Licence Tribunal
Appeal d'appel en Tribunal matière de permis
2012-03-23
FILE:
7154/REBBA
CASE NAME:
7154 v. Registrar, Real Estate and Business Brokers Act 2002
Appeal from a Proposal of the Registrar under the Real Estate and Business Brokers Act, 2002, S.O. 2002, c. 30, Sch. C to Suspend Registrations
Dona Boles and DMD Realty Inc., Brokerage
Applicants
-and-
Registrar, Real Estate and Business Brokers Act 2002
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Mary Ann Spencer, Member
APPEARANCES:
For the Applicants:
Donna Mae Boles, Representing herself and DMB Realty Inc.
For the Respondent:
Tim Snell, Counsel
Heard in Toronto
MARCH 14, 2012
REASONS FOR DECISION AND ORDER
BACKGROUND
This is a hearing before the Licence Appeal Tribunal (the “Tribunal”) arising out of a Notice of Proposal issued by the Registrar, Real Estate and Business Brokers Act 2002 (the “Registrar” and the “Act” respectively). The Notice of Proposal dated December 16, 2011 proposes to suspend the registration of Donna Mae Boles (the “Applicant”) as a broker under the Act and the registration of DMB Realty Inc. as a brokerage under the Act for the duration of Ms. Boles’ suspension.
In summary, the grounds for the Proposal are:
That Ms. Boles failed to comply with an Order of the Discipline Committee established under the Act.
That the past conduct of Ms. Boles affords reasonable grounds for belief that she will not carry on business in accordance with law and with integrity and honesty.
That if Ms. Boles’ registration is suspended, DMB Realty Inc. will not have a Broker of Record as required by the Act.
That the past conduct of the officers and directors and/or of an interested party in respect of DMB Realty Inc. afford reasonable grounds for belief that the business of DMB Realty will not be carried on in accordance with law and with integrity and honesty.
PRELIMINARY MATTERS
The Applicant acknowledged and waived her right to counsel.
There were no matters in dispute between the parties and the hearing proceeded.
EVIDENCE AND FACTS
Registrar’s Evidence
The evidence of the Registrar consisted of books of documents and the testimony of Andria Cordovez Mulet, Hearings Coordinator with the Real Estate Council of Ontario (“RECO”) and Brian Schlotzhauer, the Deputy Registrar, Industry Standards, with RECO.
The following is a summary of the relevant evidence:
Donna Mae Boles was first registered as a salesperson on May 22, 1986 and has been registered as a broker since July 14, 1988. DMB Realty Inc. has been registered as a brokerage since July 14, 1988 with Ms Boles as the broker of record. Ms Boles is the sole director and officer of DMB Realty Inc. The brokerage has no other employees registered with RECO.
Andria Cordovez Mulet is the Hearings Coordinator at RECO. Ms Cordovez Mulet provides administrative support to the Discipline and Appeals Committees established under the Act. Following the issuance of an allegation statement by the Registrar under the Act, Ms Cordovez Mulet will arrange for a pre-hearings to be held if either of the parties, normally the Registrar and Registrant, request one. The Registrant is advised of the right to representation. If the matter is not resolved at the pre-hearing, a hearing is then held. Sanctions can be a fine of up to $25,000 and the requirement to complete further educational courses. The Appeals Committee hears appeals from the Discipline Committee and can uphold, overturn or modify a decision.
On November 25, 2010, a discipline hearing was held by RECO with regard to a complaint about Ms Boles which had been received by RECO on January 29, 2007. The Discipline Decision (Exhibit 3a, Tab 2) found Ms. Boles to be in violation of four sections of the RECO’s Code of Ethics. On April 1, 2011, a further Discipline Decision (Exhibit 3a, Tab 2) ordered a penalty which required Ms Boles to pay a $7,000 fine within six months of release of the decision and to successfully complete the Real Estate Institute of Canada’s “Ethics and Business Practice” course and the Ontario Real Estate Association’s “Real Property Law” course and provide RECO with confirmation of their successful completion within six months of release of the decision.
Ms Cordovez Mulet testified that Ms Boles was present at the Discipline Committee hearing and was represented by a colleague registrant. She had the opportunity to testify and through her representative, to cross examine witnesses. Ms Boles did present written submissions to the Committee.
