LICENCE APPEAL TRIBUNAL
Safety, Licensing Appeals and Standards Tribunals Ontario
Appeal from a Notice of Proposal by the Registrar, Real Estate and Business Brokers Act, 2002, to Refuse Registration
Between:
C.S. Appellant
and
Registrar, Real Estate and Business Brokers Act, 2002 Respondent
RECONSIDERATION DECISION
Before: Linda P. Lamoureux, Executive Chair
Written Submissions By: For the Appellant: Richard A. Wellenreiter, Counsel For the Respondent: Jonathan Miller, Counsel
OVERVIEW
On November 7, 2016, the Licence Appeal Tribunal (the “Tribunal”) issued its decision in 10152 v. Registrar, Real Estate and Business Brokers Act, 2002. The Appellant requests a reconsideration of the Tribunal’s decision.
For the reasons that follow, upon consideration of the submissions of both parties, I dismiss the Appellant’s request for reconsideration.
BACKGROUND
On March 23, 2016, the Registrar, Real Estate and Business Brokers Act, 2002, S.O. 2002, c. 30, Sch. C (the “Registrar” and the “Act” or “REBBA”, respectively) issued a notice of proposal (“NOP”) to refuse the registration of the Appellant C.S. as a salesperson under the Act. The Appellant filed an appeal of the NOP with the Tribunal on April 6, 2016. The appeal was heard in Toronto on August 3, 4, 5 and September 9, 2016.
The Registrar alleged 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 relied 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 and is currently on probation for her conviction. The Appellant admitted the facts underlying the criminal conviction – that she had a five-year sexual relationship with a young person with whom she was in a position of trust.
The Tribunal issued its decision on November 7, 2016, directing the Registrar to carry out its proposal to refuse the Appellant’s registration as a real estate salesperson. The member of the Tribunal who heard this appeal (the “Adjudicator”) concluded that the past conduct of the Appellant afforded reasonable grounds to believe that she will not carry on business in accordance with law and with integrity and honesty, which is a ground for refusal under s. 10(1)(a)(ii) of the Act.
The Adjudicator considered the evidence of the Appellant’s five-year sexual relationship with a young person with whom she was in a position of trust and authority. She was first his teacher and then his foster parent. She was charged two years after the relationship ended and pleaded guilty two years after being charged. The Adjudicator also considered evidence of the Appellant’s otherwise exemplary conduct, including that Appellant took full responsibility for her actions after she was charged. She was still on probation at the time of the hearing and, according to Dr. H.M., an expert in clinical and forensic psychology, she has a very low probability of reoffending. There was no evidence of any inappropriate conduct other than the conduct for which she was convicted. The Adjudicator considered the Appellant’s past conduct in the full context of events both before and after the commission of the offence, noting that it must assess the criminal conduct in relation to the ability of the Appellant to conduct the business of being a realtor and serve the interests of consumers.
The Adjudicator found that the events leading to the Appellant’s conviction, including the fact that she hid her misconduct until she was charged two years later, were a significant breach of trust. Real estate salespeople are in a position of trust with respect to their clients and must protect consumers in the most significant financial decision they will make. As the offence was still “fresh” and the Appellant was still under sentence, the Adjudicator found that insufficient time had passed to fully assess her future conduct. The Adjudicator found that the “Appellant’s past conduct leading to her criminal conviction was dishonest, lacked integrity and was contrary to law” and 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 Adjudicator found that granting the Appellant’s registration with certain conditions was not an appropriate alternative to refusal with respect to the grounds in s. 10(1)(a)(ii) of the Act, as the passage of time since her conviction was insufficient to fully assess her future conduct. The Adjudicator also noted that the Appellant’s proposed supervisor, B.V., was not appropriate, as he was currently in a romantic relationship with her.
The Appellant filed a request for reconsideration with the Tribunal on November 28, 2016. On December 12, 2016, the Tribunal requested submissions from the Respondent on the request for reconsideration. The Respondent’s submissions were received on December 22, 2016.
LAW
Section 21.2 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, states that a tribunal may, if it considers it advisable and if its rules deal with the matter, review all or part of its own decision and may confirm, vary, suspend or cancel the decision or order.
The criteria for reconsideration are set out in Rule 18.2 of the Licence Appeal Tribunal Rules of Practice and Procedure, which states that the Executive Chair will not grant a request for reconsideration unless one or more of the following criteria are met:
a. The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
b. The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;
c. The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or
d. There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
- Pursuant to Rule 18.4, upon consideration of a request for reconsideration, the Executive Chair may:
a. Dismiss the request; or
b. After providing all parties an opportunity to make submissions,
i. Confirm, vary, or cancel the decision or order; or
ii. Order a rehearing on all or part of the matter.
