Appeal from a Notice of Proposal by the Registrar, Real Estate and Business Brokers Act, 2002, S.O. 2002, c. 30, Sched. C to Refuse Registration
Between:
Kuldip Singh Brar
Appellant
and
Registrar, Real Estate and Business Brokers Act, 2002
Respondent
DECISION
ADJUDICATOR: D. Gregory Flude, Vice-Chair
APPEARANCES:
For the Appellant: Kuldip Singh Brar, Appellant Varun Mehta, Counsel
For the Respondent: Shaun Chu-A-King, Counsel
Heard in Toronto: November 19 & 20, 2018
OVERVIEW
1On September 29, 2017, the appellant, Kuldip Singh Brar, applied for registration as a real estate salesperson under the Real Estate and Business Brokers Act, 2002, S.O. 2002, c. 30, Sched. C (the “Act”). In his application he disclosed that he had been convicted of sexual assault following a guilty plea in September 2006 arising out of an incident in August 2005. He was asked to provide the Registrar with further information including an explanation of the circumstances leading to his conviction and a copy of the transcript of the reasons for sentencing.
2The explanation the appellant provided is completely at odds with the facts he acknowledged when he pleaded guilty and was sentenced. The explanation is exculpatory and paints the appellant as a victim of an unscrupulous complainant. After reviewing the file, the Registrar concluded that the appellant had made a false statement in his application. He also concluded that the totality of the appellant’s past behaviour provides reasonable grounds for belief that he will not carry on business in accordance with law and with integrity and honesty. He refused to register the appellant under the Act. The appellant appeals the decision to this tribunal.
ISSUES
3The issues in dispute in this hearing are:
a. Is the appellant disentitled to registration as a real estate sales person because:
i. his past conduct affords reasonable grounds for belief that he will not carry on business in accordance with law and with integrity and honesty, or
ii. the applicant has made a false statement or provided a false statement in his application for registration?
RESULT
4There is no doubt that the appellant made a false statement to the Registrar. The version of events set out in the explanation cannot be reconciled with facts as admitted when he pled guilty to the charge of sexual assault. In his testimony, after giving a number of descriptions of the events on that August night in 2005, he acknowledged categorically that the description of events set out in the transcript of his sentencing hearing are the truth. It flows inexorably from that admission that the explanation provided to the Registrar is not true. Hence, the appellant has made a false statement in his application for registration.
5I also find that there are reasonable grounds for belief that the appellant will not carry on business in accordance with law and with integrity and honesty. The appellant has relied on an exculpatory version of events since 2013 when seeking employment as a registered mortgage broker. In fact, in his application as a mortgage broker, he characterizes his offence as assault, not sexual assault. I find this ongoing behaviour of characterizing himself as the victim calls into question the appellant’s integrity and honesty.
6The Registrar submits that a December 20, 2017 email the appellant sent to his office, the Real Estate Council of Ontario (“RECO”), was threatening and unprofessional and, in itself, provides grounds for belief the appellant will not carry on business appropriately. I do not share that Registrar’s view that the email is threatening in any manner. Overall, I consider the email to be convivial. I have not included a consideration of the email in my determination that there are reasonable grounds for belief the appellant will not carry on business in accordance with law and with integrity and honesty.
THE GUILTY PLEA AND THE EXPLANATIONS
7This matter revolves around the appellant’s various explanations of the circumstances surrounding his conviction. While the source of the facts admitted by the appellant are set out in the court transcript of his sentencing hearing, they have been summarized by the Registrar in the Notice of Proposal. That summary was edited at the hearing and the edited version was admitted by the appellant. Nonetheless, the transcript remains the authoritative source.
