Licence Appeal Tribunal

Tribunal d'appel en matière de permis

DATE: 2016-11-07

FILE: 10152/REBBA

CASE NAME: 10152 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 Refuse Registration

CS Appellant

-and-

Registrar, Real Estate and Business Brokers Act 2002 Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Alex McCauley, Member

APPEARANCES:

For the Appellant: Richard Wellenreiter, Counsel

For the Respondent: Jonathan Miller, Counsel Robert Maxwell, Counsel

Heard in Toronto: August 3, 4, 5 and September 9, 2016

REASONS FOR DECISION AND ORDER

This is a hearing before the Licence Appeal Tribunal (the “Tribunal”) arising out of a Notice of Proposal issued by the Registrar, Real Estate and Business Brokers Act, 2002 (the “Registrar” and the “Act” respectively.) The Notice of Proposal (the “NOP”) dated March 23, 2016 proposed to refuse the registration of CS, the “Appellant”, as a salesperson under the Act. The Registrar alleges that pursuant to section 10(1)(a)(ii) of the Act, the Appellant is not entitled to registration, because her past conduct affords reasonable grounds for belief that she will not carry on business in accordance with the law and with integrity and honesty. Specifically, the Registrar relies on the fact that the Appellant was convicted of the criminal offence of sexual exploitation of a young person contrary to section 153 of the Criminal Code of Canada ( the “Criminal Code”); and the fact that the Appellant is currently on probation for her criminal conviction.

For the reasons stated below, the Tribunal dismisses the appeal.

PRELIMINARY MATTERS

On July 25, 2014, the Ontario Court of Justice issued a publication ban which the Tribunal is required to uphold. Therefore, the Appellant will not be named in order that neither the complainant nor any witness from the criminal proceeding is identified.

Further, Counsel for the Appellant requested that, pursuant to the Rule 13.5 of the Tribunal’s Rules of Practice and Procedure, Version 1 (April 1, 2016), an order be made for restricted access to the record in this proceeding. The Tribunal has made the Order, as requested, to ensure the anonymity of the victim in the criminal proceeding.

OVERVIEW

The Appellant had been a member of the Ontario College of Teachers. Membership in that organization was revoked after a hearing on October 1, 2015.

The Appellant applied for registration as a real estate salesperson under the Act on June 1, 2015.

The Registrar maintains that the Appellant has committed a very serious criminal offence, namely the continuous sexual exploitation of a vulnerable young person over the course of five years. In 2005, the victim moved in with the family of the Appellant and lived with them until 2008. He then moved into accommodation arranged by the Appellant. From 2005 until the relationship ended, the Appellant and the victim developed a sexual relationship. The Appellant pled guilty to the charge that, between the 1st day of September 2005 until the 31st day of July 2010, she “did for a sexual purpose touch the body of the victim”. The Appellant was sentenced to a 90 day intermittent sentence to be served on weekends, plus three years’ probation.

The particulars of the criminal conviction were not in dispute at this hearing. The Appellant fully admitted to her previous conduct which led to her conviction under section 153 of the Criminal Code. The Appellant pled guilty to that charge on July 15, 2014.

In an Agreed Statement of Facts in the criminal proceedings, the Appellant admitted to meeting the victim in 2004, when he was a student of hers. Over the course of a year, the Appellant kept in touch with the student and ultimately, in September 2005, he moved into her family home as a foster child.

They developed into a very close relationship, which became a sexual relationship at a time when the victim was 16 years of age. The victim continued to reside with the Appellant’s family until July 11, 2008 when he moved out into his own apartment, arranged by the Appellant. The sexual relationship continued until July 2010, when it was terminated by the victim.

On August 22, 2012, the Appellant was charged with the offence of sexual exploitation.

The judgment from the Court included excerpts from a forensic psychiatrist (Dr. C) who did an assessment of the Appellant. The psychiatrist concluded that the Appellant’s risk to re-offend was low, stating: “this appears to have been an isolated incident (or series of incidents). Although her risk of further inappropriate sexual behaviour with underage individuals is greater than that of the general population, statistically the likelihood of her reoffending would be low. That likelihood could be mitigated by long-term counselling, specifically with relationships and this past history as a focus”.

