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The Saskatchewan Real Estate Commission (the "Commission") is responsible for the regulation of Saskatchewan's real estate industry and to ensure protection of the public interest. One area of responsibility includes conducting investigations into allegations of professional misconduct or professional incompetence by individuals registered pursuant to The Real Estate Act (the "Act"). The Commission conducts formal hearings to determine if a registrant is guilty of professional misconduct or professional incompetence and to make orders pursuant to the disciplinary powers of the Commission. If a registrant waives his or her right to a formal hearing and admits guilt, a mitigation hearing is held to determine penalty. If a registrant is prepared to admit guilt and negotiate an agreed penalty with the Investigation Committee, the registrant can sign a consent order. The Act, The Real Estate Regulations and the Commission Bylaws provide the mechanism for the Commission to deal with complaints against its registrants.

If a registrant is unsure of the Commission's procedures with respect to any of these processes, he or she is encouraged to contact the Compliance Department of the Commission with any questions.




The Investigation

Upon receipt of a written complaint by the Commission or on the initiative of the Commission, a Review Officer reviews the facts and circumstances of the complaint relating to a registrant's conduct. The Review Officer may also request additional information from the complainant. The Review Officer provides the registrant with a copy of the complaint letter or a written summary of the allegation(s). The Review Officer may request verification of any information or material related to the complaint from the registrant whose conduct is the subject of the complaint or from other individuals. Any registrant who is required to provide information to the Review Officer shall do so within the time frames requested. A registrant who is unable to provide the information requested within the allotted time may contact the Compliance Department to request an extension. An extension may be granted if the registrant can provide a valid explanation for his or her inability to provide the requested information in the time allotted.

A registrant who is the subject of an investigation is entitled to seek legal counsel at any point in the investigation process. The Compliance Department will, if requested, forward all communication to and accept responses from the registrant’s lawyer. Engaging legal counsel does not relieve a registrant of his or her obligation to respond to a Review Officer’s requests for information.

After completing a preliminary investigation, the Review Officer provides written recommendations to the Investigation Committee that either no further action be taken or that the Investigation Committee take further action. The Investigation Committee will review the information provided by the Review Officer and determine whether or not further action will be taken. The registrant under investigation, his or her broker and the complainant are sent written notice of the Investigation Committee’s decision.

When the recommendation is that no further action be taken, the complainant is informed in writing of the recommendation and his or her right to make application to the Investigation Committee to review the decision that no further action be taken. The application should include the complainant’s reasons for requesting the review. The application for review and the investigation file will be forwarded to another member of the Investigation Committee to consider.


Statement of Facts and Admissions

After reviewing the Review Officer's recommendation that further action be taken and prior to proceeding with a request for the Commission to hear the matter, the Investigation Committee forwards correspondence to the registrant outlining the alleged violation(s) along with a Statement of Facts & Admissions. The Investigation Committee reminds the registrant that in accordance with Section 38 of The Real Estate Act, the Saskatchewan Real Estate Commission is empowered to make disciplinary orders against registrants. The registrant may waive his or her right to a formal hearing by signing the Statement of Facts and Admissions or a mutually agreed amended version admitting to the violation. By signing the Statement of Facts and Admissions the registrant is admitting he or she is guilty of professional misconduct or professional incompetence.

The Commission does not endorse nor encourage a registrant to admit to professional misconduct when in fact he or she is of the opinion that a violation has not occurred. There is no degree of guilt, either the violation can be proven or cannot be proven. Where a variation may occur is in the disciplinary penalty ordered because of the seriousness of the violation and any extenuating or mitigating circumstances.


Consent Order

If a registrant is prepared to sign a Statement of Facts and Admissions, the Investigation Committee will work with the registrant to come to an agreement as to an appropriate penalty for each breach of the legislation. If an agreement is reached, a Consent Order setting out the facts, breach(es) of the legislation, and penalty is prepared and presented to a Hearing Committee for review. The Hearing Committee may accept or reject the Consent Order. If the Hearing Committee accepts the Consent Order, it will issue a formal Hearing Decision and the registrant will be required to satisfy the penalty imposed.

Negotiations of sanctions with the Investigation Committee are conducted on a “without prejudice” basis. As such, if the Consent Order is rejected by the Hearing Committee, the registrant is not bound by any admissions he or she has made during the negotiation process.

If the Hearing Committee does not accept the terms of the Consent Order, the registrant may choose to make one more attempt to negotiate a Consent Order or request that the matter be set for a mitigation hearing.


Mitigation Hearing

A mitigation hearing is held if a registrant has admitted professional misconduct or professional incompetence through a Statement of Facts and Admissions, but no agreement has been reached with respect to an appropriate sanction. The Hearing Committee must first accept the registrant's Statement of Facts and Admissions prior to hearing arguments by the Investigation Committee and the registrant as to the appropriate disciplinary penalty to be ordered by the Hearing Committee. This is an opportunity for the registrant to present any mitigating factors for the Hearing Committee to consider in its deliberations. In mitigation hearings, the Hearing Committee only determines the disciplinary penalty to be ordered based on the evidence contained in the Statement of Facts and Admissions that is before the Hearing Committee at the hearing. A registrant subject to any hearing proceedings may be represented by another person or lawyer, at the expense of the registrant.

