Sep 28, 2020

Independent oversight bodies with the authority to interfere in individual decisions are rare in common law Canada. They are more prevalent elsewhere, perhaps with the Professional Standards Authority of the UK being best known. The Real Estate Council of British Columbia has recently had the Superintendent of Real Estate appointed to oversee it. The oversight role of the Superintendent was clarified in Superintendent of Real Estate v Real Estate Council of B.C., 2018 BCSC 1500, http://canlii.ca/t/htrm5.

The Real Estate Council investigated a complaint and determined that only a warning was warranted. The complainant took the matter up with the Superintendent who reviewed it and directed the Council to refer the matter to a discipline hearing. The Council refused and the Superintendent sought judicial review.

The Court identified the oversight role of the Superintendent and concluded that the provisions authorized the Superintendent to direct the Council to refer matters to discipline. While the Council still controlled the specific content of the allegations, the Court indicated that the Council would be acting in bad faith if it referred “blank” allegations to discipline. The Court also held that there was no genuine unfairness to the practitioner facing a referral to discipline after being told no action would be taken by the Council because the legislation clearly contemplated this supervisory role for the Superintendent. Having established the authority of the Superintendent to assume this oversight role, the Court declined to order the Council to take action in this particular matter because the Superintendent had not acted with procedural fairness by failing to notify the practitioner that the matter was being reviewed.

This case demonstrates that courts will recognize the authority of oversight bodies where it is set out in legislation and will try to ensure that this authority meets the intended goals.