Trust in Real Estate Services Act, 2020 — Bill 145 (42nd Parliament, 1st Session)

Bill 145, 42-1

Ontario — Bills

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Bill 145, Trust in Real Estate Services Act, 2020

Thompson, Hon. Lisa M. Minister of Government and Consumer Services

Royal Assent received. Statutes of Ontario 2020,

chapter 1

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Bill 145 Royal Assent (PDF)

EXPLANATORY

NOTE

This Explanatory Note was written as a reader’s

aid to Bill 145 and does not form part of the law.

Bill 145 has been enacted as

Chapter 1 of the Statutes of Ontario, 2020.

The

Bill makes various amendments to the Real Estate and

Business Brokers Act, 2002 . The amendments include the following:

1. The

Act is renamed the Trust in Real Estate Services Act, 2002 .

2. The

Act currently prohibits trading in real estate without registering under the

Act, subject to various exemptions. The Bill creates a new exemption in

respect of personal real estate corporations and prescribed members of such

corporations. This exemption is subject to prescribed conditions.

Section

10 of the Act currently states that an applicant that meets prescribed

requirements is entitled to registration or renewal of registration by the

registrar unless specified conditions apply. This provision is amended to

provide that the applicant is entitled to registration or renewal of

registration by the registrar if, in the registrar’s opinion, specified

conditions have been met. The list of matters that the registrar takes into

consideration with respect to the applicant and interested persons is expanded

to include their past financial position, past conduct and any contraventions

of the code of ethics under the Act. The registrar must also be satisfied that

granting the registration or renewal is not contrary to the public interest.

4. The

Act currently provides for the establishment of a discipline committee and an

appeals committee. The Bill abolishes the appeals committee and provides for

appeals from decisions of the discipline committee to instead be handled by the

Licence Appeal Tribunal.

5. The

discipline committee’s jurisdiction is broadened beyond the code of ethics

under the Act to include determining whether a registrant has contravened any provisions

of the Act itself or other regulations under the Act. The discipline committee

is also given authority to make orders applying conditions to, suspending or

revoking a registration.

6. A

new

Part is added to the Act to authorize an assessor to order payment of an administrative

penalty against a person if the assessor is satisfied that the person has

contravened or is contravening a prescribed provision of the Act or the

regulations or a condition of registration, if the person is a registrant. Provisions

of the new Part address such matters as the purpose of the penalties, limits on

the amount of the penalties, appeals of orders and enforcement.

Other

amendments address such matters as the registrar’s authority to request information

from registrants and additional regulation-making authority. Consequential

amendments are also made to other Acts.

Bill 145 2020

Act to amend the Real Estate and Business Brokers Act, 2002

Her

Majesty, by and with the advice and consent of the Legislative Assembly of the

Province of Ontario, enacts as follows:

The

short title of the Real Estate and Business Brokers

Act, 2002 is repealed and the following substituted:

Trust in Real Estate Services Act, 2002

(1) Subsection 1 (1) of the Act is amended by adding the following

definitions:

“administrative

penalty” means an administrative penalty imposed under

section 43.2 or, if an

order under that

section is confirmed or varied under

section 43.3, the

administrative penalty as confirmed or varied under

section 43.3; (“pénalité administrative”)

“assessor”

means an assessor appointed under subsection 43.1 (2) who is authorized to

impose an administrative penalty or the registrar acting as an assessor;

(“évaluateur”)

(2) Subsection

1 (1) of the Act is amended by adding the following definition:

“personal

real estate corporation” means a corporation that meets the prescribed criteria;

(“ société immobilière personnelle ”)

(3) The

definition of “real estate” in subsection 1 (1) of the Act is repealed and the

following substituted:

“real

estate” does not include such matters as may be prescribed but includes,

(

a) leasehold

interests,

(

b) businesses,

and

(

c) fixtures,

stock-in-trade and goods connected with the operation of a business; (“bien

immobilier”)

(4) Subsection

1 (1) of the Act is amended by adding the following definition:

“self-represented

party” means a party that meets the prescribed criteria; (“

partie non représentée ”)

(5) The

definition of “year” in subsection 1 (1) of the Act is repealed.

Subsection 3 (3) of the Act is repealed and the following substituted:

Deputy

registrar, duties

(3) A

deputy registrar shall perform such duties as are assigned by the registrar and

shall act as the registrar in the registrar’s absence.

(1) Subsection 5 (1) of the Act is amended by adding “Subject to such

conditions as may be prescribed” at the beginning.

(2) Clause

5 (1) (

k) of the Act is amended by striking out “in respect of any class of

trades in real estate” at the end.

(3) Clauses

5 (1.1) (

a) and (

b) of the Act are repealed and the following substituted:

(

a) a

bank or authorized foreign bank as defined in

section 2 of the Bank Act (Canada);

(

b) a

loan or trust corporation;

(4) Section

5 of the Act is amended by adding the following subsection:

Personal

real estate corporation

(3) Subject

to such conditions as may be prescribed, despite

section 4, registration shall

not be required in respect of a personal real estate corporation and prescribed

members of such a corporation.

