What happens at a formal hearing?
For each case that is referred to a discipline hearing, a Discipline Hearing Panel is chosen from the members of the Discipline Committee and the Hearing Member Pool. See Committees for more information. The Discipline Hearing Panel consists of at least three members, one of whom is named the Discipline Hearing Panel Chairperson.
Notice of Hearing and Disclosure of Evidence Statement
The Industry Member is notified of the discipline hearing at least 30 days prior to its date (the Notice of Hearing). A Disclosure of Evidence Statement is enclosed with the Notice of Hearing. The Disclosure of Evidence Statement provides the Industry Member with a brief description of the witnesses who may be called by the prosecutor (the person prosecuting the case on behalf of the Registrar) as well as copies of the documentation that the prosecutor may present as part of the Registrar's evidence. The Industry Member is not obligated to provide a similar Disclosure of Evidence Statement.
Parties to the Discipline Hearing
The parties to the discipline hearing are the Commission and the Industry Member. The Commission may be represented by a lawyer, the Compliance Officer, or another person appointed by the Registrar. This person takes the role of prosecutor. The Industry Member can choose self representation or legal representation, provided that five days' prior notice has been given.
The Discipline Hearing Panel can also retain legal counsel to advise it on matters of law and procedure. However, the Discipline Hearing Panel is does not have to provide notice to the parties. The lawyer for the Discipline Hearing Panel will be independent from the lawyer for either the Industry Member or the prosecution.
The complainant is not a party to the proceedings, however, the complainant may be a witness called by one of the parties.
At the start of the hearing, the chairperson sets the stage and describes the procedure. The witnesses are called into the hearing room one at a time, are either sworn or affirmed, give their testimony and are then asked to leave the room. Witnesses (other than the Industry Member) are only permitted in the hearing room during their testimony and cross-examination. The hearing is either audio or video taped or a recording secretary takes notes for a written transcript.
The prosecution has the onus of proving all allegations against the Industry Member (also called the burden of proof). This means that the Industry Member is presumed innocent until the prosecution puts enough evidence before the Hearing Panel to convince it, on a balance of probabilities (more likely than not) that the Industry Member did what is alleged in the Allegation Statement. A balance of probabilities is a less stringent test than the true criminal burden of proof beyond a reasonable doubt.
Presenting the Case and Evidentiary Matters
Because the prosecution has the onus of establishing its position, the prosecutor proceeds first. The prosecutor usually starts with an opening statement and then presents the case through submissions, witnesses' testimony and/or documentary evidence. The prosecutor's witnesses testify. First, the prosecutor asks them questions in order to have them explain their version of the events. The Industry Member then has the opportunity to cross-examine these witnesses, subject to the right of the prosecutor to re-examine, for clarification purposes only.
After the prosecutor presents the case, the Industry Member presents their position through submissions, witnesses' testimony and/or documentary evidence. The Industry Member's witnesses testify. First, the Industry Member asks them questions in order to have them explain their version of the events. The prosecutor then has the opportunity to cross-examine these witnesses, subject to the right of the Industry Member to re-examine, for clarification purposes only. After all of the evidence has been presented, each party may present a short summation, in the same order—prosecutor, Industry Member and then prosecutor for clarification purposes only. The Panel adjourns for a short time and reconvenes the hearing to render or reserve their decision.
If the Panel’s finds the Industry Member not guilty on all of the charges, the charges are dismissed and the hearing is over. If the Panel finds the Industry Member guilty of any of the charges, the penalty phase of the hearing takes place. The prosecutor may make recommendations for penalties in their summation. The Industry Member may also address penalties in the summation.
The Panel may ask questions of the parties, however, it is not the Panel’s function to present the evidence on behalf of either party.
Documents can be introduced into evidence when and if they become relevant. After a witness refers to a document it is introduced into evidence and marked as an exhibit.
Parties should ensure that they bring enough copies of each document for the Panel members, the recording secretary and the other party.
The discipline hearing is not governed by strict rules or evidence. It is governed by the best evidence rule, which means that there is a continuum of evidence from good to bad and the Panel weighs all the evidence received according to the continuum. The Panel has the power to admit any evidence, including hearsay evidence, and determines what weight to give each piece of evidence when making its decision. The parties should ensure that they provide all of their evidence at the Hearing since an appeal is a not re-hearing and no new evidence will be permitted at the appeal. See Appealing a decision for more information.
The Discipline Hearing Decision
The Panel returns their decision in writing, with reasons, which is forwarded to the Industry Member and the Registrar within 10 days of the decision.
The Panel may levy one or more penalties as set out in Section 19 (1 and 2) of the Act. In addition a penalty, the Panel may award the costs of the Discipline Hearing Panel against the Industry Member as permitted under Section 19 (3) of the Act.
If the Industry Member fails to comply with the decision of the Discipline Hearing Panel within the time frame specified in the decision (except where an appeal is permitted and is commenced) the Registrar may suspend the Industry Member's license.
How long does the complaint, investigation, and disciplinary process take?
There is no established time frame for this process. Some complaints can be dealt with more quickly than others depending on the nature of the complaint and the complexity of the investigation. However, it is the Commission's intent to deal with all complaints and investigations in a timely manner to ensure that the public interest is properly served. On average the process takes four to eight months.
