The Expanding Scope of a Complaint: Complainants don’t know what they don’t know
| December 20, 2011
The Real Estate Council of Alberta (RECA) knows there is likely nothing that brings about more interest in its processes than complaints, investigations and sanctioning. A few weeks ago, we posted a RECABlog about the principles behind sanction, but what about the conduct reviews (previously referred to as investigations) that sometimes lead to sanctioning…why does RECA sometimes open a professional conduct review when there has been no formal written complaint and why do such reviews sometimes exceed the scope of the complaint?
The simple answer is that RECA’s mandate is to protect consumers and the integrity of the industry. The Alberta government envisioned that responsible self-regulation would include dealing with misconduct regardless of whether that conduct is the subject of a complaint. The Real Estate Act provides a mechanism for RECA’s Executive Director to commence a professional conduct review in the absence of a complaint. Imagine if, during a trust account audit, a significant trust shortage was identified or imagine a Professional Conduct Review Officer, while conducting an investigation into an industry professional, came across an unauthorized person which did not form part of the original complaint, but neither of these two situations could be dealt with because no formal complaint was filed or the concern fell outside of the scope of the original written complaint. Ignoring misconduct and unauthorized practice does not protect consumers or the integrity of the industry. How would such an approach demonstrate professionalism?
What about when a simple complaint about a single issue sometimes turns into something much bigger?
The fact is that many complainants don’t know what they don’t know. Without experience in Alberta’s real estate professions and familiarity with the legislation and the professional standards of practice, complainants may not be able to sufficiently articulate their complaint. It’s up to RECA then to evaluate the whole situation (transaction or deal in mortgages) to determine what went wrong and what brought the complainant forward in the first place. In doing so, sometimes RECA uncovers additional issues that need to be addressed. Sometimes these are the issues at the core of the consumers’ dissatisfaction.
RECA brings about a right touch regulatory approach to issues that do not form part of the original complaint. RECA deals with such issues in accordance with the severity of the misconduct in relation to the whole circumstances. For example, minor technical issues may be dealt with in conversation, other issues may be handled via an Advisory Note (non-disciplinary written educational advice) or if the misconduct is more serious or if affected the transaction significantly, it may become part of the scope of the professional conduct review.
The other reason the conduct review scope may be expanded comes down to broker responsibilities. Brokers are responsible for ensuring the business of their brokerage is carried out in accordance with the legislation. Under section 51(3) of the Real Estate Act Rules, brokers are responsible for the actions of their associates unless they can demonstrate that they have systems in place to prevent misconduct and that they deal promptly and appropriately with misconduct when they become aware of it.
When RECA receives a complaint and begins a professional conduct review, the conduct review officer will contact the broker and ask him or her to take certain steps (i.e. talking to the associate/consumer involved) and to provide information and documents. If, based on the information gathered, it appears the broker has not ensured the business of the brokerage has been carried out in accordance with the legislation, the broker could be subject to a professional conduct review even if their behaviour wasn’t the subject of the original complaint. Every professional conduct review will consider a broker’s conduct and the brokerage policies and procedures, regardless of the original complaint.
For more information about brokers and their responsibilities, check out RECA Information Bulletins: