The PSC Policy and Process

​

​

Application of Policy 

​

The PSC Policy sets out the process that will be followed for incidents involving alleged breaches of the ITSO MLS® Rules and alleged breaches of the REBBA Code or REALTOR® Code.  

 

It is important to point out that an incident will only go through ITSO if the alleged rule breach does not involve Basic MLS® Rules.  The Basic MLS® Rules are sections 2.04, 2.05(c), 2.06(b), 2.06(d), 2.08, 2.14, 2.15, 2.16, 2.17, 2.20, 2.22, 3.02, 6.01, 6.02, 6.03, 6.04, 10.16(b), 12.03 of the ITSO MLS® Rules.  Your Association will contact you if there are issues regarding compliance with the Basic MLS® Rules.

 

The other important thing to point out is that not all alleged breaches of the REALTOR® Code are processed by ITSO.  In Ontario all real estate registrants are required to comply with the Real Estate and Business Brokers Act 2002 (REBBA) and the associated regulations, which includes a code of ethics.  REBBA and the associated code of ethics are enforced by the Real Estate Council of Ontario (RECO).  If you are involved in an incident that falls under RECO’s jurisdiction, then ITSO may refer you to them.  On the other hand, if you are involved in an incident that falls under the Articles and Interpretations of the REALTOR® Code that ITSO enforces, then the incident will be handled pursuant to the PSC Policy.

 

It should also be noted that the policy applies to all users of the ITSO MLS® System - not just REALTORS® that belong to your Association.  So if you observed an incident that involved any other REALTOR® that is using the ITSO MLS® System, then it can be submitted to ITSO for resolution pursuant to this policy.

 

Policy Overview

​

The PSC Policy starts with an intake process where the Professional Standards Manager at ITSO receives the incident report and determines the jurisdiction. If it is determined that ITSO has jurisdiction then the incident will be researched and a report will be provided to the Professional Standards Committee.

 

The Professional Standards Committee will then review the incident report and the report from the Professional Standards Manager to determine if the incident amounts to a possible breach of the REALTOR® Code or the MLS® Rules (other than the Basic MLS® Rules). If the committee decides that there is enough evidence to support a possible breach, then the incident will proceed to the Charge stage. 

 

When a Respondent receives a Charge they have the option of admitting to the allegations and entering into a Consent Agreement to resolve the incident.  If a Respondent chooses to enter into a Consent Agreement then the Discipline Committee will be involved in determining the penalty if the allegations involve a breach of the REALTOR® Code.  

 

If the Respondent chooses not to enter into a Consent Agreement and instead files a Reply, then the Professional Standards Committee will review the Reply and then decide if the matter should proceed to a hearing. If it proceeds to a hearing then the matter will be referred to the Discipline Committee.

 

The Chair of the Discipline Committee will choose committee members to sit on the hearing panel. The PSC Policy then sets out the procedures for the hearing and issuing a decision. If the Respondent chooses to appeal the decision then the policy sets out that the Chair of the Discipline Committee will choose a new, impartial panel for the appeal hearing. The policy sets out the procedures for the appeal and issuing the decision.  

 

A full copy of the PSC Policy can be found above.

 

Incidents and Jurisdiction

 

Maybe you have been involved in an incident or observed conduct that you think is unprofessional.  In those cases you might be wondering if you could file an incident report with ITSO. 