Subsection 7 (2) of the Act is repealed and the following substituted:

Branch

offices

(2) Every

branch office of a brokerage shall be under the supervision of a broker and

each such office having more than one salesperson shall be under the direct

management, in accordance with the regulations, of a registrant who meets such

requirements as may be prescribed.

The Act is amended by adding the following section:

Specialist certification

registrant shall hold himself, herself or itself out as a specialist in trading

in any type of real estate unless,

(

a) the

trading in that type of real estate is an area of specialization established

under the regulations;

(

b) the

registrant has obtained such education and satisfied such other criteria as may

be required under the regulations in order to be certified in that area of

specialization; and

(

c) the

registrant is certified, in accordance with the process established in respect

of that area of specialization and that type of registrant under the regulations,

as a specialist in trading in that area of specialization.

Section 9 of the Act is amended by striking out “commission or other”.

(1) Subsection 10 (1) of the Act is repealed and the following

substituted:

Registration

(1) An

applicant is entitled to registration or renewal of registration by the

registrar if, in the registrar’s opinion,

(

a) the

applicant is not a corporation and,

(

i) having

regard to the past and present financial position of the applicant and of all

interested persons in respect of the applicant, the applicant can reasonably be

expected to be financially responsible in the conduct of business,

(ii) the

past and present conduct of the applicant and of all interested persons in

respect of the applicant affords reasonable grounds for belief that the

applicant will carry on business in accordance with law and with integrity and

honesty, and

(iii) neither

the applicant nor an employee or agent of the applicant has made any false

statement in an application for registration or for renewal of registration;

(

b) the

applicant is a corporation and,

(

i) having

regard to its past and present financial position and the past and present

financial position of all interested persons in respect of the corporation, the

applicant can reasonably be expected to be financially responsible in the

conduct of its business,

(ii) having

regard to the past and present financial position of its officers and directors

and of all interested persons in respect of its officers and directors, the

applicant can reasonably be expected to be financially responsible in the

conduct of its business,

(iii) the

past and present conduct of its officers and directors, of all interested

persons in respect of its officers and directors and of all interested persons

in respect of the corporation affords reasonable grounds for belief that its

business will be carried on in accordance with the law and with integrity and

honesty, and

(iv) no

officer or director of the corporation has made any false statement in an

application for registration or for renewal of registration;

(

c) neither

the applicant nor any interested person in respect of the applicant has carried

on or is carrying on activities that are, or will be, if the applicant is

registered, in contravention of this Act or the regulations;

(

d) the

applicant is not in breach of a condition of the registration;

(

e) the

applicant meets any requirements, including any requirements to obtain

education, as may be specified under the regulations;

(

f) the

applicant has complied with any request made by the registrar under subsection

(1.1); and

(

g) granting

the registration or the renewal, as the case may be, would not be contrary to

the public interest.

(2) Subsection

10 (1.1) of the Act is amended by striking out “in the form and within the time

period specified by the registrar” in the portion before clause (a).

(3) Clause

10 (1.1) (

a) of the Act is amended by adding “or to apply conditions to the

registration” at the end.

(4) Subsection

10 (2) of the Act is amended by striking out “as are ordered by the Tribunal”

and substituting “as are ordered by the discipline committee or the Tribunal”.

(1) Clause 12 (1) (

a) of the Act is repealed and the following

substituted:

(

a) designate

a broker who is employed by the brokerage and meets any prescribed requirements

as the broker of record and notify the registrar of the broker’s identity; and

(2) Subsection

12 (3) of the Act is repealed and the following substituted:

Sole

proprietor

(3) A

brokerage that is a sole proprietorship, whether or not it employs brokers

other than the sole proprietor, shall,

(

a) ensure

that the sole proprietor meets any prescribed requirements for being designated

as the broker of record; and

(

b) designate

the sole proprietor as the broker of record.

Subsection 15 (3) of the Act is repealed and the following substituted:

Expiry

of order

(3) If

a hearing is requested under

section 14, the order expires 15 days after the

written request for a hearing is received by the Tribunal but the Tribunal may

extend the time of expiration until the hearing is concluded, if a hearing is

commenced within the 15-day period.

The heading to

Part V of the Act is amended by striking out “Inspection”.

Sections 19, 20 and 21 of the Act are repealed and the following substituted:

Complaints

(1) The

registrar may,

(

a) receive

complaints concerning conduct that may be in contravention of this Act or the

regulations;

(

b) make

written requests to registrants for information regarding complaints; and

(

c) attempt

to mediate or resolve complaints, as appropriate, concerning any conduct that

comes to the registrar’s attention that may be in contravention of this Act or

the regulations.

Request

for information

(2) A

request under clause (1) (

b) shall indicate the nature of the complaint.

Duty

to comply

(3) A

registrant who receives a written request under clause (1) (

b) shall provide

the requested information to the registrar.

Registrar’s

powers

If the

registrar is of the opinion, whether as a result of a complaint or otherwise, that

a registrant has contravened any provision of this Act or the regulations, the

registrar may do any of the following, as the registrar considers appropriate:

1. Give

the registrant a written warning, stating that if the registrant continues with

the activity that led to the alleged contravention, action may be taken against

the registrant.