8In August 2005, the appellant was working part time as a taxi driver. He was dispatched to pick up a passenger in the early morning hours and drive her home from a friend’s place where she had planned to stay the night but had become homesick. On sentencing, the appellant admitted:
i. The victim was 15 years old;
ii. The victim's mother directed that she take a cab home and the mother would pay the cab fare when she arrived home;
iii. He picked up the victim in his taxi cab and en route to the victim's residence, he asked her a number of personal questions about her boyfriend;
iv. He stopped his taxi cab approximately seven houses away from the victim's residence (and the stop that the victim had requested);
v. After stopping approximately seven houses away from the victim's residence, he pulled down the victim's shirt, kissed her chest and her left breast;
vi. The victim asked him what he was doing and told him that she was only 15, but he pulled the victim over, began kissing her face, the left side of her face, and attempted to kiss her on her mouth;
vii. The victim punched the appellant, and was able to escape from the vehicle; and
viii. The victim sustained injuries which consisted of red marks to her arm, shoulder and back area.
9The facts admitted in court, then, show the appellant as the aggressor forcing himself on a vulnerable minor entrusted to his care for safe passage home in his cab. The explanation provided to the Registrar reverses the roles and casts the appellant as the victim:
About 11-12 years ago(2005-2006) I was driving a cab part time and one night I picked up a drunk lady, who didn't have money to pay cab fare upon arriving at the destination, when I asked to pay the fare then she bullied, argued, become raciest [sic] and thought I'm Pakistani guy. I left and didn't want to waste time due to busy work after 10-15 days I got call from police and I went to the police station and officer said they have laid charge because she reported that I touched her, but when I told the whole story officer bailed me out on his behalf with promise to appear in court at given date and so I did. Unfortunately in those days I was new to the country, wasn't aware of the law and felt trapped, also the big thing I didn't have enough money to pay the lawyers fee in thousands as everyone was asking $15- 20k+ and I had factory job, didn't want to lose, no time to go to the court again and again as I had big burden on my shoulders that time I was father of two, owned house, had to pay off mortgage and had to bring food on the table for my family so in all those circumstances I couldn't fight the case against me and finally decided to get out of it pleaded guilty and got convicted.
10The exculpatory explanation has undergone an evolution over the years. When applying for work as a mortgage broker in 2013 and registration with the Canadian Association of Accredited Mortgage Professionals (CAAMP), the appellant replied to a request for information about his convictions as follows:
I was part time cab driver back in days (2005) and picked up a girl at [sic] she was drunk also didn’t have money to pay taxi fare when she told me I locked my cab and said I’ll call police then she said let me go and I can ask my mom to pay then I agree and she went away and never came back. 10-15 days later police call me and told me about Assault charge against me.
11In his application to the Financial Services Commission of Ontario, also in 2013, the appellant stated that he had been convicted of assault in 2006, not sexual assault, and Pardons Canada was helping get a pardon for this crime.
12By 2015 the appellant had introduced the racism dimension into the explanation. In response to a request from CAAMP for further information about his conviction he replied:
About 10 yrs ago I was working as a cab driver a racist lady, who didn’t have money to pay cab fare bullied, argued with me upon destination when she was asked to pay cab fare and finally she made a story of assaulting her and reported to the police against me.
13A central theme in all of the explanations is that the appellant could not afford a lawyer. The appellant was, in fact, represented by a lawyer at his sentencing hearing. The matter was pre-tried by the trial judge, with the consent of the parties, and the judge notes that the crown and defence agree that the version of the facts the appellant admitted are the facts that would likely have been established at trial.
14Neither CAAMP nor FSCO asked for a copy of the sentencing transcript so the only version of events they had was the appellant’s. He did provide his police criminal record report indicating the conviction was for sexual assault. He was registered as a mortgage broker and has been employed in that field for five years without incident.
15In his evidence, the appellant told a number of versions of the events. The starting point was that he could not afford a lawyer, was new to the country and unaware of the impact of a guilty plea. He denied touching the victim and characterized himself as the victim. Finally, in re-direct examination by his own counsel he conceded the truth of the facts admitted in the court proceeding.
APPLICATION OF LAW TO THE FACTS
16Section 10 of the Act applies to registration. It states that qualified applicants are entitled to registration unless they fall into one of the exclusionary categories. The presumptive entitlement to registration places the onus squarely on the Registrar to prove that at least one of the exclusions applies. The Registrar submits that two of the exclusions apply: s. 10(1)(a)(ii) addressing the past conduct of the appellant and s. 10(1)(a)(iii) addressing the making of a false statement. I am of the view that the appellant falls within each of these exclusions.
