Statement to Members

This summary has been prepared with facts drawn from Court and government documents for the exclusive use of Members to understand relevant context for the recent settlement between the former Council of the Real Estate Council of Alberta (“RECA” or “Council”) and AREA. AREA is pleased to have resolved this matter with RECA and is proud of its efforts to defend the rights and reputations of Members.

I. CLAIM OF MS. MOSER FOR INDEMNITY SETTLED

On December 15, 2023, the dispute between RECA and Ms. Robyn Moser was concluded with the payment of $900,000, as noted in the joint press release issued by AREA and RECA. The payment brought to an end a Court case (“Application”) that began as an attempt by Mr. Myroniuk to remove Ms. Moser from Council, and instead led to the dismissal of the entire Council by the Minister of Service Alberta.

II. WHISTLEBLOWER COMPLAINT AGAINST MR. MYRONIUK

Ms. Moser was appointed to RECA by AREA effective November 1, 2015. Shortly after her appointment, Ms. Moser became concerned about certain actions of Mr. Bob Myroniuk, Executive Director of RECA, and she reported her concerns to the Ministry of Service Alberta as a whistleblower on February 18, 2016. Her report was recorded as a Telephone Access Request (“TAR”). The Alberta official to whom she expressed her concerns assured her that her report would be kept confidential.

III. MYRONIUK RETAINED TORONTO LAWYER WITHOUT COUNCIL KNOWLEDGE

In May of 2017, Mr. Myroniuk contacted a Toronto lawyer (“Toronto Lawyer”) for legal advice on the process for removing a member of Council. Mr. Myroniuk did this without the knowledge or permission of the Chair of RECA or of any other member of Council.

IV. LEAK BY GOVERNMENT EMPLOYEE OF WHISTLEBLOWER COMPLAINT

On June 7, 2017, Ms. Moser received notice that a FOIP request had been made to Service Alberta by an applicant seeking personal information about Ms. Moser collected by Service Alberta, including information found on the TAR.

On June 12, 2017, Ms. Moser received a telephone call from the Executive Director, Information Access and Protection, Service Alberta. He informed Ms. Moser, and later confirmed via email, that it had become apparent to him in the course of speaking to the applicant to get clarification on what was sought that the TAR was in fact already in the possession of the applicant. That is, the applicant had already obtained the internal and confidential Service Alberta TAR concerning Ms. Moser’s whistleblower complaint by other than legally permitted means, but was now seeking to have it released in a formal documented process.

V. KPMG IDENTIFIED PAYMENT OF LEGAL FEES WITHOUT COUNCIL AUTHORITY

On January 18, 2019, the Minister of Service Alberta ordered a KPMG investigation of RECA. KPMG issued two reports. In its Governance Review of the Real Estate Council of Alberta report dated June 28, 2019 (“Governance Review”), KPMG wrote that:

The Review found that Council is not governing RECA effectively, and that personality conflicts within Council, and between Council and Administration are unlikely to be resolved without changing the individuals involved. Council has spent considerable resources attempting to improve its governance with minimal effect.

Two of the major findings and recommendations of the Governance Review included:

There is significant interpersonal conflict amongst Council and Administration

There is a lack of trust among Council Members and between Council and Administration, as evidenced by several complaints and allegations amongst and between Council Members and Administration, and requests to the Minister to intervene in Council affairs from Council Members and Administration

. . . . .

Council is not exercising adequate oversight of RECA

For example, there was no record in Council minutes of a motion approving 2018 external legal fees in excess of the $100,000 limit in RECA's authority matrix for unbudgeted expenditures.

Governance Review, pages 1 and 2. A copy of the complete Governance Review may be found here.

The Governance Review was followed by a report on the KPMG Operational Review of the Real Estate Council of Alberta dated March 13, 2020, a copy of which may be found here.

The scope of the KPMG investigation and report did not extend to the conduct of individuals. As stated in the Governance Review, p. 9:

The scope of the Governance Review, as stated in the Ministerial Order, “...shall include a full review and evaluation of the governance of the Real Estate Council of Alberta (RECA) and ensure RECA's adherence to good governance practices, as well as its effectiveness as the regulator for the real estate sector."

. . . . .

In conducting the review, KPMG did not assess the validity of any legal case, allegation or complaint that is ongoing or being investigated. The Governance Review did not investigate any potential wrong-doing on the part of the individual Council Members or staff.

VI. DUE PROCESS ISSUES

In a meeting of Council on April 11, 2018, Council rejected a proposal to hire external legal counsel to conduct an investigation into allegations made by the Chair against Ms. Moser, and by Ms. Moser against the Chair and Mr. Myroniuk, instead directing an internal investigation of both sets of allegations by two other members of Council. Despite this vote, and before the designated members of Council took any substantial steps in their investigation, the Chair of RECA brought to Council a proposal to remove Ms. Moser on May 25, 2018. The May 25, 2018 meeting was called on 24 hours notice, with no indication of the subject of the meeting and no notice at all to Ms. Moser.

The Toronto Lawyer attended the May 25, 2018 meeting and draft affidavits were presented to Council. The authors of the affidavits (Mr. Myroniuk, Mr. Brian Klingspon (an AREA appointee), Ms. Krista Bolton and Ms. Christine Zwozdesky) knew the purpose of the meeting in advance, but the other nine members of Council did not. A number of members of Council expressed concern about the lawfulness or appropriateness of the process.