The registrant who is subject to the hearing process, the registrant's broker (if applicable) and the complainant are provided with a written decision within 30 days of completion of the hearing.


Formal Hearing

The task of the Hearing Committee in a Formal Hearing is to hear the complaint and determine whether the registrant is guilty or not guilty of professional misconduct or professional incompetence and to make order(s) for disciplinary penalty if the registrant is found guilty. Prior to the Formal Hearing, copies of all hearing documentation that the Investigation Committee had before it and the disclosure of evidence the Investigation Committee had before it, shall be provided by the Review Officer to the registrant who is subject to the hearing.

In a Formal Hearing, the Investigation Committee's documented evidence is presented and witnesses testify as to the facts of the case. In some circumstances, there is agreement between the Investigation Committee and the registrant who is subject of the hearing, as to all or some of the facts of the case. In these circumstances, the Investigation Committee and the registrant may agree to a Statement of Facts that would be jointly presented to the Hearing Committee.

The registrant (or his or her lawyer) is given the opportunity to cross examine each witness. In addition, Hearing Committee members are given the opportunity to examine each witness. Upon completion of the Investigation Committee's case, the registrant is allowed to present his or her defence. Any of the registrant's witnesses may be cross-examined by the Investigation Committee representative and the Hearing Committee members. The registrant or delegate and the Investigation Committee representative are then allowed a summation of their respective cases. The hearing is adjourned and the Commission or Hearing Committee members deliberate.

Upon completion of its deliberations, the hearing is re-convened and the Hearing Committee provides an oral decision as to whether the registrant is guilty or not guilty of each respective violation and the basic reasons for its findings. If there is a finding of guilt, the Hearing Panel reconvenes and the respective parties are then given an opportunity to speak to disciplinary penalty to be taken pursuant to Section 38 of The Real Estate Act.

The registrant who is subject to the hearing process, the registrant's broker (if applicable) and the complainant are provided with a written decision within 30 days of completion of the hearing.


Appeals

Appealing a Decision or Order of the Saskatchewan Real Estate Commission

A decision or order of the Saskatchewan Real Estate Commission made pursuant to The Real Estate Act may be appealed to the Superintendent of Real Estate.

Appellants should be aware that an appeal of the Commission’s decision or order does not automatically stay their decision or order. The Appellant can apply to the Superintendent for a stay of the decision or order pending the disposition of the Appeal. The Appellant must give the Registrar of the Commission 5 days’ notice of the application to the Superintendent.

Superintendent’s statutory powers

The Superintendent’s power to hear appeals is set out in section 43 of the Act. The Superintendent can hear appeals regarding the following decisions and orders:

(a)	appeals from applicants who have been refused registration or reinstatement of a registration pursuant to section 26 of the Act;
(b)	appeals from registrants whose registration is made subject to any new, additional or amended terms pursuant to section 27 of the Act;
(c)	appeals from registrants who have been found guilty of professional misconduct or professional incompetence pursuant to section 37 of the Act or are subject to a disciplinary order pursuant to section 38 of the Act;
(d)	appeals from registrants whose registration has been cancelled as a result of a criminal conviction pursuant to section 40 of the Act; or
(e)	appeals from brokerages whose certificate of acceptance regarding a prospectus is revoked pursuant to clause 75(2)(a) of the Act.

Appeal Process

Appeals are commenced by filing both a written application for a hearing with the Registrar through the Commission, and an application for an appeal with the Superintendent through the Financial and Consumer Affairs Authority (FCAA) within 30 days of the decision or order being appealed or any further time that the Superintendent may allow. The application for appeal should include the reasons for the appeal. The Superintendent then has 7 days within which to set a date for the hearing. The Superintendent usually consults with Commission staff and the Appellant to ensure a suitable hearing date is chosen.

Upon receiving an application for a hearing, the Registrar files a copy of the following documents with the Superintendent:

(a)	the formal complaint and notice served pursuant to subsection 37(1) of the Act or the report of the investigation committee pursuant to section 40 of the Act;
(b)	the transcript of the evidence presented to the Commission;
(c)	all documents and materials that were before the Commission in the making of the decision or order; and
(d)	the decision or order of the Commission and any reasons provided by the Commission for the decision or order.

The Appellant can obtain a copy of these documents from the Registrar for a fee in the amount of the cost to produce the documents.

The Superintendent reviews the materials provided by the Registrar, plus any other materials provided by Commission staff and the Appellant such as briefs of law that explain the party’s legal position.

Appeal Hearing Process

The appeal hearing is held at the Superintendent’s offices. The Appellant may choose to be represented by a lawyer. At the hearing the Superintendent has an opportunity to hear submissions from both the Appellant and Commission staff, and may ask questions seeking additional information from the respective parties. A court reporter records and prepares transcripts of the hearing, copies of which may be made available to all parties. The Superintendent considers the parties’ arguments along with the documents provided by the Registrar.

