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Criminal - Contraventions. Toronto Regional Real Estate Board v. Sunderland [reliance on CCC inchoate offences as Competition Act cause of action]
In Toronto Regional Real Estate Board v. Sunderland (Fed CA, 2026) the Federal Court of Appeal dismissed appeals, these brought against the granting of motions to strike the claim in a proposed class action on grounds that they "not disclose a reasonable cause of action" - here brought "under the Competition Act, R.S.C. 1985, c. C-34 and relat[ing] to the commissions paid for buyer real estate brokerage services."
Here the court considers CCC s.21-22 "aiding, abetting and counselling" provisions - which may have application to non-criminal federal offence provisions (including the Competition Act) by virtue of the federal Interpretation Act [IA s.34], this where the plaintiff pled Competition Act s.45 ['Offences in Relation to Competition - Conspiracies, agreements or arrangements between competitors'] in it's "agrees or arranges" forms:B. Sections 21 and 22 of the Criminal Code
[138] The second set of issues concerns sections 21 and 22 of the Criminal Code, which provide in relevant part:"Parties to offence"
"Participants à une infraction"
"21. (1) Every one is a party to an offence who"
" "
"21. ""(1) Participent à une infraction :"
"(a) actually commits it;"
"a) quiconque la commet réellement;"
"(b) does or omits to do anything for the purpose of aiding any person to commit it; or"
" "
"b) quiconque accomplit ou omet d’accomplir quelque chose en vue d’aider quelqu’un à la commettre;"
"(c) abets any person in committing it."
"c) quiconque encourage quelqu’un à la commettre."
"[…]"
"[…]"
"Person counselling offence"
"Personne qui conseille à une autre de commettre une infraction"
"22. (1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled."
" "
"22. ""(1) Lorsqu’une personne conseille à une autre personne de participer à une infraction et que cette dernière y participe subséquemment, la personne qui a conseillé participe à cette infraction, même si l’infraction a été commise d’une manière différente de celle qui avait été conseillée."
"(2) Every one who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling."
" "
"(2) Quiconque conseille à une autre personne de participer à une infraction participe à chaque infraction que l’autre commet en conséquence du conseil et qui, d’après ce que savait ou aurait dû savoir celui qui a conseillé, était susceptible d’être commise en conséquence du conseil."
"(3) For the purposes of this Act, counsel includes procure, solicit or incite."
"(3) Pour l’application de la présente loi, conseiller s’entend d’amener et d’inciter, et conseil s’entend de l’encouragement visant à amener ou à inciter." (1) Application of Sections 21 and 22 of the Criminal Code to Subsection 45(1) of the Competition Act
[139] The plaintiff claims damages against the Brokerage Defendants, the Association Defendants and the Franchisor Defendants for aiding, abetting and counselling a subsection 45(1) offence.
[140] Pursuant to subsection 21(1) of the Criminal Code, everyone is a party to an offence who commits the offence directly or aids or abets another person to commit the offence. Subsection 22(1) provides that if someone counsels a person to commit an offence, and the counselled person becomes a party to the offence, the counsellor is also a party to the offence. Subsection 464(a) of the Criminal Code further provides that if a person counsels another person to commit an offence, and the offence is not committed, the counsellor is guilty of an offence and liable to the same punishment to which a person who attempts to commit the offence is liable.
[141] The motion judge concluded that it was not plain and obvious that subsections 21(1) and 22(1) did not apply to an offence under subsection 45(1) of the Competition Act: FC Reasons at paras. 140-47, 170-77. The motion judge grounded his analysis in subsection 34(2) of the Interpretation Act, which makes the provisions of the Criminal Code relating to indictable offences applicable to indictable offences created by other enactments, except to the extent the enactment otherwise provides: R. v. Del Mastro, 2017 ONCA 711 at para. 98 [Del Mastro], leave to appeal ref’d 2018 CanLII 28108; R. v. Campbell (1964), 1964 CanLII 612 (ON CA), 46 D.L.R. (2d) 83 at pp. 102, 114, 1964 CanLII 612 (Ont. C.A.) [Campbell], aff’d 1966 CanLII 519 (S.C.C.). The motion judge found no express language in the Competition Act ousting subsection 34(2) and concluded that it was not plain or obvious that it was ousted by implication.
