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4th Session, 40th Legislature

This HTML version is provided for ease of use and is based on the bilingual version that was distributed in the Legislature after First Reading.

Bill 70

THE REAL ESTATE SERVICES ACT


Table of Contents Bilingual version (PDF) Explanatory Note

(Assented to                                         )

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

PART 1

INTRODUCTORY PROVISIONS

Definitions

1           The following definitions apply in this Act.

"brokerage" means a person who, through the actions of other persons engaged by the brokerage, provides real estate services. (« maison de courtage »)

"commission" means The Manitoba Securities Commission. (« commission »)

"condominium", except in Part 6, means real estate to which The Condominium Act applies. (« condominium »)

"engaged", in relation to the relationship between a brokerage and another person, means that the other person is employed or otherwise engaged by the brokerage to provide real estate services on its behalf.

"financial institution" means

(a) a bank to which The Bank Act (Canada) applies; or

(b)  a trust company, loan company, credit union, insurance company or other similar institution that is required by law to be supervised or examined by a government or a government authority in the jurisdiction in which it carries on business. (« établissement financier »)

"lawyer" means a lawyer who holds a practising certificate under The Legal Profession Act. (« avocat »)

"managing registrant" means a person who is registered in a registration category under which the registrant is permitted to manage a brokerage. (« gestionnaire inscrit »)

"minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act. (« ministre »)

"person" includes a partnership. (« personne »)

"private sale services" means the following services or materials that are provided to a person for the purpose of assisting the person to sell real estate:

(a) advertising the sale or arranging for advertising;

(b) instructional material pertaining to advertising and the showing of real estate to potential purchasers;

(c) a service or material that is prescribed by the regulations. (« services de vente directe »)

"property management services" means the following services that are provided to or on behalf of the owner of real estate:

(a) collecting rents or security deposits under a lease agreement;

(b) collecting mortgage payments or contributions for the control, management or administration of the real estate;

(c) maintaining financial and rent records under a lease agreement;

(d) promoting or showing the real estate to prospective tenants or lessees;

(e) negotiating rental or lease agreements in respect of the real estate;

(f) another service in respect of the management of real estate that is prescribed by the regulations. (« services de gestion immobilière »)

"real estate services" means

(a) trading services;

(b) property management services;

(c) private sale services; or

(d) another service in respect of real estate that is prescribed by the regulations. (« services immobiliers »)

"registrant" means a person who is registered in a registration category. (« personne inscrite »)

"registration category" means a registration category prescribed in the regulations. (« catégorie d'inscription »)

"regulation" means a regulation made under this Act. (« règlement »)

"trade in real estate" means a transaction or potential transaction for the purchase or sale of real estate, for the leasing of real estate or for any other form of acquisition or disposition of real estate. (« opération immobilière »)

"trading services" means, in respect of a trade in real estate, any of the following services provided to or on behalf of a person:

(a) finding real estate for the person;

(b) finding another person to engage in a trade in real estate;

(c) showing or making representations about the real estate;

(d) advising on the appropriate price for the real estate;

(e) negotiating the price or other terms of a trade in real estate;

(f) presenting offers to purchase or sell respecting a trade in real estate;

(g) receiving deposit money paid in respect of the real estate;

(h) a service that is prescribed by the regulations. (« services d'opérations immobilières »)

Registrar and deputy registrar

2(1)        A registrar and a deputy registrar are to be appointed for the purpose of this Act in accordance with The Civil Service Act.

Deputy registrar to act in place of registrar

2(2)        The deputy registrar may discharge the duties and exercise the powers of the registrar if

(a) the registrar is absent or unable to act;

(b) the position of registrar is vacant; or

(c) the registrar asks the deputy registrar to act.

PART 2

REGISTRATION

Registration required

3           A person must not provide real estate services, for or in expectation of remuneration, unless the person is

(a) registered, in accordance with the regulations, in a registration category under which registrants are permitted to provide those real estate services; or

(b) exempted by this Act or the regulations from the requirement to be registered to provide those real estate services.

Exemptions

4           The following persons are exempt from the requirement to be registered to provide real estate services:

(a) a person acting under the authority of a court;

(b) a trustee in bankruptcy, custodian, receiver, receiver manager or liquidator who is appointed under a provincial or federal enactment, in respect of real estate services undertaken by the person in that capacity;

(c) an executor or administrator acting under the terms of a will, marriage settlement or deed of trust;

(d) a financial institution, in relation to real estate that it owns, holds or administers;

(e) a director, officer or employee of a financial institution when, in the ordinary course of his or her duties, the individual trades in real estate on behalf of the financial institution;

(f) a lawyer who acts in the course of and as part of the practice of law;

(g) an auctioneer who acts in the course of and as part of the auctioneer's duties as auctioneer;

(h) a person who — as an employee of the owner of real property — collects rent, or shows the real property to or receives applications from prospective lessees, but who does not negotiate or approve leases or hold any money in respect of the real property on behalf of any person;

(i) a person who provides real estate services only to or on behalf of the government, a government agency within the meaning of The Financial Administration Act, a municipality or a local government district;

(j) a person who provides real estate services only in the course of selling subdivision or building lots or other bare land that the person has owned for at least one year before the sale if

(i) a lawyer prepares the form of offer or contract used for the sale,

(ii) all money that is required to be held in trust is paid to and held by a lawyer, and

(iii) all negotiations with potential purchasers are conducted by the owner, by a lawyer acting for the owner or by a director, officer or employee of the owner who is not remunerated for the negotiations on a commission basis;

(k) a person who is a member of a class of persons exempted by the regulations.

Registration categories

5(1)        The registration categories for brokerages and other persons who provide real estate services are the registration categories prescribed in the regulations.

Services under registration categories governed by regulations

5(2)        The real estate services that may be provided by brokerages and other persons registered in specified registration categories are governed by the regulations.

CONNECTIONS BETWEEN BROKERAGES AND OTHER REGISTRANTS

Brokerage must act through registrant engaged by brokerage

6(1)        A brokerage must not

(a) provide real estate services unless the services are provided on its behalf by a registrant who is

(i) registered in relation to the brokerage, and

(ii) in a registration category under which registrants are permitted to provide those real estate services; and

(b) engage or allow a person to provide real estate services on its behalf if the person is registered in relation to another brokerage.

Brokerage must have a managing registrant

6(2)        A brokerage

(a) must, except as permitted by the regulations, engage a managing registrant at all times who is registered in relation to the brokerage; and

(b) may only provide the real estate services that are permitted by the managing registrant's registration.

Prohibition against multiple offices unless registered

6(3)        A brokerage must not carry on business from more than one place to which the public is invited unless the brokerage is registered in accordance with the regulations in respect of each place, one of which must be designated as the main office and the remainder as branch offices.

Role of managing registrant

7           The managing registrant registered in relation to a brokerage acts for the brokerage for all purposes under this Act and is responsible for

(a) the exercise of the rights conferred on the brokerage by its registration;

(b) the performance of the duties imposed on the brokerage by its registration; and

(c) the control and conduct of the brokerage's real estate services, including supervision of the other registrants who are registered in relation to the brokerage.

Registrant must be registered to brokerage and engaged by it

8(1)        A registrant must be

(a) registered in relation to only one brokerage; and

(b) engaged by the brokerage.

Registrants must not act on behalf of other brokerages

8(2)        A registrant

(a) must not provide real estate services except on behalf of the brokerage in relation to which the registrant is registered; and

(b) is not entitled to, and must not accept, remuneration in relation to real estate services from any person other than that brokerage.

Brokerage's registration conditions and restrictions apply to brokerage's registrants

8(3)        A registrant who provides real estate services on behalf of a brokerage is subject to the restrictions and conditions, if any, that apply to the brokerage's registration.

Managing registrant's registration conditions and restrictions apply to brokerage's other registrants

8(4)        A registrant who provides real estate services on behalf of a brokerage under the supervision of its managing registrant is subject to the conditions and restrictions, if any, that apply to the managing registrant's registration.

Supervision of brokerage offices

9(1)        Every main and branch office of a brokerage must be supervised by a registrant who is

(a) registered in relation to the brokerage; and

(b) in a registration category that permits the registrant to supervise a brokerage of that type.

Registrant may not supervise more than one office

9(2)        Except with the prior approval of the registrar, a registrant may not supervise more than one office of the brokerage.

Considerations of registrar

9(3)        In determining whether to approve a registrant supervising more than one office, the registrar is to have regard for the number of registrants engaged by the brokerage and the distance between the offices.

THE REGISTRATION PROCESS

Registration of individuals

10(1)       An individual may be registered

(a) in any registration category that the regulations prescribe for individuals; and

(b) in more than one registration category.

Registration of corporations and partnerships

10(2)       Unless permitted by the regulations, a corporation or partnership may be registered in a brokerage registration category only.

Applying to become registered or to renew a registration

11          A person applying to become registered under this Act or to renew a registration must

(a) apply in writing to the registrar;

(b) comply with the requirements that the regulations prescribe for the registration category for which the person is applying; and

(c) pay the fee specified in the regulations.

Bond or security required to be registered as brokerage

12          Except as permitted by the regulations, a person who applies to be registered in a brokerage registration category must file with the registrar

(a) a valid certificate of membership in the Manitoba Real Estate Association Inc. issued by the association in a form and containing information required by the commission;

(b) a bond of indefinite duration in the amount and form prescribed by the regulations; or

(c) another type of security prescribed by the regulations in a prescribed amount and form.

