Michael Stolberg v. Registrar, Real Estate and Business Brokers Act 2002, 2016 CanLII 50082

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2016-05-04

FILE:

9924/REBBA

CASE NAME:

9924 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

Michael Stolberg

Appellant

-and-

Registrar, Real Estate and Business Brokers Act 2002

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Mary Ann Spencer, Member

APPEARANCES:

For the Appellant:

W. Xavier Navarrete, Counsel

For the Respondent:

George Drametu, Counsel

Heard in Toronto

April 19, 2016

REASONS FOR DECISION AND ORDER

BACKGROUND

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 dated November 18, 2015 proposes to revoke the registration of Michael Stolberg (the “Appellant”) as a salesperson under the Act.

The grounds for the proposal are that the Registrar has reasonable grounds to believe that the Appellant will not carry on business in accordance with law and with integrity and honesty. The particulars set out in the Proposal are summarized below.

The Appellant has been registered since June 9, 2008. On June 18, 2012, he was registered as a salesperson with TheRedPin.com Realty Inc. (“The RedPin”). On October 20, 2015, having confirmed a showing of a property with its owner, the Appellant went alone to the property. Video cameras captured the Appellant rummaging through the consumer’s personal belongings, including drawers and shelving units. The Appellant took batteries from a storage unit, opened and took $200 to $300 from a piggybank, and placed the items. in his pockets.

The consumer reported the incident to police who in turn addressed the issue with Tarik Gidamy, the Broker of Record at The RedPin. Mr. Gidamy identified the Appellant. On October 30, 2015, the Appellant was charged with one count of Theft under $5,000. The RedPin terminated the Appellant’s employment on November 6, 2015. On November 9, 2015, the Appellant transferred his registration to IPRO Realty Ltd. On November 12, 2015, after being notified that the consumer had filed a complaint with the Real Estate Council of Ontario (“RECO”), IPRO Realty Ltd. terminated the Appellant’s employment. On November 14, 2015, the Appellant’s registration was transferred to Your Choice Realty Corp.

On November 18, 2015, the Registrar issued both the Notice of Proposal to Revoke the Appellant’s registration and, in accordance with section 15 of the Act, an Immediate Suspension Order.

PRELIMINARY MATTERS

At the pre-hearing held in this matter on January 12, 2016, the Appellant admitted to the particulars set out in the Notice of Proposal (Exhibit 1) other than he disputes the amount taken from the piggybank. The Appellant’s position is that he took only $20. Given the Appellant’s admission, the parties agreed that the only issue to be addressed at this hearing was penalty.

At the outset of the hearing, Mr. Drametu proposed to lead evidence with respect to the fact situation which gave rise to the allegations in the Proposal. Given the substantial facts are not in dispute, the Tribunal noted that it was not necessary to hear this evidence unless it would contribute to the assessment of the appropriate penalty. Mr. Drametu suggested that viewing the video would speak to the Appellant’s intent with respect to the theft. The Tribunal rejected this argument and the video was not viewed. Mr. Drametu chose not to call the RECO investigator.

EVIDENCE AND FACTS

Registrar’s Evidence

The evidence of the Registrar consisted of a book of documents (Exhibit 3) and the testimony of Tarik Gidamy and Angela Volpe.

Tarik Gidamy began his career in real estate in 1999. Since 2011, he has been the Broker of Record at The Redpin. Mr. Gidamy testified that The Redpin has approximately 160 staff, 80 of whom are practicing realtors. Mr. Stolberg was one of the first realtors hired, in June, 2012. He was terminated in November, 2015 after Mr. Gidamy learned of his conduct at the consumer’s home. He both spoke to police and to the consumer who also sent a copy of the video recording of Mr. Stolberg in his home.

Mr. Gidamy stated that Mr. Stolberg’s behaviour was outside of the Code of Ethics. Some of the behaviour was acceptable in an “agent’s showing”; for example, opening drawers in kitchens. However, going through personal belongings is unacceptable. The RedPin has a zero tolerance policy and Mr. Gidamy quickly made the decision to terminate Mr. Stolberg. Asked if he considered retaining and supervising Mr. Stolberg, Mr. Gidamy stated that resources are expensive and he is not in the babysitting business. He cannot afford the time and resources that would be required to supervise professionals. Mr. Gidamy noted that the RedPin has a system in place which provides a full record of all correspondence sent to clients. While he checks as much of this as he can, he indicated it would be “practically impossible” to monitor a salesperson’s behaviour.

