Real Estate Council of Ontario v. Virk, 2016 ONCJ 451

CITATION: Real Estate Council of Ontario v. Virk , 2016 ONCJ 451 (revised on July 22, 2016 after judgment released) IN THE MATTER OF the Real Estate and Business Brokers Act, 2002 , S.O. 2002, c. 30, Sched. C Between Her Majesty the Queen in Right of Ontario (Real Estate Council of Ontario) prosecutor and Gurdeep Virk and Mokshi Virk defendants Ontario Court of Justice Brampton, Ontario Quon J.P. Reasons for Judgment Charges :

(1) Gurdeep Virk while not registered under the Real Estate and Business Brokers Act, 2002 , and Mokshi Virk as a party to the offence, did trade in real estate as defined in s. 1 of the Act, by being actively involved in open houses, contract negotiation and providing client advice contrary to s. 4(1) (

d) of the Real Estate and Business Brokers Act, 2002 and thereby contravened s. 40(1)(

c) of the said Act.

(2) Mokshi Virk being a registrant as defined by s. 1 the Real Estate and Business Brokers Act, 2002 , did commit the offence of furnishing false information relating to a trade in real estate by preparing a false Buyer’s Representation Agreement for buyers Sashikalabahen Bardoliwala and Bharatkumar Bardoliwala and furnishing said document in a civil court action contrary to s. 35 of the Real Estate and Business Brokers Act, 2002, and thereby contravened s. 40(1)(

c) of the said Act.

(3) Mokshi Virk being a registrant as defined by s. 1 the Real Estate and Business Brokers Act, 2002 , did commit the offence of furnishing false information relating to a trade in real estate by preparing a false Buyer’s Representation Agreement for buyers Dheeraj Kohli and Reena Kohli and furnishing said document in a civil court action contrary to s. 35 of the Real Estate and Business Brokers Act, 2002, and thereby contravened s. 40(1)(

c) of the said Act. Trial held : November 18, 19, and 25, 2015; March 31, 2016;

Judgment released: July 21, 2016. Counsel: Snell, T., counsel for the Real Estate Council of Ontario. Ennis, J., counsel for the defendants. Cases Considered or Referred To: Croatian Credit Union (Liquidator of) v. Vinski, [2014] O.J. No. 2962 (O.C.J.), per Green J. R. v. Briscoe, 2010 SCC 13 , [2010] 1 SCR 411 (S.C.C.). R. v. Fingold, [1996] O.J. No. 3464 (Ont. Ct. (Prov. Div.)), per Babe J. R. v. Handy, 2002 SCC 56 , [2002] S.C.J. No. 57 (S.C.C.). R. v. Isaac, (SCC), [1984] 1 S.C.R. 74 (S.C.C.). R. v. Mansour, (SCC), [1979] S.C.J. No. 77 (S.C.C.). R. v. Sault Ste.

Marie (1978), (SCC), 40 C.C.C. (2d) 353 (S.C.C.). R. v. Thatcher, (SCC), [1987] 1 S.C.R. 652 (S.C.C.). R. v. Vu, 2012 SCC 40 , [2012] S.C.J. No. 40 (S.C.C.). Real Estate Council of Ontario v. Wang, [2013] O.J. No. 4294 (O.C.J.), per Fairgrieve J. Statutes, Regulations and Rules Cited: Code Of Ethics Regulation (Real Estate and Business Brokers Act, 2002), O. Reg. 580/05. Provincial Offences Act, R.S.O. 1990, c. P.33, s. 77(1) and 77(1)(c). Real Estate and Business Brokers Act, 2002, S.O. 2002, c. 30, Sched. C, ss. 1, 1(1), 4(1)(d), 21(4), 35, 37, 40(1)(c), 40(3), 40(4), and41(1).

Authorities Considered or Referred To: Black, H.C. Black’s Law Dictionary, 4th ed. St. Paul, Minn.: West Publishing, 1968, “abet” at p. 17; “false” at p. 721. Exhibits entered: Exhibit "1" - Copy of Agreement of Purchase and Sale (not accepted by buyers) dated April 19, 2012, for the buyers, Dheeraj Kohli and Reena Kohli for the property at 43 Windmill Blvd., Brampton for $395,000 (9 pages).

Exhibit "2" - Copy of Statement of Claim issued by the Small Claims Court at 7755 Hurontario Street, Brampton, on October 10, 2012, between plaintiff, Royal Star Realty Inc., and defendants, Dheeraj Kohli and Reena Kohli (4 pages). Exhibit "3" - Copy of Buyer’s Representation Agreement – Authority for Purchase or Lease between Royal Star Realty Inc. (by real estate agent Mokshi Virk) and Dheeraj Kohli and Reena Kohli dated April 20, 2012 (3 pages).

Exhibit "4" - Copy of Buyer’s Representation Agreement – Authority for Purchase or Lease between RE/MAX Legacy Realty Inc. (by real estate agent Major Singh Nagra) and Dheeraj Kohli and Reena Kohli dated May 1, 2012 (3 pages). Exhibit "5" - Copy of Working with a Realtor - The Agency Relationship document acknowledged for RE/MAX Legacy Realty Inc. by Dheeraj Kohli and Reena Kohli, as buyers, dated May 12, 2012 (1 page). Exhibit "6” - Copy of complaint form filed with RECO by Dheeraj Kohli, as buyer, dated July 19, 2013, in regards to salesperson Mokshi Virk of Royal Star Realty Inc. (5 pages).

Exhibit "7” - Copy of letter dated September 4, 2013, authored by Dheeraj Kohli and addressed to Brinnel Rodrigues of RECO regarding case file #201301660 and complaints against Mokshi Virk and Gurdeep Virk (1 page). Exhibit "8” - Copy of Defence to Small Claims Civil Action: (filed on October 31, 2012) Royal Star Realty Inc. v. Reena Kohli and Dheeraj Kohli , Court file #SC-12-007209-00 (Small Claims Crt. at 7755 Hurontario Street, Brampton) (7 pages). Exhibit "9" - Copy of Judgment in Small Claims Civil Action: (released on September 9, 2014) Royal Star Realty Inc. v.

Reena Kohli and Dheeraj Kohli , Court file #SC-12-007209-00 (Small Claims Crt. at 7755 Hurontario Street, Brampton), per Richardson, D.J. (5 pages). Exhibit "10” - Copy of p. 94 from transcript of testimony of Dheeraj Kohli given in examination-in-chief in Small Claims trial between Royal Star Realty Inc. v. Reena Kohli and Dheeraj Kohli (1 page). Exhibit "11” - Copy of Agreement of Purchase and Sale dated May 12, 2012, for the buyers, Dheeraj Kohli and Reena Kohli for the property at 35 Banting Cres., Brampton, for $378,000 (accepted by all on May 13, 2012) (10 pages).

Exhibit "12” - Copy of real estate listing for 21 Eastview Gate, Unit 22, last updated on May 2, 2012, for $389,900 (1 page).

Exhibit "13” - Copy of Agreement of Purchase and Sale dated May 2, 2012, for the buyers Bharat Bardoliwala and Shashi Bardoliwala for the property at 21 Eastview Gate, Unit 22, Brampton for $388,000 (accepted by all on May 3, 2012) (9 pages). Exhibit "14” - Copy of Confirmation of Co-operation and Representation with brokerage, Royal Star Realty Inc. (Mokshi Virk as salesperson representative), for the buyers of property at 21 Eastview Gate, Unit 22, Brampton for Purchase supposedly signed by Bharat Bardoliwala and Shashi Bardoliwala, as buyers, on May 2, 2012 (1 page).

Exhibit "15” - Copy of TD bank cheque for $5000 payable to HomeLife/United Realty Inc. for 21 Eastview Gate, Unit 22, and receipt from HomeLife/United Realty Inc. for $5000 for Bharat (Mokshi Virk Royal Star) for 21 Eastview Gate, Unit 22, and business card of Mokshi Virk of Royal Star Realty Inc. (1 page). Exhibit "16” - Copy of Mutual release document dated May 8, 2012, between buyers, Bharat Bardoliwala and Shashi Bardoliwala, and sellers of 21 Eastview Gate, Unit 22 property in regards to Agreement of Purchase and Sale dated May 2, 2012 (1 page).

Exhibit "17” - Copy of TD Canada Trust Bank mortgage decline letter for applicants, Bharat Bardoliwala and Shashi Bardoliwala, dated May 12, 2012 (also addressed to Mr. Markoz Izdihar and Ms. Elia Daren in salutation line) (1 page). Exhibit "18” - Copy of emails, in which top email is dated May 17, 2012, at 5:29 p.m., regarding picking up deposit cheque from Homelife Realty between Mokshi Virk and Bharat Bardoliwala (2 pages).

Exhibit "19” - Copy of Statement of Claim issued by the Small Claims Court at 7755 Hurontario Street, Brampton, on December 7, 2012, between plaintiff, Royal Star Realty Inc., and defendants, Bharat Bardoliwala and Shashi Bardoliwala (4 pages). Exhibit "20” - Copy of Buyer’s Representation Agreement – Authority for Purchase or Lease between Royal Star Realty Inc. (by real estate agent Mokshi Virk) and Bharat Bardoliwala and Shashi Bardoliwala dated May 2, 2012 (3 pages).

