B.C.'s Superintendent of Real Estate will not be able to force the industry regulator to hold a new disciplinary hearing for a McBride real estate agent accused of misleading a couple about the size of property they were interested in purchasing, a B.C. Supreme Court Justice has found.
Although Justice Elliott Myers has ruled the superintendent, Michael Noseworthy, has the power to issue such an order in general, he said it could not be applied in the case at the centre of a long-running dispute with the B.C. Real Estate Council.
In October 2016, in answer to a series of scandals that struck the industry, particularly in the red-hot Lower Mainland market, the provincial government ended the industry's ability to self-regulate through the BCREC and Noseworthy was appointed to oversee the council.
Matters between the two reached the courts when, in January, the superintendent filed a lawsuit against the BCREC after it refused to reopen a case against Rodger Peterson.
The couple, Garry and Wendy Lowe, allege Rodger Peterson, while acting as a dual agent, led them to believe they were buying a 160-acre plot near Crescent Spur only to discover it was much smaller and lacked the field they had intended to use for organic farming.
The Lowes subsequently refused to complete the transaction and the property's owner took them to small claims court.
In November 2016, a provincial court judge dismissed the claim and found Peterson "was careless in not fully discussing the interest of the Lowes in the farming project."
At the least, Peterson "should have insisted on walking the property before any offer was presented," the judge added.
Three months later, the Real Estate Council of B.C. told the Lowes they would not pursue any disciplinary action against Peterson, although it cautioned him about his future practices.
The Lowes appealed to the superintendent, and according to Myer's summation of the facts in a written decision issued August 31, Noseworthy found the BCREC had not issued a written decision so he had to review the minutes of the complaints committee in which the decision was made.
"He identified concerns with the manner in which the evidence was presented to the complaints committee, and concluded that the lack of reasons prevented him from confirming that the complaints committee fully and fairly considered all of the evidence presented to it," Myers said. "The Superintendent determined that in order to best serve the public interest, the matter should be considered further."
When the BCREC refused to comply with the request, the superintendent filed a lawsuit against the council in January. At issue was how a section of the Real Estate Act, as amended in 2016 to give the superintendent further responsibilities over the BCREC, should be interpreted.
In defending its position, the BCREC relied on the doctrine of functus officio, that it had fulfilled its statutory duty and, as such, had no further ability to revisit the decision. Counsel for the superintendent countered that the BCREC had misapplied the doctrine and the BCREC's interpretation would render meaningless the legislation setting out the superintendent's authority over the council.
Myers agreed with the superintendent on the larger issue.
"The plain wording of the statute indicates that the Superintendent may direct a notice of discipline hearing even if the Council has previously determined otherwise," Myers wrote. "That interpretation is within the objective of the Act to give broad supervision powers to the Superintendent."
But Myers found the superintendent failed to provide Peterson with a proper level of procedural fairness, saying that at the minimum Noseworthy's office should have given him notice that the matter was being considered.
"That at least would have made him aware that the matter was not fully concluded, something I think he was entitled to particularly because of the attenuated time frame of this case," Myers said.
Further, Myers noted that Noseworthy had been provided with the Lowes' complaint and so, Peterson should have been given a chance to provide a written response.
In filings related to the case, Peterson has contended the property's size was accurately listed, that he provided the Lowes with accurate maps of the land and twice offered to drive them to the site to walk the property only to see them decline the offer both times.
The full decision is posted with this story a pgcitizen.ca.