The Discipline Decision with respect to the penalty was sent to Ms Boles on April 7, 2011. In the letter enclosing the decision (Exhibit 3a, Tab 3) Ms Cordovez Mulet advised Ms Boles that the fine must be paid and the courses successfully completed by no later than October 13, 2011. The April 7, 2011 letter also set out Ms Boles’ statutory right to appeal the decision by no later than May 13, 2011.
On April 19, 2011, Ms Boles, sent a letter to Registrar Allan Johnston, Ms Cordovez Mulet, and the chair and members of the Discipline Committee hearing panel among others (Exhibit 3a, Tab 4) in which she enclosed a twenty one page letter addressed to the then Minister of Consumer Services setting out her concerns relating to the discipline hearing. Ms Boles acknowledged receipt of the April 7, 2011 letter and stated:
Thank you for your letter dated April 7, 2011, which states I can appeal your decision by May 13, 2011.
I believe RECO has failed in this process because of the delay of process and the allegations against me were not substantiated.
I do not feel there is any justice to appeal your decision.
Please forward the course schedule for the 2 courses you require me to take...I will do as you require of me and pay $7,000...
On April 21, 2011, Ms Cordovez Mulet responded to Ms Boles (Exhibit 3a, Tab 5) and provided contact information for the organizations providing the two courses and set out the due date of October 13, 2011 for their successful completion as well as for the payment of the fine. This letter again set out Ms Boles’ right to appeal the Discipline Decision by May 13, 2011.
On April 28, 2011, Ms Boles again forwarded a letter to the Registrar, Ms Cordovez Mulet and the members of the Discipline Committee panel among others, in which she enclosed a letter sent to the Canadian Real Estate Association and a second letter sent to the Minister of Consumer Services (Exhibit 3a, Tab 6). In the letter to the Minister, Ms Boles again set out her concerns regarding the discipline hearing.
On May 4, 2011, Ms Cordovez Mulet wrote to Ms Boles (Exhibit 3a, Tab 7), and again reminded her of the October 13, 2011 due date for compliance with the Discipline Decision and of the May 13, 2011 deadline for appeal.
On August 2, 2011, Ms Cordovez Mulet wrote to Ms Boles (Exhibit 3a, Tab 7) asking her not to contact the members of the Discipline Committee hearing panel directly but to direct her communications to Ms Cordovez Mulet as required by the Rules of Practice. Again, the letter reminded Ms Boles of the October 13, 2011 compliance date.
On September 22, 2011, Ms Boles wrote the Registrar requesting an extension of time to complete the courses as she had enrolled in one which would run from October 5 to 7, 2011 and a second which would run from October 17 to 22, 2011. The examination for the second course would not be held until October 29, 2011. She also requested a meeting to:
...discuss with you the matter of prejudice against me, as the delay and lack of communication between RECO and myself, did not make this matter easy to explain...
Ms Boles attached a number of pages again setting out her concerns.
On September 30, 2011, Ms Boles sent an e-mail to Ms Cordovez Mulet advising she had requested an extension of time with regard to the courses and requesting confirmation that it would be granted (Exhibit 3a, Tab 8).
On October 3, 2011, Ms Boles sent a further e-mail to Ms Cordovez Mulet requesting confirmation of the extension of time and again expressing her concerns that she had been “prejudiced”. (Exhibit 3a, Tab 8). A further e-mail was sent seventeen minutes later again asking for the extension.
Ms Cordovez Mulet responded, by e-mail, to Ms Boles on October 3, 2011 (Exhibit 3a, Tab 9) in which she advised that RECO did not have the authority to alter or amend the Discipline Decision ordered by the Discipline Committee hearing panel. Ms Boles responded by e-mail at 4:16 p.m. the same day asking why she was being treated unfairly. (Exhibit 3a, Tab 10). At 5:13 p.m. the same day, Ms Boles sent a further e-mail (exhibit 3a, Tab 10) in which she stated:
I guess I have been denied an extension to complete the courses required. Therefore, I cannot pay the penalty until I am assured I will be able to continue in my chosen field of business.
At 5:45 p.m., Ms Boles faxed a credit card payment form to RECO (Exhibit 3a, Tab 10) on which she noted:
To be honoured only if an extension of successful completion of business law and business practise course is extended from required date Oct 13, 2011, which is an impossibility of time as of today’s date Oct 3, 2011.
