IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
Behroyan v. Financial Services Tribunal,  
2022 BCSC 1190  
Date: 20220714  
Docket: S219605  
Registry: Vancouver  
In the Matter of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241  
Between:  
Shahin Behroyan  
Petitioner  
And  
Financial Services Tribunal, Real Estate Council of British Columbia, and  
Superintendent of Real Estate  
Respondents  
Before: The Honourable Justice Kent  
On judicial review from: An order of the Financial Services Tribunal, dated August  
30, 2021 (FST-RSA-20-A003(b)).  
Reasons for Judgment  
Counsel for Petitioner:  
J. K. McEwan Q.C.  
E. Kirkpatrick  
Counsel for Respondent, Financial Services  
Tribunal:  
R. Gage  
Counsel for Second Respondent, Real Estate  
Council of British Columbia, and Third  
J. Whittow Q.C.  
J. Meikle-Kahs  
Respondent, Superintendent of Real Estate  
Place and Date of Hearings:  
Place and Date of Judgment:  
Vancouver, B.C.  
June 21–22, 24, 2022  
Vancouver, B.C.  
July 14, 2022  
Behroyan v. Financial Services Tribunal  
Page 2  
Table of Contents  
1. INTRODUCTION AND OVERVIEW ................................................................... 3  
2. PROCEDURAL BACKGROUND ....................................................................... 4  
3. THE FST PENALTY RECONSIDERATION APPEAL DECISION ..................... 9  
4. THE STANDARD OF REVIEW ........................................................................ 12  
5. ALLEGED GROUNDS FOR JUDICIAL REVIEW BY THE COURT ................ 13  
6. WAS S. 242.2(11) OF THE FIA TRIGGERED IN THE CIRCUMSTANCES? .. 15  
7. LIMITS ON THE SCOPE OF THE COUNCIL'S PENALTY  
RECONSIDERATION....................................................................................... 17  
8. HAS THE OVERALL PROCESS BEEN ARBITRARY AND  
UNREASONABLE? ......................................................................................... 19  
9. CONCLUSION.................................................................................................. 22  
Behroyan v. Financial Services Tribunal  
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1.  
Introduction and overview  
Mr. Behroyan, a licensed real estate agent, applies by way of judicial review  
[1]  
for an order from this Court setting aside an August 30, 2021 decision of the  
Financial Services Tribunal (“FST”) upholding a severe penalty for professional  
misconduct in connection with the sale of a residential property.  
[2]  
While he acknowledges that the standard of review to be applied by the Court  
is the most deferential standard in administrative law, he argues that the FST’s  
decision is so patently unreasonable that no amount of deference can justify it.  
[3]  
In essence, Mr. Behroyan argues that the disciplinary process was  
fundamentally flawed, one that involved an exercise of nonexistent jurisdiction,  
unexplained contradictory decisions and an adjourned appeal which remains “on the  
books” but can never be pursued.  
[4]  
There is a convoluted procedural background involving multiple decisions by  
both the Real Estate Council of British Columbia (the “Council”) and the FST.  
Ultimately, however, the only decision that is before this Court for review is the final  
decision of the FST issued on August 30, 2021. The earlier decisions provide  
important context for the final decision under review, but are not themselves subject  
to review by this Court.  
[5]  
Another potentially confusing factor is that the legislative regime regulating  
the real estate industry underwent substantial reform in August, 2021. Before that  
date, the Council was mandated by the Real Estate Services Act, S.B.C. 2004, c. 42  
(“RESA”) to, among other things, investigate complaints against licensed real estate  
agents, conduct disciplinary hearings, and impose discipline penalties. The  
Superintendent of Real Estate had distinct oversight and regulation responsibilities,  
as well as a separate right of appeal to the FST from certain decisions of the  
Council.  
[6]  
On August 1, 2021, by virtue of the Finance Statutes Amendment Act, 2021,  
S.B.C. 2021, c. 2, (the “Amendment Act”) the Council was dissolved and replaced by  
 
Behroyan v. Financial Services Tribunal  
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a new Superintendent who, under the amended RESA, is now the decision-maker  
with authority to grant real estate licenses and to investigate and discipline  
licensees.  
[7]  
Accordingly, although the Council and former Superintendent were both  
parties to the earlier proceedings involving Mr. Behroyan, only the “new”  
Superintendent and the FST are properly respondents to this judicial review  
proceeding. In effect, the “new” Superintendent is standing in the shoes of the  
former, now dissolved, Council.  
[8]  
The parties agree that, because the discipline proceedings involving  
Mr. Behroyan were conducted before the Amendment Act came into force, it is the  
former regulatory regime which governs this case.  
[9]  
At the end of the day, however, while the “optics” of earlier procedure may be  
unfortunate, this Court concludes that the final decision of the FST was not patently  
unreasonable and that Mr. Behroyan’s petition for judicial review must be dismissed.  
2.  
