Making an application for a licence

9   (1) In order to make an application under this Division, a person must submit to the real estate council an application that

(a) is in the form required by the real estate council,

(b) contains the information required by the bylaws,

(c) is certified in accordance with the bylaws,

(d) is accompanied by any other information and documentation required by the bylaws, and

(e) is accompanied by the amounts required by the bylaws and the regulations.

(2) An application for a brokerage licence must identify the persons proposed to act as managing brokers licensed in relation to the brokerage.

(3) In the case of an individual who is

(a) licensed as a brokerage, and

(b) qualified to be a managing broker,

the individual is deemed to be a managing broker licensed in relation to the brokerage unless an application under subsection (2) in relation to the brokerage licence indicates that the individual will not be acting in that capacity.

(4) An application for a managing broker, associate broker or representative licence must identify the brokerage in relation to which the applicant proposes to be licensed.

(5) The real estate council may refuse to deal with an application until any amounts owed by the applicant to the real estate council, insurance corporation or compensation fund corporation, or required under this Act to be collected by the real estate council from the applicant, are paid.

Qualifications for obtaining licence

10   An applicant for a new licence or a licence renewal must satisfy the real estate council that they meet the following applicable requirements:

Council authority to investigate or require additional information

11   The real estate council may

(a) conduct an investigation, or

(b) require the applicant to provide the real estate council with additional information, documents or verification,

to the extent the real estate council considers necessary for the evaluation of an application under section 9 [making an application for a licence].

Continuance of licence during renewal application process

12   If a licensee has applied for renewal of a licence in accordance with section 9 [making an application for a licence] before the earlier of

(a) the end of the licence term, and

(b) if applicable, a date established under the rules,

the licence continues in effect beyond the end of its term until the real estate council notifies the licensee of its decision with respect to the application.

Refusal to issue or renew licence

13   (1) If an applicant does not satisfy the real estate council respecting the qualification requirements under section 10 [qualifications for obtaining licence], the real estate council may refuse to issue the licence.

(2) In addition, in the case of an applicant for a new brokerage licence, the real estate council may refuse to issue the licence if the real estate council considers that the applicant has a legal name or trade name that is likely to confuse or mislead the public.

(3) Before refusing to issue a licence, the real estate council must give notice to the applicant and provide the applicant with an opportunity to be heard respecting the matter.

(4) If the real estate council refuses to issue a licence, it must

(a) provide the applicant with written notice of the refusal and the reasons for it, and

(b) advise the applicant of the right to appeal under Division 4 [Appeals to Financial Services Tribunal] of Part 4.

Temporary licences

14   The real estate council may issue a temporary licence that

Conditions and restrictions in relation to a specific licence

15   (1) Subject to this section, the real estate council may, as it considers necessary or desirable in relation to a specific licence,

(a) impose conditions and restrictions on the licence,

(b) vary a condition or restriction applicable to the licence, or

(c) remove a condition or restriction applicable to the licence.

(2) The powers under subsection (1) (a) or (b) to impose or vary a condition or restriction are exercisable only

(a) on or before the date on which the licence is issued, with effect on and after that date, or

(b) on the written application or with the written consent of the licensee.

(3) Before imposing or varying a condition or restriction as referred to in subsection (2) (a), the real estate council must give notice to the applicant and provide the applicant with an opportunity to be heard respecting the matter.

(4) If the real estate council imposes or varies a condition or restriction as referred to in subsection (2) (a), it must

(a) provide the applicant with written notice of the condition or restriction and the reasons for it, and

(b) advise the applicant of the right to appeal under Division 4 [Appeals to Financial Services Tribunal] of Part 4.

(5) The power under subsection (1) (c) to remove a condition or restriction is exercisable at any time on the real estate council's own initiative or on the written application of the licensee.

Amendments to reflect conditions and restrictions on related licences

16   (1) If

(a) new licence conditions or restrictions apply to a brokerage licence, or

(b) existing conditions or restrictions on a brokerage licence are varied or removed,

the real estate council may amend the licences of the related licensees of the brokerage to reflect the conditions and restrictions applicable to the brokerage licence.

(2) If

(a) new licence conditions or restrictions apply to a managing broker licence, or

(b) existing conditions or restrictions on a managing broker licence are varied or removed,

the real estate council may amend the licence of the related brokerage to reflect the conditions and restrictions applicable to the managing broker licence.

Licence amendments

18   The real estate council may amend a licence in any of the following circumstances:

(a) on the written application or with the written consent of the licensee;

(b) as provided in section 15 [conditions and restrictions in relation to a specific licence];

(c) as provided in section 16 [conditions and restrictions on related licences];

(d) to give effect to an order under Division 2 [Discipline Proceedings] or Division 3 [Authority of Superintendent] of Part 4;

(e) to give effect to a rule under section 89.2 (2) (b) [rules respecting general restrictions and conditions].

Surrender of licence and impounding of records

21   (1) A person whose licence becomes inoperative or is suspended or cancelled must immediately

(a) cease to hold themselves out as a licensee, and

(b) surrender the licence to the real estate council.

(2) If the licence of a person whose licence becomes inoperative or is suspended or cancelled is in the possession of the related brokerage, that brokerage must immediately surrender the licence to the real estate council.

(3) The real estate council may

(a) impound the records of a brokerage whose licence has become inoperative or has been suspended or cancelled, and

(b) retain those records for a period of 2 years or until the licence is reinstated, whichever is earlier.

Cancellation or suspension of licence if qualification not met

24   (1) If an applicant for a licence made a false or misleading statement in or in relation to their application, respecting a matter referred to in section 10 [qualifications for obtaining licence], the real estate council may, by order,

(a) cancel the licence, or

(b) suspend the licence until satisfied that the licensee is qualified to hold the licence.

(2) Before cancelling or suspending a licence under this section, the real estate council must give notice to the licensee and provide the licensee with an opportunity to be heard respecting the matter.

(3) If the real estate council makes an order under this section, it must

(a) provide the licensee with written notice of the cancellation or suspension and the reasons for it, and

(b) advise the licensee of the right to appeal under Division 4 [Appeals to Financial Services Tribunal] of Part 4.

Misconduct by licensee

35   (1) A licensee commits professional misconduct if the licensee does one or more of the following:

(a) contravenes this Act, the regulations or the rules;

(b) breaches a restriction or condition of their licence;

(c) does anything that constitutes wrongful taking or deceptive dealing;

(d) demonstrates incompetence in performing any activity for which a licence is required;

(e) fails or refuses to cooperate with an investigation under section 37 [investigation by council] or 48 [investigations by superintendent];

(f) fails to comply with an order of the real estate council, a discipline committee or the superintendent;

(g) makes or allows to be made any false or misleading statement in a document that is required or authorized to be produced or submitted under this Act.

(2) A licensee commits conduct unbecoming a licensee if the licensee engages in conduct that, in the judgment of a discipline committee,

(a) is contrary to the best interests of the public,

(b) undermines public confidence in the real estate industry, or

(c) brings the real estate industry into disrepute.

(3) A brokerage that is a partnership or corporation may be found to have committed professional misconduct or conduct unbecoming a licensee if a partner, officer, director or controlling shareholder of the brokerage does one or more of the things referred to in subsection (1) or (2).

Complaints against licensee

36   (1) A person may make a complaint to the real estate council if the person believes that a licensee may have committed professional misconduct or conduct unbecoming a licensee.

(2) A complaint must be in writing and must include particulars.

(3) Unless a complaint is made anonymously, the real estate council must

(a) acknowledge receipt of the complaint, and

(b) on disposition of the matter, inform the complainant of the disposition.

Investigations

37   (1) On its own initiative or on receipt of a complaint, the real estate council may conduct an investigation to determine whether a licensee may have committed professional misconduct or conduct unbecoming a licensee.

(2) An investigation may be carried out by

(a) one or more council members,

(b) an officer or employee of the real estate council, or

(c) a person retained by the real estate council for this purpose.

(3) For the purposes of an investigation, a person carrying out the investigation may do one or more of the following:

(a) at any time during business hours, inspect and copy records that are located on the business premises of

(i) a licensee or former licensee, or

(ii) an officer, director, controlling shareholder or partner of a licensee or former licensee;

(b) require a person referred to in paragraph (a) to

(i) answer, or meet with the investigator to answer, inquiries relating to the investigation, and

(ii) produce information, records or other things in the person's possession or control for examination by the investigator.

(4) A person referred to in subsection (3) (a) must not withhold, destroy, conceal or refuse to provide any information or thing reasonably required for the purposes of an investigation under this section.

Discipline committees

39   (1) The real estate council must establish one or more hearing committees under section 83 [hearing committees] as discipline committees for the purposes of this Part.

