Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2016-12-29

FILE: 9801/REBBA

CASE NAME: 9801 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

Mohamed Hazmee Hameed and Homelife/Realty Options Inc. Appellants

-and-

Registrar, Real Estate and Business Brokers Act 2002 Respondent

DECISION ON MOTION

ADJUDICATOR: Alex McCauley, Member

APPEARANCES:

For the Appellants: Marina Guirguis, Counsel

For the Respondent: Jonathan Miller, Counsel

Heard in Toronto: December 8, 2016

DECISION ON MOTION

The Appellants appeal the notice of proposal issued by the Registrar, under the Real Estate and Business Brokers Act, 2002 (“REBBA”) on August 19, 2015. The Registrar proposes to revoke the registrations of the Appellants. The Registrar has alleged that Mr. Hameed fabricated three real estate transactions in which he received advance commission payments from a company called Access Easy. As the result of this and other actions associated with these transactions, it is the Registrar’s position that Mr. Hameed will not carry on business with honesty and integrity pursuant to section 10(1)(a)(i) of the Act.

The Appellants have brought forth a motion for recusal, based on what they allege is a reasonable apprehension of bias on the part of the presiding member for this appeal hearing, Member McCauley. This motion includes a request that the current proceedings be ended and that a new hearing begin with a different presiding member.

The Appellants are alleging three actions by the presiding member that they claim have given rise to a reasonable apprehension of bias on the part of this member. These are: denying the Appellants’ adjournment and disclosure motions, hearing the Registrar’s opening submissions which contained privileged information about settlement of a court action, and questioning one of the witnesses in a certain manner.

For the reasons stated below, the Tribunal denies this motion. There is no reasonable apprehension of bias, and the hearing will continue with the same presiding member.

LAW

One of the basic principles of natural justice and procedural fairness is the parties’ right to an impartial adjudicator. The case law is clear that the adjudicator may not continue if a reasonable apprehension of bias has been demonstrated. As noted by the Appellants’ counsel, the applicable legal test was set out in Committee for Justice and Liberty v. National Energy Board, [1978] 1 SCR 369, 1976 CanLII 2 (SCC). The apprehension of bias must be a reasonable one, and held by a reasonable, right-minded and informed person, viewing the matter realistically and practically. As noted in Newfoundland Telephone Company v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 SCR 623, 1992 CanLII 84 (SCC), “To ensure fairness, the conduct of members of administrative tribunals has been measured against a standard of reasonable apprehension of bias. The test is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator”. This test does not require any proof of actual bias.

ANALYSIS

1. Denial of adjournment and disclosure motions

These adjournment motions dealt with matters of late disclosure on the part of the Registrar. The Appellants’ counsel cited the prejudicial effect that the late disclosure would have on her client’s advancement of his appeal. Counsel further explained to the Tribunal that she required an adjournment to review the material and receive instructions from her client. After arguments and submissions, the Tribunal held that sufficient time to review the late material had been given, and denied the motion and ruled that the proceedings were to continue.

The next motion denied by the Tribunal dealt with the Appellants’ request for disclosure, specifically regarding information from the transcript of her client’s statement to the police. Counsel asked the Tribunal to order outstanding disclosure around items involving alleged statement of phone calls by Mr. Greenspan (a witness), and secondly, of bank accounts of Mr. Hameed. Information on these items had come from the Appellants’ Counsel’s review of the transcript of her client’s statement to the police. The Registrar stated that they did not possess the items that Counsel requested be disclosed. After arguments and consideration, the Tribunal dismissed the motion.

The Tribunal finds that the Appellants’ Counsel was provided with a fair opportunity to argue both of these motions. The Tribunal considered the arguments, made a decision and provided reasons. The Tribunal ruled that the lateness of the disclosure did not prejudice the Appellant enough to further delay the proceedings. Regarding the disclosure motion, the material sought to be disclosed was not in the possession of the Registrar.

The Appellants’ Counsel did not cite the basis for the alleged apprehension of bias. The Tribunal agrees with the Registrar’s Counsel that bias is not made out simply by the fact of an unfavourable decision. This is supported by the decision of Schulte v. Alberta (Appeals Commission for Alberta Workers’ Compensation), 2015 ABQB 17. If parties are unhappy with or concerned about a tribunal’s decisions, there are avenues of appeal or judicial review open to the parties.

The Tribunal dismisses the motion for recusal on the basis of denied motions.