Procedural background  
[10] The FST is a specialized administrative tribunal, created in 2004 to replace  
the former Commercial Appeals Commission, and continued by s. 242.1 of the  
Financial Institutions Act, R.S.B.C. 1996, c. 141, (“FIA”). Its mandate is to entertain  
appeals from decisions prescribed in six financial and real estate sector statutes,  
including the RESA. In particular, s. 54 of the RESA provided both the person  
subject to the disciplinary order and the former Superintendent with a right of appeal  
to the FST from decisions of the Discipline Committee of the Council.  
[11] The powers and procedures that govern FST appeals are set out in the FIA,  
ss. 242.1, 242.2, and 242.3, as well as the relevant and applicable sections of the  
Administrative Tribunals Act, S.B.C. 2004, c. 45 (the “ATA”).  
 
Behroyan v. Financial Services Tribunal  
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[12] An appeal to the FST is an appeal on the record, based on written  
submissions, subject to the FST’s discretion to admit additional evidence or oral  
submissions: FIA, ss. 242.2(5) – (9).  
[13] The remedial mandate of the FST is prescribed by the FIA as follows:  
242.2(11)  
The member hearing the appeal may confirm, reverse or vary a decision  
under appeal, or may send the matter back for reconsideration, with or  
without directions, to the person or body whose decision is under appeal.  
[14] The parties have provided the Court with a useful diagram illustrating the  
procedural chronology forming the background to the final FST decision on August  
30, 2021 that is the subject matter of this judicial review. It is attached as appendix  
“A” to this judgment.  
[15] At all material times, Mr. Behroyan was a licensed real estate agent pursuant  
to RESA conducting business as Shahin Behroyan Personal Real Estate  
Corporation. The allegations of misconduct against him were principally focused on  
the payment of a $75,000 bonus in relation to the sale of a residential property in  
West Vancouver that completed on January 30, 2015. Mr. Behroyan acted as real  
estate agent for the vendor who ultimately signed documents authorizing the  
payment of a $75,000 bonus in addition to the previously agreed commission  
contemplated by the listing agreement. The bonus essentially doubled the total  
commission derived from the sale transaction.  
[16] Following the sale of his property, the vendor made a formal complaint about  
the bonus to the Council. The vendor also issued a lawsuit against Mr. Behroyan  
seeking recovery of the bonus and other damages.  
[17] The Amended Notice of Discipline Hearing ultimately issued by the Council to  
Mr. Behroyan set out seven separate allegations of professional misconduct. The  
seven allegations comprise one-and-a-half pages of text and will not be repeated  
verbatim here. Suffice it to say Mr. Behroyan was alleged to have engaged in  
misrepresentation and nondisclosure, deceptive dealing and dishonesty, conflict of  
Behroyan v. Financial Services Tribunal  
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interest, and failing to act with reasonable care and skill in the best interests of his  
client.  
[18] Mr. Behroyan’s discipline hearing occurred before a three-person Discipline  
Committee of the Council over three days on September 13–15, 2017. Both he and  
the Council were represented by their respective solicitors. The Committee issued its  
22-page written decision on the matter on October 30, 2017. Five of the seven  
allegations of professional misconduct were upheld and two were dismissed  
(“Discipline Committee Liability Decision”).  
[19] The penalty phase of the discipline proceeding against Mr. Behroyan took  
place in April 2018. By that time, one of the members of the Committee had  
developed a serious medical illness and was unable to participate. Neither  
Mr. Behroyan nor counsel objected to the Committee proceeding to determine  
penalty with the two remaining members pursuant to s. 83(3) of the RESA. Again,  
both Mr. Behroyan and the Council were represented by their respective solicitors.  
The written decision on penalty was released on May 4, 2018. Mr. Behroyan’s  
license was suspended for a period of 12 months and he was required to pay a fine  
of $7,500, pay enforcement costs of approximately $59,000, and take a prescribed  
course on ethics (the “Discipline Committee Penalty Decision”).  
[20]  
On May 16, 2018 Mr. Behroyan filed a Notice of Appeal to the FST,  
appealing the Discipline Committee’s decisions on both liability and penalty. On May  
29, 2018, the former Superintendent filed a Notice of Appeal respecting only the  
Penalty Decision.  
[21] On June 15, 2018, Mr. T. F. Strocel, QC, chair of the FST, issued  
correspondence to the parties regarding appeal procedure. Each of Mr. Behroyan,  
the Council and the Superintendent had agreed that the appeals of Mr. Behroyan  
and the Superintendent should be “joined” and heard together. They also agreed  
that the hearing of the joint appeal would be “bifurcated to allow for the appeal on  
the merits to be decided prior to the consideration of penalty”. The FST  
correspondence made the requested directions, clarified the status of the parties as  
Behroyan v. Financial Services Tribunal  
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appellants and/or respondents, confirmed that the appeals would now proceed and  
be heard together by a single member of the FST, and gave directions regarding the  
Appeal Record and delivery of the parties’ written submissions on the merits.  
