Legal filings in a civil court case related to the controversial Ontario Realtor Wellness Program insurance plan allege one of the country’s largest real estate boards is attempting to use litigation to silence protests.
“TRREB [Toronto Regional Real Estate Board] now brings this lawsuit to silence dissent and to intimidate the defendants and other realtors in Ontario. In reality, this claim is a political dispute disguised as a tort claim, and bears all the hallmarks of strategic litigation against public participation (SLAPP),” reads a March 29 statement of defence filed by lawyers for Sandra Mary Maher and Penny Dutkowski, two realtors who opposed the imposition of the ORWP plan.
In June, 2023, the Ontario Real Estate Association passed changes to its insurance and benefits plan that would force the association’s almost 100,000 realtors to pay increased dues to cover so-called “wellness” programs. The move sparked outrage among some realtors.
TRREB has a history of high-profile court battles with its own members over business practices and access to its systems. Some of those fights have escalated into complaints and litigation with the Competition Bureau of Canada.
TRREB’s filing says the two women engaged in a “civil conspiracy” to among other things, obtain information about its member realtors for “nefarious purposes, including to impersonate TRREB members.”
Neither party provided any evidence in their initial filings and the allegations have not been tested in court.
“Out of respect for the legal process, we will not be commenting considering that the matter is before the courts,” TRREB CEO John DiMichele said in a statement.
“Our clients feel like they’ve been unfairly targeted by this and they’ve got to defend themselves,” said Robert Stellick, a lawyer with Adair Goldblatt Bieber LLP who is representing the two women.
The case revolves around Ms. Maher and Ms. Dutkowski’s connection to a private Facebook page where thousands of Ontario realtors gathered to vent frustration and plot resistance to the mandatory wellness program.
Several regional boards reversed their support for the plan, though TRREB (the largest board in the country with 70,000 members, and 49 per cent of the votes at OREA) continued to back the ORWP. On Nov. 29, a special OREA meeting was held and the plan survived a second vote by a narrower margin on (73 votes to 59 with 29 abstaining) and went into effect as of Jan. 1.
Ms. Maher and Ms. Dutkowski acknowledge they attempted to organize realtors to try to reverse the plan. Their statement of defence says they received “cease and desist” letters from TRREB lawyers in late 2023 that accused them of “a litany of purported misconduct, including breaches of [Canada’s anti-spam legislation] and the Occupational Health and Safety Amendment Act.”
Amid the allegations and the controversy over ORWP, Ms. Dutowski resigned from her brokerage and abandoned her membership in TRREB and OREA in January.
On Feb. 8, TRREB initiated the action against the two women and a third realtor, Stephen Arsenault, as well as two un-named defendants referred to as “Jane Doe” and “John Doe.” The claim seeks millions of dollars in damages for an alleged “civil conspiracy, wrongful interference with economic relations, tortious interference, and wrongful interference with contractual relations.” It also seeks a permanent injunction against the parties barring them from “making or distributing any false and/or misleading public statements regarding TRREB, its officers and directors” and a demand that they turn over “the names and identities of all other persons, and entities, involved in the activities and conduct related to TRREB and TRREB’s members.” There are also demands for damages of $100,000 for each “violation” of TRREB copyright or trademarks, for the alleged use of TRREB logos and other data.
“The defendants deny that the plaintiff has suffered any damages as claimed, or at all,” the defence statement reads.
Mr. Stellick said he intends to file an anti-SLAPP motion seeking to dismiss the case as soon as is practical, acknowledging that there are court-access issues in Ontario that mean they may not get a hearing for months. These motions, introduced by amendments in 2015 to the Courts of Justice Act, provide an avenue for defendants to stop vexatious lawsuits that seek to use the costly court system to punish criticism and are supposed to receive a ruling within 60 days of being filed.
“One of the reasons the legislation was put in place was so that people aren’t pressured or forced to stop engaging in important expression on matters of public interest because of the threat of litigation,” said Mr. Stellick. He said his clients feel “bullied” by TRREB. “They feel strongly they haven’t done anything wrong and tried to exercise their rights as part of the organization.”
A 2022 study by Hilary A. N. Young, a professor in the University of New Brunswick’s Faculty of Law, warned that litigators have seen a troubling trend where long delays and high costs have distorted the intent of the anti-SLAPP legislation and the law perversely becomes part of the tool box of an aggressive litigant.
“This would seem to engage anti-SLAPP law,” said Ms. Young, who stressed she wasn’t offering an opinion on the outcome of a motion against the TRREB claims. “I would expect a court to recognize the defendants’ right to speak publicly in opposition to a board policy. That right is not absolute, however, and if the defendants engaged in spreading deliberate lies or used improper means to make their point then the plaintiff’s rights might prevail.”
Shane Dingman