In a letter dated October 6, 2011 (exhibit 3a, Tab 11), the RECO Registrar, Allan Johnston, responded to Ms Boles acknowledging but refusing her requests for an extension and declining her September 22, 2011 request to meet.
On October 11, 2011, Ms Cordovez Mulet wrote to Ms Boles by e-mail (Exhibit 3a, Tab 11) and stated that because of the condition on the credit card payment form, RECO would not process it. In this e-mail, the due date of October 13, 2011 was again set out.
On October 12, 2011, Ms Boles sent a faxed letter (Exhibit 3a, Tab 12) addressed to the Registrar, Ms Cordovez Mulet, and the Discipline Committee hearing panel members among others setting out her concerns and enclosing a copy of her Certificate of Attendance for the Ethics and Business Practices course. This facsimile was acknowledged by e-mail sent by Ms Cordovez Mulet on October 13, 2011 (Exhibit 3a, Tab 13) in which she reminded Ms Boles the fine payment was due that day and requested confirmation of Ms Boles’ successful completion of the course. Ms Boles responded by sending a further e-mail to Ms Cordovez Mulet on October 16, 2011, again setting out her concerns (Exhibit 3a, Tab 14).
On October 24, 2011, the Registrar sent a letter to Ms Boles (Exhibit 3a, Tab 15) in which he noted that the fine was still unpaid and that confirmation of successful completion of the courses was required. The letter stated:
To avoid escalation of this situation, I urge you to respond to this letter by immediately remitting your payment that was due on October 13, 2011. Take notice that unless the $7,000.00 fine is paid to RECO by certified cheque or bank draft within 15 days of this letter, RECO will take the necessary legal steps to recover the fine to protect the interests of RECO and its members.
On October 28, 2011, Ms Boles, by e-mail, wrote to Ms Cordovez Mulet, and copied Bruce Matthews, the Deputy Registrar, expressing her concerns and setting out some of the details relating to the original complaint against her (Exhibit 3a, Tab 16). Ms Cordovez Mulet responded by e-mail dated November 3, 2011 (Exhibit 3a, Tab 17) attaching and referring Ms Boles to the Registrar’s October 24, 2011 letter which had been sent by courier but had been returned to RECO as unclaimed.
On November 3 and 4, 2011, Ms Boles wrote to David Armstrong, the chair of the panel that conducted her Discipline Committee hearing and copying Bruce Matthews, a series of e-mails setting out her concerns relating to fairness (Exhibit 3a, Tabs 18 and 20). In the first of these e-mails, she states “I never pursued the appeal as I felt injustice...”.
On November 4, 2011, Ms Cordovez Mulet, by e-mail to Registrar Allan Johnston, noted that she had, on November 3, 2011, sent the Registrar’s October 24, 2011 letter to Ms Boles by e-mail because the couriered copy had been returned (Exhibit 3a, Tab 21). Ms Cordovez Mulet suggested that the fifteen day period Mr. Johnston had given Ms Boles in that letter start from November 3, 2011.
On November 4, 2011, Ms Boles sent a further e-mail to Deputy Registrar Bruce Matthews expressing her disappointment that her request for a meeting had been denied, requesting “How do we settle this?”, and enclosing copies of previous e-mail correspondence. On November 5, 6, 7 and 8, 2011, she sent a series of twenty three further e-mails to Ms Cordovez Mulet and Mr. Matthews in which she expressed her concerns relating to process and fairness (Exhibit 3a, Tab 22). On November 9, 2011, she wrote Deputy Registrar Brian Schlotzhauer, copying Ms Cordovez Mulet, further e-mails regarding “the irregularities and delay...” and forwarding a complaint form she had completed. (Exhibit 3a, Tab 22). On November 10, 2011, in separate e-mails, she wrote to a former Director of RECO and to Deputy Registrar Bruce Matthews requesting a full investigation (Exhibit 3b, Tab 24).
On November 10, 2011, Mr. Schlotzhauer replied to Ms Boles advising her that some of the issues she had set out in the complaint form she had forwarded could not be addressed as they had already been the subject of the Discipline Committee hearing but noting that the issues relating to RECO staff would be forwarded to the RECO President (Exhibit 3a, Tab 23). On the same day, Ms Cordovez Mulet again wrote to Ms Boles advising her it was improper to contact members of the panel of her Discipline Committee hearing (Exhibit 3b, Tab 25).