(2) A member of a discipline committee who is not a member of the real estate council must be

(a) a licensee, or

(b) a lawyer, an accountant or another person who the real estate council considers is an expert in relation to relevant matters.

(3) A discipline committee that consists of a single council member may deal with a matter under this Division only

(a) if the affected licensee does not object, or

(b) to make an order under section 43 (4) [failure to comply with original order], 45 [orders in urgent circumstances] or 46 [orders to freeze property].

(4) Subject to subsection (3), the real estate council may assign a discipline committee to deal with a particular matter for which a notice under section 40 [notice of discipline hearing] has been issued.

Consent orders

41   (1) At least 21 days, or a shorter period permitted by the real estate council, before the time set for the discipline hearing, the licensee who received a notice under section 40 [notice of discipline hearing] may deliver to the real estate council a written proposal that includes the licensee's consent to a discipline committee making a specified order under section 43 [discipline orders] without conducting a hearing.

(2) If a proposal under subsection (1) is received, the real estate council

(a) may postpone the time set for commencing the hearing until the proposal has been dealt with in accordance with this section, and

(b) if the hearing is to be conducted after the postponement, must give notice of the time and place of the hearing in accordance with section 40 (3) [delivery of hearing notice].

(3) The real estate council may refer or decline to refer a proposal to a discipline committee.

(4) If a proposal is referred under subsection (3), the discipline committee may accept the proposal, in which case

(a) the discipline committee may make the proposed order, and

(b) no further proceedings may be taken under this Division or Division 5 [Administrative Penalties] with respect to the matter, other than to enforce the terms of the order as proposed or to deal with a contravention of the order.

(5) Regardless of whether or not a proposal has been referred, accepted or rejected, the proposal may not be used, without the consent of the licensee who made the proposal,

(a) in any proceeding under this Act with respect to the matter, other than

(i) as referred to in subsection (4) (b),

(ii) an appeal of the order by the superintendent under section 54 (1) (d) [appeals by superintendent], or

(iii) for the purposes of considering a claim under Part 5 [Payments from Special Compensation Fund], or

(b) in any civil proceeding with respect to the matter.

Discipline hearings

42   (1) If notice of a discipline hearing has been given in accordance with section 40 (3) [notice], a discipline committee may proceed with the discipline hearing, whether or not the licensee appears in person and whether or not the licensee is represented by legal counsel at the hearing.

(2) For the purposes of a discipline hearing, sections 34 (3) and (4) [power to compel witnesses and order disclosure], 48 [maintenance of order at hearings] and 49 [contempt proceeding for uncooperative witness or other person] of the Administrative Tribunals Act apply to the discipline committee.

Discipline orders

43   (1) After a discipline hearing, the discipline committee must

(a) act under this section if it determines that the licensee has committed professional misconduct or conduct unbecoming a licensee, or

(b) in any other case, dismiss the matter.

(2) If subsection (1) (a) applies, the discipline committee must, by order, do one or more of the following:

(a) reprimand the licensee;

(b) suspend the licensee's licence for the period of time the committee considers appropriate or until specified conditions are fulfilled;

(c) cancel the licensee's licence;

(d) impose restrictions or conditions on the licensee's licence or vary any restrictions or conditions applicable to the licence;

(e) require the licensee to cease or to carry out any specified activity related to the licensee's real estate business;

(f) require the licensee to enrol in and complete a course of studies or training specified in the order;

(g) prohibit the licensee from applying for a licence for a specified period of time or until specified conditions are fulfilled;

(h) require the licensee to pay amounts in accordance with section 44 (1) and (2) [recovery of enforcement expenses];

(i) require the licensee to pay a discipline penalty in an amount of

(i) not more than $500 000, in the case of a brokerage or former brokerage, or

(ii) not more than $250 000, in any other case;

(j) require the licensee to pay an additional penalty up to the amount of the remuneration accepted by the licensee for the real estate services in respect of which the contravention occurred.

(2.1) A discipline penalty imposed under subsection (2) (i) may be imposed for each contravention.

(3) An order under subsection (2) may provide that,

(a) if the licensee fails to comply with the order, or

(b) if the licensee fails to comply with one or more specified restrictions or conditions of the licensee's licence,

a discipline committee may suspend or cancel the licence under subsection (4).

(4) If the licensee fails to comply as specified by a provision under subsection (3), a discipline committee may, by order, suspend or cancel the licensee's licence, as applicable, without the need for giving the licensee further notice or the opportunity to be heard.

(5) A discipline committee may, by order, on the application of or with the consent of the licensee subject to the order, vary or rescind an order made under this section.

(6) For the purposes of this section, "contravention" means an act or omission that is the subject of a determination under subsection (1) (a).

Enforcement expenses and discipline penalties

44   (1) A discipline committee may, by an order under section 43 (2) (h) [recovery of enforcement expenses], require the licensee to pay the expenses, or part of the expenses, incurred by the real estate council in relation to either or both of the investigation and the discipline hearing to which the order relates.

(2) Amounts ordered as referred to in subsection (1)

(a) must not exceed the applicable limit prescribed by regulation in relation to the type of expenses to which they relate, and

(b) may include the remuneration expenses incurred in relation to employees, officers or agents of the real estate council, or members of the discipline committee, engaged in the investigation or discipline hearing.

(3) Money received by the real estate council on account of a discipline penalty under section 43 (2) (i) or, subject to the regulations, an additional penalty under section 43 (2) (j) may be expended by the real estate council only for the purpose of educating the public, and licensees and other participants in the real estate industry in British Columbia, about

(a) the operation and regulation of the industry, and

(b) issues related to real estate and real estate services.

(4) An amount ordered to be paid under section 43 (2) (h), (i) or (j) is a debt owing to the real estate council and may be recovered as such.

Orders in urgent circumstances

45   (1) A discipline committee may act under this section if the committee considers that

(a) there has been conduct in respect of which a discipline committee could make an order under section 43 [discipline orders] against a licensee,

(b) the length of time that would be required to complete an investigation or hold a discipline hearing, or both, in order to make such an order would be detrimental to the public interest, and

(c) it is in the public interest to make an order under this section against the licensee.

(2) If the circumstances referred to in subsection (1) apply, the discipline committee may, by order, do one or more of the following:

(a) suspend the licensee's licence;

(b) impose restrictions or conditions on the licensee's licence or vary any restrictions or conditions applicable to the licence;

(c) require the licensee to cease or to carry out any specified activity related to the licensee's real estate business.

(3) Despite any other provision of this Division, a discipline committee may make an order under subsection (2)

(a) whether or not notice of a discipline hearing has been issued under section 40 [notice of discipline hearing],

(b) without giving notice to the licensee, and

(c) without providing the licensee an opportunity to be heard.

(4) A discipline committee may, by order,

(a) on its own initiative, rescind an order under this section, or

(b) on the application of or with the consent of the licensee subject to the order, vary or rescind an order made under this section.

(5) Promptly after an order under subsection (2) is made, the real estate council must give to the licensee

(a) a copy of the order and written reasons for it, and

(b) written notice that a discipline hearing may be held respecting the matter.

(6) Without affecting the authority of the real estate council to initiate a discipline hearing, a licensee who is the subject of an order under subsection (2) may require a discipline hearing to be held by delivering written notice to the real estate council.

(7) Within a reasonable time after receiving a written notice under subsection (6), the real estate council must issue a notice under section 40 [notice of discipline hearing], subject to the difference that the time for issuing the notice is at least 14 days before the time set for the discipline hearing, rather than 21 days, unless the licensee agrees to a shorter period.

(8) After a discipline hearing respecting a licensee who is subject to an order under this section, the discipline committee must

(a) rescind the order under this section and make an order under section 43 [discipline orders], if it determines that the licensee has committed professional misconduct or conduct unbecoming a licensee, or

(b) in any other case, rescind the order under this section.

Publication of orders

47   (1) As soon as practicable, the real estate council must

(a) subject to the regulations, publish a copy of each order under this Division, and

(b) provide a copy of each order under this Division to the superintendent.

(2) The real estate council must provide a copy of an order required to be published under subsection (1) (a) to any person requesting the copy, on payment of a reasonable fee as established by bylaw.

(3) The real estate council may publish a copy of any order that is required to be published by the superintendent under section 53 (1) (a) [publication of regulatory action].

Investigations, hearings and other authority

48   (1) The superintendent may conduct an investigation to determine whether

(a) a person who does not hold a licence has engaged in any activity for which a licence under this Act is required, or

(b) a licensee has, in a way that is seriously detrimental to the public interest,

(i) contravened this Act, the regulations or the rules,

(ii) breached a restriction or condition of their licence, or

(iii) done anything that constitutes wrongful taking or deceptive dealing.

