Redekop v. Okanagan Mainline Real Estate Board

2018 BCCA 226 Redekop v. Okanagan Mainline Real Estate Board

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Redekop v. Okanagan Mainline Real Estate Board, 2018 BCCA 226 Date: 20180608 Docket: CA44372 Between: Kent Redekop Appellant (Plaintiff) And Okanagan Mainline Real Estate Board Respondent (Defendant) Before: The Honourable Madam Justice Saunders The Honourable Mr. Justice Harris The Honourable Madam Justice Fenlon On appeal from: An order of the Supreme Court of British Columbia, dated March 15, 2017 (Redekop v. Okanagan Mainline Real Estate Board, 2017 BCSC 417, Kamloops Registry S51099). Counsel for the Appellant: R. Burke Counsel for the Respondent: D.R. Bennett, Q.C. L. Hamill Place and Date of Hearing: Kamloops, British Columbia March 29, 2018 Place and Date of Judgment: Vancouver, British Columbia June 8, 2018 Written Reasons by: The Honourable Mr. Justice Harris Concurred in by: The Honourable Madam Justice Saunders The Honourable Madam Justice Fenlon Summary: Mr. Redekop was disciplined by the real estate board to which he belongs. A complaint was made against him and then investigated by a sub‑committee who determined Mr. Redekop may have breached the association's Code of Ethics. Mr. Redekop did not consent to discipline and so a hearing was held. The hearing panel found he had breached the Code of Ethics. Mr. Redekop's internal appeal was dismissed. He commenced an action against the real estate board, claiming

procedural unfairness in the discipline process and invalid regulations. The judge found he had been given notice and had the opportunity to be heard before an unbiased panel and dismissed the proceedings. Mr. Redekop appealed. Held: appeal dismissed. The regulations at issue do not create an unfair process. None of the procedural breaches alleged by Mr. Redekop amounted to a breach of contract. The procedure employed by the board, while not perfect, was fair. Reasons for Judgment of the Honourable Mr. Justice Harris: Introduction [1] This appeal arises out of a disciplinary hearing into the conduct of the appellant, Mr. Redekop, by the Okanagan Mainline Real Estate Board ("Board"), a voluntary member-based association of real estate agents, of which Mr. Redekop is a member. [2] After a complaint was made by another member, Ms. Bentley, Mr. Redekop appeared before a panel of the Professional Conduct Committee ("Hearing Panel"), which found he had breached Article 20 of the Board's Code of Ethics. Mr. Redekop availed himself of an internal appeal procedure, alleging a number of breaches of procedural fairness before the Hearing Panel, as well as errors in the interpretation of Article 20. His appeal was dismissed. [3] Mr. Redekop then commenced an action against the Board alleging that the conduct of the hearing and the appeal involved breaches of procedural fairness and

depended on invalid regulations, thereby breaching the contract constituting the association. His action was dismissed. The judge concluded that it was not open to her to declare certain regulations invalid and that, on the limited basis of review open to her, there had been no breaches of procedural fairness and therefore no breach of contract. She found that Mr. Redekop had received adequate notice of the allegations against him, a fair opportunity to respond to them, and the benefit of an unbiased tribunal to adjudicate the issues concerning his conduct. It is from this judgment that Mr. Redekop appeals. In short, he renews the principal arguments rejected by the judge, contending that her conclusions rested on legal error. [4] Before turning to the particulars of the appeal, it is worth noting that in broad terms the parties agree on the legal principles applicable to a review of a discipline hearing conducted under the rules of a voluntary association. In short, they are that a member of such an association is entitled to adequate notice of allegations against him or her, a fair opportunity to respond to them, and an unbiased tribunal to adjudicate them: Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165 at 175. These entitlements arise as a matter of contract between all members of the association, including the person subject to the discipline process.

Members of an association, by joining it, agree to be bound by the association's rules governing its internal procedures. While the parties agree that an association can stipulate the rules governing a discipline procedure, thereby modifying what might otherwise be the requirements of procedural fairness, they disagree on whether, and under what circumstances, a court has the jurisdiction to declare internal rules or regulations invalid because they violate fundamental principles of procedural justice. [5] The parties also disagree on the standard of review to be applied by this Court in reviewing the trial judgment. Mr. Redekop appeared to approach the issues on appeal as straightforward issues of legal error, reviewable on a standard of correctness. The Board contended that most issues raised on appeal engaged issues of mixed fact and law. Accordingly, those issues should be reviewed on a deferential standard. To the extent that extricable legal issues were raised by the appeal, the Board acknowledges correctness is the standard of review, but argued that the decisions were demonstrably correct. Background [6] I will provide a broad outline of the background and proceedings underlying this appeal, but leave to later some of the finer details that arise in respect of some of the particular arguments advanced by Mr. Redekop. [7] These proceedings started with a complaint made

by Ms. Bentley against Mr. Redekop in November 2013. Both Ms. Bentley and Mr. Redekop are real estate agents and members of the Board. The complaint related to a particular prospective real estate transaction in which their respective clients were involved and related to a series of communications between Ms. Bentley, Mr. Redekop and a buyer who was or had been Ms. Bentley's client. [8] The Board is a society incorporated pursuant to the Society Act, R.S.B.C. 1996, c.

