CITATION: Hodge v. Registrar Real Estate and Business Brokers Act, 2022 ONSC 7206
DIVISIONAL COURT FILE NO.: 5/20
DATE: 20221221
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LeMay, Doyle and Leiper JJ.
BETWEEN:
RYAN HODGE
Appellant
– and –
REGISTRAR REAL ESTATE AND BUSINESS BROKERS ACT
Respondent
Ondrej Sabo, for the Appellant
Shane Smith, for the Respondent
HEARD at London: November 24, 2022
Written submissions: December 15, 2022
REASONS FOR DECISION
Leiper, J.
PART I INTRODUCTION AND OVERVIEW
[1] This is an appeal from a decision of the Licence Appeal Tribunal (the “LAT”) directing that the Registrar suspend the registration of the Appellant for three months: See Ryan Hodge v. Registrar, Real Estate and Business Brokers Act, 2002, 2020 ONLAT 12027 REBBA
[2] The Appellant is a real estate broker in Ontario. Since 2013, he has been regulated by the Real Estate Council of Ontario (“RECO”) pursuant to the Real Estate and Business Brokers Act, 2020 (“REBBA”).
[3] On April 8, 2019, the Registrar issued a Notice of Proposal to suspend the registration of the Appellant on two grounds:
i) under s 10(1)(a)(iii) of the Act, because the Appellant had provided false statements in applications for registration; and
ii) under s. 10(1)(a)(ii) of the Act, because the Appellant’s past conduct afforded reasonable grounds for belief that he will not carry on business in accordance with law and with honesty and integrity.
[4] The Appellant appealed the Notice of Proposal issued by the Registrar to the LAT.
[5] The LAT found that the Appellant had provided false statements in applications for registration that he had filed with the Registrar in 2015 and 2017. It also found that he engaged in conduct that provided reasonable grounds to believe he would not carry on business in accordance with the law, and with integrity and honesty. The LAT suspended the Appellant’s registration for 3 months.
[6] The Appellant submits that his appeal should be allowed because he plead guilty in the Ontario Court of Justice for the conduct underlying the regulatory proceedings, and he received a fine of $8400 for that conduct. In his view, the subsequent Notice of Proposal of the Registrar amounts to “double jeopardy”. He also submits that the suspension was not supported by the evidence and the LAT erred in law in concluding that there was sufficient evidence to support a suspension penalty.
[7] The Appellant raised an issue of procedural fairness. The Notice of Proposal particularized the conduct in question as falsely stating that he had completed certain continuing education courses, while having had staff compete the courses on his behalf. At the hearing before the LAT, the Respondent tendered evidence that the Appellant had used insulting, degrading language used against an employee and when that employee complained, of using his power of ownership of the brokerage to terminate the workplace investigation into his conduct (the “workplace conduct evidence”). The Respondent objected to this evidence at the LAT hearing. In this Court, he argues that the LAT improperly relied on this evidence in its final decision.
[8] The panel sought further written submissions on the procedural fairness issue. Having reviewed and considered those submissions, I find that this issue is dispositive of this appeal. The appeal must be allowed, for the reasons below.
BACKGROUND
The Proceedings Before the LAT
[9] The LAT conducted a hearing on November 18-20, 2019. The Notice of Hearing did not include the workplace conduct evidence. Counsel for the Registrar did not raise the workplace conduct evidence in the opening statements to the LAT. The particulars of the Notice referred only to his conduct in relation to falsely stating that he had completed certain on-line courses, and that he was not engaged in any other business.
[10] At the hearing, and over the objection of the Appellant, the LAT admitted the workplace conduct evidence. This included evidence of a human rights complaint into the Appellant’s workplace conduct and evidence from his former employee about his use of profane, insulting language toward her and another employee. The LAT also received evidence that the Appellant terminated a subsequent workplace investigation into the complaint about his treatment of his employees immediately after becoming the sole owner of the Brokerage.
[11] In closing submissions, the Registrar relied on the workplace conduct evidence and submitted that the LAT take this into account in assessing his past conduct. In final submissions, the Appellant pointed out that he had not received notice that this misconduct would be forming part of the case against him.
[12] In its decision on January 13, 2020 (the “Decision”) the LAT found the Registrar’s grounds for suspension were founded on evidence that:
a. The Appellant made false statements on four (4) occasions in applications he had submitted to the Registrar for renewal of his registration, and
b. The Appellant treated his employees inappropriately, using profane, insulting language, and cancelling a workplace harassment investigation in his workplace.