On November 11, 2011, Ms Boles sent an e-mail to Mr. Schlotzhauer in which she again spoke to the issue of delay of process. In response, Mr. Schlotzhauer’s assistant requested a telephone meeting to take place with Mr. Schlotzhauer and Ms Cordovez Mulet on November 14, 2011. (Exhibit 3b, Tab 26). Mr. Schlotzhauer testified that the purpose of this meeting was to explain the inability of the Registrar’s office to address the issues Ms Boles was raising with respect to the hearing. In her e-mailed response to the request for the meeting, Ms. Boles advised that she had passed the Business Ethics course but had not passed the Property Law course she had taken. She wrote “I am confident I can earn a living if the fine of $7,000 is waived”. Ms Boles sent copies of her course results by facsimile to RECO on the same day (Exhibit 3b, Tab 26).
The telephone meeting between Mr. Schlotzhauer, Ms Cordovez Mulet and Ms Boles took place on November 14, 2011. Mr. Schlotzhauer testified that at that meeting, Ms Boles said she would not pay the fine or retake the examination she had failed. He stated Ms Boles was upset at the meeting because nothing further could be done by the Registrar. He stated she appeared to understand the requirements that were being set out, at one point stopping him as he was speaking and saying “I understand what you’re saying”.
On November 18, 2011, Mr. Schlotzhauer wrote to Ms Boles confirming the discussions of the November 14, 2011 meeting (Exhibit 3b, Tab 27). This included that May 13, 2011 was the final date for Ms Boles to have appealed the decision of the Discipline Committee hearing panel. The letter also stated that Ms Boles had until November 18, 2011 to make arrangements for payment of the fine and to verify that she was rescheduled to write the examination which she had failed. In response, Ms Boles sent a series of approximately 25 e-mails to Mr. Schlotzhauer over a thirteen hour period. She sent further e-mails to the new Minister of Consumer Services and to the Chair of RECO’s Board of Directors. (Exhibit 3b, Tab 28) continuing to express her concerns about the fairness of RECO’s process.
On November 24, 2011, Registrar Allan Johnston sent a letter to Ms Boles (Exhibit 3b, Tab 17) noting that she was in breach of the Order of the Discipline Committee and advising her membership in RECO was being terminated and that further regulatory action might be taken. On November 28, 2011, RECO’s Legal Counsel Jay Blair sent a letter to Ms Boles advising her that unless the outstanding fine was paid by December 13, 2011 and she retook the Real Property Law course by no later than January 31, 2012, that a Proposal to Suspend Registration would be issued (Exhibit 3b, Tab 29).
On November 30, 2011, in an e-mail to Brian Schlotzhauer (Exhibit 3b, Tab 31), Ms Boles wrote:
This matter requires an investigation or an inquiry, not an appeal, as I did not do anything wrong...
Give me a BREAK. I refuse to pay a $7,000 penalty. I will give up my license as RECO has not treated this matter fair.
On November 1, 2011, Ms Boles sent a series of e-mails to Ms Cordovez Mulet and Mr. Schlotzhauer, copying the Minister (Exhibit 3b, Tab 31), and stating:
If RECO insists that I owe a penalty of $7,000, you have bankrupted me as the matter not being settled in a timely manner within 2 years of the complainant (sic) being written, has affected my ability to sell and the reason I must declare bankruptcy if you insist on payment.
Ms Cordovez Mulet testified that as of the day of the hearing before this Tribunal, the fine remains unpaid.
Exhibit 5 was entered into evidence. This e-mail from the Ontario Real Estate Association confirmed that ten sessions of its Property Law course were available between April, 2011 and March, 2012. Mr. Schlotzhauer also testified that the course is available on-line and that examinations can be written each Saturday.
Ms Boles had the opportunity to cross-examine the Registrar’s witnesses. She asked Ms Cordovez Mulet a series of questions relating to the disciplinary hearing process. On re-examination, Counsel for the Registrar confirmed with the witness that Ms Boles was represented at the hearing. Ms Boles asked Mr. Schlotzhauer questions relating to the disclosure of evidence at the disciplinary hearing to which Mr. Schlotzhauer replied that he had nothing to do with the hearing. She then asked if the matter could be resolved without paying the penalty to which Mr. Schlotzhauer responded that the Registrar cannot influence the decision of the disciplinary panel.
