True or False: Is it true , that most civil actions against real estate practitioners are settled prior to trial by the Insurance company simply because it is less expensive to settle a claim, then to go to trial. Is it also true , that prior to filing a civil lawsuit against a registrant, the lawyer representing the plaintiff, will advise and assist the client in filing a complaint with the regulatory authorities against the registrant and that should the regulatory authorities successfully prosecute the registrant, then the insurance company will in all probability move for a settlement of the plaintiffs action and not go to trial on behalf of a registrant already found guilty in some respects by an administrative tribunal. Is it again true , that lawyers on both sides of the table are familiar with this strategy and tactics.

True. So are most civil cases settled out of court. Expense is a consideration but so is the risk of losing. The judicial system is punitive to go to trial and lose. In Alberta legeslative complaint is not always a part of the complaint process. Should they successful get an order on an agent for conduct deserving of sanction is rarely a major consideration. The E&O has an obligation to provide a good defence and in my experience provides a vigorous defence. Unfortunately you are correct both sides are aware of the strategies and tactics. It is a part of this business that we who practise in real estate are having to become more and more susceptible of having an action commenced against us. I am unaware of how it works in Ontario but I'm glad that REIX is here to protect us as industry.

Btw...here anyways, the majority of cases commenced against agents and brokers are successfully defended. Maybe you need to move to Alberta to have better E&O.

True - I worked in claims and did E&O , most were settled long before trail and trail expenses is $$$$
even if the insurer won getting costs from a plaintiff is very hard / impossible.

True or False: Is It Still True that there is no official court record on the number of “ undisclosed settlements ” made by the insurance company on behalf of their insured. Currently in Ontario, it is my understanding, that the common law of agency applies to all registrants and that current case law with respect thereto will takes precedent. That complaints can arise from either or both internal sources, meaning the regulatory authorities and external sources meaning members of the public and other registrants. That regulatory prosecution by a prosecutor are successful in 99.9 % of the cases chosen for prosecution. It also appears that other than advertising violations, a significient number of violation fall within the category of a breach of fiduciary obligations and the key elements appear to be a lack of “ best efforts ” - “ due diligence ” and a minium “ standard of care ” and failure to make full and timely written disclosure and that negative features of the disclosure were absent and consequently any informed consent was invalid . The registrant appear to have difficulty in understanding what is “ admisible evidence ” by adjudicators of a administrative tribunal or in a court of law.

Advocate 1 - and just exactly what is the textbook definition of "admissible evidence?" or your definition of same?

And is it not applicable as tied to each specific case in question, and not, in fact, a textbook definition at all?

How would a "registrant" define or pre-define "admissible evidence?" as per the case being his/hers, as either the plaintiff or as the defendant?

It is my understanding that a case "follows the contract" and why would not all evidence be pertinent to discovering the root of the problem? and therefore admissible, either in a hearing or in a court of law?

By what definition or requirement would evidence relative to a registrant be considered "inadmissible?"

Moderator ~ Carolyne

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True or False Admissible Evidence is to my understanding, subject to definition by a presiding authority in an administrative tribunal which may have a broader definition of admissible evidence than that of a judge in a court of law. Therefore, there are numerous types of evidence and of course many citations on admissible evidence too numerous to list in this venue. But it appears in this instance with respect to registrants appearing before administrative tribunals that they failed to have supporting documentary evidence or supporting witness testimony in their defence and appear to rely primarily on their oral testimony, whereas the prosecution in most instances produces admissible documentary evidence in conjunction with the creditable testimony of their investigators and the complainant’s testimony. In this respect, one may assume that if the registrant had admissible exculpatory evidence, it would have been presented and if not, it would appear that the registrant was either ill prepared for the hearing or that such evidence was non-existent, at least that appears to be the conclusions drawn by adjudicators based on the evidence presented. To make a long story short, the regulatory lawyers are skilled in both the gathering and presentation of evidence together with their witnesses and the registrant is not . The solution may be that each office design a mandatory checklist that itemizes in numerical form exactly what is to be done, when it was done, and how is was done together with all proper and admissible documentation attached. If done properly, I am confident that a registrant could rest assured knowing that it would be highly unlikely they would ever be prosecuted.

