Executive Summary: Key Legal and Evidentiary Issues

• Service of an original statement of claim, delivered together with an amended claim whose authorizing order was later set aside, was held valid within the six-month service period.
   
• TRREB’s attempt to add Leon d’Ancona as a defendant ran into the presumption in s. 5(2) of the Limitations Act, which TRREB did not rebut with evidence of when it discovered its claim.
   
• Pleaded continuing breaches of contract, and continuing inducement of brokerages to breach their contracts, each started a fresh two-year limitation period.
   
• Claims against a company’s directing mind survived because it was not plain and obvious they were made against him only in that role.
   
• Intrusion upon seclusion was struck because an entity such as TRREB is not an individual and does not experience distress, humiliation or anguish.
   
• Limitations and abuse-of-process objections tied to a parallel Federal Court action did not justify striking the claim.
   

Facts of the case

The Toronto Regional Real Estate Board (TRREB) sued IMS Incorporated, which carries on business as RESTATS, alleging that IMS took information from TRREB’s proprietary and confidential platforms, described as the TRREB MLS® System and TRREB MLS® Content, and used it to provide services to its customers. IMS is alleged to provide online software to real estate professionals and brokerages. Leon d’Ancona is its principal and directing mind. TRREB’s original statement of claim was issued in February 2025; the decision gives the issue date as February 14, 2025 in one paragraph and February 4, 2025 in another.

On July 15, 2025, TRREB obtained an order, on a motion brought without notice, allowing it to amend its claim to add Mr. d’Ancona as a defendant and plead breach of contract and inducing breach of contract. On August 6, 2025, both the original claim and the first amended claim were left with Mehnaz Raza, a person who appeared to be in control and management of IMS’s Toronto place of business. IMS and Mr. d’Ancona then had the July order set aside by order dated December 23, 2025. The decision records a finding that TRREB, when it moved without notice, failed to make full and fair disclosure of all material facts as required by rule 39.01(6) of the Rules of Civil Procedure.

TRREB brought a new motion for leave to amend, including to add Mr. d’Ancona, and sought in the alternative an order validating service or extending the time for service. IMS moved to strike the original claim under rules 21.01(1)(b), 21.01(3)(d) and 25.11, arguing it disclosed no reasonable cause of action and was an abuse of process. Both motions were heard together on May 1, 2026, before the Ontario Superior Court of Justice.

Related litigation formed part of the backdrop. TRREB had sued IMS and Mr. d’Ancona in the Federal Court in an action commenced August 10, 2020. An order dated April 7, 2021 in that action struck the claims against Mr. d’Ancona, and also struck TRREB’s claims for breach of confidentiality and other contract or tort claims for lack of jurisdiction, with leave to amend. A copyright claim was also struck in that action but was restored on appeal.

Policy and legislative provisions at issue

Under rule 26.01, the court shall grant leave to amend a pleading at any stage on just terms unless prejudice would result that could not be compensated for by costs or an adjournment. Rule 5.04(2) applies the same test to adding a party. Rule 16.02(1) permits personal service on a corporation by leaving the document with a person at its place of business who appears to be in control or management of it, and rule 16.08 allows the court to validate service.

On limitations, IMS and Mr. d’Ancona relied on the basic two-year limitation period and s. 5(1)(a) of the Limitations Act, which defines when a claim is discovered. Section 5(2) presumes a claimant knew of those matters on the day the act or omission took place, unless the contrary is proved. Section 21(1) bars pursuing a claim by adding a person as a party to an existing proceeding once the limitation period against that person has expired.

TRREB’s proposed contract claims rested on several agreements. It pleaded that Mr. d’Ancona signed at least one Brokerage Administrator Application (BAA Agreement), under which he agreed to use his access credentials only for administering the brokerage. Part D of that agreement contains the Authorized User Agreement (AUA), including section 4, “Restrictions on Use,” and section 10, “Conditions and Restrictions on Use,” of the MLS database. TRREB also pleaded that he agreed to be bound by the AUA on several occasions, including on February 12, 2024 and February 21, 2025, when he accepted the terms and conditions of TRREB’s REALM platform.

Reasoning and analysis

IMS and Mr. d’Ancona argued that the first amended claim superseded the original claim, leaving the original without legal force when the two were delivered together, and that the six-month service period had since expired. No authority directly on point was cited. The court rejected an interpretation of the service rules that would leave a period in which a plaintiff could not serve any originating process. On August 6, 2025, the original claim was not a nullity but a document that could become the operative statement of claim, and IMS would have known both the substance of the claims and that the original could become operative if the amending order were set aside. Service was therefore valid, and the court said it would otherwise have validated it under rule 16.08. Validating service would not amount to approving TRREB’s without-notice motion: there was no finding that warranted disapproval, and TRREB had simply taken the risk that the order might be set aside.

