CITATION: Registrar REBBA v. Jolly, 2016 ONSC 2338

DIVISIONAL COURT FILE NO.: 168/15

DATE: 20160418

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Stewart and Horkins JJ.

BETWEEN:

Registrar Under Real Estate and Business Brokers Act, 2002

Applicant

– and –

Harjinder Singh Jolly

Respondent

Christopher D. Bredt and Rahim Jamal, for the Applicant

Jordan Glick and Lara Kinkartz, Amicus Curiae

HEARD at Toronto: March 21, 2016

H. Sachs J.

Introduction

Introduction

1The Applicant applies for judicial review of the January 16, 2015 decision of the Appeals Committee of the Real Estate Council of Ontario (the “Tribunal” and “RECO”). In this decision, the Tribunal dismissed the Applicant’s request for costs on the basis that s. 17.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) limits the authority to award costs to matters involving conduct that is unreasonable, frivolous, vexatious or done in bad faith.

2The Applicant takes issue with the Tribunal’s interpretation of s. 17.1 of the SPPA as it interacts with s. 21(4)5 of the Real Estate and Business Brokers Act, 2002, S.O. 2002, c. 30, Sch. C. (“REBBA”).

3The Respondent does not oppose the relief being sought. Molloy J. issued an order on September 29, 2015 adjourning the matter and ordering that if the Attorney General declined to participate, the Court should consider appointing amicus. On January 5, 2016, after the Attorney General declined to participate, I appointed amicus.

Background

Background

4On March 14, 2013, the Discipline Committee of RECO determined that three of the four allegations against the Respondent had been made out. By way of penalty, the Discipline Committee imposed a fine and ordered him to complete two courses.

5The Respondent appealed the decision to the Tribunal who upheld the Discipline Committee’s decision. The Tribunal asked for written submissions on the question of costs. The Applicant asked for its costs in the amount of $3057.33. The Tribunal then asked for further submissions and, after receiving those submissions, released its decision in which it determined that the jurisdiction to award costs under REBBA is limited by s. 17.1 of the SPPA.

The Jurisdiction to Award Costs Pursuant to REBBA

6Subsection 21(4) of REBBA provides the Appeals and Discipline Committees of RECO with the jurisdiction to award costs. Specifically, subparagraph 5 of s. 21(4) provides that if the Discipline Committee makes a finding that “a registrant has failed to comply with the code of ethics”, it may make a number of orders, including “fix and impose costs to be paid by the registrant to the administrative authority or to the Minister of Finance if there is no designated administrative authority.”

7Rule 17.01 of the Discipline and Appeal Committees’ Rules of Practice addresses when costs may be ordered by those committees. It states:

17.01 The Discipline Committee or Appeals Committee may Order a Party to pay the costs if paragraph 5 of subsection 21(4) of the Act applies (i.e., where the Registrant can be ordered to pay costs to RECO) or if the conduct or course of conduct of a Party has been unreasonable, frivolous or vexatious or a Party has acted in bad faith.

Section 17.1 of the SPPA

Section 17.1 of the SPPA

8There is no issue that the Tribunal’s proceedings against the Respondent are subject to the SPPA. Section 17.1 of the SPPA provides the following with respect to costs:

Costs

17.1(1) Subject to subsection (2), a tribunal may, in the circumstances set out in rules made under subsection (4), order a party to pay all or part of another party’s costs in a proceeding.

Exception

(2) A tribunal shall not make an order to pay costs under this section unless,

(a) the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith; and

(b) the tribunal has made rules under subsection (4).

Amount of Costs

(3) The amount of costs ordered under this section shall be determined in accordance with the rules made under subsection (4)

Rules

(4) A tribunal may make rules with respect to,

(a) the ordering of costs;

(b) the circumstances in which costs may be ordered; and

(c) the amount of costs or the manner in which the amount of costs is to be determined.

Same

(5) Subsections 25.1(3),(4),(5) and (6) apply with respect to rules made under subsection (4).

Continuance of provisions in other statutes

(6) Despite section 32, nothing in this section shall prevent a tribunal from ordering a party to pay all or part of another party’s costs in a proceeding in circumstances other than those set out in, and without complying with, subsections (1) to (3) if the tribunal makes the order in accordance with the provisions of an Act that are in force on February 14, 2000.

9Section 32 of the SPPA states that, unless an Act expressly provides otherwise, the provisions of the SPPA prevail over the provisions of that Act in the event of a conflict.

