Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2014-04-01
FILE:
8650/REBBA
CASE NAME:
8650 v Registrar, Real Estate and Business Brokers Act, 2002
Motion for an Extension of Time to File an Appeal of a Decision of the Registrar under the Real Estate and Business Brokers Act, 2002 S.O. 2002 c. 30 to Revoke a Registration
Allan D. Shepheard
Applicant
-and-
Registrar, Real Estate and Business Brokers Act, 2002
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Laurie Sanford, Vice-Chair
APPEARANCES:
For the Applicant:
Self-represented
For the Respondent:
Jay Blair, Counsel
Heard by teleconference :
March 27, 2014
REASONS FOR DECISION AND ORDER
This is a motion brought by the Applicant, Mr. Shepheard, for an extension of time to file an appeal to the Licence Appeal Tribunal (the "Tribunal") from a Notice of Proposal of the Registrar (the "Registrar") dated January 30, 2014 and from a Final Notice issued by the Registrar on February 21, 2014. The Registrar in the Notice of Proposal proposed to revoke Mr. Shepheard's registration as a salesperson under the Real Estate and Business Brokers Act, 2002 S.O. 2002, c. 30 (the "Act") and the Final Notice contained the notice of revocation.
FACTS
Mr. Shepheard has been a real estate salesperson for approximately 19 years, during which time he has conducted approximately 1400 sales. A number of these sales have raised serious concerns on the part of the Real Estate Council of Ontario ("RECO"), the entity that enforces the Act and supports the Registrar's activities. In 2001, 2011 and 2012, RECO commenced actions involving Mr. Shepheard before its Discipline Committee. These cases resulted variously in a warning, administrative penalties, probation, terms and conditions, including requirements to complete a course in real estate law. In the 2001 case, Mr. Shepheard's conduct was condemned as "deplorable", "disgraceful" and "reckless". In 2013, RECO prosecuted Mr. Shepheard for his conduct in two real estate transactions under the Provincial Offenses Act. Mr. Shepheard was fined and, in one case, ordered to pay restitution. Mr. Shepheard has made the restitution. However, a $20,000 administrative penalty remains outstanding. In addition, Mr. Shepheard, despite several attempts, has not yet successfully completed the required course in real estate law.
Mr. Shepheard by his own admission is a poor financial manager. He has declared personal bankruptcy on three occasions. Each bankruptcy has been discharged, the latest in 2010. The Registrar asserts that Mr. Shepheard also has a commercial proposal outstanding since 1997. Mr. Shepheard is uncertain as to what this relates to and believes it may have been absorbed into his 1998 bankruptcy proceeding. He also has had a number of judgment debts. While Mr. Shepheard has made efforts to pay off these debts, some remain outstanding and he has recently acquired at least one new judgment debt. Mr. Shepheard believes he needs to hire an accountant to help him sort out his financial affairs. The Registrar asserts that Mr. Shepheard failed to disclose some of his judgment debts as required under the Act.
The Registrar, concerned about Mr. Shepheard's past conduct and his financial history, issued the Notice of Proposal to revoke Mr. Shepheard's registration on January 30, 2014 by courier. Mr. Shepheard collected the package on February 5, 2014. Under the Act, Mr. Shepheard had 15 days to file an appeal to the Tribunal, that is, until February 20, 2014. When the Registrar did not hear from Mr. Shepheard, he issued the Final Notice on February 21, 2014.
Mr. Shepheard was aware that the Registrar was planning to take action to revoke his registration; he had been notified of that in April, 2013. More recently, RECO had begun action to enforce the $20,000 unpaid penalty. Mr. Shepheard knew he had a right to appeal this action and he was within time to do so. He assumed that the February 5th couriered letter related to the outstanding penalty and so did not open it. He had planned to review the RECO file the following week but due to a dispute with his landlord was unable to gain access to his office and had to establish a new office which he did on February 17, 2014. It was not until he received the Final Notice on February 24th or 25th, that Mr. Shepheard became aware that RECO was pursuing not only the penalty but also the issue of revocation of his registration. On February 25, 2014, Mr. Shepheard filed a Notice of Appeal to the Tribunal and a Notice of Motion to extend the time to file this appeal.
Mr. Shepheard submitted that his personal life, which has become particularly chaotic since the recent breakdown of his marriage, was a factor in his failure to open the initial Notice of Proposal. He submits that selling real estate has been his livelihood for 19 years and is his means of supporting his four children. He argued that a delay of four days should not result in his losing his registration without a hearing. He notes that since he joined his current broker, nine months ago, there has not been an issue of misconduct raised against him. Mr. Blair, Counsel for the Registrar, submitted that the chaos in Mr. Shepheard's personal life, while grounds for sympathy, was itself a source of concern to the Registrar.
Mr. Blair submitted that this was not a proper case for an extension of time. The merits of the case were poor, the reason given for the delay was insufficient and the prejudice, not to the Registrar but to the public, was great if Mr. Shepheard were permitted to continue to trade in real estate until the date of his hearing. The Registrar was particularly concerned that Mr. Shepheard had requested that the hearing be postponed for up to 12 months to permit him to adequately defend the matter. Mr. Blair advised that if Mr. Shepheard had appealed within the time limit, the Registrar had planned to bring a motion to immediately suspend Mr. Shepheard's registration pending the outcome of a hearing. Mr. Blair suggested that if the Tribunal were inclined to grant the motion, it should be subject to a suspension of Mr. Shepheard's registration to protect the public. Counsel for the Registrar advised that if the motion were granted subject to a suspension of registration, then the Registrar would work with Mr. Shepheard to have an expedited hearing. Mr. Shepheard initially rejected the suggestion of an expeditied hearing date, believing he would need more time to prepare. He submitted that he needed his registration reinstated as without it he had been out of work for more than five weeks and needed to be earning money to hire a lawyer to defend himself.