Exhibit "21” - Copy of Working with a Realtor - The Agency Relationship document Royal Star Realty Inc. and Bharat Bardoliwala and Shashi Bardoliwala, as buyers, dated May 2, 2012 (1 page). Exhibit "22” - Copy of email thread with top email dated 17 Nov 2015 1:36 PM between Mokshi Virk and John Ennis which contains Copy of Buyer’s Representation Agreement – Authority for Purchase or Lease between Royal Star Realty Inc. and Bharat Bardoliwala and Shashi Bardoliwala dated May 2, 2012 (5 pages).

Exhibit "23” - Copy of Royal Star Realty Inc. sale sheet prepared by Mokshi Virk for property at 26 Huckleberry Square, Brampton with contract listing date of July 6, 2012, and sold at $263,000 on August 1, 2012, and listed at $265,000, with last update at August 1, 2012 (1 page). Exhibit "24” - Copy of GeoWarehouse report dated February 2, 2013 at 10:31 AM for property at 26 Huckleberry Square, Brampton, indicating that property purchased on October 22, 2010, for $204,500 and transferred on October 12, 2012 for $263,000 (1 page).

Exhibit "25” - Royal Star Realty Inc. sale sheet prepared by Mokshi Virk for property at 15 Heatherside Crt., Brampton with contract listing date of July 24, 2012, and sold at $245,700 on August 5, 2012, and listed at $254,000, with last update at August 16, 2012 (1 page). Exhibit "26” - Copy of 5 property listings prepared by Mokshi Virk of Royal Star Realty Inc. (5 pages).

Exhibit "27” - Copy of Gmail dated Sat, May 5, 2012 at 9:57 AM providing receipt for deposit for 21 Eastview Gate, Unit 22, from Homelife/United Realty, mutual release email dated Tue, May 8, 2012 at 12:34 PM, and email dated Tue, May 8, 2012 at 4:43 PM between Mokshi Virk and Bharat Bardoliwala (1 page). Exhibit "28” - Copy of Agreement of Purchase and Sale dated August 29, 2010, for the buyers, Praful Chandra Vandra and Parul Vandra for the property at 25 Gore Valley Trail, Brampton for $552,000 (accepted by all on August 29, 2010) (6 pages).

Exhibit "29” - Copy of complaint form filed on May 12, 2011, with RECO by Prafulchandra Vandra, as buyer, dated May 11, 2011, in regards to salesperson Mokshi Virk of Royal Star Realty Inc. (22 pages). Exhibit "30” - Copy of notice of complaint filed by Prafulchandra Vandra sent by Deputy Registrar of RECO to Mokshi Virk dated May 19, 2011, requesting response from Mokshi Virk, and a copy of the response from Mokshi Virk to the Deputy Registrar for RECO dated June 10, 2011 (25 pages).

Exhibit "31” - Copy of notice of complaint letter dated January 30, 2013, sent by Deputy Registrar of RECO to Mokshi Virk, requesting response from Mokshi Virk in regards to complaint filed by Bharatkumar Bardoliwala and Shashikalabahen Bardoliwala on January 24, 2013, with RECO (15 pages). Exhibit "32” - Copy of response from Parminder Dhillon, Broker of Record, of Royal Star Realty Inc. dated February 26, 2013, sent to Deputy Registrar of RECO, which also includes response from Mokshi Virk to the Deputy Registrar for RECO dated February 15, 2013, in regards to complaint filed by Dr.

Bharatkumar Bardoliwala and Shashikalabahen Bardoliwala with RECO (59 pages). Exhibit "33” - Copy of notice of complaint filed by Dheeraj Kohli sent by Deputy Registrar of RECO to Mokshi Virk dated August 2, 2013, requesting response from Mokshi Virk (4 pages). Exhibit "34” - Copy of response from Mokshi Virk response dated August 27, 2013, sent by fax on September 1, 2013, to the Deputy Registrar for RECO, in regards to complaint filed by Dheeraj Kohli with RECO (29 pages).

Exhibit "35” - Copy of Director’s Certificate dated April 4, 2014, under s. 47 of REEBA 2002 in regards to Gurdeep Virk not appearing in RECO records as a person registered to trade in real estate (1 page). Exhibit "36” - Copy of Director’s Certificate dated April 4, 2014, under s. 47 of REEBA 2002 in regards to Mokshi Virk appearing in RECO records as a person registered as a salesperson with Royal Star Realty from January 18, 2010 to September 13, 2012 and as a broker with Royal Star Realty Inc. from September 14, 2012 to present (1 page).

Exhibit "37” - Copy of list of 4 real estate courses taken and completed by Gurdeep Virk from the Ontario Real Estate Association (OREA) from October 12, 2004 to July 6, 2013 (dated July 22, 2013) (1 page). Exhibit "38” - Copy of handwriting analysis report from Jacqueline Osmond, forensic scientist of Centre of Forensic Sciences dated January 6, 2014, in regards to signatures and initials of Dheeraj Kohli and Reena Kohli (3 pages).

Exhibit "39” - Copy of handwriting analysis report from Jacqueline Osmond, forensic scientist of Centre of Forensic Sciences dated August 13, 2014, in regards to signatures and initials of Dheeraj Kohli and Reena Kohli and for Bharatkumar Bardoliwala and Shashikalabahen Bardoliwala (5 pages).

Exhibit "40” - Copy of handwriting analysis report from Jacqueline Osmond, forensic scientist of Centre of Forensic Sciences dated January 14, 2015 (the report had been incorrectly dated January 14, 2014), in regards to signatures and initials of Dheeraj Kohli and Reena Kohli and for Bharatkumar Bardoliwala and Shashikalabahen Bardoliwala (5 pages).

Exhibit "41” - Copy of letter written by Craig Sanson, RECO investigator dated September 9, 2013, to Parminder Dhillon, Broker of Record, for Royal Star Realty Inc. in regards to a request for original documents for Mokshi Virk for 56 Manitou Cres from APRIL 2010, Agreement of Purchase and Sale for 43 Windmill Blvd. for consumer Kohli, and Agreement of Purchase and Sale for 21 Eastview Gate, #22, for Bardoliwala (2 pages).

Exhibit "42” - Copy of response from Parminder Dhillon, Broker of Record, of Royal Star Realty Inc. dated September 19, 2013, sent to Craig Sanson, RECO investigator, in regards to September 9, 2013, request for original documents by RECO (29 pages). Exhibit "43” - Copy of letter from Deputy Registrar for RECO dated October 24, 2011, to Mokshi Virk advising there is no conclusive evidence to support non-compliance with the REEBA 2002 in respect to allegations made by Prafulchandra Vandra and that no further action will be taken (3 pages).

Exhibit "44” - Copy of waiver signed by Prafulchandra Vandra and Parul Vandra as buyers and with the sellers dated September 3, 2010 in respect to Agreement of Purchase and Sale dated August 29, 2010 (1 page). Exhibit "45” - Copy of cheque drawn from Mokshi Virk’s bank account dated February 15, 2011, for $500 that had been made payable to Praful Vandra, (1 page).

Exhibit "46” - Copy of emails which included Agreement of Purchase and Sale and copy of TD bank cheque for $5000 payable to HomeLife/United Realty Inc. for 21 Eastview Gate, Unit 22, and receipt from HomeLife/United Realty Inc. for $5000 for Bharat (Mokshi Virk Royal Star) for 21 Eastview Gate, Unit 22, and business card of Mokshi Virk of Royal Star Realty Inc. that were sent on FRI 2012-05-04 10:04 AM from Mokshi Virk to Bharatkumar Bardoliwala (12 pages).

Exhibit "47” - Copy of emails which included copy of TD bank cheque for $5000 payable to HomeLife/United Realty Inc. for 21 Eastview Gate, Unit 22 and receipt from HomeLife/United Realty Inc. for $5000 for Bharat (Mokshi Virk Royal Star) for 21 Eastview Gate, Unit 22, and business card of Mokshi Virk of Royal Star Realty Inc. that were sent on FRI 2012-05-05 10:01 AM from Mokshi Virk to Bharatkumar Bardoliwala (2 pages).

Exhibit "48” - Copy of fax sent to Raj Anand on May 14, 2012, which included copy of TD Canada Trust Bank mortgage decline letter for applicants, Bharat Bardoliwala and Shashi Bardoliwala, dated May 12, 2012 in regards to TD mortgage application by the Bardoliwalas (also addressed to Mr. Markoz Izdihar and Ms. Elia Daren in salutation line) (2 pages). Exhibit "49” - Copy of Royal Star Realty Inc., Brokerage, Offer Prep Form dated May 2, 2012, in regards to Offer made by Bharat Bardoliwala and Shashi Bardoliwala (1 page). Exhibit "50” - Copy of blank Royal Star Realty Inc., Brokerage Trade Record Sheet (1 page).

Exhibit "51” - Copy of letter written by Parminder Dhillon, Broker of Record, for Royal Star Realty Inc., Brokerage, dated May 20, 2014, in regards to job letter for Mokshi Virk (1 page). Exhibit "52” - Copy of language interpreter certificate from MCIS dated April 1, 2010, for Gurdeep Virk (1 page). Exhibit "53” - Copy of language interpreter certificate from Ontario Ministry of Citizenship and Immigration dated February 2010, for Gurdeep Virk (1 page). Exhibit "54” - Copy of Certificate of Completion for requirements for ESL/Medical Terminology for Gurdeep Virk dated March 26, 2011 (1 page).