 

Think about what conduct was involved in the incident.  If ITSO receives an Incident Report describing conduct that relates to the following topics then the Professional Standards Manager will refer the matter to RECO:

​

• Informed of Essential Facts

• Disclosure of Role Agency

• Primary Duty to Client

• Discovery of Facts

• Written Service Agreements

• Written Transaction Agreements

• Expenses Related to the Transaction

• Disclosure of Benefits to Clients

• Disclosure of Benefits to Customers

• Outside Professional Advice

• Disclosing Personal Interest in Property

• Skilled and Conscientious Service

• Respecting Contractual Relationships

 

If the Incident Report describes conduct that the Professional Standards Manager determines falls under  the following categories then it will be processed by ITSO:

​

• Advertising – Content/Accuracy

• Advertising Listings of Other REALTORS®

• Advertising Claims (Performance and compensation)

• Discrimination

• Compliance with Board Bylaws

• Compliance with Statutory Requirements

• Discrediting another Registrant

• Conduct Unbecoming

• Cooperation with Board

• Arbitration

• Inter-Board and Inter-provincial Arbitration

• Avoid Controversies

• CREA Trademarks

• Intellectual Property Rights of Others

• REALTOR® Acting as Principal

• Principal (Broker) Responsibility 

 

The full text of these REALTOR® Code Articles and Interpretations is attached to the PSC Policy.  

 

ITSO will also process incident reports that describe conduct that breaches the ITSO MLS® Rules.

 

If you are ever unsure about whether the conduct falls under ITSO’s jurisdiction, a Member Associations jurisdiction, or RECO’s jurisdiction, then you might want to file an incident report with ITSO.  The Professional Standards Manager at ITSO will review the report and will inform you if they are the proper body for handling the incident, whether you should talk to your own Association, or whether it should go to RECO.  ITSO will do this in a timely manner and you could avoid involving the regulator.  On the other hand, if you file a complaint with RECO, it could take a long time to get a response and the complaint may go undressed.

 

Submitting an Incident Report

 

The PSC Policy provides that an Incident Report must be filed with ITSO no more than 180 days following the date upon which the circumstances giving rise to the incident arose.  This should be kept in mind if you are thinking of filing a report.  It is better not to delay, since filing the report when the incident is fresh in your mind will make it easier to do, and will ensure you fall within the required timeframe.

 

The PSC Policy requires incident reports to include two things: sufficient detail about the nature of the incident and the timeline and your name and brokerage name.

 

If you are filing an incident report then it is important to include details.  Remember, the Professional Standards Manager is going to make a determination on jurisdiction based on what is in the incident report.

 

An Incident Report form can be obtained here.  Completed Incident Reports can be sent to: incidents@itsorealestate.ca 

 

What Happens After You File an Incident Report

 

Once an incident report has been submitted it will be reviewed by the Professional Standards Manager.  If the incident is being referred to RECO then the Professional Standards Manager will inform you of that fact.  If the matter is being investigated by ITSO then you may be contacted for more information. You may also be required to testify as a witness if the matter proceeds to a hearing. 

 

You will also be informed once the matter is resolved, which might be because the Respondent enters into a Consent Agreement, because the matter goes to a hearing, or if the Professional Standards Committee chooses not to pursue the incident for any other reason.

 

The time it takes to resolve an incident will vary from incident to incident and will depend on if a Respondent chooses the fast track or regular track.  That said, ITSO will strive to resolve most incidents within 90 days.

When you are the Subject of an Incident Report

 

Responding to a Charge

 

If you are notified by the Professional Standards Manager at ITSO that you are the subject of an incident report then you will likely want to familiarize yourself with the processes set out in the PSC Policy.  An overview of the policy is set out above, but there are a few key sections and time limits in the policy that you should be aware of if you find yourself on the receiving end of a Charge.

 

If you receive a Charge then you have a choice to make.  If you admit to doing what is alleged in the Charge, then you may want to agree to enter into a Consent Agreement to resolve the matter. This will result in the matter being concluded much earlier than if you went to a hearing, and the penalty might be lower depending on the circumstances.

 

If you deny the allegations set out in the Charge, then you’ll need to file a Reply.  A Reply has to include a statement of the allegations in the Charge which are admitted, those which are denied, and those of which you have no knowledge.  You also need to explain the facts relied on to support your Reply.  Include as much detail as you can, as the Professional Standards Committee will be reviewing the Reply and deciding whether or not the matter should proceed to a hearing.