[142] Case law supports the proposition that sections 21 and 22 of the Criminal Code apply to an offence under section 45 of the Competition Act. Party liability has been applied in criminal prosecutions under the Competition Act—including the former version of section 45—and under the predecessor Criminal Code provision prohibiting conspiracies in restraint of trade: see, e.g., Campbell; R. v. Mitsubishi Corp., 2005 CanLII 21873 (Ont. S.C.J.); Howard Smith Paper Mills Ltd. et al. v. The Queen, 1957 CanLII 11 (SCC), [1957] S.C.R. 403, aff’g [1954] 4 D.L.R. 161 at p. 259, 1954 CanLII 95 (Ont. H.C.J.). Damages for conduct amounting to aiding or abetting violations of section 45 of the Competition Act were claimed in Coburn and Watson’s Metropolitan Home v. Bank of America Corporation, 2016 BCSC 2021 at paras. 48-55, aff’d on this point 2017 BCCA 202 at paras. 38-41, leave to appeal ref’d 2018 CanLII 4678. However, because the courts struck out the party liability claims as doomed to fail on other grounds, the application of sections 21 and 22 of the Criminal Code to the amended version of section 45 of the Competition Act was not squarely decided.
[143] On appeal, the defendants do not dispute that subsection 34(2) of the Interpretation Act makes sections 21 and 22 of the Criminal Code applicable to an offence under subsection 45(1) of the Competition Act. However, they say there is a limitation which the motion judge failed to recognize. They contend that because, as a result of the 2010 amendments, the offence under subsection 45(1) is limited to persons who agree with their competitors, holding non-competitors liable for a breach of subsection 45(1) by way of section 21 or 22 of the Criminal Code offends Parliament’s intent. They claim that the motion judge allowed the Crown to do what the Supreme Court cautioned against in R. v. J. F., 2013 SCC 12 at para. 61 [J.F.]—using subsections 21(1) and 22(1) to "“achieve through the back door what principle has denied from the front”".
[144] According to the defendants, for a person to be liable as an aider, abettor or counsellor of an offence, the person must have the necessary characteristics to complete the offence as a principal—here, a "“competitor”". On this theory, the Association Defendants and Franchisor Defendants are excluded from party liability because they are not competitors for the supply of buyer brokerage services.
[145] We find no error in the motion judge’s conclusion that it is not plain or obvious that liability under sections 21 and 22 of the Criminal Code does not apply to a subsection 45(1) offence or that it is limited to competitors.
[146] Contrary to the defendants’ submission, there is no rule that a person must be capable of completing the offence as a principal to be liable as an aider, abettor or counsellor. As addressed further below, aiding, abetting and counselling each has mental and physical elements distinct from the elements of the underlying principal offence: see R. v. Cowan, 2021 SCC 45 at paras. 29-36 [Cowan]. The purpose of sections 21 and 22 of the Criminal Code is to collapse the distinction between principal and party liability, making it a "“matter of indifference”" whether a person commits an offence as a principal or as a party, and deeming the party liable under the principal offence if they satisfy the actus reus and mens rea of aiding, abetting or counselling: R. v. Thatcher, 1987 CanLII 53 (SCC), [1987] 1 S.C.R. 652 at pp. 690-91 [Thatcher], quoting Chow Bew v. The Queen, 1955 CanLII 47 (SCC), [1956] S.C.R. 124 at pp. 126-27 (per Locke J.); R. v. Pickton, 2010 SCC 32 at para. 51.
[147] Accordingly, courts have held parties liable for aiding, abetting or counselling even where the principal offence was defined by membership in a specific group of which the party was not a member: see, e.g., Del Mastro at paras. 81-101; R. v. ALS Fisheries Ltd., 2022 NSPC 30 at para. 214; R. v. Pilarinos, 2002 BCSC 452 at para. 98; Bergstrom v. The Queen, 1981 CanLII 188 (SCC), [1981] 1 S.C.R. 539 at pp. 550-51. For example, to aid, abet or counsel an offence under section 215 of the Criminal Code—relating to a failure by certain identified persons to provide the necessities of life—the aider, abettor or counsellor could be someone other than a parent, foster parent, guardian, or spouse of the neglected person: see R. v. Elder (1925), 35 Man. R. 161 at pp. 169-72, 1925 CanLII 293 (Man. C.A.) and the cases cited therein.
