By: Scott Chimuk
In Temple (Re), 2024 ABRECA, Scott Chimuk of Blue Rock Law LLP, successfully defended a realtor in a regulatory proceeding before the Real Estate Council of Alberta (“RECA”). At issue was that RECA had sought to use Questioning transcripts, as well as document disclosure, that had been obtained from a King’s Bench proceeding in the regulatory proceeding. The realtor objected to the use of said materials and argued that it was a breach of both the Rules of Court as well as the implied undertaking of confidentiality.
Submissions on behalf of the realtor further argued that if RECA wanted relief from both the Rules and the implied undertaking that the proper procedure would be to have brought an application to King’s Bench for permission to do so. RECA argued that the legislation permitted an exception for it to rely on the materials and that it had a positive duty to do so.
The realtor also argued that if the Registrar inadvertently receives confidential information, it can do one of two things:
It can return the confidential information unused; or
If it wants to use the confidential information, it can bring a Court application to lift the Rule 5.33 undertaking
The Panel found that under Rule 5.33(1)(a), which states that the undertaking applies “unless the Court otherwise orders”, only the Court can waive the Rule 5.33 undertaking. The Panel found that it did not have the jurisdiction to waive the undertaking under Rule 5.33(1)(a).
The Panel also found that the exception in Rule 5.33(1)(c) did not apply and did not relieve the recipient of confidential information or records from the confidentiality undertaking to be able to provide confidential information or materials to the Registrar or investigator. Therefore, both the transcript and record were held to be inadmissible in the Regulatory proceedings.
As a result of the decision, RECA deemed there was insufficient evidence to proceed and dropped all charges against the realtor.
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