The Principles of Sanction

No doubt there are some industry professionals who anxiously await the Real Estate Council of Alberta (RECA) case summaries that are distributed a couple of times each month. It can be interesting to read which of your peers have been sanctioned by RECA. But how many of you, even those who read the summaries on a regular basis, know how sanctions are determined or who makes that determination?

RECA sometimes hears from industry professionals that so-and-so’s sanction was too harsh—and other times, we hear it’s not harsh enough. I think we might all feel a little more comfortable with the sanctions being ordered if we had a better understanding of what happens behind the scenes with respect to sanctioning.

Let’s first look at Administrative Penalties.

Administrative Penalties are typically issued when a professional conduct review file (previously referred to as an investigation file) indicates one or two straight-forward, though potentially serious, issues.

Despite it being the Executive Director’s signature on Administrative Penalties, the amount of penalty to be imposed is set out in Schedule 2 of the Bylaws, made pursuant to the Real Estate Act, and is not at the discretion of RECA administration.

Now let’s move on to Hearing Panel orders and sanctions.

When a Hearing Panel makes a finding of conduct deserving of sanction in a fully contested hearing and must decide on a reasonable sanction, there are many issues that need to be considered. The leading Court case, which sets out 13 criteria for consideration when deciding sanction is the Newfoundland Supreme Court case Jaswal v. Newfoundland Medical Board [1996] N.J. 50. Green, J. (as he then was). To paraphrase, it set out the following criteria:

1. nature and gravity of the breaches
2. age and experience of the offending person
3. previous character of the offending person
4. age and mental condition of the offending person
5. number of times the breach(es) occurred
6. role of the offending person
7. ehether the offending person had already suffered financial or other penalties as a result of the breaches
8. impact of the breach(es) on the complainant or others
9. mitigating circumstances
10. promotion of specific and general deterrence to protect the public
11. need to maintain the public’s confidence in the integrity of the profession
12. degree to which the breach(es) are regarded, by consensus, as being outside the range of acceptable conduct
13. range of sanction in other similar cases

With so many considerations in the sanctioning process, it is impossible for any two cases to be completely the same. RECA staff are not hearing or appeal panel members. Disciplinary decisions are ultimately made by industry professionals just like you.

Which of the 13 sanctioning criteria do you think are most important? Why?

This article was updated on April 4, 2020 to remove reference to a consent agreement process, which is no longer in use.