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This page outlines and details the stages of the discipline process.
- Possible Outcomes Of Investigations
- Consent Orders
- What to expect during a formal discipline process
- Role of a Licensee in Formal Hearings
- Role of a Complainant in Formal Hearings
- Witnesses in Disciplinary Hearings
- Conclusion of a Hearing
- Enforcement Expenses
- Appealing a BCFSA Discipline Decision
BCFSA investigates complaints received from consumers and licensees to determine if there has been professional misconduct or a breach of the Real Estate Services Act (“RESA”), the Real Estate Services Regulation (“the Regulation”), or the Real Estate Rules (“the Rules”).
The BCFSA may also investigate on its own initiative if investigators become aware of a situation that suggests that there has been professional misconduct.
The basic purpose of the investigation is to determine whether a licensee has committed:
- Professional misconduct by conduct that:
- Contravenes RESA, the Regulation, the Rules, or the Superintendent of Real Estate’s (“the Superintendent”) requirements;
- Contravenes a licence restriction or licence condition;
- Demonstrates incompetence in performing any activity for which a licence is required;
- Misappropriates or wrongfully converts money or other property entrusted to or received by the licensee in relation to the provision of real estate services; and/or
- Fails to comply with an order of BCFSA, or the Superintendent.
- Conduct unbecoming a licensee if the licensee engaged in conduct that:
- Is contrary to the best interests of the public;
- Undermines public confidence in the real estate industry; and/or
- Brings the real estate industry into disrepute.
Possible Outcomes of Investigations
BCFSA uses a progressive discipline system that includes a range of informal and formal tools to address noncompliance with regulatory requirements.
Informal Resolution or Administrative Action
Some complaints may be closed through informal actions such as letters of advisement or administrative penalties.
Letter of Advisement
A letter of advisement is a warning letter that is sent to the licensee to notify the licensee that following the investigation of a matter, the Superintendent is satisfied that a contravention of the Rules has occurred, and to direct the licensee to take appropriate remedial action.
A letter of advisement issued to a licensee by BCFSA addresses issues raised in the original complaint as well as issues identified during investigation. It offers corrective and cautionary guidance to the licensee, with references to specific legislative and/or practice guidance for the licensee to review. BCFSA cautions licensees that letters of advisement are serious matters and may be relevant in considering subsequent complaints and discipline matters.
Administrative penalties are an intermediate step that can be taken between a letter of advisement and enforcement action. The maximum administrative penalty that can be imposed by the Superintendent is $100,000.
More information about Administrative Penalties can be found at Administrative Penalties under the Real Estate Services Act.
Formal Resolution or Disciplinary Action
When more serious noncompliance occurs, or where there is risk or harm to the public as the result of a licensee’s actions, BCFSA can take formal disciplinary action including consent orders, formal discipline hearings, and orders in urgent circumstances.
Consent Orders and Discipline Hearings
RESA allows licensees who have received a notice of discipline hearing and who wish to admit to the allegations in the notice to make a written proposal to the Superintendent to conclude the disciplinary process by way of a consent order.
Consent orders are not informal settlements of discipline matters; they result in formal discipline orders, are published, and become part of a licensee’s public discipline record. If the licensee does not wish to enter into a consent order with the Superintendent, the Superintendent can proceed with a formal discipline hearing.
The maximum discipline penalty for a licensee is $250,000 per contravention and for a brokerage is $500,000 per contravention.
The sanction can include a monetary discipline penalty, remedial education, or requirements for enhanced supervision, the suspension or cancellation of a licence, or other measures that are deemed appropriate by the Superintendent.
Orders in Urgent Circumstances
If the Superintendent believes on reasonable grounds, that there has been conduct by the licensee in respect of which the Superintendent could make a discipline order under section 43 of RESA and that the length of time that it would take to complete an investigation or hold a discipline hearing would be detrimental to the public interest, the Superintendent can issue an Order in Urgent Circumstances.
Through an order in urgent circumstances, the Superintendent can suspend a licensee’s licence, or can impose restrictions on a licence. The Superintendent can also require that the licensee or an unlicensed person stops carrying out certain activities.
If it has been determined that a matter will proceed to a hearing, BCFSA will send a letter to the licensee to advise them that a hearing will be scheduled and a Notice of Discipline Hearing (“NODH”) will be issued, or in the case of unlicensed activity, a Notice of Hearing (“NOH”), be issued to initiate the discipline process. The NODH or NOH will outline the alleged contraventions.
If a licensee wishes to engage a lawyer, they should consult with their lawyer as soon as possible after receiving the Notice of Discipline Hearing.
In the event that a licensee wishes to admit the allegations against them and consents to the Superintendent making a specified order under section 43 of the RESA, the licensee may make a proposal under section 41 to settle the matter by way of a consent order.
This process avoids the necessity of a formal hearing and can save considerable time and expense. A proposal includes an agreed statement of facts, appropriate admissions, and a request as to outcome on terms acceptable to the Superintendent.