EVIDENCE

The Tribunal heard from Angela Volpe, the Manager of Registration with the Real Estate Council of Ontario (RECO). Ms. Volpe stated that when the Appellant’s application form had been completed, a concern of the Registrar was that the Appellant’s sentence was not yet complete; there was a year left on her three year probation Order. There is no evidence of any breach of that probation Order to date.

The Registrar is concerned about the breach of trust aspect that flows from the Appellant’s conviction.

The Appellant currently works in a real estate office, although not as a salesperson. Ms. Volpe acknowledged this fact, but pointed out that being a salesperson has more responsibilities and accountability factors than that of an administrator within a real estate company.

Ms. Volpe also acknowledged that the Court had received a letter from that realty company which was reviewed by the Registrar. This letter was a positive endorsement for the Appellant.

All aspects of the Court’s sentencing order, including both “mitigating” and “aggravating” factors, were considered by the Registrar.

The Registrar sees the offences and conviction of the Appellant as “extremely egregious” and is ultimately concerned about the impact that may have on the public interest.

In cross-examination, Ms. Volpe stated that although the operative section of the Act (s. 10(1)(a)(ii)) uses the term “business”, the Registrar applies a global view regarding potential registrants.

It is Ms. Volpe’s view that the term business must be given a broad meaning.

There are no previous or post-conviction instances of inappropriate or dishonest behaviour by the Appellant.

BV has employed the Appellant at his real estate brokerage since 2012. She is the office manager and is directly responsible for all non-licensed staff. She is also a signatory on the company’s bank accounts.

BV testified that he has known the Appellant for several years dating back to high school. He has always known her to be honest and to be a person of integrity. He recounted times in high school when they were on students’ council and responsible for large sums of cash. There was never a problem; honesty and integrity on the part of the Appellant was never an issue.

BV found out about the Appellant’s problems in August, 2012. He immediately went to meet with her and offered his support. At that time, he offered her a position with his company. He trusted her totally.

BV describes the Appellant as reliable, loyal, quiet and very bright. She has taken over many of the administrative duties with the firm. If she was registered, she would be able to take on more responsibilities in her position. It is BV’s opinion that the Appellant made a serious mistake which she has admitted and paid for. He has no concerns for her future as it relates to operating with honesty.

In cross-examination, BV stated that he and the Appellant have recently begun a romantic relationship.

Asked if the Appellant might move to another brokerage once licensed, he admitted that was possible but not likely. She and her parents have invested financially in the business.

BV stated that in his opinion, the Appellant is a person of integrity. The incident she was involved in was a gross lack of judgment.

The Tribunal heard from Dr. HM, a clinical forensic psychologist in the forensic psychiatry program at a hospital. She was accepted, on consent of the parties, as a qualified expert in therapy for sexual offenders and persons who commit sexual abuse and in assessing them for risk of recidivism.

In May 2014, the Appellant participated in a psychological assessment which included a risk assessment and treatment plan. Dr. HM’s report was referred to by the Court at the Appellant’s criminal proceedings and was presented at this hearing.

In her report, Dr. HM concluded that the Appellant is of low moderate risk for sexual reoffending compared to other female sexual offenders. It is important to note that the base rate for female sexual recidivism is already quite low, at approximately 1.3%. In her report, Dr. HM stated as follows:

CS is a 51-year-old woman who was referred for psychological treatment of sexual behavioural problems. She has participated in 31 sessions of cognitive behavioural therapy. Over the course of therapy, she has constantly presented as fully engaged and committed to identifying and rectifying issues that have contributed to sexual behavioural problems. Specifically, she has addressed the following treatment domains: interpersonal relationships, coping and self-regulation, communication and assertiveness, boundaries, and self-management of risk for sexually problematic behaviour.

She has made significant gains in addressing the risk factors identified as contributing to sexual offending for females. She has demonstrated a firm commitment to managing factors so as to diminish any threat of engaging in such behaviour in the future. At the outset of treatment for risk for sexual reoffending, was assessed as low- moderate. This estimate was based on clinical opinion informed by current research on relevant indicators of risk for sexual offending in females and guided by the structured professional judgment tool, The Risk for Sexual Violence Protocol. At that time, the factors which contributed to her risk included the characteristics of the sexual offenses (example, chronicity, and coercion), psychological adjustment, including rationalization/attitudes regarding the victim and offense, self-awareness, and stress and coping, and social adjustment with respect to intimate relationships. She has effectively addressed the identified risk factors and associated targets identified for treatment. Therefore, her current risk for sexual recidivism is estimated to be low.