(2) Subject to subsection (3), the superintendent may issue a notice of hearing and conduct a hearing following an investigation under subsection (1).

(3) In relation to an investigation under subsection (1) (b),

(a) the superintendent must notify the real estate council before issuing a notice of hearing, and

(b) the superintendent may issue the notice of hearing only if

(i) no notice under section 40 [notice of discipline hearing] has been issued by the real estate council, and

(ii) no order under section 45 [orders in urgent circumstances] has been made by a discipline committee.

(4) The following provisions of this Part apply to the superintendent acting under this Division, in relation to an unlicensed person or a licensee, as if the superintendent were the real estate council or a discipline committee exercising authority under the applicable provision in relation to a licensee:

(a) section 37 [investigations];

(b) section 38 [court order for search and seizure];

(c) section 40 [notice of discipline hearing];

(d) section 41 [consent orders], in relation to orders that the superintendent may make under section 49 [orders respecting unlicensed activity] or 50 [orders against licensees in the public interest];

(e) section 42 [discipline hearings];

(f) section 46 [orders to freeze property].

Orders respecting unlicensed activity

49   (1) This section applies if, after a hearing under section 48 (2) [superintendent hearings], the superintendent determines that the person subject to the hearing did not hold a licence under this Act at a time when the person engaged in any activity for which such a licence was required.

(2) The superintendent may, by order, do one or more of the following with respect to a person referred to in subsection (1):

(a) require the person to cease the activity;

(b) require the person to carry out specified actions that the superintendent considers necessary to remedy the situation;

(c) require the person to pay amounts in accordance with section 44 (1) and (2) [recovery of enforcement expenses];

(d) require the person to pay a penalty in an amount of

(i) not more than $500 000, in the case of a corporation or partnership, or

(ii) not more than $250 000, in the case of an individual;

(e) require the person to pay an additional penalty up to the amount of the remuneration accepted by the person for the real estate services in respect of which the contravention occurred.

(2.1) A penalty imposed under subsection (2) (d) may be imposed for each contravention.

(3) The superintendent may, by order, on the application of or with the consent of the person subject to the order, vary or rescind an order made under this section.

(4) For the purposes of this section, "contravention" means an act or omission that is the subject of a determination under subsection (1).

Orders against licensees in the public interest

50   (1) This section applies if, after a hearing under section 48 (2) [superintendent hearings], the superintendent determines that a licensee has, in a way that the superintendent considers is seriously detrimental to the public interest,

(a) contravened this Act, the regulations or the rules,

(b) breached a restriction or condition of their licence, or

(c) done anything that constitutes wrongful taking or deceptive dealing.

(2) In the circumstances referred to in subsection (1), the superintendent may, by order, do one or more of the following:

(a) suspend the licensee's licence for the period of time the superintendent considers appropriate or until specified conditions are fulfilled;

(b) cancel the licensee's licence;

(c) impose restrictions or conditions on the licensee's licence or vary any restrictions or conditions applicable to the licence;

(d) require the licensee to cease or to carry out any specified activity related to the licensee's real estate business;

(e) require the licensee to pay amounts in accordance with section 44 (1) and (2) [recovery of enforcement expenses];

(f) require the licensee to pay a penalty in an amount of

(i) not more than $500 000, in the case of a brokerage or former brokerage, or

(ii) not more than $250 000, in any other case;

(g) require the licensee to pay an additional penalty up to the amount of the remuneration accepted by the licensee for the real estate services in respect of which the contravention occurred.

(2.1) A penalty imposed under subsection (2) (f) may be imposed for each contravention.

(3) The superintendent may, by order, on the application of or with the consent of the licensee subject to the order, vary or rescind an order made under this section.

(4) For the purposes of this section, "contravention" means an act or omission that is the subject of a determination under subsection (1).

Superintendent's orders in urgent circumstances

51   (1) The superintendent may act under this section if the superintendent considers that

(a) there has been conduct in respect of which the superintendent could make an order under section 49 [orders respecting unlicensed activity] or 50 [orders against licensees in the public interest], and

(b) the length of time that would be required to complete an investigation or hold a hearing, or both, in order to make such an order would be detrimental to the public interest.

(2) If the circumstances referred to in subsection (1) apply,

(a) in relation to a person referred to in section 49 [orders respecting unlicensed activity], the superintendent may make an order as referred to in subsection (2) (a) and (b) of that section, and

(b) in relation to a licensee, the superintendent may make an order as referred to in section 45 (2) [discipline committee orders in urgent circumstances].

(3) Section 45 [discipline committee orders in urgent circumstances] applies in relation to the superintendent's authority under this section as if the superintendent were a discipline committee or the real estate council acting in respect of a licensee.

Appeals

54   (1) Appeals to the financial services tribunal may be made as follows:

(a) the applicant may appeal a refusal to issue a licence;

(b) the licensee affected may appeal the imposition of restrictions and conditions on a licence under section 15 (2) (a) [conditions and restrictions in relation to a specific licence — issuance or renewal];

(c) the licensee affected may appeal the cancellation or suspension of a licence under section 24 [cancellation or suspension if qualifications not met];

(d) the person subject to the order, or the superintendent, may appeal an order of a discipline committee under Division 2 [Discipline Proceedings] of this Part;

(e) the person subject to the order may appeal an order of the superintendent under Division 3 [Authority of Superintendent] of this Part.

(2) The real estate council is entitled to be a party to an appeal under subsection (1) (a) to (d).

(3) The superintendent is entitled to be a party to an appeal under subsection (1) (d) or (e).

(4) Subject to this Division, sections 242.2 [practice and procedure] and 242.3 [judicial review] of the Financial Institutions Act apply in relation to an appeal under this section.

Effect of filing notice of appeal

55   (1) An order

(a) of a discipline committee under section 45 [orders in urgent circumstances] or 46 [orders to freeze property], or

(b) of the superintendent under Division 3 [Authority of Superintendent] of this Part

is not stayed by the filing of a notice of appeal under section 54 [appeals] and may not be stayed under section 242.2 (10) (a) (i) [tribunal member hearing appeal may stay order] of the Financial Institutions Act.

(2) An appealable decision, other than one referred to in subsection (1), is stayed by the filing of a notice of appeal under section 54 [appeals], but the stay may be lifted under section 242.2 (10) (a) (ii) [tribunal member hearing appeal may lift stay] of the Financial Institutions Act.

Designated contraventions and penalty amounts

56   (1) The Lieutenant Governor in Council may, by regulation,

(a) designate contraventions of specified rules as being subject to administrative penalties under this Division, and

(b) set the maximum amount of administrative penalty that may be established under subsection (2), which may be a different maximum for different specified rules.

(2) The real estate council may, by rule, establish the amount of administrative penalty that may be imposed in respect of each contravention of a specified rule, which may be

(a) different for different levels or categories of licence, and

(b) different for first and subsequent contraventions.

Designated contraventions and penalty amounts

56   (1) The superintendent may, by rule,

(a) designate contraventions of specified rules as being subject to administrative penalties under this Division, and

(b) establish the amount of administrative penalty that may be imposed in respect of each contravention of a specified rule, which may be

(i) different for different levels or categories of licence, and

(ii) different for first and subsequent contraventions.

(2) The maximum amount of administrative penalty that may be imposed under subsection (1) is $50 000.

Council may impose administrative penalties

57   (1) If the real estate council is satisfied that a licensee has contravened a rule that has been designated under section 56 (1) (a) [designated contraventions], the real estate council may issue a notice imposing on the licensee an administrative penalty in the amount established under subsection (1) (b) of that section.

(2) The notice under subsection (1) must do the following:

(a) indicate the rule that has been contravened;

(b) indicate the amount of the administrative penalty that is imposed;

(c) advise the licensee of the licensee's right to be heard respecting the matter;

(d) advise the licensee that, if the licensee does not, within 14 days or a longer period allowed by the real estate council, request such an opportunity to be heard,

(i) the licensee is deemed to have acknowledged contravening the rule, and

(ii) the administrative penalty becomes due and payable to the real estate council.

(3) Notice under subsection (1) must be given as follows:

(a) in the case of notice to a current licensee, by personal service or by delivery in accordance with the rules;

(b) in the case of notice to a former licensee, by personal service;

(c) as an alternative in any case, in accordance with an order under section 125 [substituted service].

(4) The real estate council must provide the licensee with an opportunity to be heard if this is requested and, following the opportunity, may

(a) cancel the administrative penalty if it is satisfied that the licensee exercised due diligence to prevent contravention of the rule, or

(b) confirm the administrative penalty, in which case it becomes due and payable to the real estate council.

(5) The amount of an administrative penalty imposed under this section is a debt owing to the real estate council and may be recovered as such.