On cross examination, Mr. Gidamy stated that Mr. Stolberg was one of the top 20 salespersons at his firm. He attended all sales meetings. He performed well against industry standards and would still be employed had the incident at the consumer’s home not taken place. Mr. Gidamy views the incident as isolated. He had received no other complaints from brokers or clients about Mr. Stolberg. He also noted that when he first viewed the consumer’s video, his reaction was that the incident was about someone needing help. A red flag went off that there was an underlying issue with Mr. Stolberg.

Asked if supervision would be feasible if another brokerage was prepared to invest the resources required, Mr. Gidamy stated that it would be feasible if the brokerage was willing to do it.

Angela Volpe is the Manager of Registration at RECO. Her responsibilities include supervising the registration department employees and assisting the Registrar in the administration of the Act.

Ms. Volpe testified that the Registrar issued an Order of Immediate Suspension to Mr. Stolberg on November 18, 2015 after RECO had received and investigated a consumer complaint. Immediate suspension orders, which are rare, are issued when there is concern about the public interest.

Ms. Volpe stated that the Registrar’s concerns were with Mr. Stolberg’s conduct which she described as “egregious”. Registrants are expected to conduct themselves with honesty and integrity in accordance with section 10 of the Act. Mr. Stolberg’s conduct, which she testified included rummaging through dresser drawers in the baby’s room, is a breach of trust. She noted that had the theft not been captured on the consumer’s video recording, the Registrar would not have known about it and remarked that the Registrar does not know whether this has happened before. She then stated “are we willing to gamble that this was the only time?”

Asked if the Registrar has options other than revocation of registration, Ms. Volpe testified that conditions are difficult to administer or enforce when behaviour is the issue. Some conditions, such as financial conditions or requiring the attendance at courses can be administered because documents can be provided. She also noted that the Registrar cannot guarantee that a registrant would be supervised because supervision imposes a responsibility on someone other than the registrant.

In Mr. Stolberg’s case, the broker of record at Your Choice Realty, Catherine Johnson, in a letter dated November 14, 2015, indicated that Mr. Stolberg had been hired subject to conditions, one of which is that he not be allowed to enter a property without a client present for the next two years. Ms. Volpe stated that this condition puts the responsibility onto the clients. She also noted that Ms. Johnson owns only 1% of the brokerage and that there is another broker who manages it and deals with the registrants.

Ms. Volpe stated the Registrar has no proof that the October 20, 2015 incident was an isolated one and it was too big of a question mark whether it would happen again. She noted that Mr. Stolberg’s root behaviour is the concern, not the amount he took. She also stated that the Registrar cannot predict that the therapy Mr. Stolberg has entered into will be helpful. She noted that the February 8, 2016 report from David Fetter at Close Connections (Exhibit 4) indicates that while the October 20, 2015 might be Mr. Stolberg’s first theft in a professional capacity, he has stolen before. On cross-examination, Ms. Volpe agreed that she is not a social worker and her opinion is that of a layperson. She also stated that RECO has not obtained a professional opinion. Asked if she considered the fact that Mr. Stolberg had sought professional help to be a material change, she indicated that she did not because he had only been in therapy for 5 months.

Ms. Volpe then noted that revocation does not mean that Mr. Stolberg would be expelled from the industry for life. He would be able to reapply under section 17 of the Act which permits reapplication subject to the availability of new evidence or a clear indication of a material change in circumstances. She noted that the Registrar does not know the status of criminal charges against Mr. Stolberg but that it would be something they would monitor and require status reports on. She did agree that Mr. Stolberg seemed to be remorseful and that would be considered if his registration were to be revoked and he reapplied. Asked how she would determine his remorse, she said that the Registrar would “have to take him at his word”.

Ms. Volpe also spoke to two newspaper articles and one Internet article (Exhibit 6). The Tribunal notes that Mr. Navarrete objected to this evidence on the basis that it was hearsay. Mr. Drametu noted that hearsay evidence was admissible under the Statutory Powers Procedure Act. The Tribunal allowed the evidence and noted it would be assigned the appropriate weight.

