By Kathy Bevan
Lawrence Dale
The Toronto Real Estate Board (TREB) has lost a motion against lawyer Lawrence Dale and has been ordered to pay Dale $3,000 in costs within 30 days.
TREB’s motion was first brought before Justice David Brown of Ontario’s Superior Court of Justice in June 2009, when a trial involving Ontario broker Fraser Beach versus TREB was just beginning. Dale was one of the lawyers representing Beach, who was seeking restoration of his access to TREB’s MLS database. TREB suspended Beach’s MLS access after learning that Beach, without TREB’s authorization, had downloaded thousands of TREB listings from the board’s MLS database onto his discount brokerage’s public website, realestateplus.ca. In effect, TREB argued, this had given consumers access to the more extensive listing data that the board only made available to its membership.
The motion TREB brought against Dale claimed that, while representing Beach, Dale had breached the “deemed undertaking” rule (Rule 30.1). Specifically, TREB alleged that Dale had provided the Competition Bureau with transcripts of the examination for discovery of Don Richardson, TREB’s CEO.
Justice Brown dismissed Beach’s lawsuit in December 2009, agreeing with TREB’s argument that the broker had breached TREB’s Authorized User Agreement. At that time, the judge also announced that he was deferring dealing with TREB’s motion against Dale until a later date.
On June 14 of this year, Justice Brown announced his decision on the outstanding motion, ruling against TREB and awarding Dale $3,000 in costs. In advance of the judge’s decision, Dale’s legal counsel had asked the court for an award of $11,500; TREB’s legal counsel had submitted that an award of $10,000 would be more appropriate. In his ruling, Justice Brown concluded that “an award of costs in the amount of $3,000 would be a reasonable one in the circumstances”, based on, among other reasons, the fact that the motion took half a day to argue, no pre-hearing examinations occurred; and the motion involved a “narrow factual and legal issue”.
While the contents of an email from Dale’s counsel to one of TREB’s lawyers indicated that transcripts had been provided to the Competition Bureau, Justice Brown said the person who actually provided the transcripts to the bureau had not been identified.
“While I have my suspicions about who, on the Beach side of the litigation, sent the transcripts to the Competition Bureau, suspicion is not good enough,” Justice Brown said in his decision. “Accordingly, TREB has not established that Mr. Dale was the source of the transcripts, so its motion against him must fail.”
Dale and TREB have not seen the last of each other in a courtroom – three legal cases involving those two parties, as well as others, are pending trial dates. One is the appeal Dale launched against Justice Brown’s December 2009 ruling in Beach v TREB. The second is a Breach of Settlement Action for $100 million Dale served in October 2009 against TREB, CREA and a number of related association and board officers. This second lawsuit is related to a settlement agreement originally reached in 2003 involving Realtysellers – the Toronto-based discount brokerage, now dormant, that Dale co-founded with Stephen Moranis.
The third is a $750 million lawsuit Dale served in April 2010 against TREB officials and members, as well as a number of other individuals, including senior executives from Royal LePage and Re/Max Ontario-Atlantic Canada. This action alleges breach of contract and actions contrary to the Competition Act.