433. Membership in the Board is voluntary for a person providing real estate services. The Board is not responsible for licensing real estate agents. [9] The Board and its members are governed according to its Constitution, Bylaws and Regulations. According to s. 2 of the Board's Constitution, its purpose includes: m) To aid in the adjustment and settlement of any controversies or misunderstandings which may arise between the members of the Society. o) To adopt a Code of Ethics and Standards of Business conduct to which all members shall be required to conform. [10] The Regulations govern any disciplinary matters taken by the Board against a member. [11] Section 18(1) of the Board's Constitution and Bylaws grants the Board of Directors the authority to do the following: 18. Regulations 1) The Directors shall have the power to establish or amend Regulations, not inconsistent with these By‑Laws, in respect to the following matters: d) procedures to investigate and deal with any complaints concerning Professional Standards, including the conduct of hearings, disciplinary measures, and appeals thereof; e) establishing penalties for violation of the By‑Laws, Regulations, Code of Ethics, or Standards of Business Practice; [12] The Board has adopted regulations which include a Code of Ethics and rules of procedure for the investigation, adjudication and discipline of members against

whom a complaint has been made. These procedures include the establishment of investigative, hearing and appeal panels comprised of volunteer Board members. The Regulations are detailed, govern procedure at each stage of a discipline process, and are intended to ensure that the process complies with principles of procedural fairness. [13] Under the Regulations, the enforcement of the Code of Ethics is the responsibility of the Professional Conduct Committee, which is comprised of two divisions. When a complaint is received, one division becomes the investigative committee or panel, from which a sub‑committee is formed to review the complaint and draft a report. If the matter proceeds to a hearing, members of the hearing panel are drawn from the other division. A member of the Professional Conduct Committee who sits on the investigative committee cannot also sit on the hearing panel for the same complaint. Provision is also made for internal appeals to an appeal panel. [14] The Regulations contemplate a number of ways of mediating or consensually resolving issues failing which a formal discipline process may be invoked involving notice of alleged breaches, examination and cross-examination of witnesses, representation by counsel, legal argument and decisions made by the panel on the evidence before it. Opportunity is provided to a member to object to the membership of

panels. [15] The complaint against Mr. Redekop was made in writing and forwarded to him. As required by the Regulations, on January 8, 2014, he provided a written response, accompanied by various documents. [16] In March 2014, Mr. Redekop was interviewed by a member of the investigative sub‑committee. The investigative sub‑committee also gathered information from Ms. Bentley. [17] The investigative sub‑committee prepared a report for consideration by the investigative division of the Professional Conduct Committee. This report led to a letter, dated April 26, 2014, from the Board which reported to Mr. Redekop on the Committee's recommendation that Mr. Redekop consent to be disciplined. The letter identified two articles of the Code of Ethics Mr. Redekop was alleged to have breached. Article 20 is the material article in this appeal, as that is the article the Hearing Panel later found Mr. Redekop had breached. It reads: 20. Respecting Contractual Relationships The agency or other contractual relationship of a Registrant shall be respected by all REALTORSÒ. Negotiations regarding an offer or the acceptance of an offer with any party who is exclusively represented shall be carried on with the Registrant representing the party except with the consent of the Registrant. [18] In the letter, the Professional Conduct Committee recommended an Agreed Statement of Fact to support the

alleged breaches. The Committee advised Mr. Redekop that he could choose to deal with the matter by accepting the Statement of Fact, and agreeing to the proposed penalties (set out in Appendix B of the letter). If he disagreed with the Agreed Statement of Fact, he could have a formal hearing. The third alternative was to plead guilty to the Agreed Statement of Fact, but contest the penalty and appear at a sentencing hearing. These options are contemplated by the Regulations. [19] Attached to the letter were Parts 2 and 3 of the Board's Regulations relating to hearing and appeal procedures as well as the filing of an appeal. [20] Mr. Redekop did not agree with the Committee's proposed Agreed Statement of Fact and recommendations. Consequently, he requested that the complaint made against him be heard at a formal hearing. [21] On or about August 12, 2014, the Board provided Mr. Redekop with a Notice of Hearing concerning his alleged violation of Articles 12 and 20 of the Code of Ethics. In support of the alleged violation of Article 20, the notice stated the following: Mr. Kent Redekop neglected to honor the agency relationship between the Buyer and Buyer's Agent, by interfering and establishing repeated communication with the Buyer directly without going through the Buyer's Agent, including processing the General Release form on behalf of the Buyer's Agent. [22] I observe that

at the hearing and on appeal, Mr. Redekop expressly treated this statement as the particulars of the complaint against him. In neither hearing did he take the position that he had not been provided with particulars, that the particulars were lacking, or that he had not been provided with information about possible penalties. The point he took on appeal was a different one, namely that the conduct of which he was found "guilty" was different from what had been alleged as the particulars of his breach. [23] The hearing was held on August 26, 2014. In accordance with section 1.5(a) of the Regulations, the Hearing Panel consisted of members of the Committee who were not involved in the investigation of the complaint. Robert Groves appeared at the hearing as legal counsel for the Board. Mr. Redekop appeared and was represented by counsel who led evidence, cross-examined Ms. Bentley, and made submissions on his behalf. The Hearing Panel was not given the investigative committee report or any materials from the investigation. At the conclusion of the proceedings, but before the Hearing Panel deliberated, Mr. Redekop confirmed that, other than a decision to exclude some of his evidence, the proceedings had been fair. The Hearing Panel was required to decide the case on the evidence led at the hearing. [24] In its decision, the Hearing Panel concluded that the appellant did not breach