Applicant’s Evidence
The evidence of Ms Boles comprised her testimony and two books of documents which she submitted.
The testimony of Ms Boles suggested to the Tribunal member that Ms Boles did not necessarily fully understand that the jurisdiction of this Tribunal does not extend to reviewing the decision of the Discipline Committee but is limited to the appeal of the Proposal of the Registrar to Suspend Registration. Much of Ms Boles’ testimony and the documentary evidence she submitted was related to the fairness of the process of the Discipline Committee. When the Tribunal member explained the jurisdiction of this Tribunal to Ms Boles, she became upset, necessitating a recess of the proceedings after which Ms Boles chose to continue. After explaining the jurisdiction of the Tribunal, the Tribunal member asked Ms Boles to try to focus her testimony on the issues before this Tribunal rather than on the details of those which were before the Discipline Committee panel in November, 2010.
Ms Boles testified that she has been a broker since 1988, having begun to work in real estate as a means of supporting her family. She stated that the industry has jealousies, that it is human nature since everyone wants to make a living. She stated she wants to continue in the business but the penalty she was required to pay was unfair. She also stated that the hearing took place almost four years after the events that formed the basis of the complaint to RECO occurred.
The Tribunal member asked Ms Boles why she had chosen not to appeal the decision of the Discipline Committee hearing panel. Ms Boles stated it was a complex situation and she was busy. She loves the real estate business but RECO is not going to listen and protect the agent. She stated that the Registrar has all the power, total authority. She has been caught in the system but believes in justice and has been treated unfairly.
Ms Boles stated that two years after the events forming the basis of the complaint against her she sued the other agent involved in those events for the balance of a referral fee owing. She believes that the agent was trying to avoid payment. The Court settled the matter and the complainants moved on. Ms Boles inferred that the decision of the Discipline Committee at the hearing was somehow related to the court action she had undertaken.
Ms Boles testified that the issue of delay of process was raised at her Discipline Committee hearing and that she did not understand why the panel did not have jurisdiction to dismiss the proceeding due to the delay. In addition, she stated that the summary of allegations was wrong and the penalty was unfair: the “people at RECO should have had common sense” to understand the issues she faced. She believes she does not really owe the penalty because she did her duty to her client.
Ms Boles stated that she believed the Discipline Committee hearing panel agreed with her position but the Registrar forced them to change their position. She does not believe the decision was the panel’s own but rather the allegations of the Registrar were dictated to the panel.
On cross-examination, Ms Boles agreed that on April 19, 2011, in an e-mail to the Registrar and Ms Cordovez Mulet, among others, she stated she would pay the fine. She also testified that she understood she had until May 13, 2011 to appeal the decision of the disciplinary committee hearing panel. She confirmed that on September 22, 2011, she had asked the Registrar for an extension of time to pay the penalty and complete the courses and that she had sent a credit card payment form with the notation that she would not pay unless the extension was given. She further testified that she was thinking of resigning because she could not work if she was not being treated fairly.
THE LAW
An Applicant’s entitlement to registration is set out in section 10 of the Act as follows:
- (1) An applicant that meets the prescribed requirements is entitled to registration or renewal of registration by the registrar unless,
(a) the applicant is not a corporation and,
(i) having regard to the applicant’s financial position or the financial position of an interested person in respect of the applicant, the applicant cannot reasonably be expected to be financially responsible in the conduct of business,
(ii) the past conduct of the applicant or of an interested person in respect 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, or
(iii) the applicant or an employee or agent of the applicant makes a false statement or provides a false statement in an application for registration or for renewal of registration;
(b), (c) Repealed: 2004, c. 19, s. 18 (5).
