The appeal by the New Brunswick Real Estate Association (the “Association”) from a judge’s decision setting aside a decision of the Discipline Committee was allowed where the Court found that the judge had erred in concluding that the Committee’s policy of addressing the merits of the complaints and possible penalties in one hearing rendered the hearing process biased

23. October 2007 0

Administrative law – Decisions of administrative tribunals – Real estate agents – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Penalties and suspensions – Hearings – Judicial review – Bias – Procedural requirements and fairness

New Brunswick Real Estate Assn. v. Moore, [2007] N.B.J. No. 311, New Brunswick Court of Appeal, August 9, 2007, J.E. Drapeau C.J.N.B., W.S. Turnbull and J.T. Robertson JJ.A.

Moore is a real estate agent charged with professional misconduct. The charges followed a complaint to the Association. A Discipline Hearing was held during which four witnesses were examined. The Chair of the Discipline Committee then indicated it would be appropriate to deal with the penalty issue in the event Moore was found guilty of misconduct. Moore objected to the procedure. The Hearing was adjourned for consideration of Moore’s opposition. Moore ultimately agreed to allow the penalty issue to be dealt with to avoid having the Committee members return to Fredericton for another Hearing in the event he was found guilty. The Committee subsequently rendered its decision, finding Moore guilty and imposing a $500 fine and $2,000 in costs, as well as ordering publication of the decision in the Association’s newsletter. Moore appealed the decision on grounds that included an allegation that the Committee failed to preserve the appearance of impartiality by dealing with the penalty issue before ruling on the merits of the complaint. The judge hearing the appeal concluded that by proceeding with the penalty phase before reaching a decision on the merits of the complaint, the Committee showed bias. The judge set aside the Committee’s decision and remitted the matter to a differently constituted Committee for rehearing. The Association appealed this decision.

The Court of Appeal allowed the Association’s appeal and returned the matter to the judge for a Hearing of the other issues raised in Moore’s appeal which had not been dealt with because of the judge’s ruling on the bias issue. The Court of Appeal held that a well-informed person would not conclude that the Committee’s policy to hold one hearing, dealing with both the merits of the complaint as well as a penalty to be imposed if the complaint was valid, reflected bias. The policy was reasonable given the fact that the Committee’s members came from across the province, rendering their return to Fredericton for additional rehearings costly. Although there might be circumstances in which the Committee would have to deviate from its single-hearing policy, this was not one of them. The Court found that Moore was not prejudiced as a result of the policy and the potential sanctions he was facing were not particularly serious.

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