In Mostacci v. 2025590 Ontario Ltd., 2026 ONSC 1867, the Ontario Superior Court of Justice held that written submissions submitted on behalf of real estate agents responding to a regulatory complaint brought against them with the Real Estate Council of Ontario (“RECO”) are protected by the confidentiality provisions in the governing legislation.

Nicholas Therens of McCague Borlack LLP represented the Defendants, Home Group Realty Inc., Keller Williams Home Group Realty and Matthew James Webster in successfully opposing a motion for production of a written response to a regulatory complaint.

Factual Background

The plaintiffs were the purchasers of a property located within a new development area. At the time of purchase, the land behind the property was vacant, offering a view of the river valley below. While signing the Agreement of Purchase and Sale, the plaintiffs claimed that their real estate agent assured them that no foreseeable development would interfere with their view. Following closing, the plaintiffs learned that a condominium development would be built behind their property, obstructing their view.

The plaintiffs submitted a regulatory complaint against their agent and RECO requested a written response from the agent regarding his representations. RECO ultimately rendered a written decision, which included a summary of the agent’s response.

The plaintiffs also issued a legal action against their agent and the builder of the development, seeking damages for diminution of the value of their property and misrepresenting to them that the land behind their property would not be developed.

At examinations for discovery, the agent refused to answer all questions about the RECO complaint. Therefore, the plaintiffs brought a “refusals and undertakings” motion seeking, among other things, a copy of the RECO response.

A Real Estate Agent’s Response to a RECO Complaint is Confidential and Privileged

The motion judge held that the RECO response was relevant to the issues in the action; however, it was protected from production pursuant to the confidentiality provisions in the Real Estate and Business Brokers Act, 2002, S.O. 2002 c. 30, Schedule C, (“REBBA”).

More specifically, section 44(1) of REBBA provides that a person who obtains information in the course of exercising a power or carrying out a duty related to the administration of this Act or the regulations shall preserve secrecy with respect to the information and shall not communicate the information to any person except in certain enumerated circumstances.

Moreover, section 19(3) of REBBA provides that real estate agents who receive a written request for information shall provide the information as soon as practicable.

Counsel for the agent argued that he was carrying out a duty related to the administration of REBBA in responding to the RECO complaint; therefore, his response fell within the protection of the confidentiality provisions and was not producible in the civil action.

After considering similar confidentiality provisions in the legislation governing healthcare professionals and applying the modern approach to statutory interpretation, the motion judge held that the purpose of the confidentiality provisions in REBBA is to protect information from disclosure, subject to the enumerated exceptions. Because real estate agents who provide a response to a regulatory complaint are carrying out a duty under the governing legislation, this prevents disclosure of information contained in the complaint process, including responding submissions.

In the alternative, the motion judge held that the RECO response would also be protected from production by case-by-case privilege.

The Impact of this Decision on Responses Submitted for RECO Complaints

REBBA was replaced by the Trust in Real Estate Services Act, 2002, S.O. 2002, c. 30, Sched. C., in 2023; however, as noted by the court, the new legislation applicable to real estate agents contains the same confidentiality provisions word-for-word.

Therefore, this decision stands for the proposition that submissions submitted by real estate agents to their governing regulatory body responding to complaints brought against them are privileged and not producible in civil actions.