The first of the articles, which was published in the Toronto Star on December 12, 2015 under the byline of RECO Registrar Joe Richer, addresses precautions sellers can take to prepare for open house showings. Ms. Volpe described the article as a general consumer protection piece. The second article dated December 19, 2015 and published in the Kingston Whig-Standard reports on a seller who alleged that jewellery was stolen during an open house showing of her home. The third article, from the “Lacking Indifference” blog by Brenda Phelan asks that standards be set for open houses.

On cross examination, Ms. Volpe agreed that RECO had received no complaints about Mr. Stolberg in his seven year registration period before the October, 2015 incident. He has also complied with the Order of Immediate Suspension.

Appellant’s Evidence

David Fetter holds a Master of Social Work from the University of Toronto and has been in private practice since 1993 providing psychotherapy services. Mr. Fetter’s resume notes that approximately 60% of his practice is in the area of forensic social work. On a consultative basis, he works with Dr. Julian Gojer, a forensic psychiatrist. Mr. Fetter conducts psychosocial assessments and prepares reports for criminal court.

Mr. Fetter testified that he first saw Mr. Stolberg on November 19, 2015 and has seen him a total of 11 times. He continues to work with Mr. Stolberg who has attended all scheduled sessions as an active participant

Mr. Fetter explained that there are aspects to Mr. Stolberg’s life over which he feels out of control. As a result, he can suffer from a low grade depression. The stealing of small items, which Mr. Fetter understands happens intermittently, averts the depressive state.

Mr. Fetter explained the concept of cognitive distortion. Mr. Stolberg minimized the impact of his action; because he thought that no one was getting hurt by his taking small objects, there was no reason to stop. Losing his real estate registration has been “of huge consequence” to Mr. Stolberg and that has overcome the distortion. He noted that Mr. Stolberg is also very family conscious and that this, along with his understanding of consequences, would act as a deterrent for future thefts. Mr. Fetter used the analogy of stating that Mr. Fetter has previously seen his actions through a distorted lens; the impact of losing his real estate licence has changed the lens. Before beginning counseling, Mr. Stolberg saw the world through the perspective of “I”. The impact of his October actions has caused him to make a significant shift and consider the impacts of his actions more broadly.

Mr. Fetter noted that ongoing sessions will continue to help Mr. Stolberg. Part of the goal is for him to gain control over aspects of his life where he thinks he does not have it. There is still room for more change and Mr. Stolberg is motivated.

Asked if there had been any reversions since he began therapy with Mr. Stolberg, Mr. Fetter stated that based on what he understood of Mr. Stolberg, there had not been. In cross-examination, Mr. Fetter clarified that he based this not only on what Mr. Stolberg told him but also on his own professional assessment. However, with respect to whether or not the October, 2015 incident was the only professional incident of stealing, Mr. Fetter stated he relied entirely on what he was told by Mr. Stolberg.

Asked about his report which states “I expect that continued treatment and consistent motivation on his part will result in positive changes in his behaviour”, Mr. Fetter testified that Mr. Stolberg has made progress but that there is still work to be done. Part of the goal is for Mr. Stolberg to gain control of his life and this work is ongoing. However, he emphasized that part of that work is for Mr. Stolberg to regain the trust of his profession which could not be done unless he was able to work in the profession.

Michael Stolberg testified that he is married with two children aged 3 and 8 months. Originally from Quebec, he moved to Toronto to become a real estate agent. He has been registered since June 9, 2008. There have been no disciplinary issues during the period of his registration.

Mr. Stolberg testified that there were a number of stressors in his life in October, 2015. His daughter has an ongoing health issue and he had a new son. His wife was on maternity leave and he felt pressure to perform in his position as a salaried employee.

Mr. Stolberg admitted to the October, 2015 theft when he was approached by the RECO investigator. After he was suspended, he began to see Mr. Fetter right away. Since he began to work with Mr. Fetter, he understands that taking things has no benefit. He has become cognizant of his own behaviour. Mr. Stolberg also began to do volunteer work. He testified that he called local organizations to find a volunteer position. He worked for the Salvation Army as a kettle coordinator, collecting funds before Christmas and there were no issues.

