Real Estate and Business Brokers Act, R.S.O. 1990, c. R.4
Skip to content| repealed on March 31, 2006 | |
| November 1, 2005 – March 30, 2006 | |
| January 5, 2005 – October 31, 2005 | |
| June 17, 2004 – January 4, 2005 | |
| December 13, 2002 – June 16, 2004 |
| R.R.O. 1990, Reg. 986 | GENERAL |
Real Estate and Business Brokers Act
R.S.O. 1990, CHAPTER R.4
Note: This Act was repealed on March 31, 2006. See: 2002, c. 30, Sched. E, ss. 16, 22.
Amended by: 1993, c. 27, Sched.; 1994, c. 27, s. 98; 1996, c. 19, s. 24; 1997, c. 19, s. 41; 1998, c. 18, Sched. E, ss. 203-206; 1999, c. 12, Sched. G, s. 33; 2001, c. 9, Sched. D, ss. 13, 14; 2002, c. 8, Sched. I, s. 22; 2002, c. 30, Sched. E, s. 16; 2004, c. 8, s. 46.
CONTENTS
Definitions | |
Registrar | |
Registration | |
Registration of branch offices | |
Exemptions | |
Registration of agencies | |
Registration of broker corporation | |
Refusal to register | |
Notice of proposal to refuse or revoke | |
Further applications | |
Investigation of complaints | |
Inspection | |
Powers on inspection | |
Investigations by order of Minister | |
Investigation by Director | |
Matters confidential | |
Report | |
Freeze order | |
Books, etc., to be kept | |
Trust account | |
Notice of changes | |
Action for commission or remuneration | |
Idem | |
Promises to resell, etc., prohibited | |
Carrying on business as individual | |
Broker not to trade until notified of registration | |
Unregistered broker and salesperson | |
Advertising | |
Employment of unregistered person or salesperson of other broker | |
Salespersons trading for other brokers | |
Statement where broker or salesperson purchases for resale | |
Breaking of contract prohibited | |
Statements to be delivered in purchase of business | |
Type of commission prohibited | |
Agreement to list real estate with broker | |
Agreements to sell, purchase, etc. | |
Consumer protection programs | |
False advertising | |
Service | |
Restraining orders | |
Offences | |
Certificate as evidence | |
Regulations | |
List of registered persons to be published | |
Definitions
“broker” means a person who, for another or others, for compensation, gain or reward or hope or promise thereof, either alone or through one or more officials or salespersons, trades in real estate, or a person who holds himself, herself or itself out as such; (“courtier”)
“business” means an undertaking carried on for the purpose of gain or profit, and includes an interest in any such undertaking, and, without limiting the generality of the foregoing, includes a boarding house, hotel, store, tourist camp and tourist home; (“commerce”)
“business premises” does not include a dwelling; (“locaux commerciaux”)
“Director” means the Director under the Ministry of Consumer and Business Services Act; (“directeur”)
“dwelling” means any premises or any part thereof occupied as living accommodation; (“logement”)
“Minister” means the Minister of Consumer and Business Services; (“ministre”)
“officer” means the chair or vice-chair of the board of directors, president, vice-president, secretary, treasurer or secretary-treasurer or general manager of a corporation or a partner or general manager of a partnership and includes the manager of the real estate department of a trust corporation; (“dirigeant”)
“prescribed” means prescribed by this Act or the regulations; (“prescrit”)
“real estate” includes real property, leasehold and business whether with or without premises, fixtures, stock-in-trade, goods or chattels in connection with the operation of the business; (“bien immeuble”)
“register” means the register under this Act; (“registre”)
“Registrar” means the Registrar of Real Estate and Business Brokers; (“registrateur”)
“regulations” means the regulations made under this Act; (“règlements”)
“salesperson” means a person employed, appointed or authorized by a broker to trade in real estate; (“agent immobilier”)
“trade” includes a disposition or acquisition of or transaction in real estate by sale, purchase, agreement for sale, exchange, option, lease, rental or otherwise and any offer or attempt to list real estate for the purpose of such a disposition or transaction, and any act, advertisement, conduct or negotiation, directly or indirectly, in furtherance of any disposition, acquisition, transaction, offer or attempt, and the verb “trade” has a corresponding meaning; (“opération”, “effectuer des opérations”)
“Tribunal” means the Licence Appeal Tribunal. (“Tribunal”) R.S.O. 1990, c. R.4, s. 1; 1999, c. 12, Sched. G, s. 33 (1); 2001, c. 9, Sched. D, s. 13.
Registrar
2. (1) The Deputy Minister shall appoint a person as the Registrar of Real Estate and Business Brokers. 1998, c. 18, Sched. E, s. 203.
Powers and duties
(2) The Registrar may exercise the powers and shall discharge the duties conferred and imposed upon him or her by this Act and the regulations under the supervision of the Director. R.S.O. 1990, c. R.4, s. 2 (2).
Registration
(a) trade in real estate as a broker unless the person is registered as a broker;
(b) trade in real estate as a salesperson unless he or she is registered as a salesperson of a registered broker;
(c) act on behalf of a corporation or partnership in connection with a trade in real estate unless the person and the corporation or partnership are registered as brokers. R.S.O. 1990, c. R.4, s. 3 (1).
Change in partnership
(2) Any change in the membership of a partnership shall be deemed to create a new partnership for the purpose of registration. R.S.O. 1990, c. R.4, s. 3 (2).
Change in officers of corporation
(3) A change in the officers of a corporation registered as a broker may be made only with the consent of the Registrar. R.S.O. 1990, c. R.4, s. 3 (3).