(6) Money received by the real estate council on account of administrative penalties under this section may be expended by the real estate council only for an educational purpose referred to in section 44 (3) [use of discipline penalty money].

(7) If an administrative penalty has been imposed under this section,

(a) no further proceedings may be taken under this Part in respect of the matter, other than to enforce payment of the penalty, and

(b) without the consent of the licensee, the fact that the penalty has been imposed may not be used

(i) in any proceeding under this Act with respect to the matter, other than as referred to in paragraph (a), or

(ii) in any civil proceeding with respect to the matter.

Application for injunction

58   (1) The real estate council or superintendent may apply to the Supreme Court for an injunction restraining a person from contravening, or requiring a person to comply with,

(a) this Act, the regulations, the rules or the bylaws, or

(b) an order of a discipline committee or the superintendent under this Part.

(2) The court may grant an injunction sought under subsection (1) if the court is satisfied that there is reason to believe there has been or will be a contravention of this Act, the regulations, the rules, the bylaws or an order referred to in that subsection.

(3) The court may grant an interim injunction until the outcome of an application under subsection (1).

Claim for compensation

61   (1) In order to make a claim for compensation from the special compensation fund, a person must apply in writing to the real estate council within the time limit established by subsection (2), including

(a) particulars of the conduct on which the claim of compensable loss is based,

(b) if the person is relying on a court decision, a copy of the decision, and

(c) any other information required by the real estate council.

(2) The time limit for making a claim is 2 years after the earliest of the following:

(a) the date on which the person making the claim became aware that the compensable loss occurred;

(b) if the licence of the responsible brokerage was cancelled or suspended by an order under section 45 (2) (a) [orders in urgent circumstances] or 51 (2) (b) [superintendent's orders in urgent circumstances] at any time after the conduct that caused the compensable loss, the date of that cancellation or suspension;

(c) the date the real estate council or superintendent publishes a notice, in accordance with the regulations, that compensable loss may have occurred.

Referral to compensation committee

62   (1) After reviewing a claim, the real estate council must refer the matter to a compensation committee if it considers that there is reason to believe the person making the claim suffered a compensable loss.

(2) If more than one claim has been made in relation to a licensee, the real estate council may refer the claims to a single compensation committee to be considered together.

Compensation committee may conduct, postpone or decline hearing

63   (1) The compensation committee to which a claim has been referred under section 62 [referral to committee] must consider the claim and may, at this stage,

(a) conduct a hearing to determine whether the person making the claim suffered a compensable loss and, if applicable, assess the amount of that loss,

(b) decline to make such a determination or assessment, or both, on the basis that it considers the matter would more effectively be dealt with by a court proceeding, or

(c) postpone conducting a hearing pending the conclusion of a discipline hearing or court proceeding.

(2) For the purposes of a compensation hearing, sections 34 (3) and (4) [power to compel witnesses and order disclosure], 48 [maintenance of order at hearings] and 49 [contempt proceeding for uncooperative witness or other person] of the Administrative Tribunals Act apply to the compensation committee.

(3) The compensation committee may, at any point during a hearing under subsection (1) (a), decline to make the determination or assessment, or both, on the basis that it considers the matter would more effectively be dealt with by a court proceeding.

(4) If a compensation committee declines under subsection (1) (b) or (3) and a court subsequently makes the determination or assessment, or both, the claim must be reconsidered by a compensation committee, which may or may not be the original compensation committee that considered the claim.

Certification of compensable loss

64   If a compensation committee has

(a) determined that the person making a claim suffered a compensable loss, and

(b) assessed the amount of that compensable loss,

the committee must issue a certificate specifying the amount of the compensable loss.

Relationship with other proceedings

65   (1) If a matter that is the subject of a claim has also been the subject of a court proceeding in British Columbia, a final decision of the court that

(a) makes a finding on evidence that a person has suffered a compensable loss within the meaning of this Act,

(b) assesses the amount of a compensable loss within the meaning of this Act, or

(c) makes both such a finding and such an assessment,

is binding on the compensation committee dealing with the matter.

(2) For certainty, subsection (1) does not apply in relation to a default judgment or a judgment by consent.

(3) If a matter that is the subject of a claim has also been the subject of a final order under section 43 [discipline orders] or 50 [superintendent orders in the public interest], a decision by the discipline committee or superintendent that makes a finding on evidence that

(a) the licensee committed wrongful taking, or

(b) the licensee committed wrongful taking in relation to the person making the claim

is binding on the compensation committee in relation to its determination of whether there has been compensable loss.

(4) For certainty, subsection (3) does not apply in relation to an order of a discipline committee under section 41 [consent orders] or an order of the superintendent under section 48 (4) (d) [application of section 41 to superintendent].

(5) A determination by a compensation committee that a licensee has caused compensable loss is not, for the purposes of Part 4 [Discipline Proceedings and Other Regulatory Enforcement], a determination that the licensee has committed wrongful taking.

Notice of court and discipline proceedings

66   (1) A person who has made a claim must provide written notice to the real estate council of any court proceeding in relation to the conduct that is the subject of the claim

(a) in which the person is a party, or

(b) of which the person is aware.

(2) A licensee who receives

(a) notice of the commencement of any action or other court proceeding that could result in a decision referred to in section 65 (1) [court proceedings], or

(b) a notice under Part 4 [Discipline Proceedings and Other Regulatory Enforcement] that could result in a decision referred to in section 65 (3) [discipline or superintendent proceedings],

must immediately provide written notice to the real estate council and the compensation fund corporation of the commencement or notice and of the particulars of the matter.

Maximum compensation to any one claimant

69   The maximum amount that may be paid to a single claimant

(a) in relation to a claim that is made in respect of a single event of misappropriation, wrongful conversion, failure to pay over, failure to account for money or obtaining money by fraud, or

(b) in relation to one or more claims that are made in respect of a single responsible brokerage, where the claims relate to conduct that is a course of dealing involving more than one such event,

is the amount prescribed by regulation.

Direction to pay to complete trade or prevent loss

72.1   (1) This section applies whether or not a claim has been made under section 61.

(2) The real estate council must not act under this section unless it is satisfied that

(a) a person has suffered a compensable loss,

(b) money is required to

(i) complete a trade in real estate in which the person is involved, or

(ii) prevent further significant compensable loss to the person,

(c) it would be in the public interest to use money from the special compensation fund to complete the trade or prevent the loss, and

(d) if the person makes a claim for compensation under Division 1, section 70 [maximum compensation] is not likely to apply in respect of the claim.

(3) If the real estate council is satisfied of the matters set out in subsection (2), the real estate council may

(a) determine the amount of money required for the purposes of subsection (2) (b), and

(b) subject to subsection (4), direct the compensation fund corporation to pay the amount referred to in paragraph (a) to

(i) a receiver or receiver manager appointed under section 59 [court order for appointment of receiver], or

(ii) if there is no appointment under section 59, the real estate council.

(4) A direction under subsection (3) (b) must not be made

(a) without the consent of

(i) the person referred to in subsection (2) (a), and

(ii) the chair of the compensation fund corporation, or a person acting in the place of the chair, and

(b) until the real estate council has fulfilled any prescribed requirement.

Real Estate Council of British Columbia

73   (1) The Real Estate Council continued under the Real Estate Act, R.S.B.C. 1996, c. 397, is continued under this Act as a corporation under the name "Real Estate Council of British Columbia".

(2) The objects of the real estate council are to

(a) administer, subject to the oversight and direction of the superintendent under section 89.1, this Act and the regulations, rules and bylaws,

(b) maintain and advance the knowledge, skill and competency of its licensees, and

(c) uphold and protect the public interest in relation to the conduct and integrity of its licensees.

Council membership

74   (1) The real estate council consists of 16 individuals, who are to be appointed by the Lieutenant Governor in Council.

(2) The continuing council members may act even if there is a vacancy on the real estate council.

(3) An act of the real estate council is not invalid because of a defect that is afterwards discovered in the election or appointment of one or more council members.

Corporate matters

75   (1) The real estate council may acquire and dispose of real and personal property for its purposes.

(2) Subject to subsection (3), the Business Corporations Act does not apply to the real estate council.

(3) The Lieutenant Governor in Council may, by order, direct that one or more provisions of the Business Corporations Act apply to the real estate council.

Disqualification of council members

78   A council member ceases to hold office if

(a) the member

(i) contravenes a provision of this Act or the regulations, rules or bylaws,

(ii) contravenes a provision of another provincial or federal enactment, or

(iii) becomes bankrupt, and

(b) the superintendent or a majority of the other council members consider that the matter is sufficiently serious to justify the member's removal.