Article 12, but did breach Article 20. The Hearing Panel provided written reasons setting out the factual findings underlying its decision, which included the following: The Panel acknowledged that this was a very complex situation and many parties contributed to the demise of this transaction. The Panel believes that Mr. Redekop had an affirmative obligation to communicate clearly with C. Bentley in regards to her intentions with her client and whether or not she would be terminating her agency relationship with her client to allow Mr. Redekop to enter into a limited dual agency with all parties. Alternatively, Mr. Redekop could have allowed C. Bentley an appropriate amount of time and the opportunity to properly represent her client herself. [25] The Panel made an order imposing a penalty on Mr. Redekop including a letter of reprimand, remedial education, a fine and the publication of the findings of fact and penalty. The terms of the penalty are not material to this appeal. [26] Under the Regulations, Mr. Redekop had a right of appeal on limited grounds involving the misapplication or misinterpretation of the Code of Ethics, a procedural deficiency or lack of procedural due process in the initial hearing, or an appeal against penalty. [27] Mr. Redekop appealed the decision of the Hearing Panel, alleging a variety of procedural deficiencies in the hearing similar to those

alleged before the judge and before us, as well as an alleged misinterpretation of Article 20 of the Code. The grounds of appeal included: (a) the plaintiff had not been given notice of the allegations of misconduct found against him - the plaintiff had only been advised of the allegation that he had "neglected to honor the agency relationship between the Buyer and the Buyer's Agent, by interfering and establishing repeated communication with the Buyer directly without going through the Buyer's Agent"; (b) the plaintiff had not been advised before the hearing that the Committee "had become a party to the hearing of the complaint and would itself prosecute the allegation of misconduct against him"; (c) the Hearing Panel made findings of fact when there was no evidence to support such findings; (d) there was a lack of procedural due process in the hearing, in that the Hearing Panel found that the plaintiff failed to clearly communicate with the first buyer as to who was representing him, but refused to permit the plaintiff to lead evidence of the first buyer's complaint to the Real Estate Council of British Columbia and the disposition of that complaint; (e) the Hearing Panel misinterpreted Article 20 of the Code of Ethics; (f) the Hearing Panel was not objective or impartial, and did not have the appearance of impartiality, in that the Committee "investigated the complaint, made

recommendations for hearing, prosecuted the allegation, became a party to the hearing, and finally adjudicated the allegation"; and (g) the Hearing Panel breached its obligation to provide procedural due process by failing to provide reasons for its decision. [28] In accordance with Regulation 1.7(f), three voting members, none of whom were involved in the investigation of the complaint or the Hearing Panel, were appointed to hear the appeal ("Appeal Panel"). Mr. Groves appeared at the appeal in an advisory capacity. Mr. Redekop was once again represented by legal counsel. [29] On January 13, 2015, the Appeal Panel issued its decision ("Appeal Decision") which concluded: 1. There was procedural deficiency in the execution of the Hearing Notice as required under [the Regulations] with the exclusion of the possible penalties and a statement of particulars of allegations.

2. The omission of the schedule of possible penalties and the statement of particulars from the Hearing Notice did not prejudice the Appellant's right to prepare, present and defend himself in the Hearing proceeding.

3. The Appellant had privilege to both the schedule of possible penalties (located in Appendix C) and the statement of particulars (noted as the AGREED STATEMENT OF FACT) in correspondence sent to the Appellant via email and dated April 26, 2014.

4. In the context of a peer evaluation process, as employed by [the Board], it is procedural practice for the organization to make a claim against the member who is deemed in violation of [the Regulations] or the [Code of Ethics]. The original Complainant becomes a witness to the Hearing, and provides evidence to the proceeding. As such, the Hearing Panel conducted itself appropriately.

5. The Hearing Panel did not misapply Article 20 of the [Code of Ethics].

6. The decision of the Hearing Panel shall be upheld. [30] The penalty arising from the appeal hearing is not material to the issues on appeal. [31] I have been unable to locate in the record any indication that the deficiency identified in subparagraph 1 above and the panel's conclusion in respect of it set out at subparagraphs 2 and 3, was raised by Mr. Redekop either before the Hearing Panel or on appeal. Rather, the focus of the appeal was on whether the particulars of the complaint in the notice of hearing adequately corresponded to the findings of fact made by the Hearing Panel which supported the breach of Article 20. [32] Having failed before the Appeal Panel, Mr. Redekop started his action in the Supreme Court seeking declarations that the hearing and appeal decisions were void or invalid, principally as a result of breaches of procedural fairness, and, alternatively, that certain of the regulations breached the principles of procedural fairness and were, accordingly, invalid. The breach of the notice requirement and its consequences were first advanced as an aspect of this action. [33] I have set out above the broad basis upon which the judge dismissed the summary trial, namely that the Board followed its own regulations and that Mr. Redekop had received adequate notice, a fair opportunity to be heard, and had the benefit of an unbiased tribunal. In doing so, the

