Licence Appeal Tribunal
Appeal d'appel en matière de permis
FILE: 7452/REBBA
CASE NAME: Jaswant Sekhon 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 Revoke Registration
Jaswant Sekhon Applicant
-and-
Registrar, Real Estate and Business Brokers Act 2002 Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Terrance Sweeney, Vice-Chair
APPEARANCES:
For the Applicant: Jack Fitch, Counsel
For the Respondent: Ian Daley, Counsel
Heard in Toronto: July 8, 9 and 10, 2013
REASONS FOR DECISION AND ORDER
BACKGROUND
This is an appeal to this Tribunal from a Notice of Proposal, dated May 22, 2012,1 to revoke the registration of the Applicant as a salesperson under the Real Estate and Business Brokers Act 2002 (the "Act"). In the Notice of Proposal, the Registrar alleged that the Applicant had:
a. used his registration to participate in a fraud; and
b. impeded an investigation by the Real Estate Council of Ontario ("RECO") by lying to RECO investigators and legal counsel or, alternatively, committed perjury.
At the opening of the hearing on July 8, 2013, Counsel asked for a continuance to allow them to negotiate an agreed statement of facts. The Tribunal, therefore, ruled that the matter would continue that afternoon.
In the afternoon, Counsel advised the Tribunal that they were close to settling an agreed statement of facts and were reasonably confident that the matter would be resolved. The Tribunal ruled that the matter would proceed the next morning.
On July 9, 2013, Counsel for the Applicant surprised the Tribunal by making two motions:
a. A request for yet another adjournment on the grounds of some late disclosure by the Registrar; and
b. Permission to withdraw as Counsel for the Applicant as his account had not been paid and he saw no reasonable prospect that it would be paid.
The Tribunal allowed Counsel to withdraw. A person of Mr. Fitch's experience should not be expected to engage in a possibly long hearing without compensation.
Counsel for the Registrar strenuously argued against another adjournment. He pointed out that the Applicant had already received two adjournments and the matter had been marked "peremptory" against the Applicant.
The Tribunal asked Mr. Fitch if his client would be prepared to agree to a suspension of his licence pending the resolution of the case. He said "No".
The Tribunal ordered that the matter would proceed the next day. At the opening of the hearing on July 10, the Tribunal again indicated that it would adjourn the matter if the Applicant surrendered his licence pending the outcome of this hearing. He declined and the hearing commenced.
DECISION
The Tribunal has considered the evidence. The Registrar has proved his case on a balance of probabilities.
The licence of the Applicant will be revoked for the reasons which follow.
THE EVIDENCE FOR THE REGISTRAR
Nahun Espinoza
He is part of the management team at Macquarie Financial. He inherited the Sekhon file four years ago but he had been familiar with it previously.
Macquarie had mortgaged a house in Brampton in 2008 to one Ms. BM who called him in July 2008 and alerted him to a possible fraud involving the mortgage. Ms. BM alleged fraud against the mortgage broker, Saravpreet Minhas. Mr. Espinoza reviewed the file and found that Saravpreet Minhas was not registered with Financial Services Commission of Ontario. Macquarie, therefore, suspended Saravpreet Minhas.
Mr. Espinoza's investigation revealed that the documents submitted in support of the mortgage application for Ms. BM were fraudulent.
In order to access its system, a mortgage broker had to have a password. The password in this case was Saravpreet Minhas' and all email dealings were with him at his email address. Macquarie paid a commission to Mortgage Alliance which, in turn, would have remitted the commission to the appropriate realtor.
Ms. BM could not service the mortgage which went into default. She surrendered the property in August 2008 and declared bankruptcy. Macquarie suffered a loss and claimed over against its mortgage insurer.
Saravpreet Minhas
He is currently registered as a real estate salesperson. He used to have a mortgage licence. He knows the Applicant but never processed a mortgage application for Ms. BM, either through the Applicant or his wife Rajinder Sekhon.
If a mortgage were processed in his name then somebody stole his password with Macquarie. He admitted that Rapinder Minhas is his brother. He denied on cross-examination that he conspired with the Applicant to lie on his prosecution for fraud.
Kelvin Kucey
He is a lawyer and prosecutor for RECO. He led the prosecution of Saravpreet Minhas under the Provincial Offences Act for fraud in 2010. He filed an affidavit sworn on July 12, 2012.2 In this affidavit, he swore as follows:
The Applicant had identified Saravpreet Minhas to a RECO investigator as the mortgage broker with whom he dealt on this file.
The trial against Saravpreet Minhas commenced on June 1, 2010. He spoke to the Applicant during a recess. The Applicant confirmed that it was Saravpreet Minhas, and not Rapinder Minhas, with whom he dealt on the financing for Ms. BM.
On the recommencement of the trial in September 2010, the Applicant testified that it was Rapinder Minhas, and not Saravpreet Minhas, with whom he dealt on the BM financing.
The charge against Saravpreet Minhas was dropped by RECO given the testimony of Jaswant Sekhon.
Ms. CPS
She testified that Rajinder Sekhon knocked on her door in Brampton in 2010 and asked if she wanted to sell. She and her husband ultimately agreed to list with Jaswant Sekhon who produced a buyer. They also agreed to buy another home through Jaswant Sekhon which was to close the same day.
She said that Mr. Sekhon approached them and got them to sign a document by which they would return $10,000.00 to the buyer after closing. She thought that "this seemed a bit shady" but they signed.
She had difficulty in reaching Mr. Sekhon as the time of closing approached. On the day of closing, she was advised that the financing for the buyer had not come through. This was stressful as she and her husband were threatened with a lawsuit by the seller of the home that they had agreed to purchase.
