DECISION OF THE SASKATCHEWAN REAL ESTATE COMMISSION AND CONSENT ORDER Dominguez (Re), 2018 SKREC 6 Date: August 17, 2018 Commission File: 2013-09B IN THE MATTER OF THE REAL ESTATE ACT, C. R-1.3 AND IN THE MATTER OF MATT DOMINGUEZ 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. Matt Dominguez breached Saskatchewan Real Estate Commission Bylaw 712(e) by failing to ensure that registrants of his brokerage were in compliance with the legislation. 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. Decision and Consent Order SREC #2013-09B 1
[3] Bylaw 712(e) states: A broker or branch manager shall be responsible for taking reasonable steps to ensure that the brokerage and its registrants are in compliance with the Act, the regulations and the bylaws. FACTS: [4] In accordance with subsection 9(4) of The Real Estate Regulations ( the Regulations ), the Hearing Committee accepts Matt Dominguez s Statement of Facts and Admissions, which includes the following relevant points: [5] Mr. Dominguez was continuously registered as a salesperson under the provisions of The Real Estate Act in the Province of Saskatchewan with the Saskatchewan Real Estate Commission from April 1, 2008 until November 4, 2010. Mr. Dominguez was continuously registered as a branch manager from November 10, 2010 until July 15, 2013. Mr. Dominguez was continuously registered as a broker from July 15, 2013 until April 3, 2017. Mr. Dominguez has been continuously registered as an associate broker since April 4, 2017. [6] Mr. Dominguez has taken the following real estate courses: Phase 1 Real Estate as a Professional Career; Commercial Real Estate as a Professional Career; Residential Real Estate as a Professional Career; Farm Real Estate as a Professional Career; and Real Estate Office Management & Brokerage. [7] Mr. Dominguez has completed the continuing professional development seminars each registration year since 2006-2008. [8] Mr. Dominguez is presently registered under the provisions of The Real Estate Act as an associate broker with Crown Real Estate Inc. O/A Re/Max Crown Real Estate. [9] At all relevant times to this matter, Mr. Dominguez was registered under the provisions of The Real Estate Act as a branch manager with #101156422 Saskatchewan Ltd. o/a Better Homes and Gardens Real Estate Signature Service ( BHGRESS ). [10] Mr. Dominguez understood his role as branch manager to be REALTOR recruitment and new office acquisition. Mr. Dominguez understood that the broker was responsible for all other matters, including oversight of registrants registered to my branch office. [11] The brokerage had hired a non-registrant social media coordinator in 2012. She was given access to all the BHGRESS Facebook pages and his personal Facebook account, as well as other social media platforms. One of her daily Decision and Consent Order SREC #2013-09B 2
tasks was promoting BHGRESS through sharing real estate specific content, liking our registrants pages, and providing information. [12] On January 30, 2013, Registrant 1 and Registrant 2, salespersons registered to Mr. Dominguez s branch office, sent a letter to the Owners of the Property located. The Owners were privately selling the Property. The letter was a form letter advertising Registrant 1 and Registrant 2 s services to owners of properties listed For Sale By Owner. [13] The Owners did not sign an agency agreement with BHGRESS or provide other written authorization for the brokerage to advertise the Property for sale. However, they engaged Registrant 1 and Registrant 2 to conduct an Open House at the Property. [14] On February 14, 2013, a link to a Kijiji advertisement regarding an open house at the Property was posted to a professional Facebook page that Registrant 1 and Registrant 2 operated together. [15] Neither Registrant 1 nor Registrant 2 submitted the Kijiji advertisement or the Facebook post to Mr. Dominguez for review prior to posting. [16] The social media coordinator, using Mr. Dominguez s personal Facebook account, liked the Facebook post linking to the Kijiji advertisement for the Property. Mr. Dominguez did not advise the social media coordinator that content liked should be reviewed and approval given prior to liking. [17] Mr. Dominguez did not advise Registrant 1 and Registrant 2 that they were required to submit all advertising for approval prior to publication on any social media platforms. [18] BHGRESS did not have a written policy regarding advertising through social media at the time. [19] On February 15, 2013, Registrant 1 and Registrant 2 posted to another professional Facebook page they operated titled Moose Jaw Real Estate s Professionals The [Registrants]. The post included a list of open houses scheduled in the Moose Jaw area that weekend. [20] A similar list (with two fewer open houses listed) for the same dates was posted to their professional website. [21] The owners of the open house properties listed did not sign an agency agreement with BHGRSS or provide other written authorization for the brokerage to advertise the open house properties for sale. Decision and Consent Order SREC #2013-09B 3