(d) the applicant is a corporation and,
(i) having regard to its financial position or the financial position of an interested person in respect of the corporation, the applicant cannot reasonably be expected to be financially responsible in the conduct of its business,
(ii) having regard to the financial position of its officers or directors or an interested person in respect of its officers or directors, the applicant cannot reasonably be expected to be financially responsible in the conduct of its business,
(iii) the past conduct of its officers or directors or of an interested person in respect of its officers or directors or of an interested person in respect of the corporation affords reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty, or
(iv) an officer or director of the corporation makes a false statement or provides a false statement in an application for registration or for renewal of registration;
(e) the applicant or an interested person in respect of the applicant is carrying on activities that are, or will be if the applicant is registered, in contravention of this Act or the regulations, other than the code of ethics established under section 50;
(f) the applicant is in breach of a condition of the registration; or
(g) the applicant fails to comply with a request made by the registrar under subsection (1.1) 2002, c. 30, Sched. C, s. 10 (1); 2004, c. 19, s. 18 (4-6).
Section 13 of the Act sets out that the Registrar may suspend or revoke a registration:
13 (1) Subject to section 14, the registrar may refuse to register an applicant or may suspend or revoke a registration or refuse to renew a registration if, in his or her opinion, the applicant or registrant is not entitled to registration under section 10. 2004, c. 19, s. 18 (10).
With respect to an Order of the Discipline Committee, the Act states:
21 (7) The registrant shall pay any fine imposed under subsection (4),
(a) on or before the day specified in the order of the discipline committee or, if the fine is the subject of an appeal, on or before the day specified in the order of the appeals committee; or
(b) on or before the 60th day after the date of the last order made in respect of the fine, if no day is specified in that order. 2002, c. 30, Sched. C, s. 21 (7).
(8) The registrant shall take the educational course required under subsection (4),
(a) within the time period specified in the order of the discipline committee or, if the requirement is the subject of an appeal, within the time period specified in the order of the appeals committee; or
(b) at the first reasonable opportunity after the last order made in respect of the educational course, if no time period is specified in that order. 2002, c. 30, Sched. C, s. 21 (8).
ISSUES
Does the Applicant’s past conduct afford reasonable grounds for belief that she will not carry on business in accordance with the law and with honesty and integrity?
ANALYSIS
It is the responsibility of the Registrar to prove to the Tribunal, on balance of probabilities, that the Applicant’s registration should be suspended. The Applicant is entitled to registration unless one of the grounds in section 10 of the Act applies. The Tribunal must make an independent assessment as to whether or not those grounds have been proven.
In reaching its conclusions, the Tribunal has considered the evidence of the parties.
The issue to be considered is whether the past conduct of Ms Boles affords reasonable grounds for belief that she and that DMB Realty, of which is the sole officer and director, will not carry on business in accordance with the law and with integrity and honesty.
On November 25, 2011, a hearing of the Discipline Committee established under section 21 (1) of the Act was held as a result of a complaint against Ms Boles which had been received by RECO. Ms Boles was found to have violated four sections of RECO’s Code of Ethics. On April 7, 2011, the Discipline Committee panel issued a penalty which required Ms Boles, by no later than October 13, 2011, to pay a fine of $7,000 and to successfully complete courses in Property Law and Business Ethics.
A substantial amount of correspondence between Ms Boles and RECO was entered into evidence. The correspondence which Ms Boles sent to RECO over the months following her Discipline Committee hearing and her testimony at this hearing indicates that she strongly believes that both the Discipline Committee hearing and the penalty it imposed were unfair.
The appeal before this Tribunal, however, is not about the decision of the Discipline Committee. Section 21 (2) of the Real Estate and Business Brokers Act, 2002, establishes an independent appeals committee and section 21 (5) sets out the parties’ right to appeal. The Tribunal notes that Ms Boles was informed of her right to appeal but chose not to exercise it. The right to appeal by May 13, 2011 was set out initially by Hearings Coordinator Andria Cordovez Mulet in her April 7, 2011 letter forwarding the Discipline Decision and Reasons for Decision to Ms Boles. It was reiterated in further letters from Ms Cordovez Mulet dated April 21, 2011 and May 4, 2011. Ms Boles herself acknowledged her right of appeal in her April 19, 2011 letter to Ms Cordovez Mulet and explained to the presiding member at this hearing why she chose not to appeal.
The evidence indicates that Ms Boles clearly understood the nature of the penalty the Discipline Committee hearing panel imposed and made some attempts to comply. On April 19, 2011, she requested course schedules and indicated her intent to pay the fine. She did successfully complete the Business Ethics course. However, notwithstanding the fact that the Property Law course could be taken on-line or at a number of earlier sessions, she enrolled in its October 17 to 22, 2011 session, dates after the October 13, 2011 deadline.
