Tribunal File Number: 12022 REBBA

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

Between: Omid Rezaee Appellant

and

Registrar, Real Estate and Business Brokers Act, 2002

Respondent

DECISION AND ORDER

Adjudicator: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: Nicole A. Koteff, Counsel

For the Respondent: Ian Daley, Counsel

Heard in Toronto: November 6, 2019

REASONS FOR DECISION AND ORDER:

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 Refuse Registration dated March 29, 2019 (“NOP”) to refuse Omid Rezaee’s registration as a salesperson on the basis that his past conduct affords reasonable grounds for the belief that he will not carry on business in accordance with the law and with integrity and honesty. Specifically, the respondent alleges that Mr. Rezaee failed to disclose prior criminal convictions in Manitoba and when asked for an explanation of his conviction for mischief under $5,000.00, he explained it was related to a workplace incident and did not disclose he was incarcerated at the time of conviction. The transcript relating to the mischief conviction revealed an additional conviction for possession for the purpose of trafficking in cocaine in April 2015. Mr. Rezaee appealed to this Tribunal.

B. ISSUES TO BE DECIDED:

2The issues to be decided are:

a. Whether the appellant’s registration should be refused because his past conduct affords reasonable grounds for the belief that he will not carry on business in accordance with the law and with integrity and honesty under s. 10(1)(a)(ii) of the Act.

b. If so, is refusal to register Mr. Rezaee as a real estate salesperson appropriate?

C: CONCLUSION:

3The respondent has established that Mr. Rezaee’s past conduct affords reasonable grounds for the belief that he will not carry on business in accordance with the law and with integrity and honesty under s. 10(1)(a)(ii) of the Act.

4I order the Registrar to carry out the NOP.

D. LAW:

5Section 4 of the Act prohibits unregistered persons from trading in real estate.

6Section 10(1)(a) of the Act provides that 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…

(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 the law and with integrity and honesty.

7Section 10(1) of the Act means that if an applicant meets the requirements, the applicant is entitled to registration. The Registrar bears the burden of proof that the applicant does not meet the requirements of s. 10(1)(a)(ii).

8Under s. 14 of the Act, following a hearing, the Tribunal 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.

E: EVIDENCE AND ANALYSIS:

a. Should Mr. Rezaee’s registration be refused because his past conduct affords reasonable grounds for the belief that he will not carry on business in accordance with the law and with integrity and honesty under s. 10(1)(a)(ii) of the Act?

Mr. Rezaee’s application for registration

9Angela Volpe, manager of registration, testified that the Act is to be administered in the public interest because it is consumer protection legislation for the trading of real estate in Ontario.

10Ms. Volpe testified that Mr. Rezaee submitted an application for registration as a real estate salesperson on April 3, 2018. On the application, he answered yes to the question “…have you been…convicted of an offence under any law?” and provided a York Regional Police criminal record check dated March 28, 2018 which showed a single criminal conviction for mischief under $5,000.00 with a disposition of 60 days of incarceration and a $102.00 surcharge. Mr. Rezaee also provided a letter dated March 29, 2018 in which he stated that the conviction resulted from “…an accident during a workplace incident, where I was intending to fix a mechanical pipe, however it caused a malfunction and therefore I was charged. I have never had any issues beforehand or after…Attached to the criminal check is the official conviction page.”

Respondent learns of Mr. O. Rezaee’s additional conviction and false and misleading statement

11The respondent’s standard practice is to ask the applicant for the court transcripts regarding the conviction and this request was made to Mr. Rezaee. When Mr. Rezaee sent in the court transcripts, two additional convictions in Manitoba were discovered - one conviction for possession for the purpose of trafficking in cocaine on April 16, 2015 and another for possession of marijuana. Neither of these convictions had been disclosed by Mr. Rezaee on his application. The transcripts also showed that the mischief conviction was not a “…workplace incident, where I was intending to fix a mechanical pipe…” as Mr. Rezaee wrote but was for breaking the head off a sprinkler system in his prison cell while he was incarcerated for the cocaine trafficking conviction.

