Foord (Re), 2015 SKREC 6 DECISION OF THE SASKATCHEWAN REAL ESTATE COMMISSION AND CONSENT ORDER Date: July 20, 2015 Commission File: 2011-23 IN THE MATTER OF THE REAL ESTATE ACT, C. R-1.3 AND IN THE MATTER OF DAWN FOORD Before: A Saskatchewan Real Estate Commission Hearing Committee comprised of the following: Randall C. Touet - Chairperson David M. Chow Michael (Mike) L. Duggleby 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, Ms. Dawn Foord breached Saskatchewan Real Estate Commission Bylaw 729 by failing to submit all advertising to her broker or branch manager for approval prior to publication. Count 2: That, contrary to section 39(1)(c) of The Real Estate Act, Ms. Dawn Foord breached section 55(2) of the Act by advertising a trade in real estate without indicating the name of the brokerage for which she is authorized to act. LEGISLATION: Decision and Consent Order SREC #2011-23 1
[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 55(2) of the Act states: No broker, branch manager, associate broker or salesperson shall advertise a trade in real estate unless the advertisement indicates the name of the brokerage for which the broker, branch manager, associate broker or salesperson is authorized to act. [4] Bylaw 729 states: A salesperson or associate broker shall submit all advertising to his or her broker or branch manager for approval prior to publication. FACTS: [5] In accordance with subsection 9(4) of The Real Estate Regulations ( the Regulations ), the Hearing Committee accepts Dawn Foord s Statement of Facts and Admissions, which includes the following relevant points: [6] Ms. Foord 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 October 16, 2009. [7] Ms. Foord has completed the following courses: Phase 1 Real Estate as a Professional Career; Residential Real Estate as a Professional Career. [8] Ms. Foord has completed the continuing professional development seminars each registration year since 2009-2010. [9] Ms. Foord is presently registered under the provisions of The Real Estate Act as a salesperson with 100% Realty Associates Ltd. o/a Re/Max Saskatoon. [10] On or about May 25, 2011, a representative (the Representative ) of a Saskatoon newspaper (the Newspaper ), sent Ms. Foord and her assistant (the Assistant ), an email containing a proof of an advertisement Ms. Foord had submitted for placement in the Newspaper s weekly real estate feature. [11] The advertisement sent by the Representative for proof-reading did not contain any reference to Re/Max Saskatoon, the brokerage for which Ms. Foord is authorized to act. [12] The Assistant replied to the Representative s email and indicated several changes to be made to the advertisement. Ms. Foord was not included in this, nor subsequent, emails. Decision and Consent Order SREC #2011-23 2
Neither the Assistant nor Ms. Foord commented that the name of the brokerage had been omitted from the advertisement. Neither the Assistant nor Ms. Foord requested that the name or logo of Re/Max Saskatoon be added to the advertisement. [13] The Representative sent a second email to the Assistant containing further questions about the information to be included in the advertisement and the open house page. [14] The Assistant replied to the Representative s second email and provided the requested information. Once again, neither the Assistant nor Ms. Foord commented that the name of the brokerage had been omitted from the advertisement, nor requested that the name or logo of Re/Max Saskatoon be added to the advertisement. However, the Assistant included the brokerage name in the open house information she sent to the Representative for changes to the open house page and the listing. [15] A final email from the Representative to the Assistant advised that Ms. Foord and the Assistant would not receive a proof of the final draft for review due to the deadline for publication. [16] The Assistant consented to have the advertisement published despite not having seen a final proof. [17] Ms. Foord did not review a final draft of the advertisement, nor did Ms. Foord submit a final draft to her broker or branch manager for review. [18] Ms. Foord s understanding of her brokerage s policy is that neither her broker nor her branch manager is required to review her advertisements. [19] Ms. Foord s brokerage s advertising policy provides that, at a minimum, all advertising must be provided to the front desk at each office. Ms. Foord did not provide the advertisement to the front desk. [20] The advertisement that appeared in the May 27, 2011 edition of the Newspaper s weekly real estate feature did not contain any reference to Re/Max Saskatoon. REASONS: [21] The Investigation Committee and Ms. Foord considered the following as relevant in agreeing to the within consent order: Mitigating Factors Decision and Consent Order SREC #2011-23 3
[22] Ms. Foord has no prior sanction history. [23] Ms. Foord had been registered for approximately a year and a half when the advertisement was published. Aggravating Factors [24] Ms. Foord did not comply with her brokerage s advertising policy, nor did she provide the advertisement directly to her broker or branch manager for review. Prior Decisions Bylaw 729 [25] In 2008-54, Gary Schriml was issued an order of reprimand and fined $3,000 for violating Bylaw 729 by failing to submit 42 advertisements to his broker/branch manager for review prior to publication between May 10 and July 26, 2008. Mr. Schriml admitted his error and apologized for the incident. Mr. Schriml was experiencing serious medical problems at that time and had open heart surgery on June 19, 2008. In May of 2008, Mr. Schriml had met with his branch manager to discuss his advertising practices as a result of internal concern from a fellow registrant. Mr. Schriml had been in the real estate industry for 24 years at the time of the infraction. The fact that the breaches occurred over a two-month time period, took place after Mr. Schriml discussed proper advertising practices with his branch manager and only ceased after the complaint was filed, were aggravating factors. The Committee stated that the advertising requirements are for the protection of the public and the sanctions must give the public confidence that advertising has to comply with the Act, so as not to confuse the public. All registrants must feel confident that such a breach will be dealt with seriously. [26] Mr. Schriml unsuccessfully appealed this decision on