Complaint and Discipline Procedure
Disciplinary Process Overview
The New Brunswick Real Estate Association (“NBREA”) oversees a comprehensive complaints and discipline process to determine if its Members have committed acts of
- professional misconduct or
The Disciplinary Process is administered through NBREA’s Office of the Registrar. The following statutes, by-laws, and other documents are relevant to the Disciplinary Process:
- The New Brunswick Real Estate Agents Act (the “Agents Act”);
- An Act to Incorporate The New Brunswick Real Estate Association (the “Act”);
- NBREA’s By-Laws;
- NBREA’s Procedural Manual for Disciplinary Matters; and
- The REALTOR® Code.
Allegations of professional misconduct or incompetence against a Member of NBREA must be in writing and filed with the Registrar (the “Complaint”).
Stage 1: Complaints Committee
The Registrar provides written confirmation to the Complainant (the person filing the Complaint), the Respondent (the
Member named in the Complaint), and the Respondent’s Manager that a Complaint is being considered and investigated by
the Complaints Committee. The Respondent is provided 2 weeks to provide a written submission to the Complaints Committee (the “Reply”).
The Complaints Committee reviews the Complaint and Reply and determines if the matter is within its jurisdiction and if additional documents or information is required.
The Complaints Committee has the important function, when possible, of resolving Complaints. In certain circumstances, the Complaints Committee will facilitate a meeting with the Complainant and the Respondent, to determine if a voluntary resolution is possible. There is no obligation for the Complaints Committee to recommend a voluntary resolution and it will only attempt to do so at its discretion.
Conclusion of Complaints Committee Process
When the Complaints Committee has concluded its investigation and consideration of the Complaint, including any voluntary resolution, it will do one of the following (the “Decision”):
- Direct that the matter be referred, in whole or in part, to the Discipline Committee;
- Direct that the matter not be referred to the Discipline Committee;
- Direct that the matter be referred to the Minister for action under the Agents Act;
- Take such action as it considers appropriate in the circumstances to resolve the complaint or matter under investigation as long as such action is not inconsistent with the Act, the by-laws, or the Agents Act.
The Complaints Committee’s written Decision and reasons are provided to the Complainant, the Respondent, the NBREA Board (the “Board”), and the Minister of Justice and Attorney General (the “Minister”).
Either the Complainant or the Minister may apply to the Board for a review of the Decision (the “Review”). The Review is not a new proceeding and the Board does not investigate the Complaint or substitute its judgment for that of the Complaints Committee. Specifically, the Board considers allegations of bias or breaches of procedural fairness by the Complaints Committee and determines if the Complaint should be forwarded to the Discipline Committee.
Stage 2: Discipline Committee Hearing (the “Hearing”)
When the Complaints Committee refers a matter to the Discipline Committee it must hold a Hearing. Participants in a Hearing, in addition to the Respondent include: the Discipline Committee (5 individuals, including 1 appointed by the Minister); the NBREA Prosecutor (a legal professional, responsible for the carriage of the Complaint on behalf of NBREA); the Registrar (responsible for administration of the hearing); the Court Reporter (responsible for ensuring a written record of the proceedings); and any witnesses required by the Prosecutor or the Respondent to provide evidence.
Recognizing that Hearings require significant resources, financial and otherwise, NBREA has formalized procedures to simplify and/or resolve matters without the necessity of a full hearing (the “Pre-Hearing Conference”). A Pre-Hearing Conference is held in person or by telephone conference in the absence of the Discipline Committee on a without prejudice basis. The Pre-Hearing Conference is an important procedural tool for the Prosecutor and the Respondent and its use is intended to help reduce the costs for each party to the Hearing.
When the Discipline Committee is required to hold a Hearing to determine issues of professional misconduct or incompetence, its procedures must comply with the “rules of natural justice” and “procedural fairness”, which include the right to counsel, notice of hearings, compliance with rules of evidence. It encompasses a number of principles premised on the basic right to:
- a fair an unbiased hearing;
- be informed of the alleged wrongdoing;
- hear the evidence in support of the allegations;
- have an adequate opportunity to prepare and present evidence in defense; and
- have the decision made by only those who have heard the evidence.
After hearing the evidence, the Discipline Committee determines if there has been professional misconduct or incompetence. The standard of proof required for this determination must be “clear, strong and convincing” and does not require the virtual certainty of “beyond a reasonable doubt”, as applied in criminal prosecutions. In legal terms it is based on a “balance of probabilities” as in non-criminal or civil cases.
If the Discipline Committee determines that there has been professional misconduct or incompetence, it has the authority to impose discipline, including, suspension or revocation of membership in the NBREA, fines up to $5,000, and the recovery of costs associated with investigating and prosecuting the Complaint.
There is no set limit to the amount of costs which can be imposed by the Discipline Committee.
Any appeal of a Discipline Committee decision is made to the New Brunswick Court of Queen’s Bench pursuant to s. 25 of the Act.