The appeal by a realtor from a conviction of failing to cooperate with an investigator of the Real Estate Council of Alberta (the “Council”) was dismissed where the Court found that there was ample evidence to support the conclusion that James had failed to cooperate with the investigator by being rude and by failing to produce a listing agreement

Administrative law – Real estate agents – Investigations – Disciplinary proceedings – Judicial review – Standard of review – Reasonableness simpliciter

James v. Real Estate Council of Alberta, [2006] A.J. No. 844, Alberta Court of Appeal, July 17, 2006, Hunt and Fruman JJ.A and Brooker J. (ad hoc)

A client complained to the Council about James’s conduct in the course of a real estate transaction. The Council appointed an investigator to examine the complaint. The complaint was dismissed due to lack of evidence. However, James’s conduct during the investigation resulted in a second investigation to determine whether his conduct breached the governing legislation and the Council’s Code of Conduct. A Hearing Panel found that James was uncooperative during four phone calls made by the investigator and during a meeting with the investigator and that he displayed a complete lack of remorse for his actions. The Hearing Panel decided that James had breached s. 38 of the Real Estate Act, R.S.A. 2000 c. R-5 and s. 7(d) of the Code of Conduct by failing to cooperate with the investigator. James appealed this decision to an Appeal Panel of the Council which upheld the decision on the basis that the Hearing Panel’s findings were not clearly unreasonable or palpably and demonstrably wrong. James’s appeal to the Court of Queen’s Bench was dismissed. James appealed this decision to the Court of Appeal.

The Court of Appeal dismissed the appeal holding that the Queen’s Bench Judge did not err in finding that there was ample evidence to support the Appeal Panel’s conclusion that James had failed to cooperate with the investigator by being rude and by failing to produce the listing agreement. The Court of Queen’s Bench Judge correctly applied the reasonableness standard to that issue. James’s suggestion that the Council’s disciplinary hearings were somewhat akin to criminal proceedings and required the “prosecution” to establish compliance with all possible procedural requirements was rejected. The Court of Appeal found that the Appeal Panel had properly inferred that the procedural requirements of s. 38(5) of the Act had been met during the process.

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