DECISION
The parties do not dispute the Tribunal's jurisdiction to extend the time to file an appeal in this case. There is case law which sets out the principles which the Tribunal ought to consider in deciding whether or not to exercise its discretion to extend a time limitation. This case law has been reviewed in a number of Tribunal decisions, including the decision of this panel in the case of Lopez Rocco General Contracting Ltd. vs the Registrar, Ontario New Home Warranties Plan Act, released October 31, 2007. The decision summarises the law as follows:
Concerning the issue of what constitutes "reasonable grounds" for extending the time in which to file an appeal, the case of Miller Manufacturing and Development Co. v Alden, [1979] O.J. No. 3109, a decision of the Ontario Court of Appeal, canvases the law and concludes:
[The decisions] reveal that a number of considerations are viewed as important, the emphasis given to them in each case varying with the circumstances. They include the existence of a bona fide intention to appeal, the length of the delay, prejudice to the other party, whether it can be compensated by costs and the merits of the appeal.
In considering these factors, Mr. Justice Blair noted that the question of whether the appeal had merit could be established with a lesser standard of proof than is required on an application for leave to appeal.
In the subsequent Ontario Court of Appeal decision in Frey v. MacDonald, [1989] O.J. No. 236, Mr. Justice Blair added the following:
Usually, time for appeal or taking any steps within an appeal is not extended unless the appellant has maintained a firm intention from the beginning to appeal and the failure to observe the time limits is reasonably explained. This, however, is subject to a broader rule that extensions should be granted if the 'justice of the case' requires . . . .
. . . . the Frey decision was affirmed by the Ontario Court of Appeal in 2004 in Brent v. Brent [2004] O.J. No. 639 (C.A.).
Mr. Shepheard's case for granting the motion to extend the time for filing his request for a hearing is marginal. His explanation for the delay is not compelling although it may, depending on other factors, be adequate. His case on appeal is not strong although it does raise at least the issue of whether his ongoing acts of restitution and repayment of debts are sufficient to permit him to continue his registration when weighted against the fact that his breaches of RECO's code of ethics are increasing in frequency. His intent to appeal was firm as evidenced by his swift action when he finally became aware of the revocation notice.
What tips the scales in Mr. Shepheard's case is the matter of prejudice. Mr. Blair acknowledges that there is no prejudice to the Registrar by the delay. The prejudice to Mr. Shepheard, on the other hand, is great. He risks losing his livelihood without a chance to defend himself from the allegations of the Registrar and without having the opportunity to present mitigating factors. In the circumstances of this case, Mr. Shepheard should be given this opportunity and the time for requesting a hearing should be extended until February 25, 2014, the date on which Mr. Shepheard filed his Notice of Appeal.
The Tribunal accepts Mr. Blair's submission that this is an appropriate case for suspending Mr. Shepheard's registration pending the hearing. Mr. Shepheard's acts of misconduct are increasing in frequency. There is an outstanding fine and an outstanding failure to complete a course in real estate law, both issues of concern when considering whether to permit Mr. Shepheard to continue to trade in real estate without condition.
The Tribunal did consider the possibility of imposing conditions on Mr. Shepheard's registration. Counsel for the Registrar submitted that no such terms were feasible. Mr. Shepheard did not satisfy the Tribunal that he would abide by terms and conditions short of suspension and he did not propose terms and conditions that he was prepared to undertake. The fact that there is an assertion that he is in violation of an undertaking was also a factor for the Tribunal in concluding that this was not an appropriate case for terms and conditions and that a suspension pending the hearing was necessary in the public interest.
Under subsection 15(3) of the Act, where there is an order for immediate suspension, there is an automatic process for an expedited hearing. The immediate suspension order expires 15 days after a written request for a hearing unless the hearing commences within that 15 days and the Tribunal elects to extend the time of suspension. However, subsection 15(4) provides that the Tribunal may extend the duration of the immediate suspension where it is satisfied that the conduct of the registrant has delayed the commencement of the hearing. In this case, the Tribunal is satisfied that Mr. Shepheard's delay in filing his appeal was the cause of the delay in commencing the hearing. In reaching this conclusion, the Tribunal is mindful of the fact that Mr. Shepheard rejected the Registrar's offer of an expedited hearing. The Tribunal is therefore prepared to extend the time of the suspension of Mr. Shepheard's registration until the commencement of the hearing. At that time, the panel hearing the matter may decide under subparagraph 15(4)(b) whether or not to extend the suspension until the hearing is concluded.
In the meantime, Mr. Shepheard should be given an opportunity to re-think his position and elect an expedited process and the Order will grant him an opportunity to do this. If Mr. Shepheard does not request an expedited process, then the Tribunal will proceed to schedule a pre-hearing in this matter in the usual way and the parties will, at the pre-hearing, agree on hearing dates.
ORDER
Under the authority of sections 14 and 15 of the Act, the Tribunal orders as follows:
Mr. Shepheard is granted an extension of time to file his request for hearing and the Tribunal accepts Mr. Shepheard's Notice of Appeal filed with the Tribunal on February 25, 2014.
Effective immediately, Mr. Shepheard's registration is suspended until the commencement of the hearing in this matter.
If Mr. Shepheard choses to have an expedited hearing in this matter, he will give written notice of his request to the Tribunal and the Registrar and both the Tribunal and the Registrar will use reasonable efforts to accommodate his request.
LICENCE APPEAL TRIBUNAL
Laurie Sanford, Vice-Chair
Released: April 1, 2014