Licence Appeal Tribunal File Number: 12027/REBBA

In the matter of an appeal from a Notice of Proposal to Suspend Registration dated April 8, 2019 made by the Registrar, Real Estate and Business Brokers Act, 2020, c. 30, Sched. C.

Between:

Ryan Hodge

Appellant

and

Registrar, Real Estate and Business Brokers Act, 2020

Respondent

MOTION DECISION

ADJUDICATOR:

Colin Osterberg, Vice Chair

Representatives:

For the Appellant:

Ondrej Sabo, Counsel

For the Respondent:

Shane Smith, Counsel

HEARD in writing

OVERVIEW

1Ryan Hodge (the “appellant”) appeals from a Notice of Proposal issued by the Registrar, Real Estate and Business Brokers Act, 2002 (the “Registrar”) dated April 8, 2019, which proposed to suspend the appellant registration as a real estate broker under the Real Estate and Business Brokers Act, 2020, c. 30, Sched. C (the “Act”).

2In this Motion, the appellant asks the Tribunal to strike a document which the Registrar issued March 31, 2023, titled Further Particulars In Support Of The Notice Of Proposal To Suspend Registration (“Further Particulars”). The appellant argues that the Further Particulars seeks to introduce improper and irrelevant evidence against the appellant at the hearing.

3The Registrar says that the allegations set out in the Further Particulars are relevant to this appeal and it opposes the motion.

ISSUES

4The issues in dispute are:

i. Whether the Tribunal has authority to strike the Further Particulars; and

ii. If so, whether the appellant has established that the Further Particulars should be struck as an abuse of process.

RESULT

5I find that the Tribunal has the authority to strike the Further Particulars if it is satisfied that the Further Particulars constitute an abuse of process or that it might result in procedural unfairness.

6I find that the Further Particulars do not amount to an abuse of process and are not procedurally unfair.

7The appellant’s motion to strike the Further Particulars is dismissed.

ANALYSIS

Tribunal Authority

8The appellant has not set out in its materials, the basis on which it says the Tribunal has the authority to strike the Further Particulars.

9As the appellant sets out in its own submissions, statutory bodies like the Tribunal may exercise only those powers granted to them expressly, or impliedly, by Parliament or the Legislature.

10There is no provision in the Act, the Statutory Powers Procedure Act, R.S.O. 1990, c.22 (“SPPA”), the Licence Appeal Tribunal Act, 1999, S.O. 1999 c. 12, Sched. G (“LAT Act”), or the Tribunal’s Common Rules of Practice and Procedure (“Common Rules”) which specifically provides the Tribunal with the authority to strike out a Notice of Proposal or a Notice of Further Particulars In Support Of The Notice Of Proposal To Suspend Registration issued by the Registrar under the Act.

11It is within the Tribunal’s jurisdiction to dismiss an appeal without a hearing in certain circumstances listed in Rule 3.4 of the Common Rules. Similarly, a tribunal may dismiss a proceeding without a hearing in certain circumstances. The appellant is not seeking a dismissal of the appeal and so these provisions do not apply to this motion.

12Under s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c.22 (“SPPA”), a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes. The Tribunal has held in the past, and I accept, that the Tribunal may in certain circumstances stay a proceeding as an abuse of process without holding a hearing on the merits: See for example 6736238 Canada Inc. v. Registrar, Home Construction Regulatory Authority, 2022 CanLII 87726 (ON LAT).

13By analogy, and based on a plain reading of the SPPA, I find that s. 23(1) gives the Tribunal authority to strike a Notice of Proposal or Further Particulars in order to prevent an abuse of the Tribunal’s process.

14The Supreme Court of Canada has held that abuse of process in the administrative context "is a question of procedural fairness": See Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 and Law Society of Saskatchewan v. Abrametz, 2022 SCC 29. In those cases, the Court explained two ways in which delay may constitute an abuse of process. First, the fairness of a hearing can be compromised where delay impairs a party’s ability to answer the complaint against them. Second, even if there is no prejudice to hearing fairness, an abuse of process may occur if significant prejudice has come about due to inordinate delay. In either case, if the delay results in significant unfairness to a party or in some other way brings the administration of justice into disrepute, that may be considered to be an abuse of process.

15Similarly, if the appellant can show that the Further Particulars will result in significant unfairness to the appellant or in some other way brings the administration of justice into disrepute, the Tribunal may strike the Further Particulars under s. 23(1) of the SPPA.

16Therefore, I find that the Tribunal has the authority to strike the Further Particulars if it is satisfied that the Further Particulars constitute an abuse of process or is procedurally unfair.

Should the Further Particulars be struck?

17In the present motion to strike, the appellant’s submissions fall into two broad categories. The appellant argues that:

1. The Further Particulars are an attempt to introduce improper and irrelevant evidence against the appellant in an attempt to prejudice the Tribunal against the appellant and which has no proper bearing on his entitlement to registration.

