Good Reputation, Suitability, and Fitness for Individual Licensees

Sections 10(a) and (d) of the Real Estate Services Act (British Columbia) require an applicant for a new licence or licence renewal to satisfy the Superintendent of Real Estate (the “Superintendent”) of the BC Financial Services Authority (“BCFSA”) that they are of good reputation, suitable to be licensed at the level and in the category for which they are applying, and fit to be a licensee. The applicant has the onus to demonstrate they meet the requirements of section 10. A license or renewal will not be granted where an applicant fails to show they meet these requirements. The licence application form includes a series of questions relating to the reputation, suitability, and fitness of an applicant.

The Superintendent requires a criminal record check for all first-time applicants or an applicant that has been unlicensed for more than 90 days. An applicant must disclose all current charges and all convictions, regardless of date (except pardoned convictions or unrevoked criminal record suspensions), including absolute and conditional discharges (unless they are no longer disclosable under the Criminal Records Act) when applying for a licence.

An applicant must also disclose certain concluded and pending civil matters, including bankruptcies, as described below.

Fitness, suitability, and good reputation are essential to the real estate industry because they:

• Serve the public interest and protect consumers;
• Promote high ethical standards and a professional mindset;
• Protect the reputation of the real estate industry; and
• Protect and enhance public confidence in the real estate industry.

If any concerns regarding an applicant’s reputation, suitability, or fitness arise, the Superintendent will consider that application in accordance with this document. For new applicants, good reputation, qualification, suitability, and fitness issues must be addressed before the Superintendent will issue a licence. This may require an investigation by BCFSA.For renewal applications submitted before the applicable deadlines where good reputation, qualification, suitability, and fitness issues arise, the licensee’s licence will be continued under section 12 of the Real Estate Services Act pending conclusion of the investigation and a decision by the Superintendent.

1. Good Reputation and Suitability – Section 10(a) of the Real Estate Services Act

(a) General

Section 10(a) of the Real Estate Services Act states that an applicant for a new licence or licence renewal must satisfy the Superintendent that they are of good reputation and suitable to be licensed at the level and in the category for which the applicant is applying.

When determining an applicant’s good reputation, suitability, and fitness, the Superintendent will review an applicant’s professional reputation and consider whether there is reason to believe that an applicant is likely to act:

• In a way that puts the public interest at risk;
• In a way that their licensing would undermine public confidence in the real estate industry or bring the real estate industry into disrepute;
• In a way that indicates the applicant may be unwilling to act in accordance with regulatory standards or rules of conduct of the Real Estate Services Act, the Real Estate Services Regulation, the Real Estate Services Rules, and the industry;
• In a dishonest manner; or
• Without sufficient financial responsibility.

These general considerations are discussed below in more detail.

(b) Honesty and Candour

Honesty and candour with the Superintendent, BCFSA, and clients is a core requirement of real estate licensees. Licensees act to protect client’s interests in their property, their money, and their information. An honest person is truthful, trustworthy, genuine, and candid. A dishonest person deceives or manipulates the truth by lying, misrepresenting facts, or omitting important facts.

BCFSA and the Superintendent require all real estate applicants and licensees to:

• Answer questions truthfully and completely;
• Respond in a timely manner; and
• Disclose all relevant information when answering questions, even if not specifically requested.

BCFSA and the Superintendent place significant weight on an applicant’s cooperation, honesty, and candour during the application process.

Providing false or incomplete information to the Superintendent may affect an applicant’s suitability to be registered and may result in the refusal of, suspension, or cancellation of a licence. Applicants are advised to read the application questions carefully, and to contact their managing broker and BCFSA if uncertain about how to provide a clear response to a question or issue.

(c) Willingness to Act in Accordance with Regulatory and Industry Standards

Real Estate licensees are expected to conduct themselves in compliance with the standards of the real estate industry. This includes:

• Fulfilling fiduciary obligations and acting in the best interest of clients, particularly ahead of their own;
• Providing competent services;
• Being knowledgeable in their area of work including relevant legal, legislative, and practical considerations;
• Acting ethically;
• Being accountable and taking responsibility for their actions;
• Protecting confidentiality of client or personal information; and
• Treating BCFSA, the Superintendent, clients, other licensees, and third parties with civility, respect, and business courtesy.