[22] On August 27, 2019, the FST issued its 42-page written decision on  
Mr. Behroyan’s bifurcated liability appeal (the “FST Liability Appeal Decision”). That  
decision confirmed three of the Discipline Committee’s findings of professional  
misconduct on the part of Mr. Behroyan but overturned the other two findings of  
professional misconduct on the basis that they were “made in error”.  
[23] In his decision, Mr. Tourigny, the FST member to whom the appeals had  
been assigned, advised the parties as follows:  
[293] The parties have not provided submissions on remedy applicable to the  
circumstances of my finding that the Panel was in error in relation to two of  
the five specific allegations of professional misconduct found by it to have  
been proven in the Liability Decision. Accordingly, as a matter of procedural  
fairness, I invite the parties to provide submissions on appropriate remedy  
and on whether and how to proceed with the penalty portion of the appeal on  
the following submission schedule […]  
[24] On October 18, 2019, the FST issued its written decision entitled “Remedy  
flowing from Liability Appeal Decision”. The decision noted Mr. Behroyan’s  
submissions that “as a matter of fairness the issue of the appropriate penalty should  
be remitted to a new panel of the Council for a new, independent finding with “full  
appeal rights as afforded by statute””. The Superintendent had likewise submitted  
that remitting the matter of penalty back to the Council for reconsideration was the  
appropriate remedy. The Council, on the other hand, took the position that the FST  
should proceed with both of the already filed appeals of the Penalty Decision in  
which “each of the appellants would have a full right of reply to the other appellants’  
submissions”.  
[25] Mr. Tourigny ultimately agreed that the question of penalty should be remitted  
to a new panel of Council for reconsideration “as a matter of procedural fairness”  
and made an order to that effect along with directions governing the reconsideration  
procedure (the “FST Remedy Procedure Decision”).  
Behroyan v. Financial Services Tribunal  
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[26] Mr. Tourigny also directed that,  
The outstanding appeals from the Penalty Decision by [Mr. Behroyan] and  
the Superintendent shall be adjourned generally, to avoid complications  
arising from multiple proceedings.  
[27] A new three-person Discipline Committee of the Council convened on  
February 13, 2020 to undertake the penalty reconsideration directed by the FST. It  
ultimately issued its 36-page written decision on March 24, 2020 (“the Discipline  
Committee Penalty Reconsideration Decision”). Among other things, the decision  
noted:  
Mr. Behroyan had expressly submitted, and the Council had impliedly  
submitted, that the first Penalty Decision “has no bearing in this de novo  
reconsideration”;  
Mr. Behroyan submitted a reprimand would suffice or, if a suspension was  
required, it should be for no more than one month;  
The Council submitted that license cancellation was required along with a  
five-year prohibition, an ethics course and a $10,000 fine as well as an award  
for enforcement expenses;  
“A range of different sanctions may be proportional to the misconduct, and the  
sanctions that a Discipline Committee may decide is [at] best […] a matter of  
discretion. Accordingly, the Committee will make its reconsideration decision  
without deciding if the sanctions ordered by the First Committee was  
proportionate, too lenient, or too harsh.” (para. 73)  
“The First Committee properly reasoned that “cancellation of [the Licensee’s]  
license is well within the range of an appropriate remedy … while the First  
Committee decided in favour of a limited sanction, and while its sanction of a  
one–year suspension may fall within the range of an appropriate remedy, the  
unanimous view of this Committee is that the significant and self-serving fraud  
of the Licensee warrants cancellation … the Committee cannot see how a  
Behroyan v. Financial Services Tribunal  
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lesser remedy, such as suspension, would sufficiently denounce the fraud the  
Licensee committed and safeguard the public from predation …” (para. 89)  
[28] In the result, the new Discipline Committee ordered cancellation of  
Mr. Behroyan’s license, a five-year prohibition from applying for a further license,  
and payment of enforcement expenses in the amount of $50,000.  
[29] On April 21, 2020, Mr. Behroyan filed a Notice of Appeal respecting the  
Discipline Committee’s Penalty Reconsideration Decision. It is the FST’s decision on  
this appeal, issued August 30, 2021, which is the subject matter of this judicial  
review (the “FST Penalty Reconsideration Appeal Decision”). The appeal was  
conducted by way of written submissions, however, Mr. Behroyan was represented  
by new counsel, the same counsel who now appears before the Court on this judicial  
review.  
[30] In the result, each ground of appeal advanced by Mr. Behroyan was rejected,  
the appeal was dismissed in its entirety, and both the Reconsideration Decision and  
the Penalty Order were confirmed.  
3.  
