSE OF PROCESS
30If I am wrong about the elements of issue estoppel and cause of action estoppel being present in this case, then I would still dismiss this action on the basis of abuse of process.
31As also indicated in the recent case of Lahey v. Lahey noted above:
74 The doctrine of abuse of process is flexible and is separate from res judicata or issue estoppel. Abuse of process can be relied upon to preclude re- litigation even where all of the preconditions of issue estoppel or res
judicata have not been met. Abuse of process may apply where issues could have been determined in the prior proceeding but were not raised by a party. Abuse of process applies to bar litigation that, if it proceeded, would violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice (see: Winter v. Sherman Estate, 2018 ONCA 703 at para. 7).
75 The doctrine of abuse of process engages the inherent power of the court to prevent misuse of its proceedings in a way that would be manifestly unfair to a party or would in some way bring the administration of justice into disrepute (see: Becker v. Walgate, 2025 ONCA 696 at para. 35).
76 An implicit attack on the correctness of the factual basis of a decision is a "collateral attack" and an abuse of the court's processes (see: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 34) Collateral attacks and re-litigation are not appropriate methods of redress since they inordinately tax the adjudicative process while doing nothing to ensure a more trustworthy result (at para. 54).
32As the court noted in Doria v. Warner Bros. Entertainment Inc., [2022] O.J. No. 3537 (S.C.), affirmed [2023] O.J. No. 1989 (C.A.), a second claim can be an abuse of process even if the second claim is against a different defendant.
33It is fundamentally unfair to allow the plaintiff an opportunity to litigate the issue of his alleged entitlement to the subject commissions from Re/Max in yet another lengthy trial when the issue was already litigated or should have litigated in the First Action. The plaintiff commenced this action against Re/Max in 2020 well before the trial of the First Action. The plaintiff should have added Re/Max as a defendant in the First Action, or should have consolidated the First Action with this action so that they could have been heard and dealt with together.
34The commissions that the plaintiff says he is entitled to in this action fell within the framework of the Cooperation Agreement. The plaintiff admitted in his claim that all team members pooled their commissions under the Cooperation Agreement, and took a percentage as stipulated in the Cooperation Agreement.
35Deputy Judge Besunder made adverse findings of credibility against the plaintiff in the First Action and found that the plaintiff’s claim for damages were not proven. The plaintiff is now trying to impeach those findings which is a collateral attack and a re-litigation.
36There was no appeal of the First Action. The witnesses and underlying facts, subject matter, and documents would be the same. There is no indication of new evidence being discovered.
37I repeat and rely on my comments and findings above, which are all applicable to my finding of abuse of process.
38I find that the issue of the subject commissions allegedly owed to the plaintiff by Re/Max were already determined in the First Action, or alternatively should have been raised by the plaintiff in the First Action.
39I find that abuse of process applies to bar this action since, if this action proceeded, it would violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice.
40Accordingly, I would dismiss this action on the basis of abuse of process.
CONCLUSION
41This claim is therefore dismissed for the reasons set out above.
42I do not order any costs against the plaintiff since the defendant Re/Max was equally at fault in failing to take steps to consolidate this action with the First Action so that they could have been dealt with together. This would have saved considerable costs and resources. Re/Max was represented by the same paralegal used by the defendants (including Hongwei Dong) in the First Action; Mr. Dong was a director of Re/Max; and Re/Max referred to the First Action in its defence in this action. All parties were at fault in failing to consolidate this action with the First Action so that they could have been dealt with together. Therefore, each party shall bear their own costs.
MARCH 16, 2026