Commission may require additional security

13          The commission may, if it is satisfied that doing so is in the public interest, require

(a) a person applying to be registered in a brokerage registration category; or

(b) a class of persons specified by the commission;

to provide more security than required by the regulations or to take other financial responsibility measures prescribed by the regulations.

Bond or security must be maintained throughout registration

14          A person who is registered in a brokerage registration category must, throughout the registration's term, maintain

(a) a membership that meets the requirements of clause 12(a); or

(b) security that meets the requirements of clause 12(b) or (c) and, if applicable, meets the requirements of the commission under section 13.

Granting registration or renewal of registration

15(1)       The registrar may register a person under this Act if the registrar is satisfied

(a) that the person has fulfilled the requirements that regulations prescribe for the applicable registration category;

(b) that there is no reason to believe that the person is incapable of carrying out the functions of registrants in the category with the skill, honesty and integrity expected of registrants; and

(c) that it is not in the public interest to refuse the registration or renewal of registration.

Evidence of registration

15(2)       The registrar is to produce evidence of registration to each person registered under this Act in the form and containing the information the registrar determines.

Duration of registration

15(3)       A registration is valid for the period set out in the regulations.

Registrar to maintain registration records

15(4)       In accordance with the regulations, the registrar is to maintain records about persons registered under this Act.

Registration records to be public

15(5)       Subject to the regulations, the records maintained for the purpose of subsection (4) are open to the public.

Registration records to be online and include particulars of disciplinary action

15(6)       In addition to the requirements of the regulations, the records the registrar maintains about registrants must meet the following minimum requirements:

(a) the records must be accessible to the public on the commission's website;

(b) information in the records about separate registrants must be organized so that it is searchable by the registrant's name;

(c) the record about a registrant must include particulars of any final disciplinary action against the registrant under this Act.

Refusing to grant a registration or renewal

16(1)       In accordance with the regulations, the registrar may refuse to register a person under this Act or to renew a person's registration, but only after giving the person notice and the opportunity to be heard.

Conditions or restrictions on registration or renewal

16(2)       In accordance with the regulations, the registrar may, when registering a person or renewing a registration, impose conditions or restrictions on the registration or renewal, but only after giving the person notice and the opportunity to be heard.

Notice to registrar when engagement ends

17          A brokerage must notify the registrar in writing without delay after the brokerage ceases to engage a registrant. The notice must state the reason why the engagement ceased.

TRANSFER OF REGISTRATION

Application to transfer registration

18(1)       A registrant who wishes to transfer registration from one brokerage to another must

(a) apply in writing to the registrar;

(b) comply with the requirements of the regulations; and

(c) pay the fee specified in the regulations.

Processing a transfer application

18(2)       The registrar must deal with a transfer application in the same manner as if the registrant was applying to renew the registration.

Surrender of registration

19(1)       In accordance with the regulations. a registrant may apply to the registrar to surrender the registrant's registration.

Granting or refusing surrender

19(2)       The registrar must allow the registrant to surrender the registration unless the registrar believes on reasonable grounds that the surrender is not in the public interest having regard to any criteria that are prescribed by the regulations and any other factors that the registrar considers appropriate.

Registrar may impose conditions on surrender

19(3)       The registrar may impose conditions on a registrant relating to the surrender of the registrant's registration.

Review by commission of registration decisions

20          Section 57 applies to a decision of the registrar to

(a) impose conditions or restrictions on a registration or renewal under subsection 16(2) or conditions on the surrender of a registration under subsection 19(3); or

(b) refuse to register a person or to renew a registration under subsection 16(1).

NON-DISCIPLINARY SUSPENSION OF REGISTRATION

Suspension of brokerage registration for contravening financial responsibility requirements

21(1)       The registrar must immediately suspend the registration of a person in a brokerage registration category if the registrar is satisfied that person is in contravention of section 14.

End suspension when compliance resumes

21(2)       The suspension of a registration under subsection (1) is terminated when the registrant satisfies the registrar that the registrant is in compliance with section 14.

Automatic suspension of brokerage — no managing registrant

22(1)       Subject to the regulations, the registration of a person in a brokerage registration category is automatically suspended if the brokerage ceases to

(a) engage a managing registrant; or

(b) have a managing registrant registered in relation to it.

End of automatic suspension of brokerage

22(2)       The suspension of a registration under subsection (1) is terminated when a managing registrant is engaged by and registered in relation to the brokerage.

Automatic suspension of other registrants in certain circumstances

23(1)       A registrant's registration is automatically suspended

(a) if the registration of the brokerage, in relation to which the registrant is registered, is suspended or cancelled, or if the registration of the managing registrant of the brokerage is suspended or cancelled; or

(b) if the registrant ceases to be engaged by the brokerage in relation to which the registrant is registered.