The FST Penalty Reconsideration Appeal Decision  
[31] In his submissions to the FST, Mr. Behroyan raised new jurisdictional issues  
that had neither been raised before the Discipline Committee reconsidering his  
penalty nor, indeed, even in his own Notice of Appeal. The issue being raised for the  
first time was whether the second Discipline Committee had jurisdiction to increase  
the original penalty, or whether its authority was limited to simply endorsing or  
“lessening” the original suspension penalty because there had been a “lessening” of  
liability as a result of the FST Liability Appeal Decision.  
[32] Mr. Tourigny considered this as a preliminary issue. After addressing the  
parties’ competing submissions and conducting an analysis of the relevant law, he  
ultimately concluded as follows:  
[76] Whether this issue is properly described as a matter of jurisdiction or  
scope of authority, I find that the New Panel’s authority arose from the  
Tribunal’s order in the Remedy Decision that the matter of penalty be sent  
 
Behroyan v. Financial Services Tribunal  
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back to a new disciplinary panel of Council for reconsideration with directions.  
If the Penalty Order was made beyond the New Panel’s jurisdiction or scope  
of authority, I agree with [Mr. Behroyan] that now that this issue has been  
brought to the Tribunal’s attention, the interests of justice would not be served  
by denying [him] the opportunity to argue the point.  
[77] I have concluded as a matter of procedural fairness and in the interests  
of justice that I will hear [Mr. Behroyan] and determine this jurisdictional issue  
based on the submissions of the parties and the record in this appeal.  
[33] After determining the preliminary issue (described as “Issue a”), Mr. Tourigny  
organized the rest of his decision under the following headings:  
Issue b: What is the appropriate standard of review of the Reconsideration  
Decision?  
Issue c: Did the New Panel exceed its jurisdiction by reconsidering penalty in  
its entirety?  
c.1: Did the Tribunal order a limited reconsideration of the  
impact of the varied findings on the first Penalty Decision?  
c.2: The general nature of a reconsideration under section  
242.2(11) of the FIA  
c.3: Issue Estoppel and Abuse of Process  
Issue d: Was the Reconsideration Decision and the resulting Penalty Order  
unreasonable?  
[34] With respect to the applicable standard of review, Mr. Tourigny concluded  
that on questions of law, and with respect to the second Discipline Committee’s  
jurisdiction, the standard of review was that of “correctness”. With respect to the  
determination of penalty, Mr. Tourigny concluded that the standard of review was  
“reasonableness”.  
[35] Mr. Tourigny then considered and interpreted the impact of his own Remedy  
Procedure Decision, along with the general nature of a “reconsideration” under  
s. 242.2(11) of the FIA. He made the following rulings:  
The FST Remedy Procedure Decision did not fetter the discretion of the new  
discipline committee and its reconsideration of penalty. It was not a limited  
reconsideration that was ordered but rather the broad question of penalty was  
to be reconsidered afresh (paras. 143–144);  
Behroyan v. Financial Services Tribunal  
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The reconsideration was an order made under s. 242.2(11) of the FIA and  
was circumscribed only by the directions given to the new Discipline  
Committee in the Remedy Procedure Decision (para. 133);  
The term “reconsideration” in s. 242.2(11) of the FIA should be given a broad  
and liberal interpretation consistent with its remedial purpose. It means “act of  
thinking again about a decision or opinion and deciding if you want to change  
it” and “can indeed be a wholesale “do–over” of the matter referred for  
reconsideration” (paras. 167–168);  
A statutorily authorized reconsideration is an exception to the principle of  
functus officio … the FST had statutory jurisdiction to order a reconsideration  
by a new Discipline Committee and the latter thus had the authority to carry  
out that task (para. 175).  
[36] Mr. Tourigny next considered Mr. Behroyan’s submission that the Discipline  
Committee Penalty Reconsideration Decision was “fundamentally flawed as it  
offends the principle of finality that underlies the doctrines of estoppel and abuse of  
process”. He concluded that the first Discipline Committee’s Penalty Decision was  
not final because it was “subject to outstanding appeals by both [Mr. Behroyan] and  
the Superintendent” and thus “the doctrines of issue estoppel and abuse of process  
have no application”. He further noted:  
[189] Instead of proceeding with these appeals from the First Penalty  
Decision, the Tribunal determined to order the reconsideration of the question  
of penalty anew with directions […] The practical effect on the First Penalty  
Decision of the Penalty Order arising from the New Panel’s reconsideration of  
the question of penalty is that it has been superseded.  
[37] Lastly, Mr. Tourigny turned to the question of whether the Discipline  
Committee Penalty Reconsideration Decision was reasonable. He noted that the  
RESA is remedial in nature and that its primary objective is the protection of the  
public. He found that the second Discipline Committee had “carefully considered  
mitigating and aggravating factors listed in the Guidelines” (para. 230) and also that  
the penalty imposed was consistent with prior decisions on similar facts (para. 241).  