2. Require

the broker or salesperson to obtain additional education.

3. Refer

the matter, in whole or in part, to the discipline committee.

4. Take

an action under

section 13, subject to

section 14.

5. Take

further action in accordance with this Act.

Discipline

proceedings

(1) The

discipline committee established under this Act is continued for the purposes

of hearing and determining, in accordance with the prescribed procedures,

whether a registrant has contravened any provision of this Act or the

regulations.

Appointment

of members

(2) The

board of the administrative authority or, if there is no designated

administrative authority, the Minister, shall appoint the members of the

discipline committee and, in making the appointments, shall ensure that the prescribed

requirements for the composition of the committee are met.

Result

of determination

(3) If

the discipline committee makes a determination under subsection (1) that a

registrant has contravened a provision of this Act or the regulations, it may,

by order, do any of the following, as the committee considers appropriate:

1. Require

the broker or salesperson to obtain additional education.

2. In

accordance with such terms as may be specified by the committee, require the

brokerage to fund, or to both arrange for and fund, the obtaining of additional

education by brokers and salespersons employed by the brokerage.

3. Despite

subsection 12 (1) of the Safety and Consumer Statutes

Administration Act, 1996 , impose such fine as the committee considers

appropriate, subject to subsection (4), to be paid by the registrant to the

administrative authority or to the Minister of Finance if there is no

designated administrative authority.

4. Suspend

or postpone the obligation to satisfy a requirement mentioned in paragraph 1, 2

or 3 for such period and upon such terms as the committee designates.

5. Apply

conditions to a registration.

6. Suspend

a registration,

i. for

a definite period,

ii. until

conditions specified by the committee are met to the satisfaction of the

registrar, or

iii. for

a definite period and, after that, until conditions specified by the committee

are met to the satisfaction of the registrar.

7. Revoke

a registration if, in the committee’s opinion, the registrant is not entitled

to registration under

section 10.

8. Despite

section 17.1 of the Statutory Powers Procedure Act ,

fix and impose costs to be paid by the registrant to the administrative

authority or to the Minister of Finance if there is no designated

administrative authority.

Maximum

fine

(4) The

maximum amount of the fine mentioned in paragraph 3 of subsection (3) is,

(a) $50,000,

or such lesser amount as may be prescribed, if the registrant is a broker or a

salesperson; or

(b) $100,000,

or such lesser amount as may be prescribed, if the registrant is a brokerage.

Costs

(5) For

the purposes of paragraph 8 of subsection (3), the committee shall fix and

impose costs in such manner as the committee considers appropriate, subject to any

prescribed requirements.

Appeal

(6) A

party to the discipline proceeding may appeal the final order of the discipline

committee to the Tribunal.

Immediate effect

(7) Subject

to subsection (8), an order under paragraph 5, 6 or 7 of subsection (3) takes

effect immediately even if the order has been appealed under subsection (6).

Exception

(8) An

order mentioned in subsection (7) does not take effect immediately if the

discipline committee has,

(

a) specified

a different effective date in the order; or

(

b) granted

a stay of the order until the disposition of the appeal.

Time

for appeal

(9) An

appeal under subsection (6) shall be commenced within 30 days after the

discipline committee sends notice under

section 18 of the Statutory

Powers Procedure Act of the order being appealed.

Parties

(10) The

parties to an appeal are the appellant, the other persons who were parties to

the proceeding before the discipline committee, and any other person added as a

party by the Tribunal.

Power

of the Tribunal

(11) The

Tribunal may by order overturn, affirm or modify the order of the discipline

committee and may order anything mentioned in subsection (3).

Immediate

effect

(12) Even

if a registrant appeals an order of the Tribunal under

section 11 of the Licence Appeal Tribunal Act, 1999 , the order takes effect

immediately but the Tribunal may grant a stay until the disposition of the

appeal.

Payment

of fine

(13) The

registrant shall pay any fine imposed under subsection (3),

(

a) on

or before the day specified in the order of the discipline committee or, if the

fine is the subject of an appeal, on or before the day specified in the order

of the Tribunal; or

(

b) on

or before the 60th day after the date of the last order made in respect of the

fine, if no day is specified in that order.

Additional

education

(14) If

a registrant is required by an order to do anything under paragraph 1 or 2 of

subsection (3) respecting additional education, the registrant shall satisfy

the requirement,

(

a) within

the time period specified in the order of the discipline committee or, if the requirement

respecting additional education is the subject of an appeal, within the time

period specified in the order of the Tribunal; or

(

b) at

the first reasonable opportunity after the last order made respecting

additional education, if no time period is specified in that order.

Public

access

(15) Decisions

of the discipline committee shall be made available to the public in such

manner as may be prescribed.

13 The Act is amended by adding the following

Part:

Part V.1

Inspections and Investigations

Inspectors

Registrar

is inspector

21.1

(1) The registrar

is, by virtue of the registrar’s office, an inspector.

Appointment

of inspectors

(2) The

registrar shall appoint persons to be inspectors for the purposes of conducting

inspections under this Act.

Certificate

of appointment

(3) The

registrar shall issue to every appointed inspector a certificate of appointment

bearing the registrar’s signature or a facsimile of it.

