June 11, 2025
IN THE MATTER OF: THE REAL ESTATE SERVICES ACT
-and-
IN THE MATTER OF: KATHRYN JUNE PION
Decision on Motion – dated June 11, 2025
Panel: L. Vincent, Chair of the Panel D. Ammeter, Commissioner
Appearances: A. Poushangi L. Mercier
S. Simmonds, K.C. J. Shypit
Counsel for the Commission
Counsel for Ms. Pion
Introduction
This hearing panel (Panel) of the Manitoba Securities Commission (Commission) was convened under the provisions of The Securities Act C.C.S.M. c.S50 (the “Act”) and provided with the pleadings in this matter on April 24, 2025.
The Panel scheduled a first appearance for June 2, 2025. The Panel advised that it wanted to hear from the parties on the issue of delay. We advised the parties that if they were unable to speak to the issue on June 2, 2025 we would set a later hearing date for the matter. Both parties advised that they would speak to the issue on June 2, 2025.
Facts
1. Kathryn June Pion (“Pion” or the “Respondent”) is a real estate salesperson registered under The Real Estate Services Act, C.C.S.M. c R21 (the “RESA”). The RESA came into effect on January 1, 2022.
2. The pleadings allege that the Respondent was registered 1 as a salesperson with a broker firm up until June 13, 2019 when she was no longer registered with a broker firm. Both the RESA and the previous legislation (the Real Estate Brokers Act) required salespersons to be registered with a registered broker firm.
3. The pleadings further allege that the Respondent submitted an application to the real estate department of the Commission to register with a new broker firm on January 16, 2020. In her application she advised that she had engaged in five (5) real estate transactions between June 13, 2019 to January 16, 2020, during a period of time when she was not properly registered as a salesperson under the relevant legislation.
4. The real estate division processed the Respondent’s application of January 16, 2020 and registered her as a salesperson under a registered broker firm. She has continued
1 Note: Until January 1, 2022 the relevant legislation was The Real Estate Brokers Act R.S.M. 1987, c.R20. Page 2 of 11
working, without issue, since that date.
5. Staff of the Commission advised of the following timeline with respect to this matter: a. From January 16, 2020 until June 19, 2020 the file was with the real estate department of the Commission; b. On June 19, 2020 the file was referred to the compliance department. c. On June 25, 2020, the compliance department forwarded the file to the head of the legal department at the MSC; d. On September 9, 2020, the head of the legal department assigned the file to a lawyer at the Commission (Lawyer #1); e. From September 9, 2020 until January 17, 2024 Lawyer #1 had the file. There was no evidence that any work had been done on the file by Lawyer #1; f. On January 17, 2024 the file was assigned to another lawyer at the Commission (Lawyer #2); g. On March 5, 2024 the file was assigned to another lawyer at the Commission (Lawyer #3); h. On May 30, 2024 Lawyer #3 sent a letter to the Respondent noting that the file was open. This was the first time, since the Respondent had self-reported on January 16, 2020, that the Commission had advised her that the matter was under investigation and that she would be required to answer to, and deal with, the matter. i. On April 24, 2025 the Statement of Allegations and Notice of Hearing (collectively the “Pleadings”) were filed and served on the Respondent; j. The Panel was advised that as of June 2, 2025 Staff of the Commission had not yet provided the required hearing disclosure to the Respondent.
6. The Statement of Allegations is three pages long. The facts listed to support the allegations are set out in ten (10) paragraphs that are one (1) page long. The sanctions sought against the Respondent include the suspension or cancellation of registration, payment of a fine, and/or the payment of costs.
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7. It has been four (4) years and five (5) months, or a total of fifty-three (53) months between the time the Respondent self-reported her period of non-registration on January 16, 2020 and May 30, 2024 when she was first advised by Staff of the Commission that there were allegations she would need to answer. It has been sixty-five (65) months from the time the Respondent self-reported her period of non-registration until a hearing panel of the Commission first heard from the parties.
Issue
8. The issue before the Panel is whether the delay of Staff of the Commission in this matter has resulted in a lack of procedural fairness such that the hearing cannot proceed. The Panel considered which type of delay (of the two set out in the Blencoe 2 and Abrametz 3 decisions) has occurred in this matter, and what, if any, remedies should accrue to the Respondent as a result of the delay.
