Real Estate Law - ONCJ

Gurdeep Virk, an unregistered individual, and his wife Mokshi Virk, a registered real estate salesperson, were charged with trading in real estate without registration and furnishing false buyer's representation agreements.

The prosecution alleged that Gurdeep actively participated in open houses, contract negotiations, and provided client advice to three families (the Vandras, Kohlis, and Bardoliwalas) without being licensed.

Mokshi was charged as a party to Gurdeep's offence and separately for preparing fraudulent buyer's representation agreements.

The court found that Gurdeep engaged in conduct constituting trading in real estate without registration, and that Mokshi abetted this conduct.

However, the court acquitted Mokshi on the charges relating to fraudulent documents, finding insufficient evidence that the buyer's representation agreements were false documents.

The applicant sought to vary a probation order imposed following his guilty plea to breaching section 40(1)(c) of the Real Estate and Business Brokers Act, 2002.

The original probation order required restitution of $100,000 to Alternative Risk Services within two years.

The applicant requested an extension of time to complete the restitution payments, citing delays in obtaining approval from the Canada Revenue Agency for business loss claims and ongoing financial difficulties.

The respondent consented to the variation.

The court granted the variation, extending the probation period and establishing a payment schedule, and additionally imposed a free-standing restitution order pursuant to section 41(1) of the Real Estate and Business Brokers Act, 2002.

The defendant was charged with acting as a vendor of a new home without being registered pursuant to the Ontario New Home Warranties Plan Act.

The defendant purchased a lot, built a home, obtained an occupancy permit, and occupied the residence before selling it approximately one month later.

The central issue was whether the defendant occupied the home within the meaning and intent of the Act.

The court found that the defendant did occupy the home as his primary residence despite minimal furnishings and a short occupancy period.

The charge was dismissed.

Appellants appealed sentences imposed for trading in real estate without registration under the Real Estate and Business Brokers Act, 2002.

The trial court imposed fines of $2,500 per count on each defendant (totalling $20,000 each).

The appellants challenged the fines as harsh and excessive.

The appellate court found the trial court erred in principle by failing to inquire into the defendants' financial circumstances and imposed fines that were clearly excessive and disproportionate to the gravity of the offences.

The court allowed the appeals and imposed substantially reduced sentences.

The defendant was charged with selling a new home not previously occupied without being registered as a vendor under the Ontario New Home Warranties Plan Act.

The defendant purchased an incomplete home by power of sale in October 2009 and re-listed it for sale in February 2010 without ever occupying it.

The home was sold to the purchaser in April 2010 prior to obtaining an occupancy permit.

The court found that the defendant was a vendor within the meaning of the Act and should have been registered with Tarion.

The court rejected the defendant's argument that the home was exempt from the Act because the original builder had declared it exempt on the building permit application.

The court applied a contextual and purposive interpretation of the Act, emphasizing that the defendant never occupied the home and re-sold it prior to completion and obtaining an occupancy permit.