DECISION OF THE SASKATCHEWAN REAL ESTATE COMMISSION AND CONSENT ORDER Hamilton (Re), 2019 SKREC 3 Date: January 11, 2019 Commission File: 2013-09A IN THE MATTER OF THE REAL ESTATE ACT, C. R-1.3 AND IN THE MATTER OF CARMEN HAMILTON 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, Carmen Hamilton breached Commission Bylaw 727 by advertising a property for sale without written authorization from the owners. 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 #2013-09A 1
[3] Bylaw 727 states: FACTS: A registrant shall only advertise properties for sale or lease, or properties sold or leased when written authorization has been obtained from the owner or the owner s lawful representative. The advertisement shall be in accordance with the lawful instructions of the owner or his or her lawful representative. [4] In accordance with subsection 9(4) of The Real Estate Regulations ( the Regulations ), the Hearing Committee accepts Carmen Hamilton s Statement of Facts and Admissions, which includes the following relevant points: [5] Ms. Hamilton has been continuously registered as a salesperson under the provisions of The Real Estate Act in the Province of Saskatchewan with the Saskatchewan Real Estate Commission since February 29, 2012. [6] Ms. Hamilton has taken the following real estate courses: Phase 1 Real Estate as a Professional Career; and Residential Real Estate as a Professional Career. [7] Ms. Hamilton has completed the continuing professional development seminars each registration year since 2011-2012. [8] Ms. Hamilton is presently registered under the provisions of The Real Estate Act as a salesperson with #101060086 Saskatchewan Ltd. O/A Royal LePage Premier Realty. [9] At all relevant times to this matter, Ms. Hamilton was registered under the provisions of The Real Estate Act as a salesperson with #101156422 Saskatchewan Ltd. O/A Better Homes and Gardens Real Estate Signature Service. [10] On January 30, 2013, Registrant A sent a letter to the Owners of the Property without Ms. Hamilton s knowledge. Although Ms. Hamilton was not aware of the letter, it included her name and electronic signature at the bottom. The Owners were privately selling the Property. The letter was a form letter advertising the services of Ms. Hamilton and Registrant A to owners of properties listed For Sale By Owner. [11] To the best of Ms. Hamilton s knowledge, the Owners did not sign an agency agreement with Better Homes and Gardens Real Estate Signature Service or provide other written authorization for the brokerage to advertise the Property for sale. Ms. Hamilton did not have any contact with the Owners. She understood that the Owners had given Registrant A verbal permission over the phone for Registrant A and Ms. Hamilton to conduct an Open House at the Property. Decision and Consent Order SREC #2013-09A 2
[12] 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 A operated for herself and Ms. Hamilton. Ms. Hamilton did not have login access to this Facebook page. Ms. Hamilton was not aware of the advertisement until it was posted. Her branch manager, Matt Dominguez, was aware of the Open House and the Facebook post because he liked the post shortly after it was made. [13] On February 16, 2013, Registrant A and Ms. Hamilton held an Open House at the Property. They set up "Open House" signs in the neighborhood around the Property and Registrant A had prepared an information package, including an introductory letter soliciting buyers, mortgage information and a specification sheet for the Property, all of which included Ms. Hamilton s name and contact information. Ms. Hamilton did not approve this information package prior to the Open House and did not see it until she and Registrant A arrived at the Property for the Open House. No one attended the Open House, so the information package was not shared with anyone. REASONS: [14] The Investigation Committee and Ms. Hamilton considered the following as relevant in agreeing to the within consent order: Mitigating Factors [15] Ms. Hamilton has no previous sanction history. [16] Ms. Hamilton was co-operative with the investigation. [17] Ms. Hamilton signed a Statement of Facts and Admissions acknowledging her misconduct. Aggravating Factors [18] There are no aggravating factors. Prior Decisions & Other Considerations [19] 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. Decision and Consent Order SREC #2013-09A 3
