Lapcevich v. Registrar, Real Estate & Business Brokers Act
CITATION: Lapcevich v. Registrar, Real Estate & Business Brokers Act 2010 ONSC 1145
DIVISIONAL COURT FILE NO.: 425/08
DATE: 20100218
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
GREER, LEDERMAN AND SACHS JJ.
BETWEEN:
NICHOLAS LAPCEVICH and METRO (HAMILTON) REALTY LIMITED 2000 INC.
Applicants
(Respondents in Appeal)
– and –
REGISTRAR, REAL ESTATE AND BUSINESS BROKERS ACT, 2002
Respondent
(Appellant)
COUNSEL:
A. Douglas Burns, for the Applicant (Respondents in Appeal)
Christopher D. Bredt and Cara Faith Zwibel, for the Respondent (Appellant)
HEARD at Toronto: February 18, 2010
ORAL REASONS FOR JUDGMENT
LEDERMAN J. (orally)
[1] We agree with the appellant, Registrar, that the Licence Appeal Tribunal ("LAT") erred in its approach to the statutory framework and exceeded its jurisdiction.
[2] It did not make the necessary threshold determinations, as required by s.10(1)(a) of the Real Estate & Business Brokers Act, 2002, S.O. 2002, c.30, that either:
(i) having regard to the respondent's financial position, the respondent cannot reasonably be expected to be financially responsible in the conduct of business, or
(ii) the respondent's past conduct afforded reasonable grounds for belief that he would not carry on business in accordance with law and with integrity and honesty.
[3] In the absence of such determinations, there was no jurisdiction in LAT to order the revocation of the respondents' registrations as a broker or brokerage or impose conditions (see Ontario (Registrar of Real Estate & Business Brokers v. Vogelsberg [1994] O.J. No. 226 (Div. Ct.)).
[4] Absent a threshold finding that one of the provisions of s.10 applies, LAT is without authority to order any particular remedy and its jurisdiction is limited to rejecting the Registrar's Proposal.
[5] Moreover, the only registrations that were before LAT were the respondent Lapcevich's registration as a broker and the respondent MHR 2000's registration as a brokerage. LAT exceeded its jurisdiction in ordering that the Registrar register the respondent Lapcevich as a real estate salesperson when that issue was not before it.
[6] The appeal is therefore allowed. The LAT's order is set aside and this matter is remitted back to the LAT, differently constituted, for a rehearing to consider the Registrar's Proposal.
[7] For the benefit of LAT on the rehearing, we would point out that in view of the Supreme Court of Canada's decision in F.H. v. McDougall 2008 SCC 53, [2008] 3 S.C.R 41, there is now only one civil standard of proof and that is on the balance of probabilities.
[8] We would also re-emphasize what was stated by this Court in Vogelsberg, supra, that interfering with trust accounts is a wrongful act, in and of itself, and the fact that the Tribunal may be of the view that no one was hurt is irrelevant and such an approach would amount to serious error.
GREER J.
[9] Both parties agree as to the nature of the problems arising out of the Tribunal's decision and both originally appealed. We are of the view that this is a case for no costs given that the errors committed were the errors of the Tribunal. Both parties filed appeals on the basis of those errors. Given that the matter has been sent back for a rehearing by a newly constituted Tribunal, we are of the view that it is appropriate that there be no order as to costs on the appeal. I have endorsed the Appeal Book: "The appeal is allowed for oral reasons delivered. No costs."
LEDERMAN J.
GREER J.
SACHS J.
Date of Reasons for Judgment: February 18, 2010
Date of Release: March 5, 2010
CITATION: Lapcevich v. Registrar, Real Estate & Business Brokers Act 2010 ONSC 1145
DIVISIONAL COURT FILE NO.: 425/08
DATE: 20100218
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
GREER, LEDERMAN AND SACHS JJ.
BETWEEN:
NICHOLAS LAPCEVICH and METRO (HAMILTON) REALTY LIMITED 2000 INC.
Applicants
(Respondents in Appeal)
– and –
REGISTRAR, REAL ESTATE AND BUSINESS BROKERS ACT, 2002
Respondent
(Appellant)
ORAL REASONS FOR JUDGMENT
LEDERMAN J.
Date of Reasons for Judgment: February 18, 2010
Date of Release: March 5, 2010