COURT FILE NO.: 386/06
DATE: 20080604
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, KITELEY AND LOW JJ.
B E T W E E N:
PAUL ANTHONY LONERGAN Applicant (Appellant)
- and -
LICENCE APPEAL TRIBUNAL and REGISTRAR, REAL ESTATE AND BUSINESS BROKERS ACT Respondents (Respondents in Appeal)
Christopher James Sparling, for the Appellant Christopher D. Bredt and Margot Finley, for the Respondent, Registrar, Real Estate and Business Brokers Act
HEARD at Toronto: June 4, 2008
JENNINGS J.: (Orally)
[1] This is an appeal from a decision of the Licence Appeal Tribunal of Ontario (“the Tribunal”), dated June 26, 2006,which upheld the Proposal of the Registrar of the Real Estate and Business Brokers Act (REBBA) to revoke the appellant’s real estate license.
[2] For the reasons which follow, we are all of the opinion that the appeal must be dismissed.
[3] At the outset of his submissions to us, the appellant’s counsel agreed that with respect to the issue of the standard of review, the combined effect of Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No. 9 and Cecillo v. Tarion Warranty Corp. [2007] O.J. No. 1692 (Div. Ct.),dictates that the applicable standard of review is correctness on questions of law and, on questions of fact or mixed fact and law, reasonableness simpliciter.
[4] The issues raised by the appellant involve the Tribunal’s exercise of discretion to revoke the appellant’s license and the Tribunal’s findings of fact, and of credibility, to support the exercise of that discretion. Reasonableness applies to a review of the Tribunal’s decision by this Court on those issues.
[5] The Tribunal carefully weighed and considered the evidence it heard. It made findings of credibility against the appellant, giving clear reasons for so doing.
[6] The appellant has not persuaded us that the Tribunal made any palpable and overriding error in arriving at its findings of fact. When he appeared before the Tribunal, the appellant was an undischarged bankrupt. It was his second bankruptcy. He had entered a plea of guilty to a charge of misappropriation of trust funds in connection with his real estate business. The Tribunal did not find the appellant to be credible in his evidence regarding his alleged inappropriate dealings with two members of the public.
[7] There was ample evidence to support those conclusions. They are eminently reasonable.
[8] The question of penalty is one that falls squarely within the expertise of the Tribunal. Considerable deference is due to the decisions of Tribunals charged with the responsibility of disciplining licensees.
[9] The Real Estate and Business Brokers Act was enacted in the public interest to protect the consumer and to ensure a fair and safe market place.
[10] It is clear from its reasons that the Tribunal carefully considered alternatives to revocation and concluded that in this case they would not be sufficient to protect the public.
[11] In our opinion, the penalty imposed was not only reasonable but given the evidence before the Tribunal, it was correct.
[12] The appeal must be dismissed.
COSTS
[13] I endorse the Appeal Book and Compendium: “The appeal is dismissed for oral reasons delivered today. Costs to the Respondent for this appeal and the stay motion before Carnwath J. fixed at $17,000, inclusive of disbursements and GST, payable forthwith.”
JENNINGS J.
KITELEY J.
LOW J.
Date of Reasons for Judgment: June 4, 2008
Date of Release: June 6, 2008
COURT FILE NO.: 386/06
DATE: 20080604
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
JENNINGS, KITELEY AND LOW JJ.
B E T W E E N:
PAUL ANTHONY LONERGAN Applicant (Appellant)
- and -
LICENCE APPEAL TRIBUNAL and REGISTRAR, REAL ESTATE AND BUSINESS BROKERS ACT Respondents (Respondents in Appeal)
ORAL REASONS FOR JUDGMENT JENNINGS J.
Date of Reasons for Judgment: June 4, 2008
Date of Release: June 6, 2008