The Tribunal’s Decision

The Tribunal’s Decision

10The Tribunal noted that, unlike other pieces of legislation governing other administrative tribunals, REBBA contains no express provision that its terms are to prevail over the terms of the SPPA in the event of a conflict.

11Given this, the Tribunal concluded that it was bound to apply the provisions respecting costs set out in the SPPA, which required demonstrating that the Respondent’s conduct could be characterized as unreasonable, frivolous or vexatious or conducted in bad faith. The Tribunal found that there was no evidence of any conduct on the part of the Respondent that could be characterized in this way. Therefore, it dismissed the Applicant’s request for costs.

The Standard of Review

The Standard of Review

12The Applicant submits that the standard of review applicable to the Tribunal’s decision is correctness. In doing so it notes that REBBA contains no privative clause, and it argues that, in making its decision, the Tribunal was interpreting the SPPA, a statute of general application that was not central to the purpose of the Tribunal as provided by REBBA. It also submits that the nature of the question before this Court related to jurisdiction and was, therefore, a question of law. Finally, it argues that the issue did not fall within the expertise of the Tribunal, particularly as most of the members of the Tribunal are real estate agents, not lawyers.

13In making its submissions, the Applicant points to the decision of this Court in Barrington v. The Institute of Chartered Accountants of Ontario, 2010 ONSC 338, 260 O.A.C. 199 (Div. Ct.); and the Court of Appeal’s later decision in Barrington v. The Institute of Chartered Accountants of Ontario, 2011 ONCA 409, 333 D.L.R. (4th) 401 (C.A.). In the earlier Barrington, the Divisional Court dealt with the relationship between s. 17(1) of the SPPA and the authority of the Institute’s Discipline Committee to order costs pursuant to a by-law adopted under the legislation governing the Institute of Chartered Accountants of Ontario. At para. 52, the Divisional Court held: “The issue of the [Discipline Committee’s] jurisdiction to award costs is reviewable on a standard of correctness, as it is a true question of jurisdiction.”

14The issue before the Tribunal was the interpretation of, and interaction between, s. 21(4) of REEBA, Rule 17.01 and s. 17.1 of the SPPA. This is a question of law involving the interpretation of the Tribunal’s home statute and a statute closely connected to its function. In McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at para. 21, the Supreme Court reiterated that such questions are presumptively reviewable on a standard of reasonableness:

Since Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, this Court has repeatedly underscored that “[d]eference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” (para. 54). Recently, in an attempt to further simplify matters, this Court held that an administrative decision-maker’s interpretation of its home or closely-connected statutes “should be presumed to be a question of statutory interpretation subject to deference on judicial review” (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 34).

15With respect to whether the issue before the Tribunal was a true question of jurisdiction, Barrington was decided before the Supreme Court released its decision in Alberta (Information and Privacy Commissioner), supra, where the Court noted that (at para. 34):

… the category of true questions of jurisdiction should be interpreted narrowly… Indeed, in view of recent jurisprudence, it may be that the time has come to reconsider whether, for the purposes of judicial review, the category of true questions of jurisdiction exist and is necessary to identifying the appropriate standard of review. However, in the absence of argument on the point in this case, it is sufficient in these reasons to say that, unless the situation is exceptional, and we have not seen such a situation since Dunsmuir, the interpretation by the tribunal of ‘its own statute or statutes closely connected to its function, with which it will have particular familiarity’ should be presumed to be a question of statutory interpretation subject to deference on judicial review.

16The situation before us is not exceptional. Given this, I am unable to agree that the question before the Tribunal was a true question of jurisdiction that would justify review on a standard of correctness. None of the other established exceptions to the reasonableness standard have been put forward by the Applicant, nor do they apply. The issue in dispute is not a constitutional one; it does not involve a question of law that is of central importance to the legal system as a whole and that is outside the adjudicator’s expertise, and there is no question involving jurisdictional lines between two or more competing tribunals: see Alberta (Information and Privacy Commissioner) at para. 30.

17For these reasons, I find that the standard of review that is applicable to the Tribunal’s decision is reasonableness.

Was the Tribunal’s Decision Reasonable?

Was the Tribunal’s Decision Reasonable?

