Petition for judicial review struck as improper attack on administrative proceedings

Administrative law – Decisions reviewed – Real Estate Council – Judicial review – Procedural requirements and fairness – Jurisdiction – Standard of review – Patent unreasonableness – Real estate agents – Disciplinary proceedings – Hearings – Hearing de novo

Deng v. Real Estate Council of British Columbia, [2022] B.C.J. No. 927, 2022 BCSC 879, British Columbia Supreme Court, May 25, 2022, K.W. Ball J. (In Chambers)

The petitioner was a licensed realtor. She attempted to arrange the purchase of a strata unit for her clients. The clients were interested in Unit 59; however, it had an accepted offer in place. The petitioner then showed the clients Unit 134. After the clients made an offer on Unit 134, but before that offer was accepted, the petitioner was advised that the conditions precedent on the offer on Unit 59 had not been satisfied and Unit 59 was available. The petitioner never communicated that information to her clients.

The clients made a complaint to the Real Estate Council of British Columbia (“RECBC”). The RECBC charged the petitioner with professional misconduct and failing to act with reasonable care and skill and in the best interests of the clients under the Real Estate Services Act, S.B.C. 2004, c. 42.

At the first hearing before the Discipline Committee the petitioner was found to have breached her professional obligations (the “First Hearing”). The petitioner appealed. On appeal, it was held the Discipline Committee breached its duty of procedural fairness and the matter was remitted back to the RECBC (the “First Appeal”). At the second hearing before the Discipline Committee, the petitioner was again found to have breached her professional obligations (the “Second Hearing”). The matter then proceeded to a penalty hearing where the petitioner was ordered to pay a fine, be subject to supervision, undertake remedial training, and pay costs (the “Penalty Decision”). The petitioner appealed again. On the second appeal, the assessment of enforcement expenses was reduced, in recognition of the fact the Second Hearing was required due to procedural errors during the First Hearing.

The petitioner sought judicial review in relation to the decision from the Second Hearing; however, in her petition, she made various allegations with respect to the fairness of the First Hearing and the First Appeal, the fairness of the RECBC’s investigation in relation to the First Hearing, and raised new allegations regarding the Second Hearing that were not before the tribunal on the Second Appeal. The RECBC applied to strike the petition under Rule 9-5.

The Court held that the matters raised on judicial review were outside the scope of the judicial review, which was limited to the Second Hearing. Those matters were beyond the Court’s jurisdiction in that proceeding. The Court found the petition was an improper and unsupported attack on the disciplinary proceedings. The petition was dismissed.

This case was digested by Joel A. Morris, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Joel A. Morris at jmorris@harpergrey.com.

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