An Appeal from a Notice of Proposal of the Registrar, Real Estate and Business Brokers Act, 2002, S.O. 2002, c.30, Sch. C – to Revoke Registration.
ORDER AND DECISION
Order made by: Avvy Go, Member
OVERVIEW AND ISSUE
1The respondent issued a Notice of Proposal (“NOP”) on May 22, 2018, to revoke the appellant’s registration as a salesperson under the Real Estate and Business Brokers Act, 2002, S.O. 2002, c. 30, Sched. C (the “Act”).
2The appellant requested a hearing by the Tribunal to determine whether the appellant’s registration should be revoked because a) he cannot reasonably be expected to be financially responsible in the conduct of business, and b) because his past conduct affords reasonable grounds for belief that he will not carry on business in accordance with the law, and with integrity and honesty.
3The appellant’s notice of appeal dated October 1, 2018, was received by the Tribunal on October 22, 2018. The appellant also filed a motion to extend the time to file the appeal. The notice of motion dated September 29, 2018 was received by the Tribunal on October 2, 2018. The appellant filed a number of documents and made written submissions in support of his motion.
4A case conference was held on February 1, 2018. As a result of the case conference, I made an order to deal with the motion in writing. I ordered the appellant to file additional documents and written submissions by February 8, 2018, and the respondent to file its written submissions by February 15, 2018. The appellant did not file any additional written submission or documents in support of his motion. The respondent filed its submissions within the timeline ordered.
RESULT
5For the reasons set out below, I dismiss the appellant’s motion to extend the time to file the appeal. As such, I also dismiss the appellant’s appeal.
ANALYSIS
Background
6The appellant was first registered as a salesperson in June 2013.
7In the NOP to revoke the appellant’s registration, the respondent alleged that the appellant:
a. had at least four unpaid judgments outstanding against him;
b. defaulted in making payments on a second mortgage he had obtained (through fraudulent means) on a property he owned;
c. attempted to make the concealment of his fraudulent conduct a condition of repayment of a debt he owed;
d. fraudulently back-dated documents related to a trade in real estate;
e. attempted to wrongfully convert the deposit from a voided trade to his benefit;
f. threatened a buyer and another registrant with economic harm based on a false claim of having obtained a legal judgment against them;
g. attempted to abuse and pervert the legal system by purposely withholding legal documents from parties adverse in interest to him;
h. swore and filed false affidavits as part of trying to wrongfully convert a deposit to his benefit;
i. failed to pay the debts he incurred;
j. swore and filed false affidavits in an attempt to avoid the impact of a judgment against him;
k. failed to disclose the existence of unpaid judgments and/or debts against him as required by the Act;
l. attempted to mislead the Real Estate Council of Ontario (“RECO”) about his involvement in unpaid judgments and/or debts; in respect of his ongoing association with a corporation; and in respect of his role in obtaining a fraudulent mortgage;
m. has been uncooperative and misleading with RECO in its attempts to investigate matters of concern regarding his conduct; and
n. is currently the subject of criminal charges alleging fraudulent activity which he failed to disclose as required by the Act.
8The NOP was sent to the appellant by registered mail on May 23, 2018.
9Under s.45(2) of the Act, the service is deemed to be made on the third day after mailing, unless the person on whom service is being made establishes that the person did not, acting in good faith, through absence, accident, illness or other cause beyond the person’s control, receive the notice or order until a later date.
10The appellant has 15 days after being served to make a request for a hearing as per s.14(2) of the Act.
11In this case, the appellant said he was only notified that his licence was revoked in early July 2018 after he returned from an overseas trip. After his return, the appellant said he was in negotiation with the respondent to try to regain his registration to no avail. The appellant said that he filed a notice of appeal package with the Tribunal in or around September, 2018, but the package was lost by the Tribunal. At the Tribunal’s request, the appellant said that he resubmitted his notice of appeal package on October 22, 2018.
12When asking for an order to extend time to file the appeal, the appellant also asked that the hearing of his appeal be held “in abeyance” until the disposition of his criminal matter.
Factors to be considered for an Extension of Time
13Pursuant to s. 7 of the Licence Appeal Tribunal Act, the Tribunal has the discretion to extend the time for filing an appeal if the Tribunal is satisfied that there are reasonable grounds for applying the extension.