12Although he answered “yes” to the question on the application about having a criminal conviction, he did not disclose all criminal convictions as required under the Act and gave false and misleading information about the mischief conviction that he did disclose. As a result, the respondent had concerns about Mr. Rezaee’s ability to carry on business in accordance with law and with integrity and honesty as required by the Act. Real estate agents deal with members of the public including purchases of real estate which can be the largest financial transaction most people do in life.

Mr. Rezaee’s explanation

13At the hearing Mr. Rezaee admitted that he has the following criminal convictions from Manitoba:

a. April 16, 2015 - Possession of a scheduled substance (marijuana). Sentenced to $30.00

b. April 16, 2015 - Possession of a scheduled substance for the purpose of trafficking (cocaine). Sentenced to 22 months, 25 days and mandatory weapons prohibition

c. May 26, 2016 - Mischief under $5,000.00. Sentenced to 60 days (consecutive to the term presently being served) and $102.00 fine.

14After his release, Mr. Rezaee moved his family to Ontario. He has advanced in his work and is currently dealing with customer complaints at the dealership. Mr. Rezaee admitted in his testimony that he knew the police criminal records check he submitted with his application did not include all his convictions, but he thought the other convictions had gone away or been pardoned. He also admitted that breaking the sprinkler in his jail cell was not an “…accident during a workplace incident” and he was not “…..intending to fix a mechanical pipe…” as he wrote in his letter to the respondent. With respect to his statement in the letter that “…I have never had any issues beforehand or after…”, in cross examination Mr. Rezaee testified that he was not trying to mislead the respondent – what he meant was that he never had a mischief charge before.

15Mr. Rezaee testified that he has beaten his addiction to drugs, no longer uses or traffics in drugs, has had no other convictions since his release from incarceration, is successfully employed in an unlicensed position at a motor vehicle dealership where he is well liked and has satisfactory dealings with the public in his employment. He testified that he moved his family to Ontario to make a fresh start and should be given a chance to improve his circumstances by becoming a real estate salesperson. He stated that he has changed because of his incarceration and learned from it. He has earned his high school diploma, supported his wife and family and his wife has stood by him.

Others vouching for Mr. Rezaee

16Shahbaig Seerat, a security supervisor for Manitoba Liquor and Lottery, testified by telephone that he and Mr. Rezaee have been close friends since 2002 when they were in high school together. He said that Mr. Rezaee is honest, loyal, hardworking, has integrity and is dependable and that the convictions and his explanation of the mischief conviction were out of character and will not affect him working in real estate.

17Miguel Fernandez, Mr. Rezaee’s potential real estate broker, testified that he would hire Mr. Rezaee as a salesperson if registered and would supervise and train him and ensure compliance with any conditions the Tribunal might impose on Mr. Rezaee’s real estate licence. Mr. Fernandez is a member of the respondent’s disciplinary committee and deals with alleged unethical behaviour of members. Mr. Fernandez said not disclosing a criminal conviction and giving a false explanation to the respondent would not be permitted in his brokerage and he would not permit Mr. Rezaee to do this. He said he would be prepared to supervise Mr. Rezaee for up to two years and this is what he typically does anyway with new agents for about a year. He went on to say that he would go to every client meeting and would get one-half of the commission so he would have an incentive to do this. Also, he would not allow Mr. Rezaee to sign documents or meet with clients alone.

18Mr. Fernandez testified in cross-examination that lying to the respondent is concerning but lying does not always demonstrate dishonesty. It depends what the lie is about and the reason for the lie. He agreed that misleading and attempting to conceal information from the respondent demonstrates dishonesty. Mr. Fernandez said he thinks Mr. Rezaee made a mistake on his application and he should be registered. Otherwise, he would have to take the courses all over again and pay for them again. Mr. Fernandez also said he would consider hiring Mr. Rezaee in two years if he applies again and is registered.

19Mr. Rezaee submitted letters from seven people who know him, including co-workers who expressed the view that Mr. Rezaee is trustworthy, honest, responsible and generally of good character.