Conduct of council members

79   (1) A council member must not act in a manner that results in, or creates the appearance of, the member

(a) using their position, or using non-public information obtained by reason of the member's role as council member, for the purpose of private gain,

(b) giving preferential treatment to any person in relation to the member's role as a council member,

(c) foregoing independence or impartiality in relation to the member's role as a council member,

(d) impeding the real estate council from carrying out its purposes, or

(e) adversely affecting the integrity of the real estate council.

(2) Subject to subsection (3), a council member who contravenes subsection (1) must resign.

(3) Instead of accepting a resignation under subsection (2), the real estate council may suspend the council member from all or any council activities for any period of time and subject to any terms and conditions that the real estate council considers appropriate.

Chair and vice chair

80   The chair and vice chair of the real estate council are appointed by the Lieutenant Governor in Council.

Executive officer

81   (1) The real estate council must appoint an executive officer, who is to be the chief administrative officer of the real estate council.

(2) A licensee is not eligible to be or remain executive officer.

Delegation of authority

82   (1) Subject to subsection (2), the real estate council may delegate, in writing, any or all of its powers or duties under this Act to

(a) a council member,

(b) a council committee, or

(c) an officer or employee of the real estate council.

(2) The real estate council may not delegate its power to make bylaws or its power to delegate under this section.

(3) A delegation under this section

(a) may be made subject to any terms and conditions the real estate council considers appropriate,

(b) is revocable, and

(c) does not prevent the real estate council from exercising a delegated power or performing a delegated duty.

Hearing committees

83   (1) The real estate council may establish hearing committees of council for the purpose of conducting

(a) discipline hearings under Division 2 [Discipline Proceedings] of Part 4,

(b) compensation hearings under Part 5 [Payments from Special Compensation Fund], and

(c) any other hearings required or authorized by this Act, the regulations, the rules or the bylaws to be conducted by a hearing committee or the real estate council.

(2) Subject to section 39 [discipline committees], a hearing committee may consist of

(a) a single council member, or

(b) at least 3 individuals, a majority of whom must be council members.

(3) If a hearing committee member is unable for any reason to continue to serve on the hearing committee after a hearing has been commenced, the vacancy does not invalidate the proceedings and the remaining members may continue the hearing and exercise the powers of the hearing committee.

(4) If a council member appointed as a hearing committee or as a hearing committee member ceases to hold office as a council member, the chair of the real estate council may authorize that individual to continue to exercise powers as a member of a hearing committee in any proceeding over which that individual had jurisdiction immediately before they ceased to be a council member.

(5) An authorization under subsection (4) continues until a final decision in the proceeding is made.

General bylaws

84   (1) Subject to the regulations, the real estate council may make bylaws it considers necessary or advisable for the conduct of its business and affairs.

(2) Without limiting subsection (1) but subject to the regulations, the real estate council may make bylaws respecting the following:

(a) the conduct of council members and officers of the real estate council, including bylaws establishing a code of conduct;

(b) the qualifications required for a person to be eligible for appointment as executive officer;

(c) [Repealed 2016-27-32.]

(d) the establishment of council committees, which may include individuals who are not council members, so long as the majority are council members;

(e) the remuneration and allowances for expenses of council members, officers of the real estate council and members of any committees established by the real estate council;

(f) procedures for the making of bylaws;

(g) the practice and procedure of a hearing committee;

(h) the form, content and manner of submitting applications, reports and other submissions to the real estate council;

(i) any other matter for which bylaws are contemplated by this Act;

(j) any other matters provided in the regulations.

Bylaws respecting licensing fees and assessments

85   (1) Subject to the regulations, the real estate council may make bylaws as follows:

(a) establishing fees for and in relation to applications under section 9 [making an application for a licence];

(b) imposing licence fees to be paid by a licensee in relation to the issuing of a licence;

(c) imposing council assessments to be paid by licensees to cover the expenses of the real estate council for its operations and for matters under its administration.

(2) A bylaw under subsection (1) may

(a) be different for different levels or categories of licence,

(b) establish the manner in which and the time at which the fee or assessment must be paid, and

(c) establish penalties or interest charges that are payable in the case of late payment.

(3) The real estate council may, in a specific case, waive a fee or assessment established under this section.

Consolidation and revision of bylaws

85.1   (1) Subject to the regulations, the real estate council may make bylaws giving effect to an editorial consolidation or revision of all or some of its bylaws that does one or more of the following:

(a) consolidates provisions and omits spent provisions;

(b) alters the form, style, punctuation, numbering and arrangement of provisions;

(c) corrects typographical errors.

(2) The authority under subsection (1) does not include the authority to make substantive changes to the bylaws.

Procedures relating to bylaws

87   (1) The bylaws must be made in accordance with any applicable regulations.

(2) The real estate council must publish copies of its bylaws.

(3) The Regulations Act does not apply to the bylaws.

Council records

88   (1) The real estate council must keep proper records respecting its business and affairs, including the following:

(a) minutes of meetings of the real estate council;

(b) a copy of the following:

(i) its bylaws;

(ii) the rules;

(iii) the council rules, as defined in subsection (5);

(c) a copy of every licence issued by the real estate council under this Act;

(d) a record of every refusal by the real estate council to issue a licence, including a copy of the reasons for that refusal;

(e) a copy of every order or other decision of a hearing committee;

(f) a copy of all records introduced as evidence at a hearing conducted by a hearing committee;

(g) a copy of every decision of the financial services tribunal on an appeal under Division 4 [Appeals] of Part 4 [Discipline Proceedings and Other Regulatory Enforcement].

(2) The real estate council

(a) must permit any person to inspect, at its office during ordinary business hours, any of the records required to be kept under

(i) subsection (1) (b) [bylaws and rules],

(ii) subsection (1) (c) [licences],

(iii) subsection (1) (e) [decisions of hearing committees], but excluding orders that are not published under section 47 (1) (a) [publication of discipline committee orders], or

(iv) subsection (1) (g) [appeal decisions], and

(b) must provide a copy or extract of those records to any person requesting the copy or extract, on payment of a reasonable fee as established by bylaw.

(3) The obligation under subsection (1) may be met by maintaining the records in print or in electronic format.

(4) Except as permitted by the regulations, the real estate council must not dispose of records required to be kept under subsection (1) before the end of the prescribed period after the creation of the record.

(5) Despite the definition of "rules" in section 1 [definitions], for the purposes of subsection (1) (b) (iii) of this section, "council rules" means any rules made by the real estate council before the coming into force of this subsection.

Annual report

89   (1) Not later than 3 months after the end of its fiscal year, the real estate council must prepare a report for that previous fiscal year which includes

(a) an audited financial statement summarizing the income and expenditures of the real estate council, and

(b) any other information that the real estate council considers relevant or necessary or that the minister requires.

(2) As soon as practicable after preparing the report, the real estate council must

(a) provide a copy of the report to the minister and the superintendent, and

(b) publish the report.

(3) The real estate council must provide a copy of the report to any person requesting the copy, on payment of a reasonable fee as established by bylaw.

(4) In addition to the report, the real estate council must provide the minister with financial statements or other information concerning the real estate council when required to do so by the minister.

Strata owner representative

74.1   The real estate council may appoint an individual, not licensed under this Act, to represent the interests of owners of strata property on the real estate council.

Election of council members

76   (1) Subject to this section, the election of council members is to be conducted in accordance with the bylaws.

(2) For the purpose of electing the council members, British Columbia is divided into the following districts:

(3) Representation by elected council members is to be as follows:

(a) District No. 1, 3 managing broker members and 1 representative member;

(b) District No. 2, 1 managing broker member;

(c) District No. 3, 1 managing broker member;

(d) District No. 4, 1 managing broker member;

(e) District No. 5, 1 managing broker member;

(f) District No. 6, 1 managing broker member;

(g) District No. 7, 1 managing broker member;

(h) Districts No. 2, 3, 6 and 7 jointly, 1 representative member;

(i) Districts No. 4 and 5 jointly, 1 representative member;

(j) all districts jointly, 1 managing broker member or representative member who is licensed to provide rental property management services or strata management services.

(4) Subject to the bylaws, an associate broker is deemed to be a managing broker for the purposes of this section.

(5) If

(a) an elected council member dies, resigns or is incapable of performing the council member's duties under this Act,

(b) an elected council member is disqualified under section 78 [disqualification], or

(c) there is a vacancy on the real estate council because no council member was elected,

the real estate council may temporarily appoint a person, who is licensed in the appropriate district, holds the appropriate licence and is otherwise qualified, as council member until a successor is elected.

Term of office for elected council members

77   (1) Subject to subsection (2), the term of office for an elected council member, or an individual appointed under section 74.1 [strata owner representative], is 2 years or until a successor is elected or temporarily appointed.