Proof

of appointment

(4) Every

appointed inspector who is conducting an inspection under this Act shall, upon

request, produce the certificate of appointment as an inspector.

Powers

and duties

(5) An

inspector shall have the powers and duties set out in this Act and such other

powers and duties as may be prescribed.

Inspections

21.2

(1) An

inspector may, without a warrant or court order, conduct inspections for the

purpose of,

(

a) ensuring

compliance with this Act and the regulations; or

(

b) ensuring

a registrant remains entitled to registration.

Power

to enter premises

(2) As

part of an inspection, an inspector may, without a warrant or court order,

enter and inspect, at any reasonable time, the business premises of a

registrant, other than any part of the premises used as a dwelling.

Expert

(3) An

inspector conducting an inspection may be accompanied by one or more persons

with special, expert or professional knowledge, and any other persons as

necessary, as the inspector considers advisable.

Powers

on inspection

(4) An

inspector conducting an inspection may,

(

a) examine

records or anything else that is relevant to the inspection;

(

b) demand

the production of a record or any other thing that is relevant to the

inspection;

(

c) on

issuing a written receipt for it, remove for review and copying a record or any

other thing that is relevant to the inspection;

(

d) in

order to produce a record in readable form, use any data storage, information

processing or retrieval devices or systems that are normally used in carrying

on business;

(

e) take

photographs, video recordings or other visual or audio recordings that are

relevant to the inspection; and

(

f) inquire

into all financial transactions, records and other matters that are relevant to

the inspection.

Limitation

re photographs and recordings

(5) A

photograph or recording made under clause (4) (

e) must be made in a manner that

does not intercept any private communication and that accords with reasonable

expectations of privacy.

Written

demand

(6) A

demand that a record or any other thing be produced for inspection must be in

writing and must state the nature of the record or thing required and when the

record or thing is to be produced.

Obligation

to produce and assist

(7) If

an inspector demands that a record or other thing be produced for inspection,

the person having custody of the record or other thing shall produce it for the

inspector within the time provided for in the demand, and shall, upon the

inspector’s demand,

(

a) provide

whatever assistance is reasonably necessary to produce a record or other thing

in a readable form, including using any data storage, processing or retrieval

device or system; and

(

b) provide

whatever assistance is reasonably necessary to interpret a record or other

thing for the inspector.

Return

of things

(8) A

record or other thing that has been removed for review and copying,

(

a) shall

be made available to the person from whom it was removed on request and at a

time and place that are convenient for the person and for the inspector; and

(

b) shall

be returned to the person within a reasonable time.

use of force

(9) An

inspector shall not use force to enter and inspect premises under this section.

obstruction

(10) No

person shall obstruct an inspector conducting an inspection or a person

accompanying the inspector under subsection (3) or withhold from the inspector

or other person or conceal, alter or destroy any record or other thing that is relevant

to the inspection.

Admissibility

of copies

(11) A

copy of a record or other thing that purports to be certified by an inspector

as being a true copy of the original is admissible in evidence to the same

extent as the original and has the same evidentiary value.

(1) The French version of

section 23 of the Act is amended by

striking out “réceptacle” wherever it appears and substituting in each case

“contenant”.

(2) Clauses

23 (2) (b), (

c) and (

d) of the Act are repealed and the following substituted:

(

b) to

make reasonable inquiries of any person, orally or in writing, with respect to

anything relevant to the investigation;

(

c) to

require a person to produce the information or evidence described in the

warrant and to provide whatever assistance is reasonably necessary, including

using any data storage, processing or retrieval device or system to produce, in

any form, the information or evidence described in the warrant;

(

d) to

use any data storage, processing or retrieval device or system used in carrying

on business in order to produce information or evidence described in the

warrant, in any form; and

(

e) to

use any investigative technique or procedure or do anything described in the

warrant.

(3) Subsections

23 (10) and (11) of the Act are repealed and the following substituted:

Compliance

(10) If

an investigator under clause (2) (

c) requires a person to produce evidence or

information or to provide assistance, the person shall produce the evidence or

information or provide the assistance, as the case may be.

Copies

of seized items

(11) An

investigator who seizes any thing under this

section or

section 23.1 may make a

copy of it.

The Act is amended by adding the following section:

Report

when things seized

24.1

(1) An

investigator who seizes any thing under the authority of

section 23, 23.1 or 24

shall bring it before a justice of the peace or, if that is not reasonably

possible, shall report the seizure to a justice of the peace.

Procedure

(2) Sections

159 and 160 of the Provincial Offences Act apply

with necessary modifications in respect of a thing seized under the authority

section 23, 23.1 or 24 of this Act, reading the reference in subsection 160

(1) of that Act to a document that a person is about to examine or seize under

a search warrant as a reference to a thing that an investigator is about to

examine or seize under the authority of

section 23, 23.1 or 24 of this Act.

(1) Clause 25 (1) (

c) of the Act is amended by striking out

“customer” and substituting “self-represented party”.

(2) Subsection

25 (2) of the Act is amended by striking out “clients or customers of a

registrant or former registrant” in the portion before clause (

a) and

substituting “clients of a registrant or former registrant or the protection of

self-represented parties dealing with a registrant or former registrant”.