Submissions of counsel

20Appellant’s counsel submits that the respondent has not proven it’s case, there is no nexus between Mr. Rezaee’s honesty on the application form and how honest he may be in real estate and this Tribunal has consistently held that a criminal conviction is not enough to refuse registration. Appellant’s counsel also submits that I should follow the Tribunal’s previous decisions in Akbar Zarehhossainabadi, et al. v. Registrar, Real Estate and Business Brokers Act, 2002, 2019 ONLAT REBBA 9820; Mohammad Sabour Popalzai v. Registrar, Real Estate and Business Brokers Act, 2002, 2019 ONLAT REBBA 11603; Andrew Nagy v. Registrar, Real Estate and Business Brokers Act, 2002, 2009, ONLAT REBBA.

21These cases are not helpful or binding on me. The Akbar and Nagy case are factually different as they involve proposed revocation of licences under the Act. The Mohammad case is factually different in that appellant provided a criminal record check as part of the application process and did not dispute the convictions that he had. Here the past conduct at issue is that Mr. Rezaee did not disclose all convictions and wrote a false letter to explain the conviction he did disclose to the respondent. I do accept the general proposition of law from the Mohammad case that the Tribunal must consider the whole of the appellant’s conduct, including the conduct since the past conduct and I have done so.

22Appellant’s counsel also provided 15 pages printed from the respondent’s website, submitted as case law and not as evidence, in support of the submission that if lying on an application is not serious enough to take away a licence, it is not serious enough to deny registration. These printouts are not helpful to the issue I have to decide because they all involve prosecutions of salespersons already registered under the Act.

23The respondent submits that Mr. Rezaee’s past conduct affords reasonable grounds for the belief that he will not carry on business in accordance with the law and with integrity and honesty.

Conclusion

24I find that Mr. Rezaee’s past conduct does afford reasonable grounds for the belief that he will not carry on business in accordance with the law and with integrity and honesty and that the respondent has met the burden of proof under s. 10(1)(a)(ii) of the Act. I have considered the whole of Mr. Rezaee’s conduct in finding that the respondent has proven its case including Mr. Rezaee’s explanation as to why he did not disclose all his convictions and why he wrote the false explanation of the mischief conviction.

25The testimony of Mr. Fernandez, Mr. Seerat and the seven letters from individuals who know Mr. Rezaee were largely not relevant to the issue I have to decide. The authors of the seven letters did not testify at the hearing and I have given them little weight. More importantly, while the dealings of these seven individuals, Mr. Seerat and Mr. Fernandez with Mr. Rezaee may have caused them to conclude that Mr. Rezaee is honest and has integrity, the issue is here is whether Mr. Rezaee’s past conduct affords reasonable grounds for belief that he will not carry on business under the Act in accordance with the law and with integrity and honesty. His conduct toward the respondent, the regulator under the Act, is the most relevant indicator of how he is likely to carry on under the Act in the future.

26None of these individuals except Mr. Fernandez is in the real estate business. Mr. Fernandez said he thought Mr. Rezaee had been dishonest with the respondent but was willing to characterize this as a mistake and to employ him anyway and to supervise him in accordance with any conditions attached to his registration for a period of some two years. Mr. Fernandez candidly admitted that his motivation for doing so was financial, a split of commissions. The fact that Mr. Fernandez is willing to employ a real estate salesperson that he says has acted dishonestly toward the respondent is not determinative of whether Mr. Rezaee has met the test in s. 10(1)(a)(ii) of the Act.

27I do not find Mr. Rezaee’s testimony that he thought the other convictions were not recorded in the police check because they had gone away or been pardoned to be credible. He gave no detail as to why he would think he had been pardoned. He had been sentenced to two years incarceration in Manitoba and was still incarcerated in 2016 – less than two years before completing his application under the Act. Whatever the results of the police check, Mr. Rezaee was still obliged to disclose the convictions given that the question on the application was whether he was “ever” convicted of an offence under any law.

