CITATION: Carlos v. Registrar, Real Estate and Business Brokers Act, 2015 ONSC 92
DIVISIONAL COURT FILE NO.: 32/14 DATE: 20150105
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SPENCE, SACHS AND HARVISON YOUNG JJ.
BETWEEN:
BERNARD CARLOS Applicant (Respondent in Appeal)
– and –
THE REGISTRAR, REAL ESTATE AND BUSINESS BROKER’S ACT, 2002 Respondent (Appellant in Appeal)
In Person
Maya Sabharwal and Jay H. Blair, for the Respondent (Appellant in Appeal)
HEARD at Toronto: January 5, 2015
HARVISON YOUNG J. (ORALLY)
[1] The Registrar, Real Estate and Broker’s Act, 2002, appeals from a decision of the Licence Appeals Tribunal. The Registrar had issued a Notice of Proposal to Mr. Bernard Carlos refusing his application to re-register as a real estate sales person, pursuant to s. 10(1)(a) of the Real Estate and Business Broker’s Act, 2002.
[2] The refusal was based on Mr. Carlos’ history of financial and legal problems. On his appeal to the Tribunal, Vice-Chair Laurie Sandford found that Mr. Carlos was “turning his life around” and ordered his re-registration with conditions.
[3] Before this Court, the appellant’s overarching position is that the respondent’s past conduct is such that it affords reasonable grounds for belief that the respondent will not conduct business in accordance with law and with integrity and honesty. It argued that the Tribunal did not apply the proper test and second, that it erred in ignoring or giving too little weight to Mr. Carlos’ past conduct.
[4] The applicable standard of review is reasonableness: Ontario (Alcohol and Gaming Commission, Registrar) v. 751809 Ontario Inc. (c.o.b. Famous Flesh Gordon’s), 2014 ONSC 6707 at paras. 22-31 (Ont. C.A.).
[5] In our view, the Tribunal did not ignore the evidence. It was clearly alive to the evidence which was not disputed, of Mr. Carlos’ past conduct before his re-application, noting that his life had “begun to spin out of control” in years prior to 2008. However, the Tribunal also considered the recent evidence, stating as follows at p. 5 of its reasons:
The question is whether enough time has passed since Mr. Carlos began to change his life to determine that his past misconduct will not recur. The Tribunal would be concerned if Mr. Carlos were registered without condition. The practice of real estate sales can be a highly stressful occupation and it is often conducted in isolation from other real estate salespeople. Weighing all these factors, the Tribunal concludes that this registration may be granted if there are appropriate conditions attached to the registration. Some conditions would be needed for the protection of the public and to permit Mr. Carlos to have some initial structure in his practice. These conditions should permit Mr. Carlos, his broker and the Registrar to monitor key aspects of Mr. Carlos’ conduct for some reasonable period of time.
[6] The appellant submits that the reasons imply that the Tribunal applied a more lax standard than the “reasonable grounds of belief” articulated by the statute. We disagree.
[7] The Tribunal, if anything, applied a somewhat more stringent standard by articulating the need for conditions to ensure that the respondent’s misconduct “will not recur”.
[8] In the course of oral argument, the appellant also submitted that given the gravity of the past conduct, the Tribunal gave too much weight to the evidence that Mr. Carlos has changed his life around, suggesting that the past conduct in this case “was just too big a mountain for the respondent to climb”.
[9] As the case law makes clear, in determining whether the past conduct of an applicant affords reasonable grounds for belief that the applicant will not carry on business in accordance with law and with integrity and honesty, it is necessary for the Tribunal to consider the whole of the applicant’s conduct, including his conduct since the past conduct occurred: Flesh Gordon; Brenner v. Ontario (Registrar of Motor Vehicle Dealers and Salesmen) 1983 O.J. 1017 (Div. Ct.).
[10] In this case the Tribunal heard evidence about Mr. Carlos’ recent conduct in addition to the evidence about his earlier conduct. They weighed that evidence and concluded that it accepted that “Mr. Carlos is on the right path, is turning his life around” and that enough time has passed since Mr. Carlos began to change his life that with conditions the Tribunal was satisfied that his past misconduct would not recur. The appellant is essentially asking us to reweigh the evidence. That is not our function.
[11] With respect to the other two arguments raised in the appellant’s factum, though not pursued in oral submissions, the Tribunal rejected the Registrar’s submission that the respondent should not be registered because he could not reasonably be expected to be responsible in the conduct of business or because he had made a false statement in his application.
[12] On the basis of evidence before it, the Tribunal found that imposing a condition providing for the payment of outstanding debts would ensure that any lingering concerns about the respondent’s financial responsibility (which arose from a bankruptcy over ten years ago) would be met.
[13] It also found that the respondent, in his recent applications, had made the necessary disclosure, although the Registrar took some issue with how “fulsome” those disclosures were.
[14] In our view, the Tribunal’s analysis and conclusions with respect to those two issues are reasonable.
[15] We note that in the respondent’s factum, he refers to an absolute discharge of his bankruptcy that he states, “became official” on August 9, 1993. He further states that he emailed a copy of this discharged document to the Registrar’s counsel on November 26, 2014, which is after the date of the hearing before the Tribunal. If Mr. Carlos seeks to rely on this document to in any way vary the conditions imposed that were set down by the Tribunal for the repayment of debts, he must do so before the Tribunal directly. Until such time and unless such a variation is granted, these conditions remain in effect.
[16] For the foregoing reasons, the appeal is dismissed.
SPENCE J.
COSTS
[17] I have endorsed the Appeal Book, “For reasons given orally, appeal dismissed. Costs of $2,500 payable to Mr. Carlos.”
___________________________ HARVISON YOUNG J.
SPENCE J.
SACHS J.
Date of Reasons for Judgment: January 5, 2015
Date of Release: January 9, 2015
CITATION: Carlos v. Registrar, Real Estate and Business Brokers Act, 2015 ONSC 92
DIVISIONAL COURT FILE NO.: 32/14 DATE: 20150105
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SPENCE, SACHS AND HARVISON YOUNG JJ.
BETWEEN:
BERNARD CARLOS Applicant (Respondent in Appeal)
– and –
THE REGISTRAR, REAL ESTATE AND BUSINESS BROKER’S ACT, 2002 Respondent (Appellant in Appeal)
ORAL REASONS FOR JUDGMENT
HARVISON YOUNG J.
Date of Reasons for Judgment: January 5, 2015
Date of Release: January 9, 2015