Mr. Stolberg is the primary caregiver for his family. He noted that if he had to take a 9 to 5 job that it would be difficult for him to be there for his family. He struggled to find his salaried real estate position with the Redpin. When he began to have a family, he needed a consistent income. After finding the position at The Redpin, he was retained as a salaried employee even when others were being transferred to commission positions because he was able to perform to the firm’s standard.

Mr. Stolberg stated that his termination by The Redpin and his subsequent suspension by RECO were eye openers. He has tarnished his reputation. He also noted that on a personal level, his wife reminds him of how his actions have affected his family. Since the suspension, his health has been impacted as well; he has lost weight and does not sleep. He fears he may lose his wife and children if he loses his licence.

After the suspension of his registration, Mr. Stolberg did work as a salesperson for a printing company for six weeks. However, he was let go because he had only made one or two sales during that time and had exhausted his contacts. He left on good terms. and noted that he was promised commission if any of the leads he had pursued resulted in sales after he left the company.

Mr. Stolberg testified that his real estate registration means more than a piece of paper to him. He indicated that he could not put into words how sorry he was for his actions. He is prepared to do anything the Tribunal asks of him. He can be and will be an ethical person. Working with Mr. Fetter has had a profound impact on him. He stated that changing behaviour is only one thing; he has come to understand how his behaviour affects others. He tries to be better every day. He does not believe that he will relapse. Mr. Fetter has given him a six step program to follow which he explained is a specific set of questions which enables him to think through his actions.

On cross-examination, Mr. Stolberg agreed that his actions in opening drawers and taking money from the piggy bank were disrespectful of the home he was in. Asked if he took the money because of his family situation, he stated he did not; he took it because he was just thinking about himself. Asked what benefit he got from it, he stated there was none. Asked if he had stolen before, he stated he had. Finally, asked why he did volunteer work, Mr. Stolberg stated his motivation was to become a better person and to give back to the community.

THE LAW

The 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;

Section 13 of the Act sets out that the Registrar may suspend or revoke a registration:

13 (1) Subject to section 14, the registrar may refuse to register an applicant or may suspend or revoke a registration or refuse to renew a registration if, in his or her opinion, the applicant or registrant is not entitled to registration under section 10.

Section 14 sets out the powers of the Tribunal:

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.

SUBMISSIONS

Mr. Drametu submitted that Mr. Stolberg’s past conduct provides the Registrar with reasonable grounds to believe that he will not carry on business in accordance with law and with honesty and integrity. He noted that a real estate salesperson is given free access to people’s homes. The Act is consumer protection legislation and trust, both between clients and agents and among agents, is important. Mr. Stolberg breached that trust and the fact that the items. Mr. Stolberg took were small is not relevant. Mr. Drametu also noted that the Registrar does not know that the October, 2015 incident was only one-time. Mr. Fetter’s report indicates that Mr. Stolberg has stolen before and it is only Mr. Stolberg’s word that October 2015 was the first time he did this in his professional capacity. While therapeutic progress may have been made, Mr. Fetter could not guarantee that Mr. Stolberg would not steal again.

Mr. Drametu also submitted that there are no possible conditions that could be imposed on the Appellant and that enforceability would be an issue. Mr. Gidamy explained how he closely monitored his agents and yet he missed the October, 2015 incident. RECO cannot enforce a condition that the Appellant not attend showings alone. Further, the Appellant’s sponsoring broker was not called as a witness and therefore the Tribunal cannot know how any conditions would be enforced.

Mr. Navarrete submitted that there is no evidence to support that the October, 2015 incident was not the first. Mr. Stolberg has a seven year record of registration with no previous complaints. No other complainants have come forward since Mr. Stolberg’s registration was suspended on November 18, 2015. The impact of that incident on Mr. Stolberg, a five month suspension, is disproportionate to what was stolen. Moreover, Mr. Stolberg has rehabilitated himself.

