DECISION OF THE SASKATCHEWAN REAL ESTATE COMMISSION AND CONSENT ORDER
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1 DECISION OF THE SASKATCHEWAN REAL ESTATE COMMISSION AND CONSENT ORDER Elenko (Re), 2019 SKREC 2 Date: January 11, 2019 Commission File: IN THE MATTER OF THE REAL ESTATE ACT, C. R-1.3 AND IN THE MATTER OF JAYSON ELENKO Before: A Saskatchewan Real Estate Commission Hearing Committee comprised of the following: Jeffrey P. Reimer - Chairperson Al Myers Dave Hepburn CHARGE and ADMISSION OF MISCONDUCT: [1] The registrant is charged with and is admitting to professional misconduct as follows: Count 1: That, contrary to section 39(1)(c) of The Real Estate Act, Mr. Elenko breached section 53(2) of Act by trading other than for or on behalf of his brokerage. Count 2: That, contrary to section 39(1)(c) of The Real Estate Act, Mr. Elenko breached Commission Bylaw 730(e) by failing to use the mandatory Notice to Remove Condition(s) on Residential Contract of Purchase and Sale; and Count 3: That, contrary to section 39(1)(c) of The Real Estate Act, Mr. Elenko breached Commission Bylaw 730(f) by failing to use the mandatory Disclosure of Interest in Trade form. Decision and Consent Order SREC #
2 LEGISLATION: [2] Section 39(1)(c) of The Real Estate Act states: Professional misconduct is a question of fact, but any matter, conduct or thing, whether or not disgraceful or dishonourable, is professional misconduct within the meaning of this Act, if it is a breach of this Act, the regulations or the bylaws or any terms or restrictions to which the registration is subject. [3] Section 53(2) states: No broker, branch manager, associate broker or salesperson shall trade in real estate other than for or on behalf of the brokerage state on his or her certificate of registration. [4] Commission Bylaw 730 states, in part: FACTS: The following approved forms, provided by the Association of Saskatchewan REALTORS, shall be mandatory: (e) Notice to Remove Condition(s) on Residential Contract of Purchase and Sale; (f) Disclosure of Interest in Trade; [5] In accordance with subsection 9(4) of The Real Estate Regulations ( the Regulations ), the Hearing Committee accepts Jayson Elenko s Statement of Facts and Admissions, which includes the following relevant points: [6] Mr. Elenko was registered under the provisions of The Real Estate Act in the Province of Saskatchewan with the Saskatchewan Real Estate Commission as a salesperson from December 10, 1997 through June 30, [7] Mr. Elenko has been continuously registered under the provisions of The Real Estate Act in the Province of Saskatchewan with the Saskatchewan Real Estate Commission since December 13, 2000, and has been registered as an associate broker since April 1, [8] Mr. Elenko has taken the following real estate courses: Fundamentals of Real Estate; Principles of Real Estate Appraisal; Principles of Mortgage Financing; Principles of Real Property Law; Working Within the Real Estate Act; and Real Estate Office Management. Decision and Consent Order SREC #
3 [9] Mr. Elenko has completed the continuing professional development seminars each registration year since [10] Mr. Elenko is presently registered under the provisions of The Real Estate Act as an associate broker with # Sask. Ltd. and # Sask. Ltd. O/A ICR Commercial Real Estate Regina. [11] In the summer of 2014, the Sellers listed the Property for sale with the Listing Brokerage. [12] Registrant A acted as the listing agent. [13] Mr. Elenko contacted the Listing Brokerage to assist him in searching for a home in the Lumsden/Regina Beach area. He told Registrant A that he was not interested in buying properties, but would rent a property if available. [14] The Sellers were interested in renting out the Property to Mr. Elenko. [15] Mr. Elenko signed a rental agreement with the Sellers regarding the Property. [16] Mr. Elenko agreed to a one-year lease of the Property on the understanding that it would be listed for sale again the following spring. [17] The listing agreement expired in or around June of [18] For income tax purposes, Mr. Elenko needed to purchase a home before the end of December [19] On December 6, 2015, Mr. Elenko and his wife (the Buyers ) wrote an offer to purchase the property. The offer did not name a salesperson or brokerage representing either the Buyers or the Sellers. [20] The offer did not go through Mr. Elenko s brokerage or any brokerage. There was no deposit that needed to be held in trust and Mr. Elenko did the paperwork himself. [21] Mr. Elenko believes the Sellers were aware that he was a registrant. Mr. Elenko rented the Property from them for six months and provided them with his business card. He had coffee with the Sellers a few times and the fact that he was a registrant was brought up. Mr. Elenko sent an to the Seller that included his signature, which identifies him as a Senior Sales Associate with ICR Commercial Real Estate. [22] Mr. Elenko did not provide the Sellers with a Disclosure of Interest in Trade form at any time. Decision and Consent Order SREC #