Registration of branch offices
4. (1) No broker shall conduct a business of trading in real estate from more than one place at which the public is invited to deal unless the broker is registered in respect of each such place, one of which shall be designated in the registration as the main office and the remainder as branch offices. R.S.O. 1990, c. R.4, s. 4 (1).
Management of branch offices
(2) Each branch office shall be under the supervision of a registered broker and each branch office having more than one registered salesperson shall be under direct management by a registered broker or by a salesperson who has been registered for at least two years and who is under the supervision of a registered broker. R.S.O. 1990, c. R.4, s. 4 (2).
Exemptions
5. Registration shall not be required in respect of any trade in real estate by,
(a) an assignee, custodian, liquidator, receiver, trustee or other person acting under the Bankruptcy Act (Canada), the Corporations Act, the Business Corporations Act, the Courts of Justice Act, the Winding-up Act (Canada), or to a person acting under the order of any court, or an executor or trustee selling under the terms of a will, marriage settlement or deed of trust;
(b) an auctioneer where the trade is made in the course of and as part of the auctioneer’s duties as auctioneer;
(c) a person who is registered under the Securities Act where the trade is made in the course of and as part of the person’s business in connection with a trade in securities;
(d) a bank or a loan, trust or insurance corporation trading in real estate owned or administered by the corporation;
(e) a person in respect of any mine or mining property within the meaning of the Mining Act or in respect of the real estate included in a Crown grant or lease, a mining claim or mineral lands under the Mining Act or any predecessor thereof;
(f) a full-time salaried employee of a party to a trade where the employee is acting for or on behalf of his or her employer in respect of land situate in Ontario;
(g) a person who is practising as a solicitor of the Superior Court of Justice where the trade is made in the course of and as a part of the solicitor’s practice;
(h) a person, on the person’s own account, in respect of the person’s real estate, where such trade did not result from,
(i) an offer of such person to act, in connection with such trade or any other trade, for or on behalf of the other party or one of the other parties to the trade, or
(ii) a request that such person act, in connection with such trade or any other trade, for or on behalf of the other party or one of the other parties to the trade,
and the interest of such person in the real estate was acquired prior to such offer or request;
(i) a person in respect of the provision for another, for remuneration other than by commission, of all consultations, undertakings and services necessary to arrange for the routing of a right of way including the acquisition of land or interests in land for the purpose, and the person’s employees engaged in the project; or
(j) a person specifically exempted by the regulations in respect of any class of trades in real estate. R.S.O. 1990, c. R.4, s. 5; 2001, c. 9, Sched. D, s. 14.
Registration of agencies
6. (1) An applicant is entitled to registration or renewal of registration by the Registrar except where,
(a) having regard to the applicant’s financial position, the applicant cannot reasonably be expected to be financially responsible in the conduct of business; or
(b) the past conduct of the applicant affords reasonable grounds for belief that the applicant will not carry on business in accordance with law and with integrity and honesty; or
(c) the applicant is a corporation and,
(i) having regard to its financial position, it cannot reasonably be expected to be financially responsible in the conduct of its business, or
(ii) the past conduct of its officers or directors affords reasonable grounds for belief that its business will not be carried on in accordance with law and with integrity and honesty; or
(d) the applicant is carrying on activities that are, or will be, if the applicant is registered, in contravention of this Act or the regulations. R.S.O. 1990, c. R.4, s. 6 (1).
Conditions of registration
(2) A registration is subject to such terms and conditions to give effect to the purposes of this Act as are consented to by the applicant, imposed by the Tribunal or prescribed by the regulations. R.S.O. 1990, c. R.4, s. 6 (2).
Registration of broker corporation
7. (1) A corporation having share capital shall not be registered as a broker,
(a) unless the persons holding shares carrying at least 51 per cent of the voting rights attached to all shares of the corporation for the time being outstanding are registered brokers, but this clause does not apply to a corporation that is a trust corporation registered under the Loan and Trust Corporations Act;
(b) if any broker holding voting shares of the corporation acts as broker in respect of any other business registered as a broker or holds voting shares in any other corporation registered as a broker, but this clause does not apply to the holding of voting shares of a corporation that is a trust corporation registered under the Loan and Trust Corporations Act where the shares held do not give the holder a substantial interest; or
(c) if a salesperson holds shares of the corporation carrying more than 10 per cent of the voting rights attached to all shares of the corporation for the time being outstanding. R.S.O. 1990, c. R.4, s. 7 (1).
Exception
(2) Clause (1) (b) does not apply to a trust corporation registered under the Loan and Trust Corporations Act in which a broker holds voting shares amounting to a substantial interest where the shares were held and the trust company was registered under this Act on the 28th day of October, 1970. R.S.O. 1990, c. R.4, s. 7 (2).
Shareholders other than brokers or salespersons
(3) A person other than a broker or salesperson may hold voting shares of more than one corporation registered as brokers except that where such person holds voting shares in more than one such corporation the person shall not hold more than 10 per cent of the voting shares of each such corporation for the time being outstanding. R.S.O. 1990, c. R.4, s. 7 (3).
Salespersons as shareholders
(4) A salesperson shall not,
(a) acquire shares of a corporation registered as a broker unless the shares are acquired while he or she is a salesperson for the corporation, but this clause does not apply to the acquisition of shares of a corporation that is a corporation registered under the Loan and Trust Corporations Act;
(b) hold shares in more than one corporation registered as brokers, at the same time, other than shares of a trust corporation registered under the Loan and Trust Corporations Act; or
(c) become a salesperson for another broker until he or she discloses his or her interest to such broker. R.S.O. 1990, c. R.4, s. 7 (4); 1998, c. 18, Sched. E, s. 204.