She has successfully completed the recommended treatment. She is discharged from treatment and her file will now be closed.

Dr. HM described the Appellant’s risk to re-offend as 1%. She states this is as low as it can get. In addition, she went on to state that risk declines over time. Five years without re-offending is a very positive indicator.

It is Dr. HM’s opinion that the Appellant poses no threat to the general public. In cross-examination, Dr. HM admitted that the Appellant’s action in committing the offence could be classed as dishonest by omission.

It was Dr. HM’s conclusion that there are no active symptoms on the part of the Appellant that would indicate problems in the future.

The Appellant gave evidence. She testified that her professional working life involved working in retail, banking, teaching and office management.

The Appellant was married for 26 ½ years and has two grown children.

On May 27, 2015, she completed her application for registration to become a real estate salesperson. She answered the questions listed on the first page of the application honestly. She admitted her criminal conviction and the revocation of her teaching certificate. In addition, she supplied further written explanations with the application.

The Appellant appealed the decision to deny her registration, because she did not agree with the reasons for that denial. She describes herself as honest and a person of integrity. She does not minimize the offence she perpetrated and was convicted of. She sees this as an anomaly in an otherwise stellar life.

During university, in the 1980s, the Appellant worked part-time as a teller at Canada Trust and joined them as a full time employee upon graduation. At Canada Trust, she was promoted several times to positions that carried more responsibility. The Appellant provided various job performance appraisals that she had received. All are extremely positive and indicate a committed, intelligent and overall responsible employee who was capable of taking on more responsibility. She was described as having a strong work ethic and someone who followed policy and procedures.

She left the bank in August, 1992 to deal with a complicated pregnancy.

She then worked part-time in a framing shop. She had full responsibility for the day to day activities in the shop, including dealing with cash and deposits. She left this job in 1994, and her son was born in October 1994.

During this period, her health had deteriorated, and when her son was two years old, she was diagnosed with depression, but continued working. In 2003, she left her employment to attend Teacher’s College. She had been very involved on the Parent’s Council at her daughter’s school and took on the role of Council President for three years. During her time on the Council, she undertook many administrative duties, including any dealings with cash.

In September 2004, the Appellant was hired into a “long term occasional” teaching position at a public school, which is where she originally met the victim. Her position at the school ended in November 2004, when the regular teacher returned. When she advised the students that she would be leaving the school in November, the victim became very upset and didn’t want her to leave. She mentioned this to her Principal at the time. He told her “leave it there”.

She found out the victim was under the care of the Children’s Aid Society (CAS). She ultimately joined a one-on-one volunteer support program titled “Special Friend”. She was cleared by the CAS in May 2005.

Her role was simple; she facilitated getting the victim out of the group home to engage in life skills, shopping, movies, recreation, etc. After each outing, she reported the activity to the victim’s case worker. After a series of events and various approvals, the victim moved into the home of the appellant and her family as a ‘foster child”.

In her home, things went well at first, but then started to slip. The victim did not follow rules. CAS did not feel things were working out. In 2007, the Appellant’s family ceased to be a foster home, and the victim then became a “Boarder”. Funding that the Appellant and her family received from CAS, decreased dramatically. CAS also cited the fact that the victim was coming up to age 18 when he would be on his own and no longer qualify in the foster system.

Despite all of this, the Appellant and her family decided to continue to have the victim in their home. Things did not go well. When the victim was 16, he was difficult to control.

What began as comforting gestures to the victim soon escalated into a full sexual relationship. This continued for five years. The Appellant stated that this relationship had no effect on her work performance. No evidence was ever introduced that contradicted this assertion.

Once in this relationship, the Appellant did not know how to extricate herself from it. She considered telling her husband but was concerned about the hurt it would cause him and her children. She bore this problem alone. She felt trapped and could see no escape. She felt for the victim, he had previously been abandoned and she did not want this to happen to him again. She attended counselling several times, but could not bring herself to disclose this matter to her counsellors. She knew the matter would be reported and there would be hurt to her family.

In June 2008, she disclosed the relationship to her sister. Her sister was very upset and ultimately gave her an ultimatum to get him (the victim) out of the house or she would tell the Appellant’s husband. The Appellant ultimately got him into his own apartment. During the time he was on his own, their sexual encounters continued. She stated she did not know how to end it.

