Misconduct not ‘dishonest’ enough to lose broker licence

A real estate broker involved in a mortgage scheme gets to keep his licence following an Ontario Court of Appeal ruling.

Timothy Baxter, principal of brokerage firm T. Baxter Real Estate Ltd., was accused of acting for an individual who bought a number of properties and then relisted them at highly inflated prices soon afterwards. Two consumers complained and several mortgage lenders reported losses.

Baxter denied any “knowledge of any suspicious business activity or conduct that (he or his brokerage) knew or ought to have known was improper, unethical, or illegal,” according to the Court of Appeal’s Aug. 20 ruling in Baxter v. Ontario (Real Estate and Business Brokers Act Registrar).

In 2008, the registrar, under the Real Estate and Business Brokers Act, sought to revoke Baxter and his company’s registrations.

After a hearing, the Licence Appeal Tribunal agreed to revoke the firm’s registration but decided not to take away Baxter’s licence. The registrar appealed the decision to the Divisional Court, which upheld it, and so the registrar took the case to the Court of Appeal.

Although the tribunal made it clear it was not pleased with Baxter’s behaviour, in the end it decided that he could keep his licence. “Baxter’s failure to perform the duties expected of a registrant . . . demonstrates a serious lack of understanding of, and in some instances arguably wilful indifference to, the duties and obligations of a registrant.

“In coming to this conclusion the tribunal has given Mr. Baxter the benefit of any doubt. Although his conduct raises serious concern, in the tribunal’s opinion it is not sufficient grounds to conclude that Mr. Baxter will not carry on business with honesty and integrity and in accordance with the law,” states the decision.

“Mr. Baxter has operated in the industry without incident for many years. However, given his conduct in the recent events it is clear that he requires further education and guidance regarding the roles and responsibilities of a registrant and the changing issues facing the real estate industry,” said the tribunal.

In upholding the tribunal’s decision, Justice Janet Simmons wrote on behalf of the court: “The reasons indicate that the tribunal was satisfied that Mr. Baxter was wilfully blind and reckless — and therefore had imputed knowledge of the mortgage fraud; however, the tribunal was not satisfied that Mr. Baxter actually turned his mind to the fraud.

“Further, the reasons indicate that the tribunal was satisfied that the primary cause of the appellant’s misconduct was his failure to appreciate the full scope of his duties, rather than dishonesty per se.”

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