Refusal to register
8. (1) Subject to section 9, the Registrar may refuse to register an applicant where in the Registrar’s opinion the applicant is disentitled to registration under section 6 or 7. R.S.O. 1990, c. R.4, s. 8 (1).
Revocation
(2) Subject to section 9, the Registrar may refuse to renew or may suspend or revoke a registration for any reason that would disentitle the registrant to registration under section 6 or 7 if the registrant were an applicant or where the registrant is in breach of a term or condition of the registration. R.S.O. 1990, c. R.4, s. 8 (2).
Notice of proposal to refuse or revoke
9. (1) Where the Registrar proposes to refuse to grant or renew a registration or proposes to suspend or revoke a registration, the registrar shall serve notice of the proposal, together with written reasons therefor, on the applicant or registrant. R.S.O. 1990, c. R.4, s. 9 (1).
Notice requiring hearing
(2) A notice under subsection (1) shall state that the applicant or registrant is entitled to a hearing by the Tribunal if the applicant or registrant mails or delivers, within fifteen days after service of the notice under subsection (1), notice in writing requiring a hearing to the Registrar and the Tribunal. R.S.O. 1990, c. R.4, s. 9 (2).
Powers of Registrar where no hearing
(3) Where an applicant or registrant does not require a hearing by the Tribunal in accordance with subsection (2), the Registrar may carry out the proposal stated in the notice under subsection (1). R.S.O. 1990, c. R.4, s. 9 (3).
Powers of Tribunal where hearing
(4) Where an applicant or registrant requires a hearing by the Tribunal in accordance with subsection (2), the Tribunal shall appoint a time for and hold the hearing and, on the application of the Registrar at the hearing, may by order direct the Registrar to carry out the Registrar’s proposal or refrain from carrying it out and to take such action as the Tribunal considers the Registrar ought to take in accordance with this Act and the regulations, and for such purposes the Tribunal may substitute its opinion for that of the Registrar. R.S.O. 1990, c. R.4, s. 9 (4).
Conditions of order
(5) The Tribunal may attach such terms and conditions to its order or to the registration as it considers proper to give effect to the purposes of this Act. R.S.O. 1990, c. R.4, s. 9 (5).
Parties
(6) The Registrar, the applicant or registrant who has required the hearing and such other persons as the Tribunal may specify are parties to proceedings before the Tribunal under this section. R.S.O. 1990, c. R.4, s. 9 (6).
Voluntary cancellation
(7) Despite subsection (1), the Registrar may cancel a registration upon the request in writing of the registrant in the prescribed form surrendering the registrant’s registration. R.S.O. 1990, c. R.4, s. 9 (7).
Continuation of registration pending renewal
(8) Where, within the time prescribed therefor or, if no time is prescribed, before expiry of the registrant’s registration, a registrant has applied for renewal of a registration and paid the prescribed fee, the registration shall be deemed to continue,
(a) until the renewal is granted; or
(b) where the registrant is served with notice that the Registrar proposes to refuse to grant the renewal, until the time for giving notice requiring a hearing has expired and, where a hearing is required, until the Tribunal has made its order. R.S.O. 1990, c. R.4, s. 9 (8).
Appeal
(9) 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. 1999, c. 12, Sched. G, s. 33 (2).
Further applications
10. A further application for registration may be made upon new or other evidence or where it is clear that material circumstances have changed. R.S.O. 1990, c. R.4, s. 10.
Investigation of complaints
11. (1) Where the Registrar receives a complaint in respect of a broker and so requests in writing, the broker shall furnish the Registrar with such information respecting the matter complained of as the Registrar requires. R.S.O. 1990, c. R.4, s. 11 (1).
Idem
(2) The request under subsection (1) shall indicate the nature of the inquiry involved. R.S.O. 1990, c. R.4, s. 11 (2).
Idem
(3) For the purposes of subsection (1), the Registrar or any persons designated in writing by him or her may at any reasonable time enter upon the business premises of the registrant to make an inspection in relation to the complaint. R.S.O. 1990, c. R.4, s. 11 (3).
Inspection
12. (1) The Registrar or any person designated by him or her in writing may at any reasonable time enter upon the business premises of the registrant to make an inspection to ensure that the provisions of this Act and the regulations relating to registration and the maintenance of trust accounts and the regulation of trades are being complied with. R.S.O. 1990, c. R.4, s. 12 (1).
Idem
(2) Where the Registrar has reasonable and probable grounds to believe that any person is acting as a broker or salesperson while unregistered, the Registrar or any person designated by him or her in writing may at any reasonable time enter upon such person’s business premises to make an inspection for the purpose of determining whether or not the person is in contravention of section 3 or 4. R.S.O. 1990, c. R.4, s. 12 (2).
Powers on inspection
13. (1) Upon an inspection under section 11 or 12, the person inspecting,
(a) is entitled to free access to all books of account, cash, documents, bank accounts, vouchers, correspondence and records of the person being inspected that are relevant for the purposes of the inspection; and
(b) may, upon giving a receipt therefor, remove any material referred to in clause (a) that relates to the purpose of the inspection for the purpose of making a copy thereof, provided that such copying is carried out with reasonable dispatch and the material in question is promptly thereafter returned to the person being inspected,
and no person shall obstruct the person inspecting or withhold or destroy, conceal or refuse to furnish any information or thing required by the person inspecting for the purposes of the inspection. R.S.O. 1990, c. R.4, s. 13 (1).
Admissibility of copies
(2) A copy made as provided in subsection (1) and purporting to be certified by an inspector is admissible in evidence in any action, proceeding or prosecution as proof in the absence of evidence to the contrary of the original. R.S.O. 1990, c. R.4, s. 13 (2).
