CITATION: Day v. Real Estate Council of Ontario, 2023 ONSC 4233

DIVISIONAL COURT FILE NO.: 984/21

DATE: 20230719

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: CAROL DAY, Applicant

AND:

REAL ESTATE COUNCIL OF ONTARIO, Respondent

BEFORE: D.L. Corbett, O’Brien and Leiper JJ.

COUNSEL: Ms Day, self-represented Shane Smith, for the Respondent

HEARD in Toronto: July 11, 2023, videoconference

ENDORSEMENT

The court:

[1] The applicant seeks judicial review of a decision of the Appeals Committee of the respondent, established under the Real Estate and Business Brokers Act, 2002. The Appeals Committee upheld a discipline decision finding the applicant breached the respondent’s Code of Ethics by failing to disclose to another registrant (a) a competing offer for a property by another buyer, and (b) that the applicant was in a multiple representation situation where she was representing both the seller and another potential buyer.

[2] The applicant’s position was that she did not fail to make the required disclosure – she made it – and the timing of that disclosure (after the seller had agreed to sell the property to the undisclosed buyer) was a consequence of unfortunate timing and circumstances, and the seller having made a firm decision to sell locally rather than to someone from outside the region. She argues before us that the Appeals Committee failed to consider fairly the difficult circumstances she was facing, and their disregard for these circumstances is reflected in their failure to correct the unreasonable finding below that she was motivated by greed (to obtain a commission on both sides of the transaction).

[3] In our view, the underlying facts are straightforward. There was a competing offer and the applicant failed to make timely disclosure of it. The applicant was in a multiple representation situation, and she failed to disclose this as well.

[4] There is some merit to the applicant’s argument that the record did not support impugning her motives on a strictly financial basis. While it is true that she was representing both sides in the transaction that was agreed, she would likely have earned as much, or more, had there been competition between offerors, and, in any event, the commission on this transaction was modest.

[5] If a more nuanced approach had been taken to the assessment of the applicant’s motives, it would have been open to find that she breached the Code because of her desire to not offend her client, the seller. In our view, such a finding would not have greatly assisted the applicant on the issue of penalty. As a professional, the applicant was required to follow the Code of Ethics in the face of pressure to the contrary from her client: such is the nature of professionalism.

[6] In our view, the penalty would not be affected by recasting the findings below concerning the applicant’s motives. Whatever may have been motivating the applicant, her conduct, viewed objectively, brought her profession into discredit.

[7] In the result, the decision below is reasonable both as to liability and penalty. The application for judicial review is dismissed. As agreed by the parties, there shall be no order as to costs.

“D.L. Corbett J.”

“O’Brien J.”

“Leiper J.”

Date of Release: July 19, 2023