In the midst of its proposed update, one question not being asked is, “Do we really need the full force of the law behind the registrant’s Code of Conduct?” I defy a single lawyer in the Province of Ontario to convince me of its legality. Any lawyer who endorses the legitimacy of the Realtor code might quickly point out “but the legal profession has one!”

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Sure they do, with two caveats. The lawyers aren’t stupid enough to codify their profession into a mere nine pages. Theirs is beefed up to 150 pages. And the ultimate trump card: they’re self-regulated.

So, the next question from those left-leaning social constructionists is, “Well how many pages will it take to comprehensively codify a Realtor’s handbook?” And the answer is, “How long is a piece of string?”

Don’t be facetious you say. Well, the beauty and the beast about the real estate industry is its complexity. And the beauty and the beast about human behaviour is its complexity. You do the math.

There’s no place for the state in the bedrooms of our nation, and there’s no place for the state’s arbitrary enforcement of agency conduct on how to list and sell those bedrooms.

Let’s take a peek at modern day agency. Listing agents aren’t just handed the keys to a house. They’re handed the keys to someone’s life. They shoulder stress and balance family dynamics. They’re privy to intimate information, possibly embarrassing or even compromising information. They play supporting actor roles such as spiritual advisor, psychologist, family therapist, referee, arbitrator, counselor, friend, confidant and no doubt others. And all of that says nothing of their business role.

Agents are accountable for scores of decisions. Photos to use or not use. To stage or not to stage. Pre-inspect or not. Inclusion or exclusion of floor plans or other attachments. Signage, showings, pricing strategies, open houses, flyers, ads…. The right narrative could come down to a single word. The right offer could come down to the right quip, directed at the right party, under the right circumstances.

Is it really that complicated? In a word, yes!

And every single agent makes countless decisions without the explicit authority of his or her client. So how is it our beloved regulatory authority isn’t intervening every single step along the way to babysit that elusive “bar of professionalism”?

Well, here’s the answer. The industry has been sold a fraudulent bill of goods that reeks of illegality. When agents enter into a listing agreement with their client, an explicit authority (to list) has been created. However, they also enjoy, by way of agency common law, an implicit authority. This implicit authority, by necessity, is read into or implied as part of an agent’s express authority. One law school professor summed it up like this: every agent has an implied authority to do “everything necessary for, and ordinarily incidental to, carrying out his express authority according to the usual way such authority is executed”.

Without getting bogged down in legal mumble jumble, here’s the punchline. The courts have ruled an agent’s implied authority is far more generous than our regulatory authority would have you believe. Nor is it in their best interest to bring it to your attention, thereby safeguarding the fiefdom of its autocratic dictatorship and the preservation of its arbitrary adjudication of your conduct.

In fact, the court’s position on implied authority cannot be described as tepid.  There are many cases where a principal (the client) is bound by the actions of their agent, despite the agent having exceeded their true authority. At this point, I’m guessing the vast majority of registrants just went “OMG” and then “WTF”.

Yes, the pervasive view of the court has been to place the burden on the principals (the clients) to govern their agents’ conduct. But if you think about it, this all makes sense. Why? Well, the privileged profession of agency throughout history comes down to one word: trust. Yes, clients trust their agents. They trust their agent to manage the countless decisions required to resolve their real estate needs. As an obvious example, the vast majority of agents routinely deal with clients who don’t read the fine print, and wouldn’t, even if a gun were held to their head, all because of trust.

Sadly, the press, motivated by their need for eyeballs, relish those relatively rare ‘bad apple’ stories providing the fodder for the neo-Marxist leftists to promote their social constructionist philosophies. And incidentally they’re incredibly good at it, both the media and the neo-Marxists. You don’t think it took skill and finesse to castrate the 100-year-old Ontario Real Estate Association of its educational role for the industry?

