Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 13294/REBBA
Appeal from a Notice of Proposal by the Registrar, Real Estate and Business Brokers Act, 2002, S.O. 2002, c. 30, Sch. B – to Revoke Registrations
Between:
Amarjot Lamba and Whitehill Realty International Inc. Appellants
and
Registrar, Real Estate and Business Brokers Act, 2002 Respondent
MOTION ORDER
Decision made by: Avril A. Farlam, Vice Chair Date of Decision: January 13, 2022
BACKGROUND
1Amarjot Lamba and Whitehill Realty International Inc. (the “appellants”) appeal the April 20, 2021 Notice of Proposal (the “NOP”) issued by the Registrar, Real Estate and Business Brokers Act, 2002 (the “respondent”) to revoke Amarjot Lamba’s registration as a broker together with the registration of Whitehill Realty International Inc. as a brokerage under the Real Estate and Business Brokers Act, 2002, (the “Act”). Mr. Lamba is a director, shareholder and broker of record of Whitehill Realty International Inc.
2The respondent cites s. 10 (1)(a)(ii) of the Act as the statutory ground for the proposed revocation, that the past conduct of the appellants affords reasonable grounds for belief that they will not carry on business in accordance with law and with integrity and honesty.
3The appellants deny the allegations in their Notice of Appeal.
THE JULY, 2021 CASE CONFERENCE
4The Tribunal held a case conference July 16, 2021 at which the appellants were represented by two lawyers. The Tribunal’s July 16, 2021 case conference Order, with the agreement of the parties, scheduled a 10 day videoconference hearing starting on November 8, 2021. The Tribunal also ordered the appellants to provide the documents they intend to rely on at the hearing, their witness list, statements of anticipated evidence, and a statement setting out their grounds for appeal with greater detail (the appellants “productions”), by October 1, 2021.
APPELLANTS REQUEST TO ADJOURN THE NOVEMBER HEARING
5On October 27, 2021 the appellants counsel of record advised the Tribunal that he was no longer representing the appellants. The appellant requested an adjournment of the hearing to allow time to retain new counsel. The respondent consented to this adjournment.
THE NOVEMBER, 2021 CASE CONFERENCE
6The Tribunal held another case conference November 16, 2021 at which the appellants were represented by Amarjot Lamba. The Tribunal’s November 16, 2021 case conference Order records that Mr. Lamba advised the Tribunal that he has not yet retained new legal representation and that “if he is unable to do so, he will represent himself.” Mr. Lamba stated that he anticipates calling nine witnesses but had not yet provided his list of witnesses and statements of their anticipated evidence.
7The Tribunal ordered, with the agreement of the parties, a videoconference hearing be held on January 17 through and 24 through 28, 2022. The Tribunal’s Order states that “Mr. Lamba confirmed that was a reasonable amount of time for him to retain legal representation and prepare for the hearing, with or without legal representation.” The respondent requested that the new hearing dates be peremptory on the appellants, with or without legal representation, and with the agreement of Mr. Lamba, the Tribunal ordered that the January, 2022 hearing dates are peremptory on the appellants and also ordered that, in the event that the appellants retain a legal representative, they shall ensure that the representative is available on the scheduled hearing dates. The Tribunal also ordered the appellants to provide the appellants productions by January 3, 2022.
APPELLANTS MOTION TO EXTEND THE DISCLOSURE DEADLINE AND TO ADJOURN THE JANUARY, 2022 HEARING
8On December 30, 2021 the appellants served a motion seeking an Order of the Tribunal granting an extension of the time to file their documents to be relied on at the hearing, list of witnesses and statement setting out the grounds for the appeal and asked to be “granted additional time to find a legal representative and make a full list of witnesses”. The appellants Notice of Motion states that “due to the most unprecedented Covid outbreak that no one could have predicted on November 16 when the last order was passed, I have been unable to find proper representative nor to prepare a full list of my witnesses. Consequently, since my matter seems to be more complicated than I expected and both my personal circumstances and business are affected with the recent omicron outbreak, I would need more time to either find a representative or better prepare myself for the hearing and the ongoing holiday season is not helping me either.”