2. The Tribunal heard the Registrar’s opening submissions which contained privileged information.

During his opening submissions, Registrar’s Counsel cited the fact that Mr. Hameed knowingly entered into a settlement agreement to allegedly repay the commission advance paid by the company Access Easy for the monies for which they were defrauded. Registrar’s Counsel noted: (a) the existence of the settlement agreement; (b) the terms of the settlement agreement; and (c) the fact that there was a breach of the settlement agreement. Appellants’ Counsel suggests that the disclosure of such information puts Mr. Hameed in the position of appearing to have admitted to his liability in the three fabricated transactions by paying money back to the lending company.

Appellants’ Counsel cited the privilege associated with settlement discussions.

The privileged information referred to was proposed to a witness during examination. Appellants’ Counsel objected to this evidence being entered as it was privileged. The Tribunal sustained this objection and this information was then redacted or physically removed from all documents in which it was referred. This process was carried out by both Registrar’s Counsel and Appellants’ Counsel.

Appellants’ Counsel now suggests that because the presiding member was made privy to some of the information within the civil settlement entered into by the Appellants, there is now a reasonable apprehension that the presiding member is biased. Appellants’ Counsel suggests that the presiding member cannot disabuse himself of this information.

Appellants’ Counsel cited paragraph 50 of the Newfoundland Commissioner of Public Utilities case, which refers to an Alberta Labour Relations Board case, Canadian Corp. of Commissioners, to support the proposition that the disclosure of privileged information may give rise to a claim of a reasonable apprehension of bias. In that case, that information totally compromised the ability of the Board to conduct a fair hearing. The information that the panel received of the failed settlement agreement made it impossible to conduct a fair hearing because that settlement agreement might be considered as an admission of liability by the employer. Those kinds of circumstances are far different from the matter before this Tribunal.

The Tribunal disagrees with Appellants’ Counsel’s assertion that disclosure of the privileged settlement information goes to the heart of her client’s case. The fact that the Appellants’ agreement to pay back the lending company (Access Easy) is in the same amount as what the Registrar alleges is, in the view of the Tribunal, minor information that has little or no impact on the overall evidence presented by the Registrar.

The Registrar’s Counsel in their factum states that there is no reasonable apprehension of bias in the present case. Counsel submits that any apprehension of bias by the Appellants would be unreasonable, and not be shared by any reasonable person viewing the matter objectively.

In addition, the Tribunal notes Counsel’s reference to case law that supports a strong presumption of judicial impartiality. An allegation of bias is serious and the evidence to show an apprehension of bias must be substantial. In Wewaykum Indian Band v. Canada, 2003 SCC 45, at para. 76, it was noted:

First, it is worth repeating that the standard refers to an apprehension of bias that rests on serious grounds, in light of the strong presumption of judicial impartiality. In this respect, de Grandpré J. added these words to the now classical expression of the reasonable apprehension standard:

The grounds for this apprehension must, however, be substantial, and I . . . refus[e] to accept the suggestion that the test be related to the “very sensitive or scrupulous conscience”.

(Committee for Justice and Liberty v. National Energy Board, supra, at p. 395)

In Johnson v. WCB, 2008 BCSC 1386, at para. 18, cited R. v. S. (R.D.), [1997] 3 SCR 484, 1997 CanLII 324 (SCC), where Cory J., at para. 111, clarified that this test contains a two-fold objective element: “…the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. Further, the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including ‘the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold.’”.

In that same decision, the courts have said that a decision maker has a duty to hear the cases that come before them and not to simply step down on the mere allegation of bias. The Tribunal agrees with these concerns.

In Middlekamp v. Fraser Valley Real Estate Board, [1993] B.C.J No. 2965 (S.C.) at para. 25, the Court noted that voluntary disqualification can set a dangerous precedent. In that case, counsel submitted that the judge should disqualify herself even though there were no grounds for disqualification. Boyd J. wrote that to do so would invite: “disgruntled, unhappy litigants or their counsel to make whatever allegations they wished, if the allegations fail to provide a proper foundation for a finding of bias or a reasonable apprehension of bias, the litigant could nevertheless take comfort in the knowledge that the mere making of the allegations would, by their very nature, taint the process and force the disqualification of the judge.”

Furthermore, the Registrar’s Counsel argues that Appellants’ Counsel has demonstrated a misunderstanding of the role of the opening statement, and that it is trite law that an opening statement does not constitute evidence. A decision maker cannot, and will not, place any reliance upon assertions made by a party in an opening statement if they are unsupported by evidence led in the proceeding.