judge recognized that the action before her did not directly engage the merits of the decisions made by the Hearing Panel or their determinations of fact. [34] First, in terms of notice, the judge rejected Mr. Redekop's contention that he had not received proper notice with respect to possible penalties as required by the regulations for two reasons: (i) he received the April 26, 2014 letter in which the possible penalties were outlined; and (ii) as a result of becoming a member and thereby entering into the contract with the Board, Mr. Redekop was aware of the penalties that could be imposed on him. [35] The judge also rejected Mr. Redekop's argument that the notice was defective for failing to provide a statement of the allegations against him, contrary to Regulation 1.4 8(b). The judge found that the notice set out the two sections of the Code of Ethics that were the focus of the hearing - sections 12 and 20 - and that his own evidence clearly indicated that he knew "exactly what the complaint was at the time he received the Notice and the particulars of Ms. Bentley's allegations" (at para. 70). [36] Second, the judge found that Mr. Redekop had had a full opportunity to prepare for and respond to the charges against him. He had been represented by counsel at both hearings, gave evidence, cross-examined Ms. Bentley, and made submissions. [37] Next, the judge found that the

tribunals were unbiased. Several provisions in the Regulations protect the institutional fairness of the process: (a) none of the members of the investigative committee sit on the hearing panel for the same complaint; (b) none of the members of a hearing panel sit on the appeal panel; and (c) members are given an opportunity to challenge any member of either the hearing or appeal panel before proceedings commence. [38] The judge also accepted that there was no evidence that the decision makers did not act in good faith or that they deemed Mr. Redekop to be in breach of Article 20 before the hearings started. [39] The judge accepted that voluntarily incorporated associations are entitled to determine their own procedures and that any proposed regulation or amendment had to be circulated to members who were given an opportunity to object or make known any issues they had with them. She also concluded that she did not have the jurisdiction to invalidate those particular regulations Mr. Redekop asserted were invalid because they abrogated principles of natural justice. [40] Finally, in an extended analysis of the facts and arguments, the judge rejected a large number of specific allegations advanced by Mr. Redekop to support his argument that the Board had breached its contract by failing to provide him with procedural fairness in the hearings before the Hearing Panel and Appeal

Panel. On Appeal [41] Mr. Redekop raised multiple grounds of appeal, but in my opinion, it became clear at the hearing of the appeal that the thrust of the appeal was that the judge failed properly to appreciate the importance of a number of alleged breaches of procedural fairness which, either taken singularly or cumulatively, demonstrate that Mr. Redekop did not receive a procedurally fair hearing as was his entitlement as a member of the Board. [42] A number of arguments included in the appellant's factum that are somewhat tangential to the main issue, including the publication of the Hearing Panel results and whether the judge considered all of the submissions, were not raised during the hearing and I do not propose to address them other than to say they did not demonstrate any error that would justify intervention. [43] As I have indicated, the parties substantially agree on the law applicable to reviewing the decisions of a voluntary association engaged in disciplining one of its members. They also substantially agree that the judge correctly stated the law. [44] For the purposes of this appeal, however, they appear to diverge on the relevant standard of review. Since this is an appeal from a summary trial in an action sounding in contract, I view the ultimate question to be whether Mr. Redekop was able to demonstrate that the Board had breached the contract to which he

was a member by failing to satisfy the basic requirement that he receive adequate notice of the allegations against him, an opportunity to respond, and an unbiased tribunal all in accordance with the regulations adopted for governing the discipline process. In my view, many of the particular issues raised by Mr. Redekop engage issues of mixed fact and law and it is appropriate that we adopt a deferential standard of review to those of the judge's conclusions which were rooted in findings of fact: Housen v. Nikolaisen, 2002 SCC 33. Accordingly, I propose to address each of the specific breaches alleged by Mr. Redekop. Deficiency of the Notice of Hearing [45] Mr. Redekop has reasserted his argument at the Supreme Court that the Notice of Hearing was deficient in not setting out possible penalties, a statement of particulars of the allegations, and the documents the Board may use at the hearing. [46] The judge rejected this argument, stating that Mr. Redekop had not raised the issue of the Notice of Hearing being deficient at either the hearing or the appeal. Regardless, he had received notice of the complaint against him and knew which transaction was at issue. He was also aware of the possible penalties as they were attached to the April 2014 letter and by virtue of being a Board member. As I read the judgment, the argument was rejected principally on the basis that any

deficiencies had not led to any prejudice. [47] I see no proper basis on which to interfere with the judge's disposition. Mr. Redekop did not raise this particular deficiency in the Notice of Hearing before either the Hearing Panel or the Appeal Panel. He acknowledged knowing what the allegations entailed. Any breach of the Regulations strikes me as, at most, a technical oversight. It does not follow that a breach of a regulation governing the discipline process necessarily means that a breach of procedural fairness has occurred. One must examine the impact of the breach on the fairness of the proceeding. In my view, on the facts, I would not interfere with the judge's conclusion which was open to her on the evidence. Conduct that Breached Article 20 [48] Mr. Redekop similarly alleges that the conduct for which he was found to have breached Article 20 was not the same as the conduct outlined in the Notice of Hearing. [49] The Notice of Hearing set out the following as the basis of the breach: Mr. Kent Redekop neglected to honor the agency relationship between the Buyer and Buyer's Agent, by interfering and establishing repeated communication with the Buyer directly without going through the Buyer's Agent, including processing the General Release form on behalf of the Buyer's Agent. [50] In finding Mr. Redekop had breached Article 20, the Hearing Panel found that he had met with

