November 5, 2018

You’re wrong but we won’t tell you why: oversight of citations

Complaint Disposition Review
Inquiry and Investigations
Professional Regulation

In 2016, the B.C. government “took back” the Real Estate Council of British Columbia, in part by populating the Council exclusively with government appointees, and in part by giving oversight powers to the Superintendent of Real Estate. The Superintendent received a power to direct the Council to issue a discipline hearing notice, but without a power to determine the content of such notices (which was expressly excluded). The court recently had occasion to examine the validity of the Superintendent’s power: The Superintendent of Real Estate v. The Real Estate Council of British Columbia, 2018 BCSC 1500.

The case involved a licensee, acting as a dual agent, alleged by complainants to have misled them, as buyers, that a property included a field. When the Complainants discovered on the day of closing that the property did not include the field, they did not complete the transaction. [12] After an investigation, the Council closed the file, but the complainants went to the Superintendent. [14]

The Superintendent had concerns about how evidence was presented to the complaints committee. [14] The Superintendent also decided a lack of reasons prevented him from confirming that the complaints committee had fully and fairly considered all the evidence. [14] The Superintendent directed the Council to issue a notice of hearing. [15] The Council refused, however, citing the doctrine of functus officio to address the fact of the Council already having assessed the matter and deciding against any wrongdoing. The Council also noted a lack of procedural fairness to the licensee, who had no notice of the issue before the Superintendent. [16] 

The Superintendent sought a court order requiring that the Council issue a notice of discipline hearing.

The decision does decide some important issues. First, procedural fairness required that the licensee have notice of the issue before the Superintendent, and also an opportunity to provide a written submission to the Superintendent. [54-55] 

Second, the doctrine of functus officio did not prevent the Superintendent from having a power to direct the Council to issue a notice. Even though the Superintendent could not stipulate the content of a notice, the court decided that the Council could still discern the matters for a hearing, such that the Superintendent’s power was not “absurd”, even in the context of a matter where the Council had already assessed and dismissed the complaint.

Although the court did not address the need for reasons by the complaints committee, the approach taken by the Superintendent illustrates that screening committees that are subject to complainant-driven reviews may wish to issue reasons when dismissing complaints – a need that colleges under the Health Professions Act became well acquainted with after 2008, under the Health Professions Review Board.

The court’s decision did not, however, address, a number of key issues that remain outstanding:

  • Is the Superintendent’s review of a complaints committee disposition to be a review on “the record” of information before the complaints committee? Or may the Superintendent, for purposes of oversight, accept new evidence and engage in a new assessment?
  • What is the “standard of review” that the Superintendent must apply on questions of fact, law, or discretion? Said another way, may it substitute its own decision-making for that of the complaints committee, or must it afford deference to the provisional findings of the complaints committee?
  • If the Superintendent must afford deference, how must it approach reasons or lack of reasons by the complaints committee? Must it look to both the reasons offered and to reasons “which could be offered in support of a decision”, as mandated for reviewing courts by such cases as Dunsmuir (2008 SCC 9 at para. 48) and Nurses’ Union (2011 SCC 62 at para. 12)?
  • Must the Superintendent provide reasons which identify specific incorrect or unreasonable “errors” of fact or law?

Decisions on such issues will determine when and how a reviewing body, like the Superintendent, may (or must) say that a front-line tribunal, like the complaints committee, “erred” in assessing a matter, so that the tribunal may know how it must proceed.

The Superintendent of Real Estate v. The Real Estate Council of British Columbia, 2018 BCSC 1500

Lisa C. Fong and Michael Ng