In addition, real estate licensees are expected to comply with the Real Estate Services Act, the Real Estate Services Regulation, and the Real Estate Services Rules. Therefore, applicants must:

• Accept the responsibilities and limits imposed on real estate licensees at the level and in the categories for which they apply;
• Respect the regulatory framework established by the legislation governing and regulators overseeing regulated industries that they are members of;
• Adhere to orders or directions of industry regulators, subject to appropriate avenues for review; and
• Respond to regulators and BCFSA in a timely, respectful, and responsive manner.

An applicant’s history of compliance with the standards of other industries and the requirements of other regulatory regimes will be considered in determining an individual’s good reputation and suitability and will be considered in the context of the individual’s fitness, as discussed below.

(d) Bankruptcies and Consumer or Division I Proposals

(i) Personal Bankruptcy, Consumer or Division I Proposal, Unpaid Judgments, and Arrears

Real estate licensees work with their clients to help them make decisions often involving significant amounts of money and can be involved in the actual handling of significant amounts of money. Therefore, an applicant’s lack of financial responsibility may demonstrate a lack of good reputation or suitability.

If the applicant has been discharged from bankruptcy or fully performed a consumer or division I proposal (“proposal”), that will not, on its own, necessarily prevent them from being licensed so long as they can demonstrate that the bankruptcy or performed proposal does not render them unsuitable.

If the applicant has been discharged from bankruptcy, BCFSA will require a copy of the certificate of discharge under the Canadian Bankruptcy and Insolvency Act. If the applicant has fully performed the proposal, BCFSA will require a copy of the certificate of full performance of proposal made under the Canadian federal Bankruptcy and Insolvency Act. If the discharge or performed proposal is more than seven years old and the applicant no longer has access to the necessary documents, they may be asked to provide a written disclosure of the date of discharge or certificate of completion. If the applicant is an undischarged bankrupt, or has not fully performed a proposal, BCFSA will require that the application be accompanied by a copy of the applicant’s statement of affairs made under the Canadian Bankruptcy and Insolvency Act, which is available from the trustee or administrator. If the bankruptcy occurred in another country, BCFSA will require the equivalent of these documents from that jurisdiction.

An applicant’s insolvency history might not preclude them from licensing but may result in the imposition of conditions if the Superintendent believes they are qualified, suitable, of good reputation, and fit to be licensed but is still concerned about the risk they may pose to the public. An example of such conditions may include being prohibited from handling trust funds.

Regardless of whether an applicant is discharged or has completed their proposal, BCFSA will inquire about the circumstances behind the bankruptcy or proposal. Those circumstances will be assessed against the other elements discussed in this document including honesty, candour, compliance with regulatory and legal obligations, good reputation, and fitness.

If there is no evidence of other conduct that might render an applicant unsuitable, BCFSA may issue a licence at the representative or associate broker level despite a previous bankruptcy or a proposal. Such other conduct includes other bankruptcies or proposals and conduct inside or outside the insolvency process. However, in all instances BCFSA will inquire about the circumstances of a bankruptcy or proposal.

If an applicant applies for a licence as a managing broker, given the statutory responsibilities of managing brokers, a proposal or bankruptcy may reflect adversely on an applicant’s good reputation or suitability.

Section 72 [other trust account requirements] of the Real Estate Services Rules requires that at least one related managing broker must be a signing authority on each trust account maintained by a brokerage. Therefore, as part of the Superintendent’s assessment of an applicant’s suitability to be licensed as a managing broker, BCFSA performs a credit check to assess the applicant’s financial circumstances.

The applicant will not be licensed as a managing broker if the credit report indicates that the applicant:

• Is an undischarged bankrupt;
• Has not met in full the conditions of an outstanding proposal;
• Has outstanding judgments against them; or
• Is in arrears on trade accounts.

Where the bankruptcy is recent and arises from the applicant’s own financial mismanagement, as opposed to events outside their control like the death of a spouse, the managing broker applicant might not be licensed unless they can demonstrate they have been rehabilitated by showing a post discharge history of financial responsibility.

(ii) Business Bankruptcy

If an applicant was an owner, director, officer, or partner of a business that was subject to bankruptcy, insolvency, receivership, or Companies’ Creditors Arrangement Act proceedings while the applicant held that position, BCFSA may request further information regarding the applicant’s involvement in the business and the circumstances of the bankruptcy, insolvency, or receivership to assess good reputation and suitability.

