Ryan Coyle v. Registrar, Real Estate and Business Brokers Act, 2002, 2015 CanLII 89190

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2015-12-04

FILE:

9488/REBBA

CASE NAME:

9488 v. Registrar, Real Estate and Business Brokers Act, 2002

Appeal from a Notice of Proposal of the Registrar under the Real Estate and Business Brokers Act, 2002, S.O. 2002, c. 30, Sched. C - to Revoke Registration

Ryan Coyle

Appellant

-and-

Registrar, Real Estate and Business Brokers Act, 2002

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Patricia McQuaid, Vice-Chair

APPEARANCES:

For the Appellant:

Neil G. Wilson, Counsel

For the Respondent:

Maya Sabharwal, Counsel

Heard in Toronto:

October 13 and 14, 2015

REASONS FOR DECISION AND ORDER

The Appellant appeals the decision of the Registrar under the Real Estate and Business Brokers Act, 2002, S.O. 2002, c. 30, Sched. C (the “Act”) to revoke his registration as a real estate broker on the grounds that his past conduct, namely his conviction under the Criminal Code for conspiracy to traffic in cocaine and possession of the proceeds of crime, affords reasonable grounds for belief that he will not carry on business in accordance with law and with integrity and honesty. Further, the Registrar alleges that Mr. Coyle made a false statement on an application for renewal of registration, specifically, that he failed to disclose a conviction for refusing to provide a breath sample, contrary to the provisions of the Criminal Code.

After considering the evidence and submissions, the Tribunal directs the Registrar not to carry out the Notice of Proposal.

By way of preliminary matters, Mr. Wilson requested, pursuant to Rule 7.4 of the Tribunal’s Rules of Practice, that an order be made for restricted access to the record in this proceeding; specifically, the documents disclosed by the Appellant which comprise medical information, fingerprints and family photographs. Ms. Sabharwal stated that she was agreeable to such an order. The Tribunal agrees that the value of public access to these specific personal documents is outweighed by the privacy concerns of the Appellant. Therefore, pursuant to the Tribunal’s Rules of Practice, the Tribunal orders that there shall be restricted access to this part of the record; only the parties shall have access to the medical information, fingerprints and family photographs disclosed by the Appellant.

EVIDENCE

The timeline of Mr. Coyle’s registration history is very relevant to the two issues which form the basis of the Registrar’s Notice of Proposal, and particularly to the “failure to disclose” issue.

The failure to disclose

Mr. Coyle was first registered as a real estate salesperson in May 2005. To obtain that registration, he completed an application form. His answer to Question 7 on the May 2005 application form (and on subsequent renewals) is an issue in this hearing. Question 7 reads:

Are there currently any charges pending, or have you been found guilty, pleaded guilty to, or been convicted of an offence under any law?

Mr. Coyle answered “no”. He renewed his registration in May 2007. At that time, he answered “yes” to Question 7. By way of explanation, Mr. Coyle provided a note which stated:

I have already notified RECO of the allegations against me, and met with several members of management. I was instructed to notify Bruce (sic) Schlotzhauer of any outcome or changes in the charges pending. I have been keeping him posted of any upcoming court dates and there has been no change in the status of the charges…

In this response, Mr. Coyle was referring to the drug related criminal charges laid in May 2006. There is no dispute that RECO was made aware of the criminal charges in a timely manner. As a result of the disclosure, conditions were placed on Mr. Coyle’s registration that required him to keep the Registrar apprised of the criminal proceedings and to immediately notify the Registrar if any complaints were made against him. It is also agreed that Mr. Coyle complied with the conditions placed on his registration.

In April 2009, Mr. Coyle applied to be registered as a broker. To Question 7, he again responded in the affirmative and the same conditions were placed on his broker registration. Ms. Volpe, Manager of Registrations at RECO, stated in her evidence that typically if someone is facing charges, they are asked to voluntarily accept such conditions and these conditions are left on their registration pending the outcome of the criminal matter.

One of the conditions required Mr. Coyle to provide a current Criminal Record Report, which was received by the Registrar in January 2012. It appears that it was at this time that the Registrar became aware of Mr. Coyle’s November 2005 conviction for a failure to provide a breath sample contrary to s. 254(5) of the Criminal Code. On this conviction, Mr. Coyle received a sentence of a one year driving prohibition and a $750 fine.

The Registrar does not dispute that Mr. Coyle disclosed the very serious criminal charges for trafficking in cocaine. The non-disclosure alleged by the Registrar is that of a “conviction” for failure to provide a breath sample. Full disclosure on an application for registration is a requirement demanded of registrants, regardless of the severity of the charge. As Ms. Volpe stated in her evidence, it is the Registrar’s first opportunity to assess a person’s suitability for registration.