The Registrar’s Counsel in their argument does not question the sanctity of settlement privilege; nor does he question the general principle that one who conducts pre-trial discussions should not preside over the subsequent hearing. While Appellants’ Counsel in her factum (paragraph 25-30) stresses that a judge conducting pre-trial discussions should not be the trial judge, Registrar’s Counsel points to the fact that presiding member did not preside over any confidential pre-trial or settlement conference. The presiding member was merely present in the hearing for a legitimate objection by the Appellant regarding the Respondent’s opening statement; an objection to which the respondent acceded.

The Registrar’s Counsel argues that in the criminal context, judges are frequently required to rule on the admissibility of documents, and despite being exposed to such material, judges are accustomed to ignoring inadmissible evidence when rendering a decision. Judges are routinely called upon to disabuse their minds of evidence which they have heard but which, as a matter of law, is not admissible in that trial before them. It is fundamental to their role to decide the case only on the evidence properly admissible in that case.

Counsel for the Appellants sought to draw a difference between tribunals and courts, in terms of the ability to disregard inadmissible evidence even after having seen or heard it. There is no basis for this distinction, in law or in practice. Like judges, tribunal adjudicators are often faced with material or testimony that they are exposed to, but that may be ruled inadmissible or irrelevant. For example, although tribunals are permitted to accept hearsay evidence, there are occasions when a tribunal could rule that certain hearsay testimony is too remote or too prejudicial to be accepted, or that it will be accepted but perhaps given little weight. This does not lead to a reasonable apprehension of bias situation that requires the adjudicator to step aside.

The Registrar argues that if the Appellants were legitimately concerned about the bias that could result in knowing information about the civil settlement, they easily could have sought the exclusion of those documents and allegations before the hearing commenced. The Registrar’s allegations and documentary disclosure was provided to the Appellants months in advance of the hearing. There was ample opportunity to raise the issue and have them excluded. Indeed, a motion date was set prior to the hearing to deal with all procedural issues. A different member of the Tribunal presided over that motion. The Appellants did not raise the issue of privileged information in the motion. The Registrar’s Counsel argues that the Appellants chose to wait until the Registrar sought to tender the documents during the hearing and then claim that the hearing now needs to be voided. Registrar’s Counsel submits that this is a delay tactic and an abuse of the Tribunal’s process.

The Tribunal is also concerned about the timing of this bias motion. Generally, bias allegations should be raised at the earliest opportunity. Appellants’ Counsel had not earlier objected to the Small Claims Court settlement materials in the disclosure, and she did not object to the time of the Registrar’s Counsel’s opening statement reference to that settlement.

The Tribunal denies the motion for recusal on the grounds of exposure to privileged information.

3. Question posed to a witness by the presiding member.

The Appellants’ Counsel suggested that the witness, Mr. Waldman, was essentially invited by the presiding member to give opinion evidence about the pattern of deals that Mr. Hameed has supposedly entered into. Counsel did not object to the question when it was asked. However, it is Counsel’s position that the Tribunal’s question elicited a response which was clearly biased and speculative, and also went to the heart of the issue before the Tribunal.

Appellants’ Counsel did not present transcript evidence or other details about this question. Neither counsel had a clear recollection as to the complete context of the question. Indeed, one counsel recalls the question being asked to a different witness. The Tribunal finds that there is an insufficient evidentiary basis for this part of the bias motion.

It is further noted that Appellants’ Counsel chose not to object to the alleged question posed by the presiding member at the time. She indicates that she felt it was inappropriate to object to a question asked by the member. This is not a sufficient reason for a legal counsel to not object to an alleged action of the tribunal member that may cause a strong enough concern to cause a reasonable apprehension of bias. A simple objection at the time might have cleared the matter up. In addition, it is the usual practice of the presiding member to ask counsel for anything arising out of any questions asked by the member. This would have provided another opportunity for counsel to correct any ambiguities or raise any concerns.

For this third ground, there is no evidence of any reasonable apprehension of bias that could be caused by any questioning of a witness by the presiding member, especially since there is no clear evidence of what this questioning may have been.

Therefore, for the reasons set out above, the Appellant’s motion for recusal of the presiding member is dismissed.

The matter before this Tribunal will proceed as scheduled on February 9, 2017.

LICENCE APPEAL TRIBUNAL

Alex McCauley, Member

Released: December 29, 2016