Sep 23, 2020

Some regulators are experimenting with using administrative staff to sit in on the deliberations of a discipline panel, to make notes and help prepare the reasons of the panel. This approach has not been fully considered by the courts yet. However, the acceptability of that practice has received some support in Redekop v. Okanagan Mainline Real Estate Board, 2017 BCSC 417. There, a real estate professional was disciplined for directly communicating with a party to a transaction who was represented by another agent. During both the initial hearing and the appeal, the tribunal was supported by a staff member who assisted with the preparing of the reasons and, in at least one case, sat with the tribunal during deliberations. The Court found that this did not breach the rules of natural justice so long as the staff person was neutral and did not participate in the deliberations.

This case should be read with some caution by Ontario regulators, however, not only because it was decided in another province, but because the disciplinary tribunal was part of a voluntary rather than a statutory regulator. The Court indicated that the degree of scrutiny was less for voluntary associations; for example, the Court condoned the practice of not disclosing the entire investigation results to the practitioner for the purpose of making submissions about what action the regulator should or should not take.