Appeal under section 14 of the Real Estate and Business Brokers Act, 2002, SO 2002, c 30, Sched C ("the Act")
BETWEEN:
Susan Toughlouian
Appellant
and
Registrar, Real Estate and Business Brokers Act, 2002
Respondent
ORDER
ADJUDICATOR:
Matthew M. Létourneau, Member
APPEARANCES:
For the Appellant:
Matt Mulholland, counsel
For the Respondent:
Shane Smith, counsel
Heard by Videoconference:
May 3 and 4, 2021
OVERVIEW
1Ms. Susan Toughlouian, ("appellant"), filed an appeal to the Licence Appeal Tribunal ("the Tribunal") on April 8, 2021 regarding the Registrar's March 25, 2021 order for immediate suspension of her Real Estate licence pending a hearing for revocation, as well as the Registrar's proposal to revoke the registration of the appellant as a salesperson under the Act of the same date.
2The reasons for the Notice of Proposal to Revoke Registration of March 25, 2021 issued by the Registrar pursuant to the Act are, that it views the appellant as not being entitled to registration pursuant to s. 10(1)(a)(ii) of the Act because, "in the Registrar's opinion, her past conduct affords reasonable grounds for belief that she will not carry on business in accordance with law and with integrity and honesty".
3The Registrar viewed it to be in the public interest to temporarily and immediately suspend her registration pursuant to s. 15 of the Act.
4The appellant requested a hearing to seek to set aside the suspension according to s. 14 of the Act, and to proceed to a hearing of the Notice of Proposal to Revoke.
5The hearing took place on May 3, 2021 and May 4, 2021. Both parties were represented by counsel: Matt Mulholland for the appellant, and Shane Smith for the Registrar.
ISSUE
6The issue to be decided is whether it is in the public interest that the appellant's licence remain suspended until the hearing related to the Notice of Proposal to revoke licence is concluded?
RESULT
7For the reasons that follow, the Immediate Suspension Order dated March 25, 2021 is extended until the hearing of the Notice of Proposal is concluded. A case conference will be scheduled within two weeks of this decision to schedule the hearing.
LAW
8The Registrar has the legislative authority to issue a notice of proposal to revoke the registration of the appellant pursuant to s. 14 of the Act.
9The Registrar may order the immediate and temporary suspension of the appellant's registration pursuant to s. 15 of the Act if the Registrar considers it in the public interest.
ANALYSIS
10I find that the Immediate Suspension Order should be upheld as it is in the public interest to do so. The prima facie case by the Registrar showed that the conduct cited in the Notice of Proposal provides a reasonable basis for the allegations outlined by the Registrar, and for an immediate suspension to be upheld. The appellant contests this position on the grounds that the conduct was not as alleged by the Registrar, that it has been mitigated, and that it is not within the scope of a trade with a client. However, the appellant's version of events provided admissions of alleged behaviours and was uncompelling in mitigating the dangers to the public. I find that the Suspension Order is to be upheld until the conclusion of the hearing.
11The alleged conduct relates to serious breaches of the Code of Ethics, Reg. 580/05 ("Code"), that, if established at the hearing, would entail a pattern of serious and inappropriate behaviour including unprofessional conduct as well as abuse and harassment over a lengthy and unchecked time period.
12A prima facie assessment of the facts means that the Tribunal can take a first glance at the evidence to be presented, without making findings. The Tribunal can determine if the evidence would be sufficient, if established, to substantiate the Notice of Proposal to Revoke. It is the Registrar's burden to make this prima facie case.
13A prima facie look at this case affords a clear glimpse into the appellant's conduct over time. The Notice of Proposal and the prima facie case primarily allege abuse and harassment of the appellant's former business partners, Roy and Amit Bhandari, both registrants under the Act. The appellant's testimony provided admissions that her partnership with the registrants ended in 2014 and escalated in a conflictual manner to the point of the Toronto Police becoming involved in 2019-2020.
14The Registrar also alleged a breach of release conditions, abuse of third parties, including members of the public, work colleagues and other registrants, as well as a failure to disclose criminal charges.