He concluded,  
Behroyan v. Financial Services Tribunal  
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[245] I find that the Reconsideration Decision as a whole is transparent,  
intelligible and justified. I also find that the license cancellation as ordered in  
the Penalty Order is justified both with respect to the types of penalties  
prescribed in section 43(2) of the RESA, and with respect to the nature of  
[Mr. Behroyan’s] underlying misconduct.  
4.  
The standard of review  
[38] Section 242.1(7)(1)(k) of the FIA makes s. 58 of the Administrative Tribunals  
Act SBC 2004, c. 45 [“ATA”] applicable to the judicial review of FST decisions.  
Section 58 provides as follows:  
58  
(1) If the Act under which the application arises contains or incorporates a  
privative clause, relative to the courts the tribunal must be considered to be  
an expert tribunal in relation to all matters over which it has exclusive  
jurisdiction.  
(2) In a judicial review proceeding relating to expert tribunals under  
subsection (1)  
(a) a finding of fact or law or an exercise of discretion by the  
tribunal in respect of a matter over which it has exclusive  
jurisdiction under a privative clause must not be interfered with  
unless it is patently unreasonable,  
(b) questions about the application of common law rules of  
natural justice and procedural fairness must be decided having  
regard to whether, in all of the circumstances, the tribunal  
acted fairly, and  
(c) for all matters other than those identified in paragraphs (a)  
and (b), the standard of review to be applied to the tribunal’s  
decision is correctness.  
[emphasis added]  
[39] FST decisions are protected by the privative clause in s. 242.3 of the FIA:  
242.3  
(1) In respect of this Act or any other Act that confers jurisdiction on the  
tribunal, the tribunal has exclusive jurisdiction to  
(a) inquire into, hear and determine all those matters and  
questions of fact and law arising or requiring determination,  
and  
(b) make any order permitted to be made.  
 
Behroyan v. Financial Services Tribunal  
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(2) A decision of the tribunal on a matter in respect of which the tribunal has  
exclusive jurisdiction is final and conclusive and is not open to question or  
review in any court.  
[emphasis added]  
[40] Taken together, these provisions make clear that the legislature intended all  
findings of fact and law made by the FST to be reviewed according to the standard  
of patent unreasonableness. Mr. Behroyan acknowledges that each of the issues  
raised by him on this judicial review are questions of law and that the FST Penalty  
Reconsideration Appeal Decision can only be set aside if the Court finds it patently  
unreasonable.  
[41] The patently unreasonable standard of review is the most highly deferential  
standard the courts can apply in administrative law cases. For a decision to be  
patently unreasonable, it must be “openly, evidently, clearly” unreasonable: Canada  
(Director of Investigation and Research) v. Southam Inc., [1997], 1 S.C.R. 748.  
Para. 57 of that case states:  
[57] The difference between “unreasonable” and “patently unreasonable” lies  
in the immediacy or obviousness of the defect. If the defect is apparent on the  
face of the tribunal’s reasons, then the tribunal’s decision is patently  
unreasonable. But if it takes some significant searching or testing to find the  
defect, then the decision is unreasonable but not patently unreasonable.  
[42] Other terminology found in the cases describing patent unreasonability  
includes “clearly irrational”, “evidently not in accordance with reason”, “so flawed that  
no amount of curial deference can justify letting it stand”, or reasoning and  
interpretation that is “obviously untenable” or “almost borders on the absurd”: see for  
example Speckling v. British Columbia (Workers’ Compensation Board), 2005 BCCA  
80, West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal  
Tribunal), 2018 SCC 22; and Ahmad v. Merriman, 2019 BCCA 82.  
5.  
Alleged grounds for judicial review by the Court  
[43] Mr. Behroyan advances two broad grounds as the basis for judicial review.  
The first is a question of jurisdiction and the second is his characterization as  
 
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Page 14  
“arbitrary and unreasonable” of the unusual process followed in Mr. Behroyan’s  
disciplinary proceedings.  
[44] The first challenge is that “the Council purported to exercise a jurisdiction it  
did not have”. This is broken down into two separate components, namely:  
Section 214.2(11) of the FIA was not actually engaged in the circumstances  
of this case and thus the FST could not have and should not have directed a  
penalty “reconsideration” by the Council; and  
In the alternative, if such a “reconsideration” process was permissible, the  
Council’s task was only to determine the effect of a possible material change  
in circumstances i.e. the FST Liability Appeal Decision reducing the proven  
misconduct allegations against Mr. Behroyan from five to three.  
[45] The second broad ground of appeal is that the overall process in this case  
was arbitrary and unreasonable because it has resulted in radically different Penalty  
Decisions based solely on a change in decision–makers and not on the merits of the  
case, an “embarrassing inconsistency” based on identical underlying facts but  
without any explanation whatsoever as to why the original Penalty Decision was not  
followed. Mr. Behroyan submits this is an “intolerable and patently unreasonable”  
outcome.  
[46] I will further address each ground of judicial review in the reasons that follow,  
but I must first observe that, once again, Mr. Behroyan is not only raising objections  
that were not raised before some or all of the decision-makers involved in this case,  
but he is also now objecting to a procedure he himself urged upon the tribunals  
below.  
