Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2014-07-10
FILE:
8650/REBBA
CASE NAME:
8650 v Registrar, Real Estate and Business Brokers Act, 2002
Motion for the reinstatement of the Appellant’s licence and for disclosure under the Real Estate and Busi
ness Brokers Act, 2002 S.O. 2002 c. 30.
Allan D. Shepheard
Appellant
-and-
Registrar, Real Estate and Business Brokers Act, 2002
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Douglas R. Wallace, Vice-Chair
APPEARANCES:
For the Appellant:
Jaye E. Hooper, Counsel
For the Respondent:
Jay Blair and George Drametu Counsel
Heard in Ottawa
June 20, 2014
REASONS FOR DECISION AND ORDER
This is a motion by the Appellant, Mr. Shepheard, for the reinstatement of his registration as a real estate salesperson under the Real Estate and Business Brokers Act 2002 (the Act) until such time as the Tribunal renders its decision in his appeal of the Registrar’s Notice of Proposal. The motion also asks for full disclosure of all documents by the Registrar.
Following the Notice of Proposal, the Registrar issued a Final Notice revoking Mr. Shepheard’s registration. On March 27, 2014, Mr. Shepheard brought a motion before Vice-Chair Sanford to extend the time for appealing the Notice of Proposal.
In her decision on the motion, Vice-Chair Sanford extended the time for Mr. Shepheard to appeal the Notice of Proposal. She also considered the Registrar’s submission that if an extension of the time for appealing the Notice of Proposal were to be granted, the revocation of his registration should be suspended pending the hearing of the appeal. The Vice-Chair took a number of factors into account in reaching her decision on this aspect of the motion. These factors are set out in their entirety in her decision released on April 1, 2014. They include the Appellant’s alleged acts of misconduct, the possibility of imposing conditions on Mr. Shepheard’s licence during any period of reinstatement, and the fact that Mr. Shepheard had not taken advantage of his right to obtain an automatic reinstatement of his licence by requesting an expedited hearing. In the end, the Vice-Chair decided that Mr. Shepheard’s licence should remain suspended until the commencement of the hearing of the appeal. She noted that at that time the panel hearing the appeal might consider whether the suspension should be extended until the conclusion of the hearing.
On the hearing of this motion, Counsel for the Appellant proposed to call evidence indicating that protocols are in place in the broker’s office where Mr. Shepheard is employed which will ensure that reinstating his licence will not cause any risk to the public. Counsel also proposed to call the Appellant to indicate that he is willing to agree to a number of conditions being placed on his licence if his suspension is lifted until the hearing.
On reading the motion and response to the motion and after hearing submissions by counsel, the Tribunal held that it lacked jurisdiction to hear this part of the motion as the issue on this motion, namely whether Mr. Shepheard is entitled to practice his trade as a real estate salesperson prior to the commencement of the hearing of his appeal, being the very issue decided by Vice-Chair Sanford. No appeal having been taken from this decision, that decision is final and binding on the parties.
The second part of the motion asked for an order requiring the Registrar to disclose the following documents:
a) Full disclosure of all communications between the Real Estate Council of Ontario (RECO) and the complainants against Mr. Shepheard including all emails, phone logs, letters etc.
b) Full disclosure of all communication between RECO and any other clients of Mr. Shepheard including all emails, phone logs, letters etc.
c) The names and positions of all employees at RECO who have worked on Mr. Shepheard’s file
d) The last known contact information of any employees who worked on Mr. Shepheard’s file but are no longer employed with RECO
e) Disclosure of the complete investigation file of RECO for Mr. Shepheard.
Counsel for the Appellant submitted that the Registrar had not been forthcoming with all complaints against Mr. Shepheard at the earliest opportunity. She also stressed that as Mr. Shepheard’s conduct, both good and bad, would be in issue at the hearing she needed to know whether RECO’s investigation revealed positive feedback as well as negative in order to properly appreciate the case to be met and to prepare a proper response.
Mr. Drametu did not contest the relevance of the documents sought, but argued that the inner workings of RECO are not open for review. Further, RECO does not know what employees may have worked on Mr. Shepheard’s file or what clients may have made a favourable comment during an investigation unless an employee makes a notation in the investigator’s file. He also noted that section 6.3 of the Tribunal's Rules of Procedure requires a party to disclose only those documents it intends to rely on at the hearing
The Tribunal is aware of the very serious consequences to Mr. Shepheard of an adverse finding at the hearing and acknowledges the growing body of law both in the courts and before this Tribunal applying the doctrine of procedural fairness as enunciated by the Supreme Court of Canada in the leading case of R. v. Stinchcombe 1991 CanLII 45 (SCC), [1991] 3 SCR 326. It is also aware of the recent decision of this Tribunal in Re. Axcel Auto Group Inc (c.ob. Mountain Mazda) [2014] O.L.A.T. No.59, wherein Vice-Chair Flude dealt with similar objections to full disclosure as those raised by Mr. Drametu.
The Tribunal finds Vice-Chair Flude’s reasoning persuasive both as to the Appellant’s entitlement to the disclosure of documents in excess of those required by Rule 6.8 (a) and to the exemption of personal information concerning current and former employees.
Having considered the submissions with respect to both parts of this motion, the Tribunal orders as follows:
The motion to reinstate the Appellant’s registration is dismissed but may, as indicated by Vice-Chair Sanford, be considered at the opening of the hearing.
The Registrar is to provide full disclosure of all documents relevant to the Appellant’s past conduct set out in the following paragraphs:
a) All communications between RECO and the complainants against Mr. Shepheard including all emails, phone logs and letters.
b) All communication between RECO and any other known clients of Mr. Shepheard including all emails, phone logs and letters.
c) The complete investigation file of RECO for Mr. Shepheard.
- Disclosure shall be made by July 20, 2014.
LICENCE APPEAL TRIBUNAL
Douglas R. Wallace, Vice-Chair
Released: July 10, 2014