14When deciding whether to grant an extension of time to file the appeal, the Tribunal is guided by the following four factors as set out in Manuel v. Registrar1:
a. The existence of a bona fide intention to appeal
b. The length of the delay;
c. Prejudice to the other party; and
d. The merits of the appeal
15The overriding consideration is whether “justice of the case” requires that the extension be granted.2
16I will deal with each of these factors as follow:
a. The existence of a bona fide Intention to appeal
Appellant’s Submission
17The appellant first indicated his intent to appeal RECO’s decision to revoke his registration in April 2018, before the Registrar had in fact issued its NOP. The appellant was in communication with the RECO staff, J.F., and in an email dated April 13, 2018, he notified J.F. that he had not received the reasons for the Registrar’s decision, and he would like to appeal and stay within the 15 days of timeline to file the appeal. In reply, J.F. advised the appellant that the process can take several months, and that once he received the NOP, he may file the appeal by requesting a hearing with the Tribunal.
18The Registrar then attempted to deliver the NOP on May 23, 2018 by Canada Post to the address they have on file for the appellant, but delivery was unsuccessful, and a notice card was left, indicating where and when to pick up the item. A final notice was left at the appellant’s address on May 30 advising that the package would be returned to the sender if not collected within 10 days. The package was not collected and was returned to RECO.
19By a letter dated June 20, 2018, the Registrar sent the appellant a copy of the final notice issued by the Registrar revoking his registration as a salesperson. Enclosed with the letter was a copy of the NOP that was previously sent by registered mail.
20The appellant submitted that he was out of the country several times between May and September 2018 to look after his ailing parents. The appellant submitted his travel itineraries and boarding passes to show that he was out of the country between June 3 and July 1, 2018 and then between September 4 and September 24, 2018.
21The appellant did not receive the package by registered mail, but instead by an email dated July 4, 2018, when J.F. provided a copy of the June 20, 2018 letter and the NOP to the appellant with an explanation about the previous unsuccessful attempts to deliver the package. The letter also explained that the time for requesting a hearing in respect of the NOP expired on June 11, 2018.
22After receiving the NOP by email, between July and September 2018, the appellant contacted several lawyers to see if he could retain counsel to assist him with the revocation. The appellant was unable to find a lawyer who could take on his case and could not afford to retain the only lawyer who agreed to represent him. The appellant provided copies of the email exchange between himself and prospective counsel. As the appellant had to leave the country again to visit his parents, he decided to bring the motion to the Tribunal after his return.
23The appellant takes the position that as the NOP was never served on him before his registration was revoked, therefore the revocation is of no effect.
24The appellant also said that the email dated April 13, 2018 from J.F. suggested that the NOP would follow in several months, and thus he did not expect to receive it in May 2018.
25The appellant requested that the Tribunal extend the time for the filing of the appeal and reinstate his registration in light of the injustice as done to him.
Respondent’s Submission
26The respondent opposes the appellant’s request for an extension of time to appeal. In its submission, the respondent provided some additional facts concerning the revocation and the measures they have taken to notify the appellant of the revocation. To start, the respondent noted that the appellant was advised in writing on March 28, 2018 that a NOP to revoke his registration was being prepared, and that the appellant was advised of his right to appeal to the Tribunal. The respondent also reiterated the attempts they had made to notify the appellant of the NOP in May 2018.
27After contacting the Tribunal and realizing that the appellant had not filed an appeal, on June 18, 2018, the respondent contacted the Broker of Record for the appellant’s brokerage, P.D., to inquire about the appellant and the NOP. P.D. advised the respondent that the brokerage had received a letter from RECO providing notification of the NOP in respect of the appellant; that P.D. had met and spoken with the appellant about the NOP during the week of May 28, 2018 and that the appellant advised P.D. that he would be taking care of the NOP.
28The respondent then proceeded to issue a Final Notice to revoke the appellant’s registration on June 20, 2018, nine days after the expiry of the statutory deadline for requesting a hearing. The respondent also sent a separate notice to P.D. by letter dated June 28, 2018.
29On July 3, 2018, the appellant contacted RECO, advising that he had not received any of RECO’s correspondence and that he had been away from June 3, to July 1, 2018. In his communication, the appellant also acknowledged being advised that he might still file an appeal and indicated that he was in the process of obtaining a lawyer for that purpose. He also made a request to be reinstated while the appeal was taking place. RECO advised the appellant to seek legal counsel and that it would consider his request to have his registration reinstated.
