Executive Summary: Key Legal and Evidentiary Issues

• RECA's Appeal Panel exceeded its statutory authority by remitting the matter to a "newly constituted panel," a remedy not available under the Real Estate Act of Alberta.

• Administrative disciplinary hearings do not constitute "prosecutions" under the Act, rendering the 3-year limitation period inapplicable to the Applicant's conduct proceedings.

• The Kienapple principle against double jeopardy was properly refused at appeal and review, as the two allegations under sections 53(a) and 17(a) contained sufficiently distinct legal elements.

• A supplemental affidavit filed by the Applicant was ruled inadmissible for falling outside the statutory appeal record and exceeding the permissible scope of evidence on review.

• Inordinate and inexplicable delay throughout the proceedings significantly mitigated the sanction imposed on the Applicant.

• Original fines of $41,500 and costs of $11,000 were reduced by the Court to a global fine of $7,500 and nominal costs of $1.00, reflecting procedural unfairness and systemic delay.

Background and the complaints against Mr. Mohamed

Farouk Mohamed was a licensed associate real estate broker in Alberta, subject to the regulatory oversight of the Real Estate Council of Alberta (RECA). Between 2015 and 2017, Mr. Mohamed engaged in activity that was prohibited by RECA regulations, a fact he effectively conceded. In August 2017, his employer lodged a formal complaint, prompting an investigation by RECA. The case then entered a bifurcated hearing process: "Phase 1" to determine whether the conduct deserved sanction, and "Phase 2" to determine the appropriate penalty.

A protracted hearing process and procedural missteps

For reasons that were never fully explained, the hearing process stretched well beyond reasonable timelines. The Phase 1 conduct hearing did not conclude until September 1, 2022 — more than five years after the initial complaints. The Hearing Panel found that Mr. Mohamed had engaged in conduct deserving of sanction. The Phase 2 sanction hearing and costs decision were released in February and May 2023, respectively. The original hearing panel imposed fines totaling $41,500 and costs of $11,000 against Mr. Mohamed.

Two days after the costs decision was delivered, Mr. Mohamed appealed to the RECA Appeal Panel. The appeal hearing occurred approximately 10 months later, and the Appeal Panel delivered its decision on May 6, 2024. While the Appeal Panel declined to interfere with the Phase 1 findings, it determined that Phase 2 was procedurally unfair and remitted the matter back for a new Phase 2 hearing in front of a "newly constituted panel." Both parties subsequently agreed that this particular remedy was not an available remedy pursuant to the provisions of the Real Estate Act of Alberta, prompting Mr. Mohamed to seek intervention from the Court of King's Bench.

The admissibility of the supplemental affidavit

As a preliminary matter, the Respondent challenged Mr. Mohamed's reliance on a supplemental affidavit dated September 17, 2025. The Court sided with RECA, declining to give any weight to the affidavit's contents. Justice Millsap emphasized that in a statutory appeal of an administrative tribunal, the reviewing court must stay within the proper boundaries when conducting the appeal. The Court cited Canada v. Vavilov 2019 SCC 65 as a reminder that the reviewing court must consider only whether the decision made by the administrative decision maker was reasonable. The affidavit was inadmissible in both its failure to be properly part of the appeal record and the scope of the evidence contained therein.

The Appeal Panel's jurisdictional error

On the central question of whether the Appeal Panel erred in remitting the Phase 2 hearing to a newly constituted panel, the Court found a clear error. The remedial powers of the Appeal Panel are statutorily conferred, and section 50(4) of the Act governs the power of the Appeal Panel and provides the explicit remedies available to an appellant. Sending the matter to a newly constituted panel was not within their jurisdiction, and upon application of the standard of correctness, the Court concluded there was an error.

The limitation period and the nature of disciplinary proceedings

Mr. Mohamed argued that a 3-year limitation period should have barred the proceedings against him. The Court disagreed. Justice Millsap drew a clear distinction between an administrative disciplinary hearing and a "prosecution." The limitation period under the Act specifically references "offences," and for conduct to constitute an "offence" it must be subjected to a prosecution under the Provincial Offences Procedure Act (POPA) with the additional safeguards that POPA provides. Mr. Mohamed's matter involved "conduct deserving of sanction" — a regulatory proceeding where the available procedures for disputing and proving such conduct are limited to those found within the regulatory legislation. Because the Applicant was not prosecuted within the meaning of that term in the Act, the 3-year limitation period that pertains to prosecutions did not apply to him.

The Kienapple principle and double jeopardy

The Court also addressed whether the Appeal Panel erred in refusing to consider the Kienapple principle, which stems from the requirement that a person not be tried for the same offence twice. The Court held that the Appeal Panel was correct. Mr. Mohamed was confined to an appeal on the record and was not entitled to a hearing de novo; the Appeal Panel was not moved to allow this new issue to be argued and was not satisfied that the issue was otherwise argued prior to the appeal. Even on the merits, the Court found the principle inapplicable: it was entirely possible that the Applicant could have been guilty of the prohibited conduct under section 53(a) of the Real Estate Rules and not section 17(a). While there was one identical element — managing properties — the remaining elements of the two allegations were sufficiently different and independent so as not to engage a fear of double jeopardy.

The costs award and the question of functus officio

Mr. Mohamed further contended that the Appeal Panel erred in failing to grant him a costs award, arguing that the Panel's use of the word "intends" was akin to a final decision, rendering it functus officio. The Court rejected this argument. The Appeal Panel's expression of an intention to award costs was communicated immediately prior to requesting that both parties make submissions on costs, indicating the issue was still live before the panel. Without reference to a specific amount or a final ruling, the Applicant had not in any way established that a final decision was reached by the Appeal Panel on the issue of costs, and the argument of functus officio failed.

The Court's ruling and the outcome

Having found an error, the Court exercised its powers under section 52(7) of the Act to impose a final resolution. Justice Millsap upheld the Phase 1 finding that Mr. Mohamed engaged in conduct deserving of sanction but quashed the Phase 2 decision and declined to remit the matter back to RECA's Hearing Panel. The Court noted that the original hearing panel failed to discharge their duty of fairness, and sending the Applicant back to that hearing panel could not be said to be a just remedy. Subjecting Mr. Mohamed to a lengthier process would only compound what had already taken far too long and been rife with problems and unfairness. In consideration of the Phase 1 findings, the relevant considerations noted by the panel at Phase 2, the fundamental errors made at the Phase 2 hearing and at the subsequent appeal, and the mitigating effect of the delay, the Court imposed a significantly reduced global fine of $7,500.00 against the Applicant, down from the original $41,500, and set costs at a nominal $1.00, down from $11,000. Justice Millsap noted that this nominal amount should serve as motivation to RECA that justice delayed is justice denied, and that a regulatory body with RECA's power simply cannot operate in what the Court described as a "laissez-faire manner." The public protected by RECA and the professionals regulated by them both deserve better. No costs were awarded to either party for the judicial review itself, given the mixed success such that neither party could successfully claim costs against the other for the hearing. The decision was heard in Calgary on October 15, 2025 and rendered by Honourable Justice C.D. Millsap on February 6, 2026.