Ms. Bentley's client without giving Ms. Bentley enough time to be present to represent her client or advise her client regarding certain documents Mr. Redekop asked him to sign. The Hearing Panel concluded Mr. Redekop had neglected his "affirmative obligation to communicate clearly with C. Bentley in regards to her intentions with her client" or, alternatively, "could have allowed C. Bentley an appropriate amount of time and the opportunity to properly represent her client herself." [51] Mr. Redekop says that it was procedurally unfair to find he had breached Article 20 relying on conduct different from the particulars of the complaint. He says there was no evidence that he had interfered with the buyer or established repeated communication with him, before Ms. Bentley, the buyer's "agent", had said that she would not attend a certain meeting. Only after that, believing he had the authority to deal with the buyer directly, did he do so. [52] The trial judge disposed of this argument, as I read the judgment, on the basis that Mr. Redekop knew exactly what was in issue in the hearing and was doing no more than reargue the merits of the case, something beyond her purview. [53] What is clear is that Mr. Redekop knew that the complaint alleged he had violated an obligation to respect an existing agency relationship and with negotiating an offer with a party, not that party's agent,

without consent. The underlying factual allegation focused on communications with the buyer without the agent's consent. [54] Mr. Redekop had received a copy of Ms. Bentley's original complaint. He knew exactly what transaction was in issue, who the parties were, and what communications had taken place. The facts were fully canvassed at the hearing and tested through cross-examination. Those facts included all of the communications between Mr. Redekop and Ms. Bentley, as well as Mr. Redekop and Ms. Bentley's client, including how it was that Mr. Redekop found himself in a position to deal with Ms. Bentley's client in her absence. [55] It is no doubt the case that the evidence as it emerged that was relevant to the alleged breach differed somewhat from the particulars alleged, but the fact is that Mr. Redekop did end up in communications with Ms. Bentley's client and the circumstances that led to that occurring were set out in the findings of fact that supported the finding of the breach of the article. [56] I see nothing procedurally unfair in the circumstances of this case. In my view, the particulars provided served their purpose of providing notice of the circumstances underlying the alleged breach. The case was presented and defended with the issue of whether the communications between the parties justified finding that a breach had occurred. The Hearing Panel found that

the breach was made out and expressed its findings in language that did not directly mirror the original particulars, but arose directly from them. In substance, I view Mr. Redekop's argument as an attempt to reargue what findings of fact ought to have been made by the Hearing Panel. I cannot conclude that the panel found him to have committed a violation other than the one set out in the complaint. [57] In an administrative setting, the fundamental question will be whether the proceeding was procedurally fair and, as the judge found, Mr. Redekop knew that it was alleged that he had disrespected an agency relationship in relation to a particular transaction, knew he was alleged to have improperly dealt directly with the client, had a full opportunity to defend the complaint, but now contests the findings. I would not accede to this ground of appeal. Full Disclosure of Ms. Bentley's Complaint [58] Mr. Redekop claims that he was not provided with the full details of the complaint Ms. Bentley made against him. He says any verbal assertions made by Ms. Bentley to the investigative sub‑committee should have been provided to him in advance of the hearing. The judge agreed with the Board that because the sub‑committee's report was not provided to the Hearing Panel, any statements recorded therein were irrelevant to the Panel's decision. The evidence upon which the decision was made

was presented at the hearing. [59] I agree with the judge. The Regulations do not require that a complainant's statements made to the investigative sub‑committee be given to the respondent. Rather, the Regulations contemplate that particulars be given in the Notice of Hearing. The Hearing Panel did not have any of the materials from the investigative committee. The case against the member must be proven on the basis of the evidence at the hearing. Armed with knowledge of the particulars of the alleged breach, the respondent has the opportunity to hear and challenge the complainant's evidence at the hearing. This is not a criminal process with extensive prosecutorial disclosure obligations. It is an administrative process within a voluntary association in which each member has agreed to abide by the rules. I cannot accede to the proposition that procedural fairness compels the disclosure of the complainant's statements to the investigative committee, even though the Regulations do not require it. Presence of Board Staff During Deliberations [60] Regulation 1.5 (i) xii reads: The Chair will announce the Hearing as closed. The Hearing Panel will meet without the presence of counsel or any other party and shall make a decision on the merits. [61] It is acknowledged that the Assistant Executive Director remained with the Hearing Panel members after the hearing finished. Mr. Redekop