This part of her life was isolated from her regular life, which proceeded normally. She took on extra responsibility with her teaching, developing procedures which assisted with problems, such as bullying amongst students. She developed a website which was a school self-assessment tool. She presented this to the School Board and the project was accepted. She was fully engaged in her professional life and there was never any indication of problems.

She described the sexual relationship during this period as sporadic, sometimes once or twice a week. Their relationship ended suddenly in July 2010, at the instigation of the victim, as he said he had a new relationship.

In October 2010, they met to exchange some personal property each had. There was no direct contact between them after that. She continued her normal life. Everything went well until April 2012.

On April 19, 2012, she received a telephone call from a police officer. The officer asked her if there had been sexual contact between her and the victim and she admitted there had been. That morning, she confessed to her husband and children. Later that day, she attended with her husband and children at the police station.

Throughout this ordeal, her family, including her husband (at the time; they later separated), were extremely supportive and anxious for her.

The Appellant stated that she takes, and took full responsibility for what happened in this inappropriate relationship. She disclosed fully to the police. She pled guilty to the criminal charge and never appealed the revocation of her teaching certificate by the Ontario College of Teachers. Initially, she felt like she had been a victim, but realized she was the adult and should have prevented it.

BV was a great source of support. He came to see her as soon as he found out about the situation. He offered her a position as a receptionist at his brokerage. She interviewed for the position August 28, 2012, and was hired the next day.

Her position at the brokerage initially was part-time. She became full time in mid-September 2012. She is currently the office manager, not a broker manager. She has extensive responsibilities in support of the brokerage.

Her relationship with BV initially was as a friend and business associate. In February 2014, her marriage to her husband ended. She and BV started dating in June 2016. They have a solid business relationship, which they keep separate from their personal relationship.

After the criminal trial, she continued treatment and counselling with Dr. HM. This treatment was key to getting her life back.

The Appellant referred to two letters of support. The first was from LM, who is a teacher, and was written on June 30, 2016. LM met the Appellant in 2004, when the Appellant was her student teacher. She stated she was very impressed by the Appellant. In her evaluation, she had written, “That I would be thrilled to have her as my own children’s teacher”. Based on her experience with the Appellant, she stated that three words come to mind in describing her: honesty, integrity and character.

The second letter was written on July 4, 2016 by WF, a friend and associate. He wrote very highly of the Appellant.

In cross-examination, the Appellant was asked why she had not disclosed her interest in the brokerage at question 2 of her application, which asks: Are you, or will you be, engaged or employed in any other business, occupation or profession? She had answered “Yes” because she was employed at the time. She did not disclose her investment in the company because she did not understand that to be relevant to the question posed on the application form. Her failure to disclose this investment was a misunderstanding and not an attempt to conceal information. She viewed herself as a passive owner and simply looked at this as an investment. In her opinion, this was not a business but a small investment.

In cross-examination, she stated that her counselling with Dr. HM consisted of over 31 hours. She stated that she has had no need for formal therapy after concluding her sessions with Dr. HM. She had learned to proactively deal with issues.

Her honesty was challenged in cross-examination, when she was questioned why she never went to the police on her own, or turned herself in. Her reply was she felt trapped and did not want to hurt her family. When questioned why she kept this secret for seven years, her response was she didn’t know how to get out of the situation.

When asked if she pursued the victim, her response was only to help him. She reiterated that sexual contact was never on the radar, initially.

The CAS had not fully disclosed the victim’s background. Had they, she and her family may have not taken him in. She was aware the victim was in a position of vulnerability. She assumed full responsibility.

She stated that she did not attend the College of Teachers hearing. She did not apologize to the College, but she also did not contest the College’s proceeding against her.

Submissions

Registrar’s Submissions

In submissions, the Registrar focused on the Appellant’s conduct. Counsel stressed the conduct was extremely serious. It was not a momentary misstep; the conduct continued for five years.

He went on to state that this type of conduct on the part of a Registrant would degrade the profession and cast a shadow on the public’s perception of the profession.

The Registrar concedes the professional reports which overwhelmingly attest to the fact that there is a small risk of the Appellant re-offending. He points out though, the conduct that may concern the Registrar need not be criminal, or abusive; it simply has to be dishonest or lack integrity.

