The Commercial Appeals Commission, upholding a decision of the Real Estate Council of British Columbia, has a duty to give independent consideration to an appropriate penalty and reasons for imposing that penalty on a hearing de novo, even in the absence of a submission on penalty

Administrative law – Real estate agents – Disciplinary proceedings – Penalties – Decisions of administrative tribunals – Commercial Appeals Commission – Hearing de novo – Duty to consider penalties

Wong v. Real Estate Council of British Columbia, [2002] B.C.J. No. 2786, British Columbia Court of Appeal, December 13, 2002, Ryan, Mackenzie and Thackray JJ.A.

The Real Estate Council of British Columbia found that the Appellant Selling Agent had misconducted himself in a real estate transaction for failing to ascertain whether there had been water damage in the building where he had sold two strata units. By consent, a hearing de novo proceeded before the Commercial Appeals Commission (the “Commission”). The Commission gave extensive reasons for its finding of misconduct but on the issue of penalty it simply concluded that the penalty imposed by the Real Estate Council was appropriate.

On appeal it was held that the Commission was required to consider the appropriateness of the penalty independently of the decision of the Real Estate Council. The absence of submissions on penalty by counsel for the Appellant did not absolve the Commission from its duty to give independent consideration to an appropriate penalty and reasons for imposing that penalty on a hearing de novo.

The Appeal was therefore allowed, the penalty set aside, and the matter remitted back to the Commission for a new hearing on penalty, and with directions to provide parties with adequate reasons.

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