[22] Neither Registrant 1 nor Registrant 2 submitted either of the open house lists to Mr. Dominguez for review prior to posting. [23] On February 16, 2013, Registrant 1 and Registrant 2 held an Open House at the Property. They set up "Open House" signs in the neighborhood around the Property and shared an information package they had prepared, including an introductory letter soliciting buyers, mortgage information and a specification sheet for the Property. [24] Neither Registrant 1 nor Registrant 2 submitted the information package to Mr. Dominguez for review prior to the open house. [25] At all relevant times to this matter, Registrant 1 had been registered for approximately 18 months, and Registrant 2 for approximately one year. [26] Mr. Dominguez became broker of BHGRESS on July 15, 2013. Mr. Dominguez instituted a brokerage-wide social media policy that stripped all responsibility from administrative staff. REASONS: [27] The Investigation Committee and Mr. Dominguez considered the following as relevant in agreeing to the within consent order: Mitigating Factors [28] Mr. Dominguez has no previous sanction history. [29] Mr. Dominguez was co-operative with the investigation. [30] Mr. Dominguez signed a Statement of Facts and Admissions acknowledging his misconduct. Aggravating Factors [31] Mr. Dominguez did not have an advertising policy in place to ensure that advertisements created and published by registrants under his supervision were compliant with the Commission requirements. [32] The only employee of Mr. Dominguez s brokerage who was tasked with reviewing advertising posted by registrants of the branch office was not a registrant herself. Prior Decisions & Other Considerations [33] 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 Decision and Consent Order SREC #2013-09B 4
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. 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. [34] 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 2016. 1. The nature and gravity of the breaches of the Code of Ethics. [35] Registrants under Mr. Dominguez s supervision posted advertisements on social media that did not comply with The Real Estate Act or its subordinate legislation and conducted an Open House at a property without written authorization from the owners to do so. Mr. Dominguez did not have a policy detailing advertising requirements, nor was there a policy requiring branch office registrants or the brokerage s non-registrant social media coordinator to provide advertisements to him for review prior to publication. 2. The role of the offending member in the breaches. [36] Mr. Dominguez was the branch manager responsible for supervising the activities of the registrants and employees at his branch office. 3. Whether the offending member suffered or gained as a result of the breaches. [37] There is no evidence to suggest that Mr. Dominguez suffered a loss or experienced a gain as a result of his breach of the legislation. 4. The impact of the breaches on complainants or others. [38] There is no evidence of harm to members of the public, but the registrants under Mr. Dominguez s supervision were not held to the same advertising standards to which all other registrants must adhere. 5. The need for specific deterrence to protect the public. Decision and Consent Order SREC #2013-09B 5
[39] Specific deterrence is needed in this case to ensure that Mr. Dominguez understands the importance of supervising the actions of the registrants and employees under his supervision and of establishing brokerage or branch office policies regarding advertising standards. 6. The need for general deterrence to protect the public. [40] General deterrence is needed to ensure that other registrants know that registrants of a brokerage or branch office must be properly supervised by the broker or branch manager and that brokerage policies regarding advertising standards must be established and enforced. A branch manager is responsible for oversight of registrants registered to the branch office, regardless of how the brokerage is structured. 7. The need to maintain the public s confidence in the integrity of the profession. [41] Members of the public must be reassured that the registrants they deal with are being held to the appropriate standards and properly supervised by their broker or branch manager. 8. The degree to which the breaches are regarded as being outside the range of acceptable conduct. [42] While Mr. Dominguez s actions fall below the range of acceptable registrant conduct, they were not egregious. 9. The range of sanction in similar cases. A. What is an appropriate sanction for Mr. Dominguez s violation of Bylaw 712(e)? [43] There are three decisions dealing with breaches of Bylaw 712(e). [44] In Dickie (Re), 2015 SKREC 3 (file #2014-01A) ( Dickie ), Elaine Dickie was issued an order of reprimand and ordered to pay a $2,000 fine for failing to ensure that a registrant under her supervision reported being charged, and ultimately convicted, of fraud in relation to funds collected from the Workers Compensation Board. [45] Ms. Dickie was a long-term registrant with no prior sanction history and she was co-operative with the investigation. The registrant under her supervision had spoken to his lawyer about his duty to report to the Commission and had been erroneously advised that he did not need to report. [46] Ms. Dickie failed to ensure that the registrant under her supervision had reported to the Commission on two separate occasions. The Hearing Committee noted that it was important that the integrity of the Commission as a regulatory body not be undermined by registrants failing to report criminal proceedings commenced against them and any resulting convictions. The charge of fraud calls into question Decision and Consent Order SREC #2013-09B 6