argues that the Assistant Executive Director was a party to the hearing and was improperly involved in preparing the decision. The judge disagreed. Her conclusion is rooted in findings of fact. She had the benefit of affidavit evidence in an action in which there had been discovery of documents and examinations for discovery. Based on the evidence, she concluded that the Assistant Executive Director was not a party to the hearing, but was present solely to provide administrative support to the decision makers. There was no evidence that the Assistant Executive Director improperly participated in the decision making or that her presence had any effect on the deliberations or decision. Moreover, nothing suggested that the decision was anything other than the decision of the panel. In my view, these findings were open to the judge and no basis to interfere with them has been demonstrated. [62] In any event, I agree with the judge's view that the Assistant Executive Director is not properly viewed as a party for the purpose of the regulation. Moreover, there is nothing in the regulation which precludes the hearing panel receiving administrative assistance in drafting or preparing their decision. Indeed it would be unreasonable to require volunteer members of the Hearing Panel to discharge their responsibilities without administrative support. What matters is that the decision is

that of the panel members made as a result of their deliberations. There is no evidence that that requirement was not honoured in this case. [63] Much the same can be said for the presence of the Executive Director, Ms. Keyowski, remaining behind after the conclusion of the appeal. She similarly provided administrative assistance. [64] However, the presence of Ms. Keyowski takes on a somewhat different character because after the appeal hearing she was asked by the Appeal Panel whether Mr. Redekop had received information regarding potential penalties, given that the information was not attached to the Notice of Hearing in accordance with the Regulations. Ms. Keyowski told the Appeal Panel about the April 2014 letter. This, in turn, led to the first conclusions set out in the Appeal Decision, most particularly that Mr. Redekop had been informed of the potential penalties in that letter before the hearing and so had not been prejudiced by the deficiency in the Notice of Hearing. [65] The judge found that Mr. Redekop had not demonstrated any prejudice resulting from the additional information provided to the Appeal Panel. As I understand it, Mr. Redekop does not allege any prejudice arising from these circumstances but says the breaches of the Regulations (i.e., failing to attach the information to the Notice of Hearing, allowing Ms. Keyowski to remain with the panel after the

appeal hearing, and then making a decision that was not based on evidence led in the hearing) demonstrate breach of procedural fairness. [66] Again, I see no proper basis on which to interfere with the judge's disposition. As with the deficiencies in the Notice of Hearing, any breaches of the Regulations were minor and did not result in an unfair hearing. Deemed Violation and Bias [67] This submission is based on the statement in the Appeal Decision that: In the context of a peer evaluation process, as employed by the [Board], it is procedural practice for the organization to make a claim against a member who is deemed in violation of [the Code of Ethics]. The original Complainant becomes a witness to the Hearing, and provides evidence to the proceeding. As such, the Hearing Panel conducted itself appropriately. [Emphasis added.] [68] Mr. Redekop suggests this indicates that the Hearing Panel was not impartial and began with the assumption that he had violated the Code of Ethics. This statement must be understood in light of the ground of appeal to which it responds. That ground of appeal was that Mr. Redekop had not been advised that the Professional Conduct Committee had become a party to the hearing of the complaint and would itself prosecute the allegation of misconduct. This argument appeared to have its genesis in the wording of the Hearing Panel decision. The Appeal

Panel was responding by explaining how the Hearing Panel is institutionally and procedurally set up. [69] The judge concluded that the apparent confusion about whether the Committee was a party was nothing more than a drafting problem and did not reflect the institutional reality of the structure of the proceeding. I agree. [70] The judge also dealt with the general argument about whether the tribunal was unbiased. She noted that the Regulations avoided the potential biases described in Lakeside Colony of Hutterian Brethren and Barrie v. Royal Colwood Golf Club, 2001 BCSC 1181, by requiring separation between the members of the committees and panels and allowing members to challenge any panel members if they have concerns. She then commented: [78] At both the Hearing and the Appeal Hearing, the Panel members were introduced and the plaintiff was asked whether he had any objections to any of the members sitting on the panel. The plaintiff expressed no concern at either hearing, accepting both panels. [79] As stated in Barrie, the members of the Board and those sitting on the hearing panel have an interest in the outcome of the review and discipline of their members' behaviour relating to the Code of Ethics and Practice Standards. The purpose of the REALTOR® code is "to define the high standard of performance the public has a right to expect from those licensed to display the

REALTOR® trademark". This is an expectation which all members of the Board have an interest in. [80] Despite this vested interest that the members have in upholding their Code of Ethics, there is no evidence that the Hearing or the Appeal Panel deemed the plaintiff in violation prior to these hearings, or that there was any evidence to suggest that they did not act in good faith, or that they did not have an open mind. In considering this complaint, both panels dismissed the other allegation against the plaintiff that he was in violation of Article 12 of the Code of Ethics. [71] The judge's conclusion that there is no evidence that the Hearing or Appeal Panel deemed Mr. Redekop to be in breach before the hearing started is supported by my review of the record. There is nothing in the record of the Hearing Panel to suggest it started the hearing, which had been requested by Mr. Redekop, with anything other than an open mind and that it made its decision based on whether the complaints had been made out on the evidence. As the judge noted, the Hearing Panel determined that the allegations constituted a breach of one section of the Code of Ethics as alleged, but not the other. [72] I agree that the reference to "deemed violation" in the Appeal Decision relates to recommendations that may emerge through the investigative process, but does not support an inference that the Hearing

