Cusnir v. Taylor, 2026 ONCA 470
The Ontario Court of Appeal recently reaffirmed one of the most fundamental principles of Ontario real estate law:
- a person who is not properly registered cannot recover commission for a trade in real estate.
In Cusnir v. Taylor, 2026 ONCA 470, the Court also clarified the limits of the doctrine of res judicata (issues that have already been decided by a Court) and reminded litigants that self-represented parties are not entitled to recover lawyer-level costs simply because they devote substantial time to their own cases.
Although the facts of the case were unusual, the legal principles have practical significance for brokers, salespersons and anyone claiming entitlement to commission.
The Dispute
The plaintiff alleged that she was entitled to commission arising from the sale of several properties, including a farm property and a commercial property. She also sued the brokerage’s professional liability insurer directly.
However, there was an important history.
An earlier Small Claims Court proceeding had already determined that the plaintiff was not registered at the time of the farm transaction. Because Ontario’s real estate legislation prohibits payment or recovery of commission by an unregistered person for a trade in real estate, the Small Claims Court dismissed the claim. That decision was never appealed.
The plaintiff later commenced a Superior Court action advancing similar claims.
Registration Is Not a Technicality
The Court of Appeal confirmed that registration requirements are mandatory.
Where legislation requires registration before a person may receive remuneration for a trade in real estate, Courts cannot simply overlook non-compliance because someone introduced the parties, performed valuable work, or believes they deserve compensation.
Equally important, the Court confirmed that alternative legal theories such as unjust enrichment or quantum meruit cannot be used to avoid the statutory prohibition. If the legislation says commission cannot be recovered, changing the legal label attached to the claim does not change the result.
For Ontario registrants, this serves as an important reminder that commission disputes begin with one fundamental question:
- Was the claimant legally entitled to receive remuneration under the legislation?
If the answer is no, the analysis often ends there.
Not Every Claim Is Barred by Res Judicata
The Brokerage argued that the plaintiff’s entire action had already been decided.
The Court of Appeal agreed only in part.
The earlier Small Claims decision dealt exclusively with the farm property. In fact, the Deputy Judge had expressly stated that the commercial property claim was not before the Court and would require a separate lawsuit if the plaintiff wished to pursue it.
That distinction proved critical.
Because the commercial property claim had never actually been adjudicated, it was not barred by the doctrine of res judicata. The Court therefore granted the plaintiff permission to file an amended claim limited to the commercial property and any other transactions that had not previously been determined.
The decision illustrates an important procedural principle: a previous judgment prevents parties from relitigating issues that have already been decided, but it does not prevent litigation of issues that were expressly left unresolved.
Direct Claims Against the Brokerage’s Insurer
The plaintiff also attempted to sue the brokerage’s professional liability insurer directly.
The Court dismissed that claim.
Professional liability insurance protects the insured brokerage and its registrants. It does not generally create a direct right of action in favour of third parties. Ontario’s Insurance Act permits direct actions against insurers only in limited statutory circumstances, such as where there is an unsatisfied judgment against the insured or specific categories of insured liability.
Neither circumstance existed in this case.
As a result, there was no viable cause of action against the insurer.
Costs for Self-Represented Litigants
One of the more interesting aspects of the decision involved costs.
The self-represented plaintiff sought approximately $160,000 in legal costs calculated at lawyer’s hourly rates.
The Court rejected the request as entirely unreasonable.
Ontario Courts have consistently held that self-represented litigants are not entitled to recover legal fees merely because they spend time preparing and arguing their own case. To recover significant costs, they must demonstrate that they performed work ordinarily done by counsel and that they actually suffered an economic loss by foregoing remunerative employment.
Absent such evidence, costs awards to self-represented litigants will generally be modest.
Considerations for Ontario Real Estate Professionals
This decision offers several practical reminders for the real estate industry:
- Registration is a statutory prerequisite to recovering commission.
- Courts will not permit alternative legal theories to circumvent legislative restrictions on remuneration.
- Before relying on res judicata, determine precisely what issues were actually decided in the earlier proceeding.
- Professional liability insurers generally cannot be sued directly unless the statutory requirements have been satisfied.
- Proper documentation and clearly drafted commission agreements remain essential in avoiding disputes.
Comment
While Cusnir v. Taylor involved an unusual procedural history, the Court of Appeal reaffirmed several well-established principles that continue to govern commission disputes in Ontario.
For registrants, perhaps the most important lesson is that entitlement to commission begins with compliance with the legislation. Registration is not merely an administrative requirement, it is the legal foundation upon which the right to receive remuneration is built.
Understanding those statutory requirements before a transaction begins remains one of the best ways to avoid costly litigation later.
Brian Madigan LL.B., Broker
www.OntarioRealEstateSource.com