On September 22, 2011, Ms Boles asked the Registrar for an extension of the October 13, 2011 deadline. On October 3, 2011, she asked Ms Cordovez Mulet for the extension and, in fact, submitted a credit card payment form for payment of the fine but noted on it that the payment could not be taken unless an extension for course completion was given. On October 12, 2011, Ms Boles forwarded her certificate of attendance for the Business Ethics course.
RECO did give Ms Boles opportunities to comply beyond the October 13, 2011 date. In his October 24, 2011 letter to Ms Boles, Registrar Allan Johnston advised her she had fifteen days within which to comply before further action would be taken. When that letter was returned as unclaimed, Ms Cordovez Mulet sent it by e-mail on November 3, 2011 at which time she requested that the fifteen day period begin on November 3, 2011. On November 28, 2011, Legal Counsel Jay Blair’s letter to Ms Boles advised her that unless the outstanding fine was paid by December 13, 2011 and she retook the Real Property Law examination by no later than January 31, 2012, that a Proposal to Suspend Registration would be issued.
Rather than pay the fine or retake the examination she had failed, Ms Boles escalated the volume of her correspondence to RECO. While it is conceivable that Ms Boles may have believed that RECO’s actions in extending time meant there was some potential to negotiate the penalty itself, the content of the letters sent by Mr. Johnston, Ms Cordovez Mulet and Mr. Blair clearly set out the consequences of non-compliance. At the telephone meeting of November 14, 2011 with Deputy Registrar Brian Schlotzhauer, Ms Boles stated her intention not to comply with the penalty.
Ms Boles closing statement to the Tribunal summarized her concerns with the fairness of the disciplinary committee proceedings. She re-iterated that the Discipline Committee hearing panel had no jurisdiction because of a delay of process and, without presenting any supporting evidence, alleged that the Registrar interfered with that panel’s decision. She stated she was not a risk to the general public, that the complaint against her was frivolous and should have been dismissed and that she did not cause any harm. She suggested that the Tribunal member should speak to the Registrar to “try to make him understand”.
The Registrar argued that Ms Boles past conduct in failing to comply with the Order of the Discipline Committee demonstrates that she will not carry on business in accordance with the law and with integrity and honesty. The Tribunal agrees. The evidence that Ms Boles has failed to comply with the Order of the Discipline Committee hearing panel is indisputable. Ms Boles appears to believe that because she disagrees with how the penalty came to be assessed that she does not have to pay it notwithstanding the clear requirements of the Act with respect to a registrant in this regard.. Ms Boles is in violation of Sections 21(7) and (8) of the Act, thereby clearly indicating there are reasonable grounds for belief that she will not carry on business in accordance with the law as set out in Section 10(1)(a)(ii) of the Act.
Ms Boles is the sole director and officer of DMB Realty Inc. Her failure to comply with the Order of the Discipline Committee hearing panel therefore indicates, as set out in Section 10 (a)(d)(iii) of the Act, that there are reasonable grounds for belief that the business of DMB Realty Inc. will not be carried out in accordance with the law.
The Tribunal notes that the Notice of Proposal to Suspend Registration dated December 16, 2011 does not set out a term for the suspension of the registrations of Ms Boles and DMB Realty Inc. Given the Registrar’s reasons for suspension relate solely to Ms Boles’ failure to comply with the Order of the Discipline Committee hearing panel, the Tribunal directs that Ms Boles’ suspension shall continue until such time as she has fully complied with that Order by successfully completing the Real Property Law course offered by the Ontario Real Estate Association and by paying the outstanding $7,000 fine.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs the Registrar to carry out the Proposal to Suspend Registration dated December 16, 2011. The Tribunal further directs that the suspensions shall remain in effect until such time as Donna Mae Boles has provided evidence of her successful completion of the Real Property Law course offered by the Ontario Real Estate Association and has paid the $7,000 fine as directed in the April 1, 2011 Order of the Discipline Committee.
LICENCE APPEAL TRIBUNAL
_________________________
Mary Ann Spencer, Member
Released: March 23, 2012