The concerns of confusing and conflicting language were raised by Dr. Jordan Peterson in his review of Bill C-16 and the human rights policy statements predicting outcomes “will be worked out very painfully in the confines of peoples private lives.” That very prediction has already been played out in the lives of thousands of registrants over the years with mean-spirited proceedings accomplishing what? Arbitrary, capricious and self-serving “coulda shoulda” rulings jammed down the throat of naïve and vulnerable registrants.

No one can deny the axiomatic benefit of good practice guidelines, but the law should focus on real crime, not orchestrated punishment, and it certainly has no business adjudicating its arbitrary interpretation of compelled conduct. Do I think we’d all better off with the legally compelled practise of holding doors open for others? Yes. But then you’d have to have me committed with a case of temporary insanity. Did I hold it open long enough? Did I strip away the dignity from a perfectly capable person?  Were my actions bias, unfair or prejudicial? And so on…

I’d love to cite my legal credentials here but I’m merely a grad of the school of hard knocks. That said, I’d like to leave the world of law and end this piece in the world of science.

Egas Moniz claimed, “Normal psychic life depends on the good functioning of brain synapses, and mental disorders appear as the result of synaptic derangements. Synaptic adjustments will then modify the corresponding ideas and force them into different channels. Using this approach, we obtain cures and improvements but no failures.”

When the Real Estate Council of Ontario (RECO) was formed as the brain-child of those social scientists putting the full force of the law behind the codification of Realtor conduct, I’m sure the theory was “to obtain cures and improvements but no failures”.

Dr. Moniz was the brilliant Portuguese neurologist Nobel laureate responsible for inventing the synaptic adjustment procedure, which resulted in tens of thousands of people receiving the treatment who, as it turned out, had absolutely nothing wrong with them. You may know of the procedure by its more common name, “frontal lobotomy”.

No, RECO hasn’t performed any frontal lobotomies on its registrants, but for countless registrants their punishment was even worse. A kind of spiritual lobotomy. Blindsided by a complaint letter where substantially good intentions resided. And even though by their own admission RECO claims to understand “that being the subject of a complaint can be stressful” that’s never stopped them imposing their arbitrary, self-serving code prosecutions all in the name of “raising the professional bar” and purporting to somehow protect that cherished consumer.

You’d like to think they’d never admit that raising their own self-importance is the single most important message they want Joe Public, the media and the industry to embrace, but their propaganda is unapologetic about their apparent immortal self-prognostication. RECO’s nutritionally deficient but syrupy 2019 five-year Strategic Plan claims they are “well-equipped with the tools and people needed to embrace the challenges and opportunities in the foreseeable future, and beyond.” Maybe in a galaxy far, far away? I’m sure I just heard Mr. and Mrs. Lunar Consumer breathe a sigh of relief.

“All people know the same truth. Our lives consist of how we choose to distort it.” – Woody Allen

Is there one registrant in the province who wouldn’t have preferred to see the tens of millions wasted on lavish premises, generous payrolls, self-serving promotion and frivolous proceedings invested in something positive like homeless shelters, for example? I’m betting the press would really struggle to admonish Realtor conduct in those circumstances.

15 COMMENTS

  1. Thank you my friends. Above all, I appreciate your passionate responses, even the less than kind ones, they’re helpful too. I’ve also had some very positive support privately. I’m taking this opportunity to specifically acknowledge REM’s editor. Jim has had a glimpse of the bigger picture and I appreciate his support.
    For the record I’m neither on the right nor the left. I’m on the side of the truth and I despise tyranny. RECO’s conduct has perplexed countless lawyers I’ve dealt with including one of their own former lawyers of several years. It would never have occurred to me to prescribe an ideology to this social construct, but after listening to the wisdom of Dr. Jordan Peterson I’ve concluded it’s the ONLY rational explanation.
    More will be revealed in future pieces.
    Brian D. Gogek

  2. The biggest complaint I have with RECO and all the other self-regulating professions is that they are unwilling take the necessary actions to get rid of the “bad apples”. I agree with the point made by Brian Martindale, that RECO is far too lenient with too many people in the industry who either don’t know how to work ethically with the public, or by design choose not to in an effort to pad their own pockets. RECO has (or should have) absolutely no need to protect a registrant’s income if they have repeatedly (i.e. more than once) shown disregard for their clients. The same situation applies to the regulatory bodies that deal with lawyers, doctors, engineers, accountants, etc., etc.

