In Ontario after a review of the Real Estate Council of Ontario (regulatory authorities) case law and the current rules of practice and procedures, a defence counsel would have great difficulty in successfully defending a registrant charge with a breach thereof, primarily due to documented evidence or the lack thereof contained in the registrant’s files.

Therefore, a registrant in Ontario, might be well advised to consider some of the following:

Best Defence
The best defence is one that has been prepared well in advance, without any time constraints, carefully and methodically to successfully defend oneself in the event any unfounded allegations should arise.

Exculpatory Evidence
Imagine an investigator examining your files for inculpatory evidence that could both incriminates you and consequently results in your being charged with some violation or wrong doing and finding nothing but exculpatory evidence exonerating you of any wrong doing.

Building Your Defence
Your defence, protection and your credibility lies in establishing and showing the routine way in which you organize your files and conduct your business on a daily basis.

Initial Disclosure
Initial contact with a prospective client requires the written disclosure and acknowledgement of the Relationship Options offered by your firm and their related costs, together with the beneficial and negative features of each option.

Retainer
In the event your services are retained via a written agreement, be it a seller’s listing agreement, a buyer’s broker agreement, or some other form of written agreement which establishes a binding contractual agreement between your firm and the parties.

Intake Form
This form is an aid to fulfilling your obligation and due diligence with respect to the federal government “Fintrac” requirements in the identity of the client and contains all the personal data available on the individual client

Chronology
This form contains all communications, verbal, written, electronic, etc. received and delivered in connection with the clients file, together with a description of any service provided and/or arranged. The entire history of your relationship in detail should be contained in this chronology. By establishing a regular routine with respect to maintaining their files, the registrant can establish their credibility with regard to the files contents.

Authorized Instructions - Directions
All instruction and/or directions must be in writing, in an established format and covering each individual issue as may be encountered. e.g. Specific Clauses, Financing, Home Inspection, Holdback, Survey, Waver’s, Warranties, etc.

The Parties
In a real estate transaction the parties normally have adverse interest and should be individually represented in a fiduciary relationship by their own agent and thus imposing an adversarial role and duty upon their respective agents acting in the best interest of their clients.

Important Notice: This information is provided as basic educational information by the author and is not a substitute for the advice of an expert and/or the advice of a lawyer. There is NO representation as to legality, accuracy, correctness of the herein information and the reader is strongly urged to consult a lawyer in the relevant jurisdiction to ensure accuracy before acting on this information .