18According to the Applicant, the “fatal flaw” in the reasoning of the Tribunal is that it ignores and gives no meaning to the words “under this section” in s. 17.1(2) and (3) of the SPPA. The Applicant submits that the clear intent of s. 17.1 is to limit the jurisdiction to grant costs under that section; it is not intended to limit the jurisdiction of a tribunal to grant costs pursuant to jurisdiction granted under other statutes such as REBBA. Interpreted in this way, there is no conflict between the SPPA and REBBA and, therefore, s. 32 of the SPPA is inapplicable.

19What this submission fails to consider is s. 17.1(6) of the SPPA. This provision provides that, if a “tribunal makes the order [as to costs] in accordance with the provisions of the Act that are in force on February 14, 2000” [the date s. 17(6) was enacted], the tribunal does not have to comply with the subsections (1) to (3) of s. 17.1. These subsections have the effect of prohibiting an order as to costs, unless the tribunal has made rules under subsection (4) and “the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith”.

20Thus, where a tribunal is making a costs order under an Act that was in force as of February 14, 2000, the costs restrictions in s. 17.1 do not apply. The necessary inference is that for any tribunal that is awarding costs under an Act that was not in force on February 14, 2000 (including REBBA which was enacted in 2002 and came into force in March 2006) the SPPA’s costs provisions will prevail, unless the tribunal’s enabling statute expressly provides that it trumps the SPPA. As the Tribunal noted, there are many statutes that do contain such provisions.

21According to the Applicant, as soon as another statute permits a tribunal to award costs, the SPPA’s provisions are inapplicable because the tribunal is awarding costs under that statute and not under the SPPA. However, if that were the case, there would be no need for the exception in s. 17.1(6). Any costs awards made pursuant to a statute in force as of February 14, 2000 would necessarily be permitted.

22The Applicant’s reading violates the presumption against tautology, which states that every word (and every provision) in an enactment is presumed to have meaning. As put by Ruth Sullivan in her text Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014), at p. 211: “It is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain. Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose.”

23The Applicant argues that in enacting s. 17.1(6) the legislature was concerned that those tribunals who had the statutory authority to make costs awards, but had not yet made rules, would be affected by the enactment of s. 17.1. However, there is nothing in the wording of the subsection or the Act as a whole that supports this interpretation.

24Contrary to the submission of the Applicant, the words “under this section” do have meaning. They contemplate the possibility that a tribunal may not be making a costs award under s. 17.1 because their statutes have specifically provided that their provisions prevail over the SPPA.

25As the Applicant acknowledges, the provisions of s. 17.1(6) have been considered by the Divisional Court in Barrington. In Barrington, the Court decided that, unless the statute granting a tribunal the authority to award costs was in force as of February 14, 2000 or the statute states that its provisions prevail over the SPPA, the SPPA costs provisions apply. By the time Barrington was appealed to the Court of Appeal, the legislature had acted to amend the enabling statute at issue to explicitly state that the costs provisions applied despite s. 17.1 of the SPPA.

26The Applicant attempted to distinguish Barrington on a number of bases, including the fact that the statutory frameworks at issue were different. I agree there are differences. However, these differences have no effect on the analysis.

27The Applicant also brought to our attention the fact that prior to the enactment of REBBA in 2002, RECO, a non-profit corporation without share capital, had an administrative agreement with the government to govern the real estate profession in Ontario. That agreement contemplated that RECO would pass by-laws. One of those by-laws was By-law No. 10, which came into force on January 1, 2000. Under By-law No. 10, there was authority to order a member to pay costs that extended beyond the circumstances provided for in s. 17.1 of the SPPA.

28In addition, the Applicant outlined the strong policy reasons in favour of upholding this kind of authority, including ensuring that the costs of disciplining a member of a self-regulated profession are borne by the member, not by the other members of that profession.

29I do not agree that the existence of By-law No. 10 brings the costs provisions of REBBA within the exemption provided for in s. 17.1(6). That exemption only applies if the tribunal makes a costs order “in accordance with the provisions of an Act that are in force on February 14, 2000” (emphasis added). By-law No. 10 is not an Act, nor is the administrative agreement pursuant to which it was passed.

30I do agree that there are strong policy reasons in favour of granting self-regulating professions the authority to award costs against their members. However, the place to effect this policy change is in the legislature, not in the courts on an application for judicial review.

Conclusion

Conclusion

31For these reasons, the application is dismissed without costs. We are grateful to amicus counsel for the assistance provided to the Court on this matter.

Sachs, J

Stewart, J

Horkins, J