Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 7919/REBBA
CASE NAME: 7919 v. Registrar, Real Estate and Business Brokers Act, 2002
An Appeal from a Notice of Proposal by the Registrar, Real Estate and Business Brokers Act, 2002, (the “Act”) to Refuse Registration
Edward Edmonds Applicant
-and-
Registrar, Real Estate and Business Brokers Act, 2002 Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Andrew Diamond, Vice-Chair
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Maya Sabharwal, Counsel
Heard in Toronto: June 10, 2013
REASONS FOR DECISION AND ORDER
OVERVIEW
Edward Edmonds (the Applicant) was registered as a real estate sales person from April 2010 to April 2012 when his registration lapsed. In May of 2012 The Applicant applied for re-instatement. The Registrar, Real Estate and Business Brokers Act, 2002 (“the Registrar”), by Notice of Proposal dated February 5, 2013, refused to register the Applicant. The Applicant appeals that decision to the Tribunal.
PRELIMINARY ISSUE
A core issue on this appeal is the fact that the Applicant was charged with criminal offences. The Applicant was convicted in January, and sentenced in July of 2012. The Applicant has appealed his conviction. The appeal needs to be perfected before a date for the appeal will be set.
As a preliminary matter, the Registrar sought an adjournment of this appeal pending the decision of the Court of Appeal in the criminal matter and in doing so cited the Tribunal’s decision in 7612 v. Registrar, Real Estate and Business Brokers Act, 2002. The Applicant opposed the adjournment arguing that his reinstatement has been outstanding for over a year and if allowed to re-register, he wishes to get back to his brokerage as quickly as possible.
In the above noted case, both the Registrar and the Applicant sought the adjournment. As the Applicant in this case wishes to proceed, the Tribunal needs to balance the prejudice that may accrue to each party if an adjournment is, or is not, granted.
The possible prejudice to the Registrar in not having the final outcome of the criminal proceeding to rely on at this hearing does not outweigh the prejudice to the Applicant in not being able to work in the field for what is likely to be at least 6 months, if not a year, before the appeal is finally determined. Therefore, the Tribunal denied the adjournment request and the hearing proceeded.
FACTS
On December 16, 2008, the Applicant was charged with a number of criminal offences. On the Applicant’s 2010 application to become a registered real-estate sales person, he properly disclosed the charges and the Registrar agreed to licence the Applicant with a number of conditions including that the Applicant shall:
Agree to inform the Registrar immediately, in-writing, on the outcome of the matter pending before the Courts; (Emphasis added)
Provide the Registrar with a copy of the Judges’ Reasons for Sentencing if convicted; and
Provide the Registrar with a current C.P.I.C. report with his next renewal application.
As stated above, the Applicant was convicted in January 2012, but did not advise the Registrar. As discussed in more detail below, it was the Applicant’s testimony that he interpreted the condition “to immediately advise the Registrar of the outcome” to mean that his obligation was to report the final outcome of the case, including any appeals, and that he was not obliged under the condition of his licence to report the January 2012 conviction.
The Applicant was not sentenced until July 2012, over two months after the licence with the conditions expired. When asked when he provided the information dealing with his sentencing, he indicated he did not know but that he provided whatever the Registrar asked for.
The standard application form for registration as a licenced real-estate sales person asks seven questions which are designed to elicit information to assist the Registrar in determining whether the Applicant satisfies the requirements of section 10 of the Act, that is, that they will be able to conduct their business in a financially responsible manner with honest, integrity and in accordance with the law. As Ms Volpe testified on behalf of the Registrar, the Registrar must rely on the honesty and integrity of the applicant to answer the questions and the Registrar is of the view that if an applicant is not voluntarily forthcoming with the regulator this shows a lack of honesty and integrity on the part of an applicant.
The Registrar takes issue with how the Applicant answered the following three questions on his May 2012 application form:
Are there any unpaid judgments and/or unpaid debts outstanding against you?1
Have you had a registration and/or licence or professional status of any kind refused, suspended, revoked or cancelled and/or have you been involved in any proceedings during which you resigned a registration or licence or professional status of any kind, or are there any proceedings pending? And
Are there currently any charges pending or have you been found guilty, plead guilty to, or been convicted of an offence under any law? (emphasis added).
In response to the question regarding charges and convictions, the Applicant answered “yes” and then wrote in “ON FILE” on the form. When asked what he meant by “on file”, the Applicant testified that he meant that the Registrar was already aware of his having been charged with the criminal offences. It did not mean that he had provided any new information for the file.
