Pimentel et al. v. Winnipeg Real Estate Board, (1991) 72 Man.R.(2d) 64 (QB)

• Judge: Morse, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: April 15, 1991
• Jurisdiction: Manitoba
• Citations: (1991), 72 Man.R.(2d) 64 (QB)

Pimentel v. Real Estate Bd. (1991), 72 Man.R.(2d) 64 (QB)

MLB headnote and full text

Arrow 1st-Canadian Realty Inc., Antonio Pimentel, Ivan McBride and Lucien Boisjoli (plaintiffs) v. The Winnipeg Real Estate Board (defendant) and Her Majesty The Queen in right of the Province of Manitoba (intervenor)

(Suit No. CI 90-01-47349)

Indexed As: Pimentel et al. v. Winnipeg Real Estate Board

Manitoba Court of Queen's Bench

Winnipeg Centre

Morse, J.

April 15, 1991.

Summary:

The plaintiffs sued for a declaration that certain portions of the Winnipeg Real Estate Board's bylaw, by which membership in the Board was restricted, were invalid. The plaintiffs also claimed damages. The cor­porate plaintiff discontinued its action against the Board.

The Manitoba Court of Queen's Bench dismissed the remaining plaintiffs' action.

Associations - Topic 1009

Qualifications of members - Employment or occupation restrictions - The Winnipeg Real Estate Board restricted membership to those salesmen who were, inter alia, not employed other than in the real estate business - The restrictions, considered reasonable by Board members, were not specifically aimed at the plaintiff part-time real estate salesmen - The Board believed it acted in the public interest - Board membership, although perhaps financially desirable, was not a condition of the right to sell real estate in Manitoba - The bylaws were authorized by the Board's incorporating statute - The Board acted in good faith and did not apply the bylaws in an uneven or discriminatory fashion - The Manitoba Court of Queen's Bench held that the Board's bylaws were not invalid as being oppressive, unreasonable and dis­criminatory - See paragraphs 13 to 33.

Associations - Topic 1009

Qualifications of members - Employment or occupation restrictions - The Winnipeg Real Estate Board restricted membership to those salesmen who were, inter alia, not employed other than in the real estate business - The restrictions, considered reasonable by Board members, were not specifically aimed at the plaintiff part-time real estate salesmen - The Board believed it acted in the public interest - Board membership, although perhaps financially desirable, was not a condition of the right to sell real estate in Manitoba - The bylaws were authorized by the Board's incorporating statute - The Board acted in good faith and did not apply the bylaws in an uneven or discriminatory fashion - The Manitoba Court of Queen's Bench held that the Board's bylaws were not invalid as being in restraint of trade - See paragraphs 34 to 44.

Brokers - Topic 8

Salesman defined - The Winnipeg Real Estate Board restricted membership to those salesmen who were, inter alia, not employed other than in the real estate business - The restrictions, considered reasonable by Board members, were not specifically aimed at the plaintiff part-time real estate salesmen - The Board believed it acted in the public interest - Board membership, although perhaps financially desirable, was not a condition of the right to sell real estate in Manitoba - The bylaws were authorized by the Board's incorporating statute - The Board acted in good faith and did not apply the bylaws in an uneven or discriminatory fashion - The Manitoba Court of Queen's Bench held that the Board's bylaws were not invalid as being oppressive, unreasonable and dis­criminatory - See paragraphs 13 to 33.

Brokers - Topic 8

Salesman defined - The Winnipeg Real Estate Board restricted membership to those salesmen who were, inter alia, not employed other than in the real estate business - The restrictions, considered reasonable by Board members, were not specifically aimed at the plaintiff part-time real estate salesmen - The Board believed it acted in the public interest - Board membership, although perhaps financially desirable, was not a condition of the right to sell real estate in Manitoba - The bylaws were authorized by the Board's incorporating statute - The Board acted in good faith and did not apply the bylaws in an uneven or discriminatory fashion - The Manitoba Court of Queen's Bench held that the Board's bylaws were not invalid as being in restraint of trade - See paragraphs 34 to 44.

