Court File and Parties
COURT FILE NO.: 355/08 DATE: 20090817
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, SWINTON AND LOW JJ.
B E T W E E N:
DUGAL DAN MCDONALD Appellant
- and -
REGISTRAR, REAL ESTATE AND BUSINESS BROKERS ACT, 2002 Respondent
Counsel: Jack Zwicker, for the Appellant Ronald Foerster and Catherine Moreau, for the Respondent
HEARD at Toronto: August 17, 2009
Oral Reasons for Judgment
CARNWATH J.: (Orally)
[1] We all agree that the appeal must be dismissed. Our reasons will follow either at the conclusion of the hearing by way of oral reasons, or by a short endorsement issued by written reasons following the hearing.
[2] Mr. Zwicker, I mean you no disrespect and I say none to your friend when I say it won’t be necessary to call on you.
[3] The Appeal Book is endorsed that the appeal and the cross-appeal are dismissed. We reject the submission that the Tribunal lacked jurisdiction to impose conditions on the appellant’s registration. The language of s. 14(5) says the Tribunal may attach conditions to a registration. We find nothing in other sections which limit the discretion, particularly, where in our view, the conditions carry out the intention of the Act, that is, protection of the public. Contrary to the submissions of the appellant, we find a rational connection between the conditions imposed and the intention of the Act to provide protection to consumers. We find the conditions reasonable.
[4] The reasons adequately explain why the appellant was required to seek a new broker. We find no merit in the submissions that the conditions imposed give rise to a reasonable apprehension of bias. Submissions on penalty were received from both sides. The Tribunal came to its conclusion.
[5] On the cross-appeal, the Tribunal considered the past conduct of Mr. McDonald, the appellant, in light of s.10(1)(a)(ii) which reads basically that, in order to obtain registration or renewal of registration, the applicant must satisfy the condition in s.10(1)(a)(ii). He is entitled to registration unless the past conduct of the applicant affords reasonable grounds for belief that the applicant will not carry on business in accordance with law and with integrity and honesty. The onus was and remains on the Registrar to establish those reasonable grounds did exist.
[6] The Tribunal found at page 8 of its reasons in the first full paragraph:
On considering the totality of Mr. McDonald’s past conduct, there are reasonable grounds for the belief that Mr. McDonald will conduct his business with honesty and integrity.
[7] The Tribunal did not find that there were reasonable grounds to believe that Mr. McDonald, the appellant, would not conduct his business in accordance with law. The Tribunal concluded he was perilously vulnerable to being used by dishonest third parties. It found he was capable of learning from his mistakes.
[8] The Tribunal decided to exercise its discretion and substitute its opinion for that of the Registrar. In doing so, it considered s.14(5) and imposed conditions on Mr. McDonald’s registration, which it concluded would protect the public from any perceived risk of future conduct. The Tribunal’s conclusion was reasonable and one it was entitled to make on the evidence before it.
COSTS
[9] The parties consent to an order of no order as to costs.
CARNWATH J.
SWINTON J.
LOW J.
Date of Reasons for Judgment: August 17, 2009 Date of Release: August 21, 2009
COURT FILE NO.: 355/08 DATE: 20090817
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, SWINTON AND LOW JJ.
B E T W E E N:
DUGAL DAN MCDONALD Appellant
- and -
REGISTRAR, REAL ESTATE AND BUSINESS BROKERS ACT, 2002 Respondent
ORAL REASONS FOR JUDGMENT CARNWATH J.
Date of Reasons for Judgment: August 17, 2009 Date of Release: August 21, 2009