What happens if the Register decides a licensee has violated real estate regulations?
In the majority of cases, the Registrar offers the licensee a proposed Settlement Agreement which outlines the alleged violations and corresponding penalty.
If the licensee accepts the terms of the Settlement Agreement , the Registrar recommends acceptance to the Commission's Complaint Review Committee, which is an extension of the Commission's Discipline Committee.
If the Complaint Review Committee accepts the Settlement Agreement the licensee must satisfy the penalty imposed and the violation goes on public record. If the Complaint Review Committee rejects the Settlement Agreement it may recommend alterations to the Agreement or it may recommend that the matter be dealt with by the Commission's Discipline Committee through a formal hearing.
Cases are also referred to a formal hearing if the Registrar deems that the alleged violation should be heard by the Discipline Panel or if the licensee rejects the terms of the Settlement Agreement.
If the Registrar decides that no further action is to be taken, can I appeal this decision?
If you are dissatisfied with the Registrar's decision that no further action be taken, you can apply for a review of the decision by forwarding a written request to Registrar's attention. Your request must contain new supporting evidence and reasons for consideration, and must be received within twenty (20) business days of receiving the Registrar's written decision. Review requests meeting these criteria are submitted to the Commission's Complaint Review Committee for deliberation.
What will the Registrar do after reviewing the investigation report?
After reading the investigation report the Registrar will do one of the following:
- Direct that no further action be taken if the Industry Member has not violated real estate regulations or if there is insufficient evidence to support a violation.
- Charge the Industry Member with violating the Act, Bylaw or Regulations under the appropriate section.
What powers does the investigator have?
Under the Real Estate Trading Act, the investigator may inquire into and examine the business affairs of the person subject to the investigation, and may examine and inquire into:
- The actions of Industry Members
- Any books, papers, documents
- Correspondence, communications, negotiations
- Transactions, investigations
- Loans, borrowings and payments to, by, on behalf of or in relation to or connected with the complaint
- Every Industry Member who is subject to an investigation must co-operate in the investigation or risk having their license suspended.
Will my complaint automatically lead to an investigation?
No, all complaints are first reviewed by the Commission's Registrar to determine whether or not the complaint meets the following criteria:
- Does the complaint fall within the Commission's jurisdiction?
- Does the complaint provide sufficient indication that an Industry Member may have violated real estate regulations?
How am I notified as to the status of my complaint?
Upon receipt of your written complaint, the Compliance Investigator will respond back to you advising as to whether your complaint will be investigated.
Unless additional information is required from you, the Compliance Investigator will not contact you again until a decision has been made by the Registrar and approved by the Complaint Review Committee.
Once the Registrar's decision has been approved you are notified in writing of the decision and in the case where an Industry Member has been charged, you will be advised of the specific violation and the penalty imposed.
Are complaints public information?
No, pending complaints and investigations are not public information; however, disciplinary action resulting from a complaint or investigation is public, and will be published in the Commission’s next newsletter.
What are my obligations after I submit my complaint?
As the person or entity making the complaint, you are not a party to the proceedings. You may be contacted by the Compliance Investigator during the investigation and if the matter proceeds to a discipline hearing, you may be called as a witness.
What is the complaint process?
When an investigation file is opened, the Industry Member who is the subject of the complaint is forwarded a copy of the written complaint. The Compliance Officer obtains a written response from the Industry Member and if necessary, information from third parties. The Compliance Officer prepares a report summarizing the investigation and submits the report to the Registrar.
Can I withdraw my complaint?
After a complaint becomes an investigation only the Commission's Registrar can withdraw the complaint.
What documentation needs to be attached to the complaint?
A complaint needs to include any and all documents that are pertinent and/or support the allegations of your complaint. Send photocopies of your documents. Do not send the originals! Keep the original documentation for your personal files.
How do I determine if my situation warrants a complaint?
You can call our office at 1-800-390-1015 (toll free) or 468-3511 (HRM) and discuss the matter with the Commission staff. The Commission handles questions about the Real Estate Trading Act and By-Law, as well as questions regarding real estate transactions; however, the Commission staff cannot answer legal questions (only lawyers can answer legal questions).
How do I file a complaint?
You can file a complaint by completing the Complaint form and Permission to share form. If you are unable to complete the form online, you can call our office at 1-800-390-1015 (toll free) or 468-3511 (HRM) to have a form mailed or faxed. You can discuss your complaint with the Commission staff in person or over the phone, however, to have your complaint investigated, it must be in writing.
What can’t the Commission do about my issue?
The Commission cannot provide the following information or investigate the following types of problems or situations:
- Award damage settlements to complainants
- Provide you with personal information about a licensee
- Tell you if a licensee has ever had a complaint filed against them
- Give you a legal opinion on how the Real Estate Trading Act, the Commission Bylaws or Commission Policies will apply to your particular situation/li>
- Tell you whether or not your situation constitutes a violation of real estate regulations without completing an investigation/li>
- Order a licensee to cancel a listing agreement, stop the sale of a property or nullify a purchase and sale agreement/li>
- Mediate or assist in resolving commission disputes/li>
- Give you a legal interpretation of clauses contained in real estate contracts/li>
- Recommend the services of a particular real estate licensee/li>