15The prima facie look at the written communications pointed to abusive statements, despite requests for such aggressive behaviour to stop. This is a factor in showing abuse and harassment which constitutes prohibited conduct under s. 40 of the Code. The continuous pattern of escalating and prolonged conduct of abuse and harassment is very serious and I believe on this element alone justifies the suspension to be upheld to protect the public.
16Other examples were provided, including behaviour that could be "reasonably regarded as disgraceful, dishonourable, unprofessional or unbecoming of a registrant", referring to s. 39 of the Code. For example, it is alleged that she failed to advise the Registrar regarding her criminal charges. The charges themselves are the culmination of an alleged series of unethical exchanges that escalated to the point of making threats against another broker. The evidence, if established, points to multiple attempts to dissuade this behaviour, requests for the aggressive emails to stop, yet the conduct continued unchecked. The nature of the communications contained threats made by the appellant with exceedingly aggressive tones.
17The appellant attempted to explain and contextualize the incidents, however the allegations, the amount of evidence to be presented at a hearing, and the admissions by the appellant weigh in favour of suspension in order to protect the public pending the hearing.
18The appellant submitted that the Code's intent is to protect clients and refers to conduct in the "course of trading real estate". The Registrar submitted that the conduct included interactions between the appellant and other colleagues, staff, partners, brokers, members of the public and thus created an important risk to the public given its extreme nature. In my view, I do not find that the intent of "trading real estate" refers only to the sale and purchase of a lot of land, especially in the context of running a real estate business as a registrant and requires that conduct adhere to the Code when dealing with co-workers, brokers, members of the public and of course, clients. Conduct that respects the Code is necessary in all dealings in the course of a registrant running a real estate business in order for the public interest be upheld.
19The Registrar relies on the consumer protection mandate of the Act and public interest considerations in the regulation of the real estate industry that it helps regulate in ordering this immediate suspension. The application of the analysis for an immediate suspension were outlined in the Stober and Marcel Motors1 matters, where the Tribunal upheld suspension orders for incidents that were not isolated, and showed a pattern of conduct or noncompliance.
20The consumer protection element establishes a strong public interest in having registrants act with honesty, integrity and in accordance with the law. The public interest is to have the registrants act in a way that upholds the reliability, respectability and trust of the industry.
21Specifically, the public interest in this matter is that the appellant abide by the clear guidelines found in the Code. These rules provide an ethical foundation to which all registrants must legally adhere. The allegations point to a prima facie pattern of bright line breaches of the Code.
22The appellant submits that a suspension is an exceptional order to be applied sparingly. In reviewing the public interest consideration, the appellant submitted that the risk to the public is minimal given that no clients of hers were directly harmed. The appellant states that the allegations revolved around isolated incidents relating to a fall-out with her business partners, but did not spill over onto any clients. The appellant's current employer, Re/Max, did not find cause to investigate her for any wrongdoing with clients. The risk would therefore be limited, in her submission, given that whatever incidents led to her being charged were dealt with by a peace bond which she respects, and she would abide by such conditions as necessary to keep her registration and continue working to provide for her family. She submits that much of the factual basis can be contested and that the events would show to be relatively isolated to one or two of her business partners.
23I find that the allegations point to significant breaches of the Act and the Code, including sections 3, 37, 38, 39 and 40 of the Code. i.e. fairness, honesty and integrity (s. 3); inaccurate representation (s. 37); error, misrepresentation, fraud, etc. (s. 38); unprofessional conduct, etc. (s. 39); and abuse and harassment (s. 40). This type of conduct is regulated and the apparent strength of the Registrar's allegations in the Notice of Proposal tends to support its position for immediate suspension.
24I find that it is in the public interest that the immediate suspension order be extended to the completion of the hearing.
ORDER
25I order as follows, given the above:
a. Pursuant to s. 15(3)b) of the Act, the expiration of the Order of Immediate Suspension of the appellant's Salesperson registration is extended until the hearing is concluded.
b. The hearing is adjourned.
c. A case conference shall be scheduled to take place within two weeks of this Order.
d. Nothing in this Order affects any requirement under the Act.
LICENCE APPEAL TRIBUNAL
Matthew M. Létourneau
Member
Released: December 11, 2021