Turf war: B.C.'s superintendent of real estate sues to force discipline hearing

B.C.'s superintendent of real estate is headed to court in a bid to establish the limits of his newly empowered office.

Micheal Noseworthy filed a petition this week in B.C. Supreme Court in an attempt to force the province's real estate council — which he oversees — to order a discipline hearing for a real estate agent in McBride, B.C..

According to court documents, the council has refused to pursue disciplinary action against Rodger Peterson in relation to a complaint he misled a couple over the aborted purchase of a rural property in 2013.

Garry and Wendy Lowe complained to the superintendent's office, which was tasked to evaluate the real estate council's delivery of its consumer protection mandate in 2016, after a lack of public confidence led to the end of self regulation for B.C.'s real estate industry.

But when Noseworthy directed the council to revisit its decision and convene a hearing, the council refused.

'Public interest is not being served'

Garry Lowe says an important principle is at stake.

"We believe the public interest is not being served by how the real estate council regulates real estate. There's a lot of people who don't have our skill or our determination and they just give up," he said.

"When the superintendent thing came up a few years ago, this was such a hopeful breath of fresh air for the public's interest, but the real estate council has just basically told him to go away, because he doesn't have jurisdiction. Well, if he doesn't have jurisdiction, then who does?"

The Lowes have been in a small claims battle for the past four years with the owner of the property they had once planned to buy.

According to a provincial court judgment, the Lowes wanted land to expand their organic farming operation.

They put an offer on a 36 hectare property listed by Peterson, who ended up acting for both buyer and seller.

The Lowes claimed he told them the land included a four to six hectare field and an old abandoned farmhouse. They didn't walk around the entirety of the property but dug holes to test the soil.

The contract for purchase was completed and the conditions lifted, but at the last minute, the Lowes claimed they learned from locals that the property did not include the field, their main reason for buying the land.

They killed the deal, but the owner sued them for reneging on the contract. Peterson was a third party. In their response, the Lowes claimed he misled them about the field, an allegation Peterson denied.

Provincial Court Judge Michael Gray ultimately dismissed the claim against the Lowes; in his judgment, he concluded that Peterson "was careless in not fully discussing the interest of the Lowes in the farming project."

The judge said that "at the very least, he should have insisted on walking the property before any offer was presented."

Gray issued his judgment in November 2016. Three months later, the Real Estate Council of B.C. told the Lowes they would not pursue any disciplinary action against Peterson. The Lowes appealed to the superintendent.

'Meaningless and unenforceable'

The B.C. Supreme Court petition lays bare a jurisdictional battle between the superintendent — who provides oversight and support to the real estate industry as a whole — and the council, which regulates the industry.

Noseworthy claims he directed the council to issue a notice of disciplinary hearing into the allegations against Peterson. But the council wrote back to say that "once the council has disposed of a complaint, the jurisdiction of the council is spent in respect of that matter."

According to the court documents, what followed was a polite back and forth of legalese between the superintendent and the council: the superintendent claimed the council was taking "an impossible position," the council "respectfully" disagreed.

In making his case, the superintendent cites the report which resulted in Victoria beefing up his powers.

"One of the recommendations ... was that the superintendent be provided with stronger oversight powers over the Real Estate Council in order to ensure that the public had confidence in the enforcement of the (Real Estate) Act's provisions," the petition reads.

"To permit the Real Estate Council to refuse to comply ... would be to render those amendments meaningless and unenforceable, contrary to legislative intent."

The real estate council has not responded to the petition, and Peterson could not be reached for comment. His wife said he was unaware of the petition.