 

Regardless of whether you decide to enter into a Consent Agreement or file a Reply, you will need to respond to the Professional Standards Manager within 10 days of receiving the Charge.

 

Preparing for a Hearing

 

If you filed a Reply and the Professional Standards Committee decides to proceed to a hearing then you will be given at least 30 days notice of the date of the hearing.  The Notice of Hearing will include a number of things that you will need to review:

 

• The date and time of the hearing;

• The location of the hearing;

• The names of the people sitting on the Hearing Panel;

• The Charge; 

• The Reply if there is one; and 

• Copies of relevant policies and procedures or links to where they may be found.

 

Make sure you look at who will be sitting on the hearing panel.  If you wish to object to any of those panel members because you have a reason to believe they would be biased in the case against you, then you will need to notify the Professional Standards Manager within 5 days of receiving the Notice of Hearing. 

 

Think about how you are going to present your case at the hearing.  You’ll be able to testify to provide oral evidence and introduce documentary evidence.  You may also want to call witnesses to help prove your case.  If you choose to call witnesses then it is your responsibility to ensure they are aware of the date and time of the hearing and are able to attend.

 

If the date of the hearing does not work for you either because you are unable to attend or one of your witnesses is unable to attend, then again you must notify the Professional Standards Manager as soon as possible.  

 

You’ll have 10 days after receiving the Notice of Hearing to provide the names of your witnesses, if any, and all documentary evidence to the Professional Standards Manager that you wish to introduce at the hearing.  This will likely be all the documents you relied on when filing your Reply.  You’ll receive the hearing package at least 7 days before the hearing, which will include all the documentary evidence that will be introduced by the Professional Standards Committee as well as the names of the witnesses.  Make sure you review the package so that you can prepare your arguments for the hearing.

 

Once you have done that, you’ll need to decide if you want to be represented at the hearing by a lawyer or someone else that you trust to advance your position.  If you are going to be represented by a lawyer then you must notify the Professional Standards Manager at least 5 days before the hearing.

 

The Hearing

 

The hearing will proceed in the following order:

 

• Chair makes opening remarks;

• Introduction of the Hearing Panel and confirmation of no conflicts;

• Swearing in of Parties and witnesses;

• Witnesses leave room;

• Professional Standards Committee representative presents evidence and calls witnesses if any;

• Cross examination from Respondent;

• Respondent presents evidence and calls witnesses if any;

• Cross examination from the Professional Standards Committee representative;

• Questions from Hearing Panel;

• Closing statement from Professional Standards Committee representative;

• Closing statement from Respondent.

 

The Professional Standards Committee will go first as the onus is on them to prove to the hearing panel that you have breached an MLS® Rules and/or the REALTOR® Code.  They have to introduce clear, convincing evidence of this fact.

 

You’ll get the opportunity to cross examine the Professional Standards Committee representative and their witnesses if they have any.  Remember to be polite, but that is your opportunity to cast doubt on any of the evidence they introduce.

 

Then it will be your opportunity to present your case through your testimony and any witnesses that you call.  Be sure to introduce your documentary evidence and refer to the page numbers in the hearing package where the documents can be found.  If you are questioning a witness that you called, you are not permitted to ask leading questions (i.e., isn’t it true that I showed you the property in question?).  Try to ask open ended questions that allow witnesses to tell their story (e.g., tell me what happened on July 3, 2020).

 

Another thing to keep in mind is the restriction on hearsay evidence, which is something that you do not have first hand knowledge of (e.g., my neighbour told me they saw a black cat).  Hearing panels are not bound by the rules of evidence, but hearsay evidence does not give the other party at a hearing the chance to question the person who actually saw or said the thing being introduced.  The PSC Policy prohibits hearsay evidence for that reason.  

 

You are entitled to request an adjournment during the hearing if you need a break or a few minutes to collect your thoughts.  Just keep in mind that it is up to the hearing panel to decide whether or not to allow the adjournment.  If you are asking for an adjournment for a frivolous reason that will simply prolong the proceedings, then the panel might not allow your request.