Investigations by order of Minister
14. The Minister may by order appoint a person to make an investigation into any matter to which this Act applies as may be specified in the Minister’s order and the person appointed shall report the result of the investigation to the Minister and, for the purposes of the investigation, the person making it has the powers of a commission under Part II of the Public Inquiries Act, which Part applies to such investigation as if it were an inquiry under that Act. R.S.O. 1990, c. R.4, s. 14.
Investigation by Director
15. (1) Where, upon a statement made under oath, the Director believes on reasonable and probable grounds that any person has,
(a) contravened any of the provisions of this Act or the regulations; or
(b) committed an offence under the Criminal Code (Canada) or under the law of any jurisdiction that is relevant to the person’s fitness for registration under this Act,
the Director may by order appoint one or more persons to make an investigation to ascertain whether such a contravention of the Act or regulation or the commission of such an offence has occurred, and the person appointed shall report the result of the investigation to the Director. R.S.O. 1990, c. R.4, s. 15 (1).
Powers of investigator
(2) For purposes relevant to the subject-matter of an investigation under this section, the person appointed to make the investigation may inquire into and examine the affairs of the person in respect of whom the investigation is being made and may,
(a) upon production of his or her appointment, enter at any reasonable time the business premises of such person and examine books, papers, documents and things relevant to the subject-matter of the investigation; and
(b) inquire into negotiations, transactions, loans, borrowings made by or on behalf of or in relation to such person and into property, assets or things owned, acquired or alienated in whole or in part by the person or any person acting on the person’s behalf that are relevant to the subject-matter of the investigation,
and for the purposes of the inquiry, the person making the investigation has the powers of a commission under Part II of the Public Inquiries Act, which Part applies to such inquiry as if it were an inquiry under that Act. R.S.O. 1990, c. R.4, s. 15 (2).
Obstruction of investigator
(3) No person shall obstruct a person appointed to make an investigation under this section or withhold from him or her or conceal or destroy any books, papers, documents or things relevant to the subject-matter of the investigation. R.S.O. 1990, c. R.4, s. 15 (3).
Search warrant
(4) Where a justice of the peace is satisfied, upon an application made without notice by the person making an investigation under this section, that the investigation has been ordered and that such person has been appointed to make it and that there is reasonable ground for believing there are in any building, dwelling, receptacle or place any books, papers, documents or things relating to the person whose affairs are being investigated and to the subject-matter of the investigation, the justice of the peace may, whether or not an inspection has been made or attempted under clause (2) (a), issue an order authorizing the person making the investigation, together with such police officer or officers as he or she calls upon to assist him or her, to enter and search, if necessary by force, such building, dwelling, receptacle or place for such books, papers, documents or things and to examine them, but every such entry and search shall be made between sunrise and sunset unless the justice of the peace, by the order, authorizes the person making the investigation to make the search at night. R.S.O. 1990, c. R.4, s. 15 (4).
Removal of books, etc.
(5) Any person making an investigation under this section may, upon giving a receipt therefor, remove any books, papers, documents or things examined under clause (2) (a) or subsection (4) relating to the person whose affairs are being investigated and to the subject-matter of the investigation for the purpose of making copies of such books, papers or documents, but such copying shall be carried out with reasonable dispatch and the books, papers or documents in question shall be promptly thereafter returned to the person whose affairs are being investigated. R.S.O. 1990, c. R.4, s. 15 (5).
Admissibility of copies
(6) Any copy made as provided in subsection (5) and certified to be a true copy by the person making the investigation is admissible in evidence in any action, proceeding or prosecution as proof in the absence of evidence to the contrary of the original book, paper or document and its contents. R.S.O. 1990, c. R.4, s. 15 (6).
Appointment of experts
(7) The Minister or Director may appoint any expert to examine books, papers, documents or things examined under clause (2) (a) or under subsection (4). R.S.O. 1990, c. R.4, s. 15 (7).
Matters confidential
16. (1) Every person employed in the administration of this Act, including any person making an inquiry, inspection or an investigation under section 11, 12, 13, 14 or 15, shall preserve secrecy with respect to all matters that come to his or her knowledge in the course of his or her duties, employment, inquiry, inspection or investigation and shall not communicate any such matters to any other person except,
(a) as may be required in connection with the administration of this Act and the regulations or any proceedings under this Act or the regulations; or
(b) to his or her counsel; or
(c) with the consent of the person to whom the information relates. R.S.O. 1990, c. R.4, s. 16 (1).
Testimony in civil suit
(2) No person to whom subsection (1) applies shall be required to give testimony in any civil suit or proceeding with regard to information obtained by him or her in the course of his or her duties, employment, inquiry, inspection or investigation except in a proceeding under this Act or the regulations. R.S.O. 1990, c. R.4, s. 16 (2).
Report
17. Where, upon the report of an investigation made under subsection 15 (1), it appears to the Director that a person may have,
(a) contravened any of the provisions of this Act or the regulations; or
(b) committed an offence, under the Criminal Code (Canada) or under the law of any jurisdiction, that is relevant to the person’s fitness for registration under this Act,
the Director shall send a full and complete report of the investigation, including the report made to him or her, any transcript of evidence and any material in the possession of the Director relating thereto, to the Minister. R.S.O. 1990, c. R.4, s. 17.