The Registrar submitted that by not reporting the offence herself, the offence may have gone undetected and no prosecution would have taken place. This, in his opinion, speaks to the Appellant’s lack of honesty. She would have gotten away with it.

The Appellant was in a position of trust when the offence took place. She violated that trust.

The Registrar stressed that the Appellant is under a probation Order from the Court, and is essentially still under sentence of the Court, and therefore, she should not be registered. He suggests her application to be registered is premature and she should wait one more year until her probation is complete, and then apply for registration.

The Registrar submits that the Tribunal should give no weight to job evaluations or positive aspects of her past, dating back some 40 years. He suggests that the same applies to the letters of support received. He points out that no witness attended to give testimony in support of the Appellant. The Registrar was critical of the fact that the Appellant did not attend the revocation hearing at the College of Teachers, nor did she apologize to the College.

The Registrar does not support conditions on registration in this case, but did propose some conditions should the Tribunal decide to grant registration: They are as follows:

1. The Appellant should be under supervision until her probation is completed.
2. The Appellant should be monitored by a broker of record.
3. The Appellant should report to RECO any change of employment.
4. The Appellant should not be alone in the presence of a minor for 3 years.

Appellant’s Submissions

The Appellant’s Counsel in submissions, suggests that with the exception of this one matter, the Appellant has never done anything wrong or dishonest in her entire life. Many positive comments have been made about her. These have to be considered in their entirety.

She has taken full responsibility for her actions and accepted the consequences. This unfortunate incident in her life will never go away, but dwelling on it does not serve anyone.

There has been no evidence to suggest the Appellant requires further counselling. The file has been closed, with no need for further intervention. This was confirmed in Dr. HM’s final report.

Counsel submitted that the Appellant is sincerely remorseful and has been fully compliant with the terms of her probation.

Dr. C., the forensic psychiatrist, concluded in his report to the Court, that this incident “…appears to have been an ISOLATED incident (or series of incidents)”.

In her evidence, Dr. HM indicated that the Appellant did not just contribute 31 hours of therapy. She worked on projects in between sessions. She was described by Dr.HM as an excellent participant who fully applied the new concepts learned. Dr. HM stated that there is no lower level against re-offending than that currently reached by the Appellant. In addition, the risk to re-offend decreases even further with the passage of time.

In regard to her application to RECO, the Appellant was fully forthcoming. The suggestion by the Registrar that she withheld information on question two on the application is unfounded. The question was ambiguous. The Applicant had no intention of withholding information.

Counsel stated that there has been no evidence tendered that would indicate that the Appellant would not conduct business with honesty and integrity.

THE LAW

Entitlement to registration is set out in section 10 of the Act as follows:

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,

(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;

The Tribunal’s right to hold a hearing and make an order is set out in section 14(5) of the Act.

14. (5) If a hearing is requested, the Tribunal shall hold the hearing and may by order direct the registrar to carry out the registrar’s proposal or substitute its opinion for that of the registrar and the Tribunal may attach conditions to its order or to a registration.

APPLICATION OF LAW TO FACTS

There is no dispute that the Appellant was involved in a five year sexual affair with a young person between September 2005 and July 2010. This relationship started when the victim was 16 years old, and it was a relationship of dependency and trust or authority, which was sexual exploitation contrary to section 153 of the Criminal Code. The Appellant pleaded guilty to this offence on July 15, 2014. She was sentenced to a period of incarceration for 90 days, to be served on an intermittent basis. In addition, she was placed on probation for three years, which is due to expire in July 2017. The probation order stated that in addition to the statutory terms, the Appellant will report as directed; be required to attend for all recommended counselling and therapy, including cognitive-behavioural therapy, will have no contact directly or indirectly with the victim and will not be within 500 meters of any place she knows him to be and she will not be employed or volunteer in any capacity where she is in a position of trust or authority over persons under the age of 18 years.

The Appellant has been fully compliant to date with her terms of probation. Further, the Tribunal is satisfied that the Appellant filled out the application for registration to RECO in good faith and that there was no intent by her to hold back information requested, including that in question #2.

The Registrar has pointed out that the offence referred to did not take place decades ago. It is recent and the Appellant continues to be on probation. The Registrar contends that being on probation at this time means that the Appellant is still under sentence of the Court. Registering a convicted sex offender still under sentence of the Court is not in the public interest.