4 [23] Mr. Elenko assumed that he did not need to complete a written disclosure form because the Sellers were already aware that he was a registrant. [24] On December 8, 2015, the Buyers signed a Notice to Remove Conditions Precedent form removing the conditions on the purchase of the Property. This document was not the mandatory Notice to Remove Condition(s) on Residential Contract of Purchase and Sale. [25] Mr. Elenko did not otherwise provide the Sellers with a completed mandatory Notice to Remove Condition(s) on Residential Contract of Purchase and Sale for the transaction. [26] The possession date was on or about December 15, REASONS: [27] The Investigation Committee and Mr. Elenko considered the following as relevant in agreeing to the within consent order: Mitigating Factors [28] Mr. Elenko has no previous sanction history. [29] Mr. Elenko was co-operative with the investigation. [30] Mr. Elenko signed a Statement of Facts and Admissions acknowledging his errors. Aggravating Factors [31] Mr. Elenko was personally involved in the transaction. A registrant s personal involvement in a transaction places a higher onus on that registrant to ensure that all necessary documents are properly completed. Prior Decisions & Other Considerations [32] In May of 2012, the Appeals Committee of the Real Estate Council of Ontario rendered a decision In the Matter of Suzette Thompson ( Thompson ). The Appeals Committee in Thompson set out a series of factors to be considered when determining the appropriate sanction for a registrant found in breach of the legislation. The factors are as follows: 1. The nature and gravity of the breaches of the Code of Ethics. 2. The role of the offending member in the breaches. 3. Whether the offending member suffered or gained as a result of the breaches. 4. The impact of the breaches on complainants or others. 5. The need for specific deterrence to protect the public. Decision and Consent Order SREC #
5 6. The need for general deterrence to protect the public. 7. The need to maintain the public s confidence in the integrity of the profession. 8. The degree to which the breaches are regarded as being outside the range of acceptable conduct. 9. The range of sanction in similar cases. [33] These factors are reasonable considerations and can offer guidance to members of a Hearing Committee tasked with crafting an appropriate sanction for a registrant found to have committed professional misconduct. These factors have been consistently applied in Saskatchewan Real Estate Commission consent orders since September The nature and gravity of the breaches of the Code of Ethics. [34] Mr. Elenko and his wife purchased a property. The transaction did not go through Mr. Elenko s brokerage. [35] Mr. Elenko did not use the mandatory Notice to Remove Conditions form to remove conditions on the purchase, nor did he provide the sellers with a mandatory Disclosure of Interest in Trade form. 2. The role of the offending member in the breaches. [36] Mr. Elenko was the only registrant involved in his breaches of the legislation. 3. Whether the offending member suffered or gained as a result of the breaches. [37] There is no evidence to show that Mr. Elenko gained any benefits or suffered any losses as a result of his breaches. 4. The impact of the breaches on complainants or others. [38] There is no evidence of actual consumer harm resulting from Mr. Elenko s breaches of the legislation. 5. The need for specific deterrence to protect the public. [39] It must be made clear to Mr. Elenko that all trades in which a registrant is involved must go through the registrant s brokerage. [40] Mr. Elenko must be reminded of the importance of ensuring that all mandatory documents are completed in all cases. 6. The need for general deterrence to protect the public. [41] It must be made clear to all registrants that all trades in real estate in which a registrant is involved must go through the registrant s brokerage. [42] Registrants must be reminded that mandatory forms are to be used in all cases. 7. The need to maintain the public s confidence in the integrity of the profession. Decision and Consent Order SREC #