Position of the Parties
9. Staff of the Commission refer us to the Supreme Court of Canada cases of Blencoe v British Columbia (Human Rights Commission) 2000 SCC 44 (CanLII) and Law Society of Saskatchewan v Abrametz 2022 SCC 29 (CanLII). They argue that this matter attracts a review of the second type of delay set out in both cases. They argue that the processes involved in this matter do not lead to a finding that proceeding to a hearing would mean that procedural fairness will be jeopardized.
10. With regard to the Abrametz test, Staff of the Commission argue that; a. There has not been a sufficient time delay to sustain a finding of inordinate delay;
2 Blencoe v British Columbia (Human Rights Commission) 2000 SCC 44 (CanLII) 3 Law Society of Saskatachewan v Abrametz 2022 SCC 29 (CanLII)
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b. the Respondent has not suffered significant prejudice that would give rise to a right to a remedy; and c. even if the Panel finds inordinate delay and significant prejudice, the appropriate remedy would not be a stay of proceedings but could include a reduction in sanctions or a fine assessed against the Commission under the section 5.1(i) of the Act.
11. Staff of the Commission noted the need to balance the rights of the Respondent with the broader interests of the public in proceeding with the hearing. In this case, they argue that the right of the public take precedence.
12. Staff of the Commission noted the importance of registration under the RESA and that lack of registration has the potential to significantly harm the public. They argue that proceeding to a hearing on this matter will provide for both general and specific deterrence. They further noted that registration is an important priority for the real estate department of the Commission.
13. The Respondent argues that there was a significant delay in this matter. The delay involving Lawyer #1 was not explained at all. Counsel for the Respondent argued that the involvement of so many lawyers over such a lengthy period of time leaves open the question as to whether the various lawyers agreed that it was reasonable to proceed with the hearing and whether there had been internal disagreement as to whether to issue the pleadings.
14. The Respondent notes that the investigation required in this matter was not complex. The pleadings are based solely on the facts that the Respondent self-reported. The pleadings do not allege any harm to the public.
15. The Respondent argues that a significant factor is that she was completely unaware that this matter was outstanding from the time she self-reported in January 2020 until May 30, 2024. Throughout that period she had received no notice whatsoever from the
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Commission that an investigation was ongoing and that pleadings would be filed. As late as June 2, 2025 she had not received the required disclosure in the matter from Staff of the Commission.
16. The Respondent argued that there is no benefit to the public interest in proceeding with this matter at this time. Respondent’s counsel stated that in this situation “justice delayed is justice denied”.
17. Finally, the Respondent submits that in balancing the interests in this matter there is a legitimate argument that the public interest is not served by proceeding after such a lengthy delay.
Law and Analysis
18. All administrative tribunals in Canada, including the Commission, are required to provide fair hearings. In Cardinal v Director of Kent Institution,1985 CanLII 23 (SCC), [1985] 2 SCR 643, the Supreme Court of Canada (SCC) held that the right to a fair hearing is to be regarded as an independent, unqualified right which finds its essential justification in the procedural fairness which all persons affected by an administrative decision are entitled to. The court held:
“…there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual”. [para 14]
See also: Canadian Pacific Railway Company v Canada (A.G.) 2018 FCA 69 (CanLII), Katebian v OSC 2025 ONSC 3249 (CanLII), Ali (Re) 2023 ONCMT 52 (CanLII), and Odorico (Re) 2023 ONCMT 34 (CanLII)
19. In Baker v Canada (Minister of Citizenship and Immigration) 1999 CanLII 699 (SCC), the court held:
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22 Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances. I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.
20. In Baker, the court set out several factors relevant to determining the degree of the duty of fairness owed by the administrative tribunal, including: the nature of the decision being made and the process followed, the nature of the statutory scheme, the importance of the decision to the individual affected and the legitimate expectations of the persons involved. The court held:
25 A third factor in determining the nature and extent of the duty of fairness owed is the importance of the decision to the individual or individuals affected. The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated. This was expressed, for example, by Dickson J. (as he then was) in Kane v. Board of Governors of the University of British Columbia, 1980 CanLII 10 (SCC), [1980] 1 S.C.R. 1105, at p. 1113: [emphasis added[
A high standard of justice is required when the right to continue in one’s profession or employment is at stake. . . . A disciplinary suspension can have grave and permanent consequences upon a professional career.