Mr. Navarrete referred the Tribunal to the decision in 9230 v. Registrar, Real Estate and Business Brokers Act, 2002, 2015 CanLii 26079 (ON LAT) “Asadi” in which the Tribunal ordered the Registrar not to carry out the proposal to refuse registration. The Tribunal noted that Ms. Asadi had paid a high price for her previous actions which resulted in a three year suspension of her real estate registrations in British Columbia, monetary penalties and the loss of her home and family. However, she had also made complete disclosure to the regulators in both British Columbia and Ontario, which the Tribunal noted indicated she had accepted her responsibilities. Mr. Navarrete submitted that Mr. Stolberg’s registration should not be revoked because, like the Appellant in Asadi, Mr. Stolberg had admitted the facts and had accepted responsibility for his actions.

Mr. Navarette also submitted that there was no personal gain from Mr. Stolberg’s theft; it was a “cry for help” which he noted was also Mr. Gidamy’s assessment. Mr. Stolberg is remorseful and has sought help. He is not completely rehabilitated, but Mr. Fetter noted that for that to happen, Mr. Stolberg needs a chance to prove hiMs.elf in the industry setting. Conditions can be placed on his registration. In this regard, Mr. Navarrete referred the Tribunal to 5179 v. Registrar, Real Estate and Business Brokers Act, 2002, 2010 CanLii 96811 (ON LAT) in which the Tribunal ordered a number of conditions be placed on the Appellant’s registration, including monitoring by the broker of record.

In reply, Mr. Drametu noted that Asadi can be distinguished from the case before the Tribunal in that the period of that Appellant’s rehabilitation was significantly longer than Mr. Stolberg’s has been. He then noted that Mr. Stolberg’s behaviour could be a progression “from stealing chocolates to I don’t know what”.

ANALYSIS

The Appellant is entitled to registration unless one of the grounds in section 10 of the Act applies. The onus is on the Registrar to prove that there are reasonable grounds for belief that the Appellant will not act in accordance with law, with integrity and with honesty. The Tribunal must make an independent assessment.

The standard to be applied by the Tribunal in making its determination is set out in Ontario (Alcohol and Gaming Commission of Ontario) v. 751809 Ontario Inc. (Famous Flesh Gordon’s), 2013 ONCA 157:

18The standard of proof provided by s. 6(2)(d) of the Act that of “reasonable grounds for belief”. There is no doubt that this is a lower standard of proof than “balance of probabilities”. The Supreme Court of Canada made that clear in Mugesera v. Canada (Minister of Citizenship and Immigration),2005 SCC 40, [2005] 2 S.C.R. 100, which dealt with this standard, one commonly used in regulatory statutes in the context of the Immigration Act. The court said this at para. 114:

The FCA has found, and we agree, that the “reasonable grounds to believe” standard requires something more than mere suspicion but less than the standard applicable in civil matters of proof on the balance of probabilities…In essence, reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information…

19As applied to this case, s. 6(2)(d) of the Act requires the Registrar simply to show that Mr. Barletta’s past or present conduct provides reasonable grounds for belief that he will not carry on business in accordance with the law and integrity and honour. The Registrar does not have to go so far as to show that Mr. Barletta’s past or present conduct makes it more likely than not that he will not carry on business as required.

The undisputed evidence in this case is that Mr. Stolberg stole both batteries and some amount of money from a consumer’s home. As Mr. Drametu pointed out, the Act is consumer protection legislation. Consumers who are selling their homes trust real estate professionals to ensure those homes are safeguarded when being shown to prospective buyers and/or their registered representatives. As the undisputed particulars in the Registrar’s Notice of Proposal states with respect to Mr. Stolberg’s actions, he was “rummaging through the Consumer’s personal belongings, drawers and shelving units.” As Mr. Gidamy testified, Mr.Stolberg’s actions went beyond what might be considered acceptable practice for a real estate salesperson. In this regard, the Tribunal agrees with Mr. Drametu’s submission that the value of what was taken is not relevant. Mr. Stolberg’s actions were not only criminal but also comprise a fundamental breach of trust.

Mr. Drametu stated that the only reason the October, 2015 incident came to light was because it was caught on videotape. He suggested that there might have been previous incidents. Similarly, Ms. Volpe testified that the Registrar had no proof that the October, 2015 incident was the only one; and, whether it would happen again was “too big of a question mark” to permit Mr. Stolberg’s registration.