[148] The defendants submit that these cases are distinguishable because none arose under subsection 45(1) of the Competition Act, but this is beside the point. They support the legal principle that an aider, abettor or counsellor need not have the characteristics necessary for liability as a principal offender. The motion judge’s conclusion that the allegation of non-competitor party liability for a subsection 45(1) offence was not doomed to fail, was consistent with these cases.
[149] In addition, we reject the defendants’ submission that applying party liability to non-competitors erodes the distinction between liability as the principal in the commission of an offence and as a party to it. A conspiracy is an agreement to achieve an unlawful purpose or to achieve a lawful purpose by unlawful means: The Queen v. O’Brien, 1954 CanLII 42 (SCC), [1954] S.C.R. 666 at p. 668; United States of America v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R 462 at para. 86. In J.F., the Supreme Court of Canada held that party liability for conspiracy was limited to conduct that encourages or assists formation of the illegal agreement or the addition of new entrants to an existing agreement: J.F. at para. 63.
[150] The motion judge applied this interpretation of sections 21 and 22 to subsection 45(1) of the Competition Act. A distinction persists between the formation of an illegal arrangement by the principals, who are competitors; and aiding, abetting, or counselling the formation of the same arrangement by competitors or non-competitors, who satisfy the distinct mental and physical elements of those offences. J.F. stands for this proposition as do other cases: see, e.g., R. v. Nguyen, 2016 ONCA 182 [Nguyen], leave to appeal ref’d 2016 CanLII 58419; R. v. Trieu, 2008 ABCA 143.
[151] For these reasons, we conclude that it is not plain and obvious that sections 21 and 22 of the Criminal Code could not apply to an offence under subsection 45(1) of the Competition Act, including for non-competitors. Indeed, there is support for the contrary view that is, at a minimum, credible. The motion judge did not err in declining to strike the aiding, abetting and counselling claims against the Association Defendants and the Franchisor Defendants on this basis.
(2) Aiding, Abetting and Counselling: General Principles
[152] Before turning to the claims pleaded by Mr. Sunderland, it is useful to summarize the actus reus and mens rea of aiding, abetting and counselling.
[153] As discussed above, the actus reus and mens rea of aiding, abetting and counselling are distinct from the elements of the underlying substantive offence which the party is deemed to have committed.
[154] The actus reus of aiding or abetting is to do something (or omit to do something one is under a legal duty to do) which assists or encourages the perpetrator to commit the offence: R. v. Briscoe, 2010 SCC 13 at para. 14 [Briscoe]; Cowan at para. 32. The actus reus of counselling is the "“deliberate encouragement or active inducement of the commission of a criminal offence”": R. v. Hamilton, 2005 SCC 47 at para. 29 [Hamilton]; Cowan at para. 35.
[155] The mens rea of aiding or abetting has two components. First, the aider or abettor must have intended to assist the principal in the commission of the offence. Second, the aider or abettor must have known that the perpetrator intended to commit the crime or been wilfully blind to this knowledge: Briscoe at paras. 15-21; R. v. Maciel, 2007 ONCA 196 at paras. 88-89, leave to appeal ref’d 2007 CanLII 37213; R. v. Helsdon, 2007 ONCA 54 [Helsdon] at para. 37; M.R. at paras. 39-40. The mens rea of counselling will be satisfied where the counsellor intended that the offence being counselled would be committed, or where the counsellor was aware of the risk that the offence being counselled was likely to be committed as a result of the counsellor’s conduct: Hamilton at para. 29; Cowan at para. 35.
[156] Even where the mens rea of the underlying principal offence is assessed objectively, the mens rea for party liability is subjective: R. v. M.R., 2011 ONCA 190 at para. 40 [M.R.]; Helsdon at paras. 24-35.
[157] It is unnecessary to prove that the aider, abettor or counsellor knew that the conduct of the principal was a criminal offence at law, consistent with the general rule that ignorance of the law is not a defence: R. v. F.W. Woolworth Co. Ltd. (1974), 18 C.C.C. (2d) 24 at p. 32, 1974 CanLII 707 (Ont. C.A.); Morris Manning & Peter Sankoff, Manning, Mewett & Sankoff: Criminal Law, 5th ed. (Toronto: LexisNexis, 2015) at paras. 6.68, 7.99. All that is required is knowledge of the circumstances or facts that constitute the unlawful act being aided, abetted or counselled: Helsdon at para. 37; M.R. at paras. 39-40.
