DECISION OF THE SASKATCHEWAN REAL ESTATE COMMISSION AND CONSENT ORDER Hastings (Re), 2018 SKREC 15 Date: September 5, 2018 Commission File: 2015-22 IN THE MATTER OF THE REAL ESTATE ACT, C. R-1.3 AND IN THE MATTER OF JOHN HASTINGS 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. John Hastings breached Saskatchewan Real Estate Commission Bylaw 726(d) by undertaking or authorizing an advertisement that was in bad taste or offensive. 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] Bylaw 726(d) states: Any advertisement or incentive or the offering of any incentive or the participation in an incentive program to the public as an inducement to trade in real estate undertaken or authorized by a registrant shall not be in bad taste or offensive. FACTS: [4] In accordance with subsection 9(4) of The Real Estate Regulations ( the Regulations ), the Hearing Committee accepts John Hasting s Statement of Facts and Admissions, which includes the following relevant points: [5] Mr. Hastings has been continuously registered as a salesperson under the provisions of The Real Estate Brokers Act, The Real Estate Brokers Act, 1987 and The Real Estate Act in the Province of Saskatchewan with the Superintendent of Insurance and the Saskatchewan Real Estate Commission since November 10, 1986. [6] Mr. Hastings has taken the Real Estate 150 course. [7] Mr. Hastings has completed the continuing professional development seminars each registration year since 2001-2002. [8] Mr. Hastings is presently registered under the provisions of The Real Estate Act as a salesperson with Crown Real Estate Inc. O/A Re/Max Crown Real Estate. [9] In the spring of 2015, Purchaser A represented by Registrant A, purchased the Property. [10] The seller of Property A was also represented by a registrant from Registrant A s brokerage. [11] On March 14 or 15, 2015, Mr. Hastings was contacted by a friend who lived in the neighbourhood in which the Property was located. She told him that there was a group home moving into the Property. She wanted to know if anything could be done to stop the group home from moving in or, if not, if there was any way the other residents of the neighbourhood could find out what type of people would be living in the group home. My friend indicated to me that she had learned of the sale of the Property to Purchaser A from the seller of the Property. [12] Purchaser A took possession of the Property on March 16, 2015. [13] On March 16, 2015, Mr. Hastings produced a flyer to drop in mailboxes in the neighbourhood in which the Property was located. The flyer stated: Sounds like
there may be a group home moving into your neighbourhood. Thinking of moving? Please give me a call for a free market evaluation of your home. [14] At the time Mr. Hastings created the flyer, he was not aware that possession of the Property had occurred on March 16, 2015. [15] At the time Mr. Hastings created the flyer, he had not spoken to any registrants of his brokerage about Purchaser A s purchase of the Property. [16] On March 16, 2015, Mr. Hastings presented the flyer to his brokerage management for review. The flyer was approved as requested. [17] On March 17, 2015, Mr. Hastings went to the neighbourhood in which the Property was located and dropped the flyers in mailboxes. [18] On or about March 23, 2015, Mr. Hastings received a letter from a lawyer representing Purchaser A, requesting that Mr. Hastings immediately cease and desist any further distribution of his flyer. [19] Mr. Hastings discussed the letter with his broker and was advised that the brokerage had been getting calls about the flyer and that the flyer had not been a great idea. [20] Mr. Hastings had not produced any other advertisements that mentioned the group home or that were directed at other residents of the neighbourhood in which the Property is located. REASONS: [21] The Investigation Committee and Mr. Hastings considered the following as relevant in agreeing to the within consent order: Mitigating Factors [22] Mr. Hastings was co-operative with the investigation. [23] Mr. Hastings signed a statement of facts and admissions. Aggravating Factors [24] Mr. Hastings has one previous sanction history for breach of section 39(1)(a): Mr. Hastings showed a property to a client. At the time of the showing, the owners were not home and Mr. Hastings gained access to
the property using a lockbox. During the course of the showing, Mr. Hastings had occasion to use the washroom facilities in the basement while his client continued viewing the property on his own. The owner returned during the showing of the property to find the client and Mr. Hastings in separate portions of the house. The sellers asked Mr. Hastings and his client to vacate the property, which they did. Once outside the residence and after some provocation from the seller s son, Mr. Hastings offered his own son s services to settle the disagreement physically. Prior Decisions & Other Considerations [25] 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. 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. [26] 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. [27] Mr. Hastings failed to comply with the advertisement standards set out in the Bylaws when he created and distributed a flyer that was in bad taste. As a result of his decision to create and distribute the flyer, the company that was the subject of the flyer had their lawyer send Mr. Hastings a cease and desist order. 2. The role of the offending member in the breaches.
