Case summaries are published in accordance with section 55 of the Real Estate Act. For full versions of the disciplinary decisions summarized below, visit www.reca.ca and click Complaints & Outcomes > Disciplinary Outcomes > Decisions, are publicized to enhance the transparency of RECA’s disciplinary process and to assure consumers that there is an effective framework in place to deal with breaches of the Real Estate Act. To obtain further information about RECA’s policies and procedures, please call 1-888-425-2754.
administrative penalties
November 1, 2008 – January 16, 2009
- 3 breaches of failing to report at the brokerage’s fiscal year end with regard to the operation of its accounts in which money was held in trust [s.90 of the Real Estate Act Rules]
- 2 breaches of failing to file brokerage accounting within the allotted time period [s.91(4) of the Real Estate Act Rules]
- 1 breach of failing to file a Declaration Respecting Absence of Trust Transactions within the allotted period of time [s.92(1) of the Real Estate Act Rules]
- 2 breaches of unauthorized activity [s.17 of the Real Estate Act]
- 1 breach of failing to notify the Executive Director of discipline by any real estate board, real estate association, mortgage broker association, appraiser association, or a professional, occupational or regulatory body [s.40(1)(b) of the Real Estate Act Rules]
Consent agreements
October 2008
Lyle Stewart, real estate broker
Registered with 1071272 Alberta Ltd. o/a Realty 5000, previously known as One percent central realty.
Issues:
- Failure to render competent service [s.6(a) of the Code of Conduct as it was then]
- Participation in the creation of a contract or document that he knew or ought to have known was not legally binding, confusing or did not reflect agreements already in place [s.6(c) of the Code of Conduct, as it was then]
- Acted outside the scope of authority given by a client [s.2(c) of the Code of Conduct,as it was then]
- Failure to deliver a copy of the listing agreement to his client [s.26(1) of the Real Estate Rules, as it was then]
Facts:
- On or about October 20, 2004, Mr. Stewart met with Mr. P and signed a listing agreement for a residential property.
- Mr. P informed Mr. Stewart that he was in the midst of separating from his wife, Mrs. P, with whom he jointly owned the property.
- Mr. Stewart informed Mr. P that he would be seeking Mrs. P’s consent to the listing.
- During the initial meeting between Mr. Stewart and Mr. P, Mr. P left a voicemail with Mrs. P to the effect that he had listed the property and asked her to contact Mr. Stewart.
- According to Mr. Stewart, he called Mrs. P the next night and left her a voicemail asking her to contact him.
- Subsequently, the Calgary Real Estate Board contacted Mr. Stewart to inform him that Mrs. P had contacted them and was upset that her property had been listed without her authorization.
- According to Mr. Stewart, he immediately called Mrs. P and spoke to her. Mr. Stewart met Mrs. P the following week to sign the listing agreement.
- During that meeting, Mr. Stewart assured Mrs. P that he would be representing her and Mr. P equally on the transaction.
- Mrs. P’s initials are missing from several provisions of the listing agreement.
- Mrs. P refused to sign clause 9.4 dealing with knowledge of structural defects as she had not lived in the property for 18 months. According to Mr. Stewart, Mrs. P agreed that should an offer to purchase come in, she would sign a disclosure statement indicating that she had not lived in the property for a considerable time and therefore would not be held responsible in any way for defects, repairs or conditions of the property.
- Mr. Stewart informed Mrs. P at their meeting that he felt the listing price for the property was high, but that Mr. P wanted it that way initially.
- Mr. Stewart advised Mrs. P that he would be dropping the listing price a few weeks after the property was on the market and that if the price dropped, Mrs. P would have to sign an amendment to the listing agreement.
- On or about January 10, 2005, Mr. P asked Mr. Stewart to drop the listing price, which Mr. Stewart did.
- Mr. Stewart did not inform Mrs. P before he dropped the price.
- According to Mr. Stewart, he acted solely on Mr. P’s authority to reduce the listing price based on information given to him at the beginning of the listing by Mr. P regarding the terms of separation between Mr. and Mrs. P.
- Mr. Stewart failed to obtain written amendments to the listing agreement from either Mr. or Mrs. P in order to document the reduction in the listing price.
- Mr. Stewart did not remove the sign from the property until two weeks after the listing terminated on or about February 28, 2005.
- Mr. Stewart did not provide Mr. P with a copy of the listing agreement until after Mr. P called Mr. Stewart to request a copy (and after the listing agreement had expired).
Results:The Hearing Panel found that Mr. Stewart’s conduct was deserving of sanction and ordered him to pay a fine of $4,000, costs of $2,000 and complete educational requirements.