 

Once the hearing is over you, the representative from the Professional Standards Committee, and any witnesses that testified will all be excused.  The hearing panel will stay to deliberate and a copy of their decision will be provided to you by the Professional Standards Manager as soon as possible.

 

Appeal Applications

 

Once you receive the hearing panel decision you’ll need to decide whether or not you want to appeal.  There are only three acceptable grounds for appeal, which are:

 

• That the ITSO MLS® Rules or REALTOR® Code were interpreted and applied incorrectly; 

• That the penalties imposed by the Hearing Panel were inappropriate; or

• That there was a lack of procedural fairness.

 

The facts as determined by a hearing panel are assumed to be true.  You cannot file an appeal based on an error of fact.  Further, if you do choose to file an appeal application, keep in mind that you will not be permitted to introduce new evidence at the appeal hearing.  The appeal panel will decide whether or not the ground of appeal is made out based on your oral arguments only.

 

If you decide that you have grounds to appeal, then you’ll need to submit your appeal application to the Professional Standards Manager within 10 days of receiving the hearing panel’s decision.  The appeal application will need to include the following:

 

• The grounds on which they are appealing the Hearing Panel decision;

• A brief explanation of why they are appealing; and

• A filing fee determined by ITSO.

 

Preparing for the Appeal Hearing

 

After you file an appeal application you will receive a Notice of Appeal, which will be provided to you at least 30 days before the date of the appeal hearing.  The Notice of Appeal will include:

 

• The date and time of the appeal hearing;

• The location of the appeal hearing; 

• The names of the people on the Appeal Panel; and 

• Copies of relevant policies and procedures or links to where they may be found.

 

Just like when you were preparing for the hearing, you’ll have the opportunity to ask for a postponement or object to any of the appeal panel members.  Make sure you do this as soon as possible after receiving the Notice of Appeal Hearing, but no later than 5 days after receiving the notice.

 

You’ll receive the appeal package at least 7 days prior to the appeal hearing.  This will essentially be a record of everything that has happened up till that time including a transcript from the hearing.  

 

Finally, you’ll need to decide if you are going to be represented at the appeal hearing.  If you are going to be represented by a lawyer, then you need to notify the Professional Standards Manager at least 5 days prior to the appeal hearing.

 

Appeal Hearing

 

If you are appealing a decision from a hearing panel then the onus is on you to prove to the appeal panel that the ground of appeal is made out.  The order or the appeal hearing will be as follows:

 

• Chair makes opening remarks;

• Introduction of the Appeal Panel and confirmation of no conflicts;

• Swearing in of Appellant;

• Appellant’s statement;

• Questions from Appeal Panel;

• Closing statement from Appellant.

 

Just like during a hearing, you will be able to make reasonable requests for adjournments. At the conclusion of the appeal hearing you will be excused and the appeal panel will deliberate to arrive at a decision.  This decision is final and binding and will be communicated to you as soon as possible after the appeal hearing.

 

Summary of Important Time Frames

 

Incident Report and Reply

• Incident Report must be filed no more than 180 days following the date upon which the circumstances giving rise to the incident arose

• File Reply or admit facts within 10 days after receiving Charge

 

Hearing 

• Object to hearing panel member or request hearing postponement no more than 5 days after receiving notice of hearing

• Provide documentary evidence and names of witnesses to Professional Standards Manager within 10 days of receiving notice of hearing

• Notify Professional Standards Manager that you will be represented by a lawyer at least 5 days prior to hearing

 

Appeal

• File appeal application no more than 10 days after receiving the hearing panel decision

• Object to appeal panel member or request appeal hearing postponement no more than 5 days after receiving notice of appeal

• Notify Professional Standards Manager that you will be represented by a lawyer at least 5 days prior to appeal hearing