The Applicant appealed the decision of the Respondent Association who had found that he had violated the Code of Ethics and Standards of Business Practice of the Association. The Court dismissed the application, finding that the Association’s decision was reasonable.

Administrative law – Decisions of administrative tribunals – Real estate agents – Disciplinary proceedings – Penalties – Judicial review – Compliance with legislation – Natural justice – Failure to provide reasons – Standard of review – Reasonableness simpliciter

Rowan v. New Brunswick Real Estate Assn., (in French) [2007] N.B.J. No. 124, New Brunswick Court of Queen’s Bench, April 13, 2007, B.M. Robichaud J.

The Applicant is a real estate agent who had acted as the listing agent on behalf of separate owners in the sale of two neighbouring properties. The agent did not inform the purchaser of the first property of the material fact that the second property was being sold to a purchaser who intended to use it as a “group home for troubled teens”. The first purchaser maintained that if he had been advised of this intended use of the second property, he would have declined to purchase the first property. The first purchaser filed a complaint against the agent to the Respondent Association.

The Association’s Discipline Committee found that he had violated its Code of Ethics and Standards of Business Practice. It suspended the applicant’s membership in the Association for a period of seven days, ordered him to pay $5,000.00 for the costs of the hearing and ordered the publication of the hearing results in the Association’s newsletter. The Applicant appealed the Association’s findings.

Before the Court, the Applicant relied on section 25 of the New Brunswick Real Estate Association Act and Rule 69 of the Rules of Court. Section 25 of the Act grants an aggrieved party a statutory right of appeal and sets out the powers of the Court on any such appeal. The proceeding under Rule 69 of the Rules of Court is one for the judicial review of an administrative tribunal’s decision. The Court found that the Applicant was not entitled to proceed under Rule 69 and the correct approach was to proceed with the statutory right of appeal set out at section 25 of the Act.

On the issue of standard of review, the Court relied on the New Brunswick Court of Appeal’s decision in Keddy v. New Brunswick (Workplace Health, Safety and Compensation Commission), [2002] N.B.J. No. 91 (C.A.), which had confirmed that only two of the three standards of review can be considered in cases where the question arises pursuant to a legislated right of appeal. Those standards are correctness and reasonableness simpliciter. Balancing all of the four factors, the Court concluded that the appropriate standard of review was that of reasonableness simpliciter.

The Applicant’s first ground of appeal was that the Association’s decision did not get proper written reasons for the sanctions imposed, which was a denial of natural justice. In the Court’s view, the Reasons given in this case highlighted the Disciplinary Committee’s assessment of the Applicant’s actions and how they impacted on all parties to the transaction and on the public interest. They also highlighted the realtor’s obligations to deal fairly with all parties to the transaction and the realtor’s obligations to act diligently in discovering and disclosing pertinent facts to all parties to a transaction. This includes facts that may affect a reasonable person’s decision to purchase. Taken as a whole, and given the degree of deference owed to the decision of the Discipline Committee, the Court concluded that the Discipline Committee gave proper written reasons for the sanction imposed.

Second, the Applicant argued that the Association had erred in law by having no juristic basis to apply such a harsh and severe penalty. The Court held that the sanctions imposed against the Applicant fell squarely within the broad range of sanctions that are available following a finding of professional misconduct, and were neither at the upper or lower end of the range. The Court also dismissed the Applicant’s argument that the costs of $5,000.00 were unreasonable because they equalled the amount of the maximum fine that could be imposed pursuant to the Act. This did not inevitably lead to the conclusion that the sanction was unreasonable.

Third, the Applicant argued that the reasons given by the tribunal did not support the finding of professional misconduct. To succeed on this ground, the Applicant must demonstrate an absence of tenable reasons in the Committee’s decision as well as an absence of an evidentiary foundation. In this case, the Committee made findings that the Applicant knew, prior to the closing of the first property, that the second property was likely to be purchased for the purpose of operating it as a “home for troubled teens” and that he failed to disclose this information. The Committee made five separate findings in arriving at this conclusion. All of the findings had an evidentiary foundation. The Committee then went on to apply the factual findings against the duties of a realtor as set out in the Code of Ethics and Standards of Business Practice. It concluded that the Applicant had violated specific articles of the Code because he had failed to act fairly with all of the parties to a transaction. Taken as a whole, the findings of the Committee were tenable and had an evidentiary foundation. The findings were also supportive of professional misconduct and of the sanction imposed.

Fourth, the Applicant argued that the Committee had erred in law by failing to properly interpret and apply certain articles of the Code of Ethics and Standards of Business Practice of the Canadian Real Estate Association. The Committee’s role in making factual findings and interpreting the provisions of those articles and in reaching conclusions on the issue of misconduct and the imposition of an appropriate sanction inevitably involved questions of mixed fact and law. In such cases, the standard of reasonableness simpliciter is the appropriate standard. The written reasons were not extensive. While the Committee did not embark upon a detailed analysis of all aspects of the evidence, it was clear from reviewing its written reasons and the transcript of the proceedings that it appropriately considered the material evidence in making its findings and concluding as it did. The conclusions were tenable, in that they stood up to a somewhat probing examination. Therefore, the Court ought not to interfere with those conclusions.

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