CITATION: Deeb v. Real Estate Council of Ontario, 2025 ONSC 1100
DIVISIONAL COURT FILE NO.: 664/23
DATE: 20250219
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, McCarthy and Myers JJ.
BETWEEN:
Nina Deeb
Applicant
– and –
Real Estate Council of Ontario
Respondent
Lorne Honickman and Laura Brown, for the Applicant
Shane Smith, for the Respondent
HEARD at Toronto: October 1, 2024
H. Sachs J.
Overview
[1] This is a judicial review application of the decision of the Appeals Committee of the Real Estate Council of Ontario (“RECO”), which upheld the findings of the Discipline Committee of RECO that Ms. Deeb breached RECO’s Code of Ethics, O Reg. 580/05 (the “Code”) and ordered Ms. Deeb to pay a fine of $14,000 and costs of $6,000.
[2] The RECO proceedings consisted of an abuse of process motion, a hearing on the merits, a penalty hearing and an appeal. They arose out of a complaint by two of Ms. Deeb’s clients who alleged that Ms. Deeb led them to believe that they were competing in a multiple‑offer situation when they made an offer on the home they purchased. In fact, Ms. Deeb’s clients made the only offer.
[3] In this application, Ms. Deeb alleges that the RECO proceedings were “laden with procedural unfairness” and that the Discipline Committee and Appeals Committee completely disregarded or misapprehended critical evidence in making the decisions they did. As a result, their decisions were unreasonable.
[4] For the reasons that follow, I would dismiss the application.
Background
[5] Ms. Deeb was a real estate agent working on behalf of husband-and-wife clients. The clients sought to purchase a property that was listed at $840,000. Ms. Deeb showed the couple records of comparable transactions, and they submitted an offer at $890,000. Both clients state that they submitted an offer significantly above the asking price because they thought there were multiple offers.
[6] In addition to acting for the purchasers Ms. Deeb was also the agent for the vendors.
[7] After the clients’ offer was accepted, Ms. Deeb asked the clients to sign a Form 127 acknowledgement that they were submitting the only offer on the property. It was at this time that the clients state they learned that there were no competing offers.
Abuse of Process Motion
[8] Ms. Deeb brought a motion to stay the proceedings on the basis that they constituted an abuse of process. The Discipline Committee rejected Ms. Deeb’s motion.
[9] Ms. Deeb’s motion was based on six factors, each of which the Discipline Committee rejected:
(a) Ms. Deeb asserted the proceedings were significantly delayed. The Discipline Committee concluded that the proceedings had not been significantly delayed. Moreover, a significant portion of the delay was attributable to the unavailability of Ms. Deeb’s counsel.
(b) Ms. Deeb asserted that RECO had failed to file will-say statements for its witnesses 30 days before the hearing. RECO was granted an adjournment that would allow it to call those witnesses at the hearing. The Discipline Committee found RECO did not intentionally misuse the process and was merely careless or sloppy. The Panel also determined that it could not sit in judgment of its own procedural decisions.
(c) Ms. Deeb submitted that RECO created a patently untrue allegation not found in the complaint. The Discipline Committee found that this is not a proper factor in an abuse of process motion. Allegations are to be considered on their merits after reviewing the evidence.
(d) Ms. Deeb alleged RECO doctored materials to be relied on at the hearing. The Discipline Committee found there was no substance to this allegation. RECO simply placed the materials in the wrong tab and acknowledged this mistake in writing.
(e) Ms. Deeb asserted RECO failed to post public notice of the hearing on its website. The Discipline Committee concluded that the failure to post notice of the hearing was an administrative oversight that had no rational connection to the actual conduct of the hearing, caused no prejudice to Ms. Deeb and did not affect the justice of the proceedings.
(f) Ms. Deeb asserted the Discipline Committee’s Independent Legal Counsel exceeded her permissible role. The Discipline Committee determined the Independent Legal Counsel never usurped the role of the panel, which acted within its discretion.
[10] Finally, the Discipline Committee concluded that there was no bad faith present in this case. The absence of bad faith was fatal to Ms. Deeb’s abuse of process motion.
The Discipline Committee’s Merits Decision
[11] After the clients complained to RECO about Ms. Deeb, she was subject to discipline proceedings. She faced allegations that she breached:
(a) Section 4 of the Code, by failing to promote and respect her clients’ best interests,
(b) Section 5 of the Code, by failing to provide conscientious service and demonstrate reasonable knowledge, skill, judgment and competence, and
(c) Section 37(1) of the Code, by knowingly making an inaccurate representation in respect of a trade in real estate.