This was followed by a further meeting on June 5, 2018 (from which Ms. Moser was also excluded) and another on June 6, 2018, when the Chair of RECA knew Ms. Moser was on holiday in Mexico. Ms. Moser was unable to access the meeting remotely, despite calling and texting the Chair of RECA repeatedly at the beginning and throughout the meeting, without response. The June 5 and 6 meetings were not attended by Mr. Kirk, Mr. Mills, Mr. Ramey Damien or Ms. Amina Deiab, as they took the position that the meetings were not lawful. At the June 6 meeting, the remaining members of Council voted to make Application to remove Ms. Moser.

No further steps were taken in the internal investigation of Ms. Moser’s allegations concerning the Chair and Mr. Myroniuk, despite the direction by Council on April 11, 2018.

VII. AREA DEFENDS MS. MOSER

The Toronto Lawyer who had attended the meetings of Council in May and in June, 2018 was instructed to commence the Application in Court to remove Ms. Moser as a member of Council. The AREA Board of Directors was made aware of the Application and the circumstances leading to it being brought. Confident in Ms. Moser’s good character, extremely concerned about the apparent lack of due process shown by Council, and mindful of the indemnity protections for Council members contained in the RECA Bylaws, the AREA Board approved the defense of Ms. Moser under AREA’s Member Advocacy Program and engaged senior counsel to represent her. With AREA’s assistance, Ms. Moser resisted the Application, challenging the truth of the allegations made, the conduct of those involved in bringing the application, and the process under which the Application had been commenced.

VIII. CLAIMS OF MR. KIRK AND MR. MILLS FOR INDEMNITY SETTLED

Mr. Bill Kirk and Mr. Stan Mills, members of Council appointed by AREA at the time, were questioned under oath concerning the Application. Other members of Council who gave evidence in the same proceeding received legal advice and representation funded by Council, but Mr. Kirk and Mr. Mills were required by Council to retain and pay their own lawyers. Mr. Kirk and Mr. Mills commenced legal actions against RECA to recover their legal fees on a full indemnity basis. Those actions were eventually settled.

IX. COMPLAINT AGAINST MS. MOSER DISMISSED BY INDEPENDENT ADJUDICATOR

On January 23, 2019, a complaint (“Complaint”) against Ms. Moser by a senior executive of RECA, alleging harassment, was distributed to Council. The Complaint had been submitted to Mr. Myroniuk nine months earlier on April 25, 2018. Council submitted the Complaint to an independent adjudicator for investigation and decision. The independent adjudicator concluded that Ms. Moser had not harassed the complainant.

X. RECA REVERSES POLICY THAT DISCRIMINATED AGAINST FEMALE EMPLOYEES

Ms. Moser advocated for many reforms in the management of RECA. One of the most significant was to bring an end to a RECA employment policy which discriminated against women by reducing their pension benefits if they took maternity leave. Upon Mr. Myroniuk’s departure from RECA on August 31, 2019, RECA immediately took action to reverse that discriminatory policy.

XI. LITIGATION AGAINST MS. MOSER FAILED

Council’s Application to remove Ms. Moser never made it to Court on its merits. While it was aggressively pursued and defended for 15 months, it was rendered moot when, in response to the findings and recommendations of the KPMG Governance Review, the Minister of Service Alberta dismissed the entire Council on October 31, 2019. The Application was then brought to an end by Court Order, and was later converted into an action against RECA to recover the defence costs.

It is important to note that neither the Court nor the Minister of Service Alberta had any criticism of Ms. Moser or the members of Council who refused to support the Application against Ms. Moser.

XII. JUDGE ORDERED COSTS AGAINST RECA

On October 5, 2021, the Court of Queen’s Bench of Alberta found that Ms. Moser was entitled to costs of the Application in an amount to be agreed, and, if not agreed, to be determined by the Court. However, the parties could not agree on the amount of those costs. The Court also directed that Ms. Moser could pursue RECA for full indemnity for the costs of defending herself against the Application under section 29 of the Bylaws, which provided that:

Indemnification of Council Members
29 The Council shall indemnify each member against all costs, charges and expenses that the member incurs in respect of any civil, criminal or administrative action or proceeding to which the member is made a party by reason of anything done or permitted by the member in the execution of the duties of office as member, except things that are occasioned by the member’s own willful neglect.

XIII. COURT DENIED RECA'S APPEAL

Council did not indemnify Ms. Moser and instead attempted to appeal the October 5, 2021 costs order to the Court of Appeal. RECA’s application for leave to appeal was denied by the Court of Appeal on February 16, 2023.

XIV. RECA INSTITUTED A THIRD-PARTY CLAIM AGAINST AREA

Council continued to litigate the costs issue after the October 5, 2021 costs order and after the denial of its appeal, including by seeking production of costs records in January 2022 and filing a Counterclaim against Ms. Moser in her claim for indemnity in November 2022. After RECA’s appeal was dismissed, Council filed a Third-Party Claim against AREA on April 27, 2023, attempting to directly include AREA in the costs dispute. This obliged AREA to file a Statement of Defence and an application to strike out Council’s claim against AREA. The Third-Party Claim by Council against AREA was resolved on December 15, 2023.

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For information on AREA’s Member Advocacy Program, click here.