2. The allegations made in the Further Particulars are also the subject of a proceeding before the Human Rights Tribunal of Ontario (“HRTO”) and a civil action commenced by the appellant and that there is therefore a duplicity of proceedings by including those allegations for determination at the Tribunal.

18I will address each of these submissions below.

Improper and Irrelevant Evidence

19The appellant argues that, since the Notice of Proposal is based, in part, on the allegation that the past conduct of the applicant affords reasonable grounds for belief that he will not carry on business in accordance with law and with integrity and honesty, conduct which does not involve the “trade in real estate” is not relevant to whether there are such reasonable grounds for belief.

20The appellant says that the conduct alleged in the Further Particulars, including conduct relating to the treatment of individuals which occurred at a gala dinner and the termination of the appellant’s employee, have nothing to do with trade in real estate and are therefore irrelevant to the issues before the Tribunal. He says that the allegations are being made in the Further Particulars for the purpose of prejudicing the Tribunal against the appellant.

21As stated above, the issue on this motion is whether the appellant has demonstrated that the Further Particulars amount to an abuse of process in the sense that they will undermine procedural fairness or might bring the administration of justice into disrepute. The issue is not whether the allegations contained in the Further Particulars are relevant to the issue before the Tribunal but whether they are potentially relevant to those issues and whether the inclusion of those allegations would be procedurally unfair to the appellant such that their inclusion amounts to an abuse of process.

22I find that the allegations are potentially relevant to the issues to be determined by the Tribunal and that their inclusion in the Further Particulars will not undermine procedural fairness or bring the administration of justice into disrepute and does not amount to an abuse of process.

23The Court of Appeal for Ontario in Ontario (Alcohol and Gaming Commission of Ontario) v. 751809 Ontario Inc. (Famous Flesh Gordon’s), 2013 ONCA 157 (“Gordon’s”), has described the applicable standard of proof with respect to reasonable grounds for belief as follows:

The standard of proof provided by s. 6(2)(d) of the Act is that of “reasonable grounds for belief”… As applied to this case, s. 6(2)(d) of the Act required the Registrar simply to show that Mr. Barletta’s past or present conduct provides reasonable grounds for belief that he will not carry on business in accordance with law and integrity and honour. The Registrar does not have to go so far as to show that Mr. Barletta’s past or present conduct make it more likely than not that he will not carry on business as required.

24At the same time, the “reasonable grounds for belief” must be more than “mere suspicion and will be found to exist “where there is an objective basis for the belief which is based on compelling and credible information”: See Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para.114. Further, there must be a nexus between the appellant’s past conduct and his ability to conduct business as a motor vehicle salesperson serving the interests of the public: See CS v. Registrar, Real Estate and Business Brokers Act, 2002, 2019 ONSC 1652 at para. 32.

25There is no merit to the appellant’s argument that the conduct which forms the basis for the reasonable grounds for belief must directly involve the conduct of trade in real estate, only that the alleged conduct supports a reasonable ground for belief that the business will not be carried on as required. As the Court of Appeal for Ontario stated in Gordon’s (in the context of similar legislation relating to entitlement to a liquor licence):

The registrar is entitled to rely on any past or present conduct, whether in the operating of the licensed establishment or not, that affords reasonable grounds for belief that the individual will not carry on business as required by [the Act]. The words of the subsection, “past or present conduct”, are not limited to the operation of the business or in any other way. Their ordinary and grammatical meaning, in the context of legislation that is designed to ensure that licensed establishments will be operated by those who can be counted on to properly serve the public interest, requires that past and present conduct not be confined to the individual’s operation of the licensed establishment. (emphasis added)

26The Further Particulars themselves allege that the appellant:

i. engaged in workplace harassment against employees;

ii. interfered with a workplace investigation in relation to the harassment; and

iii. engaged in reprisals against the employee who was the victim of the harassment and made the workplace complaint.

27I do not accept the appellant’s submission that, since the purpose of the Act is the “control and regulation of the trade in real estate”, only conduct related to the trade in real estate is relevant to a person’s entitlement to registration under the Act. The appellant’s position is not reasonable and is not supported by the purpose and plain reading of the Act. As an illustration of the absurdity of the appellant’s position, since a person applying for registration for the first time has had no past conduct involving the trade in real estate, there would be no past conduct which could be sufficiently abhorrent as to disentitle that person to registration. That is clearly not the intent of the legislation.

28The appellant argues that the Registrar is not a regulator of fairness, honesty, unprofessional conduct, abuse, or harassment at large, but only as that conduct occurs in the course of trading in real estate. He therefore suggests that past conduct of that sort is irrelevant to a person’s entitlement to registration under the Act unless it is conduct in the course of trading in real estate. This position has no merit. In addition to the above, by considering a person’s past conduct beyond that which occurs in the trade of real estate, the Registrar is not attempting to regulate that conduct. Rather, it is considering that conduct in the context of making a determination as to whether a person who has engaged in it should be entitled to trade in real estate.