[12] At the close of RECO’s case, Ms. Deeb made a motion for a non-suit. The Discipline Committee dismissed this motion. After Ms. Deeb presented her case, the Discipline Committee concluded that Ms. Deeb had breached ss. 4, 5 and 37(1) as alleged.
[13] Regarding s. 4, the Discipline Committee found that Ms. Deeb had communicated to the clients that there was another offer on the property. It found the client, Mr. Aliu, credible and accepted his evidence that Ms. Deeb did not indicate to him that the clients’ offer was the only one in play. The Discipline Committee also noted that Ms. Deeb was representing both the seller and the buyer, which meant she faced a high duty of care. She failed to clearly inform her clients about the status of offers on the property and did not promote and protect the clients’ best interests.
[14] Regarding s. 5, the Discipline Committee found that Ms. Deeb did not provide conscientious service to the clients, nor did she demonstrate reasonable skill, judgment and competence. The clients signed the Form 127 acknowledging that they submitted the only offer, but they did so only after their offer was accepted. It was only at this time they learned theirs was the only offer on the property. In her email Ms. Deeb indicated that there had been a registered offer that had withdrawn and there was one other offer, yet she was unable to produce any paperwork about registered offers and was “unclear about offers and how they were handled”. Ms. Deeb failed to document anything to the clients confirming that they were the only offer until after their offer had been accepted.
[15] Finally, regarding s. 37(1), the Discipline Committee concluded that Ms. Deeb did not properly relay the number of offers to the clients, and that she should have done so in writing. Ms. Deeb had multiple opportunities to clarify the number of offers but failed to do so. She should have emailed the clients or delivered the Form 127 acknowledgement to them in person before the offer was presented. While the panel concluded that Ms. Deeb did not act with malice, it did find that she made an inaccurate representation that was never corrected.
The Discipline Committee’s Penalty Decision
[16] The Discipline Committee held a separate hearing regarding the penalty to be imposed. It ultimately imposed a fine of $14,000. Ms. Deeb was also ordered to pay $6,000 in costs. The Discipline Committee relied on the RECO Appeals Committee Decision in Registrar v. Suzette Thompson and considered the following factors:
(a) Ms. Deeb had 25 years of experience and was representing both the seller and the buyers, so her duty of care was at its highest. Though she did not act maliciously, her breaches were serious in nature.
(b) Ms. Deeb alone was responsible for the breaches.
(c) The clients paid $50,000 more for the property because of Ms. Deeb’s breach, and her conduct resulted in a loss of trust.
(d) There was a strong need for specific deterrence, as Ms. Deeb did not show any remorse or admit that she did anything wrong.
(e) There was a need to generally deter breaches like that of Ms. Deeb among real estate agents.
(f) There was a need to send a strong message to the public to maintain public confidence in the integrity of the profession.
(g) Ms. Deeb’s conduct fell far below the acceptable standard of conduct.
The Appeals Committee Decision
[17] Ms. Deeb appealed the Discipline Committee’s decisions regarding the merits of the case, the abuse of process motion, and the penalty. The Appeals Committee dismissed her appeal.
[18] In doing so the Appeals Committee found that the Discipline Committee had the power to control its own process and provided adequate reasons for its decisions about the process. It was the Discipline Committee’s function to assess the credibility of each party’s evidence, weigh the evidence and then find as a fact that Ms. Deeb had not informed the clients that theirs was the only offer. The Discipline Committee also properly considered and disposed of Ms. Deeb’s motion for nonsuit.
[19] Regarding the Discipline Committee’s decision on the abuse of process motion, the Appeals Committee determined that it was not lacking in particulars, deficient in reasons or unreasonable in its determinations. The delay in proceeding was a result of Ms. Deeb and her counsel’s lack of availability. There was no obligation on RECO to file an Allegation Statement that mirrored the clients’ complaint, and it was ultimately RECO’s onus to prove its claims. There was no basis to find that RECO had “doctored” its evidence by placing it in the wrong tab in its book of documents.
[20] Moreover, the Appeals Committee noted that it would be improper to review the interlocutory motion decision because the grounds alleged were not connected to proper appeal grounds that went to the merits of the Discipline Committee’s decision.
[21] With regard to the Discipline Committee’s penalty decision, the Appeals Committee found that it properly considered the factors set out in Registrar v. Suzette Thompson and exercised its broad discretion in determining penalty and costs. In imposing costs, the Discipline Committee properly considered the nature of Ms. Deeb’s unsuccessful abuse of process motion, which it considered dilatory and ill-conceived.