6 [43] The public should be able to count on the fact that registrants are trading under the supervision of their brokers in accordance with the legislation. [44] Members of the public must be reassured that registrants are providing them with the appropriate mandatory forms. 8. The degree to which the breaches are regarded as being outside the range of acceptable conduct. [45] Mr. Elenko s conduct falls below the standard expected of registrants, but it was not egregious. 9. The range of sanction in similar cases. A. What is an appropriate sanction for Mr. Elenko s breach of section 53(2)? [46] There are three previous decisions dealing with breaches of s. 53(2) of the Act. [47] In Badinski (Re), 2018 SKREC 14 (file # ) ( Badinski ), In Badinski (Re), 2018 SKREC 14 (file # ) ( Badinski ), Tynelle Badinski was issued an order of reprimand and a $1,250 fine for breaching s. 53(2) of the Act by trading in real estate other than for or on behalf of her registered brokerage. Shortly before transferring to a new brokerage, Ms. Badinski contacted the sellers she was representing to advise them of her plans. She assisted the sellers in drafting cancellation of listing forms to take to her former brokerage. About one week after the transfer, Ms. Badinski contacted another registrant to advise that the scheduled showing of the one of the properties still listed with Ms. Badinski s former brokerage was cancelled. She told the other registrant that the cancellation of the listing with her former brokerage had been signed, that it just needed to be processed, and that the new listing documents should be signed right away. [48] Ms. Badinski had no previous sanction history and was co-operative with the investigation. [49] Ms. Badinski contacted several clients to discuss her move to a new brokerage and assisted all of those clients in attempting to cancel their listings with her former brokerage. The agency relationship between members of the public and the brokerages that represent them is a fundamental component of the real estate industry. Registrant conduct that undermines this relationship is not acceptable. [50] Mr. Elenko s breach of s. 53(2) is more serious than that of the registrant in Badinski. Mr. Elenko completed the purchase of a property without involving his brokerage while Ms. Badinski cancelled a showing of a property listed for sale with her former brokerage. Also, Mr. Elenko was personally involved in the transaction. Decision and Consent Order SREC #
7 [51] In Downey (Re) (file # ) ( Downey ), Lyndon Downey s certificate of registration was suspended for a period of fifteen days for failing to trade through his brokerage with respect to a property. Although Mr. Downey was involved in the sale of the property, he did not inform his brokerage of the transaction. He did put a sold sign on the property after it was sold. [52] Mr. Downey had no previous sanction history, admitted his guilt and expressed remorse for his actions. There was no evidence of consumer harm and Mr. Downey did not personally gain from the transaction. The Hearing Committee considered Mr. Downey s actions to be an isolated incident and considered the turmoil occurring in Mr. Downey s personal life at the time of the violation. [53] The Hearing Committee did find that a suspension of Mr. Downey s certificate of registration was warranted because a registrant trading in real estate other than through his or her brokerage is a very serious violation. [54] Mr. Elenko s breach of s. 53(2) of the Act is more serious than that of the registrant in Downey. There were more mitigating factors at play in Downey and Mr. Elenko was personally involved in the transaction. [55] Downey was decided almost twenty years ago and, since that time, Hearing Committees of the Commission have been ordering suspensions more sparingly and for a narrower range of violations. As such, although it does indicate the seriousness of a registrant trading outside his or her brokerage, the decision in Downey is of limited value in determining an appropriate sanction for Mr. Elenko s breach of s. 53(2) of the Act. [56] In Grabowski (Re) (file # ) ( Grabowski ), Gerald Grabowski was issued an order of reprimand and ordered to pay a $1,000 fine for entering into three separate contracts to purchase real estate that he did not report to his brokerage and for acting on behalf of the buyer and seller in the purchases of two properties that he did not report to his brokerage. [57] Mr. Grabowski had no previous sanction history and was co-operative with the investigation. He acknowledged his mistake and showed remorse for his actions. The Hearing Committee noted that, although the fact that Mr. Grabowski facilitated the sale of property within his wife s family did not relieve him of his obligation to conduct himself within the requirements of the legislation, it was considered a mitigating factor. Mr. Grabowski did not receive any commission with respect to the trades in real estate and his actions were not intended to avoid payment of any commission to his brokerage. The Hearing Committee did not find that Mr. Grabowski intended any wrongdoing in the transaction and there was no evidence of consumer harm. [58] The Hearing Committee did note, however, that the concept of a registrant only trading in real estate on behalf of the brokerage named on his or her certificate of registration is one of the basic principles of real estate legislation. Trading in real Decision and Consent Order SREC #
