Executive summary: key legal and evidentiary issues

• A real estate agent's $50,000 loan to her client for a property deposit was found to constitute professional misconduct through a conflict of interest under Rule 30(i)–(j) of the Real Estate Services Rules.

• The FST Panel Chair's decision to set aside the Hearing Officer's finding was quashed by the BC Supreme Court as patently unreasonable, applying the Dawson shortcut reasoning.

• Reliance on hearsay evidence from the complainants was mischaracterized by the Panel Chair, as the Hearing Officer primarily relied on contemporaneous documents and Ms. Wang's own admissions.

• Procedural fairness was upheld despite the respondent being self-represented and the complainant not testifying, since no actual prejudice resulted.

• Had it been necessary, the Court indicated it would have found the Panel Chair's effective stay of proceedings patently unreasonable for failing to consider the public interest as required by Abrametz and for exceeding the remedial options available under s. 242.2(11) of the Financial Institutions Act.

• Standing was granted to both the Superintendent in its prosecutorial capacity and the FST in an expanded role given the respondent's self-represented status.

The underlying complaint and the $50,000 loan

In the summer of 2016, Wei (Vicky) Wang, a licensed real estate agent in British Columbia, acted for her friend ShuJun Li and Ms. Li's husband, Qiang Xu, in purchasing two investment properties in the Lower Mainland — a Richmond Property and a Vancouver Property. When the sellers accepted an unconditional offer on the Richmond Property requiring a $90,000 deposit within 24 hours, Ms. Li asked Ms. Wang for $50,000 to help fund the deposit. Ms. Wang agreed and, on the following day, deposited a bank draft from her personal real estate corporation's account with her brokerage for the purpose of paying the deposit, preparing a receipt of funds record on which she wrote "loaning to the Buyer temporarily." Ms. Li later returned the $50,000 without interest after Ms. Wang requested repayment via the WeChat messaging application, but not before Ms. Li responded by asking Ms. Wang to pay her 55% of the commission on the sale of the Richmond and Vancouver properties, to which Ms. Wang agreed. Ms. Wang did not provide the commission rebate to Ms. Li.

The investigation and disciplinary proceedings

In October 2017, Ms. Li filed a complaint against Ms. Wang — not about the $50,000 loan, but alleging that Ms. Wang had failed to provide the promised commission rebate and had failed to deposit rental payment cheques on time. During the investigation, the Real Estate Council of British Columbia (later succeeded by the BC Financial Services Authority or BCFSA) was provided with WeChat messages between Ms. Wang and Ms. Li which revealed that Ms. Wang had given Ms. Li $50,000 to help fund the deposit of the Richmond Property. A notice of disciplinary hearing was issued in 2019, alleging Ms. Wang committed professional misconduct by failing to avoid a conflict of interest under Rule 30(i) and failing to disclose that conflict under Rule 30(j) of the Real Estate Services Rules. The notice was amended multiple times over four years, including a correction just days before the hearing to reference the Richmond Property instead of the Vancouver Property.

The discipline hearing and the Hearing Officer's decision

The discipline hearing commenced on January 25, 2023, before Hearing Officer Andrew Pendray, a delegate of the Superintendent. Ms. Wang represented herself throughout. The complainant, Ms. Li, did not testify because after 2020, the BCFSA had been unable to locate her. The BCFSA presented documentary evidence including Ms. Wang's own receipt of funds, bank records, and WeChat messages, along with testimony from the BCFSA investigator, Danica Law, and Ms. Wang's managing broker, Ilan Heller. Ms. Wang testified that the $50,000 was not a loan because there was no written agreement or interest, that the transaction had in effect completed once the offer was accepted and before she advanced the funds, and that Ms. Li had taken advantage of their close friendship to exercise undue influence on her. The Hearing Officer found the $50,000 was a loan based on contemporaneous documentary evidence — particularly Ms. Wang's own notation of "loaning to the Buyer temporarily" — and concluded that the loan created a conflict of interest because once Ms. Wang's own money became part of the transaction, she had a personal financial interest in the transaction beyond that which a licensee would normally have, ensuring the purchase would proceed and she would receive her commission. He ordered Ms. Wang and Wang Corp. to pay an administrative penalty, complete educational training, and cover enforcement expenses.

The FST Panel Chair's appeal decision

On appeal, the FST Panel Chair found the Hearing Officer's Liability Decision unreasonable, criticizing his use of hearsay evidence from Ms. Li and Mr. Xu and his failure to explain his conclusion that the loan created a conflict of interest. The Panel Chair also found breaches of procedural fairness, concluding that Ms. Wang could not properly respond to the BCFSA's evidence against her because she was unable to test the evidence from the complainants or the original investigator through cross-examination. Rather than remitting the matter back for reconsideration, the Panel Chair set aside the decision entirely, declining to remit the matter back to the Hearing Officer in part due to the delay that had occurred in bringing the matter to a hearing, effectively staying the disciplinary action.

The BC Supreme Court's judicial review

Justice Hoffman of the BC Supreme Court conducted a judicial review of the Panel Chair's decision. Applying the Dawson shortcut — which permits a reviewing court to bypass the intermediate review body and directly assess whether the original decision was reasonable — the Court concluded that the Hearing Officer's reasoning was transparent, intelligible, and justified. The Court found the Panel Chair fundamentally misapprehended the Hearing Officer's decision by concluding he relied on hearsay, when a careful reading of his reasons demonstrated that very little, if any, weight was placed on the evidence from Ms. Li and Mr. Xu, and that he primarily relied on Ms. Wang's own contemporaneous documents and admissions. On procedural fairness, the Court found no actual prejudice to Ms. Wang: she had ample opportunity to participate, the Hearing Officer took care throughout to ensure that Ms. Wang understood the process and could meaningfully participate, and the limited role of hearsay evidence in the decision meant Ms. Wang was not subjected to any actual prejudice as a result of the failure to call Ms. Li. The Court also noted that some of the Panel Chair's criticisms of how the hearing was conducted were founded in a fundamental misreading of the record — for example, incorrectly stating the Hearing Officer made no opening remarks to explain the hearing process to Ms. Wang, when the transcript showed otherwise.

The ruling and outcome

The Court set aside the order made by the FST and reinstated the findings of professional misconduct made by the Hearing Officer in the Liability Decision. However, the Court noted this does not oust Ms. Wang's right to have her appeal of the Sanction Decision — which was not addressed substantively by the Panel Chair — heard. Accordingly, Ms. Wang's appeal regarding the Sanction Decision was remitted back to the FST on the basis that the Liability Decision stands. The Superintendent did not seek costs from either Ms. Wang or the FST, and all parties were ordered to bear their own costs. No specific monetary award was determined in this judicial review; the ultimate sanctions imposed on Ms. Wang remain subject to the outcome of her appeal of the Sanction Decision before the FST.