Exhibit "55” - Copy of Certificate of Completion for Gurdeep Virk dated November 27, 2011, in regards to completing REMIC Mortgage Agent Course from the Real estate and Mortgage Institute of Canada Inc., Toronto, Ontario (1 page). Exhibit "56” - Copy of Certificate of Training for Gurdeep Virk dated November 10, 2013, in regards to basic private investigation training (1 page). Exhibit "57” - Copy of Real Estate College (OREA) course transcript history indicating the real estate courses that Gurdeep Virk had taken and completed (1 page). Exhibit "58” - Copy of Gurdeep Virk’s identification documents (1 page).

Exhibit "59” - Copy Gurdeep Virk’s firearm certificate and identification cards (1 page). Exhibit "60” - Copy of letter showing results for Interpreter Language test taken by Gurdeep Virk dated 23-Feb-10 (1 page). Exhibit "61” - Copy of announcement indicating that Gurdeep Virk was runner up to the 2014 MCIS interpreter of the year award (1 page). Exhibit "62” - Copy of TREB course list completed by Gurdeep Virk dated Fr, Aug 15, 2014 at 323 PM (1 page).

Exhibit "63” - Copy of undated letter from a family physician in regards to Mokshi Virk’s medical problems following motor vehicle accident in 2008, 2010, 2011 and June 2015 (1 page). Exhibit "64” - Copy of Royal Star Realty Inc. earnings report for Mokshi Virk for the period from January 01, 2010 to December 31, 2010 (4 pages). Exhibit "65” - Copy of Open House guest register undated form for 3 properties indicating Dheeraj Kohli had signed in (1 page).

Exhibit "66” - Copy of Gmails with top date Tue, May 8, 2012 at 4:42 PM from Mokshi Virk to Bharatkumar Bardoliwala with copy of Buyer Representation Agreement and Working with a Realtor document dated May 2, 2012 (6 pages). Exhibit "67” - Copy of email dated Fri. May 11, 2012 at 5:12 PM from Mokshi Virk to Bharatkumar Bardoliwala in regards to needing TD bank refusal letter before sellers will sign mutual release (1 page). Exhibit "68” - Copy of MLS listing for 21 Eastview Gate, Unit #22, listed at $389,000 and last updated at 5/2/2012, printed at 5/5/2012, 10:08:54 AM.

Sellers are Elia Darren and Markoz Izdihar (1 page). Exhibit "69” - Copy of MLS listing for 21 Eastview Gate, Unit #22, listed at $389,000 and last updated at 4/30/2012, printed at 5/1/2012 at 4:39:42 PM. Sellers are Elia Darren and Markoz Izdihar (1 page).

Exhibit "70” - Copy of RECO receipt dated May 30, 2014, for removal of original documents from Mokshi Virk by RECO inspector Craig Sanson in regards to Kohlis’ Buyer Representation Agreement, Kohlis’ Working With a Realtor document, Bardoliwalas’ Buyer Representation Agreement, Bardoliwalas’ Working With a Realtor document, and colour copies of Bardoliwalas’ driver’s licences (1 page).

Exhibit "71” - Copy of emails between Mokshi Virk and Prafulchandra Vandra with top date Mon, 01 Nov 2010 at 22:05:50, about sellers’ shortcomings on possession of property by Prafulchandra Vandra (1 page). Exhibit "72” - Copy of emails between Mokshi Virk and Prafulchandra Vandra with top date of Mon, 01 Nov 2010 at 12:55 PM, about sellers’ shortcomings on possession of property by Prafulchandra Vandra(1 page). 1. INTRODUCTION [ 1 ] For most people, buying a house will be the most expensive thing that they will ever purchase in their life.

To help them with that house purchase, most will enlist or use the services of a licensed or registered real estate professional. When these house purchasers enlist a licenced real estate agent to help them with such purchase, they expect that most of all their agent will act honestly, competently, and in the purchaser’s best interest. In turn, they do not expect that their agent will improperly pressure them to buy a house at a higher price by misrepresenting or misleading them on important circumstances, such as telling them that there are multiple offers for the house when there are not.

Nor would they expect that their agent will tell them that important contractual documents are simply standard documents that need to be signed without fully explaining what the documents are for or that there would be financial consequences in signing such documents. Nor would they expect that their agent will offer to do something illegal, such as offering to obtain or provide a fraudulent employment letter in order to help them qualify for a mortgage with the bank.

Nor would they expect that anyone who is not properly licenced as a real estate agent, but who works with and alongside their licensed agent, would hold themselves out as a real estate agent, dispense real estate advice to them, or be involved in contract negotiations with other agents.

Nor would they expect that their agent, in inducing them to buy a house that they could not afford, will not keep promises to pay their legal fees and to contribute an amount of $1000 toward the purchase price from the agent’s share of the commission that would have been paid by the sellers from the sale of that house. [ 2 ] Ergo, to protect the public in transactions involving the purchase of property or businesses, the Ontario Legislature has enacted legislation that requires anyone wishing to become a real estate agent or broker in Ontario to fulfill education requirements, take and pass examinations, and be registered and licensed under the Real Estate Business and Brokers Act, 2002 , S.O. 2002, c. 30, Sched.

C ( “ REEBA 2002 ” ). Moreover, the Ontario government has also delegated authority to the Real Estate Council of Ontario (“RECO”) to licence and regulate real estate professionals in Ontario, as well as to administer and enforce provisions of that statute. In addition, real estate professionals in Ontario are bound and governed by a Code of Ethics that has been enacted as a regulation under the REEBA 2002. Failure of these regulated professionals to comply with this Code could lead to RECO imposing administrative sanctions on them.

On the other hand, contraventions of the statute or its regulations, other than a breach of the Code of Ethics, by those corporations or individuals who are licenced under the statute, or even by those who are not licenced, could also lead to charges being brought against them, in which there is the possibility of imprisonment of two years less a day upon conviction for an offender who is an individual. [ 3 ] Now, in the present prosecution by RECO, a licenced real estate salesperson and her husband, who is a not a licenced real estate salesperson, have been charged with committing offences under the REEBA 2002.

In the circumstances for the charges being laid, th ree different families, the Vandras, the Kohlis, and the Bardoliwalas, had been involved in attempting to purchase or had purchased a house using the services of the defendant, Mokshi Virk (“Mokshi”), who is a registered and licenced real estate salesperson in Ontario and who had been acting as their respective real estate agent. All three families had also complained to RECO that Mokshi had acted or conducted herself improperly in the real estate transactions that they had been involved in with Mokshi.

Moreover, the events surrounding these transactions had occurred between August 1, 2010 to July 31, 2012. [ 4 ] For the complaints made by the Kohlis and the Bardoliwalas, their circumstances are similar. They had filed the complaints with RECO respectively, on July 19, 2013, and on January 24, 2013, after the real estate brokerage, Royal Star Realty Inc. (“Royal Star”), where Mokshi was employed, had filed Statements of Claim against them in separate actions in the Brampton Small Claims Court on October 10, 2012, and on December 7, 2012, respectively.

Royal Star had claimed that the Kohlis and the Bardoliwalas, who had purportedly entered into separate Buyer's Representation Agreements with Royal Star respectively, on April 20, 2012, and May 2, 2012, but who had both purchased houses through a different real estate agent employed at a different brokerage, were still obligated contractually to pay Royal Star a commission for those house purchases through those Buyer's Representation Agreements, even though they had used the services of another real estate agent and brokerage for purchasing their respective houses.

As a result of being sued for the respective amounts of $10,678.50 and $6941.03 in claimed commissions, the Kohlis and the Bardoliwalas then complained to RECO about Mokshi’s dealings with them by similarly claiming that it was not their signatures or initials written in the Buyer's Representation Agreements, which they all had claimed seeing only for the first time in their respective small claims lawsuits, or that if the signatures or initials on the Buyer's Representation Agreements were in fact theirs, then they all claimed that Mokshi must have surreptitiously slipped in the Buyer's Representation Agreement with the other documents that they had signed without Mokshi ever identifying or having explained to them what the Buyer's Representation Agreement had been for.

After an investigation by RECO into the complaints from the Kohlis and the Bardoliwalas, which had been initiated due to their respective claims that it was not their signatures and initials on the respective Buyer's Representation Agreements submitted to the Small Claims Court, Mokshi was then charged with two counts of

preparing and providing a fraudulent document to the Small Claims Court in respect to the Kohlis and the Bardoliwalas lawsuits, contrary to s. 35 of the REEBA 2002. [ 5 ] However, only one of the two lawsuits claiming a commission went to trial.

In Royal Star’s claim for a commission from the Kohlis, the Small Claims Court found in favour of the Kohlis and held that the Buyer's Representation Agreement was not a valid agreement between the Kohlis and Royal Star, since Mokshi had not taken the necessary time to explain the Buyer's Representation Agreement to the Kohlis before the Kohlis had signed the agreement, and therefore, the Kohlis could not have agreed or have had the intention to be bound by that Buyer's Representation Agreement that had been for Royal Star be the Kohlis’ exclusive real estate agent for a period of approximately one year in respect to the purchase of a house, which would have entitled Royal Star to a commission on that purchase.