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. [20] 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. [21] Ms. Hamilton hosted an open house at a property without obtaining written authorization from the owners of the property. 2. The role of the offending member in the breaches. [22] Another registrant at Ms. Hamilton s brokerage was also involved in the open house. This colleague of Ms. Hamilton, who has since ceased to be registered, was the one who made contact with the owners of the Property and arranged to hold the open house. 3. Whether the offending member suffered or gained as a result of the breaches. [23] There is no evidence to suggest that Ms. Hamilton gained any benefits or suffered any losses as a result of her breach of the legislation. 4. The impact of the breaches on complainants or others. [24] There is no evidence of harm to members of the public. The owners of the Property had verbally authorized Ms. Hamilton and her colleague to host an open house at the Property. 5. The need for specific deterrence to protect the public. [25] Ms. Hamilton must be reminded of the necessity of obtaining written permission from the owners of properties prior to advertising said properties for sale. 6. The need for general deterrence to protect the public. [26] General deterrence is needed to emphasize to all registrants that written authorization to advertise a property for sale must be obtained from the property owner in all cases. 7. The need to maintain the public s confidence in the integrity of the profession. [27] Members of the public must be reassured that registrants are obtaining appropriate authorization to market properties for sale. Decision and Consent Order SREC #2013-09A 4
8. The degree to which the breaches are regarded as being outside the range of acceptable conduct. [28] Ms. Hamilton 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 Ms. Hamilton s breach of Commission Bylaw 727? [29] In Pylychaty (Re), 2016 SKREC 1 (file #2013-07) ( Pylychaty ), Lorna Pylychaty was issued an order of reprimand and a fine of $1,000 when she advertised a property for sale without written authorization from both owners. Seller A and Seller B, both owners on title, entered into an agency agreement with Ms. Pylychaty s brokerage, but Seller A did not sign the Brokerage Contract or the attached MLS Data Input Form. [30] Ms. Pylychaty s failure to have Seller A sign the agency agreement was an oversight and was not intentional. [31] Ms. Pylychaty had been registered since 1999 and had no previous sanction history. She was co-operative with the investigation, admitted her misconduct and signed a Statement of Facts and Admissions. Ms. Pylychaty had discussed all the forms with Seller A, so he was aware of the contents of the documents and verbally consented. [32] Ms. Pylychaty was a broker at the time of the breaches. As the person responsible for compliance with the legislation, she should have known better than to proceed without all the requisite signatures. The document Seller A had not signed was integral to the agency relationship between the sellers and the brokerage. [33] Ms. Hamilton s breach is more serious than that of the registrant in Pylychaty. Ms. Hamilton did not have either of the sellers signatures, whereas Ms. Pylychaty had obtained written authorization from one of the two sellers. [34] In Thiessen (Re), 2015 SKREC 5 (file #2012-10) ( Thiessen ), Corey Thiessen was issued an order of reprimand and a $1,000 fine for advertising a property for sale without obtaining the written authorization of both sellers. The sellers were listed as Seller A and Seller B, however, only Seller A signed the listing contract. Although he had obtained a handwritten note stating that Seller A authorized Seller B to act on his behalf for the sale of the property, most of Mr. Thiessen s dealings with respect to the property were verbal and with Seller A who, he understood, forwarded information along to Seller B. Mr. Thiessen and his wife ultimately purchased the Property. [35] Mr. Thiessen had no sanction history and was co-operative with the investigation. There was no evidence of consumer harm and Mr. Thiessen believed that the Decision and Consent Order SREC #2013-09A 5