[47] The Superintendent says:  
A party cannot choose to take a strategic position in the proceeding below  
and then resile from that position for the first time on appeal (or review) …  
having received what he requested, [Mr. Behroyan] should not now be  
allowed to resile from that position.  
Behroyan v. Financial Services Tribunal  
Page 15  
[48] I am inclined to agree.  
6.  
Was s. 242.2(11) of the FIA triggered in the circumstances?  
[49] For ease of reference, I repeat the relevant FIA wording here:  
242.2(11)  
The member hearing the appeal may confirm, reverse or vary a decision  
under appeal, or may send the matter back for reconsideration, with or  
without directions, to the person or body whose decision is under appeal.  
[50] Mr. Behroyan says the plain English interpretation of this provision is that the  
power to make any of the listed orders is only engaged after “the hearing of the  
appeal”. In this case, while the liability and penalty appeals were bifurcated, and  
while the liability appeal had been heard/decided, the penalty appeals by both  
Mr. Behroyan and the Superintendent had not yet been heard. Hence, so the  
argument goes, the FST had no power to remit the matter of penalty for  
reconsideration by the Council. In such circumstances, Mr. Behroyan says that the  
FST’s finding at para. 133 of the Penalty Reconsideration Appeal Decision that the  
Remedy Procedure Decision “was an order for a reconsideration of the matter of  
penalty by the New Panel under section 242.2(11) of the FIA” is “plainly incorrect  
and patently unreasonable”.  
[51] Mr. Behroyan’s submissions on this point were not expressly addressed by  
the Superintendent, whose submissions relied on cases dealing with  
“reconsideration” only after an appeal on the merits had been heard.  
[52] There is, however, an alternative characterisation of events.  
[53] The liability and penalty appeal filed by Mr. Behroyan had been “joined” with  
the Superintendent’s separate penalty appeal. The “joined” appeal was then  
bifurcated into two phases so that the liability phase would be determined before the  
penalty phase, obviously because the outcome of the former might impact and,  
indeed, possibly render moot, the latter. That possibility then became reality.  
 
Behroyan v. Financial Services Tribunal  
Page 16  
[54] In para. 24 of the Remedy Procedure Decision Mr. Tourigny expressly noted  
that he was dealing with “the rather unique circumstance of … a bifurcated appeal”.  
The outcome of the liability phase of the appeal necessitated a reconsideration by  
the Council of its earlier Penalty Decision and a somewhat “elastic” interpretation of  
s. 242.2(11) of the FIA was employed to accomplish that result. This, in my opinion,  
is the explanation advanced in paras. 132 and 133 of the Penalty Reconsideration  
Appeal Decision under review. I find both the technique and the reasoning to be  
eminently reasonable in the circumstances.  
[55] Quite apart from this characterisation of events, however, I entirely agree with  
the Superintendent that the Court should generally not entertain arguments made for  
the first time on judicial review, and particularly so when the petitioner is now urging  
a statutory interpretation that is the exact opposite of what he urged to the FST as  
part of his submissions leading to the Remedy Procedure Decision.  
[56] The FST Liability Appeal Decision noted at paras. 292–293 that the decision  
reducing the number of professional misconduct findings raised “issues as to the  
appropriate way to move … the penalty portion of the hearing … forward”.  
Mr. Tourigny noted he had not received submissions on remedy applicable to the  
circumstances of his findings and decided, “as a matter of procedural fairness”, to  
invite submissions on “how to proceed with the penalty portion of the appeal”.  
[57] In the Remedy Procedure Decision, Mr. Tourigny describes Mr. Behroyan’s  
submissions as follows:  
[12] [Mr. Behroyan] submits that because the Panel made its Penalty  
Decision on the basis of five findings of professional misconduct, and given  
two of the five findings against him have now been set aside, as a matter of  
fairness the issue of the appropriate penalty should be remitted to a new  
panel of Council for a new, independent finding with “full appeal rights as  
afforded by statute”. [Mr. Behroyan] argues no one can know what the  
principal factors were that led to the Panel’s Penalty Decision. [Mr. Behroyan]  
submits that if the Tribunal were to proceed to decide the appeals from the  
Penalty Decision now, this would impair his statutory rights of appeal.  
[58] Mr. Tourigny accepted Mr. Behroyan’s submissions, along with those of the  
Superintendent, and directed the penalty reconsideration by the Council “as a matter  
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of procedural fairness”. He then adjourned generally the outstanding penalty appeals  
before the FST “to avoid complications arising from multiple proceedings”.  