The Registrar agrees that there has been no other instance of inappropriate behaviour on the part of the Appellant, other than the one incident she was convicted for. The Registrar takes a global view of the conviction and how it might affect the Appellant and, not just the narrow view of her business acumen.

The Appellant, through her evidence and that of BV (who was the only witness called to give character evidence), showed herself to be an extremely intelligent and competent individual who invariably rose to the top in whatever project or job she undertook. She was described by BV as generally honest and hardworking. Outside of this one incident there is no blemish on her character.

When the offence was uncovered and the police became involved, the Appellant was completely forthcoming not only with the police, but with her family and her school board employer. She took full responsibility for her actions and pleaded guilty before the Court. Based on psychological and psychiatric profiles presented at the hearing and also before the Court, the Tribunal is satisfied that the Appellant is unlikely to commit this type of offence or any sexual assault in the future.

The Registrar does not take exception to the expert reports regarding future offences of this nature. Yet, the Registrar points out that the Appellant was less than honest throughout this five year relationship. The Registrar points out that she never disclosed the offence, even when she had attended counselling sessions. She was content to keep this a secret from everyone, including her family until 2012, when she was found out. This was dishonest behaviour.

The Registrar put it to the Appellant that had she not been found out, she would have been content to stay quiet, in fact, get away with a serious criminal offence. She agreed that action was not honest, but she wasn’t sure how to get out of the situation, she felt trapped. The Registrar takes the position that the Appellant was in a position of trust when the offence was committed. She violated that trust over and over again.

The Appellant states there is no evidence to support the fact that she will not act with honesty and integrity; in fact, the evidence tendered with the exception of this one event overwhelmingly suggests that she will act with honesty and integrity.

The Appellant’s Counsel submitted the decision in 9488 v. Registrar, Real Estate and Business Brokers Act, 2015 CanLII 89190 (ON LAT) for the Tribunal’s consideration. In that decision, the Tribunal stated: “The Tribunal must consider the whole of the Appellant’s conduct, including the conduct since the past conduct – here, the criminal conduct – occurred.”

The Tribunal has assessed this matter in the full context of events both before and after the commission of the offence. The Tribunal must consider whether the actions of the Appellant give reasonable grounds to believe that she will not act with honesty and integrity and in accordance with law in the future.

The Tribunal has taken into account all evidence of the Appellant’s past conduct, which is not confined to the Appellant’s past conduct in her business activities. The Tribunal relies on the decision in Ontario (Alcohol and Gaming Commission, Registrar) v. (751809 Ontario Inc. (C.O.B. Famous Flesh Gordon’s), 2013 ONCA 157, which interpreted a provision of the Liquor Licence Act that is substantially similar to s. 10(1)(a)(ii) of the Act. The Court of Appeal stated at para. 29:

The Registrar is entitled to rely on any past or present conduct, whether in the operating of the licenced establishment or not, that affords reasonable grounds for belief that the individual will not carry on business as required by sec. 6(2)(d). The words of the subsection, “past or present conduct”, are not limited to the operation of the business or in any other way. Their ordinary and grammatical meaning, in the context of legislation that is designed to ensure that licenced establishments will be operated by those who can be counted on to properly serve the public interest, requires that past and present conduct not be confined to the individual’s operation of the licenced establishment.

Similarly, the past conduct of applicants or registrants referred to in s. 10(1)(a)(ii) of the Real Estate and Business Brokers Act is not limited to the individual’s past business conduct. The Tribunal may consider any past conduct in order to determine whether there are reasonable grounds for belief that the applicant will not carry on business in accordance with law and with integrity and honesty.

When the past conduct relates to a criminal conviction, the criminal conduct “must be assessed in relation to the ability of the party in question to conduct the business of being a realtor and serve the interests of consumers”: Nagy v. Registrar, Real Estate Business Brokers Act, 2012 ONSC 325 (Div. Ct.), at para. 59.

The Tribunal notes that the Appellant has faced up to her actions and confessed her involvement and taken responsibility for her actions. But, the Tribunal cannot accept that this was a simple case of an act of misjudgment on the part of the Appellant. This was a series of events that continued for five years and may have gone on longer if the victim had not terminated the relationship. This, in the opinion of the Tribunal, is significant. The Appellant has stated that she knew what was happening was wrong, yet she perpetuated this wrong for five years and only when the victim stopped it, did it end.

