Ontario businesses and professionals must comply with many provincial laws and regulations. Regulated industries include real estate, car dealers, mortgage brokers and other professionals. A violation can lead to a provincial offence charge.
These cases can be particularly important because the consequences may extend beyond the fine imposed by the court. Depending on the legislation and circumstances, a charge or conviction may also create licensing, registration, disciplinary or business concerns.
For this reason, regulated businesses and professionals should consider the broader consequences before deciding how to respond to a provincial offence charge.
What Is a Regulatory Provincial Offence?
Provincial offences are not limited to traffic tickets. Ontario legislation regulates many industries, occupations and business activities.
These laws may establish requirements concerning licensing, registration, record keeping, disclosure, advertising, business practices and compliance with orders issued by a regulator.
A failure to comply with some of these requirements can result in prosecution.
The exact offence depends on the legislation and the particular industry. Therefore, there two important issues to consider in case of such prosecution:
- What statutory provision has allegedly been violated, and
- What must the prosecution prove?
Real Estate Professionals and Brokerages
Ontario real estate brokerages, brokers and salespersons must comply with the Trust in Real Estate Services Act, 2002 and its regulations.
It contains requirements dealing with matters such as brokerage responsibilities, trust accounts, information provided to the regulator, advertising and other aspects of real estate activity. It also creates provincial offences for certain violations.
For a real estate professional or brokerage facing a charge, the fine should not be the only consideration. Considering whether the circumstances of the alleged offence could affect registration or lead to other regulatory proceedings may be important.
This makes it necessary to assess the charge before deciding whether to plead guilty.
Motor Vehicle Dealers and Salespersons
Motor vehicle dealers and salespersons are another example of a heavily regulated Ontario industry.
The Motor Vehicle Dealers Act, 2002 sets out requirements for registration and dealer conduct, including disclosure, advertising, trust accounts and information a dealer must provide to the consumer. Breach of the Act or its regulations can result in provincial offence charges.
The potential penalties can be substantial. The Act currently provides a maximum fine of $50,000 for an individual convicted of an offence and $250,000 for a corporation, with imprisonment also possible for an individual.
Again, the effect of a conviction on a person’s registration or business should be considered in addition to the court penalty.
Other Regulated Businesses
Provincial offence charges can arise in many other regulated industries.
Ontario legislation may establish rules depending on the industry. These rules concern licences, permits, records, safety procedures, advertising, employee conduct, or other operating requirements.
For example, provincial legislation governing private security and investigative services creates offences involving licensing and compliance with regulatory requirements and provides separate penalties for individuals and business entities.
The important point is that the regulatory scheme for each industry is different. The particular legislation, the wording of the charge and the defendant’s regulatory status should all be reviewed carefully.
Why Can a Guilty Plea Have Broader Consequences?
Depending on the applicable legislation and regulator, a conviction may affect registration, licensing, disciplinary proceedings or future dealings with the regulator. The consequences will vary considerably between industries and individual cases.
A possible resolution of the charge may appear attractive because it reduces the fine. However, it should be considered together with any possible regulatory consequences of the conviction.
What Evidence Should Be Reviewed?
Before deciding how to proceed, the defendant should normally obtain and review the prosecution’s disclosure of evidence.
Depending on the case, relevant evidence may include:
- inspection or investigation reports;
- correspondence with the regulator;
- business records;
- contracts and transaction documents;
- advertisements or marketing materials;
- photographs or videos;
- witness statements; and
- records of previous communications or compliance efforts.
The defence should compare this evidence with the exact provision stated in the charge.
Documents that the business holds can be equally important and should be preserved.
Is Due Diligence a Possible Defence?
Some regulatory charges can be resolved through discussions and settlement with the prosecutor.
Depending on the evidence and circumstances, a resolution might involve withdrawal of a charge, an amendment, resolution of multiple charges, or an agreed position concerning the penalty.
However, for a regulated business or professional, it is important to understand exactly what offence would appear on the court record before accepting a resolution.
A lower fine is not necessarily the only consideration.
Provincial Offence Representation for Businesses and Professionals
Regulatory prosecutions can create issues that go far beyond the courtroom. The applicable legislation, prosecution evidence, available defences and the possible effect of a conviction should all be considered.
Spectrum Paralegal represents individuals, businesses and regulated professionals facing provincial offence charges in Toronto and across Ontario.
We can review the charge and disclosure, assess possible defences, communicate with the prosecutor and provide representation in Provincial Offences Court.