Forensic social worker David Fetter wrote in his February 8, 2015 report:

Mr. Stolberg acknowledges that at various times in his life he has engaged in stealing, always taking small items. that included items. such as chocolate bars, small quantities of food and most recently a small quantity of money and several batteries.

While stealing small objects is not an isolated incident this is to the best of my knowledge the first time it has occurred while in a professional capacity.

Mr. Fetter explained that he relied on Mr. Stolberg with respect to the fact that the October, 2015 incident was the only time theft occurred professionally.

In the Tribunal’s view, it is unreasonable for the Registrar to rely on the mere possibility that there were other incidents in Mr. Stolberg’s professional capacity to support his position. There is no evidence before this Tribunal that the October, 2015 incident was not an isolated one. Mr. Stolberg was continuously registered from June 9, 2008 until November 18, 2015, a period of over seven years. There is no evidence that there were any other consumer complaints during that period. And, while Mr. Fetter’s report refers to incidents which might have taken place outside of Mr. Stolberg’s professional capacity, and Mr. Stolberg admitted to these in cross-examination, there is also no evidence before the Tribunal with respect to either the number of these incidents or how long ago they might have occurred.

The question before the Tribunal is whether Mr. Stolberg’s past conduct, that is the undisputed evidence of his October, 2015 theft and the somewhat indeterminate evidence of other small thefts in the past, is sufficient to provide the Registrar with reasonable grounds to believe that Mr. Stolberg will not act in accordance with law and with integrity and honesty in the future.

In Asadi, the Tribunal wrote:

The Act, and the other statutes with similar wording ask the Tribunal to assess the whole of an appellant’s past conduct, up to the date of the hearing, to determine if it is necessary to protect the Ontario public by denying an appellant registration. While the majority of time spent at a hearing will necessarily address the impugned or improper behaviour, it is in assessing the whole of an appellant’s prior behaviour that the Tribunal finds the answer.

As noted above, Mr. Stolberg had no other complaints against him during his more than seven year period of continuous registration. More importantly, Mr. Stolberg sought help almost immediately after the October, 2015 incident came to light. Mr. Gidamy testified that when he viewed the videotape of Mr. Stolberg in the consumer’s home, he assessed it as someone needing help. Mr. Stolberg has sought that help. He first saw Mr. Fetter on November 19, 2015 and continues to see him on a regular basis.

Mr. Fetter explained that intermittent stealing of small items. averts the depression that can result when Mr. Stolberg feels out of control over aspects of his life. He noted that before the October, 2015, Mr. Stolberg minimized the impact of his action; he testified that because Mr. Stolberg thought no one was getting hurt, there was no reason to stop. However, he further testified that the October, 2015 incident has had a significant impact on Mr. Stolberg. Mr. Fetter’s report notes:

This time is different because he was caught and held accountable for his actions. This time he felt such feelings including guilt, shame and embarrassment as a result of his choice to take things that did not belong to him. Mr. Stolberg presents with appropriate remorse and he is motivated to address any underlying issues that he may have so he does not re-offend in the future.

Mr. Fetter noted that Mr. Stolberg is very family conscious and that this, along with his understanding of the consequences of his actions, would act as a deterrent to future thefts. He testified that, based both on what Mr. Stolberg had told him and his own assessment, that he believes there has been no reversion to Mr. Stolberg’s past behaviour. Ms. Volpe noted that she did not consider the fact that Mr. Stolberg has sought help to be a material change because the therapy has been ongoing for only five months. Mr. Drametu submitted that Mr. Fetter could not guarantee Mr. Stolberg would not steal again. The Tribunal acknowledges that Mr. Fetter did not unequivocally state that Mr. Stolberg’s issues had all been addressed. He noted progress had been made and that continued therapy would be a benefit. However, he was very clear that contributing to his equivocation was the fact that part of Mr. Stolberg’s ongoing therapy was to regain the trust of his profession, something he could only achieve if he was working again.

Both Ms. Volpe and Mr. Drametu suggested that if Mr. Stolberg’s registration were to be revoked, he could reapply for registration at some future date. In this regard, the Tribunal notes that one of the criteria Ms. Volpe indicated she would use to assess his eligibility in those circumstances would be whether or not he demonstrated remorse, which she stated she would rely on his word to assess. The Tribunal notes that she also testified that she believes that Mr. Stolberg is remorseful now. Mr. Stolberg’s remorse was evident to the Tribunal. He testified about the impact his actions had on his family and how important that is to him. The Tribunal has no reason to doubt his sincerity in testifying that he could not put into words how sorry he was and that he is committed to being an ethical person.