The history of this “conviction” is very relevant to the non-disclosure allegation. Mr. Coyle was charged in or about February 2003 with a refusal to provide a breath sample. The charge was dismissed by a judge of the Summary Convictions Court in May 2004. At the time of the first registration in May 2005, there were no charges pending; Mr. Coyle had been acquitted at first instance. The Crown appealed that dismissal and the appeal was heard on October 26, 2005. On appeal, the Court found Mr. Coyle guilty and a sentence of a $750 fine and a one year driving suspension was imposed on November 15, 2005. Mr. Coyle appealed that sentence, and on October 19, 2007, the Court of Appeal allowed his appeal and set aside the order of summary conviction. The Court of Appeal directed a new trial on the original charges. Mr. Coyle stated in his evidence that he never paid the fine, nor did he lose his licence, presumably because of the ongoing appeal process. The Crown did not pursue a new trial of the charges following the Court of Appeal decision.

Mr. Coyle stated in his evidence that it was a mistake not to disclose the “failure to provide a breath sample” conviction on the May 2007 renewal application and that he may have been confused because of the appeal process. It was on that May 2007 renewal that terms and conditions were placed on his registration due to his disclosure of the drug charges. There was no evidence that the terms and conditions would have been imposed due to the summary conviction appeal in November 2005.

Despite the Court of Appeal decision, the RCMP records search received by RECO in January 2012 indicated that Mr. Coyle was found guilty and cited the disposition of the $750 fine and the one year driving prohibition. Mr. Coyle’s lawyers in relation to his correctional matters advised the authorities that his CPIC record was incorrect: that he was not ultimately convicted of that charge. In fact, the last entry in the Court’s records is the endorsement of dismissal of the charge in May 2004.

Though the Registrar had this information from the RCMP criminal record report in January 2012, which may have suggested a non-disclosure issue, he did, nevertheless, renew Mr. Coyle’s registration in July 2013. A reasonable inference from this is that the Registrar was, understandably, more concerned with, and focused on, the ongoing criminal charges related to cocaine.

In paragraph 17 of the Notice of Proposal, the Registrar alleges that: “At no point did Coyle disclose to the Registrar, on any application for registration, renewal or re-instatement, the fact of his driver’s licence suspension in November 2005”. It is a reasonable inference from Mr. Coyle’s perspective, as the facts set out in some detail above bear out, that there was no conviction. No fine was owed and no driving prohibition occurred. Hence, there was no false statement on his applications.

The facts, especially in the context of the very fulsome disclosure that Mr. Coyle did make regarding the drug charges, do not support a conclusion that Mr. Coyle’s non-disclosure to the Registrar of the “conviction” for failure to provide a breath sample was in any way deliberate.

Reasonable grounds for belief that the Appellant will not carry on business in accordance with the law and with integrity and honesty

The second issue for the Tribunal to decide is whether Mr. Coyle is disentitled to registration under section 10(1)(a)(ii) of the Act, which states:

10. (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, ...

(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,

Ms. Volpe testified that a key aspect of the Registrar’s mandate is to ensure consumer protection in the real estate industry. Given Mr. Coyle’s past conduct and the severity of the convictions, the Registrar must concern himself with the risk that Mr. Coyle might take advantage of clients, particularly those that might be unsophisticated. The Registrar, she stated, has not had the benefit of the passage of time to judge Mr. Coyle’s suitability in the face of that past conduct.

Ms. Sabharwal directed the Tribunal’s attention to the trial judgment of Nordheimer, J., dated January 6, 2010, to emphasize the seriousness of Mr. Coyle’s conduct and the risk he could well pose working within the real estate industry. The Court found that Mr. Coyle, with his co-accused, was dealing with large scale supplies of cocaine. It was a conspiracy to traffic in cocaine that went on for longer than four months and would have continued but for the police investigation. Of particular concern to the Registrar were the Court’s comments at paragraph 21 of the judgment:

21Another consideration is the motivation for the offence. It is obvious that the motivation for this conspiracy was greed. In other words, this was not a case where the offender engaged in criminal activity as a consequence of the need to fuel an addiction, whether to drugs, alcohol, gambling or otherwise. It is also not the situation of someone engaging in drug related activity, such as acting as a drug courier, because of their own social disadvantages and vulnerability. This conspiracy was entered into for one reason and one reason only – for profit. Profit, I would add, that would necessarily come at the expense of others.