Issues Raised and Standard of Review
[22] This application raises two issues, namely was the Appeals Committee’s decision procedurally fair, and should it be set aside because it was unreasonable.
[23] The standard of review that is applicable to assessing the merits of the Appeal Committee’s decision is reasonableness. This is the presumptive standard of review, and no exception applies to rebut this presumption: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 16-17.
[24] With respect to the allegations of procedural unfairness, no standard of review analysis is necessary. A decision is either procedurally fair or it is not: Kanama v. Weinroth, 2022 ONSC 2748 (Div. Ct.), at para. 11.
Analysis
Procedural Fairness
[25] Ms. Deeb’s main submission with respect to procedural fairness is that to prove its case RECO had to prove the allegations as they were set out in the Allegation Statement. According to Ms. Deeb, these allegations are analogous to particulars in an indictment in a prosecution. RECO did not prove the case as set out in the Allegation Statement and therefore the complaint against Ms. Deeb should have been dismissed.
[26] The relevant particulars as set out in the Allegation Statement are as follows:
The listing price of the Property was $839,000…
On May 8, 2017, Deeb partially prepared an offer on behalf of the Complainants for the property. The offer was typed and the space for the price was left blank. The MLS advertisement for the Property indicated that offers would be presented on May 9, 2017, at 4pm.
At 12:21 pm on May 9, 2017, the Complainants received an email from Deeb, indicating there were two offers for the Property, including their own. Based on this information, the Complainants decided to insert a purchase price of $890,000. At this time, they also increased the deposit amount from $10,000 to $20,000, as they were advised by Deeb it would make their offer more attractive.
[27] The particular alleged in paragraph 5 of the particulars is clearly inaccurate. The Complainants signed their formal offer with their selected price of $890,000 on May 8, 2017, not on May 9, 2017, after they received Ms. Deeb’s email.
[28] Subsequent to the Allegation Statement, RECO provided Ms. Deeb with amended Will Say Statements from both Complainants. They asserted that on May 8, 2017, Ms. Deeb told them that there were three offers on the house. Based on that advice they asked her to put in an offer of $890,000, with a $20,000 deposit. The next day they received an email from Ms. Deeb telling them that one of the three offers had dropped out and that there were only two offers left, including theirs. She then called them later that day. She asked them if they wanted to increase their price and they said no. Their offer was accepted and after that they were asked to sign a form acknowledging that their offer was the only offer on the property. This was the first time they knew this.
[29] While amended Will Say statements were provided, the particulars in the Allegation Statement were never amended. According to Ms. Deeb, this is fatal to RECO’s case.
[30] I disagree. The proceedings were not a criminal prosecution, and the Allegation Statement is not the equivalent of particulars in an indictment. Well before the actual hearing of the matter on the merits, Ms. Deeb was aware of the details of the allegations the Complainants were making. The fact that these details may have changed was a matter that Ms. Deeb could and may have pursued in trying to undermine the credibility of the Complainants. The Discipline Committee ultimately accepted the evidence of the Complainants and found that Ms. Deeb had breached the Code. It was entitled to do so even though the Complainants’ evidence as given at the hearing did not accord with the particulars set out in the Allegation Statement. Ms. Deeb had adequate notice of the case she had to meet and an opportunity to test that case and put her own version before the Discipline Committee. There was no breach of procedural fairness.
[31] Ms. Deeb also alleged that the process followed by RECO contained the following procedural errors:
(a) RECO produced its Will Say statements 15 days instead of 30 days before the first hearing date, which the Discipline Committee found prevented them from calling those witnesses. RECO then requested an adjournment of the hearing, which was granted.
(b) RECO did not bring a formal motion to be allowed to have its witnesses testify despite the late filing of their Will Says. Yet they were granted an adjournment to remedy the problem without having filed a written motion for an adjournment. Ms. Deeb requested that one of her witnesses be allowed to testify electronically and that request was denied because she had brought no formal motion.
(c) The Discipline Committee’s Independent Legal Counsel interjected during the hearing with respect to some of Ms. Deeb’s requests. In doing so, the ILC stepped beyond her advisory role and acted as a panel member.
(d) It permitted RECO to “disobey” a consent disclosure timetable for the Abuse of Process motion. This resulted in Ms. Deeb filing her motion materials prior to receiving RECO’s materials.
