In Deeb v. Real Estate Council of Ontario, 2025 ONSC 1100, the Ontario Divisional Court upheld the decision of a discipline committee despite the Allegation Statement containing factual errors and inconsistencies with the evidence presented during the hearing on the merits.
Background
The member was a real estate agent acting on behalf of a married couple looking to purchase a property. The member was also the agent for the vendors. After the member informed the purchasers that there were multiple competing offers on the property, the purchasers submitted an increased offer, which was accepted. However, the purchasers later learned that there had never been any competing offers on the property.
The purchasers made a complaint to the Real Estate Council of Ontario (“RECO”), and the member was subject to discipline proceedings. The Discipline Committee held that the member breached RECO’s Code of Ethics and ordered her to pay a fine of $14,000 and costs of $6,000. The member appealed to RECO’s Appeals Committee, which upheld the decision. The member then brought an application for judicial review to the Ontario Divisional Court.
The Divisional Court’s Decision
One of the member’s arguments on her application for judicial review was that the discipline decision was procedurally unfair, because the particulars set out in the Allegation Statement were inaccurate and were never corrected.
For example, the Allegation Statement provided that the member emailed the purchasers on May 8, 2017, telling them that there were two offers on the property, and that the purchasers submitted an increased offer on May 9, 2017. Subsequent to the Allegation Statement, RECO provided the member with “Will Say” statements from the purchasers, which alleged that the member told them there were initially three offers on the property, not two, and that the purchasers submitted their increased offer on May 8th, not May 9th. Despite these inconsistencies, the Allegation Statement was never amended, and the Discipline Committee accepted the purchasers’ evidence in finding that the member breached the Code of Ethics.
The member argued that the allegations set out in an Allegation Statement are analogous to the particulars in an indictment in a criminal prosecution, and therefore RECO was required to prove the case as set out in the Allegation Statement. Given that the Allegation Statement contained inaccuracies which were never corrected, the member argued that the complaint against her should have been dismissed.
The Ontario Divisional Court did not accept the member’s arguments. In particular, the Divisional Court did not agree that an Allegation Statement in a professional discipline proceeding is the equivalent of particulars in a criminal indictment.
Although the Allegation Statement contained some inaccuracies, the member was made aware of the details of the purchasers’ allegations well before the actual hearing of the matter on the merits via the purchasers’ Will Say statements. The member could have relied on the differences in the details of the allegations to undermine the purchasers’ credibility. Ultimately, however, the Discipline Committee accepted the purchasers’ evidence and found that the member breached the Code of Ethics. The Divisional Court found that the Discipline Committee was entitled to do so even though the purchasers’ evidence at the hearing did not accord with the particulars set out in the Allegation Statement. The member had adequate notice of the case she had to meet and an opportunity to test that case and put her own version before the Discipline Committee.
Accordingly, the Divisional Court held that there was no breach of procedural fairness, and dismissed the member’s application for judicial review.
Takeaways
The Divisional Court’s decision in this case confirms that an Allegation Statement or Notice of Allegations is not equivalent to the particulars in an indictment in a criminal proceeding. As such, procedural fairness may be maintained where the member has adequate notice of the case to meet and an opportunity to test that case, even if the Allegation Statement contains some minor inaccuracies.
That being said, discipline committees should always be careful to ensure that their Allegation Statements are accurate, and should amend the Allegation Statement if any errors are discovered. Although the Divisional Court found no breach of procedural fairness in this case, the inconsistencies in the allegations led to a dispute about procedural fairness which gave rise to the application for judicial review. As the Divisional Court noted, the inconsistencies in the allegations also gave the member an opportunity to undermine the complainants’ credibility. Accordingly, prosecutors and discipline committees should review their Allegation Statements carefully to avoid any problems that may arise out of factual errors or inconsistencies in the details of the allegations.
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