17Starting with the second exclusion first, the false statement exclusion, the test to be applied is set out in the decision of the Ontario Divisional Court in Ontario (Registrar, Motor Vehicle Dealers Act, 2002) v. Vernon [2016] O.J. No. 207 (“Vernon”). The facts in Vernon are not dissimilar to the facts this case. Mr. Vernon pleaded guilty to a charge of arson in the United States. When asked for an explanation of the circumstances of his conviction, despite acknowledging his guilty plea to the charge, Mr. Vernon gave an exculpatory statement. The tribunal below held that Mr. Vernon had simply tried to minimize his behaviour and had not deliberately attempted to mislead the Registrar. The court held that this was the incorrect test. At paragraph 11 the court set out the test to be applied:
In my view, the Tribunal erred in law in focusing on whether the respondent deliberately attempted to mislead the Registrar with respect to his conviction. As described above, the respondent made false statements with respect to the facts underlying the conviction. The issue for the Tribunal was whether the respondent knew the statements were false.
18In cross-examination, the appellant confirmed that the criminal process was a notable experience for him and he remember the details of the sentencing hearing and the admissions he made during that sentencing hearing. It follows that, when he gave the Registrar the explanation, he had a clear recollection of the facts he had admitted as true in 2006. He was aware that the explanation was false. Applying the Vernon test, he falls within the false statement exclusion set out in s. 10(1)(a)(iii) of the Act.
19The Registrar also relies on s. 10(1)(a)(ii) of the Act. He takes the position that there are reasonable grounds for belief that the appellant will not carry on business in accordance with law and with integrity and honesty. For the reasons set out below, I find that there are such reasonable grounds.
20The appellant gave false the explanations CAAMP and FSCO in support of his application as a mortgage broker. His answers in cross-examination establish that he was aware that the explanations were false. The appellant gained an advantage from these false statement in that he was registered as a mortgage broker and enrolled as a member of CAAMP. He knowingly gave a false version of events in a regulated industry and this calls into question his integrity and honesty in the conduct of his business.
21The appellant argues, and I accept, that in considering past conduct, I should consider the whole of his past conduct, good and bad. In Registrar, Alcohol and Gaming Commission of Ontario, v. 751809 Ontario Inc. operating as Famous Flesh Gordon’s, 2013 ONCA 157 (“Famous Flesh Gordon’s”), the head of the local Hell’s Angels motor cycle gang was the sole shareholder of a corporation licensed to sell liquor on a licensed premises. The Registrar of Alcohol and Gaming moved to revoke the licence on the basis that the Hell’s Angels was a criminal organization run for the benefit of its members. The appellant argued that, in seven years of operation, it had never had an incident in the bar nor did its shareholder have a criminal record of any sort.
22At first instance, and again in the Divisional Court, the focus was on the lack of incident in running the licensed premises. The Court of Appeal ruled that this focus was too narrow and the legislation contemplated a wider enquiry. Goudge J.A. stated at paragraph [29]: “The Registrar is entitled to rely on any past or present conduct, whether in the operating of the licensed premises or not.”
23On the current facts, the appellant asks that I take into account the fact that he has had no further involvement with the criminal justice system since his conviction. He completed all of his sentencing requirements without incident. He was employed by a number of companies ranging from factory work to truck driving and has had no disciplinary record. He has also worked for five years as a mortgage broker without complaint. Finally, he is involved in his community and does community volunteering with his Temple.
24In support of his work history and mortgage broker skills, I heard testimony from a friend of the appellant, BB. BB and the appellant have been friends for 12 years or so. They worked together as truck drivers. BB testified that the appellant was an exemplary workmate, always willing to lend a helping hand.
25Recently BB found himself financially strapped. He dealt with a number of mortgage brokers and real estate agents who he felt only had their own interests at heart. He thought he would have to sell his house to solve his financial problems. He approached the appellant who sorted out the financial problems without having the sell the house. He was complimentary of the appellant’s skills in helping him refinance and always felt the appellant was protecting BB’s interests. He has since referred a number of clients to the appellant and has never heard a complaint.