    If you cannot figure out how to do your job within the confines of what is generally deemed to be good ethical behaviour, then it’s time to find a different kind of employment, regardless of how much money you make and how much education you have.

  3. Love the manner in which you have explained everything so logically. Everything you’ve said is so true and I hope the competent politicians that we have left, very few though get to read this and do something good for Ontario finally!!! RECO is a sham and an embarrassment to our Industry and I feel strongly that we should create a Forum of REALTORS so we can together talk to these so called big wigs. The oxy moron of all of this is….. Operation Successful – Patient Deal (The reputation of our Industry has been reduced to worse than Used Car Salesmen and RECO claims to be successful???)

    • Looks to me like the RECO Code of ETHICS at work:

      “A Proposal to Revoke the Registration of Amarjot (AJ) Lamba (Lamba) was issued by the Registrar on April 22, 2021. The grounds for the proposal relate to complaints received regarding his past conduct including a history of alleged abusive, threatening and harassing conduct towards clients and brokerage employees, and other alleged patterns of concerning conduct. A Proposal to Revoke the registration of Whitehill Realty International Inc., for which Lamba is the broker of record, was also issued. The proposal is subject to the individual’s right of appeal.”

  4. I swear, if people want to be heard, they should take care in what they’re saying.

    There’s no such thing as the “Ontario Realtor Code of Conduct”. You either are referring to CREA’s Realtor Code (which is nationwide and not a provincial or federal law), or the Code of Ethics as part of REBBA 2002 (which is currently being rebuilt as a part of the application of TRESA).

    It’s hard to put any stock into what you’re saying when it’s clear you don’t actually know what you’re talking about.

    • He doesn’t know what the heck he’s even angry about!

      Dude complains that the code gives less leeway to agents than do the courts and in the next breath acknowledges that the court also punishes principals because their agent over-stepped their bounds.

      He doesn’t even realize that the very existence of a principal’s liability for damage caused by the agent acting in their name warrants the code of ethics.

  5. The downfall of our industry has been and will be part-time realtors. The rest of us eat, sleep and breath our work because it’s our livelihood and our passion. We are on the pulse and up to the minute on updates, legalities and market shifts. I’m sure we have all experienced situations with part-timers misinformation, wrong paperwork, and having to help them do their job so that we can do ours ! I have complained to Reco, OREA and TRREB and left numerous comments on surveys. No one has ever replied !

    • That is a purely ridiculous and discriminatory generalization. Both RE/MAX and Royal LePage were built by the hands of entrepreneurs that had many revenue streams and projects on the go simultaneously. I’d be willing to bet my next commission that there are a dozen agents in your own office that clock less time than you do, and have a better understanding and level of service to their clients than you do – especially with an exclusionary perspective like yours.

      What constitutes “part-time” to you? How do you determine who’s worthy and who isn’t? Do we really want to give the government the right to decide that? How awful.

      • Anon:

        The word conduct deals with behaviour.

        The word ethics deals with morality.

        You are clouding the waters with your biased opinion regarding what O.R.E. says what about what. One’s behaviour reflects one’s attitude as it pertains to one’s interpretation of what ethical behaviour consists of…if one even pays any attention at all to what is expected of one’s self regarding ethical behaviour. Don’t throw the dirty bath water out with the baby. You know what Brian is referring to, being, what the various Codes zero in on and what they ignore.

        Regarding generalizations: You are doing the same thing when you state that, “…there are a dozen agents in your own office that clock less time than you do, and have a better understanding of the level of service to their clients than you do—“. You qualify that assertion by saying, “I’d be willing to bet my next commission…”. You are, therefore, an anti-generalizer-generalizer.

        I would determine a part-timer to be someone who on one hand holds a real estate license and who on the other works at another paying job. A full-timer who does one deal per year, or maybe even two or three—aside from newbies trying to get their feet wet—would qualify as being a part-timer in my book.