However, as it is relevant to count #3 in the present proceeding, the Small Claims Court did not comment on or make a finding that the Buyer's Representation Agreement purportedly signed and initialed by the Kohlis had been on a balance of probabilities a fraudulent document. [ 6 ] And, as for the lawsuit against the Bardoliwalas, the plaintiff, Royal Star, subsequently withdrew its claim for a commission from the Bardoliwalas after they had been unsuccessful in their lawsuit for a commission from the Kohlis. [ 7 ] Furthermore, in respect to counts #2 and #3, the Centre of Forensic Sciences in three separate examinations of the copies and originals of the two Buyer's Representation Agreements purported to be signed by the Kohlis and the Bardoliwalas, which had been furnished to the Small Claims Court in Brampton by Mokshi, had not been able to conclude whether the signatures or initials on the respective Buyer's Representation Agreements were made or not made by them when they were examined and compared with actual samples of signatures and initials submitted by the Kohlis and Bardoliwalas to the Centre. [ 8 ] In addition to the Kohlis’ and the Bardoliwalas’ complaint against Mokshi, they had also complained to RECO that Mokshi’s husband, Gurdeep Virk (“Gurdeep”), had taken an improper role in their real estate transactions when he had not been licenced or registered as a real estate agent, by being actively involved in open houses, contract negotiations, and providing client advice to them. [ 9 ] Ergo, as a result of the investigation into the complaints brought against Gurdeep, RECO also charged Gurdeep with trading in real estate within the meaning of s. 1 without being a registered real estate agent, contrary to s. 4(1)(

d) of the REEBA 2002. And, because Mokshi had been present during the encounters between Gurdeep and the three complainant families, RECO also charged Mokshi as a party to that offence for abetting Gurdeep’s trading in real estate while Gurdeep was not licensed or registered as a real estate agent in Ontario. [ 10 ] Furthermore, because of the civil lawsuits brought against them, both the Kohlis and the Bardoliwalas had met each other for the first time in the courthouse where the small claims actions had been brought.

They had also met again afterwards at the temple where both families attend and worship at, which raises the issue of potential collusion and contamination between them in respect to their testimony given at trial. [ 11 ] And, as for the Vandras’ complaint that had been submitted to RECO on May 12, 2011, the Vandras had informed RECO that Mokshi had promised to give the Vandras after the house purchase was completed an amount of $500 to cover their lawyer’s fees and an additional $1000 towards the $2000 price difference between what the sellers had wanted of $552,000 for the sale of that house and the price of $550,000 that the Vandras could afford to pay for that house, as an inducement for the Vandras to enter into the Agreement of Purchase and Sale that was being negotiated on August 29, 2010, to buy the house at 25 Gore Valley Trail in Brampton.

Because of the financial inducements made by Mokshi, the Vandras had agreed to purchase the house from the sellers at the sellers’ last asking price of $552,000 for the house. However, in a meeting between Prafulchandra Vandra (“Mr.

Vandra”) and Gurdeep sometime after the Vandras had taken possession of the house on October 29, 2010, Vandra testified that Gurdeep had stated that they would only give Vandra $500 of the $1500 that had been promised because the Vandras had complained to too many people about not getting that promised $1500 payment and because of the knowledge that the Vandras would not buy another property in the future through Gurdeep and his wife, Mokshi. Initially, Vandra had balked at accepting the offer of $500 since Mokshi’s promise to them had been for a payment of $1500 after their house purchase was completed.

Eventually, Vandra accepted from Gurdeep a $500 cheque signed by Mokshi on February 15, 2011, which Vandra said would only cover the lawyer’s fees, even though he was still owed the $1000 for the house price difference. [ 12 ] The Vandras had also complained to RECO that Mokshi had misrepresented the age of the house that they had bought since it had been actually older than what they were told.

In addition, the Vandras complained that Mokshi had not been present as Mokshi had promised during October 29, 2010, the date set for the completion of the purchase of the house and during the time that they had taken possession of the house from the sellers, since there had been difficulties with the sellers not cleaning the house before the Vandras had moved into the house. However, in the Vandras’ written complaint submitted to RECO on May 12, 2011, the Vandras did not specifically make a complaint about Mokshi’s husband, Gurdeep, nor was Gurdeep’s name ever mentioned in that written complaint.

After RECO had reviewed the Vandras’ complaints about Mokshi’s representations and broken promise to pay the defendant $1000

towards the purchase price for the house, RECO then informed the Vandras in a letter dated October 24, 2011, that there would be no further action taken in respect to the Vandras’ complaint, since there was no written agreement between Mokshi and the Vandras to pay the $1000, and therefore, could not conclude that there had been any evidence of any wrongdoing on Mokshi’s

part in respect to the REEBA 2002; that the age of the house had been what had been listed on the Multiple Listing Service and was not a misrepresentation by Mokshi; and that Mokshi had been in India on a family emergency on the date of closing and that Mokshi had not been obligated as a real estate agent to be present on the closing date. [ 13 ] And, although the Vandras had taken possession of their house on October 29, 2010, and Mokshi had returned to Canada from India on November 15, 2010, Mokshi had testified that the $500 cheque dated February 15, 2011, had been given to Mr.

Vandra as a house warming gift, since she said it was standard practice to give a gift or a cheque to a client when they move in. [ 14 ] And, despite the Vandras’ complaint file against Mokshi being closed by RECO on October 24, 2011, the Vandras’ complaint file along with the files containing complaints brought against Mokshi and Gurdeep by the Kohlis and the Bardoliwalas, were forwarded on July 18, 2013, to RECO’s investigator, Craig Sanson.

It was during this later investigation that the RECO investigator had discovered that Mokshi’s husband, Gurdeep, had also had an alleged improper involvement with the Vandras during the viewing of prospective houses and the offer made by the Vandras to purchase the house at 25 Gore Valley Trail on August 29, 2010, which then would also form part of the improper conduct alleged against Gurdeep that led to Gurdeep being charged for trading in real estate without being a registered real estate agent.

In particular, the RECO investigator had testified that he had only learned, during his interview with Prafulchandra Vandra about his real estate transaction with Mokshi for the purchase of the house at 25 Gore Valley Trail, that Gurdeep had an improper involvement in 2010 with the Vandras’ real estate transaction and in which Mokshi had also abetted Gurdeep’s improper involvement. [ 15 ] Consequently, when the RECO investigator had laid the charges against Gurdeep and Mokshi on April 17, 2014, it had been less than a year after the investigator had received the files of complaint instigated by the three complainant families, as well as being less than a year after the date when the investigator would have first learned about Gurdeep’s alleged wrongful conduct or involvement with the Vandras as a non-registrant.

On the other hand, the defendants contend that the two-year limitation period under s. 40(4) of the REEBA 2002 should apply in respect to the Vandras’ complaint, as the Vandras’ complaint against Mokshi had been first filed with RECO on May 12, 2011, which is more than two years and 11 months before the present charges were laid against both Gurdeep and Mokshi on April 17, 2014.

As such, the defendants argue that as a result of RECO laying the present charges beyond the two-year limitation period in regards to when RECO had first received the Vandras’ complaint against Mokshi, then the evidence regarding the Vandras’ complaint in respect to the charge set out in count #1 should be disregarded.

In response to the limitation period argument about the Vandras’ complaint in respect to count #1, the prosecution contends that the two-year limitation period under s. 40(4) only starts to run when the information about Gurdeep’s improper conduct with the Vandras would have objectively come or ought to have come to the knowledge of the Director of RECO, which in this case had been when the RECO investigator had first learned about Gurdeep’s alleged improper involvement with the Vandras, which would have been after July 18, 2013, when the compliant files had been given to the investigator, and which would be well within the two-year limitation period to charge Gurdeep for trading in real estate without being registered and to also charge Mokshi as a party to that offence. [ 16 ] Furthermore, at the time the offences under the REEBA 2002 were alleged to have been committed by Mokshi and Gurdeep, Gurdeep had taken and passed several of the real estate courses and exams provided by the Ontario Real Estate Association (OREA) that are required for someone to become a licenced and registered real estate salesperson.