SUBMISSIONS
Both parties provided submissions on the Appellant’s request for reconsideration.
The Appellant submits that the Tribunal erred by failing to properly carry out its assessment under s. 10(1)(a)(ii) of the Act of whether the past conduct of the Appellant afforded reasonable grounds to believe that she will not carry on business in accordance with the law and with integrity and honesty. The Appellant makes a number of specific submissions in this regard, including that:
The Adjudicator reversed the onus of proof;
The Adjudicator failed to account for the presumption of inclusion rather than exclusion under s. 9.1(1) of the Act;
The Adjudicator failed to treat the hearing as de novo and merely repeated the Registrar’s decision;
The Adjudicator gave improper consideration and weight to the criminal conviction of the Appellant, gave insufficient weight to the evidence of her positive conduct and misapplied non-business conduct as business conduct;
The Adjudicator failed to provide adequate reasons regarding the specific evidence presented;
The Adjudicator erred in its credibility assessment of B.V.; and
The Adjudicator stated that the Appellant’s application for registration was premature, when the Act does not outline a prescribed time frame.
The Appellant also submits that the Adjudicator erred in determining that the imposition of conditions would not be appropriate in this case. The Appellant states that the Adjudicator failed to consider the non-exhaustive list of factors to be considered in determining whether registration should be refused or granted with conditions, as set out in Tulloch v. Registrar, Real Estate and Business Brokers Act, 2002, [2009] O.L.A.T.D. No. 329 (QL).
The Appellant also cites several cases previously decided by the Tribunal for the principles that the past conduct as a whole must be considered, serious criminal conduct does not in itself preclude registration and there is no prescribed time period over which good behaviour must be shown.
In response, the Respondent submits that there is no serious error of law or fact in the Decision that would result in a different decision and therefore meet the high threshold for reconsideration.
ANALYSIS
I do not find that the Adjudicator made a significant error of law or fact such that the Adjudicator would likely have reached a different decision.
Many of the Appellant’s submissions take issue with the Adjudicator’s weighing of the evidence and assessments of credibility. The weighing of the evidence is entirely within the Adjudicator’s discretion. Absent a significant error of the kind detailed in Rule 18, a request for reconsideration cannot be granted simply on the basis that one party would have preferred that the evidence be weighed or considered differently. The adjudicator at the hearing is best able to determine what the relevant evidence is, to assess its weight and to make findings with respect to credibility. The Request for Reconsideration process is not an opportunity to reweigh evidence and revisit questions of credibility.
The individual grounds raised by the Appellant are addressed below.
Reversal of the Onus
- The Appellant has not identified any specific language or instances in the decision that could support a finding that the Adjudicator reversed the onus of proof. I see nothing in the reasons to suggest that the Adjudicator placed an onus on the Appellant to disprove the ground for disentitlement in s. 10(1)(a)(ii) of the Act. The Adjudicator clearly stated his finding, based on all of the evidence, that the Appellant’s past conduct 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.
Presumption of Inclusion
- The Appellant submits that the Adjudicator failed to account for the presumption of inclusion, rather than exclusion, as set out s. 9.1(1) of the Act. The Appellant is correct that the Act provides for a presumption of inclusion rather than exclusion and that an applicant for registration under the Act who has met the prescribed requirements is entitled to registration unless there are grounds for disentitlement as set out in s. 10(1) of the Act. However, contrary to the Appellant’s submission, the Adjudicator did not fail to account for the presumption of inclusion. The Adjudicator did not presume that the Appellant was disentitled to registration. Rather, the Adjudicator was satisfied, after carefully considering the evidence as a whole, that the ground in s. 10(1)(a)(ii) was met. It is clear from the Adjudicator’s reasons that if the Registrar had not established a ground for disentitlement, the Appellant would have been entitled to registration.
De novo hearing
- Similarly, there is no basis for the Appellant’s submission that the Adjudicator failed to treat the hearing as de novo and merely repeated the Registrar’s decision. The Tribunal heard both oral evidence and documentary evidence. It is clear from the Adjudicator’s reasons that his decision to direct the Registrar to refuse the Appellant’s registration was based on the findings he made after careful consideration of all of the evidence available.
Weighing of the evidence
The Appellant submits that the Adjudicator gave inappropriate weight to her criminal conviction, and that a criminal conviction in itself does not necessarily preclude registration. She also submits that the Adjudicator misapplied non-business conduct as business conduct.
Further, the Appellant submits that the Adjudicator failed to give proper consideration or weight to evidence of her positive conduct, including evidence relating to her rehabilitative efforts, her acceptance of responsibility, her low risk to re-offend, having been in positions of authority before without incident, her valuable contributions as an administrative office manager in the real estate industry, and her completion of probationary requirements.