28Although Mr. Rezaee testified that he no longer uses or traffics in drugs, has had no other convictions since his release from incarceration, is successfully employed in a motor vehicle dealership where he is well liked and has satisfactory dealings with the public, this is not enough to overcome his lack of honesty and integrity as demonstrated by his dealings with the respondent under the Act. That Mr. Rezaee did not voluntarily disclose all his convictions in his application under the Act as required is concerning. However, even more concerning is that he gave the respondent a letter which offered an explanation for the mischief conviction that was patently false and designed to mislead the respondent. Breaking the sprinkler in his jail cell was not, as he admitted at the hearing, an “…accident during a workplace incident” and he was not “…..intending to fix a mechanical pipe…” as he wrote in his letter to the respondent.

29With respect to his statement in the letter that “…I have never had any issues beforehand or after…”, in cross examination Mr. Rezaee testified that he was not trying to mislead the respondent – what he meant was that he never had a mischief charge before. This statement is not credible. It took time, effort and thought for Mr. Rezaee to create this explanation, craft the letter, put it on letterhead from a real estate brokerage, sign it and give it to the respondent. The only purpose of the letter was to give a false explanation to the respondent for his own personal benefit and constitutes a bold-faced attempt to mislead the respondent. The failure to disclose in the letter that he broke the sprinkler while incarcerated is an attempt to mislead by omission. He attempted to justify his letter by saying that English was his third language after Hindi and Farsi and he was embarrassed because other inmates had made him break the sprinkler through threats of sexual and other violence and he did not want to talk about this. This is insufficient to justify the false explanation.

30Mr. Rezaee’s testimony that he had trouble with English is not credible. Mr. Rezaee testified at the hearing without requesting an interpreter, without demonstrating any difficulties with English or expressing any difficulties with English apart from this statement.

31Even if Mr. Rezaee broke the sprinkler under threat from other inmates, the threat no longer existed when he wrote to the respondent in March 2018 and it was his own choice to give a false explanation. Mr. Rezaee put his own feelings ahead of his duty of disclosure to the respondent and his duty to act in accordance with the law and with integrity and honesty. Mr. Rezaee’s past conduct has demonstrated that there are reasonable grounds to believe that he will not carry on business in accordance with the law and with integrity and honesty under s. 10(1)(a)(ii) of the Act. I find that failing to disclose all his criminal convictions as required and putting together a false and misleading explanation of the mischief conviction is proof that he will, more likely than not, not carry on business in accordance with the law and with integrity and honesty as required by the Act.

32One of the purposes of the Act is protection and safety of the public. A real estate salesperson meets with clients and others in their homes and often outside of standard business hours, and is in a position of trust. Members of the public must be able to have trust and confidence in their real estate salesperson. I find that the respondent has proved on a balance of probabilities that the appellant’s conduct affords reasonable grounds for the belief that he will not carry on business in accordance with the law and with integrity and honesty.

b. Is refusal to register Mr. Rezaee as a real estate salesperson appropriate?

33There can be cases when the imposition of conditions can adequately protect the public interest even if the respondent has proven a ground of refusal. In this particular case however, I find that registration with conditions is not an appropriate alternative to refusal of registration because the appellant’s non-disclosure of a criminal conviction and putting forward a false explanation of the mischief conviction are acts of dishonesty and lack of integrity with the probability that he may act dishonestly and with a lack of integrity in the future as a real estate salesperson.

34Appellant’s counsel submitted that the appellant should be registered with the following conditions attached to the licence, or any other conditions I might find to be appropriate:

a. Any time the appellant has to submit something to the respondent, it be approved by the appellant’s potential future broker Mr. Fernandez first;

b. No documents relating to a trade in real estate may be submitted to the brokerage by the appellant without Mr. Fernandez reviewing and signing them;

c. That for the first two years of registration, the appellant not be permitted to meet with any client except in the presence of Mr. Fernandez.

35Respondent’s counsel submitted that there are no conditions, including the ones proposed by appellant’s counsel, appropriate to this situation. Honesty either exists or it is lacking.

36Nothing in the evidence led me to believe that the conditions proposed by appellant’s counsel or any conditions would be appropriate or effective because the impediment to registration is the appellant’s lack of honesty and integrity as demonstrated by his dealings with the respondent in his 2018 application for registration.

ORDER:

For the reasons set out above I order the respondent to carry out the NOP.