(e) Civil Judgments and Pending Litigation

Applicants must disclose whether they have had any judgments rendered against them, including any business in which they were an officer, director, or partner, for any reason whatsoever from any civil court, board, or tribunal in British Columbia or other jurisdictions. This includes foreclosure proceedings. If a judgment has been rendered against an applicant, they should explain whether the judgment has been satisfied. If a judgment has not been satisfied, the applicant must state the amount outstanding and describe any repayment arrangements for each outstanding judgment. In either case, the applicant must describe the circumstances giving rise to the judgment.

Applicants must also disclose whether there are any pending legal proceedings against them. Civil proceedings brought against an applicant will name the applicant as a defendant or respondent. They include foreclosure proceedings and proceedings brought before boards or tribunals like the BC Human Rights Tribunal. Any legal proceeding is no longer pending once the court or tribunal has rendered a judgment, or the proceeding has been permanently stayed, discontinued, or dismissed. For any pending legal proceedings against the applicant, they must describe the claim made against them and the remedies sought and provide a copy of any statement of claim or defence. BCFSA may undertake an inquiry into the circumstances of the claim to determine if they raise issues regarding the applicant’s suitability or good reputation.

Applicants may be licensed despite previous judgments or orders and pending litigation. The Superintendent will consider such litigation on a case-by-case basis. The Superintendent will place particular scrutiny on cases where the nature of the claim could adversely impact public interest, public confidence in the real estate industry, or the reputation of the real estate industry. For example, claims that involve dishonesty or a lack of integrity (fraud, misappropriation, fraudulent misrepresentation, conversion) or abuse of positions of power or authority (breach of trust, breach of fiduciary duty). In such cases, the processing of an application may be delayed until BCFSA completes its investigation and the Superintendent makes a decision on the application.

Civil Judgments, orders, and pending litigation may also be considered under “Fitness” below. When assessing how civil judgments impact an applicant’s suitability, the Superintendent considers the same factors as set out under “Fitness” below regarding criminal convictions.

(f) Criminal Charges

Criminal charges are considered on a case-by-case basis. Where the applicant has an outstanding criminal charge, BCFSA will investigate the circumstances surrounding the charge and may wait to decide whether to licence the individual until the criminal matter resolves. The matter is resolved once the charge is withdrawn, a finding of guilt or an acquittal is entered, a sentence is imposed, and all appeal avenues have been resolved. Because there is a different standard of proof in criminal cases compared to a licensing decision before the Superintendent, an acquittal or stay might not resolve the issue of the applicant’s suitability, good reputation, and fitness.

Where the applicant has a previously resolved criminal charge, BCFSA will investigate to determine how that was resolved and the circumstances of the underlying conduct. BCFSA may also investigate matters resolved by peace bond where no charge is laid. If BCFSA’s investigation or the application reveals a previous conviction, that will be dealt with as discussed below in relation to section 10(d) of the Real Estate Services Act.

Although BCFSA and the Superintendent take all criminal charges seriously, they place particular scrutiny on charges whose nature suggests that issuing a licence could adversely impact the public interest, public confidence in the real estate industry, or the reputation of the real estate industry. For example, charges that involve dishonesty and lack of integrity (fraud, forgery, theft), abuse of positions of power or abuse of the vulnerable (extortion, crimes against children), or charges involving crimes against a person (assault) may preclude issuance of a licence. In such cases, the processing of an application will be delayed until BCFSA completes its investigation and the Superintendent makes a decision on the application.

The Superintendent considers the same factors as set out under “Fitness” below when assessing how criminal convictions impact an applicant’s suitability.

2. 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 licence or licence renewal must satisfy the Superintendent that the applicant has not:

• Been refused a licence under real estate, insurance, mortgage broker or securities legislation in British Columbia or another jurisdiction;
• Held a licence 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 or industry licensing or regulation in any jurisdiction. This includes professional regulatory bodies (e.g. BCFSA, the BC Securities Commission, the Law Society of British Columbia, the College of Physicians and Surgeons of BC), the government, and professional associations that carry out regulatory functions (e.g. real estate member boards). Some discussion of the requirement to adhere to the regulatory framework of other regulatory bodies is noted above regarding good reputation and suitability. Those points apply to fitness as well.

