AND. IN THE MATTER OF VAl'mA SHAW DECISION OF THE. SASKATCHEWAN REAL ESTATE COlVIMISSION. Commission File: #

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1 IJ.~ THE MATTER OF THE REAL ESTATE ACT, C. R-l.3 AND IN THE MATTER OF VAl'mA SHAW DECISION OF THE SASKATCHEWAN REAL ESTATE COlVIMISSION Commission File: # Before: A Saskatchewan Real Estate Commission Hearing Committee COIUpriSed of the following: Randal C. Touet - Chairperson Trevor Koct Tim Ward Appearances: Aaron Tetu, on behalf of the Investigation Committee Vanna Shaw, Registrant, by telephone Hearing Date: December 5, 2012 Written Decision: January 8,2013 1

2 The Mitigation Hearing was held December 5, 2012 at the Saskatoon Club, Saskatoon, Saskatchewan before a Hearing Committee ("the Committee") of the Commission. The Statement of Facts and Admissions dated October 24, 2012, provided particulars of Vanna Shaw's violation and admissions. CHARGE and ADMISSION OF MISCONDUCT The registrant was charged with and has admitted, in the Statement of Facts and Admissions, to professional misconduct as follows: That contrary to Section 39(1)(c) of The Real Estate Act Ms. Shaw breached Commission Bylaw 730. LEGISLATION 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." Bylaw 730 which states: "The following approved forms, provided by the Association of Saskatchewan RELATORS, shall be mandatory: a) Residential Contract of Purchase and Sale (does not apply to the sale of new condominiums); b) Schedule "C": Special Conditions for Contract of Purchase and Sale of a new Condominium Unit) does not apply to the sale of new condominiums); c) Counter Offer to Residential Contract of Purchase and Sale; d) Amendment to Residential Contract ofpurchase and Sale; e) Notice to Remove Condition(s) or Residential Contract of Purchase and Sale; f) Disclosure of Interest in Trade; and g) Ancillary Services in the Purchase of Residential Real Estate (applies only to re-sale residential real estate). FACTS In accordance with subsection 9(4) of The Real Estate Regulations ("the Regulations"), the Committee accepted Vanna Shaw's Statement of Facts and Admissions, which include the following relevant points: 1. Vanna Shaw has been continuously registered under the provisions of The Real Estate Act in the Province of Saskatchewan with the Saskatche\van Real Estate Commission since July 12, Vanna Shaw has taken the following real estate courses: Real Estate 150 and Real Estate

3 3. Vanna Shaw has completed the continuing professional development seminars each registration year since July 1, Vanna Shaw is presently registered under the provisions of The Real Estate Act as a broker with Cliff Shaw Agencies Ltd. 5. In the brokerage audit of one real estate transaction file, there was no mandatory form "Notice to Remove Condition(s) on Residential Contract of Purchase of Sale" in the file. The file in question related to the trade in real estate for the seller and buyer, regarding the property. 6. During the previous brokerage audit, it was brought to Vanna Shaw's attention, as an educational point, that there was a failure to use the mandatory form "Notice to Remove Condition(s) on Residential Contract of Purchase and Sale" in the files that were examined then. The audit occurred on December 7, Vanna Shaw acknowledges that as part of the December 7, 2009 brokerage audit, she failed to use the required mandatory form. 8. At the outset of the audit on July 20, 2012, Vanna Shaw indicated that she did not use the mandatory form "Notice to Remove Condition(s) on Residential Contract of Purchase and Sale" in the normal course ofher trades in real estate. REPRESE~""TATIONS The Investigation Committee representative, Aaron Tetu, indicated there are principles of sentencing for sanctions which should be adhered to including that of punishment for the breach itself, deterrents for both the registrant and other registrants in the province, the protection of the public and reformation and rehabilitation of the registrant. Mr. Tetu noted that in the circumstance the failure by Ms. Shaw to use the mandatory ",Notice to Remove Condition(s) on Residential Contract of Purchase and Sale" form has been her practice for the last number of years. He noted that this matter had been raised in 2009 as part of the audit report for Ms. Shaw and was again raised in 2012 audit. At this time, Ms. Shaw had indicated to the Commission that this was not part of her regular practice. Because it is a trend, Mr. Tetu is concerned. He does note that Ms. Shaw's brokerage averages only five to ten transactions per year. Mr. Tetu recommended a Letter of Reprimand and a fine in the amount of $1, together with the costs of this matter. He referred the Committee to the practice of the Province of Alberta provided an administration penalty. for lack of use of forms in the amount of $1, He also recommended that as part of the sanction, Ms. Shaw report and file transactional documents for a period of twelve months within two weeks of the closing date of the transaction to ensure her practice has been corrected. Mr. Tetu did note that no harm had been done in this particular circumstance and indicated to the Committee the prior cases of 3