Freeze order
(a) an investigation of any person has been ordered under section 15; or
(b) criminal proceedings or proceedings in relation to a contravention of any Act or regulation are about to be or have been instituted against a person that are connected with or arise out of the business in respect of which such person is registered,
the Director, if he or she believes it advisable for the protection of clients or customers of the person referred to in clause (a) or (b), may, in writing or by telegram, direct any person having on deposit or under control or for safekeeping any assets or trust funds of the person referred to in clause (a) or (b) to hold such assets or trust funds or direct the person referred to in clause (a) or (b) to refrain from withdrawing any such assets or trust funds from any person having any of them on deposit or under control or for safekeeping or to hold such assets or any trust funds of clients, customers or others in the person’s possession or control in trust for any interim receiver, custodian, trustee, receiver or liquidator appointed under the Bankruptcy Act (Canada), the Courts of Justice Act, the Corporations Act, the Business Corporations Act or the Winding-up Act (Canada), or until the Director revokes or the Tribunal cancels such direction or consents to the release of any particular assets or trust funds from the direction but, in the case of a bank, loan or trust corporation, the direction only applies to the office, branches or agencies thereof named in the direction. R.S.O. 1990, c. R.4, s. 18 (1).
Bond in lieu
(2) Subsection (1) does not apply where the person referred to in clause (1) (a) or (b) files with the Director,
(a) a personal bond accompanied by collateral security;
(b) a bond of an insurer licensed under the Insurance Act to write surety and fidelity insurance; or
(c) a bond of a guarantor, other than an insurer referred to in clause (b), accompanied by collateral security,
in such form, terms and amount as the Director determines. R.S.O. 1990, c. R.4, s. 18 (2); 1997, c. 19, s. 41.
Application for direction
(3) Any person in receipt of a direction given under subsection (1), if in doubt as to the application of the direction to any assets or trust funds, or in case of a claim being made thereto by a person not named in the direction, may apply to a judge of the Superior Court of Justice who may direct the disposition of such assets or trust funds and may make such order as to costs as seems just. R.S.O. 1990, c. R.4, s. 18 (3); 2001, c. 9, Sched. D, s. 14.
Notice to land registrar
(4) In any of the circumstances mentioned in clause (1) (a) or (b), the Director may in writing or by telegram notify any land registrar that proceedings are being or are about to be taken that may affect land belonging to the person referred to in the notice, and the notice shall be registered against the lands mentioned therein and has the same effect as the registration of a certificate of pending litigation except that the Director may in writing revoke or modify the notice. R.S.O. 1990, c. R.4, s. 18 (4).
Application for cancellation of direction or registration
(5) Any person referred to in clause (1) (a) or (b) in respect of whom a direction has been given by the Director under subsection (1) or any person having an interest in land in respect of which a notice has been registered under subsection (4) may, at any time, apply to the Tribunal for cancellation in whole or in part of the direction or registration and the Tribunal shall dispose of the application after a hearing and may, if it finds that such a direction or registration is not required in whole or in part for the protection of clients or customers of the applicant or of other persons interested in the land or that the interests of other persons are unduly prejudiced thereby, cancel the direction or registration in whole or in part, and the applicant, the Director and such other persons as the Tribunal may specify are parties to the proceedings before the Tribunal. R.S.O. 1990, c. R.4, s. 18 (5).
Court application
(6) The Director may, where he or she has given a direction under subsection (1) or a notice under subsection (4), apply to a judge of the Superior Court of Justice who may give directions or make an order as to the disposition of assets, trust funds or land affected by the direction or notice and as to costs. 1994, c. 27, s. 98 (1); 2001, c. 9, Sched. D, s. 14.
Same
(7) An application by the Director for directions under this section may be made without notice to any other person or party. 1994, c. 27, s. 98 (1).
Books, etc., to be kept
19. (1) Every broker shall keep a trade record sheet in the prescribed form and proper books and accounts with respect to the broker’s trades and shall enter therein in the case of each trade,
(a) the nature of the trade;
(b) a description of the real estate involved sufficient to identify it;
(c) the true consideration for the trade;
(d) the names of all parties to the trade;
(e) the amount of deposit received and a record of the disbursement thereof; and
(f) the amount of the broker’s commission or other remuneration and the name of the party paying it. R.S.O. 1990, c. R.4, s. 19 (1).
Trust ledger
(2) Every broker shall maintain a trust account for every person from whom trust money is received in which shall be entered full details of all trust money so received and disbursements therefrom. R.S.O. 1990, c. R.4, s. 19 (2).
Trust account
20. (1) Every broker shall maintain an account designated as a trust account in a bank listed in Schedule I or II to the Bank Act (Canada), loan or trust corporation, or credit union as defined in the Credit Unions and Caisses Populaires Act, 1994 in which shall be deposited all money that come into the broker’s hands in trust for other persons in connection with the broker’s business, and shall at all times keep the money separate and apart from money belonging to the broker or to the partnership, in the case of a partnership, and shall disburse the money only in accordance with the terms of the trust. R.S.O. 1990, c. R.4, s. 20 (1); 2002, c. 8, Sched. I, s. 22.
Unclaimed trust money
(2) If a broker holds money in trust for a period of one year after the person for whom it is held first became entitled to payment of the money and the person cannot be located, the broker shall pay the money to,
(a) the Minister of Finance if the administration of this section is not delegated to a designated administrative authority within the meaning of the Safety and Consumer Statutes Administration Act, 1996; or
(b) the designated administrative authority within the meaning of the Safety and Consumer Statutes Administration Act, 1996 to which the administration of this section is delegated. 1996, c. 19, s. 24.
Payment out
(3) The Minister of Finance or the designated administrative authority, as the case may be, that receives money under subsection (2) shall pay the money to the person who appears to that Minister or the authority, as the case may be, to be entitled to the money. 1996, c. 19, s. 24.