(2) A person may not serve more than 6 consecutive years as an elected council member but may, after at least one year of not being a council member, be elected or temporarily appointed for further terms subject to this same restriction.

Disqualification of council members

78   (1) An elected council member ceases to hold office if the member ceases to be qualified for election.

(2) In addition, a council member ceases to hold office if

(a) the member

(i) contravenes a provision of this Act or the regulations, rules or bylaws,

(ii) contravenes a provision of another provincial or federal enactment, or

(iii) becomes bankrupt, and

(b) a majority of the other council members consider that the matter is sufficiently serious to justify the member's removal.

Chair and vice chair

80   The chair and vice chair of the real estate council must be elected annually from and by the council members.

Consolidation and revision of bylaws and rules

85.1   (1) Subject to the regulations, the real estate council may make bylaws giving effect to an editorial consolidation or revision of all or some of its bylaws and rules that does one or more of the following:

(a) consolidates provisions and omits spent provisions;

(b) alters the form, style, punctuation, numbering and arrangement of provisions;

(c) corrects typographical errors.

(2) The authority under subsection (1) does not include the authority to make substantive changes to the bylaws or rules.

Council rules

86   (1) Subject to the regulations, the real estate council may make any rules

(a) respecting licensing, or

(b) regulating licensees in relation to the provision of real estate services

that it considers necessary or advisable.

(2) Without limiting subsection (1) but subject to the regulations, the real estate council may make rules as follows:

(a) respecting licences and the issuing of licences, including rules

(i) establishing, within a licence level, different categories of licence that are restricted to particular real estate services as identified by the rules,

(ii) respecting the duration of licences,

(iii) respecting the education, experience or other qualifications for a person to obtain or renew a licence, including rules conferring discretion to determine equivalent qualifications,

(iv) respecting licensing in relation to branch offices of a brokerage, and

(v) providing for the granting of temporary licences to personal representatives of deceased licensees, including rules conferring discretion to establish conditions and restrictions applicable to a specific temporary licence;

(b) establishing conditions and restrictions applicable to licences;

(c) respecting the relationships between and among brokerages and their related licensees, including rules

(i) respecting the supervision of associate brokers and representatives by managing brokers, and

(ii) providing for a related licensee of a brokerage to act as a managing broker for the brokerage in the temporary absence of a managing broker for the brokerage;

(d) requiring licensees to undertake continuing professional education;

(e) establishing or adopting standards of conduct and business practice standards for licensees, including rules

(i) respecting the keeping and operation of trust accounts by licensees,

(ii) regulating the operation of offices by licensees,

(iii) respecting the use of business names by licensees,

(iv) respecting the form and content of advertising carried out by licensees,

(v) establishing or providing for the establishment of standard forms for use in providing real estate services, and requiring their use by licensees, and

(vi) respecting the making of disclosures by licensees in relation to the provision of real estate services;

(f) requiring licensees to

(i) provide reports, returns and other information to the real estate council, and

(ii) allow the inspection and auditing of their books of account and other records by the real estate council;

(g) requiring licensees to acquire, maintain or provide a bond or other form of security and, in relation to this,

(i) respecting the amount and form of such security and the terms and conditions under which it is to be provided, and

(ii) respecting the forfeiture of the security and the payment of claims against the security;

(h) respecting any other matter for which rules are contemplated by this Act;

(i) respecting any other matters provided in the regulations.

(3) The real estate council may make different rules under this section in relation to

(a) different levels of licences,

(b) different categories of licences, and

(c) different circumstances as described in the rules.

(4) The real estate council may make different rules under subsection (2) (a) respecting the issuing of licences, the renewal of licences, the amendment of licences and the reinstatement of licences.

(5) A rule under this section

(a) may be made effective on

(i) the date on which it is made, or

(ii) a future date specified by the rule, and

(b) may be made applicable to current licensees either

(i) at the time the rule becomes effective, or

(ii) at the time of licence renewal.

(6) The authority of the real estate council to make rules under this section is subject to any restrictions or conditions established by regulation.

Procedures relating to bylaws and rules

87   (1) The bylaws and rules must be made in accordance with any applicable regulations.

(2) The real estate council must publish copies of its bylaws and rules.

(3) The Regulations Act does not apply to the bylaws or rules.

Role of superintendent respecting real estate council

89.1   (1) The superintendent may oversee and direct the operations and activities of the real estate council, including requiring that the real estate council do one or more of the following:

(a) investigate a particular matter;

(b) issue, subject to subsection (3) (a), a notice of discipline hearing under section 40 [notice of discipline hearing];

(c) establish committees, other than discipline committees, for purposes determined by the superintendent;

(d) amend or repeal an existing bylaw or make a new bylaw;

(e) provide information of a particular nature to be included in the following:

(i) discipline orders, or other orders, made by the real estate council under this Act;

(ii) communications by the real estate council to licensees;

(iii) communications by the real estate council made available to the public;

(f) provide reports to the superintendent on the operations and activities of the real estate council;

(g) engage independent third parties to provide assessments of the operations and activities of the real estate council.

(2) The superintendent may serve as a member of a hearing committee established under section 83 [hearing committees], other than a discipline committee established under subsection (1) (a) of that section.

(3) The role of the superintendent does not include the following:

(a) the power to determine the content of the notice of discipline hearing under section 40 (2);

(b) the oversight or direction of a discipline committee, or the participation in its proceedings.

Superintendent rules

89.2   (1) Subject to the regulations, the superintendent may make rules that the superintendent considers necessary or advisable

(a) respecting licensing, or

(b) regulating licensees in relation to the provision of real estate services.

(2) Without limiting subsection (1) but subject to the regulations, the superintendent may make rules as follows:

(a) respecting licences and the issuing of licences, including rules

(i) establishing, within a licence level, different categories of licence that are restricted to particular real estate services as identified by the rules,

(ii) respecting the duration of licences,

(iii) respecting the education, experience or other qualifications for a person to obtain or renew a licence, including rules conferring discretion to determine equivalent qualifications,

(iv) respecting licensing in relation to branch offices of a brokerage, and

(v) providing for the granting of temporary licences to personal representatives of deceased licensees, including rules conferring discretion to establish conditions and restrictions applicable to a specific temporary licence;

(b) establishing conditions and restrictions applicable to licences;

(c) respecting the relationships between and among brokerages and their related licensees, including rules

(i) respecting the supervision of associate brokers and representatives by managing brokers, and

(ii) providing for a related licensee of a brokerage to act as a managing broker for the brokerage in the temporary absence of a managing broker for the brokerage;

(d) requiring licensees to undertake continuing professional education;

(e) establishing or adopting standards of conduct and business practice standards for licensees, including rules

(i) respecting the keeping and operation of trust accounts by licensees,

(ii) regulating the operation of offices by licensees,

(iii) respecting the use of business names by licensees,

(iv) respecting the form and content of advertising carried out by licensees,

(v) establishing or providing for the establishment of standard forms for use in providing real estate services, and requiring their use by licensees, and

(vi) respecting the making of disclosures by licensees in relation to the provision of real estate services;

(f) requiring licensees to

(i) provide reports, returns and other information to the real estate council, and

(ii) allow the inspection and auditing of their books of account and other records by the real estate council;

(g) requiring licensees to acquire, maintain or provide a bond or other form of security and, in relation to this,

(i) respecting the amount and form of such security and the terms and conditions under which it is to be provided, and

(ii) respecting the forfeiture of the security and the payment of claims against the security;

(h) respecting any other matter for which rules are contemplated by this Act, including the designation of contraventions for the purposes of section 56 [designated contraventions and penalty amounts];

(i) respecting any other matters provided in the regulations.

(3) Without limiting subsection (1) or (2) but subject to the regulations, the superintendent may make rules as follows:

(a) providing for the payment of expenses, by an applicant, of hearings conducted by a hearing committee of the real estate council to determine whether the applicant is qualified to be licensed;

(b) establishing conditions and restrictions applicable to brokerages respecting the involvement of the following individuals in the brokerage's operations:

(i) a partner, or a director, officer or shareholder of a corporation that is a partner, in the case of a brokerage that is a partnership;

(ii) a director, officer or shareholder of the corporation, in the case of a brokerage that is a corporation;

(iii) a sole proprietor, in the case of a sole proprietorship;

(c) establishing a code of ethics for licensees;

(d) establishing or providing for the establishment of standard terms to be included in proposed contracts or forms prepared by licensees for consideration by a party to whom or on whose behalf a licensee is providing real estate services;

(e) respecting the provision of real estate services to more than one party, including conditions and restrictions applicable to the provision of trading services to or on behalf of different parties to a trade in real estate;

(f) respecting agreements for the payment of remuneration to licensees, including information that must be included in agreements, and establishing conditions and restrictions for payment of the remuneration;

(g) requiring the making of disclosures or the provision of other information by licensees to parties to trades in real estate who are not represented by a licensee;

(h) implementing a registry of information respecting real estate sales data obtained from licensees;

(i) establishing conditions and restrictions on a licensee acquiring an interest in real estate if the licensee, or a related licensee, is providing real estate services in respect of that real estate;

(j) respecting the winding up of a brokerage or the transfer of the business of a brokerage, including requiring the appointment of a managing broker or other person to direct the winding up or transfer.