29In its materials, the appellant gives examples of misconduct he says would not be grounds for disentitlement to registration under the Act. I acknowledge that there is misconduct which may not be sufficiently serious or which may not amount to reasonable grounds for belief that the person will not carry on business in accordance with the law and with integrity and honesty, however that does not in itself assist the appellant. Clearly there are also some acts of misconduct, unrelated to the trade in real estate, which would disentitle the person to registration. The determination as to whether or not the conduct alleged by the Registrar disentitles the appellant to registration is a matter to be determined by the adjudicator after the hearing.

30While not deciding the issue, conduct of the nature alleged by the Registrar may be relevant to the determination of whether there are reasonable grounds for belief that the appellant will not carry on business as required. The inclusion of the allegations in the Further Particulars does not impair procedural fairness and cannot be considered to be an abuse of process. The appellant will have reasonable opportunity in the appeal process to address the allegations as well as to argue why such conduct, if proven, does not disentitle him to registration under the Act.

31The appellant has not satisfied me that the allegations made by the Registrar in the Further Particulars are improper or irrelevant or that they amount to an abuse of process.

Duplicity of Proceedings

32There is no merit to the appellant’s submission that, since the conduct referred to in the Further Particulars is the subject of proceedings at the Human Rights Tribunal and a civil action brought by the appellant, the Tribunal has no jurisdiction to consider the alleged conduct when determining whether that conduct affords reasonable grounds for belief that the appellant will not carry on business in accordance with the law and with integrity and honesty.

33The appellant says that, by dealing with the same facts in different proceedings, there is a danger of contrary findings and will unfairly require the appellant to litigate the same issues before different adjudicative bodies. This, he says, will be time-consuming and expensive.

34With respect to the concern with respect to contrary findings, it is significant to note that the issues and the standard of proof with respect to the ultimate questions before the Tribunal are likely to be different than the issues and standards of proof before the other adjudicative bodies. The issue before the Tribunal is whether there are reasonable grounds for belief that the appellant will not carry on business in accordance with law and with integrity and honesty. This is not a question that will be before the Human Rights Tribunal or the Superior Court. Moreover, the determination of the issue at the Tribunal will be on a “reasonable grounds for belief” standard and not a balance of probabilities standard as will be the case in the other Tribunals.

35Moreover, the remedy that the Registrar is seeking, and the purpose of seeking that remedy, at the Tribunal is different than at the HRTO and in court. The Registrar is seeking to suspend the appellant’s registration for the purpose of encouraging compliance with the requirements of a registrant under the Act and to protect the public interest in its interaction with registrants. Those are not the remedies or purposes which are the subject of hearings at the HRTO or in a civil action.

36There is no authority that I am aware of, and the appellant has presented no such authority, which stands for the proposition that the Registrar is precluded from raising allegations of misconduct in a Notice of Proposal which have also been raised in another proceeding before a different adjudicative body. Such a prohibition would potentially lead to the absurdity of a Registrar being unable to deny registration to a person based on potentially serious, disqualifying, misconduct simply because the applicant for registration commences an action in court dealing with the same factual matrix, or is alleged to have violated the human rights of a person.

37In some circumstances, re-litigating facts or issues which have been determined in another proceeding will be considered an abuse of process. For example, in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, the Supreme Court of Canada noted that:

Canadian courts have applied the doctrine of abuse of process to preclude re-litigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements), are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice.

38More recently, in The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, the Court of Appeal for Ontario stated that:

The abuse of process doctrine applies to prevent the attempt to impeach a judicial finding by re-litigation in a different forum…

The law thus seeks to avoid re-litigation primarily for two reasons: first, to prevent overlap and wasting judicial resources, and second, to avoid the risk of inconsistent findings.

39In the present case, there are no facts which have been determined in another proceeding, and the Tribunal is not attempting to re-litigate anything at this point. In fact, it may be that the other proceedings the appellant is involved in may never reach a hearing and those proceedings may never result in factual findings of any kind.

40Moreover, even if there are findings of fact made in another forum, that does not mean that the Tribunal is precluded from considering those facts when determining the issue in this appeal as the appellant submits. It may be that, by the time the hearing of this appeal takes place, the appellant can show some basis upon which the factual findings of another adjudicative body should not be re-litigated by this Tribunal, and that the findings of fact by the other adjudicative body should be accepted, not that they should be disregarded by this Tribunal.

41There is no basis to find that the inclusion of the subject allegations in the Further Particulars amounts to an abuse of process or that they cannot be relied on by the Registrar.

42I find that the appellant has failed to demonstrate that the inclusion in the Further Particulars of allegations of facts which are also alleged in other proceedings constitutes an abuse of the Tribunal’s process or that it will result in procedural unfairness.

Conclusion(s)

43I find that the Tribunal has the authority to strike the Further Particulars if it is satisfied that the Further Particulars constitute an abuse of process or would be procedurally unfair.

44I find that the Further Particulars do not amount to an abuse of process and are not procedurally unfair.

ORDER

45The appellant’s motion to strike the Further Particulars is dismissed.