[28] Mr. Hastings was the only registrant involved in his breach of the legislation. He was not representing any parties to the transaction, but was attempting to gain clients from the neighbourhood in which a group home was being established at a property that had just sold through his brokerage. 3. Whether the offending member suffered or gained as a result of the breaches. [29] There is no evidence to suggest that Mr. Hastings enjoyed any benefits or suffered any losses as a result of his breach of the legislation. 4. The impact of the breaches on complainants or others. [30] The company that had purchased the property was obviously disproving of Mr. Hastings actions. 5. The need for specific deterrence to protect the public. [31] Mr. Hasting must understand the importance of complying with advertising standard as set out in the Bylaws. Further, Mr. Hastings must understand the importance of ensuring advertisements are appropriate and tasteful. 6. The need for general deterrence to protect the public. [32] Registrants must be reminded of the importance of compliant advertising. 7. The need to maintain the public s confidence in the integrity of the profession. [33] Registrants occupy a position of trust with their clients and the public. Members of the public must be assured that their trust in registrants is not misplaced. The public must be confident that registrants will maintain respectable and compliant advertisements. 8. The degree to which the breaches are regarded as being outside the range of acceptable conduct. [34] Mr. Hastings 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. Hasting s breach of Bylaw 726(d)? [35] While there is no previous sanctions under Bylaw 726(d), there are several under the broader Bylaw 726. [36] In Miller (Re) (file #2000-04) ( Miller ), Mr. Miller received a $500 fine and was issued an order of reprimand when he breached Bylaw 726 by authorizing a radio advertisement stating that Re/Max PA Realty sold more houses than all
other offices combined, which was untrue. Mr. Miller admitted that the advertisement was factually incorrect. [37] The Committee in Miller noted Mr. Miller s co-operation with the investigation and his ready admissions of his errors. Mr. Miller had no previous sanction history and his actions were not a deliberate attempt to mislead. [38] The Committee noted that disciplinary action in these types of cases serve as a deterrent to ensure advertisements are within guidelines of legislation. Disciplinary action also serves as a general deterrent to ensure the public has confidence in the real estate industry, and that this type of violation is taken seriously and that registrants understand the importance of listing accurate advertisements. [39] While factually, the registrant in Miller s breach is quite different from that of Mr. Hastings, it still involved an advertisement that was not compliant with the legislation, and that had the potential to offend others. However, Mr. Hastings breach is arguably more serious than that of the registrant in Miller. Mr. Hastings took the initiative to create and distribute the flyer, directly referencing the group home that was moving into the neighbourhood. Mr. Hastings actions were deliberate. [40] In Cranston (Re), 2013 SKREC 1 (file #2012-02) ( Cranston ), Mr. Cranston received a $2,500 fine, a letter of reprimand, and was ordered to pay $1,083 in hearing costs when he breached Bylaw 726 when he placed an ad that referred to himself as the Broker/Owner of Homesense Realty in Swift Current when the branch office had not yet opened, and, in fact, never opened. [41] The Committee noted that, despite Mr. Cranston s intention to open a brokerage in Swift Current in the future, his inaccuracy was blatant and unnecessary. The Commission stressed the importance that all brokerages ensure their advertising is completely accurate for the protection of the public and to maintain the integrity of the real estate industry in the province. [42] Mr. Hastings breach was not as serious as that of the registrant in Cranston. While Mr. Hastings behaviour was inappropriate and without taste, he did not mislead the public into thinking he was the owner and broker of a brokerage that did not exist as Ms. Cranston did. [43] An order of reprimand and a $1,000 fine are appropriate sanctions for Mr. Hastings breach of Bylaw 726(d). [44] As Mr. Hastings has agreed to sign this consent order, there will be no order as to costs.
CONSENT ORDER: [45] In accordance with The Real Estate Act, its Regulations, and the Commission Bylaws, and with the consent of John Hastings and the Investigation Committee of the Saskatchewan Real Estate Commission, the Hearing Committee hereby orders: [46] 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 726(d): a. John Hastings shall receive an order of reprimand for the violation of Bylaw 726(d); b. John Hastings 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. John Hasting s registration shall be suspended if he fails to make payment as set out above. [47] There shall be no order as to costs. Dated at Regina, Saskatchewan this 5 th day of September, 2018. Jeffrey Reimer, Jeffrey P. Reimer, Chairperson