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Vancouver advises B.C. Real Estate Association as it Intervenes on a Petition Regarding the Scope of the Superintendent of Real Estate’s Power

July 12, 2018 Client: British Columbia Real Estate Association (BCREA)

Our Vancouver office is representing the British Columbia Real Estate Association (BCREA), in a leave to intervene on a petition by the Superintendent of Real Estate to the BC Supreme Court. The Court will be tasked with interpreting a recently introduced section of BC’s Real Estate Services Act for the first time. The legislation was introduced to address the growing public demand for greater regulation of the real estate industry in BC. The outcome of the petition has the potential to significantly impact the regulation of the real estate industry in BC and could therefore affect each of the BCREA’s 22,000 members, who are licenced and regulated by the respondents under the Act.

The Superintendent recently interpreted the legislation as providing him with the power to compel the BC Real Estate Council, the co-regulator, to issue a notice of hearing to a licensee, even after the Council has determined that any alleged conduct did not warrant a hearing. The Council asserts that, once it has rendered a final decision, it is functus officio. The Superintendent asserts that he is entitled to deference in his interpretation, and that the section gives him the authority to direct the Council to issue a notice of hearing. He is asking the Court for a mandamus remedy. The Superintendent also states that procedural fairness concerns should play little to no role in the interpretation of the statute. BCREA believes that the Superintendent’s proposed interpretation of the section will strip licensees of procedural rights, to which they are entitled, and will result in several absurdities.

BCREA will propose that the section be read to limit the Superintendent’s powers, such that he cannot compel the issuance of a notice of hearing after the Council has rendered a decision, or to provide robust procedural protections if he can.

The hearing is scheduled for July 11 & 12, 2018.