9The Tribunal notified the parties that the appellants’ motion would be heard by videoconference on January 11, 2022, and in the meantime, extended the appellants disclosure deadline of January 4, 2022 pending the outcome of the motion.
10Mr. Lamba represented the appellants at the hearing of the motion on January 11, 2022. The appellants did not file any affidavit or other evidence in support of their motion. The appellants sent a December 31, 2021 email setting out facts for the Tribunal to consider, primarily that the covid pandemic is increasing, that because the appellants work on hard copy files, they have been “unable to decide on a suitable counsel” or prepare in these “unprecedented times”, and “…we should be fine to file all our docs by Jan 27th and we will keep ourselves available for the entire month of March for the hearing as we may have close to 17 witnesses”.
11In oral submissions on the motion Mr. Lamba confirmed that the appellants are seeking an adjournment of the hearing set to begin January 17, 2022 for the reasons set out in the Notice of Motion and in the December 31, 2021 which he summarized as:
a. Covid cases are escalating which has made it difficult for the appellants to find a lawyer;
b. Court cases are being postponed because of Covid;
c. The way the respondent or the Real Estate Council of Ontario (“RECO”) publishes its decisions makes it difficult for him to find a qualified lawyer;
d. In reply, Mr. Lamba said if the respondent or RECO would give him three names of lawyers who could represent the appellants, he would hire one of them immediately;
e. The appellants feel like they are being treated like criminals;
f. The respondent has two lawyers.
12The respondent opposes the appellants motion and submits that the appellants have been given plenty of time to retain new legal representation if they wished to do so, have missed two deadlines for productions, have been granted one adjournment of the hearing already, the current hearing dates are peremptory on the appellants and there is no link demonstrated between the pandemic and the appellants lack of legal representation.
13The respondent also submits that it is consistent with the Tribunal’s mandate in Rule 3 of the Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission Common Rules of Practice & Procedure, October 2, 2017 (the “Rules”) that the hearing proceed expeditiously. The respondent would be prejudiced if the hearing does not proceed as scheduled given that it has some 15 witnesses ready to testify starting January 17, 2021. Lastly, the respondent submits that it is in the public interest that the hearing go ahead as scheduled given that the appellants continue to trade in real estate.
RESULT
14The appellants motion is denied.
ANALYSIS AND REASONS
15Having considered all the motion material submitted and all submissions of both parties, I exercise my discretion to deny the appellants motion. The following are my reasons.
16The January hearing dates are peremptory on the appellants as a result of a Tribunal Order made with their consent.
17The Ontario Court of Appeal has set out non-exhaustive factors to consider in deciding whether to grant or refuse a request to adjourn a peremptory hearing1 including:
a. Whether prior peremptory designations were made;
b. The reason for the requested relief;
c. The consequences and the potential prejudice to the parties;
d. Whether the requestor is trying to manipulate or exploit the situation.
Whether Prior Peremptory Designations were made
18The appellants consented to the Tribunal Order making the January, 2022 hearing dates peremptory on them.
Reasons for the Requested Relief
19The appellants have not put forward compelling reasons for the adjournment of the January hearing or the extension of the deadline for their productions.
20There is no evidence before me that the pandemic has prevented the appellants from retaining legal representation if they truly wished to do so. Mr. Lamba’s suggestion that the respondent or RECO should recommend the names of counsel to the appellants is unreasonable. Respondents counsel is not under any obligation to do and doing so could potentially place respondents counsel in a conflict of interest.
21The appellants have not had legal representation since October 27, 2021. The appellants requested an adjournment of the November, 2021 hearing in order to retain legal counsel but yet have not done so.