(3) Clauses

25 (3.1) (

a) and (

b) of the Act are repealed and the following substituted:

(

a) a

bank or authorized foreign bank as defined in

section 2 of the Bank Act (Canada);

(

b) a

loan or trust corporation; or

(4) Clause

25 (9) (

a) of the Act is amended by striking out “clients or customers of the

applicant” and substituting “clients of the applicant, self-represented parties

dealing with the applicant”.

(1) The French version of subclause 25.1 (1) (a) (ii) of the Act is

amended by striking out “réceptacle” and substituting “contenant”.

(2) Subclauses

25.1 (1) (b) (

i) and (ii) of the Act are repealed and the following

substituted:

(

i) in

the course of conducting business for which registration is required under this

Act, the person who is the subject of the allegation referred to in clause (

a) has received money or assets from clients or self-represented parties, and

(ii) the

interests of those clients or self-represented parties require protection.

(3) Subclause

25.1 (2) (b) (ii) of the Act is amended by striking out “customer” and

substituting “self-represented party”.

(1) Subclauses 27 (1) (a) (

i) and (ii) of the Act are repealed and

the following substituted:

(

i) a

bank or authorized foreign bank as defined in

section 2 of the Bank Act (Canada);

(ii) a

loan or trust corporation; or

(2) Subsection

27 (5) of the Act is amended by striking out “one year” in the portion before

clause (

a) and substituting “two years”.

Subsections 28 (1) and (2) of the Act are repealed and the following

substituted:

Notice

of changes to registrar

(1) Every registrant shall, within five days

after the event, provide notice to the registrar of,

(

a) any

change in the registrant’s address for service;

(

b) in

the case of a corporation or partnership, any change in the officers or

directors;

(

c) any

change in the information that was included in a registrant’s application for

registration; and

(

d) any

change to such other information as may be prescribed.

Clause 30 (

c) of the Act is repealed and the following substituted:

(

c) pay

any remuneration to a person referred to in clause (

a) or (b), except if

otherwise provided for in the regulations and in accordance with the

regulations.

Subsection 31 (2) of the Act is repealed and the following substituted:

Same

(2) Except

if the regulations provide otherwise and subject to the regulations, no broker

or salesperson is entitled to or shall accept any remuneration for trading in

real estate from any person except the brokerage which employs the broker or

salesperson.

(1) Subsection 33 (1) of the Act is repealed and the following

substituted:

Prohibition

re: breaking contract

(1) No

registrant shall attempt to induce or induce any party to an agreement in

respect of a trade in real estate to break the agreement for the purpose of

entering into another such agreement.

(2) Subsection

33 (3) of the Act is amended by striking out “commission or other”.

(1) Subsection 35.1 (2) of the Act is repealed and the following

substituted:

Records

(2) A

brokerage acting on behalf of a seller shall, in accordance with the

regulations, retain copies of all written offers that it receives to purchase

real estate or copies of all other prescribed documents related to those offers.

(2) Subsection

35.1 (5) of the Act is repealed and the following substituted:

Disclosure

by registrar

(5) Subject

to subsection (5.1), the registrar shall determine the number of written offers

that the brokerage has received to purchase the real estate and shall disclose

the number of the offers as soon as practicable, or within the period of time

that is prescribed, to the person who requested the inquiry under subsection

(3).

Same

(5.1) Except

in such circumstances as may be prescribed, the registrar shall not disclose

the substance of any of the offers or the identity of the person making any of

the offers.

(1) Subsection 36 (1) of the Act is amended by striking out

“commission or other”.

(2) Subsection

36 (1.1) of the Act is repealed.

(3) Subsection

36 (2) of the Act is amended by striking out “commission” and substituting “remuneration”.

(4) Subsection

36 (3) of the Act is repealed and the following substituted:

Prohibition

(3) No

registrant shall request or enter into an arrangement for the payment of any

remuneration based on the difference between the price at which real estate is

listed for sale or rental and the actual sale price or rental price, as the

case may be, of the real estate, nor is a registrant entitled to retain any

remuneration computed upon any such basis.

Clause 40 (1) (

c) of the Act is amended by striking out “a code of ethics established

by the Minister under

section 50” at the end and substituting “a prescribed code

of ethics”.

The Act is amended by adding the following Part:

Part

VI.1

Administrative Penalties

Registrar

is assessor

43.1

(1) The

registrar is, by virtue of the registrar’s office, an assessor.

Appointment

of assessors

(2) The

registrar shall appoint in writing persons to be assessors who are authorized

to make an order under

section 43.2 imposing an administrative penalty.

Order

for administrative penalty

43.2

(1) An

assessor may, by order, impose an administrative penalty against a person in

accordance with this

section and the regulations if the assessor is satisfied

that the person has contravened or is contravening,

(

a) a

prescribed provision of this Act or the regulations; or

(

b) a

condition of registration, if the person is a registrant.

whom payable

(2) An

administrative penalty is payable to the administrative authority or, if there

is no designated administrative authority, to the Minister of Finance, and is a

debt due to the person to whom it is payable.