8 estate outside of a registrant s brokerage was considered a very serious violation. [59] Mr. Elenko s breach of s. 53(2) is less serious than that of the registrant in Grabowski. Mr. Grabowski was involved in five trades in real estate that were not reported to his brokerage, while Mr. Elenko was only involved in one. [60] Both Downey and Grabowski were decided before In 2008, the real estate market in Saskatchewan underwent significant change. Property values increased considerably and, as a result, the commissions registrants can expect to earn on trades in real estate increased as well. Sanctions ordered against registrants must keep pace with these increases or the Commission runs the risk of fines becoming a cost of doing business. Consideration must also be paid to the general inflation that has occurred in the years since these decisions were rendered. [61] An order of reprimand and a $1,250 fine are appropriate sanctions for Mr. Elenko s breach of Section 53(2) of the Act. B. What is an appropriate sanction for Mr. Elenko s breach of Bylaw 730(e)? [62] In Amichand (Re), 2018 SKREC 9 (file # ) ( Amichand ), Will Amichand was issued an order of reprimand and a $2,000 fine for breaching Bylaw 730(e) by failing to have his buyer clients complete the mandatory Notice to Remove Conditions form to remove their financing condition. Mr. Amichand also failed to use the mandatory Amendment form to make an amendment to the Schedule B attached to the offer. [63] Mr. Amichand did not have a previous sanction history, was co-operative with the investigation, and signed a Consent Order acknowledging his error. [64] Mr. Amichand failed to use multiple mandatory forms and the offer he provided to his buyer clients was lacking several elements required by the Act. Mr. Amichand had an interest in the seller corporation and was also representing the buyers as a limited dual agent. A registrant s personal involvement in a transaction places a higher onus on that registrant to ensure that all necessary documents are properly completed. The Committee also noted that registrants must be even more diligent when there are no other registrants involved in the transaction to ensure the information presented to the parties is accurate and the transaction is managed properly. [65] Mr. Elenko s breach of Bylaw 730(e) is similarly serious to that of the registrant in Amichand. Both registrants failed to use multiple mandatory forms in the course of trades in real estate in which they were personally involved. [66] In Shaw (Re), 2013 SKREC 4 (file # ) ( Shaw ), Vanna Shaw was issued an order of reprimand and a $1,500 fine for breaching Bylaw 730(e). Ms. Shaw Decision and Consent Order SREC #
9 was also ordered to pay $1,150 in hearing costs and to file transactional documents for the year of 2013 or the next 5 transactions, whichever occurred first. A 2009 audit of Ms. Shaw s brokerage showed that the mandatory Notice to Remove Conditions form had not been used. Ms. Shaw acknowledged that she failed to use the form while acting for both the seller and the buyer. When the brokerage was audited again in 2012, Ms. Shaw indicated that she did not use the mandatory form in the normal course of her trades in real estate. [67] The Hearing Committee accepted that Ms. Shaw never intended any malice, that she personally knows most of her clients, and that no harm was done to the parties in the transaction in question. Ms. Shaw was apologetic for her wrongdoing. The Committee considered the length of time Ms. Shaw had been in the industry and her lack of previous sanction history. [68] The Committee stressed that the use of mandatory forms is not discretionary and it is not up to registrants to determine when and if to use various forms. The Committee noted a disturbing trend in the number of cases coming before them and wanted to stress to all registrants that a fine will be levied and it will have to be increased if more cases come before the Committee. As a broker, Ms. Shaw must know the requirements of the legislation for all registrants. [69] Mr. Elenko s breach of Bylaw 730(e) is less serious than that of the registrant in Shaw. Although there were more mitigating factors at play in Shaw, Mr. Elenko failed to use the mandatory Notice to Remove Conditions form with