[32] The decision to grant RECO’s adjournment without a formal notice of motion did not constitute a denial of procedural fairness. It was in the Committee’s discretion to grant the request. The fact that this request was granted without a formal motion and the request to have a witness testify electronically was dismissed because there was no formal motion is not enough to establish bias on the part of the Committee. The threshold to overcome the presumption of impartiality is a high one. In this regard it is important to take note of several other facts. The witness who was initially denied the right to testify electronically was allowed to testify by videoconference. RECO brought its motion for an adjournment orally because it did not anticipate that Ms. Deeb would take the position that the Complainants could not testify because she only had 15 days’ notice of their Will Says. Given that the factual matrix and the evidence surrounding the complaints was not complicated, this was understandable (although clearly not in compliance with RECO’s rules).
[33] The Discipline Committee dealt with Ms. Deeb’s allegation about Independent Legal Counsel as follows:
ILC did not make any rulings that were binding on Ms. Deeb or which purported to bind Ms. Deeb. On a factual basis alone, the allegations of Ms. Deeb are not supported by the transcript from the hearing. There was no “manifest unfairness” created by ILC’s conduct, the circumstances of the October 9, 2019, cannot accurately be described as “intolerable” with respect to the rights and interests of Ms. Deeb, and ILC did not “descend into the arena” of the Panel by directing the conduct of the hearing or making decisions that were the proper function of the Panel itself.
[34] There is no reason to question this conclusion, which was based on the Discipline Committee’s reading of the transcripts of the hearing.
[35] RECO asserts that it did provide its motion materials for the abuse of process motion in accordance with the timeline set. In any event, since the abuse of process motion was brought by Ms. Deeb, it was appropriate for her to file her motion materials first.
Were the Appeals Committee’s Decisions Unreasonable?
[36] Ms. Deeb submitted that the Appeal Committee’s decision was unreasonable for the following reasons:
(a) In reviewing the Abuse of Process Motion, the Appeal Committee failed to deal with a key allegation – namely the fact that a RECO witness agreed she had sworn a false affidavit or an affidavit that was sworn without the benefit of the knowledge of RECO’s counsel as to the state of Ms. Deeb’s disclosure production.
(b) The Appeal Committee failed to deal with the Discipline Panel’s misapprehension of the evidence surrounding the Form 127. In this form, the Complainants acknowledged that theirs was the only offer on the property. The Appeal Committee failed to advert to the evidence of Ms. Deeb’s broker, who testified that the Complainants delayed signing the form because they wanted to sign in person instead of using DocuSign. The Committee also ignored the fact that the Complainants signed the document after their offer had been accepted and there was no evidence that they were forced to sign the form.
(c) The Discipline Committee and the Appeals Committee failed to deal with key evidence from Ms. Deeb. Ms. Deeb testified that, after she sent the Complainants an email saying there were two offers, she phoned them and told them they were the only offer and the seller did not want to review their offer yet, as they had been hoping for a bidding competition. The Complainants instructed her to submit the offer. According to Ms. Deeb, both the sellers and her broker gave evidence that corroborated her version of this phone call. The Appeals Committee did not consider this evidence.
(d) The Discipline Committee and the Appeals Committee failed to address the distinction between a “registered” offer and an offer in writing. The Committees also made a negative finding against Ms. Deeb because she was unable to produce any paperwork to substantiate the fact that there was a “registered “offer against the property. According to Ms. Deeb, it was not required to maintain records of registered offers. and the issue was irrelevant to the main issue in the proceeding.
(e) Ms. Deeb challenged the Complainants’ credibility on the basis that they had an ulterior motive for bringing the complaint against her, namely that they wished to get out of the deal they had entered into. The Discipline Committee did not deal with this challenge to the Complainants’ credibility, and the Appeals Committee refused to deal with it on the false premise that it was being raised for the first time.
(f) Ms. Deeb also challenged the reasonableness of the Penalty and Costs decision. She argued that the Discipline Committee unreasonably (1) relied on a decision that was under appeal, (2) found that Ms. Deeb’s role as a dual agent was an aggravating factor, (3) found that Ms. Deeb’s failure to have the Form 127 signed earlier was an aggravating factor when Ms. Deeb had testified that it was the Complainants who refused to sign the form by DocuSign, (4) found that the Complainants overpaid for the property when the Sellers had testified that they did not want to accept an offer lower than the $900,000 range and would not have accepted an offer for the asking price, and (5) imposed a fine of $14,000 without caselaw support.
