Appeal from a Notice of Proposal by the Registrar, Real Estate and Business Brokers Act, 2002, S.O. 2002, c. 30, Sch. B - to Refuse Registration
Between:
Baldeep Brach
Appellant
and
Registrar, Real Estate and Business Brokers Act, 2002
Respondent
MOTION DECISION
ADJUDICATOR: Patricia McQuaid, Vice-Chair
APPEARANCES:
For the Appellant: Eric Brousseau, Counsel
For the Respondent: Ian Daley, Counsel
Heard by teleconference: May 10, 2021
Background
1The Registrar issued a Notice of Proposal (the “NOP”) on January 27, 2021 to revoke the registration of Baldeep Brach as a salesperson under the Real Estate and Business Brokers Act 2002. Mr. Brach appealed the NOP to the Tribunal and a case conference took place on March 10, 2021. A ten-day hearing has been scheduled for August 2021. The appellant filed a motion on April 1, 2021 seeking particulars of allegations in the NOP as well as production of additional documents not provided within the Registrar’s book of documents, and costs pursuant to Rule 19 of the Tribunal’s Rules of Practice1. Specifics of the appellant’s request were set out in his letter of March 12, 2021 to the Registrar.
2The motion was scheduled for April 28, 2021. At the outset of the motion, Mr. Brousseau advised that he was provided with disclosure from the Registrar on the evening of April 27th and required time to review the disclosure to assess whether it was fully responsive to the appellant’s request. As a result, the motion hearing was adjourned to May 10, 2021 at which time counsel would advise if any disclosure remained outstanding. The Tribunal would then hear submissions from both parties on that issue. In addition, the appellant’s request for costs of this motion would be heard at that time.
3On May 10th, Mr. Brousseau stated that the appellant was satisfied that the disclosure provided on April 27th was responsive to his requests and the only remaining issue was costs.
Analysis
4The appellant is seeking costs of $2000, pursuant to Rule 19.1 and 19.6 of the Tribunal’s Rules of Practice. Pursuant to Rule 19, the maximum amount that the Tribunal can award shall not exceed $1000 for each full day of attendance at a motion, case conference or hearing. The appellant seeks $1000 for each of its half day attendances of April 28 and May 10.
5Rule 19.1 states that where a party believes that another party to the proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs. Costs are a discretionary remedy. In deciding whether to award costs, the Tribunal will consider factors such as the seriousness of the misconduct, whether the conduct was in breach of an order issued by the Tribunal, whether the party’s conduct interfered with the Tribunal’s ability to carry out a fair, efficient and effective process, as well as prejudice to other parties2. A review of Tribunal jurisprudence indicates that cost awards are the exception.
6The appellant has referred to the timeline in this proceeding, and it is relevant. As noted above, the NOP was issued on January 27, 2021. A case conference took place on March 10, 2021. The appellant raised the issue of further disclosure at that time. A 10-day hearing was scheduled for August 2021 and witness information was to be provided by May 30, 2021.
7On March 12, 2021, Mr. Brousseau sent a letter to counsel for the Registrar requesting a series of documents and stated a deadline for delivery of March 26, 2021. In his submissions, counsel stated that when March 26 passed with no response from the Registrar, he sent several emails to Mr. Daley between March 28 and April 1, 2021. Again, receiving no response, he then requested that a motion be scheduled. There appears to have been a suggestion in communication from Mr. Daley, counsel for the Registrar that disclosure would be forthcoming in mid April, but disclosure was not provided until April 27th.
8The disclosure when provided, albeit later than Mr. Brousseau requested, was fully responsive to the requests. There is no suggestion that the Registrar was objecting to making the specific disclosure requests – there was no stated refusal to disclose, though some discussion between counsel in submissions before me, as to whether they were in disagreement about whether this involved a Stinchcombe3 level of disclosure. While I agree that it would have assisted matters greatly if Mr. Daley had been more attentive and responsive to Mr. Brousseau’s emails, and that may have been vexing for Mr. Brousseau, that is not vexatious conduct as contemplated by Rule 19.1.
9I accept Mr. Delay’s explanation for the delay in providing disclosure; that is, with counsel and staff in the Registrar’s office working remotely during the pandemic, compiling the requested documents took longer than it normally would. In our current context, this is a reasonable explanation. There was no intention not to provide the documents. Further, while there was a delay, it was no more than a six-week delay and well ahead of the hearing and a month before witness disclosure is due. There has been no appreciable negative effect on the appellant’s opportunity to have a fair, efficient and effective hearing before the Tribunal. While delays in responding are not condoned, neither does a delay such as this warrant a costs award weighing the considerations set out in Rule 19.5.
10The appellant has made the argument that a cost award is warranted for the Registrar’s “systemic disregard for the disclosure right of appellants” and an “inequitable and illegal” burden on appellants