CITATION: Gogek v. Real Estate Council of Ontario, 2020 ONSC 486
DIVISIONAL COURT FILE NO.: 076/19 DATE: 20200123
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. CORBETT, FAVREAU and GOMERY JJ.
BETWEEN:
BRIAN GOGEK
Brendan van Niejenhuis and Carlo Di Carlo, for the Applicant
Applicant
– and –
REAL ESTATE COUNCIL OF ONTARIO
Shane Smith and Jonathan Miller, for the Respondent
Respondent
HEARD at Toronto: January 23, 2020
GOMERY J. (Orally)
[1] The applicant Brian Gogek is a real estate agent. In July 2017, a disciplinary committee of the Real Estate Council of Ontario (RECO) concluded that he had engaged in conduct that violates the Council’s Code of Ethics. Mr. Gogek filed a notice of appeal to the RECO Appeals Committee but failed to perfect the appeal within the applicable deadline. He moved for an extension of time.
[2] On January 9, 2019, the Appeals Committee dismissed his motion and terminated his appeal.
[3] Mr. Gogek now seeks judicial review of the Appeals Committee’s decision. He contends that the Committee made unreasonable and unfounded findings of fact; failed to consider relevant factors in the exercise of its discretion; and misapprehended the weight to be given to its assessment of the merits of his appeal. Mr. Gogek also contends that the Appeals Committee had no jurisdiction to decide his motion because the Chairperson had presided at pre-hearing conferences in his case.
[4] The respondent RECO agrees that Mr. Gogek’s application should be granted, because the participation of the Chairperson in the Appeals Committee’s decision breached the Statutory Powers Procedure Act, the RECO Rules of Practice and Mr. Gogek’s right to procedural fairness.
[5] Mr. Gogek takes the position that, having set aside the Appeals Committee’s decision, this court ought to substitute its own decision granting him an extension of time to perfect his appeal. RECO says that the court does not have the discretion to make this order in a situation where, as here, a tribunal’s decision is being quashed due to a lack of procedural fairness. Its counsel has nonetheless conceded that it would be more appropriate for the Appeals Committee to deal with Mr. Gogek’s appeal on the merits, and says it will not contest his motion for an extension of time to a properly constituted Committee. He acknowledges that, in these circumstances, the Committee will grant Mr. Gogek’s motion.
[6] Given RECO’s position, the outcome on Mr. Gogek’s motion before a properly constituted Appeals Committee is inevitable. It could not reasonably conclude that an extension of time should be denied.
[7] Traditionally, where a court quashes a decision of an administrative tribunal under review, it remits the matter back to be dealt with by the tribunal. In its recent decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, however, the Supreme Court noted that:
Declining to remit a matter to the decision maker may be appropriate where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose… .
[8] In light of this, the court quashes the September 12, 2018 order of the Appeals Committee and grants Mr. Gogek’s motion to extend time to perfect his appeal.
D.L. CORBETT J.
[9] I have endorsed the Application Record (Application for Judicial Review) as follows: “This appeal is granted. The decision of the Appeal Committee is set aside and this court orders
that the time to perfect Mr. Gogek’s appeal is extended to 45 days from January 23, 2020. Mr. Gogek has succeeded and is entitled to his costs, fixed at $10,000 inclusive. Oral reasons this day by Gomery J.”
___________________________ GOMERY J.
I agree
D.L. CORBETT J.
I agree
FAVREAU J.
Date of Oral Reasons for Judgment: January 23, 2020
Date of Release: January 28, 2020
CITATION: Gogek v. Real Estate Council of Ontario, 2020 ONSC 486
DIVISIONAL COURT FILE NO.: 076/19 DATE: 20200123
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. CORBETT, FAVREAU and GOMERY JJ.
BETWEEN:
BRIAN GOGEK
Applicant
– and –
REAL ESTATE COUNCIL OF ONTARIO
Respondent
ORAL REASONS FOR JUDGMENT
GOMERY J.
Date of Oral Reasons for Judgment: January 23, 2020
Date of Release: January 28, 2020