respect to a single transaction, while Ms. Shaw did not use the form in her regular practice. [70] However, the Hearing Committee in Shaw noted that increased fines would be in order if more cases of registrants failing to use mandatory forms came before the Committee. [71] In Dunn (Re), 2006 SKREC 11 (file # ) ( Dunn ), Gordon Dunn was issued an order of reprimand and a $500 fine for breaching Bylaw 730(e) for failing to have his buyer client sign the Notice to Remove Conditions form. The buyer was purchasing the property sight unseen on the basis of information she received about the property from Mr. Dunn. The offer was made subject to a home inspection, which indicated damage resulting from a leaking roof and moisture on the basement floor. Mr. Dunn verbally described the contents of the inspection report to the buyer, after which she verbally accepted the inspection. After the transaction completed, the buyer alleged that the property was in poor repair. [72] The Hearing Committee considered that Mr. Dunn had been a registrant since 1979 and had no previous sanction history. He accepted his error and showed remorse. [73] The Committee stated that it is important that registrants use mandatory forms as required by legislation. It is not for the registrant to decide when they should be Decision and Consent Order SREC #
10 used. The forms must be signed to ensure that there is no later dispute as to what has taken place. [74] Mr. Elenko s breach of Bylaw 730(e) is more serious than that of the registrant in Dunn. Although Mr. Dunn was dealing with a long-distance buyer who was purchasing the property sight unseen, Mr. Elenko was personally involved in the transaction. Registrants are under a heightened obligation to ensure the proper forms are completed in the course of a transaction in which the registrant is personally involved. [75] Dunn was decided before the significant expansion in the Saskatchewan real estate market that drastically increased property values and commissions. The impact of these increases and general inflation must be kept in mind when relying on older cases as precedent. [76] An order of reprimand and a $1,500 fine are appropriate sanctions for Mr. Elenko s breach of Bylaw 730(e). C. What is an appropriate sanction for Mr. Elenko s breach of Bylaw 730(f)? [77] In Sirois (Re), 2009 SKREC 13 (file# ) and in Sirois (Re), 2009 SKREC 14 (file# A) (the Sirois Decisions ), the registrant was issued an order of reprimand and ordered to pay a $1,000 fine for failing to use the mandatory form to inform his buyer of his ownership interest in the seller corporation while acting as a limited dual agent. [78] Gaston Sirois did not have a previous sanction history and he had only been in the real estate industry for a short time. Laurent Sirois did not have a previous sanction history and he had been registered since [79] The fact that there was clearly no gain or profit by the registrants and that verbal communication of their status as registrants had taken place was a mitigating factor. [80] The Hearing Committee stated that it is extremely important that mandatory forms be used. The forms must be used in each circumstance; it is not up to the registrants to determine when and where they should be used. [81] Mr. Elenko s breach of Bylaw 730(f) is more serious than that of the registrants in the Sirois Decisions. The seriousness of the breaches in the Sirois Decisions was mitigated by the length of time the registrants had been in the real estate industry. [82] In Rother-Seale (Re), 2007 SKREC 11 (file# ) ( Rother-Seale ), the registrant was issued an order of reprimand and ordered to pay a $500 fine for failing to use a mandatory Statement of Disclosure. Ms. Rother-Seale further received trust money on a trade in real estate and issued receipts of the trust Decision and Consent Order SREC #
11 money, but did not deliver the paperwork to her broker or ever pay the trust money to her brokerage. Ms. Rother-Seale and a friend entered into a Lease Option to Purchase regarding a property. After the agreement commenced, the relationship between Ms. Rother-Seale and the purchaser changed. Ms. Rother- Seale took possession of the property, changed the locks and gave notice to the purchaser to vacate the property. Ms. Rother-Seale s broker and manager first learned of the transaction when they received copies of letters from Commission staff regarding the complaint. [83] Ms. Rother-Seale had a previous sanction history. The Hearing Committee stated that, while the Statement of Disclosure is a mandatory form and must be used at all times, the fact that Ms. Rother-Seale and the purchaser were friends and that there was no misunderstanding was a mitigating factor. The Committee noted that the