Gurdeep had also at the time completed and passed one course for the educational requirements to become a licenced mortgage agent. [ 17 ] The trial of the charges laid against both defendants was held over four days, on November 18, 19, 25 in 2015, and on March 31 in 2016. After submissions were heard, judgment was reserved, and the matter was adjourned to July 21, 2016, for it to be rendered. These, therefore, are the written reasons for judgment: 2. THE CHARGES [ 18 ] In a

Part III information sworn on April 17, 2014, Gurdeep has been charged with committing one offence while Mokshi has been charged with committing three offences under the REEBA 2002. [ 19 ] First of all, in count #1 Gurdeep Virk has been charged under s. 4(1)(

d) with trading in real estate within the meaning of s. 1 of the REEBA 2002 without being registered under that Act, and thereby contravened s. 40(1)(

c) of that Act , and that Mokshi Virk had been charged as a party to that offence:

(1) Gurdeep Virk and Mokshi Virk of [address removed for privacy], Brampton, Ontario, between 01 day of August 2010 to the 31 st day of July 2012 inclusive, at the City of Brampton in the Region of Peel and elsewhere in the Province of Ontario did commit the offence of while Gurdeep Virk was not registered under the Real Estate and Business Brokers Act, 2002 , and Mokshi Virk as a party to the offence, did trade in real estate as defined in s. 1 of the Act, to wit: by being actively involved in open houses, contract negotiation and providing client advice contrary to s. 4(1) (

d) of the Real Estate and Business Brokers Act, 2002 and thereby contravened Section 40(1)(

c) of the said Act, [ 20 ] In addition, for counts #2 and #3, Mokshi Virk has been charged with committing the following two additional offences under s. 35 of the REEBA 2002 of furnishing false information relating to a trade in real estate by furnishing a false Buyer's Representation Agreement in two separate civil court actions, and thereby contravened s. 40(1)(

c) of that Act: (2) and further that the said Mokshi Virk on or about the 2nd day of May 2012 at the City of Brampton in the Region of Peel and elsewhere in the Province of Ontario being a registrant as defined by s. 1 the Real Estate and Business Brokers Act, 2002 , did commit the offence of furnishing false information relating to a trade in real estate to wit: by preparing a false Buyer’s Representation Agreement for buyers Sashikalabahen Bardoliwala and Bharatkumar Bardoliwala and furnishing said document in a civil court action contrary to s. 35 of the Real Estate and Business Brokers Act, 2002, and thereby contravened the provisions of Section 40(1)(

c) of the said Act, (3) and further that the said Mokshi Virk on or about the 20th day of April 2012 at the City of Brampton in the Region of Peel and elsewhere in the Province of Ontario being a registrant as defined by s. 1 the Real Estate and Business Brokers Act, 2002 , did commit the offence of furnishing false information relating to a trade in real estate to wit: by preparing a false Buyer’s Representation Agreement for buyers Dheeraj Kohli and Reena Kohli and furnishing said document in a civil court action contrary to s. 35 of the Real Estate and Business Brokers Act, 2002, and thereby contravened the provisions of Section 40(1)(

c) of the said Act. 3. ADDITIONAL BACKGROUND AND POSITION OF THE PARTIES [ 21 ] After the RECO investigator, Craig Sanson, had completed his investigation into the complaints brought against the non- registrant, Gurdeep Virk (“Gurdeep”) and the registrant, Mokshi Virk (“Mokshi”), he charged both Gurdeep and Mokshi on April 17, 2014, with committing offences under the REEBA 2002 , in respect to their involvement with Prafulchandra Vandra (“Mr. Vandra”), Parul Vandra (Mrs. Vandra”), Dheeraj Kohli (“Mr. Kohli”), Reena Kohli (“Mrs. Kohli”), Bharatkumar Bardoliwala (“Mr.

Bardoliwala”), and Shashikalabahen Bardoliwala (Mrs. Bardoliwala) in regards to events and circumstances surrounding real estate transactions that had occurred between August 1, 2010 and July 31, 2012. [ 22 ] The two defendants, Mokshi and Gurdeep, are married to each other and they have 2 children. Mokshi is a registered real estate salesperson under the REEBA 2002, and at the time of the trial, had also passed her exams to be qualified as a real estate broker. She had been first registered under the REEBA 2002 as a real estate agent on September 17, 2007.

For the present charges, Mokshi had been employed as a real estate salesperson with the real estate brokerage named Royal Star Realty Inc. (“Royal Star”). Royal Star has three offices, with their main office located at 170 Steelwell Road, Brampton.

However, Mokshi is no longer employed at Royal Star, having left recently, and is now currently employed with another brokerage because Mokshi had felt that she would receive more support and training from the new brokerage. [ 23 ] On the other hand, even though Mokshi’s husband, Gurdeep, is not registered under the REEBA 2002 as a licenced real estate salesperson, Gurdeep has completed all or nearly all of the real estate courses required to obtain a licence as a real estate salesperson in Ontario.

Gurdeep also said that he has presently asked RECO to put his application on hold for a real estate salesperson’s licence while awaiting the outcome of this trial.

He also said that he had taken some mortgage courses or a course towards being licenced as a mortgage broker, but that he is not qualified or licenced as a mortgage broker. [ 24 ] Also, during the circumstances or events surrounding the real estate dealings involving the three complainant families between 2010 and 2012, Mokshi and Gurdeep had brought their two children with them and kept them in their vehicle for the viewing of properties, for negotiations, and when offers had been presented, or when meeting and signing documents with the three complainant families.

The children were brought to the places and locations where Mokshi had to attend as part of her employment in the real estate

business because her two children had been kidnapped about seven years earlier when they were only four and six years old, respectively. And, because of that traumatic experience, the children had been afraid to be left alone without their parents. [ 25 ] Gurdeep also testified that Mokshi had difficulty in driving a motor vehicle to various locations as part of her employment in the real estate business, due to injuries that Mokshi had sustained from being rear-ended in three separate motor vehicle collisions that had occurred in the years 2008, 2010, and 2011.

As such, Gurdeep said that he would drive Mokshi around for her real estate business appointments when he was not himself working, and that was the reason why he was always present at Mokshi’s real estate dealings with Mokshi’s real estate clients.

And, because his only role with Mokshi’s real estate business had been for the purpose of driving her to her clients’ residences or to her house viewings with her clients, or to places where Mokshi was negotiating the purchase or sale of a house for her clients, Gurdeep denies being directly involved with Mokshi’s clients or that he had been actively involved in open houses, contract negotiations, or in advising Mokshi’s clients in respect to the purchase or sale of real estate, and that his contact with Mokshi’s clients had been only at a social level. [ 26 ] Presently, Gurdeep works as a certified language interpreter for different government bodies or in certain courts.

He also said that he would drive his wife, Mokshi, after his work as an interpreter, to her real estate viewings, appointments, and meetings with clients, but that Mokshi would drive herself when Gurdeep was at work. [ 27 ] In addition, Gurdeep had admitted that he had been with his wife, Mokshi, at the residences of or at the properties or houses being shown to the three complainant families.

However, Gurdeep said that he did not participate in any activity related to the purchase and sale of houses involving Mokshi or in any way with the Vandras’, the Kohlis’, or with the Bardoliwalas’ real estate transactions, and was only involved with his wife, Mokshi on those occasions as Mokshi’s driver, and had remained outside in their car with their children.

Furthermore, Gurdeep contends that any contact that he had with any of the complainants had simply been for social purposes and that he did not have any conversations with them related to real estate, mortgages, job letters, or the purchase of houses. [ 28 ] Accordingly, the defendants contend that for count #1, Gurdeep was only at the most acting as an assistant to Mokshi and that he had not been holding himself out as a real estate agent. More importantly, the defendants’ submit that the REEBA 2002 does not prohibit someone from being an assistant to a licenced real estate person.

Moreover, the defendants contend that Gurdeep’s conduct was not flagrant, but permissible assistance to Mokshi, and that Gurdeep’s conduct or actions had never surpassed assistance to his spouse as her driver, nor did it cross the line into what constitutes the prohibited activity of trading in real estate without being registered.

In the alternative, the defendants’ argue that even if it is believed that Gurdeep had conversations with the three complaint families about the purchase of real estate it had only been about mortgages, so that Gurdeep would be at the most only holding himself out as a mortgage broker and not as a real estate salesperson.

And, in regards to counts #2 and #3, the defendants submit that the prosecution has not proven beyond a reasonable doubt that the Buyer's Representation Agreements in respect to the Kohlis and the Bardoliwalas had been false or fraudulent, since the Forensics Science Center had been unable to determine definitively whether the signatures and initials on the Agreements had been made or not made by the Kohlis and the Bardoliwalas, and also because the Kohlis and the Bardoliwalas had themselves testified that the signatures may be theirs, but that they were never told respectively that they were signing Buyer's Representation Agreements. [ 29 ] However, the prosecution submits that both Gurdeep and Mokshi had been inconsistent and evasive in their testimony and had backtracked when evidence had been put to them.

Moreover, the prosecution submits that six of the prosecution witnesses should be believed because they were credible and consistent on material points. Furthermore, the prosecution argues that there is no reason to believe that the Kohlis and the Bardoliwalas had coordinated their stories after they met in court for the Small Claims cases brought against them, since their stories have been corroborated by the testimony of Mr. Vandra who had no connections to them, and that Vandra’s testimony would support the Kohlis’ and the Bardoliwalas’ testimony that Gurdeep had been actively involved in their transactions.

In addition, Major Singh Nagra, a real estate agent acting for the Kohlis on their house purchase, had also corroborated the complaints’ testimony about Gurdeep’s active involvement in their respective transactions, as Nagra had testified that in his opinion Gurdeep had been acting like a real estate agent in several meetings Nagra had with Gurdeep and Mokshi about the Kohlis’ Buyer's Representation Agreement with Royal Star. [ 30 ] In addition, the defendants submit that the circumstances and events surrounding Gurdeep’s and Mokshi’s involvement in the purchase of the 25 Gore Valley Trail house had occurred between August 1, 2010 to October 24, 2011, when RECO had closed the file on the Vandras’ complaint against Mokshi.

