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Sections 10(a) and (d) of the Real Estate Services Act (British Columbia) require an applicant for a new license or license renewal to satisfy the Superintendent of Real Estate (the “Superintendent”) that they are of good reputation, suitable to be licensed at the level and the category for which they are applying, and fit to be a licensee. The license application form includes a series of questions relating to the reputation, suitability, and fitness of an applicant. A first-time applicant or an applicant that has been unlicensed for more than 90 days must include with their application an original criminal record check. It is incumbent upon an applicant to ensure that all current charges and all convictions, regardless of date (but excepting pardoned convictions), including absolute and conditional discharges, are disclosed when applying for a license. If any concerns regarding an applicant’s reputation, suitability or fitness arise the Superintendent will consider that application in accordance with these guidelines.
Section 10(a) of the Real Estate Services Act states that an applicant for a new license or license renewal must satisfy the Superintendent that they are of good reputation and suitable to be licensed at the level and the category for which the applicant is applying. When determining an applicant’s good reputation and suitability, the Superintendent will review an applicant’s general business and personal reputation, and consider whether there is reason to believe that an applicant is liable to act
- In such a way that puts the public interest at risk;
- In such a way that their licensing would undermine public confidence in the profession;
- In such a way that indicates an unwillingness to act in accordance with the standards of the profession; and/or
- In a dishonest manner.
The Superintendent does not consider that personal bankruptcy or a consumer proposal necessarily, of itself, reflects adversely on an applicant’s good reputation or suitability. Accordingly, unless there is evidence of other conduct, including other bankruptcies or proposals, and conduct inside or outside the bankruptcy process, which might render an applicant unsuitable, the Superintendent may license an applicant as a representative or associate broker despite personal bankruptcy or a consumer proposal.
If the applicant is an undischarged bankrupt, or has a consumer proposal that has not been fully performed, BCFSA will require that the application be accompanied by a copy of the applicant’s statement of affairs, which is available from the trustee or administrator, made under the Bankruptcy and Insolvency Act (Canada), or the equivalent in another jurisdiction. If the applicant has been discharged from bankruptcy, BCFSA will require that the application be accompanied by a copy of the certificate of discharge under the Bankruptcy and Insolvency Act (Canada), or the equivalent in another jurisdiction. If the applicant has fully performed the consumer proposal, BCFSA will require a copy of the certificate of full performance of proposal made under the Bankruptcy and Insolvency Act (Canada), or the equivalent in another jurisdiction.
With respect to an applicant applying for a license as a managing broker, section 72 [other trust account requirements] of the Rules requires that at least one related managing broker must be a signing authority on each trust account maintained by a brokerage. Therefore, to support the Superintendent’s assessment of an applicant’s suitability to be licensed as a managing broker, BCFSA performs a credit check with the appropriate credit bureau to assess the applicant’s financial circumstances.
- If the credit report indicates that the applicant
- Is an undischarged bankrupt;
- Has not met in full the conditions of an outstanding consumer proposal;
- Has outstanding judgments against them; or
- Is in arrears on trade accounts;
The managing broker applicant will not be licensed.
If an applicant has been an owner, director, officer or partner of a business that has been subject to bankruptcy, insolvency or receivership proceedings during the period when the applicant held that position, BCFSA may request further information regarding the applicant’s involvement in the business to assess good reputation and suitability.
Current criminal charges are considered on a case-by-case basis where the nature of the charge suggests that there could be an adverse impact to the public interest if the applicant is issued a license. For example, charges that speak to honesty and integrity (fraud, forgery) or charges involving crimes against a person (assault) may be subject to greater scrutiny. In such cases, the processing of an application may be delayed until the Superintendent has a better understanding of the matter.
Criminal convictions are considered with respect to the factors set out under “Fitness – Section 10(d) of the Real Estate Services Act”.
Section 10(d) of the Real Estate Services Act states that an applicant for a new license or license renewal must satisfy the Superintendent that the applicant has not:
- Been refused a license under real estate, insurance, mortgage broker or securities legislation in British Columbia or another jurisdiction;
- Held a license that was suspended or cancelled under real estate, insurance, mortgage broker, or securities legislation in British Columbia or another jurisdiction;
- Been disciplined by a professional body; or
- Been convicted of an offence for a reason that reveals the applicant as unfit to be a licensee.
The Superintendent interprets “professional body” for the purposes of section 10(d) to mean any organization engaged in professional licensing and/or regulation in any jurisdiction. This includes professional regulatory bodies (e.g., BCFSA), the government, and professional associations that carry out regulatory functions (e.g., real estate member boards).
A past license refusal/suspension/cancellation, disciplinary sanction, or criminal conviction will not necessarily be a bar to licensing.
If an applicant has engaged in conduct that triggers examination under section 10(d) (the “Conduct”), factors that the Superintendent will take into consideration to determine whether an applicant is unfit to be a licensee (the “Factors”) include the following:
- Nature and duration of the Conduct, and whether the Conduct, if repeated, could pose a risk to the public, pose a threat to a brokerage’s ability to carry on its business safely and efficiently or bring the reputation of the profession into disrepute.
- Circumstances and particulars surrounding the Conduct, including the applicant’s age at the time of the Conduct and whether there were any extenuating circumstances.
- Recency of the Conduct.
- Evidence of applicant’s rehabilitation (as outlined below).
- Sentence, penalty or sanction imposed.
- If the applicant has been convicted of an offence, the seriousness of the offence, including its maximum penalty and whether it is punishable on indictment or summary conviction.
- The applicant’s candour through the application process.
- Applicant’s professional or business activities since the Conduct.
- Reliability of the information provided for the purposes of assessing these Factors.
With respect to whether an applicant has been rehabilitated subsequent to the Conduct, the following criteria may be considered in making that determination:
- Restitution to any person who has suffered losses as a result of the Conduct.
- Successful completion or early discharge from probation or parole.
- Correction of business and other practices resulting in injury to others or potential to cause injury.
- Treatment of addiction and/or substance use conditions that contributed to the Conduct, based on evidence from physicians or other persons competent to testify in that regard.
- Treatment of mental health conditions that contributed to the Conduct, based on evidence from physicians or other persons competent to testify in that regard.
- Completion of or sustained enrollment in formal education or training courses for professional self-improvement.
- Involvement in community or privately sponsored programs designed to provide social benefits.
- Fulfillment of personal responsibilities.
- Change in attitude from that which existed at the time of the Conduct as evidenced by any or all of the following:
- Testimony of applicant;
- Evidence from persons familiar with the applicant’s Conduct and with the applicant’s subsequent attitudes and behaviour patterns; and
- Evidence from probation or parole officers or law enforcement officials competent to testify as to the applicant’s social adjustments.
If an applicant does not satisfy the Superintendent respecting the qualification requirements under section 10 of the Real Estate Services Act, the Superintendent may refuse to issue a license (under section 13 of the Real Estate Services Act) or propose to impose conditions on the license (under section 15 of the Real Estate Services Act). Before refusing to issue a license, or imposing conditions, the Superintendent must give notice to the applicant and provide the applicant with an opportunity to be heard respecting the matter.
A qualification hearing may be held to determine whether an applicant is qualified to be licensed at the level and in the category of license for which the applicant is applying. If the Superintendent decides to license an applicant after a hearing, the Superintendent may impose conditions on the applicant’s license including restricting the license to a particular brokerage and requiring enhanced supervision of the applicant by their managing broker.