Superintendent’s Decision/Order

After giving full consideration to the arguments made and materials provided, the Superintendent then provides the parties with a written decision. The Superintendent may do one or more of the following:

(a)	dismiss the appeal;
(b)	quash a finding of guilt;
(c)	direct a new hearing or further inquiries by the Commission;
(d)	vary the order of the Commission;
(e)	substitute his or her own decision for the decision of the Commission;
(f)	order the Commission to grant or reinstate a registration;
(g)	vary any terms imposed by the Commission on the appellant’s registration;
(h)	order the Commission to issue a certificate of acceptance;
(i)	make any order as to costs that he or she considers appropriate.

The Act does not set a time limit within which the Superintendent must make a decision or issue an order. The time needed to issue a decision or order is partially determined by the complexity of the appeal, and the number of appeals by other parties currently in process. For less complex appeals, it is possible that the Superintendent will issue a decision or order within 120 days. Where the appeal is made on a number of grounds and involves a number of complex legal issues, the Superintendent’s decision or order will take longer to issue.

Appeal of the Superintendent’s Decision/Order

Decisions of the Superintendent may be appealed to the Court of Queen’s Bench, and ultimately to the Court of Appeal.

If the Appellant is not satisfied with the decision or order of the Superintendant, the Appellant may appeal the Superintendent’s decision to the Court of Queen’s Bench. The appeal must be filed within 30 days of the Superintendent’s decision or order and the Appellant must give notice of the appeal to both the Registrar and the Superintendent. The Superintendent must then file all of the documents and materials used to make the decision or order, a copy of the decision or order and a copy of the written reasons for the decision or order with the court. Commission staff and the Appellant may make submissions to the Court of Queen’s Bench regarding the appeal. The Judge of the Court of Queen’s Bench may do one or more of the following:

(a)	dismiss the appeal;
(b)	allow the appeal;
(c)	allow the appeal subject to terms;
(d)	vary the decision or order of the superintendent;
(e)	refer the matter back to the superintendent for further consideration and decision;
(f)	make any order as to costs that the judge considers appropriate;
(g)	make any other order that the judge considers appropriate.

As with an appeal to the Superintendent, an appeal to the Court of Queen’s Bench does not automatically stay the Superintendent’s decision or order. An application to stay the decision or order may be made to the Court of Queen’s Bench, and the staff of the Commission has a right to make submissions regarding the requested stay.

Both the Commission, through its staff, and the Appellant may appeal the decision of a judge of the Court of Queen’s Bench, but only on a question of law. The appeal is made to the Court of Appeal, and must be made within 30 days of the Court of Queen’s Bench judge’s decision.


Considerations for Disciplinary Actions

In considering the disciplinary penalty after a finding or admission of professional misconduct, a number of factors are considered including, but not limited to, the following points:

Representations of the registrant and Investigation Committee.

Was there consumer harm or the potential for consumer harm?

Was the conduct of the registrant harmful to the interests of consumers, other registrants or the Commission?

The seriousness of the violation.

Did the registrant co-operate with the Investigation Committee and Review Officer?

The registration, education and sanction history of the registrant.

Has the registrant acknowledged his/her mistake and shown remorse?

Is this violation similar to previous violation(s)?

Was this a case where there was no previous decision of a similar nature by the Commission or clear direction to registrants on the appropriate conduct of a registrant?

What were the intentions of the registrant?

What were the mitigating factors of the case that may have caused the registrant to act in the manner that led to a finding of professional misconduct?

What would a prudent registrant do in the same circumstance?

What steps have been taken to ensure that a re-occurrence of the violation does not occur?

Was the registrant acting on behalf of a consumer or on his/her own account?

What is the registrant's relationship to his/her client?

Did the registrant know or should he/she have known the proper procedure to handle the situation?

It is the Hearing Committee that has the authority to order a disciplinary penalty pursuant to section 38 of the Act. In reviewing the past Hearing Committee decisions, compared to the Investigation Committee recommendation, one will find that the Hearing Committee has accepted the Investigation Committee's recommendation in some circumstances and has varied the recommendation in others. In some cases, the disciplinary penalty was more severe than the recommendation made and in other cases, the disciplinary penalty was less severe than the recommendation. The variance from the Investigation Committee's recommendation and the final decision in many cases is based on the weight given to specific points of evidence before the Hearing Committee and representations made by the registrant.

A registrant should not consider signing of a Statement of Facts and Admissions as an affordable alternative to a full hearing because of the possibility that the Hearing Committee may order costs of the investigation and hearing process against the registrant. Subclause 38(2)(a)(ii) of the Act gives the authority to the Hearing Committee to order the costs of the investigation and hearing and related costs. Related costs could include the expenses of the Investigation Committee and the Commission and the costs of legal services and witnesses if a registrant has been found guilty of professional misconduct. A registrant is not assessed the investigation and hearing costs if he or she is found not guilty of professional misconduct. If a registrant is truly not guilty of professional misconduct, there should be no impediment to proceeding with a full hearing to determine if the registrant is guilty or not guilty of professional misconduct.

Property of Saskatchewan Real Estate Commission