the honesty and integrity of a registrant and must be reported to the Commission so that it can determine whether or not further action is required to safeguard members of the public and the reputation of the industry as a whole. [47] Mr. Dominguez s conduct is similarly serious to that of the registrant in Dickie. Mr. Dominguez s failure to ensure that proper brokerage policies were in place could have led to a greater number of instances of registrants under his supervision failing to comply with the legislation, although there is no evidence that additional breaches occurred. The registrant under Ms. Dickie s supervision committed a serious breach of the legislation. A registrant being convicted of fraud is a very serious matter that must be investigated to ensure that members of the public dealing with the registrant are not in jeopardy. [48] In Bashutski (Re), 2012 SKREC 1 (file #2011-07A) ( Bashutski ), Albert Bashutski was issued an order of reprimand and ordered to pay a $2,000 fine and $1,000 in costs for failing to take reasonable steps to ensure that a salesperson under his supervision was responding to requests for information from a Review Officer of the Commission. [49] There was no evidence of monetary loss to the salesperson s client and Mr. Bashutski did not have a previous sanction history. He apologized for not replying to the Review Officer himself or pushing the salesperson more firmly to reply. [50] The Hearing Committee stated that a broker cannot simply state that he or she thought something had taken place and reiterated that it is the obligation of the broker to supervise their registrants to make sure they are in compliance with the legislation. [51] Mr. Dominguez s conduct is similarly serious to that of the registrant in Bashutski. The Hearing Committee in Bashutski stated that a broker cannot simply say that he thought something had taken place. It is reasonable to extend this principle somewhat to say that a broker or branch manager cannot simply say that he did not realize he was obligated to review and approve the advertising produced and published by registrants under his supervision. [52] In Wouters (Re), 2009 SKREC 26 (file #2008-54A) ( Wouters ) the Superintendent of Real Estate affirmed the Commission s decision to issue Kevin Wouters an order of reprimand and order him to pay a $1,000 fine for permitting a registrant under his supervision to publish advertisements that did not identify his brokerage. Mr. Wouters had met with this registrant to discuss previous non-compliant advertisements, but he failed to implement reasonable efforts to prevent future breaches or satisfactory corrective action. After the meeting, the registrant published a further 42 non-compliant advertisements that were not reviewed by Mr. Wouters prior to publication. Decision and Consent Order SREC #2013-09B 7
[53] Mr. Wouters was contrite and co-operative with the investigation. Prior to the hearing, he implemented policies to deal with future advertising issues. There was no evidence of public harm and Mr. Wouters had no previous sanction history. He was a new branch manager at the time of the infraction. [54] The Hearing Committee noted that brokers and branch managers must make an effort to manage and supervise their agents and to remind them of the need to comply with the legislation. The Hearing Committee stated that there must be procedures and policies in place to minimize the occurrence of breaches of the advertising rules. [55] Mr. Dominguez s conduct is more serious than that of the registrant in Wouters. While neither Mr. Dominguez nor Mr. Wouters had established policies regarding advertising standards, Mr. Wouters, recognizing his responsibilities as a branch manager, had specifically spoken to the salesperson under his supervision about previous non-compliant advertisements. [56] An order of reprimand and a $1,000 fine are appropriate sanctions for Mr. Dominguez s breach of Bylaw 712(e). CONSENT ORDER: [57] In accordance with The Real Estate Act, its Regulations, and the Commission Bylaws, and with the consent of the Broker, Matt Dominguez, and the Investigation Committee of the Saskatchewan Real Estate Commission, the Hearing Committee hereby orders: [58] With respect to Count 1, the charge of professional misconduct contrary to section 39(1)(c) of The Real Estate Act for breach of Saskatchewan Real Estate Commission Bylaw 712(e): a. Matt Dominguez shall receive an order of reprimand for the violation of Bylaw 712(e); b. Matt Dominguez shall, within 30 days of the date of this order, pay to the Saskatchewan Real Estate Commission a $1,000.00 fine for the said violation of the Act; and c. Matt Dominguez s registration shall be suspended if he fails to make payment as set out above. [59] There shall be no order as to costs. Dated at Regina, Saskatchewan this 17 th day of August, 2018. Jeffrey Reimer, Jeffrey P. Reimer, Chairperson Decision and Consent Order SREC #2013-09B 8