Quasi judicial panels are not governed by the same rules of evidence as courts are. Most panels are poorly trained and granted the percentage of registrant that go before a panel that are found deserving of sanction are high, my 8 years of experience as a panel member for the real estate council of Alberta suggests to me that it isn't close to 99.9%. It may be as high as 90% but I have no formal stats on it. However from the public’s perspective, they would see the thousands of complaints being registered and only a small percentage going to a hearing panel. Somewhere between 2-5%. It is incumbent on each industry member to ensure they are fulfilling their obligations and your solution of a mandatory checklist may work, but it would have to be broad enough to cover the spectrum of transaction types. Keep in mind that even good intentioned agents and brokers can run afoul of some body that has its fingers governing the industry, if not the local board, then perhaps the provincial regulatory body, to fintrac, to Crea's code of ethics or privacy code, or maybe some civil requirement or some obscure legal principal governing agency. In fact I'd be surprised that if there is a transaction completed that does not have a conflict in principle between organized real estate and a regulatory body. So there is no becoming bullet proof. just documenting the best we can and keeping good notes is about all we can do.

True or False : Determining whether evidence is admissible“ What is Evidence” Before you can apply the law to the facts, you must determine the facts. This is done by considering all the “evidence” and deciding which evidence you accept as true. Evidence is information that a party seeks to use in a legal proceeding to prove or disprove a contention or allegation. Evidence may consist of oral or written statements, photographs, maps or physical objects, and in an oral or electronic hearing, the evidence is usually a combination of oral statements, documents, and things. In a written hearing , the oral statements are replaced by written ones.

“ What is relevance ” The evidence is considered relevant if it is helpful in determining the answer to the questions that must be addressed in making a decision. That is , evidence is relevant if it tends to prove or disprove a matter in issue, or if it can reasonably and fairly influence your belief about such a matter.

“ What is admissibility ” The information that a court or tribunal is permitted to consider is called “admissible evidence”. Information is admissible if it is not only relevant but is also reliable and there is no reason and there is no reason why it would be unfair to put it before the tribunal. Admissibility is determined in the courts by a set of “rules of evidence”, made up of a combination of common-law principles, statutory provisions, and Constitutional principles. The rules that determine what will be considered evidence, and therefore can be put before the tribunal , and what will not be considered evidence, are complicated. Even lawyers have difficulty understanding them and the courts spend mouch of their time listening to arguments about whether or not various pieces of information are relevant and admissible evidence, which can be put before the court. Tribunals are not required to follow these complex rules.

“ Hearsay ” evidence and “ Opinion ” evidence Tribunals have a greater leeway than courts to listen to this evidence, but if you hear it, you should be aware of its limitations. Some parties will object to you allowing a witness to give this kind of evidence because it would be inadmissible in court. Other parties will argue that because your have the power to hear this evidence, you are obliged to do so. Neither of these arguments is correct. Adjudicators have the discretion whether to hear this evidence, and should exercise it based on the principles discussed herein.

Only because it's a slow time ... this is an interesting read ..... is there a point ???

Dave

So true Dave. My point is simply, I think we are better off with E&O, as for the over reaching regulatory bodies that's a whole other story.

MY POINT: I guess my point was to draw attention to the fact that registrants may not be as protected from liability as they may think and that it may be beneficial to them to conduct their own personal risk assessment and put safety measures in place for their personal protection.

The high success rate in prosecutions stems from the prosecutor being able to review all the evidence and selecting only those cases where there is clear and convincing evidence of wrong doing. ( like shooting fish in a barrel

With all the educational courses relating to the do’s and don’t’s of the real estate profession and the consequences for failure to comply, little sympathy can be extended to the offenders and the brokerage firm they may represent.

I will close by saying that I believe that the public is becoming more knowledgeable and will be quick to take legal action where warranted. That the cost of E & O Insurance will increase. That costs and penalties relevant to discipline hearings will increase.

My suggestion is: : if you have a problem, see a lawyer and take your cheque book because it could be very expensive.

Playing the Devil's Advocate

I don't think too many of us have blinders regarding liablility.

That goes without saying, at least in Ontario. But prosectuion is the last resort ... the registrant is always given an opportunity to correct / clarify ...

While this is true, it will only intimadate those that think they are doing soemthing wrong.

Good Advice .... Dave