By ThinkPol Staff

British Columbia’s Superintendent of Real Estate is suing the province’s Real Estate Council after the body that licences province’s realtors refused to discipline a licensee.

The Office of the Superintendent of Real Estate (OSRE) was setup in 2004 to ensure to protect public interest in real estate dealings, and its oversight responsibilities include ensuring that complaints against licensees under the various real estate related acts are considered “fully, fairly and in an even-handed manner.”

On March 6, 2017, Garry and Wendy Lowe complained to the OSRE regarding a February 9, 2017 decision of the Real Estate Council’s complaints committee, the statement of claim filed at the BC Supreme Court in Vancouver^[1]THE SUPERINTENDENT OF REAL ESTATE vs THE REAL ESTATE COUNCIL OF BRITISH COLUMBIA VLC-S-S-180169
alleges.

The Committee had allegedly advised the Lowes that it would not pursue any disciplinary action against Rodger Peterson, a licensee, in relation to an aborted real estate transaction impacting the Lowes, the complaint states.

After reviewing the Lowes’ original complaint, the Superintendent, Micheal Noseworthy, determined it was in the public interest to direct the Real Estate Council to issue a notice of discipline hearing regarding the Lowes’ complaint and informed the Council accordingly on June 8, 2017, according to the lawsuit.
The complaint alleges that on September 19, 2017, Erin Seeley, Executive Officer of the Real Estate Council, responded, indicate the Council’s refusal to follow the Superintendent’s direction, asserting that the Council was functus officio.

The legal doctrine of functus officio, Latin for “having performed his or her office”, means that “once a board or tribunal has made a decision it has fulfilled its statutory duty and has no further ability to consider the case.”

By September 25, 2017, sent by counsel for the Superintendent, Ms. Joni Worton, responded to Ms. Seeley re-iterating the Superintendent’s expectation, according to the court documents.

“It seems an impossible position to take that the Superintendent could not require the Council to issue a Notice of Hearing in circumstances where the Superintendent is of the opinion that the Council has not, or may not have, appropriately or properly considered a file that has been closed at the earliest of stages; particularly given the express statutory language of RESA,” Ms. Worton wrote the Council.
According to the lawsuit, On September 27, 2017, Ms. Jean Whittow, Q.C., counsel for the Real Estate Council, responded to Ms. Worton, stating as follows:

“The Council has carefully considered the points raised in your letter. The Council respectfully disagrees with your client’s analysis and its position is unchanged.”

The Superintendent is seeking a mandamus compelling the Council to issue a notice of discipline hearing into the Lowes’ complaint .

“The evidence establishes that the Real Estate Council refused to comply with multiple requests made by the Superintendent to issue a notice of discipline hearing to Mr. Peterson,” the counsel for the OSRE assert. “The Council’s refusal was unequivocal and deliberate, despite there being no legitimate basis on which it could be maintained.”