Notice of changes
21. (1) Every broker shall, within five days after the event, notify the Registrar in writing of,
(a) any change in address for service;
(b) any change in the officers in the case of a corporation or partnership;
(c) any commencement or termination of employment, appointment or authorization of a salesperson. R.S.O. 1990, c. R.4, s. 21 (1); 1993, c. 27, Sched.
Idem
(2) Every salesperson shall, within five days after the event, notify the Registrar in writing of,
(a) any change in address for service;
(b) any commencement or termination of his or her employment, appointment or authorization by a broker. R.S.O. 1990, c. R.4, s. 21 (2).
Idem
(3) The Registrar shall be deemed to be notified under subsections (1) and (2) on the day on which he or she is actually notified or, where the notification is by mail, on the day of mailing. R.S.O. 1990, c. R.4, s. 21 (3).
Financial statements
(4) Every broker carrying on the business of trading in real estate shall, when required by the Registrar with the approval of the Director, file a financial statement showing the matters specified by the Registrar and signed by the proprietor or officer of the broker’s business and certified by a person licensed under the Public Accounting Act, 2004. R.S.O. 1990, c. R.4, s. 21 (4); 2004, c. 8, s. 46.
Statement confidential
(5) The information contained in a financial statement filed under subsection (4) is confidential and no person shall otherwise than in the ordinary course of the person’s duties communicate any such information or allow access to or inspection of the financial statement. R.S.O. 1990, c. R.4, s. 21 (5).
Action for commission or remuneration
22. No action shall be brought for commission or for remuneration for services in connection with a trade in real estate unless at the time of rendering the services the person bringing the action was registered or exempt from registration and the court may stay any such action at any time upon motion. R.S.O. 1990, c. R.4, s. 22.
Idem
23. Subject to section 32, no action shall be brought to charge any person for the payment of a commission or other remuneration for the sale, purchase, exchange or leasing of real estate,
(a) unless the agreement upon which the action is brought is in writing and signed by the party to be charged therewith or some person thereunto by the party lawfully authorized; or
(b) unless the broker or the broker’s salesperson has obtained an offer in writing that is accepted; or
(c) unless the broker having been authorized in writing to list the property,
(i) shows the property to the purchaser, or
(ii) introduces the purchaser to the vendor for the purpose of discussing the proposed sale, purchase, exchange or leasing. R.S.O. 1990, c. R.4, s. 23.
Promises to resell, etc., prohibited
24. No broker or salesperson shall, as an inducement to purchase, sell or exchange real estate, make any representation or promise that the broker or salesperson or any other person will,
(a) resell or in any way guarantee or promise to resell any real estate offered for sale by the broker, the salesperson or the other person;
(b) purchase or sell any of the purchaser’s real estate;
(c) procure a mortgage, extension of a mortgage, lease or extension of a lease; or
(d) purchase or sell a mortgage or procure a loan,
unless at the time of making the representation or promise the broker or salesperson making it delivers to the person to whom the representation or promise is made a statement signed by the broker or salesperson clearly setting forth all the details of the representation or promise made. R.S.O. 1990, c. R.4, s. 24.
Carrying on business as individual
25. A broker carrying on business alone and not through an incorporated company shall carry on business in the broker’s own name only and shall not use any description, words or device that would indicate that the broker’s business is being carried on by more than one person or by a company, but a surviving or remaining partner may carry on business in the name of the original partnership in which case the surviving or remaining partner shall publish on all letterheads and circulars used by the surviving or remaining partner in connection with the business the fact that the surviving or remaining partner is the sole proprietor thereof. R.S.O. 1990, c. R.4, s. 25.
Broker not to trade until notified of registration
26. No broker or salesperson shall trade in real estate until notified in writing by the Registrar that the broker or salesperson is registered. R.S.O. 1990, c. R.4, s. 26.
Unregistered broker and salesperson
27. A person who is not registered as a broker shall neither directly nor indirectly hold himself, herself or itself out as being a broker and a person who is not registered as a salesperson shall neither directly nor indirectly hold himself, herself or itself out as being a salesperson. R.S.O. 1990, c. R.4, s. 27.
Advertising
28. Every broker shall, when advertising to purchase, sell, exchange or lease real estate, clearly indicate the broker’s own name as being the party advertising and that he, she or it is a broker, and any reference to the name of a salesperson in the advertisement shall clearly indicate the broker as being the employer of the salesperson. R.S.O. 1990, c. R.4, s. 28.
Employment of unregistered person or salesperson of other broker
(a) employ or engage the salesperson of another broker to trade in real estate or permit such salesperson to act on the broker’s behalf;
(b) employ or engage an unregistered person to trade in real estate or permit such person to act on the broker’s behalf; or
(c) pay any commission or other remuneration to any person referred to in clause (a) or (b),
but this section does not prevent the employing, engaging or paying of a person who is duly registered or licensed as a broker or its equivalent in another jurisdiction in respect of a trade in that jurisdiction. R.S.O. 1990, c. R.4, s. 29.
Salespersons trading for other brokers
30. No salesperson shall trade in real estate on behalf of any broker other than the broker who, according to the records of the Registrar, is his or her employer, and no salesperson is entitled to or shall accept any commission or other remuneration for trading in real estate from any person except the broker who is registered as his or her employer. R.S.O. 1990, c. R.4, s. 30.
Statement where broker or salesperson purchases for resale
31. (1) No broker or salesperson shall purchase, lease, exchange or otherwise acquire for himself, herself or itself or make an offer to purchase, lease, exchange or otherwise acquire for himself, herself or itself either directly or indirectly, any interest in real estate for the purpose of resale unless the broker or salesperson first delivers to the vendor a written statement that he, she or it is a broker or salesperson, as the case may be, and the vendor has acknowledged in writing that the vendor has received the statement. R.S.O. 1990, c. R.4, s. 31 (1).