I am not satisfied that the Adjudicator made a significant error of fact or law in this regard. The Adjudicator took into account all of the Appellant’s past conduct, including positive conduct both before and after her conviction. The Adjudicator assessed the matter “in the full context of events both before and after the commission of the offence.” The Adjudicator noted that the Appellant has been fully compliant with the terms of her probation, that she showed herself to be intelligent and competent, that she took full responsibility for her actions and that she is unlikely to commit a similar offence in the future. The Adjudicator weighed this evidence along with the evidence of the Appellant’s criminal conduct to conclude that there were reasonable grounds to believe that she would not conduct her business as required by s. 10(1)(a)(ii).
The Adjudicator did not err by relying on non-business conduct in making his determination under s. 10(1)(a)(ii). The Court of Appeal stated in Ontario (Alcohol and Gaming Commission, Registrar) v. (751809 Ontario Inc. (C.O.B. Famous Flesh Gordon’s), 2013 ONCA 157, which was relied on in the Adjudicator’s reasons in this case, that the past conduct to be considered is “not limited to the operation of the business or in any other way.”
The fact that the Adjudicator placed substantial weight on the conduct leading to the Appellant’s criminal conviction is not a significant error of fact or law. The Appellant’s criminal conduct was the basis for the Registrar’s proposal, and was therefore central to the Adjudicator’s finding under s. 10(1)(a)(ii) of the Act. The Adjudicator did not state that a criminal conviction in itself precludes registration. The Adjudicator considered the criminal conviction, along with all the other evidence of the Appellant’s past conduct, and assessed the criminal conduct “in relation to the ability of the party in question to conduct the business of being a realtor and serve the interests of consumers,” as required by the Divisional Court in Nagy v. Registrar, Real Estate Business Brokers Act, 2012 ONSC 325, at para. 59.
Adequacy of reasons
- I am not satisfied that the Adjudicator’s reasons were inadequate. Although the Adjudicator is not required to expressly refer to every piece of evidence considered, the Adjudicator referred extensively to the Appellant’s own evidence in addition to testimony from Ms. Volpe of RECO, from the Appellant’s employer B.V. and from the report by Dr. H.M., an expert in clinical and forensic psychology. The Adjudicator conducted a thorough review of the available evidence and explained how that evidence supported its conclusion that the ground for refusal in s. 10(1)(a)(ii) was met.
Credibility assessment
- The Appellant submits that the Adjudicator disregarded all the evidence of B.V. and provided no indication of why it should not be relied upon. Contrary to that submission, the Adjudicator did not disregard all the evidence of B.V., but rather limited its weight. The Adjudicator explained that this was because of his romantic relationship with the Appellant, which made it hard to see his evidence as objective. That assessment was entirely within the Adjudicator’s discretion, as the Adjudicator was best placed to assess B.V.’s credibility, having been present for his testimony. The Adjudicator did not err in fact or law by not giving full weight to the evidence of B.V.
Effect of passage of time
- The Appellant submits that the Adjudicator erred by stating that the Appellant’s application was premature, as there is no prescribed time frame in the Act. I am not satisfied that the Adjudicator made a significant error of fact or law in this regard. The Adjudicator’s reasons do not purport to state that there is a prescribed period of time following a criminal conviction before which an application for registration may be made under the Act. Rather, the Adjudicator indicated that, especially because the Appellant was still under sentence of the Court, “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.” The Adjudicator did not make an error of fact or law by taking this consideration into account.
Conditions as an alternative to refusal
- The Appellant submits that the Adjudicator failed to consider the non-exhaustive list of factors an adjudicator should consider in determining whether an individual case is appropriate for conditions as an alternative to refusal, as set out in the Tribunal’s previously decided case of Tulloch v. Registrar, Real Estate and Business Brokers Act, 2002, [2009] O.L.A.T.D. No. 329 (QL):
Seriousness of the crime
A clear demonstration of repentance and remorse and an acceptance of responsibility for the impugned behaviour
The span of time during which the criminal activity was undertaken
The Appellant’s record since the crime in question
The Appellant must have learned from its mistakes.
- The Tulloch case is not binding on the Tribunal, and a failure to refer expressly to the factors set out in that case is not an error of law. In any event, the Adjudicator did in fact refer to each of those factors throughout its analysis of whether the ground in s. 10(1)(a)(ii) was met. The Adjudicator was not required to consider each factor a second time in deciding whether conditions would be an appropriate alternative to refusal.
ORDER
- For these reasons, upon consideration of the submissions of the Appellant and the Respondent, I dismiss the Appellant’s request for reconsideration.
Date of Issue: March 6, 2017
Linda P. Lamoureux, Executive Chair