        Years ago I came onto this site and defended all Realtors as being bona fide professionals. I haven’t done that for quite a long time now. Why? Because I had to admit to myself that I was wrong in that regard. There are many professionals operating as Realtors, just not nearly enough. O.R.E’s Codes of Conduct and Codes of Ethics see to that. How so? Because they’re full of holes large enough to allow for dump-trucks-full of unethical behaviour to plow through, to flourish, right under the indignant noses of actual professionals who’s communal hands (read mouths) are straight-jacketed into silence. If every single unethical behaviour was brought to light, and properly dealt with, there wouldn’t be hundreds of thousands of Realtors left standing, methinks. But O.R.E doesn’t want to become involved in culling their cash cows…even if they’re a different bunch cycling in and out of the game on a monthly basis. Like I’ve said herein many times before, it’s a wonder there are as many pros in the field as there are. Pros do it for their clients. The rest do it for the cash. Big difference…and O.R.E. knows it.

        • We all know what a “part-timer” is. I tend to do 3-5 deals per year, and spend more time working in the industry than actually selling real estate. I guess i’m part of the problem so many people are lambasting. However, I spend MORE of my professional working hours coaching agents and brokers, working within ORE as a director, consultant, committee member etc., sitting on RECO committees and advocating for positive change. Oh please, someone take my registration away, I’m not worthy.

          I’m not sure if you’re at all aware – you seem to be entirely oblivious – but self-employed industries are not much different from real estate. The 80/20 (closer to 90/10 in recent decades) exists worldwide. The chance that you are the best and the smartest in the room is comparable to the number of people in the room. Isn’t it?

          Half of the population in any given group (a group of 63,000 TRREB agents, for example) is below average. This could be identified in any number of ways. Production, intelligence, EQ, you name it. The best of the best are truly the top 10+ percentile. Welcome to society, buddy – get a helmet.

          Yet here we are, blaming RECO for the law of averages. As if a change in the “Realtors Code of Conduct” (whatever that is) could in any way lower that average so there’s more high producers and less people that only do 3 deals a year.

          I still don’t understand how people that do 3 deals a a year are automatically classified as bottom-feeders, BTW. People are entitled to be great – AND have other focuses. I see you’re unfamiliar with that possibility.

          • Anon:

            Re your 80/20, 90/10 claim that the very few (Realtors) do the vast majority of the deals: That claim is a myth, mythster. Have a look at Leon d’Ancona’s piece (Leon d’Ancona: Debunking The Myth: April 3, 2009 – https://www.realestatemagazine.ca/debunking-the-1090-myth/) as presented herein. He debunks your claim, said claim widely held by most everyone because most everyone keeps on repeating it as the gospel truth…which it’s not. It’s a lie.

            Yes, “The best of the best are…the top 10+ percentile.” But what are they the best at? Turning deals, that’s for sure. But exactly ‘how’ do they turn those deals? Are you saying that ‘all’ of these top-ten folks must of necessity be ethical at all times under all circumstances day in and day out? In other words, they have achieved perfection at all times regarding treating clients ethically in pursuit of those big fat commissions? Could it be that embedded within that 10% are some of the slipperiest scoundrels ever to slither across the face of the earth, being lower than a snake’s belly in a well-worn wagon-wheel rut? How about 10%? Maybe more? Maybe even 80%? Heaven forbid such a thought!

            “buddy—get a helmet.” you say? Listen buddy: Unless your name really is “Anon”, get a life and post under your proper name, so we know who we’re dealing with. If you’re so proud of your record, your accomplishments and, your advice as administered from on high, put yourself out there…unless you’re afraid of some kind of blowback. BTW, there’s no such thing as a “law of averages”. That’s another oft’ repeated line of crap, just like “Murphy’s law”.

            My pal, Jim-the-editor-guy, trashed my initial response to your ‘obviously superior’ arguments. Something about personal attacks not being allowed. So now you know what I think of some anonymous person—that would be you—trashing others’ opinions from on high…from the safety of the sidelines of anonymity. If you don’t currently have a pair, grow ’em.