Idem, where property listed with purchaser
(2) Where real estate in respect of which a broker or salesperson is required to give a statement under subsection (1) is listed with the broker or, in the case of a salesperson, is listed with the broker by whom the salesperson is employed, appointed or authorized to trade in real estate, the statement shall include,
(a) full disclosure of all facts within the broker’s or salesperson’s special knowledge that affect or will affect the resale value of the real estate; and
(b) the particulars of any negotiation or agreement by or on behalf of the broker or salesperson for the sale, exchange, lease or other disposition of any interest in the real estate to any other person. R.S.O. 1990, c. R.4, s. 31 (2).
Breaking of contract prohibited
32. (1) No broker or salesperson shall induce any party to a contract for sale or rental of real estate to break the contract for the purpose of entering into another such contract. R.S.O. 1990, c. R.4, s. 32 (1).
Commission
(2) Unless agreed to in writing by the vendor, no broker is entitled to claim commission from the vendor in respect of a trade in real estate if the real estate is to the knowledge of the broker covered by an unexpired exclusive listing agreement with another broker. R.S.O. 1990, c. R.4, s. 32 (2).
Date of signing listing or offer
(3) Every person signing a listing agreement or an agreement for sale or rental of real estate shall state with the person’s signature the date upon which the signature was actually affixed. R.S.O. 1990, c. R.4, s. 32 (3).
Statements to be delivered in purchase of business
33. (1) Where a trade in a business is negotiated by a broker or the broker’s salesperson, the broker or the salesperson, as the case may be, shall before a binding agreement of purchase and sale is signed by the parties deliver to the person acquiring the business,
(a) a profit and loss statement or statement showing the revenue and disbursements of the business during the preceding twelve months or since the acquisition of the business by the person disposing of it; and
(b) a statement of the assets and liabilities of the business; and
(c) a statement containing a list of all fixtures, goods, chattels, rights and other assets relating to or connected with the business that are not included in the transaction,
and every such statement shall be signed by the person disposing of the business or the person’s agent lawfully authorized in that behalf. R.S.O. 1990, c. R.4, s. 33 (1).
Waiver
(2) Where the broker or salesperson, as the case may be, delivers to the person acquiring the business a statement under oath of the person disposing of the business setting forth,
(a) the terms and conditions under which the person disposing of the business holds possession of the premises in which the business is being carried on; and
(b) the terms and conditions under which the person disposing of the business has sublet a part of the premises in which the business is being carried on; and
(c) all liabilities of the business; and
(d) that the person disposing of the business has made available such books of account of the business as the person possesses for inspection by the person acquiring the business, or that the person disposing of the business has refused to do so or has no books of account of the business, as the case may be,
the person acquiring the business may waive compliance with clauses (1) (a) and (b) by signing and delivering to the broker or salesperson, as the case may be, a statement that the person has received and read the statement under oath of the person disposing of the business. R.S.O. 1990, c. R.4, s. 33 (2).
What to be deemed included in transaction
(3) Unless the statement mentioned in clause (1) (c) is delivered in accordance with subsection (1), all fixtures, goods, chattels and rights and other assets relating to or connected with the business shall be deemed to be included in the transaction. R.S.O. 1990, c. R.4, s. 33 (3).
Type of commission prohibited
34. (1) No broker or salesperson shall request or enter into an arrangement for the payment to the broker or salesperson of a commission or any other remuneration based on the difference between the price at which real estate is listed for sale and the actual sale price thereof, nor is a broker or salesperson entitled to retain any commission or other remuneration computed upon any such basis. R.S.O. 1990, c. R.4, s. 34 (1).
Commission and remuneration, scale
(2) All commission or other remuneration payable to a broker in respect of a trade in real estate shall be upon an agreed amount or percentage of the sale price or rental, as the case may be, and, where no agreement as to the amount of the commission has been entered into, the rate of commission or other basis or amount of remuneration shall be that generally prevailing in the community where the real estate is situate. R.S.O. 1990, c. R.4, s. 34 (2).
Agreement to list real estate with broker
35. (1) Every broker and salesperson shall, immediately after the execution of an agreement to list real estate for sale, exchange, lease or rent with the broker, deliver to the person who has signed the agreement a true copy thereof. R.S.O. 1990, c. R.4, s. 35 (1).
Expiry of agreement
(2) An agreement with a broker to list real estate for sale, exchange, lease or rental is not valid,
(a) if it does not contain a provision that it will expire on a certain date specified therein;
(b) if it contains a provision for more than one date on which it may expire; or
(c) if a true copy of it is not delivered by the broker or the broker’s salesperson to the other party immediately after its execution. R.S.O. 1990, c. R.4, s. 35 (2).
Agreements to sell, purchase, etc.
36. Where a broker or salesperson has secured an acceptance of an offer to sell, purchase, exchange, lease or rent real estate, the broker or salesperson shall require each of the parties to sign a sufficient number of copies of the agreement and the broker or salesperson shall retain one signed copy and shall forthwith deliver one signed copy to each of the parties. R.S.O. 1990, c. R.4, s. 36.
37.-46. Repealed: 1994, c. 27, s. 98 (2).
Consumer protection programs
46.1 If an administrative authority is designated under the Safety and Consumer Statutes Administration Act, 1996 to administer this Act, the board of the administrative authority may, with the prior approval of the Minister,
(a) pass by-laws to establish consumer protection programs; and
(b) require that a person registered under this Act participate in any consumer protection program established under clause (a). 1998, c. 18, Sched. E, s. 205.