She complained to Rui Alves, the broker of record for the Applicant. He agreed that Mr. Sekhon would no longer work for him and he reduced his commission to zero. She agreed to list with another agent of Mr. Alves. She ultimately sold her house and suffered no financial loss.
Rui Alves
He confirmed the testimony of Ms. CPS. Moreover, he was not able to find a promissory note for $10,000.00 in his file nor was Mr. Sekhon able to produce one. Mr. Sekhon was not able to produce any documentary evidence that the $10,000.00 was a loan rather than a "cash back" deal.
Angela Volpe
She is the manager of registration at RECO, which was designated in April 1997 as the sole administrative authority for the Act.
She works with the Registrar and Deputy Registrar to manage the Act in the public interest.
She referred to the Notice of Proposal in this case. The Registrar decided to seek to revoke the registration of the Applicant because of the serious allegations of fraud and consumer fraud.
William Hunter
He has been an investigator for RECO for seven years following a 31-year career with the Toronto Police Services.
He attended at the offices of Macquarie on July 11, 2008 to meet with a representative of RECO and Ms. BM, who had complained about the Applicant with whom she dealt on the purchase of her home and through whom she had obtained a mortgage.
Ms. BM said that she never met with the mortgage broker. Her only dealings were with Mr. Sekhon
She said:
a. she had never been employed at Supertech Info and had not seen the letter from that company saying that she worked there and earned $65,000.00 per annum;
b. she was a single mother getting a "baby bonus" and some government financial support when she met with Mr. Sekhon;
c. she gave a hydro bill to Mr. Sekhon on her grandmother's house where she was staying;
d. she identified two bank statements of hers but the transactions shown there were not hers.
Mr. Hunter tracked down Saravpreet Minhas in a mall where he was working. He interviewed Saravpreet Minhas who was quite evasive.
He interviewed Ms. BM again and her then fiancé, now her husband. She was consistent in her story and revealed, for the first time, that Mr. Sekhon got her to sign a written waiver of the condition in her agreement of sale related to financing. Mr. Hunter was concerned by this as Macquarie had not then consented to provide a mortgage to her.
Mr. Hunter decided to charge Saravpreet Minhas under the Provincial Offences Act with providing false documents.
In 2010, he interviewed Ms. CPS about her complaint against Mr. Sekhon. She confirmed that Mr. Sekhon had her sign the $10,000.00 "cash back" document but he never gave her a copy thereof. Mr. Hunter checked with the lawyer for Ms. CPS. He had no documentation in his file to support a "cash back" agreement or a loan.
Interviews
The Appellant
October 16, 2008
Mr. Alves was present. Mr. Sekhon confirmed that he was the sales agent for Ms. BM. He said that Ms. BM said she earned $30,000.00 per annum and her fiancé earned $15.00 an hour doing various jobs.
Mr. Sekhon confirmed that he had her sign the waiver of financing and sent her application for financing to Mortgage Alliance Company and said he knew Saravpreet Minhas there.
Mr. Hunter showed him copies of the relevant fraudulent documents and he denied any knowledge thereof.
October 12, 2010
He interviewed Ms. CPS and her husband who confirmed the essential facts.
November 2, 2010
He interviewed Mr. Alves and afterwards Mr. Sekhon with Mr. Alves present. This meeting dealt with the Ms. CPS complaint.
Mr. Sekhon denied the "cash back" document. He said it was to be a loan from the sellers to the buyers to help them finish the basement. He was unable to produce any documentation to support either story. He said that he "misplaced" the document.
When Mr. Hunter asked him to look at some documents, Mr. Sekhon said that he had left his glasses at home.
Mr. Hunter said that Mr. Sekhon told the Provincial Court in September 2010 a different story than he told him as to the identity of the mortgage broker.
THE EVIDENCE FOR THE APPLICANT
He called no witnesses. He did not file any documents. He baldly denied the allegations against him. He said that RECO was making a scapegoat of him because RECO lost its case against Saravpreet Minhas in the Provincial Court in 2010.
He said that Mr. Kucey was wrong in his affidavit and evidence. According to Mr. Sekhon, Mr. Kucey simply mixed up the names of Saravpreet Minhas and his brother. He insisted that the $10,000.00 in the Ms. CPS matter was to be a loan to help the buyers finish the basement.
ANALYSIS
Obstruction of Justice and/or Perjury Allegation
Mr. Kucey is a lawyer and an officer of the court. The Tribunal accepts his evidence unreservedly. Moreover, it is corroborated by Mr. Hunter. Accordingly, the Tribunal finds that the Applicant probably lied to Mr. Kucey in June 2010 or perjured himself in the Provincial Court in September 2010.
The $10,000.00 in the Ms. CPS Matter
The Tribunal accepts the evidence of Ms. CPS that Mr. Sekhon had her and her husband sign a document which provided that they would pay the buyers back $10,000.00 after closing. Mr. Sekhon's testimony in this regard is derisory. He probably conveniently "lost" the document providing for the "cash back" and concocted the "loan" story when RECO started investigating him.
This was a potential fraud on the mortgagee which would have advanced $10,000.00 in the belief that the house was to be sold for $10,000.00 more than it actually was to be sold for.
The past conduct of the Applicant is such that the Tribunal does not believe that he would carry on business in accordance with law, integrity and honesty under paragraph 10(1)(a)(ii) of the Act.
ORDER
The Registrar shall revoke the registration of the Applicant as a salesperson under the Act.
LICENCE APPEAL TRIBUNAL
Terrance Sweeney, Vice-Chair
Released: July 23, 2013