            I look forward to your response…Mr./Mrs./Ms…?

  6. We have nothing to fear but fear itself, I am not afraid of the code of ethics, but you obviously are.

    It took just two paragraphs to turn your opinion into a political attack blanketing all who happen to be even a smidgen to the left of centre and which later devolved into neo-Marxist labels, That’s an ignorance that lays bare your haughty and misguided superiority that just delegitimizes anything else written and paints you as out there on the fringes of far right-wing nuttery.

    Perplexed, by your what on earth prompted you war cry, I had to see what other abstract nonsense filtered onto the page from your fear of ethics and morals and education and fiduciary duty.

    Didn’t take long:

    “They’re privy to intimate information, possibly embarrassing or even compromising information. They play supporting actor roles such as spiritual advisor, psychologist, family therapist, referee, arbitrator, counselor, friend, confidant and no doubt others. And all of that says nothing of their business role.”

    Nobel prizes for all I say and for good measure elevation into sainthood! Except, not one person in all of the combined 4-8 weeks of e-learning using legally sanctioned cheat notes educates for even one minutes, any agent on performing any of those roles, yet here you are and there is RECO and all the other authorities hearing cases day after day about unethical, immoral and incompetent conduct doing exactly what they are not supposed to do. Literally, just a few days ago I had my request for a survey questioned by a pompous know-nothing listing agent who claimed that because ‘it’s a newer property, there’s no need for a survey.’ 13 years old, an original owner and they have no survey? He wasn’t even fit to sharpen a pencil much less shine the shoes of anyone who is actually trained to do any of the above roles you suggest we do.

    This! if anyone actually goes OMG or WTF proves my point that if your real estate courses didn’t teach anyone that, they either weren’t listening or relied on those cheat sheets: “Yes, the pervasive view of the court has been to place the burden on the principals (the clients) to govern their agents’ conduct. But if you think about it, this all makes sense.”

    Lo and behold you provide yet another reason against your own position.

    As for your common law axiom, your e-learning law professor should explain how that gets trumped by a little legislative something called a statute.

    While, in a very, very rare case where I find myself not in agreement with Brian Martindale, he summed up exactly the one and only thing horribly wrong with the code: “What’s wrong with Ontario’s Realtor Code of Conduct? It demands a Realtor keep one’s mouth shut—publicly—when witnessing malicious wrong-doing by another Realtor in pursuit of a tainted commission. That smacks of major cover-up-itis in my mind.”

    It’s not just a few bad apples as you lament, that percentage flipped years ago. I run into more of those than the knowledgeable, ethical agents. This industry is getting worse not better! The problem is, far too many go unreported because as Brian M notes, we are barred from bringing into the open the sleezy tactics percolating within our industry, nor can we report a wrong without placing a target on our own back. Meanwhile the public tends to just be happy they’re done with the transaction and move on and maybe leave a bad review that just seems more like sour grapes.

    And not at all surprisingly, Brian David Gogek, therein lies the irony to your whole complaint – that gag order allows you to does exactly what you complain the code is infringing upon – the encouragement for bad actors to be bad.

  7. Brian M, in part:
    “… the criminal is protected whilst the good guy/gal is punished for warning the public.

    If memory serves me, from historical readings both Napoleon and Hitler punished the bearer of news deemed inappropriate; apparently that’s how their war(s) were ultimately lost, as their messengers were punished; it was not long before those messengers realized what happened to their cohorts, so the messengers stopped delivering much needed information and we know the rest of the War results.

    Our industry kingpins surely know by now that our industry is run amok in the name of protecting the public. A giant falsehood. As I understand it RECO is simply a watch dog. And was never meant to be an enforcer. But then their mandate changed over the years. And they continue to discover misplaced trust funds. According to someone in the know at RECO let it be often foreign Corp owners outside Canada are a problem we don’t hear about; they pay visit to Canada, travel here and empty out the Corp trust accounts and back home they go taking the trust funds off-shore. Apparently keeps RECO excessively busy. Don’t recall REM stories out of RECO speaking to that topic.