(4) The superintendent may make different rules under this section in relation to

(a) different levels of licences,

(b) different categories of licences, and

(c) different circumstances as described in the rules.

(5) The superintendent may make different rules under subsection (2) (a) respecting the issuing of licences, the renewal of licences, the amendment of licences and the reinstatement of licences.

(6) A rule under this section

(a) may be made effective on

(i) the date on which it is made, or

(ii) a future date specified by the rule, and

(b) may be made applicable to current licensees either

(i) at the time the rule becomes effective, or

(ii) at the time of licence renewal.

(7) The authority of the superintendent to make rules under this section is subject to any restrictions or conditions established by regulation.

Consolidation and revision of rules

89.3   (1) Subject to the regulations, the superintendent may make rules giving effect to an editorial consolidation or revision of all or some of the rules that does one or more of the following:

(a) consolidates provisions and omits spent provisions;

(b) alters the form, style, punctuation, numbering and arrangement of provisions;

(c) corrects typographical errors.

(2) The authority under subsection (1) does not include the authority to make substantive changes to the rules.

Procedures relating to rules

89.4   (1) The rules must be made in accordance with any applicable regulations.

(2) The superintendent must

(a) publish copies of the rules, and

(b) provide a copy of the rules to the real estate council for the purposes of section 88 (1) (b) (ii) [council records].

(3) The Regulations Act does not apply to the rules.

91   (1) The board of governors of the foundation consists of the following 5 individuals:

(a) 1 member appointed by the real estate council;

(b) 1 member appointed by the British Columbia Real Estate Association;

(c) 1 member appointed by the Real Estate Institute of British Columbia;

(d) 1 member, not licensed under this Act, appointed by the minister;

(e) the minister or another member appointed by the minister.

Amounts that may be paid from fund

114   In addition to amounts required to be paid under Part 5 [Payments from Special Compensation Fund], the compensation fund corporation may authorize payment out of the special compensation fund for expenses incurred

(a) to reimburse the real estate council for its expenses in relation to dealing with claims under that Part,

(b) to administer the fund, including expenses incurred by the directors of the compensation fund corporation in carrying out the purposes of the fund and remuneration paid to directors,

(c) to process claims against the fund,

(d) for any other matter relating to the protection and maintenance of the fund, or

(e) for any other prescribed matter.

Special compensation fund minimum capital requirement

116   (1) If the capital of the special compensation fund at any time falls below the minimum amount of capital prescribed for the purpose of this section, the compensation fund corporation must immediately advise the real estate council.

(2) If

(a) the capital of the special compensation fund is less than the minimum amount of capital referred to in subsection (1), or

(b) the real estate council considers it in the public interest to do so,

the real estate council may, by order, require licensees or classes of licensees to provide security against liability for compensable loss,

(c) in the amounts specified by the real estate council,

(d) in a form satisfactory to the real estate council,

(e) by the time specified in the order, and

(f) for the period specified in the order.

(3) An order under subsection (2) may make different provisions for different classes of licensees as defined in the order.

(4) If a licensee that is subject to an order under subsection (2)

(a) does not provide the security as required by the order, or

(b) ceases to provide the security as required by the order,

the licence of the licensee is suspended as of the next day after the date on which, as applicable, the security was to be provided or the security ceased to be provided.

(5) On application of a licensee whose licence is suspended under subsection (4), the real estate council must reinstate the licence if

(a) the licensee provides evidence satisfactory to the real estate council that the required security is now provided, or

(b) the order under subsection (2) is rescinded.

Penalties for committing offences

119   (1) A corporation that commits an offence under section 118 [offences] is liable

(a) on a first conviction, to a fine of not more than $50 000, and

(b) on each subsequent conviction, to a fine of not more than $100 000.

(2) An individual who commits an offence under section 118 [offences] is liable

(a) on a first conviction, to a fine of not more than $50 000, or to imprisonment for not more than 2 years, or to both, and

(b) on each subsequent conviction, to a fine of not more than $100 000, or to imprisonment for not more than 2 years, or to both.

Information-sharing and confidentiality

122   (1) The real estate council and the superintendent may, for the purposes of their powers and duties under this Act, share information and records obtained under this Act.

(2) A person who, in the course of exercising powers and performing duties under this Act, obtains information or records that are submitted in accordance with a request or obligation under this Act, must not disclose the information or records to any person other than

(a) for the purposes of administering this Act, the regulations, the rules and the bylaws,

(b) for the purposes of a proceeding for an offence, or

(c) for a purpose authorized under the Freedom of Information and Protection of Privacy Act or as required by law.

(3) Except in respect of a proceeding under this Act, a person to whom subsection (2) applies may not be compelled in a civil proceeding to disclose or give evidence respecting any information or records obtained in the course of exercising the person's powers or performing the person's duties under this Act.

Evidence of licence

127   A statement as to the existence, nonexistence or status of a licence under this Act purporting to be certified by

(a) the chair or vice chair of the real estate council,

(b) the executive officer of the real estate council, or

(c) another employee of the real estate council designated by the real estate council for this purpose

is proof in the absence of evidence to the contrary of the fact so certified, without proof of the signature or official position of the person certifying the statement.

Immunity from legal action

128   (1) In this section, "protected individual" means an individual who is or was any of the following:

(a) a council member;

(b) a member of a hearing committee;

(c) the superintendent;

(d) a member of the board of governors of the foundation or a director of the insurance corporation or the compensation fund corporation;

(e) an employee of, officer of, or any other individual acting on behalf of or under the direction of, the real estate council, superintendent, foundation, insurance corporation or compensation fund corporation.

(2) Subject to subsection (4), no legal proceeding for damages lies or may be commenced or maintained against a protected individual, the real estate council or the government because of anything done or omitted

(a) in the performance or intended performance of any duty, or

(b) in the exercise or intended exercise of any power

under Division 2 [Discipline Proceedings] of Part 4, under a provision of that Division as it applies to the superintendent or under sections 49 to 51 [superintendent's orders].

(2.1) Subject to subsection (4), no legal proceeding for damages lies or may be commenced or maintained against a protected individual, the real estate council, the compensation fund corporation or the government because of anything done or omitted

(a) in the performance or intended performance of any duty, or

(b) in the exercise or intended exercise of any power

under Part 5 [Payments from Special Compensation Fund].

(3) Subject to subsection (4), no legal proceeding for damages lies or may be commenced or maintained against a protected individual because of anything done or omitted

(a) in the performance or intended performance of any duty under this Act, other than a duty under the provisions referred to in subsection (2), or

(b) in the exercise or intended exercise of any power under this Act, other than a power under those provisions.

(4) Subsections (2), (2.1) and (3) do not apply to a protected individual in relation to anything done or omitted in bad faith.

(5) Subsection (3) does not absolve the real estate council, government, foundation, insurance corporation or compensation fund corporation, as applicable, from vicarious liability arising out of anything done or omitted by a protected individual for which it would be vicariously liable if that subsection were not in force.

Minister may direct review

129   (1) The minister may, if the minister considers that the circumstances warrant this, appoint a person to review

(a) any matter relating to the real estate council, foundation, insurance corporation or compensation fund corporation, or

(b) any other matter in relation to this Act.

(2) For the purposes of a review, the person conducting the review has the powers and protection of a commission under sections 22 (1), 23 (a), (b) and (d) and 32 of the Public Inquiry Act.

(3) On completion of a review, the person conducting the review must make a report to the minister including, if so requested by the minister, the evidence, findings, comments, recommendations and any material in the possession of the person relating to the review.

(4) On receiving a report under subsection (3), the minister may, by order, direct the real estate council, foundation, insurance corporation or compensation fund corporation to take any action that the minister considers appropriate in the circumstances.

(5) The minister may publish all or part of a report under subsection (3) in any way the minister considers appropriate.