Richard Shanks is a detective sergeant with the Toronto Police Service, and was the team leader on the investigation that resulted in the charges against Mr. Coyle. His evidence reflected the statements made by the Court. In his evidence, he described Mr. Coyle as a young articulate man who was using cocaine, living a certain lifestyle, and then ventured into the drug trade, trafficking at a high level, apparently gravitating toward making “easy money”. Asked by Mr. Wilson what he would perceive to be good signs of rehabilitation, he cited treatment, a long period of good behavior and re-integration into the work force.

Mr. Coyle, in his testimony, did not attempt to explain away or otherwise diminish the gravity of his convictions. He served an 11-month term of imprisonment (which commenced after losing his appeal in July 2014) which he completed in July 2015. He is currently living in a halfway house. He stated that he will always live with the consequences of his actions and the regret for what he did. The impact on his mother and sister has been significant, but they have supported him throughout. He sought treatment for his drug use in 2006; he described himself as being in the best shape of his life. He has been actively involved in charitable initiatives in the community. He is dedicated to, and passionate about, his career in real estate, and that commitment was corroborated by the witnesses who testified on his behalf. He worked in real estate throughout the time his charges were before the courts, from 2006 through to 2014. In that period of time, one complaint was made against him, which he reported to RECO in compliance with his terms and conditions. That complaint does not form a part of RECO’s concerns regarding Mr. Coyle.

Several people testified on Mr. Coyle’s behalf: Matthew Elkind, a business partner and friend, Don Givelos, a client and mentor, and Angela Wood, a business associate and the managing director at the Condo Store where Mr. Coyle has most recently worked. Each has known him at least six years. They each described Mr. Coyle as a professional, a person of integrity and honesty, and tremendously hard working.

They knew of the drug charges, the ultimate conviction and his imprisonment for trafficking in cocaine, but that did not diminish their regard for him. Ms. Wood stated, quite emotionally: “He is not his conviction to me…”.

The last person to give evidence in support of Mr. Coyle was his sister, Lisa Hunt. She spoke powerfully and articulately about her brother. She described a young man who made some very bad choices, but who has made “every possible change” in his life since his arrest in 2006. He is remorseful every day of his life; there is no forgetting what he did and the pain caused by the choices he made. She described him as extremely hard working, because he feels he has to work harder to prove his integrity to others and to himself on a daily basis. His career in real estate is everything to him and he would never do anything to jeopardize it now.

The testimony of these character witnesses at the hearing echoed, with the benefit of the passage of time, the assessment of Mr. Justice Nordheimer at the criminal trial. Mr. Wilson referred to the following statements by the Court:

36Ryan Coyle is also now thirty years old. He was twenty-six years old at the time of the offences. Mr. Coyle has been employed as a real estate agent since he graduated from college. Since his arrest, Mr. Coyle has taken a number of courses to improve his skills in that area. He completed a property management course and also became a real estate broker in June of this year. While there is some debate on the degree to which Mr. Coyle actually worked in the real estate field prior to his arrest, it appears that since his arrest and release, he has devoted considerable energies to his chosen profession and has enjoyed some measure of success. In addition, since his arrest, Mr. Coyle has been active in charitable activities including being instrumental in the establishment of a charity to assist underprivileged youth. Mr. Coyle has a history of some medical issues that, by his own admission, led him into the use of drugs, including cocaine, along with the excessive consumption of alcohol. To his credit, since his arrest, Mr. Coyle has changed his lifestyle in that regard. He is frank enough to admit that there was some benefit to his arrest in that it forced him to address those issues. In addition, and despite his relatively young age, Mr. Coyle has heart problems that are ongoing and require monitoring and treatment. Mr. Coyle produced a volume of material that addressed a number of topics including his employment, his medical issues, his charitable work and his change in lifestyle. Included were a number of letters of support. They similarly attest to the quality of his character post-arrest. Like Mr. Lucas and Mr. Rosa, Mr. Coyle has no prior criminal record. Mr. Coyle has about two weeks of pre-sentence custody. At the sentencing hearing, Mr. Coyle spoke very sincerely about the bad choices that he had made and that ultimately led to his arrest.

The Tribunal must review the evidence before it and determine if it gives rise to reasonable grounds for belief that the Appellant will not carry on business in accordance with the law and with integrity and honesty.

There is no question that Mr. Coyle committed very serious offences. The Registrar did not, however, suggest through the evidence or submissions that Mr. Coyle has not conducted himself in the real estate business in a professional manner throughout the time that his charges were before the courts. There has been no cause for concern to the regulator. He has been compliant with the conditions on his registration and there is nothing to suggest that he would not comply with conditions going forward. Yet, it is also the Registrar’s position that “no conditions can enforce conduct”, suggesting, it seems, that conditions cannot compel the requisite characteristics of honesty and integrity.