26BB was unaware of either the fact or the nature of the appellant’s conviction. He was taken somewhat aback when he learned the nature of the conviction. He agreed that sexual assault of a minor would call into question the integrity of the perpetrator.
27Balancing the whole of the appellant’s past conduct, I find that his more recent continual misrepresentations of the circumstances of his conviction outweigh the positives to be found in the past 13 years. He has concocted a version of events that minimizes his behaviour and has refined it to make himself the victim. He is fortunate that his professional organization, CAAMP, and FSCO did not ask for further disclosure and his version was accepted. The problem is that he has embarked on a course of conduct lacking full and frank disclosure of material facts. In this I find reasonable grounds for belief that he will not carry on business in accordance with law or with integrity and honesty.
THE DECEMBER 20, 2017 EMAIL
28On December 20, 2017 the appellant wrote to RECO for an update on his application. He was told that no update was available as his file was still under review. The Registrar takes the position that his response was unprofessional and should be grounds for refusal. The Registrar’s witness, Jackie Foster, testified that she and her colleague felt threatened by the email and felt it was sarcastic. I disagree.
29The email states:
No problem, take your time and hold on tight, It [sic] seems not a discrimination based delay, it's just my CRIMINAL RECORD. Anyway if registration is not possible you can put my fee back into my account and I will decide something else, google reviews tells lot of stories about anyone in these days!
Wishing you and your family very warm and happy Christmas, filled with the peace, joy and love you deserve. Have a fantastic Christmas and New Year!
30The Registrar takes issue with the references to discrimination and Google reviews and the capitalization of criminal record. He reads a threat into these items and sarcasm in the closing season’s greetings. The appellant says that no threat was intended. The reference the Google reviews simply comes from the fact that when he was on the RECO website, he got a pop-up screen directing him to reviews of RECO by others. He states he genuinely meant the seasonal greetings.
31The Registrar relies on a decision of this tribunal in support of his position that unprofessional and inappropriate contact with RECO provides the reasonable grounds set out in s. 10(1)(a)(ii). In 9854 v. Registrar, Real Estate and Business Brokers Act, 2002, ONLAT File # 9854 released May 12, 2016 (9854), the appellant, Alex Beseiso, embarked on a long and haranguing correspondence with staff at RECO. He used offensive nicknames, profanity and threatening language over a course of dealings that went from July 2, 2015 until his application was denied in September, 2015. In denying the appellant registration based on his behaviour, the tribunal found that: “Integrity includes conducting oneself with a minimum standard of professionalism.”
32I accept the reasoning in 9854 but I am of the view that it does not apply in this case. Having read the impugned email several times, I do not see the threatening or unprofessional dimension urged on me by the Registrar. Even if I did find such a dimension, it falls far short of the long-term abusive correspondence in 9854.
REFUSAL OR TERMS
33Having found that two of the exclusions in s. 10 apply to the appellant, I must consider whether to direct the Registrar to refuse registration of the appellant or direct registration on terms. The appellant urges that I register him on terms. The Registrar opposes terms. The only term proposed by the appellant was that he report his dealings with clients to his broker or RECO on a frequent basis, say monthly, and any other terms I may wish to apply.
34I do not think that this is an appropriate case for terms. The appellant’s impugned behaviour arises from his manipulation of the truth to gain a regulatory advantage. There are no terms that I can impose on the appellant that would guarantee that he would not manipulate the truth to his own advantage in dealing with consumers. No term can mandate the appellant’s honesty. That must come from within. At present the lack of complaints from his mortgage dealings may be indicative of the fact that he is managing his duties as mortgage broker without problems, but I have only the evidence of one client in support of that position and that client was a long-time friend. I do not consider terms as the appellant has not discovered and internalized the fact that full and frank disclosure is not optional.
ORDER
35Having heard the evidence and submissions of the parties, I direct the Registrar to carry out his proposal dated May 7, 2018 and refuse the appellant registration as a real estate salesperson.
LICENCE APPEAL TRIBUNAL
D. Gregory Flude, Vice-Chair
Released: February 8, 2019