Power to make regulations

130   (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:

(a) defining a word or expression used but not defined in this Act;

(b) exempting classes of persons from the requirement to be licensed in order to provide real estate services and establishing restrictions and conditions in relation to an exemption;

(b.1) respecting a minimum rate of interest for a brokerage trust account;

(c) conferring additional powers and imposing additional duties and restrictions on the real estate council and council members, including by prescribing matters respecting which the real estate council may or must make bylaws;

(c.1) conferring additional powers and imposing additional duties and restrictions on the superintendent, including by prescribing matters respecting which the superintendent may or must make rules;

(d) imposing fees or assessments to be paid by licensees in relation to the issuing, reinstatement or amendment of a licence and, in relation to this,

(i) establishing different fees and assessments in relation to different levels or categories of licence,

(ii) establishing the manner in which and the time at which fees and assessments must be paid,

(iii) establishing penalties or interest charges that are payable in the case of late payment, and

(iv) requiring the real estate council to collect the fees, assessments, penalties and interest charges and to pay them to the superintendent;

(d.1) prescribing the purposes for which any money that is received by the real estate council or the superintendent on account of an additional penalty under this Act may be expended;

(e) respecting procedures for the making and giving notice of bylaws by the real estate council, which may be different for different types of bylaws;

(e.1) respecting procedures for the making and giving notice of rules by the superintendent, which may be different for different types of rules;

(f) respecting the manner in which orders, reports and other records that are required to be published under this Act must be published;

(g) allowing individuals to provide real estate services, as a managing broker, associate broker or representative, through a corporation of which they are the sole voting shareholder, the sole director and the president and, in relation to this,

(i) establishing restrictions and conditions, including establishing conditions under which such an individual is deemed to be engaged by a brokerage, and

(ii) providing any exceptions or modifications of this Act, or any additional provisions to this Act, that the Lieutenant Governor in Council considers advisable for the purposes of the application of the Act to licensees who are providing real estate services through such a corporation;

(h) respecting any matter for which the real estate council may make bylaws or the superintendent may make rules, including establishing for the purposes of subsection (3) what constitutes a conflict in relation to the regulation;

(h.1) designating one or 2 persons or bodies to appoint one or 2 individuals as members of the board of governors of the foundation under section 91 (1) (d.1);

(h.2) prescribing qualifications for members of the board of governors of the foundation appointed under section 91 (1) (d.1);

(i) for any other matter for which regulations are contemplated by this Act.

(3) To the extent of any conflict between a regulation under this section and a bylaw or rule, the regulation prevails.

Definition

131   In this Part, "former Act" means the Real Estate Act, R.S.B.C. 1996, c. 397.

Relationship between this Part and the remainder of this Act

132   To the extent of any conflict between

(a) a provision of this Part or a regulation under this Part, and

(b) a provision of another Part of this Act or a regulation under another Part of this Act,

this Part or the regulation under this Part prevails.

Licences continued

133   (1) A licence issued under the former Act is continued under this Act as follows:

(a) an agent licence under the former Act is deemed to be a brokerage licence;

(b) a nominee licence under the former Act is deemed to be a managing broker licence;

(c) an agent licence under the former Act of an individual to whom a certificate was issued under section 9.15 of B.C. Reg. 75/61 is deemed to be an associate broker licence;

(d) a salesperson licence under the former Act is deemed to be a representative licence.

(2) A licence referred to in subsection (1) continues to authorize the provision of real estate services that it authorized under the former Act, subject to the restrictions and conditions that applied under the former Act.

(3) The real estate council may

(a) by rule, establish how the categories of licence within licensing levels under the former Act apply under this Act, and

(b) amend continued licences to reflect this.

Transition to new council membership

134   (1) Subject to the regulations under this section, the members of the real estate council at the time that section 76 [election of council members] of this Act comes into force continue in office in accordance with the former Act.

(2) The Lieutenant Governor in Council may make regulations providing for transition to the composition of the real estate council under this Act including, without limiting this,

(a) allowing council members to continue in office to represent and to be elected to represent a District as established under the former Act,

(b) providing for a larger council membership than established by this Act,

(c) providing that the term of a council member ends earlier or continues longer, or that a council member may continue to hold office for longer, than the time that would otherwise apply, and

(d) providing for elections for a portion of the real estate council members to be held in alternate years.

(3) The real estate council may appoint the first council member to hold office under section 76 (3) (j) [property or strata management services member] for the term specified in the appointment, subject to the limit that this may not be longer than 2 years.

Funding for special compensation fund

135   (1) For the purpose of providing initial funding for the special compensation fund,

(a) the real estate council may make a grant of not more than $500 000 to the compensation fund corporation, and

(b) the foundation may make a grant or loan from the foundation fund, or provide a guarantee secured by the foundation fund, to the compensation fund corporation.

(2) An amount loaned or guaranteed under subsection (1) is deemed to be capital of the special compensation fund for the purposes of section 116 [special compensation fund minimum capital requirement].

Initial set of bylaws and rules

136   (1) For the purposes of implementing this Act, the minister may, by order, make bylaws under section 84 [general bylaws] and rules under section 86 [council rules] that come into force on the date that those provisions come into force, and in relation to this,

(a) the real estate council may not make such bylaws and rules, and

(b) regulations referred to in section 130 (2) (e) [procedure relating to bylaws and rules] do not apply to a bylaw or rule made under this subsection.

(2) A bylaw or rule made by the minister under subsection (1) is deemed to have been made by the real estate council.

(3) Until the end of the first year after this Act comes into force, the real estate council may make a bylaw or rule without complying with regulations referred to in section 130 (2) (e) [procedure relating to bylaws and rules] if the minister approves the bylaw or rule, but subject to any conditions established by the minister.

Transitional regulations

137   (1) The Lieutenant Governor in Council may make regulations respecting any matters necessary for more effectively bringing into operation the provisions of this Act and for facilitating the transition from the operation of the former Act to this Act and for remedying any transitional difficulties encountered in doing so.

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:

(a) for meeting or removing any difficulty arising out of the transition to this Act from the old Act, and for that purpose disapplying or varying any provision of this Act;

(b) providing that, until a date specified by regulation, section 3 [requirement for licence to provide real estate services] does not apply in relation to the provision of strata management services or in relation to the provision of strata management services provided by an individual, partnership or corporation who is not a licensee;

(c) providing that Part 5 [Payments from Special Compensation Fund] does not apply to loss that would otherwise be compensable loss if

(i) the loss was in relation to the provision of strata management services, and

(ii) the conduct that caused the loss occurred before a date prescribed by the regulation.

(3) The authority to make or amend a regulation under this section, but not the authority to repeal a regulation under this section, ends 3 years after the date on which this section comes into force.

Definitions

137.1   In this Part:

"former council" means the real estate council that was in place immediately before the coming into force of this section;

"former elected council member" means an elected council member of the former council elected in accordance with section 74 [council membership] or temporarily appointed under section 76 (5) [election of council members], as those sections read immediately before the coming into force of this section;

"former strata owner representative" means a member of the former council appointed in accordance with section 74.1 [strata owner representative], as that section read immediately before the coming into force of this section.

Transition — council members

137.2   (1) On the coming into force of this section, the following members of the former council cease to hold office:

(a) the former elected council members;

(b) the former strata owner representative, if any.

(2) No legal proceeding for damages lies or may be commenced or maintained as a result of a former elected council member or former strata owner representative ceasing to hold office.

(3) The council members of the former council who were appointed under section 74 (1) (b) [council membership], as that section read immediately before the coming into force of this section, continue to hold office under section 74 (1) as enacted by the Miscellaneous Statutes (Housing Priority Initiatives) Amendment Act, 2016.

Transition — superintendent rules

137.3   (1) The contraventions designated by regulation under section 56 (1) [designated contraventions and penalty amounts], as that section read immediately before the coming into force of this section, are deemed to have been designated by the superintendent, by rule, under section 56 (1) as enacted by the Miscellaneous Statutes (Housing Priority Initiatives) Amendment Act, 2016.

(2) The rules made under section 86 [council rules], as that section read immediately before the coming into force of this section, are deemed to be rules made by the superintendent under section 89.2 [superintendent rules] as enacted by the Miscellaneous Statutes (Housing Priority Initiatives) Amendment Act, 2016.

(3) Until the end of the first year after this section comes into force, the superintendent may make rules under section 89.2 without complying with section 89.4 (1) [procedures relating to rules].

Transition — discipline and hearing committees

137.4   In the event that, on the coming into force of this section,

(a) a discipline committee has been established under section 39 [discipline committees] or another hearing committee has been established under section 83 [hearing committees],

(b) the discipline committee or the hearing committee consists of a single council member who ceases to hold office under section 137.2 (1) [transition — council members] or a majority of council members who cease to hold office under that section,

(c) a final decision in the proceeding has not been made, and

(d) it is not practicable to proceed in accordance with section 83 (3) and (4),

the real estate council may establish a new discipline committee or a new hearing committee to proceed with the matter as if the discipline committee or the hearing committee established before the coming into force of this section had not been established.