In addition, RECO had received the complaint against Mokshi on May 12, 2011. Therefore, the defendants argue that the evidence and the testimony from Mr. Vandra in respect to Gurdeep and Mokshi’s involvement with the Vandras had been for events or circumstances that had occurred at a time that is more than the two-year limitation period set out in s. 40(4) of the REEBA 2002, in which a charge can be laid. And, as the information had been sworn on April 17, 2014, the defendants submit that the evidence about Gurdeep and Mokshi’s involvement with Mr.

Vandras’ should be excluded from being considered in respect to count #1, since it had occurred outside the two year limitation period. In reply, the prosecution submits that the two-year limitation period only begins to run when the Director for RECO becomes aware of the facts upon which the proceeding is based first came to the knowledge of the director, which in this case would have been when Investigator Sanson had interviewed Mr.

Vandra after he had received the compliant flies on July 18, 2013, in which Sanson had learned about Gurdeep’s improper involvement with the Vandras’ real estate transaction and that Mokshi had abetted Gurdeep’s improper involvement with the Vandras. In addition, the prosecution submits that the Director would not have known or ought to have known about Gurdeep’s improper

involvement with the Vandras at the time that Mr. Vandra had first filed his complaint with RECO against Mokshi on May 12, 2011, since Mr. Vandra did not make a complaint against Gurdeep or specifically mention Gurdeep’s name or involvement in his real estate transaction, and that the earliest the Director of RECO could have known about or ought to have known about Gurdeep’s involvement in the Vandras’ real estate transaction would have been after Investigator Sanson had spoken to Mr.

Vandra after July 18, 2013, which is well with the two-year limitation period of when the information was sworn on April 17, 2014. [ 31 ] And, as for count #2, the prosecution contends that they have proven beyond a reasonable doubt that Mokshi had prepared and furnished a false Buyer's Representation Agreement to the Small Claims Court in Brampton in respect to the Bardoliwalas’ lawsuit. The prosecution submits that both Mr. and Mrs.

Bardoliwala had testified that they had not seen the Buyer's Representation Agreement dated May 2, 2012, until they first saw it in the Small Claims lawsuit and that when shown the Buyer's Representation Agreement that was submitted to the Small Claims Court both Mr. and Mrs. Bardoliwala testified that either the signatures were not theirs or that the initials on the document were not theirs. In addition, both Mr. and Mrs.

Bardoliwala had testified that they did not receive any explanations about any of the documents they had signed in the dark on the porch of the 21 Eastview Gate house when it was also raining at the time on May 3, 2012. Mrs. Bardoliwala also had testified that she could not read anything she signed because she had forgotten her glasses although Gurdeep had provided his glasses to her. Mr.

Bardoliwala also testified that he did not recall signing a Buyer's Representation Agreement with Mokshi, or that it had been for one year, or that any future house purchase had to be through Mokshi for a period of one year, and that he did not knowingly sign a Buyer's Representation Agreement with Mokshi. [ 32 ] And, as for count #3, the prosecution also submits that they have proven beyond a reasonable doubt that Mokshi had prepared and furnished a false Buyer's Representation Agreement to the Small Claims Court in Brampton in respect to the Kohlis’ lawsuit. The prosecution also submits that both Mr.

Kohli and Mrs. Kohli had testified that they did not sign the Buyer's Representation Agreement dated April 20, 2012, and that did not even know what the document was until they signed one with Major Singh Nagra on May 1, 2012, even though the Kohlis purportedly had signed one with Mokshi 11 days earlier. Moreover, the prosecution submits that both Mr. and Mrs. Kohli had testified that they did not see the Buyer's Representation Agreement supposedly signed with Mokshi until they saw it as part of the Small Claims lawsuit brought against them and that none of the signatures on page 3 of that Agreement were theirs.

On the other hand, Mr. Kohli also said that if he had signed that Agreement then he did not know what he had been signing since it had never been explained to him what a Buyer's Representation Agreement is. Moreover, the prosecution submits that the handwriting analysis of the signatures and initials on the Agreement were not inconclusive and that the document is fraudulent because it represents a contract that does not exist. In addition, when Mr. Kohli had met with Gurdeep and Mokshi after they were served with the Statement of Claim, Mr.

Kohlis said he had asked Mokshi why he was not told about the Buyer's Representation Agreement or that it had been for a period of one year, to which Mr.

Kohli said that Mokshi had replied that if clients are told that the agreement was for one year then no one would buy a house from her. [ 33 ] Moreover, the prosecution contends that Mokshi’s modus operandi had been to always have her clients, who had filed the complaints with RECO in this case, to either sign documents late at night or when everything was done in a rush, or that she had informed them that the documents were standard and had to be signed, or that she would never take any time to explain to any of these clients what the documents were that were being signed.

(1) The Vandras’ transaction [ 34 ] Based on the chronology of transactions that form the basis of the charges laid against Gurdeep and Mokshi, the Vandras were the first complainant family to file a complaint with RECO against Mokshi, which was on May 12, 2011. In that written complaint, the Vandras did not specifically mention Gurdeep or make a complaint specifically about Gurdeep.

Gurdeep’s name did not come to the attention of RECO until Gurdeep’s name came up in the later complaints filed by the Kohlis and the Bardoliwalas, who are the other two complaining families. [ 35 ] A friend of Prafulchandra Vandra (“Mr. Vandra”) and Parul Vandra (“Mrs. Vandra”) had introduced the Vandras to Mokshi for the purpose of purchasing a house. At the time the Vandras met Mokshi, the Vandras were the owners of a condominium in Etobicoke. When the Vandras bought their Etobicoke condominium, they did not use the services of a real estate agent as they had bought directly from the seller of the condominium.

Their involvement with Mokshi, as Mr. Vandra indicated, would have been their first experience with using the services of a real estate agent. [ 36 ] In the Vandras’ transaction, Mr. Vandra and Mrs. Vandra had signed an Agreement of Purchase and Sale to purchase a house located at 25 Gore Valley Trail in Brampton on August 29, 2010. Mokshi was the Vandras’ real estate agent for that purchase. The Vandras had put in an offer to buy that house on August 29, 2010, which had been accepted at the price of $552,000. During the negotiations with the sellers of the 25 Gore Valley Trail house, Mr.

Vandra said that he and his wife had told Mokshi that the maximum price that they could afford for buying that house had been $550,000, and had told Mokshi that they could not afford any more than that amount. Vandra said that Mokshi had told them that the sellers wanted $552,000 and would not go lower than that price. It was at that point, Vandra said, that Mokshi had told him that the price of $551,000 was auspicious or considered to be of good fortune in their culture and that Mokshi then promised to give the Vandras $1000 after the closing to make up the difference between what the Vandras

could afford and what the sellers wanted for the house, if the Vandra would come up with the remaining $1000 to make up the $2000 difference between what the sellers wanted and what the Vandras’ were willing to pay for the house.

Because of this $1000 inducement along with an earlier promise by Mokshi to pay $500 to the Vandras for their lawyer’s fees to buy the house, Vandra said they agreed to buy the house from the sellers at $552,000 and entered into an Agreement of Purchase and Sale with the sellers on August 29, 2010, sometime after 9:00 p.m., to buy the house at 25 Gore Valley Trail. [ 37 ] Furthermore, Mr. Vandra testified that at a meeting arranged to view houses, he and his wife met Mokshi and her husband, Gurdeep, at the parking lot of the Hindu temple.

Vandra said that Gurdeep had introduced himself and said that his wife, Mokshi, is a licence holder and that he was in the process of getting a licence and taking exams for his licence, and that both Mokshi and himself are related to this field and that both worked in the profession. Vandra also said that Gurdeep had told Vandra that he and Mokshi work together, but does not know if that would be classified as an assistant to Mokshi.

Vandra also said that he knows that Gurdeep did not have his real estate licence, but that Gurdeep worked at the boundaries of the law. [ 38 ] Vandra also said that he and his wife saw 3 or 4 houses with Gurdeep and Mokshi that day from 10 to 11:00 a.m. and that 25 Gore Valley Trail in Brampton was one of the houses that they looked at. Vandra also said they had gone to see the houses in Gurdeep’s vehicle. For the first two houses, Vandra said that Gurdeep had remained in the car and that only Mokshi took them through the houses.

And, while going through the third house at 25 Gore Valley Trail, Vandra said that Gurdeep had been with them in the house and that Gurdeep had been showing Vandra the house and explaining and giving descriptions of what anything was for the house such as the bedrooms and that Gurdeep had also shown the property of the house to Vandra. Vandra also said that Mokshi had been with them, but mostly spoke with Mrs. Vandra, and that Gurdeep had been the one speaking with him. In addition, Mr.

Vandra said that Gurdeep had explained about the property and had told him that they would pay the lawyer’s fee of $500 if the Vandras would buy a house from them. Mr. Vandra then said that since the Vandras would have to pay a lawyer that Gurdeep had offered to pay that fee. In addition, Mr. Vandra said that it was he who had raised the question about the lawyer’s fees being paid by telling Gurdeep that as a real estate agent they would get a commission from the house being purchased by the Vandras and that some real estate agents would give an appliance or lawyer’s fees, for which Mr.