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[166] The motion judge correctly cited the principle in J.F. that a person may be liable as an aider or abettor to conspiracy for assisting or encouraging the formation of the conspiracy or encouraging or assisting new members to join the conspiracy: FC Reasons at para. 143, citing J.F. at paras. 52-54. Similarly, for counselling, liability may arise from encouraging or inducing the formation or expansion of the conspiracy: FC Reasons at para. 145, citing Hamilton at para. 29; Manning & Sankoff at para. 7.83; R. v. Bérubé (1999), 139 C.C.C. (3d) 304 at pp. 312, 1999 CanLII 13241 (Que. C.A.), leave to appeal ref’d [2000] 1 S.C.R. vii.
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[182] To aid or abet an offence, there must be a "“connection”" or "“factual nexus”" between the aider or abettor’s act or omission and the commission of the principal offence. However, it is not necessary to prove that the aider or abettor’s act or omission caused the principal to commit the offence: R. v. Dooley, 2009 ONCA 910 at para. 120 [Dooley], leave to appeal ref’d 2010 CanLII 56575; R. v. Ouellette, 2022 ABCA 40 at para. 137 [Ouellette], leave to appeal ref’d 2023 CanLII 49302; R. v. McRae, 2016 BCCA 19 at para. 52. For example, as the Court of Appeal for Ontario explained in Dooley, it is no defence to a charge of abetting homicide to claim that "“the perpetrator would have killed the individual irrespective of the encouragement”". But "“an individual who shouts encouragement to another to commit a crime from a distance where the other person could not possibly hear the shouts of encouragement”" would have no connection to the offence and could not be an abettor: Dooley at paras. 120-21.
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[185] The motion judge referred to Hamilton, where the Supreme Court of Canada determined that the actus reus of counselling required communications by the accused that "“""actively induce or"" advocate—and do not merely ""describe—the commission of an offence”": Hamilton at para. 15 (emphasis in original); FC Reasons at para. 145. Based on this definition, the motion judge concluded that the actus reus of counselling required something more than abetting—"“""deliberately encouraging or ""actively inducing the commission of a criminal offence”": FC Reasons at para. 157 (emphasis in original). In the motion judge’s view, requiring the Franchisee Brokerages to comply with TRREB and CREA rules pursuant to the terms of a franchise agreement did not satisfy this requirement.
[186] In our view, the Federal Court made an extricable error of law by construing the actus reus of counselling as significantly different than the actus reus of aiding and abetting. Communication which "“incites”" or "“instigates”"—meaning promotes, advocates or encourages—the commission of the underlying principal offence can sustain charges of abetting or counselling: see Briscoe at para. 14, quoting R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] 2 S.C.R. 825 at para. 26 (per Cory J., concurring); Hamilton at para. 22; Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para. 64. See also E.G. Ewaschuk, Criminal Pleadings and Practice, 3rd ed. (Toronto: Thomson Reuters, 1988) (loose-leaf updated May 2026), § 15:57; Manning & Sankoff at para. 7.96.
[187] While there are conceptual differences between aiding, abetting and counselling, for the purposes of this motion to strike, having concluded that the actus reus of abetting was adequately pleaded, it was not open to the motion judge to find that the actus reus of counselling was inadequately pleaded. According to the pleadings, the Franchisor Defendants required the Franchisee Brokerages to sign on to the Buyer Brokerage Commission Rule, becoming members of the alleged conspiracy. In our view, this was sufficient to support the claim of counselling; that is, viewed objectively, the Franchisor Defendants actively encouraged the commission of the alleged subsection 45(1) offence: Mugesera at para. 64; Hamilton at paras. 34-37.
[188] Further, we believe that the motion judge erred in law by failing to require that the plaintiff plead the commission of an underlying offence by the Franchisee Brokerages (and salespersons) to establish the actus reus for aiding and abetting. This issue was not raised by a party or addressed by the motion judge.
[189] For aiding or abetting to be completed, the underlying principal offence must also have been completed: J.F. at para. 24; Nguyen at paras. 48-50. (However, as noted above, the same is not necessarily true of counselling, although the plaintiff did not rely on this principle: see Criminal Code, s. 464; Hamilton at para. 14.)
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