[13] The LAT found that in his applications for renewal for the years 2015 and 2017, he had falsely declared that he had completed certain education courses, when in fact his office administrator had completed the courses. It also found that he falsely stated in his application for renewal for 2017 that he was not engaged in any other business and was not an officer or director of any other business. In fact, in 2015, he had incorporated another business, known as “Ryan Hodge Coaching and Consulting Inc.” with the Appellant acting as its sole officer and director.
[14] The LAT found that the Appellant had used “appalling” language toward an employee at a workplace event in 2018, and that on becoming the sole owner of the brokerage, he had cancelled a workplace harassment investigation initiated by the employee who had been the target of that appalling language.
PART II – STANDARD OF REVIEW
[15] Under s. 11(1) of the Licence Appeal Tribunal Act, decisions of the LAT are subject to a right of appeal, without leave, to the Divisional Court on a question of law.
[16] The appellate standard of review applies to this appeal. The standard of correctness applies for questions of law: see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 33, 36-52; Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, at para. 29.
[17] Issues of procedural fairness in the context of a statutory appeal are subject to appellate standards of review: Law Society of Saskatchewan v. Abrametz at para. 27. Abrametz was a case that raised issues of abuse of process, a component of procedural fairness. The Supreme Court discussed the relationship between abuse of process, fair play, and the relationship between administrative decisionmakers, those affected by the decisions and society. Questions of abuse of process are questions of law, and thus, we apply a standard of correctness to the question of procedural fairness in the context of this statutory appeal: See Abrametz at paras. 30-36.
PART III- ISSUES ON THE APPEAL
[18] The Appellant raised three issues on the application:
a. Did the LAT deny the Appellant procedural fairness?
b. Did the LAT unreasonably impose a three-month suspension?
c. Did the LAT err in dismissing the Appellant’s claim of “double jeopardy”?
PART IV – ANALYSIS OF THE ISSUES
Did the LAT deny the Appellant procedural fairness?
[17] A person who will be affected by a decision of decisionmaker is entitled to notice of the case to be met. This is fundamental fairness. Procedural fairness exists to “ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision maker”: BCM International Canada Inc. v. Canada (Employment, Workforce Development and Labour), 2021 FC 687 at para. 22; Baker at paras. 22-28.
[18] In follow-up written submissions, the Registrar conceded that the Appellant did not receive notice that the workplace misconduct allegations would form part of the case against him. The Registrar also concedes that no amendment to the Notice was provided, nor did the LAT consider any means by which to mitigate any prejudice to the Appellant arising from the lack of notice to him that it would consider and rely on the workplace conduct evidence.
[19] However, the Registrar submits that the LAT’s decision did not rely on this evidence, and that it should be considered “superfluous” to its findings on penalty, which referred only to the false statements and matters that were particularized in the Notice. On this basis, the LAT submits that this appeal should be dismissed.
[20] I disagree. The reasons of the LAT specifically refer to the workplace conduct evidence in its analysis. The LAT found the “past conduct” of the Appellant affords reasonable grounds for belief that he will not carry on business in accordance with the law, integrity, and honesty. There is nothing in the reasons to suggest that the LAT disregarded this evidence. Character evidence called by the Appellant was given no persuasive weight in part because none of the character witnesses had worked with the Appellant (para 22 of the decision). The LAT did not discuss whether or how it disabused itself of the “appalling” language evidence in deciding to give no weight to the character evidence. Further, the LAT relied on the workplace conduct evidence as new evidence that supported dismissing the Appellant’s “double jeopardy” argument. Without commenting on the merits of that argument, clearly the LAT treated the workplace conduct evidence as part of the substantive case against the Appellant.
[21] The LAT’s reasons includes the workplace misconduct evidence in its analysis of the evidence before it as a whole. The analysis is divided into two issues: “False Statements” and “Not Carry on Business in Accordance with the Law, Integrity and Honesty”. Under the latter section, in paragraphs 17 and 18, the LAT writes this about the workplace misconduct evidence:
Hodge admitted in a September 27, 2018 recorded interview with Jo Ann Swain, investigator for RECO, to using profanities, insults and language that I find appalling, but which will not be reproduced in this decision, towards Ms. McKnight and another employee of the Realty Firm at a February 10, 2018 workplace event; and
Hodge confirmed in the September 27, 2018 interview that an investigation arising from an internal complaint filed by Ms. McKnight regarding the February 10, 2018 workplace event was cancelled immediately upon Hodge becoming the sole owner and broker of record of the Realty Firm. Hodge confirmed to Ms. Swain that there was no disposition of Ms. McKnight’s internal complaint.