Purpose

(3) An

administrative penalty may be imposed under this

section for one or more of the

following purposes:

1. To

promote compliance with this Act and the regulations.

2. To

prevent a person from deriving, directly or indirectly, any economic benefit as

a result of contravening a provision of this Act or the regulations.

Amount

(4) The

amount of an administrative penalty shall reflect the purpose of the penalty

and shall be determined in accordance with the regulations, but the amount of

the penalty shall not exceed $25,000.

Form

of order

(5) An

order made under subsection (1) imposing an administrative penalty against a

person shall be in the form that the registrar determines.

Service

of order

(6) The

order shall be served on the person against whom the administrative penalty is

imposed in the manner that the registrar determines.

Absolute

liability

(7) An

order made under subsection (1) imposing an administrative penalty against a

person applies even if,

(

a) the

person took all reasonable steps to prevent the contravention on which the

order is based; or

(

b) at

the time of the contravention, the person had an honest and reasonable belief

in a mistaken set of facts that, if true, would have rendered the contravention

innocent.

effect on offences

(8) For

greater certainty, nothing in subsection (7) affects the prosecution of an

offence.

Other

measures

(9) Subject

section 43.4, an administrative penalty may be imposed alone or in

conjunction with the exercise of any measure against a person provided by this

Act or the regulations, including the application of conditions to a

registration, the suspension, immediate suspension or revocation of a

registration or the refusal to renew a registration.

Limitation

(10) An

assessor shall not make an order under subsection (1) more than two years after

the day the assessor became aware of the person’s contravention on which the

order is based.

hearing required

(11) Subject

to the regulations, an assessor is not required to hold a hearing or to afford

a person an opportunity for a hearing before making an order under subsection

(1) against the person.

Non-application

of other Act

(12) The

Statutory Powers Procedure Act does not apply to an

order of an assessor made under subsection (1).

Appeal

43.3

(1) In this

section,

“appeal

body” means the prescribed person or, if no person is prescribed, the Tribunal.

Same

(2) The

person against whom an order made under subsection 43.2 (1) imposes an administrative

penalty may appeal the order to the appeal body by delivering a written notice

of appeal to the appeal body within 15 days after receiving the order.

no appeal

(3) If

the person does not appeal the order in accordance with subsection (2), the

order is confirmed.

Hearing

(4) If

the person appeals the order in accordance with subsection (2), the appeal body

shall hold a hearing and may, by order, confirm, revoke or vary the assessor’s

order and the appeal body may attach conditions to its order.

Parties

(5) The

assessor, the appellant and the other persons that the appeal body specifies

are parties to the appeal.

Non-application

of other Act

(6) If

the appeal body is not the Tribunal, the Statutory Powers

Procedure Act does not apply to an appeal under subsection (2).

Immediate

effect

(7) Even

if the appellant appeals an order of the appeal body, the order takes effect

immediately, unless the order provides otherwise, but the Divisional Court may

grant a stay until the disposition of the appeal.

Effect

of paying penalty

43.4 If a person against

whom an order imposing an administrative penalty is made pays the penalty in

accordance with the terms of the order or, if the order is varied on appeal, in

accordance with the terms of the varied order, the person cannot be charged

with an offence under this Act in respect of the same contravention on which

the order is based and no other prescribed measure shall be taken against the

person in respect of the same contravention on which the order is based.

Enforcement

43.5

(1) If a

person against whom an order imposing an administrative penalty is made fails

to pay the penalty in accordance with the terms of the order or, if the order

is varied on appeal, in accordance with the terms of the varied order, the

order may be filed with the Superior Court of Justice and enforced as if it

were an order of the court.

Date

of order

(2) For

the purposes of

section 129 of the Courts of Justice Act ,

the date on which the order is filed with the court shall be deemed to be the

date of the order.

Liens

and charges

(3) If

a person against whom an order imposing an administrative penalty is made fails

to pay the penalty in accordance with the terms of the order or, if the order

is varied on appeal, in accordance with the terms of the varied order, the

director may, by order, create a lien against the property of the person that

is liable to pay the penalty.

Application

of s. 43

(4) Subsections

43 (2) to (6) apply to the lien, with necessary modifications, as if it were a

lien created by the director under subsection 43 (1) and references to the fine

shall be read as references to the administrative penalty.

Section 48 of the Act is repealed and the following substituted:

Information

to be made available to the public

The

registrar shall make available to the public, in the prescribed form and

manner,

(

a) the

names of registrants and other prescribed persons; and

(

b) other

information, as may be prescribed, in respect of registrants and other

prescribed persons.

The Act is amended by adding the following section:

Information

to the registrar

48.1

(1) The

registrar may, subject to the regulations, request information from registrants

or a group of registrants for the purposes of this Act and may specify the form

in which the information is to be given and the time within which it must be

given.

Same

(2) Without

limiting the authority of the registrar to request information from registrants

under subsection (1), the registrar may, subject to the regulations, request

that a registrant give,

(

a) any

information with respect to a trade in real estate that may be required by the

registrar for the purposes of this Act; and

(

b) information

in the form of verification, by affidavit or otherwise, of any information

requested.