22The appellants’ submission that court cases are being postponed because of Covid is not persuasive. This Tribunal has been delivering digital and electronic services since early 2020 and currently conducts hearings by videoconference which does not require hearing participants to be exposed to any covid risk.
23The appellants submission that the way the respondent or the Real Estate Council of Ontario (“RECO”) publishes its decisions makes it difficult for him to find a qualified lawyer is also not persuasive. Tribunal decisions from appeals under the Act are available on the internet free of charge to the public.
The Consequences and the Potential Prejudice to the Parties
24The appellants would clearly benefit if the hearing is delayed as they would be able to continue to trade in real estate pending the hearing.
25There is no potential prejudice to the appellants that is not of their own making. Although the appellants submit that the matter of their licensing is important to them, it is equally clear that the appellants have not demonstrated that they have put forward any significant effort to prepare for the hearing. Mr. Lamba conceded in his oral submissions that he has no list of witnesses, has not made a list of the documents the appellants wish to rely on at the hearing and does not have a statement of more specific grounds for appeal. These productions were ordered by the Tribunal to be made by the appellants on July 16, 2021. As experienced real estate professionals, the appellants ought to be aware of the importance of documents. Given the lack of effort to date to comply with the Tribunals production deadlines, I see no purpose in granting a further extension of time. The appellants have not used the extensions of time they have already been granted by the Tribunal.
26On the other hand, the respondent would be prejudiced if the hearing does not proceed as scheduled given that it has some 15 witnesses ready to testify starting January 17, 2021.
27I also accept the respondent’s submission that it is in the public interest that the hearing go ahead as scheduled given that the appellants continue to trade in real estate.
28I also accept the respondent’s submission that the Tribunal’s mandate under Rule 3.1 of the Rules is to ensure efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal.
Whether the requestor is trying to manipulate or exploit the situation
29Mr. Lamba made oral submissions that he wanted to have a lawyer prepare the productions for the appellants. However, Mr. Lamba put forward no evidence containing details, names, or dates of attempts to retain legal representation. The retaining of legal representation is wholly within the control of the appellants. No persuasive explanation has been put forward by the appellants as to why they have not retained legal representation, leaving the impression that the appellants are now attempting to rely on this to further delay the hearing.
30Mr. Lamba previously told the Tribunal that he would represent himself if need be. Mr. Lamba acknowledged that he told the Tribunal at the November case conference that if he was unable to retain new legal representation that he would represent himself. This is recorded in the Tribunal’s November case conference Order. To resile from this now leaves the impression that the appellants are using their lack of legal representation as an excuse to delay the hearing.
31The Tribunal proceedings to date shows a pattern of delay by the appellants. The appellants did not comply with the Tribunal’s case conference Order to produce their productions by October 1, 2021 even though they had legal representation at that time.
32The appellants did not comply with the Tribunal’s case conference Order to produce their productions by January 3, 2022, but instead sought an extension of that deadline.
33The appellants did not produce their productions after January 3, 2022 even though the Tribunal extended the January 3 deadline pending the outcome of this motion.
ORDER
34Having considered all of the evidence and submissions made by both parties, for the reasons set out above, the appellant’s motion is denied.
35The hearing of this appeal remains scheduled to commence on January 17, 2022 at 9:30 a.m. by videoconference peremptory on the appellants in accordance with the Tribunal’s November 16, 2021 case conference Order.
36Except for the provisions contained in this Order, all previous Orders made by the Tribunal remain in full force and effect.
37The hearing adjudicator may amend the case management process set out in the Order, subject to the submissions from the parties, as deemed fit.
38If the parties reach an agreement on the issues in dispute prior to the hearing, they shall immediately advise the Tribunal in writing.
LICENCE APPEAL TRIBUNAL
Avril A. Farlam Vice Chair
Released: January 13, 2022
Footnotes
- Conway(Re), 2016 ONCA 918 at para 26 (C.A.).