Panel starts its process having deemed a respondent to be in breach. The Hearing Panel was isolated from any views of the investigative committee on the merits. As the judge explained, the structure of the hearing process is intended to ensure that the hearing panel decides the case solely on the evidence before it and the basis of the charge alleged as supported by the particulars. I would not accede to this ground of appeal. The Role of Mr. Groves [73] The Regulations contemplate that counsel for the Board may appear before the hearing panel. Regarding appeals, Regulation 1.7(h) reads in part: The Appeal Panel may also have counsel present at the Hearing of the appeal for advisory purposes. Counsel may be the Board's counsel from the initial Hearing but is not a member of the Appeal Panel. [74] Mr. Groves had appeared as counsel for the Board at the initial hearing and presented the case against Mr. Redekop. He also appeared at the appeal hearing, where he disclosed that he was counsel for the Board at the hearing and that he appeared before the Appeal Panel pursuant to Regulation 1.7(h) for advisory purposes. In that capacity, he made submissions on the merits of the original decision. The judge rejected the argument, reiterated before us, that Mr. Groves could not argue the merits of the Hearing Panel decision. She viewed the wording of the regulation as permitting counsel

to advise the Appeal Panel of the correctness or incorrectness of the Hearing Panel decision. [75] Mr. Redekop says that it was a serious breach of the rules of natural justice to permit Mr. Groves to advise the Appeal Panel on the merits of the decision. He argued that to do so was contrary to the well-known principles outlined in Northwestern Utilities Ltd. v. Edmonton, [1979] 1 S.C.R. 684. [76] For my part, I do not think the Northwestern Utilities Ltd. principles prevent Mr. Groves from making submissions on the merits on an internal appeal in a voluntary association. Apart from anyone else, there is no other counsel realistically available who can provide the panel with submissions in support of the decision. The Regulations do not contemplate the presence of two counsel, one to support the decision and one to advise the panel. [77] Having said that, I do think the wording of the regulation is unfortunate. There is some force to the point that offering advice to an appeal body is different from offering submissions as to the merits of the issue before it. Advice, for example, may relate to what factors an appeal body might take into account in discharging its duties to decide whether to admit new evidence, what the obligation to give reasons might require, what the scope of its jurisdiction is, how to go about deciding whether to give effect to an objection to what could

be considered a new argument, and a plethora of other issues not dealing with the correctness of the decision. The advice might encompass what test to apply in dealing with issues of this kind. In giving advice, the panel would expect counsel to be giving objective, independent advice. This role is different from making submissions on the merits in support of a decision, no matter how non‑adversarial and fair minded those submissions might be. [78] It is possible to interpret the regulation narrowly as permitting counsel to make only advisory submissions of the type I have characterized above and not to authorize under the rubric of "advisory purposes" submissions on the merits. Certainly, such an interpretation would assuage a concern that an appeal panel might be inclined to follow the advice it receives from counsel on the merits, rather than independently weigh the arguments of both sides on the merits. It would address a concern about the same counsel making submissions in different capacities; as advisor and as advocate. The judge gave the regulation a broader interpretation, concluding that advisory purposes included advice on the merits. [79] I conclude that the judge correctly interpreted the regulation and that the commitment to procedural fairness manifest as a guiding principle elsewhere in the Regulations do not compel a narrower interpretation. In the first instance, it is for the tribunal to interpret its own regulations: Kwantlen University College Student Association v. Canadian Federation of Students - British Columbia Component, 2011 BCCA 133 at para.

31. Reading the regulations as a whole, it appears that what is contemplated is that the decision makers and the parties have the benefit of counsel, if they chose, to lead and test the evidence and make all relevant submissions on the issues to be adjudicated. Armed with the assistance that counsel can provide, the decision makers are to make their own decisions based on the evidence and within the defined parameters of the issues before them in the hearing or on appeal. The overall scheme set out in the Regulations contemplates the availability of counsel able to address all relevant issues for the consideration of the decision makers. It does not fit with this scheme to suppose that the intention of the drafters of the regulation was to deprive the Appeal Panel of the benefit of the submissions of counsel on the merits of the decision they had to review. While the phrase "advisory purposes" is ambiguous, and its choice perhaps unfortunate, I accept that the regulation authorized Mr. Groves to make submissions on the merits and that the Appeal Panel did not breach the regulation in permitting Mr. Groves to make submissions. [80] Before leaving this aspect of the argument, on my review of the appeal proceedings, Mr. Groves was careful in his comments to the Appeal Panel to ensure that they understood when he was making submissions in support of the merits and that it was for

them to decide for themselves whether to accept or reject his submissions. I do not think that there could have been any confusion in practice when Mr. Groves was advocating in support of the initial decision rather than offering some other more general or independent "advice" on the nature of the Appeal Panel's obligations. Conclusion on Specific Alleged Breaches [81] As I have explained, I am unable to give effect to the argument that any of the alleged breaches of procedural fairness rise to the level of a breach of contract capable of supporting the declarations sought. As a general proposition, I find that Mr. Redekop attempts to hold what is a voluntary association that has devised its own rules to more exacting standards than reasonably can be required of such an organization; indeed, to more exacting standards than those applicable to statutory bodies which are directly subject to judicial review. This is not to undervalue the importance of procedural fairness in the discipline process of a voluntary organization. Here, the Board has recognized the importance of procedural fairness in the Regulations governing discipline and which the members have agreed to be bound by. As a general proposition, those regulations exemplify a high and rigorous standard of procedural fairness. As the judge found, and I agree, the fundamental requirements of procedural fairness were met in