False advertising
47. Where the Registrar believes on reasonable and probable grounds that a broker is making false, misleading or deceptive statements in any advertisement, circular, pamphlet or similar material, the Registrar may order the immediate cessation of the use of such material and section 9 applies with necessary modifications to the order in the same manner as to a proposal by the Registrar to refuse a registration and the order of the Registrar shall take effect immediately, but the Tribunal may grant a stay until the Registrar’s order becomes final. R.S.O. 1990, c. R.4, s. 47.
Service
48. (1) Any notice or order required to be given or served under this Act or the regulations is sufficiently given or served if delivered personally or sent by registered mail addressed to the person to whom delivery or service is required to be made at the latest address for service appearing on the records of the Ministry of Consumer and Business Services. R.S.O. 1990, c. R.4, s. 48 (1); 2001, c. 9, Sched. D, s. 13.
Where service deemed to be made
(2) Where service is made by registered mail, the service shall be deemed to be made on the third day after the day of mailing unless the person on whom service is being made establishes that the person did not, acting in good faith, through absence, accident, illness or other cause beyond the person’s control receive the notice or order until a later date. R.S.O. 1990, c. R.4, s. 48 (2).
Exception
(3) Despite subsections (1) and (2), the Tribunal may order any other method of service in respect of any matter before the Tribunal. R.S.O. 1990, c. R.4, s. 48 (3).
Restraining orders
49. (1) Where it appears to the Director that any person does not comply with any provision of this Act, the regulations or an order made under this Act, despite the imposition of any penalty in respect of such non-compliance and in addition to any other rights the person may have, the Director may apply to a judge of the Superior Court of Justice for an order directing such person to comply with such provision, and upon the application the judge may make such order or such other order as the judge thinks fit. R.S.O. 1990, c. R.4, s. 49 (1); 2001, c. 9, Sched. D, s. 14.
Appeal
(2) An appeal lies to the Divisional Court from an order made under subsection (1). R.S.O. 1990, c. R.4, s. 49 (2).
Offences
50. (1) Every person who, knowingly,
(a) furnishes false information in any application under this Act or in any statement or return required to be furnished under this Act or the regulations;
(b) fails to comply with any order, direction or other requirement made under this Act; or
(c) contravenes any provision of this Act or the regulations,
and every director or officer of a corporation who knowingly concurs in such furnishing, failure or contravention is guilty of an offence and on conviction is liable to a fine of not more than $25,000 or to imprisonment for a term of not more than one year, or to both. R.S.O. 1990, c. R.4, s. 50 (1).
Corporations
(2) Where a corporation is convicted of an offence under subsection (1), the maximum penalty that may be imposed upon the corporation is $100,000 and not as provided therein. R.S.O. 1990, c. R.4, s. 50 (2).
(3) Repealed: 1994, c. 27, s. 98 (3).
Limitation
(4) No proceeding under clause (1) (a) shall be commenced more than one year after the facts upon which the proceeding is based first came to the knowledge of the Director. R.S.O. 1990, c. R.4, s. 50 (4).
Idem
(5) No proceeding under clause (1) (b) or (c) shall be commenced more than two years after the time when the subject-matter of the proceeding arose. R.S.O. 1990, c. R.4, s. 50 (5).
Certificate as evidence
(a) the registration or non-registration of any person;
(b) the filing or non-filing of any document or material required or permitted to be filed with the Registrar;
(c) the time when the facts upon which proceedings are based first came to the knowledge of the Director; or
(d) any other matter pertaining to such registration, non-registration, filing or non-filing,
purporting to be certified by the Director is, without proof of the office or signature of the Director, admissible in evidence as proof in the absence of evidence to the contrary, of the facts stated therein for all purposes in any action, proceeding or prosecution. R.S.O. 1990, c. R.4, s. 51.
Regulations
52. The Lieutenant Governor in Council may make regulations,
(a) prescribing any class of trades in real estate or of real estate brokers or salespersons that shall be exempt from all or any of the provisions of this Act;
(b) requiring registrants or any class thereof to be bonded in such form and terms and with such collateral security as are prescribed, and providing for the forfeiture of bonds and the disposition of the proceeds;
(c) requiring and governing the books, accounts and records that shall be kept by registered brokers and providing for the disposition of unclaimed money;
(d) governing applications for registration or renewal of registration and prescribing terms and conditions of registration;
(e) prescribing the fees payable upon applications for registration and renewal of registration and any other fees in connection with the administration of this Act and the regulations;
(f) Repealed: 1998, c. 18, Sched. E, s. 206.
(g) prescribing the practice and procedure upon investigations under sections 11 and 13;
(h) prescribing forms and providing for their use;
(i) Repealed: 1998, c. 18, Sched. E, s. 206.
(j) requiring registrants to make returns and furnish information to the Registrar;
(k) requiring any information required to be furnished or contained in any form or return to be verified by affidavit;
(l) prescribing the form and contents of the list of persons registered under this Act that is to be prepared by the Registrar and the date of publication thereof and governing its distribution;
(m) prescribing further procedures respecting the conduct of matters coming before the Tribunal;
(n) providing for the responsibility for payment of witness fees and expenses in connection with proceedings before the Tribunal and prescribing the amounts thereof. R.S.O. 1990, c. R.4, s. 52; 1998, c. 18, Sched. E, s. 206.
List of registered persons to be published
53. The Registrar may, from time to time, prepare, publish and distribute a list of all persons registered under this Act. R.S.O. 1990, c. R.4, s. 53.
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