[37] With respect to the suggestion that the Discipline Committee failed to deal with one particular piece of evidence on the abuse of process motion, it is important to note that a decision maker is not required to respond to every argument or line of possible analysis: Vavilov, at para. 128. The panel who heard that motion heard all of the evidence relating to Ms. Deeb’s position that RECO inappropriately “doctored” materials in their Book of Documents to be relied upon at the hearing. It found, with respect to that allegation, “There were no documents that were ‘doctored’ by RECO, and this serious allegation was, from the outset, without any foundation.” The panel went on to detail the focus of the allegation, which was that eight pages of documents that Ms. Deeb had provided to RECO had been put in the wrong tab, an oversight that the panel found was “recognized and acknowledged by the parties in late January 2019 in writing” (emphasis in original). Given this, the panel was “bewildered” that this allegation was even raised as part of the abuse of process of motion. The panel’s reasoning and conclusions on this issue were reasonable.
[38] I agree with RECO that Ms. Deeb’s attacks on the reasonableness of the Discipline and Appeal Committees’ decisions on the merits are essentially an invitation to us to retry the case based on her version of the facts. As the Supreme Court has made clear that is not our function: Vavilov, at para. 125.
[39] In assessing the Decisions under review on the merits, it is important to keep in mind the central dispute between the parties. The Complainants testified that one of the reasons that they offered $50,000 over the asking price for the property was that Ms. Deeb told them that there were three offers on the property on May 8th. Ms. Deeb, on the other hand, testified that she did not tell the Complainants there were other offers on the property on May 8th. According to her, the Complainants came up with the offer price based solely on the comparables she had shown them. The Discipline Panel then reviewed the email that Ms. Deeb sent to the Complainants on May 9, 2017, at 12:21 pm where Ms. Deeb wrote “I wanted to let you know that one of the agents that had registered to submit an offer has withdrawn… It is one other offer and your offer at this point.” The Discipline Committee found that this email “does logically seem to follow from the previous discussion at the meeting with Deeb where Aliu says she told them there were 3 offers.” This was the only written communication about what happened, and the panel found that it supported the Complainants’ version of events. This was reasonable.
[40] Secondly, on the issue of whether there were or were not other offers on the property, the Discipline Committee found it significant that there was no written record of any offers on the property. This finding was also a reasonable one, especially in light of s. 35.1(2) of the Real Estate and Business Brokers Act, 2002 S.O. 2002, c. 30, Sched C, which required a brokerage to retain copies of all written offers received. The Discipline Committee noted that Ms. Deeb testified that her broker kept no such records.
[41] In the end, this was a case that turned on assessing whose version of events about what occurred between them was more credible – the Complainants’ or Ms. Deeb’s. As the Discipline Committee noted, no one else was a party to those exchanges. The Committee chose to believe the Complainants, largely on the basis of the May 9th email and the lack of any written documentation to support Ms. Deeb’s position. Given the issue, which was a straightforward one, this conclusion was a reasonable one. It is not undermined by the testimony of either the sellers or Ms. Deeb’s broker, since none of these witnesses were present when Ms. Deeb interacted with the Complainants.
[42] It is also not undermined by the allegation of a motive on the part of the Complainants to bring a complaint against Ms. Deeb. That motive, according to Ms. Deeb, was that the Complainants wanted to get out of the transaction because of an inability to sell their existing home. The problem with this allegation is that, by the time the complaint at issue was brought, the transaction had been completed. Thus, lodging the complaint against Ms. Deeb could not have resulted in the Complainants being released from the transaction.
[43] With respect to the penalty decision, again Ms. Deeb is using this application to reargue her position as to penalty. As the Appeals Committee found, the Discipline Committee “has a broad discretion in determining questions of penalty and costs.” That discretion was exercised in accordance with the applicable jurisprudence. The decision relied upon by the Discipline Committee was not overturned on appeal or on judicial review. As a result, the Appeals Committee reasonably concluded that “there is nothing compelling in this case for the Appeal Panel to disturb the penalty and costs decision made by the Lower Panel.”
Conclusion
[44] For these reasons, the application for judicial review is dismissed. As agreed by the parties, RECO, as the successful party, is entitled to costs fixed in the amount of $5,000.00.
Sachs, J
I agree ____________________
J McCarthy
I agree ____________________
Myers, J
Released: 250219
CITATION: Deeb v. Real Estate Council of Ontario, 2025 ONSC 1100
DIVISIONAL COURT FILE NO.: 664/23
DATE: 202502190
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, McCarthy and Myers JJ.
BETWEEN:
Nina Deeb
Applicant
– and –
Real Estate Council of Ontario
Respondent
REASONS FOR JUDGMENT
Released: 241030