Real Estate Council of Ontario v. Allen, 2015 ONCJ 642

Case #4860 999 13 322317 CITATION: Real Estate Council of Ontario v. Allen , 2015 ONCJ 642 ONTARIO COURT OF JUSTICE Toronto Region In the matter of the Provincial Offences Act , R.S.O. 1990, c. P. 33 B E T W E E N: REAL ESTATE COUNCIL OF ONTARIO Respondent -and- DAVID ALLEN Applicant VARIATION OF PROBATION ORDER Before: Her Worship Mary A. Ross Hendriks Hearing Date: October 22, 2015, D court, OCH Date of Variation Order: November 12, 2015, D court, OCH Appearances: Ms. Joanne Collins, Counsel for Mr. Allen Mr. David Allen, in person Mr.

Robert Maxwell, Counsel for RECO INTRODUCTION: [ 1 ] On November 14, 2013, Mr. Allen pleaded guilty, on behalf of his brokerage and himself, to breaching section 40(1)(

c) of the Real Estate and Business Brokers Act, 2002 , before me. On consent of all parties, Mr. Allen agreed to pay a fine of $25,000. He also agreed to make restitution, in the amount of $100,000 to Alternative Risk Services, while on probation for two years, pursuant to

section 72 of the Provincial Offences Act , R.S.O. 1990, c. P. 33 (the " POA "). [ 2 ] Through his counsel, Mr. Allen has brought a written application under

section 74 of the POA , to vary his Probation Order, dated November 14, 2013. His Probation Order will expire on November 14, 2015. Counsel for the Real Estate Council of Ontario ("RECO") agree to the terms of this variation, which would vary the Probation Order to allow Mr. Allen a further two years to November 14, 2017, to pay the restitution of $100,000 to Alternative Risk Services. The anticipated payment

schedule is as follows: $30,000 by November 30, 2015 $35,000 by June 1, 2016 $35,000 by June 1, 2017 Total payment: $100,000 EVIDENCE: [ 3 ] On October 22, 2015, Mr. Allen testified before me that he fully intends to make restitution, but needs more time to pay. It took longer for him to obtain approval from the Canada Revenue Agency ("CRA") for his business loss than he anticipated. Since his business failed, he has been struggling financially, but now has employment again. His wages are currently being garnished by one creditor. Mr.

Allen testified that he has received correspondence from CRA, indicating that they will allow his claim, and that he has forwarded this correspondence from CRA to his counsel, who in turn has provided a copy of it to RECO's counsel. His evidence was not challenged in any way by RECO's counsel. For the record, I find him to be credible.

ANALYSIS: [ 4 ] I have the statutory authority to vary Mr. Allen's Probation Order, pursuant to

section 74 of the POA . There are compelling reasons to do so, and I also note that this application is on consent. [ 5 ] However, as a practical matter, I advised both parties that while I was prepared to give him more time to pay, I could not double the probationary period under the POA . Thus, I suggested that I make a stand-alone restitution order, to accompany this variation. I also noted, for the record, that I had the statutory authority to take this step, since it was contemplated in the underlying statute itself.

Section 41(1) of the Real Estate and Business Brokers Act, 2002 , provides: Orders for compensation, restitution If a person is convicted of an offence under this Act, the court making the conviction may, in addition to any other penalty, order the person to pay compensation or make restitution. 2002, c. 30 , Sched.

C, s.41(1). [ 6 ] Given that this was my own suggestion, and not included in the application materials, I gave the parties a recess, in order to obtain instructions, and make submissions. [ 7 ] Following this recess, both counsel advised me that they had instructions to agree to the stand-alone restitution order, to accompany the variation of the Probation Order.

Counsel for RECO said that his instructions were to agree, provided that the stand-alone restitution order included the payment schedule, and I indicated that it would. [ 8 ] Again, as a practical matter, I advised the parties that I wanted an opportunity to prepare these written orders with my reasons, since I had other matters on my docket. On consent, I adjourned this matter to a return date of November 12, 2015. ORDER: [ 9 ] I hereby vary the Probation Order, dated November 14, 2013, on consent, to extend the time for Mr.

Allen to make restitution payments to Alternative Risk Services, in the amount of $100,000, to be paid in full, no later than November 1, 2017. FREE-STANDING RESTITUTION ORDER: [ 10 ] In addition, I am requiring Mr. Allen, on consent, to comply with a free-standing restitution order, attached herein as Appendix "A". Dated at Toronto, this 12th day of November, 2015. _______________________ Mary A. Ross Hendriks, J.P. APPENDIX "A" Case # 4860 999 13 322317 ONTARIO COURT OF JUSTICE Toronto Region In the matter of the Provincial Offences Act , R.S.O. 1990, c.

P. 33 B E T W E E N: REAL ESTATE COUNCIL OF ONTARIO -and- DAVID ALLEN RESTITUTION ORDER

Pursuant to section 41(1) of the Real Estate and Business Brokers Act, 2002 , the Ontario Court of Justice, Toronto Region, hereby makes the following stand-alone Restitution Order: On the 14th day of November, 2013, David Allen entered a guilty plea for contravening the Real Estate and Business Brokers Act, 2002 .

He was sentenced by this court on that date; As part of this sentence, and in light of his successful application to vary his Probation Order, made on consent, dated November 12, 2015, this court hereby makes the following Restitution Order: David Allen is hereby ordered to pay Alternative Risk Services the amount of $100,000, as restitution, to be paid in full, no later than November 1, 2017. Such restitution is to be paid to Alternative Risk Services, 36 Toronto Street, Unit 510, Toronto, Ontario, attention Joe Tontini.

Dated at the City of Toronto, this 12th day of November, 2015. _______________________ Mary A. Ross Hendriks, J.P.