It is useful to consider the Tribunal’s jurisprudence on this issue of “honesty and integrity” as enunciated in s. 10 of the Act and in the similar, if not identical, wording in several other statutes over which the Tribunal has appeal jurisdiction. Counsel has cited several of these cases in their submissions. The Court of Appeal in Ontario (Alcohol and Gaming Commission of Ontario) v. 751809 Ontario Inc. (Famous Flesh Gordon’s) 2013 ONCA 157, 2013 ONCA157 stated that the purpose of the examination of the past and present conduct (referencing the language of the Liquor Licence Act) is to see if there are reasonable grounds for belief that the person will, in future, carry on activity in a way that is contrary to the public interest. The Court of Appeal emphasized that any and all past or present conduct can and should be considered. The Tribunal must consider the whole of an appellant’s conduct, including the conduct since the past conduct – here, the criminal conduct – occurred.

The jurisprudence also suggests that past conduct which involves serious criminal conduct may not, in and of itself, preclude registration. Nor is there a prescribed time period over which “good behavior” must be shown. What the evidence must establish is a high degree of trustworthiness – the elements of honesty and integrity – so that it is reasonable and appropriate to place public trust in an appellant with the granting of registration. A present intent to act in accordance with the law, no matter how sincere, is not enough if not supported by the evidence. One factor cited in the jurisprudence is an appellant’s willingness to accept full responsibility for his or her actions, as well as having an insight into the misconduct.

Ms. Sabharwal referenced the case of Koo v. Registrar, Motor Vehicle Dealers Act, 2002, [2012] O.L.A.T.D. No. 235, in support of the submission that more time needs to elapse before Mr. Coyle can be considered for registration. At paragraphs 17 and 18 of the decision, the Tribunal stated:

Mr. McCormack argued that one crime should not prohibit Mr. Koo from ever becoming a motor vehicle salesperson. The Act does permit consideration of all the past conduct of a potential registrant. Thus, if there is sufficient evidence that a criminal has paid his debt, taken responsibility for his actions, taken material and concrete steps to reform and achieved success in sustaining a life of honesty and integrity, then the Tribunal is entitled to take these factors into consideration in determining whether someone has taken themselves out of the operation of subparagraph 6(1)(a)(ii) of the Act.

In this case, the Tribunal does not have this evidence. Mr. Koo did not testify nor were any character witnesses called on his behalf. It is not possible for the Tribunal to determine whether Mr. Koo has taken any actions to understand what caused him to commit the crime or to learn any lessons from it. Apart from evidence of a longer term relationship and the birth of his son, the Tribunal has scant evidence that Mr. Koo has taken any steps to turn his life around…

The evidence, or lack thereof, before the Tribunal in Koo distinguishes it from this case. Here, Mr. Coyle testified, as did several character witnesses. The evidence from the character witnesses was not challenged by the Registrar. Mr. Coyle has accepted responsibility for his actions. He has expressed remorse and a great deal of regret. He has “served his time”. Shortly after his arrest in 2006, he participated in a drug treatment program. There is no evidence pointing to any relapse. He has immersed himself, successfully and without incident, in the real estate business for the past nine years. That record, including Ms. Volpe’s evidence that Mr. Coyle has been compliant with the conditions on his registration and the various other requests made of him, must be accorded considerable weight. He has involved himself in charitable initiatives in the community. The evidence reveals that he has taken significant steps to turn his life around. He has benefited from the ongoing support of family, friends and colleagues, and appears to be humbled by their level of support.

This is not a situation where there is no evidence by which to predict future conduct. On the contrary, the evidence presented by Mr. Coyle is substantial and significant in supporting a conclusion that Mr. Coyle will continue to work as a real estate broker in compliance with the standard of conduct required by the regulator. Further, there was no evidence offered by the Registrar to suggest that conditions on Mr. Coyle’s registration would be required to ensure adherence to the appropriate standard of conduct. As the Tribunal stated in Goulart (Re), [2008] O.L.A.T.D. No. 112: “The Applicant has travelled a long way down the road of converting future intentions into acceptable conduct”.

Ultimately, each case must be decided based on the facts presented. This Appellant committed a very serious drug offence in 2006, and the Tribunal recognizes that the Registrar’s mandate is to protect the public and the public interest. Yet, weighing all of the evidence before it, the Tribunal is of the view that the entirety of the past conduct of the Appellant does not afford reasonable grounds for belief that he will not carry on business in accordance with law and with integrity and honesty.

ORDER

Therefore, pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs that the Registrar not carry out the Notice of Proposal to revoke the registration of the Appellant.