The Appellant has stressed that her interactions initially with the victim were altruistic; she was only trying to help him. The Tribunal finds somewhat disturbing the Appellant’s actions by not following the direction of her principal who told her, “To leave it alone” in relation to this boy. She never explained why she did not follow the principal’s direction. The Appellant in failing to carry out the explicit direction of her Principal was deceptive and had a severe consequence later.

The Tribunal is concerned that the Appellant did not and does not fully comprehend the magnitude of her misconduct. It is her position that this was a misstep in an otherwise perfect life. The Tribunal is satisfied that the likelihood of the Appellant committing a similar offence in the future is remote. But the test for the Tribunal to consider is not whether the Appellant may commit another criminal act, such as sexual exploitation. The Tribunal must assess the Appellant’s honesty and integrity, and her likelihood of carrying on business in accordance with the law.

The Appellant’s actions that resulted in her criminal conviction were a significant breach of trust. The Appellant was in a position of trust with respect to the victim both as a teacher and as a foster parent. The Appellant breached that trust by entering into a sexual relationship with the victim and by allowing that relationship to persist. The Appellant’s actions demonstrate poor judgment and an unwillingness to reveal her mistakes in a timely manner to the appropriate authorities.

Registrants under the Act are required to maintain the trust of their clients and act with integrity. Although real estate sales people are not placed in a position of trust with respect to minors, they are in a position of trust with respect to their clients and are required to act with integrity. The nature of the Appellant’s criminal offence and how she handled herself in relation to that offence provide reasonable grounds to believe that she will not do so.

This Appellant has shown herself to be very capable of being involved in a serious criminal offence that started in 2005, but then she continued the improper relationship for five years, and kept it secret for a total of about seven years, until the police were informed about the offence in 2012.

The Tribunal agrees with the Registrar that if she had not been found out, no one would be the wiser and she would have gotten away with it. The Tribunal agrees this behaviour shows both dishonesty and a lack of integrity. The offence perpetrated was indeed egregious and not an isolated act. The Appellant was a trained professional – a teacher – who was guilty of sexual exploitation of a former student who had become her foster child, and then maintained this improper relationship for five years.

BV is a successful business person who has been a source of support for the Appellant. It is hard to give his evidence full weight, because he is in a romantic relationship with the Appellant and can hardly be seen as objective.

The Registrar submits that this application is ill-timed. The offence is still fresh, and there has been little time to properly assess the future conduct of this Appellant. The Registrar points out that the Appellant is still on probation and still under sentence of the Court. The Registrar is suggesting that the Appellant re-apply for registration in two years, at which time her probation will have been completed.

The Tribunal agrees with the Registrar that there has been an insufficient passage of time to fully assess the Appellant’s future actions, as it relates to her honesty, integrity and ability to act in accordance to law.

Real estate agents are entrusted with an expectation of having integrity and honesty from the public with whom they deal, and are responsible for protecting consumers in what is the single most significant financial decision they will make. The public trust in these matters is essential and must be protected.

The Appellant’s past conduct leading to her criminal conviction was dishonest, lacked integrity and was contrary to law. The Tribunal finds that her breach of the law in this way and for this period of time provides reasonable grounds to believe that she will not carry on business as a real estate salesperson in accordance with law and with integrity and honesty.

The Appellant had asked the Tribunal to consider granting the registration with certain conditions. This was strenuously opposed by the Registrar, whose position was that conditions would not be appropriate under these circumstances. The Tribunal agrees with the Registrar. The circumstances in this case do not apply themselves to conditions. As has been stated, the passage of time is insufficient to be able to fully assess the future conduct of this Appellant.

The Appellant had requested that a salesperson at BV’s brokerage be the supervisory person to monitor the Appellant. The Appellant would be employed by BV as the broker of record. He cannot be substituted. Section 30(1) of Ontario Regulation 567/05 states that brokers of record are required to ensure adequate supervision for brokers, salespersons and other persons employed at their brokerage. As stated previously, BV is not appropriate in the mind of the Tribunal to be in the role of supervisor between the Appellant and RECO, due to his relationship with the Appellant. He cannot be viewed as an objective supervisor in this matter.

ORDER

Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs the Registrar to carry out the Proposal.

LICENCE APPEAL TRIBUNAL

Alex McCauley, Member

Released: November 7, 2016