As Sedley J. (now Sedley L.J.) stated in R. v. Higher Education Funding Council, ex parte Institute of Dental Surgery, [1994] 1 All E.R. 651 (Q.B.), at p. 667:
In the modern state the decisions of administrative bodies can have a more immediate and profound impact on people’s lives than the decisions of courts, and public law has since Ridge v. Baldwin [1963] 2 All E.R. 66, [1964] A.C. 40 been alive to that fact. While the judicial character of a function may elevate the practical requirements of fairness above what they would otherwise be, for example by requiring contentious evidence to be given and tested orally, what makes it “judicial” in this sense is principally the nature of the issue it has to determine, not the formal status of the deciding body.
The importance of a decision to the individuals affected, therefore, constitutes a significant factor affecting the context of the duty of procedural fairness. [emphasis added]
21. Here, the livelihood of the Respondent is at issue. The Pleadings seek, among other sanctions, that her registration as a real estate salesperson under the RESA be cancelled. In this context, the duty of procedural fairness is critical. Had the Respondent been advised on a timely basis that her registration and livelihood was at issue, we believe she would have taken immediate steps to preserve evidence, locate witnesses and seek legal advice. Her actions subsequent to receiving the May 30, 2024 letter support this finding. Page 7 of 11
22. Blencoe dealt with an issue of delay in a case brought against the respondent arising from a complaint made by a member of the public. The respondent had been involved in the matter almost from the outset. He was actively involved in the investigation process and had counsel throughout. The Court found that the unexplained delay in the Human Rights Commission proceeding was either five months, or at the most, twenty-four months. The court held that there were two types of delay that could give rise to a finding of an abuse of process. The first involved a delay that resulted in unfairness in the proceedings themselves. The second was where there was no unfairness in the proceedings but the delay had been inordinate to the point that it constituted an abuse of process. Blencoe dealt with the second type of delay.
23. In speaking to the first type of delay – one which resulted in the proceedings being unfair, the court held:
[102] There is no doubt that the principles of natural justice and the duty of fairness are part of every administrative proceeding. Where delay impairs a party’s ability to answer the complaint against him or her, because, for example, memories have faded, essential witnesses have died or are unavailable, or evidence has been lost, then administrative delay may be invoked to impugn the validity of the administrative proceedings and provide a remedy (D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at p. 9-67; W. Wade and C. Forsyth, Administrative Law (7th ed. 1994), at pp. 435-36). It is thus accepted that the principles of natural justice and the duty of fairness include the right to a fair hearing and that undue delay in the processing of an administrative proceeding that impairs the fairness of the hearing can be remedied (see, for example, J. M. Evans, H. N. Janisch and D. J. Mullan, Administrative Law: Cases, Text, and Materials (4th ed. 1995), at p. 256; Wade and Forsyth, supra, at pp. 435-36; Nisbett, supra, at p. 756; Canadian Airlines, supra; Ford Motor Co. of Canada v. Ontario (Human Rights Commission) (1995), 24 C.H.R.R. D/464 (Ont. Div. Ct.); Freedman v. College of Physicians & Surgeons (New Brunswick) (1996), 41 Admin. L.R. (2d) 196 (N.B.Q.B.)).[emphasis added]
24. A key difference between Blencoe and the facts before us is that the appellant was aware from the outset that the matter was ongoing. He had counsel, and was involved on an ongoing basis with the investigation led by the Human Rights Commission. As the court held:
[131] A review of the facts in this case demonstrates that, unlike the aforementioned cases where there was complete inactivity for extremely lengthy periods, the communication between
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the parties in the case at bar was ongoing. While Lowry J. acknowledged the five-month delay of inactivity, on balance, he found no unacceptable delay and considered the time that elapsed to be nothing more “than the time required to process complaints of this kind given the limitations imposed by the resources available” (para. 47). Lowry J. concluded as follows (at para. 49):
In my view, it cannot be said that the Commission or the Tribunal have acted unfairly toward Mr. Blencoe. They have caused neither an unacceptable delay in the process nor a prejudice to him whereby fairness of the hearings scheduled to be conducted next month have been compromised. There has been no denial of natural justice and, accordingly, Mr. Blencoe’s petition for judicial review cannot succeed.