Vandra had asked what kind of inducement would Gurdeep give the Vandras. Mr. Vandra then said that Gurdeep had replied that he could not offer an appliance but could pay the lawyer’s fees no matter how much. [ 39 ] In addition, Mr. Vandra said that Gurdeep had explained that the commission for the sale of the house would be 5%, of which 2.5% would go to the sellers’ agent and that 2.5% would go to the buyer’s agent, but that since Mokshi worked for Royal Star, Royal Star would keep 0.5% and that 2% would go to Mokshi. [ 40 ] Mr.

Vandra also said that Gurdeep had told Vandra that he and Mokshi work together and that Gurdeep was in the process of taking the examinations for his real estate licence and that Gurdeep had given Mokshi’s business card to Vandra. [ 41 ] In addition, Mr. Vandra said that in the evening of August 29, 2010, at about 5:00 p.m., Gurdeep, Mokshi, himself, his wife, and his son, had gone to see the house again at 25 Gore Valley Trail in Brampton. Mr.

Vandra said that he and his wife liked that house and had told Mokshi and Gurdeep that they would think about making an offer to buy it and would let Mokshi and Gurdeep know in a week or so what they had decided. However, Mr. Vandra said that he had been called right away that same night and told that the sellers’ agent had multiple offers and that the Vandras could get it done by making an offer with a minimum down payment. Mr.

Vandra then said that he and his wife went back to the house at about 6:30 to 7:00 p.m. and said that Gurdeep and Mokshi were both there for the Vandras’ third visit to the 25 Gore Valley Trail house. [ 42 ] Mr. Vandra also said that while Mokshi had taken the Vandras’ offer inside the house to the sellers' agent, Gurdeep had stayed in the car with Vandra and his wife. While in the car, Mr.

Vandra said that Gurdeep had told the Vandras that it was a very good property and that the Vandras should not let go of the property because of some price. [ 43 ] After Mokshi came back out and went back in a couple of times, she told the Vandras that their offer of $542,000 had been rejected by the sellers. It was at this point that Mr. Vandra said that he had heard Gurdeep say for them to wait and that Gurdeep would take the lead and get it done and would go speak to the sellers. Mr. Vandra then said that Gurdeep and Mokshi went to go inside the seller’s house. Then, when Gurdeep and Mokshi returned, Mr.

Vandra said they told Vandra that the sellers were now asking for $552,000. Mr. Vandra then said that his wife, Mrs. Vandra, had said no to the sellers’ price and stated that the Vandras could only go to $550,000. Mr. Vandra then said that Gurdeep and Mokshi went back inside to see what they could do. When Gurdeep and Mokshi came back out, Mr. Vandra said that he was told that sellers would not go below the $552,000 asking price. It was at that point, Mr.

Vandra said, that Mokshi had told Vandra that Mokshi would give the Vandras $1000 out of her own pocket towards the purchase price so that the Vandras would then have to pay $551,000 and that the sellers would get their $552,000. Mr. Vandra also said that Gurdeep had repeated the same statement about not letting go of the property because it was a good property and that if Vandra gave $551,000, then they would give the Vandras $1000 (in order to meet the sellers’ price of $552,000).

[ 44 ] Mr. Vandra also said he reasoned that because Mokshi would make $10,000 to $12,000 commission on the house being purchased and that since Gurdeep, Mokshi, himself, his wife, and his son, were all adults, he felt that he could trust Mokshi to give the $1000 to the Vandras as she had promised she would. However, Vandra said that neither Mokshi nor Gurdeep had written this promise on paper to pay the Vandras the $1000. [ 45 ] Also, in respect to Mr.

Vanda’s other encounters with the defendant, Gurdeep, Vandra had testified that Gurdeep had contacted Vandra and told Vandra that Gurdeep needed to get another signature from the Vandras and that if they were home that Gurdeep would attend their condominium to get the signatures. Mr.

Vandra then said that Gurdeep had attended on September 3, 2010, without his wife, Mokshi, at the parking lot at his condominium in Etobicoke and that Gurdeep had parked next to the handicap parking space in order to obtain the signatures from the Vandras for the waiver document in which the Vandras would give up their right of having five days to obtain a mortgage or financing from their bank for the purchase of the 25 Gore Valley Trail house. Mr.

Vandra had also testified at trial that the witness signatures for Mokshi had already been placed on the document beside where the Vandras would have had to put their two signatures and that the waiver document had also indicated that the place of signing had occurred in Brampton, although Mokshi was not present as a witness at Vandra’s condominium in Etobicoke when the Vandras signed the waiver document, nor were the Vandras in Brampton when the Vandras had actually signed the waiver document in front of Gurdeep in Etobicoke. In other words, Mr.

Vandra testified that Mokshi did not witness the Vandras’ signatures even though Mokshi's signature had already been placed on the documents as a witness to the Vandras’ signatures on the waiver document. When Mr.

Vandra had asked Gurdeep about the fact that Mokshi had already signed the waiver document as the witness to both of the Vandras’ signatures before the Vandras had even signed the waiver document, Vandra then said that Gurdeep had then informed Vandra that this was a formality and that this waiver document had to be submitted to their office and that it was normal practice and this is what they do. [ 46 ] Mr.

Vandra also said that he had met Mokshi only once when she had come to their condominium to get details about what type of house they were interested in buying and where they wanted to purchase that house, but that all other dealings with the 25 Gore Valley Trail house had been done with Gurdeep and that he wanted to say that Gurdeep had the leading role in this transaction. Mr. Vandra also said that from day one, he had conversations with both Mokshi and Gurdeep and that they were clearly running their business together. Furthermore, Mr.

Vandra said that Gurdeep had convinced him to buy the house and had told Vandra that he should not delay, and that Gurdeep had showed the house to Vandra and had done events on behalf of Mokshi, and that because Mokshi had been unsuccessful in getting the 25 Gore Valley Trail house deal done after several attempts, Gurdeep had stated that he would go inside the house to get that deal done. [ 47 ] However, Gurdeep has denied being at or attending the Vandras’ condominium in Etobicoke on September 3, 2010, to obtain the Vandras’ signatures on the waiver document and that he had only been a driver for his wife Mokshi and had not had any conversation with Mr.

Vandra about buying the 25 Gore Valley Trail house and had not gone into the house to negotiate the contract with the seller’s agent on August 29, 2010. [ 48 ] Mr.

Vandra also testified that in his conversations with Mokshi and Gurdeep on August 29, 2010, during the Vandras’ offer made to the sellers to purchase the house located at 25 Gore Valley Trail, Mokshi had promised to first give the Vandras after the closing of the transaction $500 towards their lawyer’s fees and that later during the negotiations with the sellers of the house, in order that the Vandras would accept the sellers’ price to buy the house for $552,000 when Vandra said that he and his wife were not able to pay more than the maximum amount of $550,000, Vandra said that Mokshi had promised to give Vandra $1000 of the $2000 difference between the seller’s offer of $552,000 and the buyers’ offer of $550,000 after the closing of the transaction, if Vandra would provide the remaining $1000 of the $2000 difference.

Mr. Vandra then said he and his wife then entered an Agreement of Purchase and Sale on the same date with the sellers of the house to purchase the house for $552,000, based on Mokshi’s promises to pay the Vandras $1500 after closing, which was for October 29, 2010, when the Vandras were to take possession of the house. [ 49 ] Moreover, after the Vandras took possession of their house on October 29, 2010, Mr. Vandra said he had spoken to Gurdeep about the mess that the sellers had left the 25 Gore Valley Trail house in. Also, during that call, Mr.

Vandra said he had asked Gurdeep about the $1500 payment that Gurdeep and Mokshi had promised to pay him after the closing, in which Gurdeep had replied that it takes time to get the commission and that as soon as they got the commission the Vandras would be given the money. [ 50 ] However, the $1500 comprising the $500 lawyer’s fee and the $1000 contribution to the $2000 difference between the sellers’ price and the Vandras’ offer price was not given to the Vandras immediately after the closing so Mr.

Vandra said he had called many times and had sent emails to Mokshi asking for the $1500 Mokshi had promised to pay him after the closing. Mr. Vandra also said that he had conversations off and on during November and December 2010, over the $1500 promised by Mokshi with Gurdeep and through the mutual friend that had introduced the Vandras to Mokshi, about Mokshi’s failure to fulfill her promise to give him the $1500 after the closing. [ 51 ] Mr. Vandra then explained that Gurdeep had then called Vandra on January 12, 2011, to pick up the cheque. At that meeting on January 12, Mr.

Vandra said that Gurdeep had told him during their discussions about the promise made by Mokshi to pay the Vandras $1500, that Gurdeep had said that he and Mokshi were supposed to give $1000 to Vandra but then said why should they give Vandra the

$1000 when the Vandras had caused them so much trouble and had made them so upset because Vandra had made many complaints against them, including to their mutual friend and to Mokshi’s manager at Royal Star. And, that because the Vandras would not buy a house through them again in the future, Mr. Vandra said that Gurdeep had said that he would only give Vandra $500. At first Vandra refused to accept the $500 since he rightly believed that Mokshi had promised to pay the Vandras $1500 after the closing. [ 52 ] Eventually, after Mr.