transaction involved the registrant s own property, so there was a higher onus on the registrant to make sure the trade was properly documented and every element was done properly. [84] Mr. Elenko s breach of Bylaw 730(f) is similarly serious to that of the registrant in Rother-Seale. While Mr. Elenko believes that the Sellers were aware of his status as a registrant throughout the transaction, he was not friends with the Sellers before the transaction like Ms. Rother-Seale and the purchaser. However, unlike Ms. Rother-Seale, Mr. Elenko does not have a previous sanction history. [85] In Kok (Re), 2008 SKREC 10 (file # ) ( Kok ), Dwayne Kok was issued an order of reprimand and ordered to pay a $1,500 fine and $2,500 in costs for personally writing a contract of purchase and sale form without preparing or delivering a mandatory written Statement of Disclosure to the seller before presenting his offer. [86] The Hearing Committee noted that all parties were aware that Mr. Kok was a REALTOR and that there was no potential gain to him in not providing the Statement of Disclosure. [87] The Hearing Committee stated that the Statement of Disclosure form must be presented before the offer is presented. The Committee also stated that the purpose of the disclosure document is more than just to advise the parties that the prospective purchaser is a registrant. The disclosure document also indicates the amount of commission the party is receiving, what specific use they will be making of the property and if there is any special knowledge to be had by the registrant. The Hearing Committee indicated that mandatory forms must be used whether or not the registrant felt the failure to use the form was harmful to the parties. [88] The Committee stated that when a registrant is involved in a transaction more care, not less care, is required. The registrant must comply with all technical requirements because they are important and mandatory. Decision and Consent Order SREC #
12 [89] The decision in Kok was confirmed on appeal to the Superintendent of Real Estate: 2012 SKREC 4. [90] Mr. Elenko s breach of Bylaw 730(f) is similarly serious to that of the registrant in Kok. Both registrants failed to provide the mandatory disclosure form to the other party in the course of a trade in real estate. In both cases, the other parties were aware that they were dealing with a registrant. [91] In Leier (Re), 2008 SKREC 11 (file # ) ( Leier ), Martin Leier was issued an order of reprimand and ordered to pay a $3,500 fine for purchasing a property and thereafter marketing the property without disclosing in writing to the original seller and to the subsequent buyers, via the mandatory Statement of Disclosure, that he was a registrant. Originally, the offer to purchase the property was written on behalf of Mr. Leier s son. Mr. Leier used an Amendment to Residential Contract of Purchase and Sale, not the mandatory Statement of Disclosure, to disclose in writing to the seller that the buyer was his son after a contract of purchase and sale had formed. Mr. Leier failed to notify the original seller when he and his wife declared themselves as owners of the property when the transaction completed. Mr. Leier and his wife subsequently listed the property for sale. Mr. Leier did not use the mandatory disclosure form to disclose his ownership of/interest in the property in writing to the subsequent buyer prior to receiving an offer to purchase the property from said buyer. [92] Mr. Leier did not have a previous sanction history. [93] The Hearing Committee stated that, as a long time registrant, it was even more important that Mr. Leier follow the rules. The Committee did not find that Mr. Leier simply forgot to provide the written disclosure. The Committee noted that the mandatory disclosure form was absent on two personal transactions involving the same property. [94] The Committee stated that the issue of disclosure is important and written disclosure is mandatory when any real estate agent is writing a contract and acting either for himself or a family member. The use of mandatory forms and the necessity of disclosure prior to the trade completing is a serious matter. The Committee was clear that this was a serious violation and one which required a serious sanction. The Committee noted that whether there is substantial harm or not does not relieve the registrant from using the mandatory forms. They are for the protection of the public and also to strengthen consumer trust and confidence in the real estate industry. [95] Mr. Elenko s breach of Bylaw 730(f) is less serious than that of the registrant in Leier. Mr. Leier failed to complete and provide the mandatory disclosure form in the course of two transactions involving the same property, while Mr. Elenko failed to provide the disclosure form on one occasion. Decision and Consent Order SREC #
