Registrant Information

> Complaint, Investigation, Hearing and Discipline Processes

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"). In addition, the Commission conducts formal hearings to determine if a registrant is guilty of professional misconduct or professional incompetence and/or to make orders pursuant to the disciplinary powers of the Commission. If a registrant waives his/her right to a formal hearing and admits to his/her guilt, a mitigation hearing is held. 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/she is encouraged to clarify any questions with the Review Officer or the Registrar of the Commission.

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. A registrant subject of a complaint shall forward to the Commission a written response to the allegations upon request and within the time frames requested.

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. In addition, the registrant under investigation, his/her broker and the complainant are sent written notice of the recommendation(s).

When the recommendation is that no further action be taken, the complainant is informed in writing of the recommendation and his/her right to make application (including the reasons for requesting the review) to the Investigation Committee to review the recommendation of the Review Officer.

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/her right to a formal hearing by signing the Statement of Facts and Admissions and/or a mutually agreed amended version admitting to the violation. By signing the Statement of Facts and Admissions the registrant is admitting ho or she is guilty of professional misconduct or professional incompetence. When a registrant signs a Statement of Facts and Admissions the Investigation Committee requests the Commission to hold a mitigation hearing.

The Commission does not endorse nor encourage a registrant to admit to professional misconduct when in fact he/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 action ordered because of the seriousness of the violation and any extenuating or mitigating circumstances.

Mitigation Hearing

A mitigation hearing is held after a registrant has admitted professional misconduct or professional incompetence through a Statement of Facts and Admissions. 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 action 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 action 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.

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 may make order(s) for disciplinary action 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/her lawyer) is given the opportunity to cross examine each witness. In addition, Hearing Committee members are also given the opportunity to examine each witness. Upon completion of the Investigation Committee's case, the registrant is allowed to present his/ her defense. 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 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 respective parties are then given an opportunity to speak to disciplinary action to be taken.

"In a Formal Hearing and after deliberations, if the registrant is found guilty, the Hearing Panel reconvenes before the registrant and the Investigation Committee to hear representations regarding proposed sanctions pursuant to Section 38 of The Real Estate Act."

Considerations for Disciplinary Actions

In considering the disciplinary action after a finding of professional misconduct or a mitigation hearing, 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?

Real estate legislation does not allow for an agreement between the Investigation Committee and the registrant as to the disciplinary action that may be ordered. It is the Hearing Committee that has the authority to order a disciplinary action 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 action was more severe than the recommendation made and in other cases, the disciplinary action 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 the costs of the investigation and hearing process. Subclause 38(2)(a)(ii) of the Act gives the authority to the Hearing Committee to order the costs of the investigation and hearing into the registrant's conduct 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/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.

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. The registrant has the right to appeal the Superintendent of Real Estate's (the "Superintendent") decision within thirty days of the written decision or any further time that the Superintendent may allow. The appeal is commenced by serving the Registrar with a copy of the written application for a hearing and filing the application with the Superintendent. The application for appeal should include the reasons for the appeal.

The commencement of an appeal does not stay the decision or order appealed from, but on five days' notice to the Registrar, the appellant may apply to the Superintendent for a stay of the decision or order pending the disposition of the appeal.

The Superintendent may dismiss the appeal, quash a finding of guilt, direct a new hearing, make further inquiries, vary the order of the Commission, substitute his/her own decision of the Commission's decision, order the Commission to grant or re-instate a registrant, vary terms imposed by the Commission on an appellant's registrant, order the Commission to issue a certificate acceptance or make an order as to costs that he/she considers appropriate.

Within thirty days of the Superintendent's decision or order, the person who is subject of a decision may appeal the decision or order to the court by serving the Superintendent and the Commission's Registrar with a notice of appeal and filing the appeal with the court. The commencement of an appeal does not stay the effect of the Superintendent's decision or order, but on five days notice to the Registrar, the registrant may apply to the court for a stay.