Reasons for Decision:
This case has proceeded by way of an
agreed statement of facts and a joint submission as to penalty.
The respondents are Michel Gibeau
("Gibeau") and Coldwell Banker Interactive Realty ("Coldwell
Banker Interactive").
The issue that arises is with respect to
a series of six advertisements.
Gibeau refers to himself as a
"Sales Associate" in the various advertisements. This is not
permitted by section 27 of the Real Estate and Business Broker’s Act.
By subsection 1(7) of the Code of Ethics thereby, the Code of Ethics has
been breached.
With respect to advertisement number one
alone, there was no indication as to whether the telephone number placed
in the advertisement was identified as a business or residence. Further,
the sales person’s name is not to be more prominent than that of the
broker. This is governed by section 28 of REBBA. Finally, a breach of
Rule 12 of the Code of Ethics occurred, as the full name of the Broker
was not included, instead all that was placed in the advertisement was
the name "Coldwell Banker Interactive".
With respect to advertisement number
two, there is no designation of sales person or sales representative
next to Gibeau’s name. Further, once again the broker’s name is not
as prominent as that of the sales person.
With respect to advertisement number
three, a sales person (not charged), A Person should have had the sales
person or sales representative designation following his name. This
requirement was not complied with. Similarly, the broker’s name must
be more prominent than the sales persons. Also, the telephone numbers
must be identified as business or residence.
With respect to advertisement number
four, there are sales persons who are not identified as such. Again, the
broker’s name is not more prominent than that of the sales person’s.
The telephone numbers are not identified as business or residence.
With respect to advertisement number
five, there is no sales representative or sales person designation with
respect to Mr. Gibeau. Finally, the broker’s name is not more
prominent than that of the sales person.
With respect to advertisement number
six, two sales persons for the respondent broker, Coldwell Banker
Interactive, are referred to as "buyer agent" and this does
not comply with the requirement that the designation be that of a sales
person or sales representative.
Given the joint submission, it is found
that Gibeau is in breach of section 19 of RECO By-law Number 10. In
particular, Gibeau was asked to comply with advertising requirements an
order of the Manager of Complaints, Compliance and Discipline. Had he
complied with this, the charge itself would not have even been made. As
a result, Gibeau has plead guilty to section 9 of RECO By-law Number 10.
He is also in breach of Rule 1(7) of the
Code of Ethics that requires that he comply with the Real Estate and
Business Broker’s Act.
Similarly, the broker, Coldwell Banker
Interactive is in breach of section 19, Rule 1(7) and Rule 20 of the
Code of Ethics. Rule 20 requires that a broker shall be responsible for
the professional conduct and professional action of the Members. In this
case, the broker apparently did nothing to prevent the continued use of
information that was not in keeping with either REBBA or the Code of
Ethics, even after the aforementioned order to both the broker and the
individual sales person.
At the hearing, there was a joint
submission as to penalty as well. Gibeau agreed to pay an administrative
penalty of $750 within 30 days of the decision of the Discipline
Committee. Coldwell Banker Interactive also agreed to pay an
administrative penalty of $500 within 30 days of the decision of the
Discipline Committee. Gibeau and Coldwell Banker Interactive also agreed
to pay costs, in the amount of $250 in total.
It is with great hesitation that this
Panel of the Discipline Committee of RECO accepts the joint submission
as to penalty. While it is of course open to both the Respondents and
the Complaints, Compliance and Discipline Division of RECO, in any
particular case, to attempt to reach a satisfactory resolution to a
particular problem, this Panel of the Discipline Committee are
particularly troubled in circumstances whereby a party agrees with
Complaints, Compliance and Discipline for the purposes of avoiding a
hearing and in particular, from taking away the discretion of the
Discipline Committee in a particular circumstance to improve the
appropriate penalty. In this case, both Respondents were warned not to
continue with the type of advertising that was being put forward by the
Respondents. Both Gibeau and Coldwell Banker Interactive were warned by
the Manager of Complaints, Compliance and Disciple that they ought not
to continue to advertise in the form that they were, and notwithstanding
these warnings, continued to do so anyway. In fact, the allegation
statement stipulates:
"On several occasions between
September 8, 2000 and October 25, 2000, Mr. Gibeau and Coldwell have
failed to comply with the Decision dated August 15, 2000 by the
Manager of Complaints, Compliance and Discipline by continuing to
contravene the Rules of the Code of Ethics set out in that
Decision".
As the respondents failed to pay attention to a decision
from the Manager of Complaints, Compliance and Discipline, it was
thought, by this Panel, that the penalties agreed to in the joint
submission were too low under the circumstances. Members of this Panel
agree that, in the future, even faced with a joint submission, there
will be no automatic "rubber stamping" of a joint submission
as to penalty. It should not be thought by either party to a proceeding,
that the Panel is not without an ability to award a higher, or lower,
penalty under particular circumstances. However, in this case the
parties had worked out a settlement and therefore, reluctantly, we have
decided not to interfere in this case.
For further
information, contact Complaints, Compliance and Discipline by e-mail:
ccd@reco.on.ca |