30On July 4, 2018, RECO contacted the appellant to ask why he had not claimed the package containing the NOP. The appellant replied in two emails: in the first email dated July 5, 2018, he stated that he did not receive the package because prior to his trip he had not attended at the address where the NOP was sent. In the second email dated July 6, 2018, the appellant stated that he had been working from home but did not check the mail at the address where the NOP had been sent. The appellant did not deny that there were notices from Canada Post left for him, only that he never received any mail from RECO.
31The respondent also received a phone call from one of the lawyers contacted by the appellant and advised the lawyer that the proper way was to pursue an appeal with the Tribunal.
32On July 10, 2018, the appellant was notified by the Registrar that his registration would not be reinstated. The appellant was advised to consult with counsel should he wish to try and pursue an appeal despite the expiry of the timelines.
33The respondent submitted that the appeal period in this case was from May 23 to June 11, based on s.45(2) of the Act. The respondent submitted that the appellant did not demonstrate an intention to appeal during this period. While the appellant became aware of the existence of the NOP during the appeal period, he did not take any action to request a hearing before his trip overseas. Even accepting that the appellant only became aware of the NOP after his return in July 2018, he did not take any steps to deal with the possibility that the NOP would be issued in his absence. In addition, the respondent further submitted that the appellant’s lack of diligence in promptly taking the necessary steps to file an appeal and request an extension of time after returning from his trip further indicates a lack of any real intention to appeal.
Findings on Bona Fide Intent to Appeal
34I find, for reasons set out below that the appellant had a bona fide intent to appeal.
35The appellant first signalled that intent in April 2018, before receiving the NOP. While he had not followed up right away with that intent, some explanations were provided.
36To start, the evidence shows that there were two failed deliveries of the NOP to the appellant’s address. As well, the email of April 13, 2018 from RECO to the appellant could reasonably be interpreted to mean that the NOP would not be forthcoming until several months later.
37I also consider the fact that the appellant did indeed leave the country in early June 2018 and then again in September 2018, to look after his ailing parents – a point not challenged by the respondent.
38There is also evidence that would suggest that the appellant was actively pursuing legal recourse after he found out that his registration has been revoked. This includes the number of attempts that the appellant had made to retain legal counsel, and his ongoing communications with RECO staff to get his registration reinstated.
39While it would have been more logical for the appellant to file the appeal immediately, instead of relying on negotiation with RECO, I note that RECO did, at one point, agree to consider his request for reinstatement, hence suggesting that the appellant’s strategy to get reinstatement was not completely without merit.
40I agree with the respondent that there are some troubling aspects of this case, for instance, his failure to explain why he did not pick up the mail after being notified by Canada Post, and the evidence suggesting that the appellant was made aware of the NOP by his brokerage before he embarked on his trip in early June 2018. However, the overall conduct of the appellant, including his attempts to seek legal advice and his ongoing communications with RECO, would suggest that the appellant was trying to get his registration back and was pursuing, among other avenues, an appeal to the Tribunal to achieve his goal. I therefore conclude that the appellant did have a bona fide intent to appeal.
b. Length of the Delay
41The second factor that I need to consider is the length of delay. On this point, I find it helpful to refer to the timeline set out by the respondent in its submission which I will summarize in part as follows:
May 24 – The first attempt by Canada Post to deliver the Proposal, with a notice card left for the appellant
Week of May 28 – The discussion between the appellant and his broker of record about the Notice of Proposal
May 30 – The second attempt by Canada Post to deliver the Proposal, with a notice card left for the appellant
June 3 – The appellant left Canada to visit his parents
July 1-2 The appellant returned to Canada and claimed that he first become aware of the Proposal and revocation of his registration
July 3- The appellant contacted RECO and requested that RECO let him appeal the revocation and reinstate his registration
July 10 – RECO notified the appellant that it would not agree to his request
July 16 – RECO responded to a further request from the appellant and advised again that it would not agree to his request
July 23 – The appellant’s lawyer advised by RECO about its response to the appellant’s request
August 14 – RECO advised the appellant again of the same response to his request
August 16 – RECO advised the appellant again of the same response to his request
October 2 – The appellant filed a notice of motion seeking an extension of time to file appeal
October 12 – The appellant advised by the Tribunal of the need to file additional materials
October 24 – The appellant advised again by the Tribunal of the need to file additional materials
November 1 – The appellant filed some of the additional materials
November 26 – The appellant advised by the tribunal to pay the outstanding filing fee
December 4 – The appellant completed the filing requirements for his appeal
42As noted by the respondent, even if I were to accept that the appellant was first notified of the NOP on July 2, 2018, there was still a 92-day delay before the appellant first filed his notice of motion with the Tribunal. There was an additional 2 months delay before the appellant finally completed the filing of the appeal.