December 2008
Douglas Hay, Real estate broker
D.J. Hay enterprises ltd.
Issues:
- Employment of a person to trade in real estate during a period when she or was not licensed by Council for that purpose [s.20(f) of the Real Estate Act Rules, as it was then]
- Failure to keep monies received in trust in the name of the industry member and designated as trust monies [s.25(1)(b) of the Real Estate Act, as it was then]
- Failure to ensure that the terms of trust governing the use of the money were in writing [s.25(2) of the Real Estate Act, as it was then]
- Failure to be actively engaged in the management of the brokerage [s.21(1)(b) of the Real Estate Act Rules, as it was then]
- Failure to assure that the name of the brokerage was clearly indicated in the course of trading [s.20(c) of the Real Estate Act Rules, as it was then]
- Failure to assure that the business of the brokerage was conducted in compliance with the Real Estate Act, and the associated rules [s.21(1)(e) of the Real Estate Act Rules]
- Payment of a commission or other remuneration, either directly or indirectly, in connection with a trade or dealing in real estate to an individual(s), who was/were not authorized to receive such remuneration, [s.20(g) of the Real Estate Act Rules, as it was then]
- Failure to ensure proper management and control of documents or records related to licensing, registrations, and related regulatory requirements [s.21(1)(h) of the Real Estate Act Rules, as it was then]
- Failure to ensure an adequate level of supervision of associates and other individuals providing services on his behalf [s.21(1)(f) of the Real Estate Act Rules, as it was then]
Facts:
- Mr. Hay repeatedly failed to rectify certain practices of which he had been previously warned and failed to bring his practices into compliance with the Real Estate Act.
- Of particular note is that Mr. Hay engaged the services of two associates to provide property management services, notwithstanding that during the stated period neither individual was authorized by council to provide such services. This occurred notwithstanding an undertaking provided by Mr. Hay on February 23, 1999, wherein he agreed to no longer engage in such behaviour.
- Mr. Hay also failed to correct errors in his trust accounting policies, wherein monies were held in accounts which did not accurately articulate the name of his brokerage.
- Additionally, and despite past sanction for similar behaviour, Mr. Hay failed to assure that the terms of trust governing the use of money were in writing.
- Mr. Hay also failed to maintain an adequate level of involvement in the management of the brokerage, supervision of associates, and management and control of documents.
Results: The Hearing Panel found that Mr. Hay’s conduct was deserving of sanction and ordered that his authorization to trade in real estate as a broker be suspended for a period of five years, he pay a fine of $8,500 and costs of $1,000, and that he complete an educational requirement.
Mr. Hay’s authorization to trade in real estate as an associate will continue once he has completed the educational requirement and register with a properly licensed brokerage in Alberta other than D.J. Hay Enterprises Ltd.
Ellen McNeill, real estate associate
Former associate registered with Zaytsoff Realty (Strathmore) Ltd. o/a RE/Max Realty Horizon, Discover Real Estate Ltd., and Impact Real Estate Group o/a One Real Estate at various and all material times, and currently unlicensed.
Issues:
- Failure to notify the Executive Director of a criminal conviction [s.15 of the Real Estate Rules (2004)and s.40(1)(h) of the Real Estate Rules (2006)]
- Participation in the creation of a contract and/or document(s) that she knew or ought to have known was false or misleading [s.4(d) of the Real Estate Code of Conduct, as it was then]
Facts:
- Ms McNeill was, at all relevant times, registered with and licensed by the Real Estate Council of Alberta.
- During the relevant periods she was registered with three different brokerages
- On August 25, 1999, Ms McNeill was found guilty of a criminal offence, paid a fine of $300 and a conviction was entered into her record.
- In 2002, when completing an application for registration as an associate or associate broker, Ms McNeill answered ‘No’ to question 5 when asked whether or not she had been convicted of any offence in the past five years.
- In a subsequent renewal, Ms McNeill agreed in the Part 3 Declaration to comply with all Real Estate Act, Rules and Code of Conduct and laws that apply to all industry members trading in Alberta.
- In 2004, Ms McNeill answered ‘No’ to question 5 on a new application for registration with a new brokerage.
- In 2007, Ms McNeill answered ‘No’ to question 20 which asks whether or not she had ever been found ‘guilty or convicted of any criminal offence or other offence under any law, province or state, excluding offences for which a pardon has been granted or provincial or municipal highway traffic offences resulting in monetary fines only.’
- Routine follow-up by RECA licensing staff revealed that she had a criminal record and that it appeared she had sworn a false affidavit.