    Websites for example are meant to monitored by the brokerage. I haven’t ever met an agent who ran content by the broker (who has no time to monitor the websites of perhaps 800 or 200 agents in their control.)

    The topic of “consultant” designation is interesting. Even the terrific article by this author identifies himself as a consultant. It’s one of those nebulous id’s.

    Respectfully
    Carolyne L

    Sent from my iPhone

  8. Hi Brian;

    Your treatise is well written, cogent and, spot on.

    The navel-gazing, industry-specific dictators of the world ultimately turn on those for whom they profess their allegiance. There is no other target for them to absorb the arrows of their restrictive mindsets, for restriction’s sake. If they’re not governing, thus restricting, they’re not doing their job. Their power lies in their fulfilled need to restrict.

    Yes, there is a need for holding to account wrong-doers, once they’ve received a fair and unbiased hearing. Concentrate on those types, and leave the well-intentioned alone, unless ignorance of the law trips them up. One strike, and you’re on notice. Two strikes, and you’re out…permanently.

    Yes, the socialists/Marxist/Commies have infected our education system, and thus, the public mindset at large. There are too few makers and, too many takers. The stage has been set. Too many of us have been asleep at the switch. I saw it emerging while attending university as a mature student (age 35-38) during the mid 1980’s. Academia is infested with them. I had a great old time of it debating the Marxist-infused Political Science professors. It’s a wonder I earned my degree at all! I witnessed the naive, gullible young students—who possessed not a wit of life experience—fall easy prey to the communist diatribe in pursuit of their “A’s”. Sad. Unfortunately, those who have functioning, questioning brains residing in their skulls, who are not out to remake the world in their indoctrinated Marxist vision, are routinely scoffed at and labelled by those powers-that-be as being know-nothing trouble-makers of the rebellious kind. We’ve become a nation of blind followers of the faith, the socialist political faith, and that devotion to a false belief—which has routinely failed in practice—provides an easy pathway toward a ruinous road to economic hell, not to mention psychological strife, as we lose control of our own lives. It’s coming. Why would it not? There’s no resistance left, it seems…and “left” is the key word.

    What’s wrong with Ontario’s Realtor Code of Conduct? It demands a Realtor keep one’s mouth shut—publicly—when witnessing malicious wrong-doing by another Realtor in pursuit of a tainted commission. That smacks of major cover-up-itis in my mind. In other words, the criminal is protected whilst the good guy/gal is punished for warning the public. Does the behaviour of too many hypocrites within the hallowed halls of the Catholic Church ring a bell? (BTW, I was baptized Catholic, but I’m not what one would consider a good follower of the faith, because I’m just naturally not a follower, of anything, or anyone)

    The question now becomes thus: What can be done about Organized Real Estate’s dictatorship of the so-called elites? What kind of outfit routinely attracts newbies to the dues-paying fold like moths to a flame with the express intent of quickly releasing them onto the world of ignorant consumers in order to keep the money ball rolling…in their direction, and not the newbies’? OREA and all the rest of the so-called professional real estate organizations are nothing more than self-serving cannon-ball-fodder producers of the naive variety. “Step right up! Take a crack at big money! Be your own boss! A little dab’ll do ya…dues-wise that is. You can put your faith is us, because, after all… we’re here for YOU!
    SHHHHHHH…we mean…us.” C’mon bureaucrats, quit, get your licenses, and jump into the fray. Lets see what you all can do on your own without the benefit of having that guaranteed fat pay-cheque waiting for you at the end of every week, no matter what you did, or did not, accomplish. To the volunteers, kudos to you, but stop being suckers. You’re being groomed for bureaucratic success, to be able to swim with the elites as you finally rise to their much-vaunted heights of obvious superiority….when you become a sleazy politician.

    Brian: Keep on kicking ass; there’s a lot of it deserving the boot.

    Well, that’s it for now. Happy Thursday!

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