Civil Rights - Topic 1028

Discrimination - Membership in organi­zation or association - Exclusion based on source of income - The Winnipeg Real Estate Board's bylaws restricted member­ship to those salesmen who had no occu­pation other than the real estate business - The Manitoba Court of Queen's Bench held that the bylaws' membership restric­tions did not infringe the Manitoba Human Rights Code (ss. 9(1)(b), 9(2)(j), 14(1), 14(2)) - The types of discrimination relied on by the plaintiff part-time salesmen to challenge the bylaws ("source of income") were inapplicable to the circumstances - See paragraphs 50 to 53.

Civil Rights - Topic 8311

Charter - Application - Nongovernmental or private interference - The Manitoba Court of Queen's Bench held that the Winnipeg Real Estate Board was not sub­ject to the Charter - See paragraphs 45 to 49.

Contracts - Topic 6735

Illegal contracts - Contrary to public policy - Restraint of trade - Bylaws of association - The Winnipeg Real Estate Board restricted membership to those salesmen who were, inter alia, not employed other than in the real estate business - The restrictions, considered reasonable by Board members, were not specifically aimed at the plaintiff part-time real estate salesmen - The Board believed it acted in the public interest - Board membership, although perhaps financially desirable, was not a condition of the right to sell real estate in Manitoba - The bylaws were authorized by the Board's incorporating statute - The Board acted in good faith and did not apply the bylaws in an uneven or discriminatory fashion - The Manitoba Court of Queen's Bench held that the Board's bylaws were not invalid as being in restraint of trade - See paragraphs 34 to 44.

Contracts - Topic 6735

Illegal contracts - Contrary to public policy - Restraint of trade - Bylaws of association - The Manitoba Court of Queen's Bench held that the doctrine of restraint of trade should have no applica­tion to membership in a voluntary organi­zation where membership is not a pre­requisite to the carrying on of a business or an occupation - See paragraph 38.

Cases Noticed:

Peg-Win Real Estate Ltd. v. Winnipeg Real Estate Board et al., [1985] 4 W.W.R. 758; 34 Man.R.(2d) 127 (Q.B.), affd. 37 Man.R.(2d) 183 (C.A.), refd to. [para. 19].

Jabour v. Law Society of British Columbia et al., [1982] 2 S.C.R. 307; [1982] 5 W.W.R. 289; 43 N.R. 451, refd to. [para. 19].

Nameth v. Regina Real Estate Association Inc. et al. (1986), 47 Sask.R. 229 (Q.B.), consd. [para. 21].

Ebert Howe and Associates v. British Columbia Optometric Association (1984), 57 B.C.L.R. 153, consd. [para. 24].

Ritholz et al. v. Manitoba Optometric Society (1959), 18 D.L.R.(2d) 514 (Man. Q.B.), affd. in part (1959), 21 D.L.R.(2d) 542 (Man. C.A.), dist. [para. 26].

GKO Associates Ltd. et al. v. Parrish et al. (1977), 35 C.P.R.(2d) 22 (Ont. H.C.), dist. [para. 38].

Pharmaceutical Society of Great Britian v. Dickson, [1970] A.C. 403 (H.L.(E.)), consd. [para. 39].

Blackler v. New Zealand Rugby Football League (Incorporated), [1968] N.Z.L.R. 547 (C.A.), consd. [para. 39].

McKinney v. University of Guelph et al. (1990), 118 N.R. 1 (S.C.C.), refd to. [para. 46].

Stoffman et al. v. Vancouver General Hospital et al., [1991] 1 W.W.R. 577; 118 N.R. 241 (S.C.C.), refd to. [para. 46].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 2(d) [para. 6]; sect. 32 [para. 46].

Competition Act, sect. 36 [paras. 43-44].

Human Rights Code, S.M. 1987-88, c. 45; C.C.S.M., c. H-175, sect. 9(1) [para. 6]; sect. 9(1)(b) [para. 50]; sect. 9(2)(j) [paras. 6, 50]; sect. 14(1) [paras. 50, 53]; sect. 14(2) [paras. 6, 50].

Winnipeg Real Estate Board Act, S.M. 1903, c. 71, sect. 9 [para. 13].

Counsel:

I. Lincoln, for the plaintiffs;

B.J. Meronek and R.G. Wookey, for the defendant;

No one appeared for the intervenor.

This action was heard before Morse, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, whose decision was delivered on April 15, 1991.