Real Estate Act

Part 3 - Conduct Proceedings

Section 38 - Investigation

The executive director shall,

  (a) where a complaint is made under section 37, as soon as practicable after receipt of the complaint, and
  (b) in a case where no complaint is made but the executive director believes that any conduct of an industry member constitutes or may constitute conduct that is deserving of sanction,

commence or appoint a person to commence an investigation into the conduct.

(2) A person conducting an investigation may
  (a) by notice in writing demand that any person produce to the investigator any books, documents, records and other things in that person’s possession or under that person’s control that are relevant to the investigation,
  (b) demand that any person answer any questions that are relevant to the investigation,
  (c) copy by electronic or other means, and keep copies of, anything produced under clause (a), and
  (d) record by audio or video or by other means any answers provided under clause (b).

A person conducting an investigation may investigate any other matter related to the industry member’s carrying on of the business of an industry member that arises in the course of the investigation.

(4) A person who is required under subsection (2) to answer the questions of a person conducting an investigation
  (a) shall co‑operate with the investigator and promptly respond to the questions, and
  (b) shall not be excused from answering any question on the ground that the answer might tend to
    (i) incriminate the person,
    (ii) subject that person to punishment under this Act, or
    (iii) establish that person’s liability to a civil proceeding at the instance of the Crown or of any other person, or to prosecution under any Act,
    but if the answer so given tends to incriminate that person, subject the person to punishment or establish the person’s liability, it may not be used or received against the person in any civil proceedings, in a prosecution of an offence under this Act or in any proceedings under any other Act, except in a prosecution for or proceedings in respect of a contravention of this section.
(4.1) A person shall not withhold, destroy, conceal or refuse to produce any books, documents, records or other things required for the purpose of an investigation under this section.
(4.2) The executive director may by notice in writing suspend the authorization of an industry member who refuses to co‑operate with a person conducting an investigation under subsection (2) until the executive director is satisfied that the industry member has co‑operated.
(5) Where a person other than the executive director conducts an investigation, that person shall, on concluding the investigation, report in writing to the executive director.
(6) Nothing in this section shall be interpreted so as to affect the privilege that exists between a solicitor and the solicitor’s client.

RSA 2000 cR‑5 s38;2007 c39 s15


Continue with Part 3 Section 38.1 - Refusing to Investigate Complaint or Discontinuing Investigation

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