[59] Mr. Behroyan did not seek judicial review of the FST Remedy Procedure  
Decision. He did not raise his most recently adopted s. 242.2(11) statutory  
interpretation before either the second Discipline Committee or to the FST on the  
penalty reconsideration appeal. Indeed, he both expressly and implicitly endorsed a  
contrary interpretation throughout. As noted by Groberman JA in Killam v. Killam,  
2018 BCCA 64, “I do not think it open for a party to legally prevaricate in this  
manner” (see paras. 46 and 47).  
[60] As also noted in Argo Ventures Inc. v. Choi, 2020 BCCA 17 at para. 31:  
A distinction is to be made between raising a new issue on appeal and  
resiling from a position deliberately taken in the tribunal of first instance […]  
Generally, this court has not permitted a party that has chosen a particular  
position in the trial court to abandon that position on appeal […] Furthermore,  
taking inconsistent positions in legal proceedings can constitute an abuse of  
process […] [internal citations omitted]  
[61] In the result, I endorse Mr. Tourigny’s invocation of s. 242.2(11) of the FIA to  
order a penalty reconsideration in the unique circumstances of a bifurcated appeal.  
His own further endorsement of that process in the Penalty Reconsideration Appeal  
Decision was neither incorrect nor patently unreasonable, and Mr. Behroyan’s  
submissions to the contrary on this point cannot and ought not succeed on this  
judicial review.  
7.  
Limits on the scope of the Council's Penalty Reconsideration  
[62] Mr. Behroyan’s alternate jurisdictional challenge to the Discipline Committee  
Penalty Reconsideration Decision was that the Committee did not have authority or  
jurisdiction to increase the original penalty, but rather was only authorised to  
determine whether or not that original penalty should be reduced because the FST  
decision reduced the number of professional misconduct findings from five to three.  
[63] This argument, i.e. that there was no jurisdiction for the Council to cancel  
Mr. Behroyan’s license, was raised for the first time before the FST and was not  
 
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raised before the second Discipline Committee itself, even though the Council was  
seeking an increased penalty (license cancellation) at the time.  
[64] It was for this reason that the FST raised as a “preliminary issue” whether it  
should entertain this ground of appeal (the so–called “Issue a” in the FST Penalty  
Reconsideration Appeal Decision). As noted earlier, Mr. Tourigny decided to permit  
the jurisdictional challenge “as a matter of procedural fairness and in the interests of  
justice”.  
[65] There is no doubt that the FST clearly understood both the issue and the  
arguments made by Mr. Behroyan on appeal. They are recited at length in  
paras. 106–118 of the FST Penalty Reconsideration Appeal Decision.  
[66] There is a certain air of unreality about the task the FST took on with respect  
to this jurisdictional challenge. As Mr. Tourigny noted more than once, resolution of  
the issue required him to interpret the words and intent of his own earlier decision,  
i.e. the FST Remedy Procedure Decision. Presumably Mr. Tourigny knew exactly  
what his earlier intention was, and thus whether the new Discipline Committee’s  
interpretation/application of his order was correct. This portion of the FST Penalty  
Reconsideration Appeal Decision, while framed as “findings” (see for example  
paras. 133, 143, 144), is in reality a further explanation of the earlier decision, albeit  
bolstered by Mr. Tourigny’s analysis of the meaning of the word “reconsideration” as  
used in s. 242.2(11) of the FIA.  
[67] In any event, Mr. Tourigny pointed out there was no language in his Remedy  
Procedure Decision which directed the new Discipline Committee “to limit its  
reconsideration to a determination of whether the setting aside of two findings of  
misconduct ought to have any effect on the First Penalty Decision” (para. 140). He  
further explained that the decision “did not restrict the authority of the New Panel to  
impose a more severe penalty than ordered by the Original Panel” (para. 141) and  
he acknowledged it was “the broad question of penalty” that the Discipline  
Committee was to reconsider “in its entirety” (paras. 144, 179).  
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[68] Mr. Behroyan now argues that a “reconsideration” absent an explicit finding of  
error by the appropriate body is an extraordinary matter, and if so ordered is  
“necessarily tethered to the decision at first instance”. He now says the original  
Penalty Decision was “presumptively correct” and is properly interfered with only if  
good reason exists.  
[69] I do not necessarily agree. Unique circumstances may exist, as was the case  
here, where “reconsideration anew” is required. This is precisely what Mr. Behroyan  
asked for (i.e. “a new [and] independent finding”, where the first decision “had no  
bearing” on the reconsideration) and it is precisely what the FST ordered in this  
case.  
[70] I have already endorsed the FST conclusion that, in the unique circumstances  
of this case, it had the authority to direct a penalty reconsideration pursuant to  
s. 242.2(11) of the FIA. I also agree with the FST’s reasoning that such a statutorily  
authorized reconsideration is a specific exception to the principle of functus officio,  
that the new Disciple Committee’s interpretation of its mandate was correct, and that  
the Committee did indeed have jurisdiction to impose a more severe penalty. It  
follows that the reasoning was not patently unreasonable and this alternate ground  
for judicial review also cannot succeed.  
8.  
Has the overall process been arbitrary and unreasonable?  
[71] Mr. Behroyan argues that the flawed process adopted in this case has  
resulted in an outcome that is “fundamentally offensive to the principles of res  
judicata and embarrassing to the administration of justice”.  
[72] First, he points out that the original Disciplinary Committee Penalty Decision  
and the subsequent Disciplinary Committee Penalty Reconsideration Decision arose  
from the same Amended Notice of Hearing and the same findings of fact, yet  
resulted in fundamentally contradictory and irreconcilable penalties (the second  
decision being far more severe and essentially terminating Mr. Behroyan’s career.)  
 
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[73] Second, Mr. Behroyan says “as a matter of procedural fairness” he was  
entitled to an explanation why, without an error of law or other good reason justifying  
reconsideration in the first place, the original Penalty Decision was not followed, all  
the more so when the second Discipline Committee acknowledged that the original  
penalty may have fallen within the appropriate range.  
[74] Lastly, Mr. Behroyan says that, since the second Committee arrived at a  
different and significantly harsher result based on the same facts, the only sensible  
conclusion is that the change in result was simply because of the change of  
decision-makers. He says the implicit message here, i.e. licensees will not be  
equally treated in identical circumstances but are “at the mercy of divergent  
decision-makers’ whims”, is intolerable, patently unreasonable and must not be  
allowed to stand.  
[75] I agree that the “optics” of this case are unfortunate. But I do not agree that  
they warrant setting aside the FST Penalty Reconsideration Appeal Decision.  
[76] Unquestionably, there was no order made at any time setting aside the  
original Discipline Committee Penalty Decision. The order was appealed and its  
operation was stayed by s. 54 of the RESA. When reconsideration was ordered, the  
appeal was adjourned generally “to avoid complications arising from multiple  
proceedings”.  
[77] It is not clear to me why the Penalty Appeals were not quashed or vacated as  
part of the FST Remedy Procedure Decision instead of just being adjourned. The  
Superintendent argues the old Superintendent did not participate in the Discipline  
Committee Penalty Reconsideration process, and that the adjourned appeal also  
meant the question of costs could be addressed at a later date and might even be  
revived if the parties had sought to abandon the reconsideration. I suppose this is  
true but the continued existence of an appeal “on the books” contributes to the  
unfortunate optics of the case.  
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[78] The Superintendent also points out “no-one could maintain that the first  
Penalty Decision was enforceable, and certainly not after the [Penalty]  
Reconsideration Decision was issued”. The Superintendent says the FST was  
correct in describing the earlier decision having effectively been “superseded” by the  
latter decision. I agree with these observations, but absent a meaningful explanation  
why the second Discipline Committee Penalty was so much more severe than the  
first, the appearance of potential arbitrariness remains.  
[79] I would note that the second Discipline Committee did not simply ignore the  
first Committee’s decision. To the contrary, the latter was addressed at length and  
with care. While the Penalty Reconsideration Decision did not expressly disagree  
with the first Penalty Decision, it provided a polite, restrained explanation why a  
more severe penalty was warranted (paras. 89-90). The rationale for the severe  
penalty was plainly stated.  
[80] Mr. Tourigny conducted a reasonableness review of the Penalty  
Reconsideration Decision and found that the second Disciplinary Committee had:  
Listed and carefully considered the mitigating and aggravating factors found  
in the Guidelines (para. 230);  
Considered the statutory scheme, the sanction guidelines published by the  
Council and Mr. Behroyan’s particular circumstances “in a thorough and  
thoughtful manner” (para. 236);  
Carefully analysed the other cases and precedents put before it involving  
similar misconduct (para. 241); and  
Clearly articulated the reasons for imposing cancellation as part of the order  
(para. 243).  
[81] Mr. Tourigny concluded both that the Penalty Reconsideration Decision was  
“as a whole, transparent, intelligible and justified”, and that the license cancellation  
was justified having regard to the nature of Mr. Behroyan’s underlying misconduct.  
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As noted earlier, there is nothing patently unreasonable about the FST's decision or  
reasoning on this point.  
[82] I disagree with Mr. Behroyan’s characterization of the increased penalty as  
simply the “whims” of different decision-makers. There was nothing whimsical about  
the second Discipline Committee Penalty Reconsideration Decision, let alone the  
FST's ultimate endorsement of the same. The process employed here was exactly  
what Mr. Behroyan requested of both the FST (at the Remedy Procedure stage) and  
from the second Discipline Committee; namely, a fresh reconsideration of penalty in  
which the first Penalty Decision was to have no bearing.  
[83] Mr. Behroyan cannot now complain that the very process he wanted should  
be considered arbitrary and unreasonable simply because he is dissatisfied with the  
result.  
9.  
Conclusion  
[84] For the reasons stated above, Mr. Behroyan’s petition for judicial review is  
dismissed with costs.  
“Kent, J.”  
 
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APPENDIX “A”  
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