quality of his documentation had improved greatly since his new broker began reviewing it in October of 2013. [36] Mr. Thiessen had been a registrant for approximately eleven years at the time of the transaction. Registrants must be especially careful with disclosure and keeping clients informed when they are personally involved in the transaction as a buyer or seller. [37] Ms. Hamilton s breach of Bylaw 727 is more serious than that of the registrant in Thiessen. Ms. Hamilton did not obtain signatures from either of the owners of the Property, while Mr. Thiessen had obtained the signature of one of two sellers on a listing contract. [38] In Baker (Re), 2005 SKREC 10 (file #2004-75) ( Baker ), Robert Baker received an order of reprimand and a fine of $500 for breaching Bylaw 727 by providing a feature sheet to his buyer client relating to a seller s property which he had prepared without obtaining a listing agreement or other written approval from the seller or seller s representative. Mr. Baker had only verbal permission from the seller. Mr. Baker received no commission for his involvement in this trade. [39] The Hearing Committee acknowledged Mr. Baker s difficult personal circumstances at the time and considered this a matter of human frailty rather than malice. This and the remorse shown reduced the sanction from what it could have been. [40] The Committee also considered Mr. Baker s previous sanction history and his long experience in the industry. The Committee found that Mr. Baker should have known and followed the simple rules regarding advertising and channeling all transactions through his brokerage. The obligations a registrant owes to his or her client are the same whether or not the registrant is making money on the trade. [41] Ms. Hamilton s breach of Bylaw 727 is similarly serious to that of the registrant in Baker. There is no evidence to suggest that Ms. Hamilton was experiencing difficult personal circumstances at the time of her breach, but she did not have a previous sanction history like Mr. Baker did. [42] In Lane (Re), (file #2001-64) ( Lane ), Robert Lane received an order of reprimand and a fine of $2,000 for breaching Bylaw 727 when his brokerage advertised a property for sale months after the Brokerage Contract had expired and the property had been listed for sale with another brokerage. [43] Mr. Lane was co-operative with the investigation, admitted his mistake, and showed remorse. Mr. Lane changed the brokerage s processes to monitor listings and expiry dates and amended the brokerage s website to remove expired listings. Decision and Consent Order SREC #2013-09A 6
[44] The Hearing Committee decided that the cancellation or suspension of Mr. Lane s certificate of registration was not warranted, even though it was his third advertising violation in a short period of time. If his violations had been of more serious nature and involved consumer harm, suspension or cancellation may have been warranted. [45] Ms. Hamilton s breach is less serious than that of the registrant in Lane. Unlike Mr. Lane, Ms. Hamilton has no previous advertising violations. Further, Ms. Hamilton is not, and was not at the time of her breach of the legislation, registered as a broker. [46] Baker and Lane were decided in 2005 and 2002, respectively. In 2008, a significant expansion occurred in the Saskatchewan real estate market that drastically increased property values and the commissions registrants could expect to earn on trades in real estate. Sanctions ordered against registrants must keep pace with the impact the changing real estate market and inflation have had on property values or the Commission runs the risk of fines becoming a cost of doing business. [47] An order of reprimand and a $1,500 fine are appropriate sanctions for Ms. Hamilton s breach of Bylaw 727. [48] As Ms. Hamilton has agreed to sign this consent order, there will be no order as to costs. CONSENT ORDER: [49] In accordance with The Real Estate Act, its Regulations, and the Commission Bylaws, and with the consent of Carmen Hamilton, and the Investigation Committee of the Saskatchewan Real Estate Commission, the Hearing Committee hereby orders: [50] With respect to Count 1, the charge of professional misconduct contrary to section 39(1)(c) of The Real Estate Act for breach of Bylaw 727: a. Ms. Hamilton shall receive an order of reprimand for the violation of Bylaw 727; b. Ms. Hamilton shall, within 30 days of the date of this order, pay to the Saskatchewan Real Estate Commission a $1,500.00 fine for the said violation of the bylaw; and c. Ms. Hamilton s registration shall be suspended if she fails to make payment as set out above. [51] There shall be no order as to costs. Dated at Regina this 11 th day of January 2019. Jeffrey P. Reimer, Jeffrey P. Reimer, Chairperson Decision and Consent Order SREC #2013-09A 7