this case, whatever minor errors may have occurred. This leaves only one issue to consider. That issue is whether the judge erred in not declaring certain regulations to be invalid because they breach the rules of natural justice, even though they had been agreed to by the members. Validity of Regulations [82] As a general rule, the parties agree that a voluntary association is free to devise its own rules and, at least to a certain extent, contract out of rules of procedural fairness that would otherwise apply: Terrace Bottle Depot v. Encorp Pacific (Canada), 2004 BCCA 582 at para. 38, leave to appeal ref'd [2005] S.C.C.A. No. 7. [83] Mr. Redekop contends that the judge erred in not declaring four regulations invalid. He describes the impugned regulations as follows: a) Reg Part I, s. 6 (f), which requires the Investigative Panel to conclude whether a breach of the bylaws may have occurred. Its function is not to find guilt. b) Reg 1.7 (h), which authorizes counsel for the Board at the disciplinary hearing to be the advisor to the Appeal Panel; c) the amendment approved January 22, 2015 that authorizes the Hearing Panel to award costs against a respondent, who is found guilty of conduct that is disclosed during the course of a disciplinary hearing; and d) Reg 1.5 (xiii), which effectively dispenses with the need for the Hearing Panel to provide reasons for its decision. It

requires only a statement of what bylaw or regulation has been violated. [84] The judge rejected Mr. Redekop's argument, relying on Justice Groves' summary of the relevant law regarding court interference with a voluntary organization's procedures in Farren v. Pacific Coast Amateur Hockey Association, 2013 BCSC 498. Given that members agree to the Regulations when they join the Board and have the opportunity to give feedback on proposed changes, the judge concluded that she could not declare the regulations invalid. [85] Mr. Redekop now contends the courts have repeatedly held that their supervisory role includes determining whether the rules of a club are contrary to the rules of natural justice. He argues that a club's rules must comply with the rules of natural justice and if they do not, they will be declared invalid because members are not free to make any contract they like. The Board supports the judge's interpretation of the law and contends that Mr. Redekop misreads or misapplies the authorities he relies on. [86] I do not think it necessary to engage in an analysis of whether and to what extent a court has the jurisdiction to declare the regulations of a voluntary association invalid. In my view, none of the impugned regulations are inconsistent with the rules of natural justice. [87] Regulation 1.4 6 (f) provides: Where the Sub‑Committee recommends a Hearing be held

before the Hearing panel and where the majority of the Investigative Panel concurs, or where the majority of the Investigative Panel, whatever the recommendations of the Sub‑Committee, concludes that a breach of the By‑laws may have occurred and that a Hearing by Hearing Panel is justified in all the circumstances, the Investigative Panel may direct that a Hearing be held. [88] The regulation does no more than permit an investigative panel to direct a hearing in circumstances where it concludes a breach of the bylaws may have occurred. The regulation does not authorize the investigative panel to find guilt, only to decide that there is a sufficient basis to hold a hearing. Any findings of guilt are made by the Hearing Panel which is institutionally insulated from the investigative panel. [89] Regulation 1.7 (h) provides: An Appellant may appear personally or with legal counsel. The Board must receive five (5) business days written notice if the Appellant wishes to be represented by legal counsel at an Appeal Hearing. The Appeal Panel may also have counsel present at the Hearing of the appeal for advisory purposes. Counsel may be the Board's counsel from the initial Hearing but is not a Member of the Appeal Panel. No notice has to be given to any party of the Board's intention to have counsel present at the Hearing of the appeal. [90] I have commented on this regulation above.

Although less than ideally drafted, permitting counsel who appeared at the Hearing Panel to make submissions to the Appeal Panel, if necessary on the merits of the decision, is not fundamentally inconsistent with procedural fairness. The appeal process as a whole is structured to ensure that the panel members decide the issue on the record with the benefit of legal argument on all issues relevant to their decision. [91] Regulation 1.5 (i) xiii provides: The decision of the Hearing Panel will consist of a statement of the Bylaws/Regulations of the Board which have been violated, if any, in the opinion of the Hearing Panel and the penalties that are imposed, if any. A copy of the decision will be sent to the Member. [92] All that this regulation does is identify what constitutes the decision of the Hearing Panel. It functions in much the way a definition of an order might function to define and identify the decision of a court. Nothing removes any obligation or desire the Hearing Panel might have to explain the basis of the decision by providing reasons in support of the decision. [93] The amendment changing the regulation concerning costs for a hearing post-dates the hearing in this case. In any event, there is nothing inherently unfair in the regulation, provided a respondent has a proper opportunity to respond. Conclusion [94] I would dismiss the appeal. "The Honourable Mr. Justice Harris" I agree: "The Honourable Madam Justice Saunders" I agree: "The Honourable Madam Justice Fenlon"