The evidence is that Mr. Stolberg has taken responsibility for his actions. His testimony that he admitted the allegations to the RECO investigator was not disputed. He has admitted to all of the particulars set out in the Notice of Proposal with the exception of the amount of money. He began to do volunteer work almost immediately after the October, 2015 incident to give back to his community. He also sought Mr. Fetter’s professional help almost immediately after the incident and continues to see him. Mr. Fetter emphasized that Mr. Stolberg has been motivated to change after he has recognized consequences, which in this case have included a five month suspension, a significant penalty which the Tribunal notes is likely to act as a strong deterrent to any further incidents. Mr. Fetter’s opinion is that there has been no reversion to former behaviour. The Tribunal notes that Mr. Stolberg’s testimony was sincere and his remorse was evident.

Mr. Stolberg’s theft from a consumer’s home in October, 2015 was both criminal and a breach of trust. However, based on the evidence of the totality of Mr. Stolberg’s conduct, the Tribunal finds that there are not reasonable grounds for belief that he will not carry on business in accordance with law and with integrity and honesty and therefore his registration should not be revoked. However, the Tribunal does conclude that Mr. Stolberg’s registration should be with conditions.

In her November 14, 2015 letter, Catherine Johnson, the Broker of Record at Mr. Stolberg’s sponsoring brokerage, states that she is aware of his criminal charges and the reason for them. Ms. Volpe noted that Ms. Johnson is not the individual managing the brokerage’s operations. In the Tribunal’s view, that is not relevant because it is the Broker of Record who is responsible for the supervision of salespersons as set out in O.Reg.567/05 under the Act.

Ms. Johnson employed Mr. Stolberg on two conditions; that he not enter any property without a client being present with him at all times and that he be required to inform the brokerage of the status of his criminal charges. The Tribunal agrees with these conditions. Ms. Volpe stated that the former type of condition could not be monitored. The Tribunal acknowledges that real estate registrants work independently and that, to some degree, the enforceability of this condition relies on Mr. Stolberg’s motivation to prove himself trustworthy. Therefore, to facilitate monitoring, the Tribunal will require Mr. Stolberg to maintain a detailed formal log of his property viewings/attendances.

ORDER

The Registrar is hereby ordered not to carry out the Proposal to revoke the registration of Michael Stolberg as a salesperson under the Act but his registration shall be subject to the following conditions:

1. For a period of three years from the date of this Order, Mr. Stolberg shall not attend any property unless it is occupied or he is accompanied by client(s) and/or another registrant under the Act.

2. For a period of three years from the date of this Order, Mr. Stolberg shall maintain a formal independent log of all properties at which he attends. This log shall include the property address, the date and time of his attendance, and the name and contact number of either the client(s) and/or registrant who either accompanies him or who is present at the property. This log shall be immediately provided to either Mr. Stolberg’s broker of record and/or the Registrar for their inspection at their request.

3. For a period of three years from the date of this Order, Mr. Stolberg shall immediately inform the Registrar in writing of any complaints made against him by a member of the public or other registrants under the Act and he shall provide details of all such complaints and any documentation that the Registrar may request.

4. Mr. Stolberg shall immediately inform his broker of record of any changes in the status and/or the disposition of the criminal charges against him with respect to the October 20, 2015 theft

5. Mr. Stolberg shall immediately inform his broker of record should he terminate his therapy with David Fetter or with any other professional therapist whose services he may engage.

6. Mr. Stolberg shall provide a copy of these conditions to his broker of record, obtain her/his acknowledgement of their receipt, and provide a copy of the acknowledgement to the Registrar.

7. Mr. Stolberg shall not transfer his registration until the Registrar has received a Notice of Transfer and a signed acknowledgement by the new broker of record of receipt of a copy of these conditions.

8. If Mr. Stolberg is in breach of any of the above terms. and conditions, the Registrar may propose to revoke his registration as a real estate salesperson under the Act.