Licence Appeal Tribunal
Safety, Licensing Appeals and Standards Tribunals Ontario
Tribunal d’appel en matière de permis
Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario
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
Between:
Akbar Zarehhossainabadi, Kingsway Real Estate Inc. and Rouhollah Houshmand
Appellants
and
Registrar, Real Estate and Business Brokers Act, 2002
Respondent
ORDER ON MOTION
Adjudicator: Avril A. Farlam, Vice-Chair
Appearances:
For the Appellants Akbar Zarehhossainabadi and Kingsway Real Estate Inc.: Eugene J. Bhattacharya, Counsel
For the Appellant Rouhollah Houshmand: Parisa Houshmand Sarvestani, Paralegal
For the Respondent: Jonathan Miller, Counsel Robert Maxwell, Counsel
Heard in Toronto: July 19, 2018
A. Overview
1Under the Real Estate and Business Brokers Act, 2002, S.O. 2002, c. 30, Sch. C (“Act”) the Registrar (“respondent”) issued a Notice of Proposal to Revoke Registration dated September 15, 2015 (“NOP”) to revoke the registrations of the appellants under the Act on the basis of various grounds including that past conduct affords reasonable grounds for the belief that they will not carry on business in accordance with the law and with integrity and honesty. Specifically, the respondent alleges the appellants committed large scale theft by removing valuable chattels from 1387 Pineway Court, Oakville, Ontario (“the real estate”), a property listed for sale by the appellant Akbar Zarehhossainabadi (“Zarehhossainabadi”) through the appellant Kingsway Real Estate Inc. (“Kingsway”), and caused damage to the real estate during the removal. In the NOP the respondent relies on Madam Justice Donohue’s Judgments in the Ontario Superior Court, dated July 3, 2015 and August 14, 2015. The judgments resulted from a six day trial with 14 witnesses, including the appellants Mr. Zarehhossainabadi and Rouhollah Houshmand (“Houshmand”). The respondent now relies on the Amended Amended NOP, which is substantially the same as the original NOP.
2Mr. Zarehhossainabadi, Kingsway and Mr. Houshmand appealed the NOP. With respect to the theft allegation, in their Notices of Appeal they all deny theft, say the NOP should be held in abeyance pending the outcome of the court appeal of the judgments and dispute all findings in the judgments. Mr. Houshmand also states in his Notice of Appeal that he had no status to defend the allegations because he was not a party to the litigation before Justice Donohue which resulted in the judgments.
3Mr. Zarehhossainabadi and Kingsway brought a motion before me for an Order that the judgments and the appellate decision of the Divisional Court of the Ontario Superior Court of Justice dated October 20, 2017 (collectively the “judgments”) and the transcripts of evidence from those proceedings (“transcripts”) not be admissible in this appeal.
B. PRELIMINARY ISSUE:
4Mr. Houshmand did not bring a motion but agreed with the submissions of counsel for Mr. Zarehhossainabadi and Kingsway. At the hearing of the motion Mr. Houshmand’s legal representative made the additional submission that Mr. Houshmand did not have the opportunity to cross-examine or defend himself in the civil litigation before Justice Donohue because he was not a party and should not be bound by the findings made against him in the judgments. Respondent’s counsel at the hearing conceded that the findings in the judgments do not apply to Mr. Houshmand and agreed to an order to this effect. Therefore on consent of the respondent there will be an order that the findings in the judgments against Mr. Houshmand are not binding on him in this appeal.
C. ISSUES TO BE DECIDED
5The issues to be decided are as follows:
a. Should the judgments be ordered inadmissible in this appeal?
b. Should the transcripts be ordered inadmissible in this appeal?
D. CONCLUSION:
6I order on consent of the respondent that the findings in the judgments do not apply to Mr. Houshmand and are not binding on him in this appeal.
7With respect to the issues to be decided, the answer to both issues is no. The balance of the appellants’ motion, specifically the request for an Order that the judgments and the transcripts be ordered inadmissible in the appellants’ appeal hearing before the Tribunal is dismissed.
E. LAW AND ANALYSIS:
a. Should the judgments be ordered inadmissible in this appeal?
8I decline to exclude the judgments as evidence at the hearing as requested by all appellants.
9All appellants submit that the judgments should be ordered inadmissible in this appeal and rely on the principle of res judicata, specifically issue estoppel, the rule against collateral attack and the doctrine of abuse of process. They also rely on the cases of Kamali-Mafroujaki v. Ontario Registrar of Motor Vehicle Dealers, [2015] O.J. 3215 (Div. Crt), Toronto (City) v. C.U.P.E. Local 79, 2003 S.C.C. 63 and Racco v. The Registrar, Real Estate and Business Broker Act, 7612 REBBA, which are not helpful on this motion as these cases involved a prior criminal conviction decided on a standard of reasonable doubt and not prior civil judgments decided on balance of probabilities. The appellants further rely on Service Employees International Union, Local 333 v. Nipawin District Staff Nurses Association 1973 CanLII 191 (SCC), [1975] 1 S.C.R. 382 in which the court reviewed a Saskatchewan tribunal’s interpretation of Saskatchewan labour relations legislation and is so factually different than this motion that it is not helpful. The appellants rely on Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, 2001 S.C.C. 44 (“Danyluk”) in which the court found that a decision of a non-legally trained employment standards officer did not, under the issue estoppel doctrine, preclude consideration by the court of a claim. Binnie J. stated in paragraph one: “A judicial doctrine developed to serve the ends of justice should not be applied mechanically to work an injustice.” The appellants also submit that because they are of the view that the judgments contained errors of law that are “unreasonable and incorrect” and the entire trial was a “…denial of natural justice or due process…” it would be an error of law for the Tribunal to consider the judgments and rely on them.