the basis that the quantum of the penalties was excessive when compared with previous decisions, especially as there was less harm associated with his contraventions than with contraventions that recently received much lower penalty decisions from the Commission. The Deputy Superintendent of Real Estate found that the quantum of penalties was reasonable in light of the number of advertisements involved, the length of time over which the advertisements were published and the fact that Mr. Schriml had very recently met with his branch manager and agreed to provide all advertisements to him for review prior to publication. The Deputy Superintendent confirmed the Committee s statements about public protection and dealing seriously with registrants breaches and noted the importance of ensuring the public can have confidence in the transparency of real estate advertisements. [27] Ms. Foord s conduct is not a serious as Mr. Schriml s because her infraction involved a single advertisement published on one occasion. She had not been in the industry as long as Mr. Schriml was when he was found to have violated Bylaw 729. Decision and Consent Order SREC #2011-23 4
[28] In 2009-34, Shahzad Ahmed was issued an order of reprimand and fined $2,000 for violating Bylaw 729 for failing to submit an advertisement to his broker/branch manager for review prior to publication. Mr. Ahmed insisted that he was not aware of the advertisement until he was contacted by the Commission. He believes that a former assistant, who was dismissed after only 25 days of work, was responsible for publishing the advertisement. [29] Mr. Ahmed appealed the decision of the Hearing Committee, arguing that the Committee had not had all relevant evidence before it when the decision was made. Mr. Ahmed and his branch manager both believed that the former assistant was responsible for the advertisement, but the Investigation Committee Representative refused to amend the signed Statement of Facts to include these statements. The Hearing Committee refused to hear these submissions at the hearing on the basis that it was only entitled to consider facts set out in the agreed statement. The Deputy Superintendent of Real Estate found that the Investigation Committee Representative had been misleading when he made the unilateral decision to omit information relevant to penalty determination in his submissions to the Committee and when he denied having knowledge of this information at the hearing. The Deputy Superintendent found that, while it was not appropriate to strike the charge in its entirety, because that would send a message to registrants that a failure to supervise staff could result in a lesser penalty, Mr. Ahmed s noted diligence in having supervisors review his advertisements was a significant mitigating factor. The fine was decreased to $1,000. [30] The Deputy Superintendent confirmed that the advertising requirements are intended to protect the public and to ensure that the public understands who it is dealing with and is not confused by inaccurate advertising. Registrants must comply with the advertising requirements so the public can be confident that registrants are acting fairly and transparently and registrants can maintain a reputation of professional integrity. [31] Ms. Foord s conduct is more serious than Mr. Ahmed s conduct because she was aware of and directed the publication of the advertisement. Although Ms. Foord s understanding of her brokerage s policy was that she was not required to have her ads reviewed, it is a requirement of the Act and so must be done. [32] An order of reprimand and a fine of $1,000 are appropriate sanctions for Ms. Foord s breach of Bylaw 729. Section 55(2) Decision and Consent Order SREC #2011-23 5
[33] In 2008-54, Gary Schriml was also sanctioned for violating section 55(2) of the Act. He was issued an order of reprimand and fined $2,000. The 42 advertisements Mr. Schriml published that were not provided to his broker/branch manager for review also did not contain the name of his brokerage. Mr. Schriml unsuccessfully appealed the decision of the Hearing Committee and the Committee s decision was affirmed. [34] For the reasons set out above, Ms. Foord s conduct is not a serious as the conduct of Mr. Schriml. [35] In 2009-34, Shah Ahmed was also sanctioned for violating section 55(2) of the Act. Mr. Ahmed was issued an order of reprimand and a fine of $2,000. The advertisement Mr. Ahmed did not submit to his broker/branch manager for review also did not contain the name of his brokerage. Mr. Ahmed successfully appealed this decision of the Hearing Committee (see above) and the fine was decreased to $1,000. [36] Ms. Foord s conduct is more serious than Ahmed s conduct because she was aware of and directed the publication of the advertisement. The registrant is ultimately responsible for advertising, even when they employ an assistant. The lack of reference to the brokerage was an oversight, but Ms. Foord reviewed the ad prior to publication and failed to notice the omission. [37] An order of reprimand and a fine of $1,500 are appropriate sanctions for Ms. Foord s breach of section 55(2) of the Act. Costs [38] Because Ms. Foord has agreed to sign this consent order, there will be no order as to costs. CONSENT ORDER: [39] In accordance with The Real Estate Act, its Regulations, and the Commission Bylaws, the Hearing Committee, with the consent of the Salesperson, Dawn Foord, and the Investigation Committee of the Saskatchewan Real Estate Commission, hereby orders: [40] 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 729: a. Dawn Foord shall receive an order of reprimand for the violation of Bylaw 729; b. Dawn Foord 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. Dawn Foord s registration shall be suspended if she fails to make payment as set out above. Decision and Consent Order SREC #2011-23 6
[41] With respect to Count 2, the charge of professional misconduct contrary to section 55(2) of The Real Estate Act: a. Dawn Foord shall receive an order of reprimand for the violation of section 55(2); b. Dawn Foord 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 Act; and c. Dawn Foord s registration shall be suspended if she fails to make payment as set out above. [42] There shall be no order as to costs. Dated at Saskatoon, Saskatchewan this 20 th day of July, 2015. " Randal C. Touet " Hearing Committee Chairperson Decision and Consent Order SREC #2011-23 7