4 Gordon Dunn , in which there was a fine of $ plus a Letter of Reprimand and in the case of Paul Jardine where a fme of $ and a Letter of Reprimand was again awarded. Other cases involving a breach of Bylaw 730 range from $ to $3, but the most common being in the range of $1, according to 1vIr. Tetu. Mr. Tetu also confrrmed that Ms. Shaw was forthcoming and cooperative in the investigation. Ms. Shaw spoke to the Committee and indicated that she is a third generation REALTOR. The sellers in this circumstance were at a fishing camp and were difficult to contact. She indicated to the Hearing Committee that no harm was ever intended. She said she knows most of her clients and says 90 % to 95 % ofthem are from her community. Ms. Shaw noted that she never intended any malice and at the time did not feel the form was important as she should have. She indicated she was sorry for any wrongdoing in this circumstance although she had never had any complaints from this or any other client. Ms. Shaw indicated she was okay with faxing her transactional documents to the Real Estate Commission because she is now aware of the rule and she is currently using the form. She has been doing this automatically since the time of the audit in DECISION In accordance with The Real Estate Act, Bylaws and Regulations, the Committee made the following orders: Count 1 a) Vanna Shaw receive an order ofreprimand for the violation of Bylaw 730; b) Vanna Shaw, prior to February 28, 2013, pay to the Saskatchewan Real Estate Commission, a $1, fme for the said violation ofthe Act; c) Vanna Shaw shall file transactional documents by fax with the Commission for the year 2013 or the next five (5) transactions, whichever occurs first; and d) Vanna Shaw's registration shall be suspended if she fails to pay any portion of the fme within the said period of time or if she fails to file the transactional documents. COSTS e) Vanna Shaw, prior to February 28,2013, pay to the"saskatchewan Real Estate Commission costs in the amount of $1, Vanna Shaw's registration shall be suspended if she fails to pay any portion of the costs within that said period of time. RATIONALE The Committee, in considering the disciplinary action, considered Vanna Shaw's lack of previous sanction history and the length of time she had been in the real estate industry. The Hearing Committee again was concerned with the lack ofuse ofmandatory forms. It must be stressed yet again that the use of mandatory forms is not discretionary and it is not up to the 4

5 1 ' registrantthemselves to determine when and ifto use various forms. This is a disturbing tre?d in a number of cases coming before the Committee and it must be stressed to all registrants that a fme will be levied and it will have to be increased if more cases come before the Committee. The mitigating factor here is that no harm was done but it is tempered by the fact that as a broker, you must know what the requirements ofthe regulations, bylaws, and The Real Estate Act for all registrants. Whether a registrant does five transactions a year or five hundred, it is imperative to ensure thatproperprocedure is followed in all cases. Ifthere is ever a question as to what procedure needs to be followed, the registrants certainly can contact the Commission to determine the procedure. With regard to the request that filing of the transactional documentation with the Commission be done, the Committee was of the impression that this would be good assistance in the.circumstance to ensure that Ms. Shaw is using the mandatory forms and will reinforce the - practice for her. With regard to the matter of costs, it was indicated that Ms. Shaw was completely cooperative with the Investigation Committee and 50% of costs are appropriate in the circumstances. This reduces the cost to the real estate industry as a whole for an investigation and hearing costs due to the breached bylaw by the particular registrant. 5