Re/Max West Realty Inc. o/a Farzad Andalibi v. Registrar, Trust in Real Estate Services Act, 2002, 2025 CanLII 3776

Licence Appeal Tribunal File Number: 15735 TRESA

In the matter of an appeal from a Notice of Proposal of the Registrar, Trust in Real Estate Services Act, 2002, S.O. 2002, Chapter 30, Schedule C to Revoke Registration

Between:

Re/Max West Realty Inc. o/a Farzad Andalibi

Appellant

and

Registrar, Trust in Real Estate Services Act, 2002

Respondent

DECISION AND ORDER ON MOTION TO STAY PENDING APPEAL

ADJUDICATOR:

Rebecca Hines, Member

APPEARANCES:

For the Appellant:

Mostafa Hosseini, Counsel

For the Respondent:

Shane Smith, Counsel

Held:

By Way of Written Submissions

OVERVIEW

1This is a motion brought by Re/Max West Realty Inc. o/a Farzad Andalibi (the “appellants”) requesting a stay of the Tribunal’s decision and order dated October 25, 2024 (the “Decision”), which ordered the Registrar, Trust in Real Estate Services Act, 2002 (the “respondent”) to carry out the Notice of Proposal (“NOP”) to revoke the registration of the appellants as a real estate broker and real estate brokerage.

2In its decision the Tribunal found that the appellants’ past conduct afforded reasonable grounds for belief that the appellants will not carry on business in accordance with the law and act with integrity and honesty, and that continuing the appellants’ registration was contrary to the public interest.

3On November 13, 2024, the appellants filed a request for reconsideration of that decision along with a motion seeking a stay of that decision pending reconsideration. The appellants also indicated that they will be filing a request for judicial review with the Divisional Court, the status of which is unknown.

ISSUE

4I have been asked to decide whether the appellants’ motion seeking a stay of the Tribunal’s decision pending a request for reconsideration and an appeal and/or application for judicial review should be granted.

RESULT

5For the reasons set out below, I decline the appellants’ request for a stay of the Tribunal’s decision dated October 25, 2024.

PROCEDURAL ISSUE

6In the appellant’s Notice of Motion, he sought to “stay the execution of the revocation” of his licence on the basis that he had submitted a request for reconsideration to the Tribunal. In his submissions in support of the motion, the appellant addressed only the merits of the reconsideration, with the implication being that as the reconsideration had merit, the decision should be stayed. The respondent filed their responding submissions on this basis. In its submissions the respondent argued that the appellant had failed to address the legal requirements to obtain a stay. The appellant then filed what was purported to be “amended” motion submissions on December 18, 2024, two days after the date of the written motion hearing had passed and beyond the deadline provided to file reply submissions. I note that the appellant’s amended motion submissions were in fact new submissions and raised legal arguments that should have been made at first instance. They were not proper reply, even if an extension of time for reply was provided. Further, the appellant was not granted permission by the Tribunal to file late reply or “amended” (new) motion submissions. For these reasons, I have not given weight to the appellant’s amended submissions. It would be procedurally unfair to the respondent because it had a right to know the case it had to meet. Further, it is inappropriate for a party to file new submissions after the date the hearing has concluded. In any event, however, my decision would have been the same even had the appellant made his “amended” submissions from the outset.

ANALYSIS

7The appellant’s request for a stay of the Tribunal’s decision is denied.

8Section 14(9) of the Trust in Real Estate Services Act, 2002, S.O. 2002, c. 30, Sched C. (the “Act”) provides that even if a registrant appeals an order of the Tribunal under s. 11 of the Licence Appeal Tribunal Act, 1999, the order takes effect immediately, but the Tribunal may grant a stay until the disposition of the appeal. This provision applies in the event of a statutory appeal, rather than a request for reconsideration, as referenced in the appellant’s Notice of Motion. The appellant has also stated he will apply for judicial review, but it is possible that this was intended to refer to an appeal. No originating document was filed as evidence. The parties have not addressed my jurisdiction to make the order sought, but as set out below I find that the appellant has not met his onus to show that a stay is justified in any case.

9The appellant argues that the motion should be granted because the Tribunal breached procedural fairness and made an error of fact and law such that the Tribunal would have reached a different decision had the error not been made. The appellant did not rely upon any evidence or case law in support of their position.

10The respondent submits that the appellants have not met their onus in proving that a stay should be granted. It maintains that the legal test for a stay has been addressed in this Tribunal’s decisions in Jalili and Platinum Cars Inc. v. Registrar, Motor Vehicle Dealers Act, 2002, 2024 CanLII 20667 (ON LAT), and Amarjot Lamba o/a Whitehill Realty International Inc. v. Registrar, Real Estate and Business Brokers Act, 2002, 2022 CanLII 45261 (ON LAT). These decisions highlight that the applicable test for a motion for a stay was set out by the Supreme Court of Canada in RJR-MacDonald v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 (“RJR”). In summary, the party seeking the stay must prove on a balance of probabilities that:

a. The appeal raises a serious issue;

b. If the stay is not granted, the party will suffer irreparable harm; and

c. The balance of convenience favours granting the stay.

11The Supreme Court of Canada has made it clear that all three factors are to be considered and the significance of one factor in a particular case may override the significance of another factor. Considering all factors, the question is whether it is in the interests of justice to grant a stay. Further, the onus is on the party seeking a stay to establish the grounds to justify a stay on a balance of probabilities.

12I find the appellant has not met their onus in proving on a balance of probabilities that a stay should be granted for the following reasons.

13First, I find that the appellant’s submissions did not address any of the above three criteria set out by the court in RJR. For example: no submissions were made regarding how and why the grounds support a stay; no evidence was relied upon to support that the appellants will suffer irreparable harm if a stay is not granted; nor did the appellants address that the balance of convenience favours a stay. While I have not given weight to the “amended” submissions that were filed without permission, to the extent the appellant addressed harm and the balance of convenience in them, he included no supporting evidence. While he asserted that there could be no harm to the respondent if a stay were granted, continuing an appellant’s registration in the face of such serious findings could be a source of harm to the public interest and public confidence in regulation.

14Second, I find the appellant’s submissions made vague allegations that the Tribunal breached procedural fairness in its decision because the appellants witnesses were not responsive and did not attend the hearing. Further, the appellants submit that the Tribunal heard false testimony from witnesses (without any evidence of same) and assigned inappropriate weight to this evidence. I note that the issue of whether the appellants’ request for reconsideration should be granted is not before me. For the purpose of this motion, I am not persuaded by the appellants’ submissions that the appeal raises a serious issue to warrant a stay.

15I conclude that the appellant has not met their onus in proving on a balance of probabilities that a stay of the Tribunal’s decision should be granted.

I ORDER AS FOLLOWS:

16The appellant’s request for a stay of the Tribunal’s decision dated October 25, 2024, is denied.