13 [96] In Lewis (Re), 2005 SKREC 1 (file# ) ( Lewis ), the registrant was issued an order of reprimand and ordered to pay a $1,500 fine and $1, in costs for failing to provide the seller with the mandatory disclosure form. Ms. Lewis was a shareholder in the buyer corporation. Prior to taking possession of the property, Ms. Lewis hired a locksmith to change the lock on the property. Ms. Lewis did not provide a Statement of Disclosure to the seller or to the seller s brokerage. The seller testified that she was not aware that Ms. Lewis was a shareholder in the buyer corporation. [97] Ms. Lewis did not have a previous sanction history, but the Hearing Committee found that Ms. Lewis had not shown any remorse for her actions or understanding of the seriousness of her actions. The Committee found that Ms. Lewis had abused her position of authority in the transaction and had not accepted responsibility for her actions. [98] The Hearing Committee was of the opinion that the actions of a registrant who purchases real estate for his or her own account and fails to make a written disclosure in accordance with s. 65 of the Act through the use of the mandatory Statement of Disclosure form are a very serious issue. The Committee stated that these types of actions may warrant suspension or cancellation of the registrant s certificate of registration. The Committee also reiterated that any violation of real estate legislation is compounded when the violation is by a registrant buying or selling his or her real estate. [99] The Hearing Committee stated that one of the foundations of consumer protection in real estate legislation is for a consumer to have full disclosure from a registrant that the registrant is the buyer or seller, as the case may be, and any material facts respecting the sale or purchase of which the registrant is aware. [100] Mr. Elenko s breach of Bylaw 730(f) is less serious than that of the registrant in Lewis. Mr. Elenko signed a Statement of Facts and Admissions acknowledging his error and there is no evidence to suggest he abused his position as a registrant in the transaction. [101] The decisions in Rother-Seale and Lewis were rendered before the significant expansion in the Saskatchewan real estate market that drastically increased property values and commissions. The impact of these increases and general inflation must be kept in mind when relying on older cases as precedent. [102] An order of reprimand and a fine of approximately $1,250 are appropriate sanctions for Mr. Elenko s breach of Bylaw 730(f). [103] As Mr. Elenko has agreed to sign this consent order, there will be no order as to costs. Decision and Consent Order SREC #
14 CONSENT ORDER: [104] In accordance with The Real Estate Act, its Regulations, and the Commission Bylaws, and with the consent of Jayson Elenko, and the Investigation Committee of the Saskatchewan Real Estate Commission, the Hearing Committee hereby orders: [105] With respect to Count 1, the charge of professional misconduct contrary to section 39(1)(c) of The Real Estate Act for breach of section 53(2): a. Jayson Elenko shall receive an order of reprimand for the violation of section 53(2); b. Jayson Elenko shall, within 30 days of the date of this order, pay to the Saskatchewan Real Estate Commission a $1, fine for the said violation of the Act; and c. Jayson Elenko s registration shall be suspended if he fails to make payment as set out above. [106] With respect to Count 2, the charge of professional misconduct contrary to section 39(1)(c) of The Real Estate Act for breach of Bylaw 730(e): a. Jayson Elenko shall receive an order of reprimand for the violation of Bylaw 730(e); b. Jayson Elenko shall, within 30 days of the date of this order, pay to the Saskatchewan Real Estate Commission a $1, fine for the said violation of the bylaw; and c. Jayson Elenko s registration shall be suspended if he fails to make payment as set out above. [107] With respect to Count 3, the charge of professional misconduct contrary to section 39(1)(c) of The Real Estate Act for breach of Bylaw 730(f): a. Jayson Elenko shall receive an order of reprimand for the violation of Bylaw 730(f); b. Jayson Elenko shall, within 30 days of the date of this order, pay to the Saskatchewan Real Estate Commission a $1, fine for the said violation of the bylaw; and c. Jayson Elenko s registration shall be suspended if he fails to make payment as set out above. [108] There shall be no order as to costs. Dated at Regina this 11 th day of January Jeffrey P. Reimer, Jeffrey P. Reimer, Chairperson Decision and Consent Order SREC #
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