10Respondent submits that the judgments (and transcripts) are not only admissible in the appeal hearing but the appellants are barred from relitigating the findings from the civil trial pursuant to the abuse of process doctrine which is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. The respondent relies on cases which involve criminal convictions and are not helpful on this motion because of the standard of proof in criminal cases. The respondent also relies on 9965 v. Registrar, Real Estate and Business Brokers Act 2002, 9965 REBBA, May 27, 2016 and Carriere v. Motor Vehicle Accident Claims Fund, [1999] O.F.S.C.I.D. No. 66. In 9965 the Tribunal granted an Order admitting two arbitration awards as evidence pursuant to the principle of abuse of process. Although this case is not binding on me, I note that it is factually dissimilar in that the appellant had agreed to submit to arbitration and not to appeal the results.
11To quote Binnie, J. in Danyluk “A judicial doctrine developed to serve the ends of justice should not be applied mechanically to work an injustice.” This invites a case-specific analysis. This case is unique to its facts in that the respondent based its NOP at least in part on the judgments and the appellants based their appeals at least in part on the judgments and the fact that they appealed to the Divisional Court. In their Notices of Appeal, all the appellants say the appeal should be held in abeyance pending the outcome of the court proceedings. This was done. There was no evidence or submission before me that a leave to appeal to the Supreme Court of Canada had been instituted. Therefore, now that the appeal has been dismissed by the Divisional Court, the judgments are final and any argument that the judgments are unreasonable and incorrect or that the trial was a denial of natural justice or due process cannot succeed. The time to raise these issues was in the appeal process. The appellants must accept the judgments as final.
12The real question before me, as set out in the motion of Mr. Zarehhossainabadi and Kingsway is whether I should order in advance of the hearing of the appeal that the civil judgments and transcripts be inadmissible at the hearing. The judgments are relevant to the appeals. The appellants have cited them in their Notices of Appeal and the respondent has cited them as part of the grounds in the NOP. Now that the outcome of the appeal is known, the appellants cannot say the judgments are not relevant or are prejudicial because of the outcome of the appeal. The fact that the judgments come from a civil litigation proceeding may be significant in terms of weight. After the hearing the Tribunal will be required as Corbett, J. in Kamali-Mafroujaki v. Ontario Registrar of Motor Vehicle Dealers said to “…make its own assessment of the Appellant’s integrity based on the evidence before the Tribunal.” What weight is to be given to the judgments will have to be determined by the Tribunal following the hearing of the appeal.
b. Should the transcripts be ordered inadmissible in this appeal?
13Mr. Houshmand’s legal representative submits that admission of the transcripts is not fair to her client because he was not a party to the litigation. The respondent submits this is not a juristic reason to exclude his transcript and I agree. The fact that he was not a party to the civil litigation does not diminish his obligation to make truthful statements under oath when testifying as a witness in that litigation.
14The appellants submit s. 15.1 of Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (“SPPA”) bars admission of the transcripts absent appellants’ consent (which is not given). Respondent says s. 15.1 (1) is a permissive provision not a legislative bar and also relies on Carriere v. Motor Vehicle Accident Claims Fund, [1999] O.F.S.C.I.D. No. 66 in which s. 15 of the SPPA is discussed. I accept the respondent’s submission that on a plain reading of the statute, s. 15.1 (1) is permissive and not prohibitive because it says that the tribunal “may” treat previously admitted evidence “…if the parties to the proceeding consent.” Further, s. 15(1) of the SPPA provides that the Tribunal may admit as evidence at a hearing any document or other thing relevant to the subject matter of the proceeding.
15The transcripts are relevant to the appeal because they are prior sworn statements of the appellants Mr. Zarehhossainabadi and Mr. Houshmand on the issue of removal of the chattels from the real estate. What weight is to be given to these prior sworn statements will have to be determined by the Tribunal following the hearing of the appeal.
ORDER:
i. I order on consent of the respondent that the findings in the judgments do not apply to Mr. Houshmand and are not binding on him in this appeal;
ii. The balance of the appellants’ motion, specifically the request for an Order that the Superior Court of Ontario judgments of Justice Donohue dated July 3, 2015 and August 14, 2015, the appellate decision of the Divisional Court of the Ontario Superior Court of Justice dated October 20, 2017 and the transcripts of evidence from these proceedings be ordered inadmissible in the appellants’ appeal hearing before the Tribunal is dismissed.
Avril A. Farlam, Vice-Chair
Released: September 5, 2018