A Richmond realtor has won an appeal after being sanctioned for misconduct by the real estate oversight body.
Catherine McCreary, panel chair for the Financial Services Tribunal, found the Superintendent of Real Estate’s decision to sanction realtor Vicky Wang, who had lent money to a client, was “unreasonable” and there was a “lack of procedural fairness” that led to the decision.
Rather than send the decision back to the Superintendent of Real Estate to be reconsidered, McCreary decided to set it aside.
In her introduction to the decision, McCreary notes her role is to consider whether the decision of the superintendent’s representative (called the “delegate”) at the hearing can be justified, “taking into account the rules of natural justice and fairness.”
“I pause here to note that I have serious concerns with the way the Appellants (Wang and her real estate company) were treated by the Council, the Superintendent, and the Delegate throughout the process from the investigation through to the hearing.”
She cited three reasons for her decision to grant the appeal.
First, it had been eight years since the transactions took place. This delay, McCreary noted, “has already led to concerns about the fairness of the process.”
Secondly, the client and her husband would not be able to take part in another hearing, and therefore, the “procedural unfairness that I have found here would not be cured by a new hearing.”
Thirdly, the unusual circumstances and the way in which Wang was treated led McCreary to conclude it’s “not in the public interest” to make Wang go through the process again.
Wang was the realtor in two property deals, one in Vancouver and one in Richmond.
After an unconditional offer was accepted on the Richmond property deal, the buyer, a friend of Wang’s, asked to borrow $50,000 from her.
This was the basis of the claim of “misconduct” by the superintendent who ordered her to pay a $28,000 fine and undergo further education.
McCreary noted, however, the deal was no longer a “potential transaction” at the point the loan was made and that Wang would be entitled to a commission even if the deal were to collapse due to a non-payment of the deposit.
Wang later found out the client had sufficient funds to buy the property; the client pressured her to lower her commission while the loan was outstanding.
In her decision to uphold Wang’s appeal, McCreary states the superintendent’s representative relied on hearsay or sometimes “double hearsay,” which was contradicted by Wang’s “sworn oral evidence.”
McCreary noted the superintendent didn’t bring in the client or her husband for Wang to cross-examine, rather he relied on “these and other examples of hearsay, without explanation or analysis as to its reliability.” This undermined “both the transparency and the intelligibility of the Liability Decision,” McCreary stated in her decision.
Not calling the client and her husband to testify, but relying on their statements “to ground their disciplinary action fatally undermines the fairness of the process,” McCreary added.
Wang’s argument that there was no conflict of interest because the real estate transaction was already binding at the time the loan was made was “clear” in her testimony and supported by documents, McCreary stated. She added the superintendent’s representative “didn’t appear to have reviewed the contract and its terms about the commission.”
“The Delegate was unreasonable in making his findings about the existence of a conflict of interest without analyzing the terms of the contracts,” McCreary stated.
McCreary said the superintendent’s conclusion about a conflict of interest without analyzing the documents didn’t meet the test of “reasonableness.”
The representative of the superintendent “appears to have considered the fact of the loan to be the same as a finding that there was a conflict of interest,” McCreary stated. She found Wang’s argument about the timing of the loan, after the irrevocable offer on the Richmond property, wasn’t dealt with.
McCreary concluded actions taken by the superintendent don’t meet the test of “bias” in this case, which Wang used as part of her reasons for the appeal. But, she added, “it is important, particularly in cases with self-represented parties, to take extra care to ensure consistent application of the rules of evidence and procedure amongst the parties.”
As the liability decision was set aside, there was no basis for sanctions against Wang, McCreary concluded.
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