43The delay, in my view, is excessive. It is a negative factor weighing against the granting of the extension.
c. Prejudice to the other party
44The respondent acknowledged that prejudice is not a factor in this case as the appellant’s registration has already been revoked. However, the respondent also submitted to the extent that the appellant may be seeking to have his registration reinstated if granted an extension, then there would be prejudice to the public interest without elaborating the nature of the prejudice to the public interest.
45I find this is a neutral factor in this case and will not give it much weight.
d. Merits of the Appeal
46The final factor that I need to consider is the merits of the appeal, and the burden of demonstrating the existence of some merit lies with the appellant.
47I may not take the allegations in the NOP as proven, and the appellant is not required to put forward all of the evidence that he would rely on at the hearing. However, the appellant has the burden on the motion to demonstrate “some merit” to the case.3
48I find this is the one factor that weighs most heavily against the appellant’s request.
49The allegations laid against him are serious and numerous, yet the appellant has provided very little in terms of evidence and submission with respect to the merits of his appeal.
50The appellant responded to some of the allegations by stating that they related to his personal matter and no trade was involved. The appellant stated that RECO should not be involved as there was no court judgment against him and the litigation would be resolved soon.
51Just because the allegations deal with the appellant’s personal matters does not make it any less serious. The Registrar has a duty to determine whether the appellant’s registration should be revoked in part because his past conduct affords reasonable grounds for belief that the he will not carry on business in accordance with the law, and with integrity and honesty based on his past conduct. The conduct in question may arise from the appellant’s dealing with his personal matters, particularly since it involves matters that a real estate registrant may have to deal with within their profession.
52The appellant also disputed the allegations relating to the sale of a property located on 6323 Snowflake Lane.
53According to the Respondent, the allegations against the appellant arising from the sale of that property include the following:
a. that he fraudulently backdated an Amendment to an Agreement of Purchase and Sale in order to try and create a firm deal where, in fact, the agreement had expired;
b. that he knowingly lied to another registrant about the existence of a court judgment in order to try and threaten the registrant and his client to give up the deposit monies; and
c. that he lied to the Court about serving a Statement of Claim on the registrant and his client – something he had in fact not done – and on that basis, proceeded to obtain a judgment for the deposit monies without their knowledge.
54In support of these allegations, the respondent included some communications sent and received by the appellant, as well as court documents, which the respondent submitted show the appellant’s fraudulent and deceptive conduct.
55I have reviewed these documents and I find that they support the allegations as set out by the respondent. As I have noted above, the appellant was provided with an opportunity to provide additional submissions and evidence but did not do so.
56In his previous submission, the appellant explained that the sale was not completed, and the court issued an order in his client’s favour for deposit, and the complainant then filed a claim with the small claims court. The appellant did not respond to the specific allegations laid down in the NOP by RECO, especially in regard to the allegations of fraud and deception, other than stating that RECO has only heard one side of the story and has unfairly dismissed the complaint the appellant has filed against the registrant who acted for the buyer.
57I note that in dismissing the complaint filed by the appellant against the registrant for the buyer, RECO indicated that the complaint did not fall within its jurisdiction as it could not “coerce any parties to complete a transaction”.
58I further note that the appellant is still facing outstanding criminal charges arising from his involvement in some of the real estate transactions, and has in fact asked that his appeal be held in abeyance until his criminal matter is resolved. Yet the appellant has provided little explanation to counter these serious allegations of fraud and criminal activities.
59I therefore find that the appellant has failed to demonstrate the merits of his appeal. Further, while the appellant had bona fide intent to appeal, there was an excessive delay in filing and completing the appeal to the Tribunal.
60Based on a consideration of the four factors, I am of the view that the justice of the case does not require that the extension be granted.
CONCLUSION
61Based on all of the above, I dismiss the appellant’s motion to extend time to file the appeal.
ORDER
62The appellant’s motion to extend time to file the appeal is denied. The appellant’s appeal is dismissed.
LICENCE APPEAL TRIBUNAL
Avvy Go, Member
Released: March 20, 2019
Footnotes
- 2012 ONSC 1492 (Ont. Divisional Court)
- ibid, at para.40
- Manuel, supra note 1, at paras 34-39