When can evidence that reinforces or confirms the foundational allegation be used by a regulator? In Hodge v. Registrar Real Estate and Business Brokers Act, 2022 ONSC 7206 (CanLII), the Divisional Court indicated that reinforcing evidence must be employed fairly. The registrant (a real estate broker) was the subject of a notice of proposal for providing false statements on their application for renewal of registration related to the completion of certain educational courses (his office administrator had allegedly completed the online courses) and stating that he was not engaged in another business (he was an officer and director of another business). During the hearing additional evidence was introduced that the registrant had used appalling language toward an employee and had halted a workplace harassment investigation initiated by the employee when the registrant became the sole owner of the brokerage. In determining whether the false statements provided reasonable grounds to believe that the registrant would not carry on business in accordance with the law and with integrity and honesty the tribunal relied on the additional evidence in making the finding.
The Court concluded that doing so was procedurally unfair. Notice of the additional matters was not provided in the notice of proposal or in the opening statement at the hearing. The evidence was led over the objections of the registrant. In light of the use of the evidence by the tribunal, the Court was not prepared to conclude that it made no difference to the outcome. The Court directed a new hearing that was procedurally fair. The Court did not issue directions as to whether the additional allegations could be added to the new hearing. It simply directed that a fair procedure be followed.
If a regulator provides early notice that reinforcing or confirmatory evidence will be relied upon, there may be a greater chance that the proceeding will be considered procedurally fair.