The Act is amended by adding the following section:

Time

and form for giving information

48.2 Every registrant shall give

the information that the registrar requests under this Act or that is otherwise

required to be given to the registrar under this Act,

(

a) within

the time and in the form specified under this Act or the regulations; or

(

b) if

not specified under this Act or the regulations, within the time and in the

form specified by the registrar.

Section 49 of the Act is repealed.

(1) Clauses 50 (1) (

a) and (

b) of the Act are repealed and the

following substituted:

(

a) prescribing

a code of ethics for registrants;

(

b) governing

the composition of the discipline committee, and, subject to subsection 21 (2),

governing matters relating to the appointment of the members of that committee;

(b.1) governing

the jurisdiction and procedures of the discipline committee, including

prescribing requirements for the purposes of subsection 21 (5),

(b.2) respecting

the manner in which and the frequency with which decisions of the discipline

committee are made available to the public;

(b.3) governing

administrative penalties that an assessor may order and all matters necessary

and incidental to the administration of a system of administrative penalties,

including,

(

i) specifying

the amount of an administrative penalty or providing for the determination of

the amount of an administrative penalty by specifying the method of calculating

the amount and the criteria to be considered in determining the amount,

(ii) providing

for different amounts to be paid, or different calculations or criteria to be

used, depending on the circumstances that gave rise to the administrative penalty

or the time at which the penalty is paid,

(iii) specifying

information that must be included in an order for payment of an administrative penalty,

(iv) governing

the procedure for making an order under

section 43.2 for an administrative penalty

and the rights of the parties affected by the procedure, including the time at

which the order is deemed to be served on the person against whom the order is

made, and

(

v) governing

the appeal of an order for payment of an administrative penalty;

(b.4) specifying

the purposes for which the administrative authority may use the funds that it

collects as administrative penalties;

(2) Subsection

50 (1.1) of the Act is amended by striking out “code of ethics established under

clause (1) (a)” at the end and substituting “prescribed code of ethics”.

(1) Paragraphs 3 and 4 of subsection 51 (1) of the Act are repealed

and the following substituted:

3. governing

education that must be obtained by applicants for registration, applicants for

renewal of registration and registrants, including,

i. requiring

applicants for registration, applicants for renewal of registration and

registrants to obtain education,

A. specified

by the administrative authority, the Minister, the director or the registrar,

and

B. provided

by such organizations as may be designated by the administrative authority, the

Minister, the director or the registrar, and

ii. requiring

that a description of the education required to be obtained, as described in subparagraph

i, be made available to the public;

4. governing

registrants holding themselves out as specialists in trading for the purposes

section 8, which may include governing different types of registrants

differently and which may include,

i. establishing

areas of specialization,

ii. establishing

a process for certification in respect of each area of specialization,

iii. requiring

registrants to obtain education and satisfy other criteria, in order to,

A. be

certified as a specialist in each area of specialization,

B. renew

a certification in each area of specialization, and

C. maintain

a certification in each area of specialization,

iv. prescribing

a maximum number of areas of specialization in respect of which a registrant

may be certified as a specialist,

v. authorizing

the administrative authority or the registrar to do anything that the

Lieutenant Governor in Council may do by regulation under subparagraphs i to

iv, and

vi. restricting

or prohibiting the certification of brokerages that are corporations as

specialists;

5. prohibiting

registrants from engaging in activities specified in the regulations, in

addition to activities prohibited by this Act;

(2) Subparagraph

7 iii of subsection 51 (1) of the Act is repealed and the following

substituted:

iii. governing

group insurance for brokerages, brokers or salespersons, including,

A. authorizing

the administrative authority or, if there is no designated administrative

authority, the Minister to arrange for group insurance on behalf of brokerages,

brokers or salespersons,

B. authorizing

the administrative authority or, if there is no designated administrative

authority, the Minister to administer group insurance on behalf of brokerages,

brokers or salespersons and to act as named insured, and

C. requiring

brokerages, brokers or salespersons to participate in group insurance;

(3) Paragraph

8 of subsection 51 (1) of the Act is repealed and the following substituted:

8. governing

the documents, records and trust accounts that must be kept by brokerages and

by or on behalf of former brokerages, including the manner and location in

which they are kept and the time periods for retaining such information and authorizing

the registrar to specify the manner and location in which they must be kept and

the time periods during which they must be kept;

(4) Paragraph

11 of subsection 51 (1) of the Act is repealed and the following substituted:

11. prescribing

procedures and other matters related to complaints under

section 19 and the registrar’s

powers under

section 20;

(5) Paragraph

13 of subsection 51 (1) of the Act is repealed.

(6) Paragraph

15 of subsection 51 (1) of the Act is repealed.

(7) Paragraph

17 of subsection 51 (1) of the Act is amended by adding “in the form and manner

approved by the registrar” after “registrar”.