- This information was passed on to RECA Audit and Investigations on or about April 11, 2008.
- Ms McNeill terminated her real estate registration on or about April 11. 2008 and has not traded in real estate since.
- Ms McNeill indicates she wishes to return to the real estate industry.
Results: The Hearing Panel found that Ellen McNeill’s conduct was deserving of sanction and ordered that she pay a fine of $2,500, costs of $500 and complete educational requirements.
John Oliverio, Real estate associate
4TH Street Holdings Ltd. o/a Re/Max Real Estate (Central)
Issues:
- Participation in the creation of a form of communication that the member knew or should have known was false [s. 4(d) of the Code of Conduct, as it was then]
- Participation in the creation of a document that he knew or should have known was not legally binding and was confusing [s. 6(c) of the Code of Conduct, as it was then]
Facts:
- In or around January 2006, Mr. A, an individual, consulted Mr. Oliverio, an associate with Re/Max, about the sale of two apartment buildings.
- Also in or around January 2006, Mr. B, also an associate with Re/Max, was aware of the apartment buildings being offered for sale and identified a possible buyer.
- On or about January 17, 2006, Mr. Oliverio prepared a commission agreement between 12345 Alberta Ltd., the corporate owner of the two properties, which was represented by Mr. A (the seller’s director and shareholder), and Re/Max.
- In this executed contract, the seller, 12345 Alberta Ltd., acknowledged that it was acting on its own behalf and that the brokerage was acting only for the buyer and owed the seller no fiduciary duties.
- On or about January 20, 2006, Mr. Oliverio prepared two purchase contracts for the sale of the two apartment buildings.
- In completing both contracts, Mr. Oliverio identified Ms S and himself, along with the brokerage (Re/Max), as representing the seller, 12345 Alberta Ltd.
- On or about January 21, 2006, Mr. Oliverio prepared and obtained the signature of Mr. A on a Dual Agency Consent Acknowledgement form wherein Mr. A acknowledged that a dual agency was in place between Re/Max, the Seller and the Buyer.
- On or about February 20, 2006, the closing date in the aforesaid purchase contracts, a dispute arose over who within the brokerage would receive a share of the commission.
- During the course of this dispute, Mr. Oliverio gave a verbal unqualified assurance to Mr. A that none of the commission would be received by Mr. B.
- Mr. A relied on this assurance and waived conditions to make the purchase contracts binding.
- Further on or about February 20, 2006, on removal of the conditions, Mr. Oliverio obtained the execution by the seller of a further commission agreement that amended the commission to Re/Max.
- This commission agreement also stated that the brokerage was acting only for the buyer and owed the seller no fiduciary duties.
- At this time, Mr. Oliverio was aware that Mr. B was insisting on receiving a portion of the commission and that this was expected to occur.
- Following this date, Mr. B received part of the commission with Mr. Oliverio’s knowledge and contrary to the assurance Mr. Oliverio gave to Mr. A.
- At no time did Mr. Oliverio disclose to Mr. A that this may happen nor did he disclose to Mr. A that Mr. B received part of the commission.
Results: The Hearing Panel found that Mr. Oliverio’s conduct was deserving of sanction and ordered him to pay a fine of $4,500, costs of $500 and complete educational requirements.
Appeals
November 2008
Rose marie cheveldave
Issues:
- On February 28, 2008, an administrative penalty was issued to Rose Marie Cheveldave for unlicensed activity. Pursuant to the RECA Bylaws, Ms Cheveldave appealed the administrative penalty on the basis that the unlicensed activity was not intentional and due to clerical errors on the part of RECA.
Facts:
- On February 28, 2008, Ms. Cheveldave was issued an Administrative Penalty in the amount of $5,000 for breach of s.17(c) of the Real Estate Act.
- On March 26, 2008, Ms Cheveldave appealed the administrative penalty in writing.
- Ms Cheveldave did not provide the $1,000 security for costs along with her written appeal notice before the appeal period expired or any time thereafter.
- A hearing was held on November 12, 2008, at which the Executive Director made an Application to Dismiss the appeal on the grounds that the requirements for appeals of administrative penalties as laid out in the Real Estate Council Bylaws, s.33(4) (formerly s.35(4)), were not met (the security for costs did not accompany the written notice of appeal) and therefore there was no jurisdiction to hear an appeal.
Results: The Hearing Panel granted the Executive Director’s application to dismiss Ms Cheveldave’s appeal. As a result, the original administrative penalty of $5,000 stands. Further, the Panel ordered Ms Cheveldave to pay costs in the amount of $3,125.66.
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