Vandra’s friend had advised Vandra to accept the $500 at least as his right and because Vandra’s friend said he would contact Mokshi to convince her to pay the remaining $1000, Vandra contacted Gurdeep and agreed to accept the offer from Gurdeep and Mokshi for the payment of the $500. Mr. Vandra said that he then met Gurdeep on February 11, 2011, where Gurdeep had brought a cheque that had been signed by Mokshi and that Vandra’s name and the amount of $500 was then filled in on the cheque during that meeting with Gurdeep.

And, even though Vandra took the $500 cheque from Gurdeep, Vandra still considered that Mokshi owed him the remaining $1000, so Vandra then filed a complaint with RECO on May 12, 2011, complaining about Royal Star and Mokshi’s failure to pay Vandra the full $1500 that Mokshi had promised him when the transaction closed and that Mokshi still owed the Vandras $1000 on Mokshi’s promise. However, in that written complaint filed by Mr.

Vandra with RECO, Vandra did not specifically mention Gurdeep’s name or complain to RECO about any of Gurdeep’s conduct or involvement with the Vandras during the Vandra’s purchase of the house at 25 Gore Valley Trail in Brampton. [ 53 ] Mr. Vandra also had listed other complaints in that May 12, 2011, written complaint to RECO that included Mokshi having misrepresented that the house he was buying was only 0-5 years old while Vandra discovered that the house was actually built in 2003, making it older than 6 years. Furthermore, Mr.

Vandra complained that Mokshi had promised to remain present on the closing date, but that Mokshi had left Canada and that Mokshi had not make an alternate arrangement and had caused Vandra a lot of trouble on the closing date, since the property had not been cleaned by the sellers and Vandra had received 2 flat tires while using the driveway of his newly purchase house. [ 54 ] However, RECO dismissed Vandra’s three complaints by a written response from the Deputy Registrar on October 24, 2011.

In respect to Vandra’s complaint about the failure of Mokshi to give Vandra the $1000 price difference that Mokshi had promised to give Vandra after the closing, the Deputy Registrar had written that because Mokshi’s promise to give Vandra $1000 as part of the $2000 difference between the sellers’ price and the buyers’ offer had not been reduced to writing, then there was no evidence of an enforceable agreement or conclusive evidence to support Vandra’s allegations that Mokshi had not complied with the REEBA 2002.

The Deputy Registrar also wrote that Mokshi had not misrepresented the age of the house since Mokshi had provided the Vandras with the description of the house’s age being between 0-5 years that had been obtained from the MLS listing for that house that had been provided by the sellers or the sellers’ agent, and that Mokshi was not required as a real estate agent to be present on the date of closing, and as such, the Deputy Registrar wrote that no further actions would be undertaken. [ 55 ] Therefore, the Vandras’ specific complaint against Mokshi was closed on October 24, 2011. [ 56 ] In addition, Mr.

Vandra said he does not know the Kohlis or the Bardoliwalas or know what they look like.

(2) The Bardoliwalas’ transaction [ 57 ] For the second complainant family, the Bardoliwalas had filed a complaint with RECO on January 24, 2013, against Mokshi as a registrant and Gurdeep as a non-registrant. [ 58 ] The Bardoliwalas, Bharatkumar Bardoliwala (“Mr. Bardoliwala”) and Shashikalabahen Bardoliwala (“Mrs. Bardoliwala”) were introduced to Mokshi by their neighbor, who also had been a client of Mokshi’s, for the purposes of using Mokshi as their real estate agent.

When the Bardoliwalas became involved with Mokshi in her capacity as a real estate agent, the Bardoliwalas were residing at 26 Huckleberry Square in the City of Brampton, which was a house owned by Mrs. Bardoliwala and a family friend. To be able to buy that house and qualify for a mortgage to buy the 26 Huckleberry Square house, Mrs. Bardoliwala required the Bardoliwalas’ family friend to help financially as a co-owner of the house. At the time, Mrs. Bardoliwala was the only one employed since Mr. Bardoliwala was a student.

As such, the Bardoliwalas’ involvement with Mokshi was not their first experience in dealing with a real estate agent or in purchasing and owning a house. [ 59 ] After being introduced to Mokshi, the Bardoliwalas had been shown seven to eight real estate properties by Mokshi. Mokshi’s husband, Gurdeep, was present for most of the Bardoliwalas’ interactions with Mokshi. The Bardoliwalas were interested in a house that was located near their temple and had first put in an offer to purchase the property at 21 Eastview Gate, Unit #22, in the City of Brampton, on May 2, 2012.

The offer was accepted by the sellers on May 3, 2012, and had been conditional on the Bardoliwalas being able to arrange financing within 5 days. At the time the Agreement of Purchase and Sale was signed and accepted by both the

Bardoliwalas and the sellers, no deposit cheque had been given by the Bardoliwalas to the sellers’ real estate agent. Shortly after the Agreement of Purchase and Sale was signed, the Bardoliwalas had a change of heart and did not wish to proceed with the purchase of the house at 21 Eastview Gate and had informed Mokshi they did not want to go ahead with the purchase of the house because they could not afford to purchase the property only on Mrs. Bardoliwala’s salary, as Mr.

Bardoliwala, who appears to have been a dentist in India, was studying and doing research in the dentistry field, and only had occasional employment in a factory. However, even though Mokshi had been made aware that the Bardoliwalas wanted to get out of buying the 21 Eastview Gate house, Mokshi insisted that they provide a cheque for the $5000 deposit that was mentioned in the Agreement of Purchase and Sale so that it could be given to the seller’s agent as a deposit for the property.

Furthermore, in respect to the five-day condition in the Agreement of Purchase and Sale to arrange financing or a mortgage to buy the house, the Bardoliwalas had applied for a mortgage at the TD Bank a day after the Agreement had been signed, but based on only Mrs.

Bardoliwala’s salary their application for a mortgage was declined by the bank. [ 60 ] Mokshi then asked the Bardoliwalas to obtain a mortgage denial letter from the bank so that Mokshi could forward it to the seller’s agent in order to obtain a mutual release of the contractual obligations under the Agreement of Purchase and Sale and to obtain the return of the Bardoliwalas $5000 deposit from the seller’s agent. [ 61 ] But, before applying for a mortgage, Mokshi had also told the Bardoliwalas that they could buy the 21 Eastview Gate house by themselves and without their family friend being a co-owner, as the friend had been on the 26 Huckleberry Square house.

To be able to do that, the Bardoliwalas said that Mokshi and Gurdeep had said they would help them get a mortgage. [ 62 ] After obtaining the denial letter from the TD bank and after the mutual release was signed on May 8, 2012, Mrs. Bardoliwala then purchased another house on August 5, 2012, located at 15 Heatherside Court in Brampton for $245,700, using the services of Gary Narwal, who was a real estate agent employed at another brokerage. The 15 Heatherside Court house was also purchased only in the name of Mrs. Bardoliwala and not in Mr. Bardoliwala’s name.

And, like in the purchase of the 26 Huckleberry Square house, the Bardoliwalas’ family friend also became a co-owner of the 15 Heatherside Court. And, from the sale of the 26 Huckleberry Square house for $263,000, Mrs.

Bardoliwala and the Bardoliwalas’ family friend made approximately $60,000 before any deduction for expenses or closing costs. [ 63 ] Mokshi subsequently found out in September of 2012 that the Bardoliwalas had bought a house using another real estate agent, although Mokshi had a purportedly signed Buyer's Representation Agreement dated May 2, 2012, with the Bardoliwalas, which was for the period from 12:01 a.m. on May 2, 2012 to 11:59 p.m. on May 1, 2013 (with a holdover period of 90 days after the expiration of the agreement applicable to any house introduced or shown by Mokshi to the Bardoliwalas), and in which the Bardoliwalas had agreed to give Royal Star the exclusive and irrevocable authority to act as the Bardoliwalas' agent and to pay Royal Star a commission of 2.50% on the sale of any single family residential house in Brampton, Mississauga, and the GTA, during the currency of the agreement. [ 64 ] By using another real estate agent to purchase the 15 Heatherside Court house, Mokshi had felt that the Bardoliwalas had cheated her out of a commission, as she had shown them houses and had worked for them for three months looking at houses, so she filed a Statement of Claim on December 7, 2012, with the Small Claims Court in Brampton on behalf of her broker, Royal Star, against the Bardoliwalas claiming $6941.03 for the lost commission.

Mokshi also submitted the Buyer's Representation Agreement purportedly signed by the Bardoliwalas on May 2, 2012, to the Small Claims Court as proof of the Bardoliwalas' contractual obligation to Royal Star to pay Royal Star a commission for the purchase of any house during the currency of the Agreement. [ 65 ] Soon after being served with the Statement of Claim, the Bardoliwalas also filed a complaint with RECO on January 24, 2013, alleging that the initials on the Buyer's Representation Agreement with Royal Star was not theirs and that they had never seen the Buyer's Representation Agreement before, and that Mokshi had acted unethically with them, and that Gurdeep had also been improperly involved with them. [ 66 ] Concerning the Buyer's Representation Agreement which the prosecution contends is the false or fraudulent document submitted to the Small Claims Court, it had been purportedly signed and initialed by both the Bardoliwalas on May 2, 2012, which is the same day that the Bardoliwalas’ initial Offer to purchase the house at 21 Eastview Gate ha

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