The proposed claims against Mr. d’Ancona faced a limitations problem. TRREB pleaded that it had “recently” discovered his improper access to the MLS® System, while its particulars stated he had been accessing the system since at least 2012. Applying Grant Thornton LLP v. New Brunswick, 2021 SCC 31, Morrison v. Barzo, 2018 ONCA 979, and C & C Nestco Corporation v. Starr, 2025 ONCA 792, the court found that TRREB was presumed to have known of the claim in 2012 or earlier. Its only evidence was a law clerk’s affidavit attaching documents, and the clerk did not attest to the truth of the pleaded discovery allegation. The presumption was not rebutted.

That finding did not end the matter. Relying on Pickering Square Inc. v. Trillium College Inc., 2016 ONCA 179, TRREB argued its contract claims involved continuing breaches, each of which starts a new two-year period. Mr. d’Ancona countered that the pleading did not identify the contracts, terms or timing needed to characterize the breaches. The court disagreed, finding the breach of contract claim pleaded with sufficient particulars of the contracts, privity, the terms breached, the conduct and the resulting damages. Read generously, the pleading also extended to other BAA Agreements he allegedly executed. The inducing breach of contract claim, centred on allegations that he induced at least one brokerage to designate him as an “administrator” so he could obtain credentials and take MLS® content for IMS, was also found tenable. Both claims, as pleaded, involved continuing conduct that restarted the limitation clock.

Mr. d’Ancona further argued that he had acted only as IMS’s directing mind, relying on ScotiaMcLeod Inc. v. Peoples Jewellers Ltd. and ADGA Systems International Ltd. v. Valcom Ltd. The court noted that the breach of contract claims were made against him personally and not against IMS. TRREB acknowledged leaving “stray references” to “the Defendants” in the draft, which the court described as a clear error for the breach of contract claim. The inducement claim alleged he posed as a brokerage employee rather than as a representative of IMS. For the breach of confidence, intrusion upon seclusion and interference with economic relations claims, TRREB did not plead that he acted only as directing mind or in good faith within the scope of his authority. It was not plain and obvious that the claims were made against him only in his role as IMS’s directing mind.

Turning to IMS’s motion to strike, the breach of confidence claim survived. The original claim described the information in the MLS® System and content in detail, and TRREB’s particulars gave examples such as information on offers, conditional sales, sales and sellers’ personal information. Whether that information was confidential and misused is to be determined in the action.

Intrusion upon seclusion fared differently. Citing Jones v. Tsige, 2012 ONCA 32, the court read the tort as available to individuals rather than corporations. Damage to TRREB’s reputation and to its members’ trust did not mean a reasonable person would regard the intrusion as highly offensive, causing distress, humiliation or anguish, which an entity such as TRREB does not experience. Because it was impossible for TRREB to properly plead this claim, it was struck without leave to amend.

The interference with economic relations claim stood. Under A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12, the tort requires the intentional infliction of economic injury on the plaintiff through unlawful means used against a third party. TRREB pleaded facts that would support a plausible intrusion upon seclusion claim by its members against IMS, along with resulting loss to TRREB.

IMS’s limitations argument against the original claim was rejected as improperly brought. Following Clark v. Ontario (Attorney General), 2019 ONCA 311, a limitations argument is a defence that must be pleaded in a statement of defence. The abuse-of-process argument also failed: the non-copyright claims had been struck from the Federal Court action for lack of jurisdiction, and the Superior Court has jurisdiction over the claims made in this action.

Ruling and overall outcome

Both motions were allowed in part. TRREB was granted leave to amend its claim in the form of the proposed amended claim, including adding Mr. d’Ancona as a defendant, except for claims against him founded on acts or omissions occurring more than two years before its motion to amend was brought. IMS’s motion succeeded only in striking the intrusion upon seclusion claim for disclosing no reasonable cause of action, and was otherwise dismissed, leaving TRREB’s remaining claims to proceed. Counsel were asked to submit an approved form of order. No damages or other monetary amount was awarded, and costs were not fixed; if the parties cannot agree, they may file written submissions on a timetable set by counsel and approved by the court, so no amount can be determined from this decision.