(8) Paragraph

18 of subsection 51 (1) of the Act is repealed and the following substituted:

18. governing

the activities of registrants in carrying on business, including,

i. prescribing

matters that must be disclosed, the conditions under which they must be

disclosed and when they must be disclosed, including,

A. matters

related to any holdings in brokerages other than the brokerage by which they

are employed, in the case of salespersons and brokers, or

B. matters

related to any holdings in other brokerages, in the case of brokerages,

ii. prescribing

matters that must not be disclosed,

iii. setting

out the manner in which trust accounts are wound down when a brokerage’s

registration ends,

iv. regulating

advertising and representations or promises intended to induce a trade in real

estate or authorizing the registrar to specify requirements respecting

advertising and representations or promises intended to induce such a trade and

requiring registrants to comply with such specified requirements;

v. regulating

listing agreements, representation agreements and other types of agreements,

including,

A. prescribing

information required to be included or prohibited from being included in

agreements,

B. requiring

such forms of agreements as may be specified by the regulations to be approved

by the registrar before being used by registrants,

C. providing

for a process by which the registrar may approve or require changes to such

forms of agreements as may be specified by the regulations and a process by

which the registrar may revoke such an approval,

vi. prescribing

conditions that must be met before any remuneration may be charged or

collected,

vii. respecting

statements that are to be provided, which may include,

A. prescribing

the content of the statements or authorizing the registrar to specify the

content of the statements,

B. prescribing

the manner in which the statements are to be provided or authorizing the

registrar to specify the manner,

C. prescribing

the form in which the statements are to be provided or authorizing the

registrar to specify the form,

D. prescribing

the circumstances under which statements are not required, and

E. prescribing

the consequences of failing to provide a statement,

viii. setting

out obligations of a brokerage, broker and salesperson that follow the

acceptance of an offer to sell, purchase, exchange, lease or rent real estate;

(9) Subsection 51 (1) of the Act is

amended by adding the following paragraph:

19.4 with

respect to personal real estate corporations, prescribing conditions that must

be met before remuneration may be charged or collected;

(10) Subsection

51 (1) of the Act is amended by adding the following paragraph:

19.5 prescribing

provisions for the purposes of clause 43.2 (1) (a);

(11) Paragraph

22 of subsection 51 (1) of the Act is repealed.

(12) Subsection

51 (1) of the Act is amended by adding the following paragraph:

23.1 prescribing

and governing additional duties and powers of the registrar;

(13) Paragraph

24 of subsection 51 (1) of the Act is repealed and the following substituted:

24. providing

for such transitional matters as the Lieutenant Governor in Council considers

necessary for the effective implementation of the Trust in

Real Estate Services Act, 2020 ;

(14) Paragraph

27 of subsection 51 (1) of the Act is amended by adding “other than a matter or

thing in respect of which the Minister may make regulations under

section 50”

at the end.

(15) Subsection

51 (1) of the Act is amended by adding the following paragraph:

30.1 respecting

any matter necessary or advisable to carry out the intent or purpose of this

Act.

Collection

and Debt Settlement Services Act

Clause 2 (1) (

d) of the Collection and Debt Settlement

Services Act is amended by striking out “ Real

Estate and Business Brokers Act, 2002 ” and substituting “ Trust in Real Estate Services Act, 2002 ”.

Licence

Appeal Tribunal Act, 1999

Subsection 11 (1) of the Licence Appeal Tribunal Act, 1999

is amended by striking out “ Real Estate and Business

Brokers Act, 2002 ” and substituting “ Trust in Real

Estate Services Act, 2002 ”.

Ontario

Labour Mobility Act, 2009

Item 57 of Table 1 to the Ontario Labour Mobility Act,

2009 is amended by striking out “ Real Estate and

Business Brokers Act, 2002 ” in Column 2 and substituting “ Trust in Real Estate Services Act, 2002 ”.

Residential

Tenancies Act, 2006

Subsection 27 (2) of the Residential Tenancies Act, 2006

is amended by striking out

“ Real Estate and Business Brokers Act, 2002 ”

and substituting “ Trust in Real Estate Services Act, 2002 ”.

Safety

and Consumer Statutes Administration Act, 1996

(1) The

Schedule to the Safety and Consumer

Statutes Administration Act, 1996 is amended by striking out the

following item:

Real Estate and Business Brokers Act, 2002

(2) The

Schedule to the Act is amended by adding the following item:

Trust in Real Estate Services Act, 2002

Toronto

Islands Residential Community Stewardship Act, 1993

Paragraph 3 of subsection 14 (2) of the Toronto Islands

Residential Community Stewardship Act, 1993 is revoked and the following

substituted:

3. Trust in Real Estate Services Act, 2002 .

Commencement

This Act comes into force on a day to be named by proclamation of the

Lieutenant Governor.

Short

title

The

short title of this Act is the Trust

in Real Estate Services Act, 2020 .

Bill 145 As Amended by Standing Committee (PDF)

This

reprint of the Bill is marked to indicate the changes that were made in

Committee.

The

changes are indicated by underlines for new text and a strikethrough for deleted text.

______________

EXPLANATORY

NOTE

The

Bill makes various amendments to the Real Estate and

Business Brokers Act, 2002 . The amendments include the following:

1. The

Act is renamed the Trust in Real Estate Services Act, 2002 .

2. The

Act currently prohibits trading in real estate without registering under the

Act, subject to various exemptions. The Bill creates a new exemption in

respect of personal real estate corporations and prescribed members of such corporations.

This exemption is subject to prescribed conditions.