As part of its due diligence, the Registrar contacted the Applicant and asked for more details on a number of issues including the status of the criminal charges. By email dated May 31, 2012, the Applicant responded to the Registrar as follows:
Attached is a note from my lawyer as to my next court appearance scheduled May 31, 2012. I have been told through my lawyer this will be put off until sometime in July because the Judge is in the middle of another case.
The note from the lawyer was not produced as evidence before the Tribunal. In a separate undated letter from the Applicant dealing with his reinstatement application and responding to the Registrar’s enquiry about the criminal proceedings, the Applicant advised the Registrar that:
The pending charges …are still before the courts with the next scheduled court date of May 31, 2012. If any conviction is to be registered, then Calvin Barry Professional Law Office has been retained to handle the appeal. This counsel claims that if that is the case these items will be before the courts for an additional eighteen months before the outcome will be determined. I am aware that I am to notify RECO within five days of the outcome…. (Emphasis in the original)
The Applicant did not disclose to the Registrar that he had been in fact convicted of the charges in January 2012 and was awaiting sentencing then scheduled for May 31, 2012 and later rescheduled to July 2012.
The Registrar also lead evidence that the Applicant failed to disclose a Judgment for child support and an outstanding debt to the Family Responsibility Office, and that he failed to disclose that the Registrar under the Motor Vehicle Dealers Act had issued a proposal to refuse his licence as a car salesperson
LAW
The pertinent sections of the Act, in respect of a Registrar's refusal to register an applicant seeking re-instatement, are 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;...
(f) the applicant is in breach of a condition of the registration;.
Conditions
(2) A registration is subject to such conditions as are consented to by the applicant or registrant, as are applied by the registrar under section 13, as are ordered by the Tribunal or as are prescribed. 2002, c. 30, Sched. C, s. 10 (2)....
Refusal to register, etc.
- (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).
Conditions
(2) Subject to section 14, the registrar may,
(a) approve the registration or renewal of a registration on such conditions as he or she considers appropriate; and
(b) at any time apply to a registration such conditions as he or she considers appropriate. 2002, c. 30, Sched. C, s. 13 (2).
Notice re: refusal, suspension, etc.
- (1) The registrar shall notify an applicant or registrant in writing if he or she proposes to,
(a) refuse under subsection 13 (1) to grant or renew a registration;
(b) suspend or revoke a registration; or
(c) apply conditions to a registration or renewal to which the applicant or registrant has not consented. 2002, c. 30, Sched. C, s. 14 (1); 2004, c. 19, s. 18 (11).
ANALYSIS
The registration criteria set out in section 10 of the Act are designed to provide consumers with a level of protection from unscrupulous realtors. From April, 2010, the Applicant was aware that the Registrar was interested in the outcome of the criminal charges against him, thus his requirement for the conditions to his original license set out above. The Tribunal does not accept the Applicant’s interpretation of the condition that he was not obliged to advise the Registrar of his conviction until all appeals had been exhausted. On a plain and ordinary reading of the condition, the Tribunal concludes that the Applicant had a positive obligation under his licence conditions to report his conviction in January 2012 and by not doing so he has violated the condition of his licence contrary to section 10 (1) (f) of the Act.
However, even if it could be argued that the failure to report the conviction was not a violation of the condition of the licence,, the Applicant knew or ought to have known that to be renewed or registered by the Registrar, that the Registrar would be making a determination as to the Applicant’s honesty and integrity, such that all his conduct with the Registrar should be of the highest standard of integrity. Despite this, when applying to be re-registered in May of 2012, the Applicant was less than forthcoming and was arguably intentionally misleading when he reported to the Registrar that he had a future court appearance, implying the matter was not complete (when the reality was that the court appearance was for sentencing), and that “if any conviction is to be registered” he would appeal. As of May 2012, the truth was that the Applicant had already been convicted. Failing to report this conviction, especially given his licence condition, showed a lack of honesty and integrity which is sufficient to warrant a refusal to register the Applicant. His pattern of nondisclosure as evidenced by his failure to disclose the judgment for child support and the debt with the Family Responsibility Office provides additional support for that conclusion.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs the Registrar to carry out the Notice of Proposal dated February 5, 2013, and refuse the registration of the Applicant as a Broker under the Act.
LICENCE APPEAL TRIBUNAL
_________________________
Andrew Diamond, Vice-Chair
Released: June 19, 2013