RECONSIDERATION DECISION
Before: Avril A. Farlam, Vice-Chair
Licence Appeal Tribunal File Number: 15735/TRESA
Case Name: Farzad Andalibi also known as Alan Andalibi v. Registrar, Trust in Real Estate Services Act, 2002
Written Submissions by:
For the Appellant: Mostafa Hosseini, Counsel
For the Respondent: Shane Smith, Counsel
OVERVIEW
1On November 14, 2024, the appellant requested reconsideration of the Tribunal’s decision released October 25, 2024 (“Decision”).
2In the Decision the Tribunal directed the Registrar, Trust in Real Estate Services Act, 2002 (“respondent”) to carry out the February 15, 2024 Notice of Proposal to Revoke Registration as a broker (“NOP”) issued under the Trust in Real Estate Services Act, 2002, S.O. 2002, Chapter 30, Schedule C (the “Act”).
3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or
c) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
4The appellant relies on the grounds set out in Rules 18.2(a) and 18.2(b).
5The respondent submits that a review of the issues raised by the appellant does not disclose either a breach of procedural fairness or any significant error of law or fact.
RESULT
6The appellant’s request for reconsideration is dismissed.
ANALYSIS
Issue 1 - Rule 18.2(a) – The Tribunal did not act outside its jurisdiction and there is no material breach of procedural fairness
7I find that the appellant has not met the ground in rule 18.2(a) for the following reasons.
8The appellant made no specific submissions that I acted outside the jurisdiction of the Tribunal.
9Although the appellant submits that he was denied procedural fairness because the appellant’s witnesses were not being responsive and not attending the hearing. It is up to the appellant to arrange for the attendance of any witnesses he wishes to testify. Here, the appellant was represented by counsel who knew or should have known the procedure for compelling the attendance of a witness by way of a summons under Rule 8 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). Failure of the appellant to have his witness(es) attend the hearing or to be “responsive” to him, is not a material breach of procedural fairness committed by the Tribunal, or due to any act of the Tribunal at all.
10At no time did the appellant request any relief regarding the witness(es) the appellant did not call at the hearing except to request that the affidavit of Saeid Rostamibookani and Zahra Abedi made August 29, 2024 be admitted into evidence. Although the appellant produced this affidavit late, outside the deadline for disclosure set by the Tribunal in its May 17, 2024 Case Conference Report and Order, I allowed it to be admitted into evidence. I considered it but, in the end, gave it no weight for the reasons set out in paragraph 96 of the Decision. This does not constitute a material breach of procedural fairness.
11The appellant submits that he was denied procedural fairness because the evidence of his witness Mr. Colatosti regarding “common practices” was not granted “any weight”. The appellant’s position, however, is contrary to what is stated in the Decision. In paragraph 95 of the Decision, I found that the “weight of Mr. Colatosti’s evidence is that the appellant fell short of his brokerage’s best practices and policies by releasing the Fake APS to a non-registrant”. This does not constitute a material breach of procedural fairness.
12Although the appellant submits that the respondent failed to consider the age of the appellant’s purported client for whom he prepared the Fake APS, paragraphs 14(g), 22, 39, 63, 64, 66, 73, 75, 76, 91, and 92 of the Decision note that the appellant’s purported client is the mother of an adult son Saeid Rostamibookani. In paragraph 66 I stated that the appellant described her as “old”, and in paragraph 73 as “elderly and vulnerable”. Her exact age is not relevant. This does not constitute a material breach of procedural fairness.
13Although the appellant submits that his statements were given while “under a lot of pressure and stress from the investigators, and were twisted to serve the position of the respondent’s position”, this does not establish a material breach of procedural fairness. The appellant was given ample opportunity at the hearing to explain his prior statements and to give his testimony generally. The fact that the Decision was not in his favour does not establish a material breach of procedural fairness.
14Although the appellant submits that Ms. Alam’s testimony is “false”, I found otherwise in the Decision for the reasons stated in paragraphs 31, 99, 104, 106 and 107. This argument was advanced at the hearing and was not successful. Reconsideration is not an opportunity to re-argue the case in a different way.
15There is no basis in the Decision to support the appellant’s submission that Ms. Alam’s testimony was given the weight of “expert testimony”, and that Ms. Alam’s report to the Real Estate Council of Ontario (“RECO”) was in “bad faith”, and was “fabricated”. Ms. Alam was not put forward as an expert witness, was not qualified as an expert witness, and did not testify as an expert witness. That I found her testimony credible does not constitute a material breach of procedural fairness.
16There is no basis in the Decision to support the appellant’s submission that Ms. Burkholder lied about the appellant, attempted to “force” a confession out of Zahra and Saeid, lied to them and generally conducted a flawed investigation. The appellant had ample opportunity to attempt to establish this with evidence at the hearing, yet failed to do so.
Issue 2 – Rule 18.2(b) - There was no error of fact or law that would have impacted the Decision had the error not been made
17I find that the appellant has not met the ground in rule 18.2(b) for the following reasons.
18The appellant made no specific submissions that the Decision contains an error of fact or law that would have impacted the Decision had the error not been made.
19The appellant has made submissions about the parts of the Decision that he disagrees with and attempts to re-argue the appeal in a different way.
20Although the appellant appears to challenge the weight I assigned to the evidence, the weight to be given to evidence is a matter for the adjudicator’s discretion and, here, is set out in paragraphs 95 of the Decision with respect to the evidence of Mr. Colatosti.
21On reconsideration, there is no evidence that the weighing of evidence was not appropriately done, only that the appellant disagrees with it. The fact that the appellant disagrees with the weight assigned to the evidence does not establish that an error was made.
22Although the appellant submits that I failed to take into consideration “the fact that the appellant learned from this incident and will be more cautious in handling transactions in the future”, the appropriateness of the sanction was considered, including the appellant’s submissions on alternate sanction, in paragraphs 112 to 116 sanction but found them to be outweighed by the legislated standard.
23This is consistent with the Ontario Court of Appeal’s direction that “The issue is not simply one of sanction, but rather one of the safety of the public and the appellant’s dedication in that regard” in Muscillo Transport Ltd. v. Registrar of Motor Vehicles, 1998 CanLII 2672 (ON CA), para 4, and that of the Divisional Court in 2017210 Ontario Inc. v. Registrar of Motor Vehicles, 2022 ONSC 6939, paras. 32 and 33. Here, the Act expressly allows revocation as an outcome.
CONCLUSION
24Dissatisfaction with the decision is not a ground of reconsideration. The Tribunal has long recognized that a reconsideration is not an opportunity to reargue one’s case, 1 nor is it a hearing de novo or an appeal.2
25The appellant has failed to establish either of the two grounds advanced on reconsideration.
26For the reasons noted above, I dismiss the appellant’s request for reconsideration of the decision.
Avril A. Farlam
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: January 21, 2025
Footnotes
- N.D. v. Aviva Insurance Company, 2021 CanLII 64232; N.R. v. Unifund Assurance Company, 2020 CanLII 101753; Gore v.Rusk, 2022 ONSC 2893 at para. 50 (Div. Ct).
- Warren v. Licence Appeal Tribunal, 2022 ONSC 3741 at para. 22 (Div. Ct.).