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Real Property - RECO - General. Smith v. Real Estate Council of Ontario
In Smith v. Real Estate Council of Ontario (Div Court, 2024) the Divisional Court dismissed a JR challenging a RECO (Real Estate Council of Ontario) Appeal Panel disciplinary decision. These review cases are few in the courts.
Here the court considers the appeal allegation that the RECO tribunal improperly barred the applicant's expert witness evidence:[23] First, the Discipline Panel did not err in applying the formal test for the admissibility of expert evidence when deciding whether to permit Ms. Smith to call Mr. Metherall or Mr. Lebow. Ms. Smith is correct that the formal rules of evidence do not apply at administrative hearings. Administrative tribunals can admit any relevant evidence. Administrative tribunals have the discretion to admit expert evidence that does not meet the strict test for admissibility articulated by the Supreme Court of Canada in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 15. The Mohan test focuses on (a) whether the expert opinion evidence is relevant, (b) whether the proposed expert is properly qualified to give the proffered opinion, (c) whether the expert evidence in inadmissible under any other rule of evidence, and (d) whether the evidence is necessary in the sense it is outside the expertise of the decision maker. While the Discipline Panel was not required to strictly apply the Mohan test, that does not mean it was an error for the Discipline Panel to do so. Administrative tribunals are not required to apply a lower standard. It is within their discretion to apply the four-part test for the admissibility of expert evidence from Mohan.
[24] Second, it was open to the Discipline Panel to decide, within its discretion, that the expert evidence was not admissible either because the opinions proffered were too close to the ultimate issue the Panel had to decide or because the expert evidence was not necessary.
[25] Ms. Smith relied on a recent decision in which this court found that the Licence Appeal Tribunal erred in excluding expert evidence: Connor Homes v. Director, 2021 ONSC 3195. In that case, the Licence Appeal Tribunal was considering a decision not to renew the Appellant’s residential care licence, which is required to operate a foster care home. The Appellant sought to adduce expert evidence on children’s mental health and fire safety. The Divisional Court held that the Licence Appeal Tribunal erred in finding the expert evidence was unnecessary. The court held that while the Licence Appeal Tribunal has expertise adjudicating licensing matters, it did not have expertise in children’s mental health or fire safety as it related to residential care facilities for children.
[26] The circumstances of this case are distinct from Connor Homes. Here, the Discipline Panel has expertise on the professional standards and practices of real estate agents in Ontario. The Discipline Panel had the reports from Mr. Metherall and Mr. Lebow and knew what evidence they would each give. Each opined that Ms. Smith acted appropriately and did not violate the Code of Ethics, which was the precise issue the Discipline Panel had to decide. And the proposed experts would have testified about issues that fall within the scope of the Discipline Panel’s expertise. It was, therefore, open to the Discipline Panel to decide that their evidence was not necessary.
[27] Finally, Ms. Smith argues that it was unfair to prevent her from calling expert evidence when a prosecution witness gave opinion evidence about how a prudent realtor should have acted in Ms. Smith’s circumstances. The Council called a Compliance Officer, Natalia Martinez, who gave evidence about what realtors should do if they are unable to confirm the taxes and local improvement charges through proper documentation, such as a tax bill. Ms. Martinez testified that the realtor should either leave that portion of the listing blank or, if the local real estate board requires the realtor to input a dollar value for the taxes, the realtor must include a disclaimer in the listing stating the realtor was not able to confirm the taxes. Ms. Smith argued that her experts should have been permitted to give evidence on the same issue in response.
[28] In my view, the Discipline Panel’s decision to exclude Ms. Smith’s experts was not unfair. Ms. Smith’s expert reports focused on whether she took reasonable steps to get accurate information about the taxes from her clients. Ultimately that was not the determinative issue. The Discipline Panel accepted Ms. Smith’s evidence about her efforts to confirm the property taxes. The Discipline Panel accepted that Ms. Smith asked her clients if the property was subject to a local improvement charge. Those efforts were set out in the agreed statement of facts.
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