(a) General Factors

A past licence refusal/suspension/cancellation, disciplinary sanction, or criminal conviction will not necessarily be a bar to licensing. However, public confidence in the real estate industry requires licensees to respect and comply with the law. The Superintendent considers convictions under any law of any country when evaluating a person’s respect for the law.

If an applicant has engaged in conduct that triggers examination under section 10(d) as listed above (the “Conduct”), the Superintendent will consider the following, non-exhaustive factors to determine whether an applicant is unfit to be a licensee:

• The nature, circumstances 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, undermine public confidence in the real estate industry or bring the reputation of the industry 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 and likelihood the applicant will repeat the Conduct (as outlined below);
• The applicant’s conduct in the course of resolving legal proceedings arising from the Conduct;
• 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 honesty and candour through the application process;
• Applicant’s professional or business activities since the Conduct; and
• Reliability of the information provided for the purposes of assessing these factors.

(b) Rehabilitation Factors

When determining whether an applicant has been rehabilitated after the Conduct, the Superintendent will consider the circumstances of the Conduct, the time since the Conduct occurred, and what the applicant has done since the Conduct. Below is a non-exhaustive list of criteria the Superintendent may consider. The Superintendent may consider whether the applicant:

• Paid restitution or damages to any person harmed by the Conduct;
• Successfully completed or was discharged early from probation or parole;
• Corrected the business or other practices that created a risk of harm to others;
• Obtained treatment for addiction or substance use conditions that contributed to the Conduct, based on evidence from physicians or other persons competent to testify in that regard;
• Obtained treatment for mental health conditions that contributed to the Conduct, based on evidence from physicians or other persons competent to testify in that regard;
• Completed or is enrolled in formal education or training courses for professional- or self-improvement;
• Volunteers or volunteered with programs designed to provide social benefits;
• Fulfills their personal responsibilities; and
• Demonstrates a change in attitude from when the Conduct occurred, including whether they acknowledge and appreciate the Conduct, the Conduct’s seriousness, the circumstances that lead to the Conduct, and the impact of the Conduct on victims and the public, as evidenced by any or all of the following:
  • The applicant’s own testimony;
  • The testimony of persons who know of the Conduct and are familiar with the applicant’s subsequent and current attitudes and behaviour; and
  • Testimony or statements from probation officers, parole officers or law enforcement officials competent to testify as to the applicant’s social adjustments.

3. Qualification and Conditions Hearings

The Superintendent may refuse to issue a licence under section 13 of the Real Estate Services Act if an applicant does not satisfy the Superintendent that they are of good reputation, suitable, qualified, and fit to be licensed and otherwise meet the requirements of section 10 of the Real Estate Services Act. Before refusing to license the applicant, the Superintendent will provide the applicant an opportunity to be heard.

If the Superintendent is satisfied that the licensee has met the requirements of section 10 of the Real Estate Services Act but considers that conditions on the applicant’s licence are necessary or desirable, the Superintendent may impose conditions on the licence under section 15 of the Real Estate Services Act. Those conditions can be imposed either with the applicant’s consent or after providing the applicant an opportunity to be heard regarding the conditions.

A qualification hearing may be held to determine:

• Whether an applicant is of good reputation, suitable, fit, and qualified to be licensed at the level and in the category of licence for which the applicant is applying;
  • If the applicant is not of good reputation, suitable, fit, and qualified to be licenced at the level and in the category of licence for which they are applying, when the applicant may reapply;
  • Whether, if the licensee is found to have met the requirements of section 10 of the Real Estate Services Act, conditions are necessary or desirable; or
  • If conditions are imposed, what their terms will be.

The conditions imposed on the applicant’s licence may include restricting the licence to a particular brokerage, enhanced supervision of the applicant by their managing broker, scheduled reports from the supervising managing broker, or other measures intended to protect the public, increase confidence in the real estate industry, and avoid damage to the reputation of the real estate industry.

If the applicant cannot demonstrate they are of good reputation, suitable, fit, and qualified to be licensed they will not be licensed. If an applicant meets those criteria but the Superintendent still has concerns, the Superintendent has broad jurisdiction to impose conditions to protect the public, protect the reputation of and public confidence in the real estate industry, and guard against repeat offending.