[132] As expressed by Salmon L.J. in Allen v. Sir Alfred McAlpine & Sons, Ltd., [1968] 1 All E.R. 543 (C.A.), at p. 561, “it should not be too difficult to recognise inordinate delay when it occurs”. In my opinion, the five-month inexplicable delay or even the 24-month period from the filing of the Complaints to the referral to the Tribunal was not so inordinate or inexcusable as to amount to an abuse of process. Taking into account the ongoing communication between the parties, the delay in this case does not strike me as one that would offend the community’s sense of decency and fairness. While I would not presume to fix a specified period for a reasonable delay, I am satisfied that the delay in this case was not so inordinate as to amount to an abuse of process.[emphasis added]
25. In Law Society of Saskatchewan v Abrametz 2022 SCC 29 (CanLII) , the Supreme Court revisited the Blencoe decision, and noted that it was an opportunity for the court to “…address once again the doctrine of abuse of process as it related to inordinate delay in the administrative context.” [para 3]
26. The court again noted that delay can constitute an abuse of process in an administrative proceeding in two ways. It held:
[41] The first concerns hearing fairness. The fairness of a hearing can be compromised where delay impairs a party’s ability to answer the complaint against them, such as when memories have faded, essential witnesses are unavailable or evidence has been lost: Blencoe, at para 102; D. J. M. Brown and J. M. Evans, with the assistance of D. Fairlie, Judicial Review of Administrative Action in Canada (loose-leaf), at § 9:57.
[42] This is not what is in issue in this appeal. Rather, the Court is concerned with a second category of abuse of process. Even when there is no prejudice to hearing fairness, an abuse of process may occur if significant prejudice has come about due to inordinate delay: Blencoe, at paras, 122 and 132.
27. The matter before us concerns the first way - where the delay has affected the fairness of the hearing. The delay here has been so lengthy that to proceed would result in an abuse of process that would constitute a miscarriage of justice. The delay is solely due
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to the lack of action by the Commission. The Respondent did not contribute to the delay nor waive the delay.
28. Staff of the Commission have argued that the real estate department takes very seriously the issue of registration under RESA as a means to protect the public. While we agree that the issue of registration is fundamental and serious, it raises the question of why this file was left in abeyance for such a long time.
29. For fifty-three (53) months, this Respondent was not advised that the matter that she had self-reported was under investigation. We find it a fact that after such a long delay, any evidence she may have been able to find in support of her position – be it witnesses, documents, calendar entries, or her own recollections, is lost or severely degraded. This would result in an unfair hearing and in the Respondent’s rights to procedural fairness denied.
30. In addition, we find that this delay would “…offend the public’s sense of decency and fairness.” [para 102 ] Blencoe. We believe the public would be shocked by an administrative tribunal bringing action against a registrant calling for her registration to be cancelled, after a period of fifty-three (53) months from the alleged infraction, without having contacted her or given her any notice whatsoever that the matter was outstanding.
Decision
31. We find that the first type of delay outlined in the Blencoe decision (and affirmed in the Abrametz decision) applies in this matter. We find that the delay has been excessive, unfair and unreasonable and to permit this matter to continue to a hearing would bring the administration of justice into disrepute. To permit this matter to continue to a hearing would also result in a miscarriage of justice to the Respondent.
32. We order that the proceedings against the Respondent in this matter be stayed. We do not find that any other remedy would suffice given the facts of this matter. Neither costs,
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nor a reduction in the sanction sought, and certainly not an expedited hearing, can rectify the inherent prejudice that has been the result of the delay.
33. Costs can be spoken to, if the parties are unable to agree.
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“L. Vincent” L. Vincent, Chair of the Panel
“D. Ammeter” D. Ammeter, Member