Angela Volpe, Manager of Registration with RECO, testified that RECO relies upon self-reporting from applicants and registrants. Ms. Volpe expressed RECO’s concern over Hodge’s lack of disclosure of his coaching business along with his failure to comply with the nominal requirement over a two-year period of completing education courses which, she stated, speaks to someone’s honesty and integrity at its very core. I agree. As I have found that Hodge has in four instances provided a false statement to RECO and has requested three persons to complete his continuing education courses for him, I find that the Registrar has proven that Hodge’s past conduct affords reasonable grounds for belief that he will not carry on business in accordance with law and with integrity and honesty. In addition, the use of extremely inappropriate language by Hodge towards employees of the Realty Firm and the cancellation of an internal workplace investigation with no determination affords even more weight to my conclusion that the Registrar had reasonable grounds for belief that Hodge will not carry on business in accordance with law and with integrity and honesty. [Emphasis added.]
[22] I conclude that the LAT’s treatment of the workplace misconduct evidence reveals that it took this evidence into account, accorded it “added weight,” and found that it supported a finding that the Appellant’s past conduct affords reasonable grounds for belief that Appellant will not “carry on business in accordance with the law, integrity and honesty.” This was one of the two grounds for which the Appellant’s registration was suspended.
[23] The Registrar submits that this evidence was not referred to in the portion of the LAT reasons discussing penalty, and thus despite the lack of procedural fairness, this made no difference to the outcome and is not a reviewable error. In such cases, it is open to the court on review to dismiss an appeal: See Al-Kazely v. v. College of Physicians and Surgeons of Ontario, 2022 ONSC 44 (Div. Ct.), at paragraph 48; Dr. Rajiv Maini v. HPARB et al., 2022 ONSC 3326, at para. 30.
[24] The penalty portion of the reasons do not refer to the weight or impact of the workplace misconduct on the decision to suspend the Appellant’s registration for three months. However, the reasons for penalty did not remove these aggravating facts from the penalty calculation. This was not minor misconduct: the LAT characterized it as having weighed in the decision. It is objectively serious conduct. In all the circumstances, I cannot rule out that the LAT did not consider the workplace conduct evidence in assessing the appropriate penalty which it imposed on the Appellant.
[25] On this basis alone, I would quash the appeal and remit the matter to the LAT for a new hearing. On the question of whether the LAT decision to suspend the Appellant’s registration for three months, that question cannot be adequately assessed without knowing the role the workplace misconduct played in the penalty. That will fall to be determined after a procedurally fair hearing into the allegations for which the Appellant had notice.
[26] As for the double jeopardy issue, it is not necessary to decide on that question on this record. The Appellant may raise any issues concerning the legal impact of the parallel proceedings before Ontario Court of Justice at the time of the re-hearing before the LAT.
[27] The Appellant submitted, without providing any legislative authority, that our order should require the Registrar to proceed without amending the Notice of Hearing at any re-hearing. We leave the question of any amendment sought by the Registrar, if it arises, to the LAT on the re-hearing.
PART V – CONCLUSION AND COSTS
[30] The appeal is allowed. A re-hearing into this matter should be convened before a differently composed panel of the LAT.
[31] The parties shall submit their submissions as to costs (3 pages maximum, exclusive of caselaw or attachments) with the Appellant serving and filing his submissions on or before December 28, 2022 the Respondent on or before January 5, 2023 with a brief right of reply (1 page maximum) given to the Appellant to be served and filed on or before January 9, 2023.
Leiper J.
I agree. LeMay, J.
I agree. Doyle, J.
Date: December 21, 2022
CITATION: Hodge v. Registrar Real Estate and Business Brokers Act, 2022 ONSC 7206
DIVISIONAL COURT FILE NO.: 5/20
DATE: 20221221
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LeMay, Doyle and Leiper JJ.
BETWEEN:
RYAN HODGE
- and –
REGISTRAR REAL ESTATE AND BUSINESS BROKERS ACT
REASONS FOR decision
Released: December 21, 2022