Written notice must be given to BCFSA any time before the hearing date. BCFSA’s counsel may assist in the preparation of the proposal, however the proposal is formally the licensee’s proposal.
Monetary penalties and expenses incurred by BCFSA in the enforcement of the provisions of RESA can be recovered by BCFSA through this process.
If a consent order has been negotiated with the Superintendent, the licensee is required to waive their right to appeal.
What to Expect During a Formal Discipline Hearing
A complainant or a licensee involved in a disciplinary hearing may be represented by a lawyer. A complainant or licensee is responsible for the costs of the lawyer that is representing them.
The Hearing is before a Hearing Officer designated by the Superintendent.
Most hearings are conducted by audio or video conference or conducted in writing. Virtual Proceedings Procedures can be reviewed at: Virtual Proceedings Procedures (bcfsa.ca)
The Hearing Officer is responsible for the order and manner in which the hearing is run and will provide instructions on the schedule and format of the hearing and the order of evidence submission at the beginning of the hearing.
Role of a Licensee in Formal Hearings
A licensee whose conduct is in question is entitled to be in attendance throughout the hearing. A licensee who is alleged to have contravened RESA, the Regulation, the Rules, or the Superintendent’s requirements is a compellable witness at a formal hearing.
Sometimes there are a number of licensees involved in a transaction that has resulted in the filing of a complaint. To assess the conduct of all the licensees involved in a fair and impartial manner, it may be necessary to require all licensees to give evidence at a formal hearing.
Role of a Complainant in Formal Hearings
The complainant often plays a pivotal role in proving the allegation in the complaint and may be represented by a lawyer or their representative at the hearing.
All witnesses, including complainants, are examined and may be cross-examined, although such examination and cross-examination must be relevant to the issues being considered by the Superintendent.
Witnesses in Disciplinary Hearings
Under section 42(2) of RESA, the Superintendent has the authority to compel the attendance of witnesses and to require the production of documents.
The licensee is responsible for having any witnesses who they wish to give evidence at the hearing attend to give evidence. Should a witness who is in a position to give relevant evidence be reluctant to attend the hearing, BCFSA may use its authority pursuant to RESA to compel a witness to attend a hearing.
The licensee should provide BCFSA notice within 21 days before the scheduled hearing date should they wish to have BCFSA summon a witness. While the Hearing Officer is not bound to follow the formal rules of evidence, these rules are generally used as a guideline. Witnesses may be required to wait outside the hearing room prior to giving evidence, although they are entitled to attend the balance of the hearing after they have testified. Complainants and any other witnesses called by BCFSA will receive reasonable and necessary travel and lodging expenses in accordance with the Supreme Court Rules.
At times, witnesses may be concerned that their evidence at a BCFSA hearing could be used against them in subsequent criminal or civil proceedings. Witnesses may request protection under the federal and/or provincial Evidence Act. If protection is granted, the evidence cannot be used against them in subsequent criminal or civil cases except in situations where it could be shown that the evidence given at the hearing was inconsistent with the evidence given in the subsequent case. In this case the original evidence could be used in a prosecution for perjury.
Conclusion of a Hearing
The Hearing Officer will then deliberate as to whether there was any wrongdoing by the licensee. A written decision is usually communicated within 30 days to the licensee and to the complainant. Should there be such a finding, a separate penalty hearing to determine penalty and enforcement expenses will normally be held.
The licensee may have the option, prior to the commencement of the discipline hearing, of having both stages of the hearing heard together by signing a waiver foregoing their right to a separate hearing as to penalty and enforcement expenses. Having signed a waiver, the licensee may revoke that waiver at any time up to the conclusion of all the evidence during the discipline hearing.
In certain circumstances, despite having received a request for a waiver by a licensee, the two-hearing model will be employed due to either the complexity of the issues or the existence of the licensee’s previous discipline record. When a separate hearing with respect to the issues of penalty and enforcement expenses is held, the Superintendent may invite written or oral submissions on penalty and enforcement expenses.
Enforcement expenses recoverable against a licensee by BCFSA under RESA under s. 44 and the Regulation s. 4.4 are as follows:
- For investigation expenses, $100/hour for each investigator; and
- For an audit carried out during an investigation leading to a hearing,
- $150/hour for an auditor regularly employed by BCFSA, and
- In any other case, $400/hour.
For reasonably necessary legal services:
- $150 per hour for a BCFSA lawyer; and
- In any other case, $400/ hour for any other lawyer.
Appealing a BCFSA Discipline Decision
A complainant cannot appeal a decision of BCFSA.
A licensee affected by a decision of BCFSA may appeal that decision by filing a Notice of Appeal with the Financial Services Tribunal (“FST”) within 30 days of the date of the decision, together with the FST appeal fee of $850. Complete instructions on filing a Notice of Appeal are available on the Financial Services Tribunal’s website at www.fst.gov.bc.ca or by calling (250)387-3464. Licensees may also write to:
Financial Services Tribunal
PO Box 9425 Stn Prov Govt.
Victoria BC V8W 9V1