End of automatic suspension of registrant

23(2)       The suspension of a registration under subsection (1) is terminated

(a) in a case to which clause (1)(a) applies, when the suspension of the registration of the brokerage or managing registrant is terminated; or

(b) in a case to which clause (1)(b) applies, when the registrant becomes re-engaged by the brokerage or engaged by another brokerage and the registrant's registration is amended accordingly.

PART 3

CONDUCT OF REGISTRANTS

COMPLIANCE WITH ACT AND REGISTRATION CONDITIONS OR RESTRICTIONS

Registrant must comply with Act and regulations

24(1)       It is a condition of every registration that the registrant must comply with this Act and the regulations.

Compliance with registration conditions and restrictions

24(2)       A registrant must comply with any conditions of the registration and any restrictions on it.

SERVICE AGREEMENTS

Service agreements

25(1)       A brokerage that provides real estate services to a person must enter into a written service agreement with the person.

Registrant must not provide services without service agreement

25(2)       A registrant must not provide real estate services to a person on behalf of a brokerage unless

(a) the brokerage has complied with subsection (1); or

(b) the registrant has entered into a written service agreement with the person on behalf of the brokerage.

Content and formalities of service agreement

25(3)       The content of a service agreement and the formalities of its execution must comply with the regulations.

Amendments or additions must be in writing

25(4)       An amendment of a service agreement and any addition to its original terms and conditions must be in writing and is subject to the same requirements as to signing and other formalities as the service agreement itself.

Copy of service agreement to be given to person

26(1)       A registrant who enters into a service agreement with a person must give the person a copy of the agreement without delay after it is signed.

Copy of service agreement to be given to brokerage

26(2)       A registrant must give the brokerage on whose behalf the registrant provides real estate services a copy of each service agreement that the registrant enters into.

Application to amendments and additions

26(3)       Subsections (1) and (2) apply with necessary changes to amendments of service agreements and additions to them.

REGISTRANTS' OBLIGATIONS REGARDING OFFERS AND ACCEPTANCES

Offer to trade in real estate must be in writing

27(1)       A registrant who provides real estate services to a person must ensure that an offer by the person to trade in real estate is made in writing and states the terms, conditions and other information required by the regulations.

Counter-offer must be in writing

27(2)       Subsection (1) applies with necessary changes to a counter-offer to trade in real estate.

Offer must be completed before being signed

27(3)       A registrant who provides real estate services to a person making an offer to trade in real estate must ensure that, before the person signs the offer, it states the terms, conditions and information required by the regulations.

Use of prescribed form

27(4)       When an offer to trade in real estate is an offer to purchase a completed single-family residential house or a completed single-family residential unit in a condominium, a registrant who provides real estate services to the person making the offer must ensure that the offer is in the form prescribed in the regulations.

Exception

27(5)       Subsection (4) does not apply to an offer to trade in real estate if

(a) the offer is prepared by a lawyer who is acting for the person making or accepting the offer;

(b) the real estate to which the offer applies is owned by the Canada Mortgage and Housing Corporation; or

(c) the offer is to buy real estate on which a building is under construction, or to be constructed, and provides that the deposit, if any, is to be paid to a brokerage or a lawyer.

Prompt delivery of offers to trade in real estate

28          A registrant who receives an offer to trade in real estate signed by a person to whom the registrant is providing real estate services must, unless otherwise instructed by the person, promptly communicate the offer and deliver signed copies of it

(a) to the person to whom the offer is made; or

(b) if the person is represented by another registrant, to the other registrant.

Acceptance of offer to trade in real estate

29(1)       When a person to whom a registrant is providing real estate services accepts an offer to trade in real estate, the registrant must ensure that the acceptance

(a) is in writing and signed by the person entitled to accept the offer; and

(b) is in the form prescribed by the regulations and contains the information required by them.

Prompt delivery of acceptance

29(2)       The registrant must promptly communicate the acceptance and deliver a signed copy of it

(a) to the person who made the offer; or

(b) if the person is represented by another registrant, to the other registrant;

and ensure that signed copies of it are provided to the person who accepted the offer and the brokerage on whose behalf the registrant provides real estate services.

REGISTRANT TRADING ON OWN BEHALF

Disclosure when registrant trades in real estate

30(1)       A registrant who, directly or indirectly, engages in a trade in real estate on the registrant's own behalf or on behalf of a person related to the registrant must disclose in writing to each other person interested in the trade the nature and extent of the registrant's interest and any other information prescribed in the regulations.

Copy to disclosure to brokerage

30(2)       A registrant who is not a brokerage must, as soon as practicable after making a disclosure under this section, give a copy of the disclosure to the brokerage on whose behalf the registrant provides real estate services.

No remuneration when trading with own client

31          When

(a) a brokerage enters into a service agreement with the owner of specific real estate; and

(b) the brokerage, or a person related to the brokerage, directly or indirectly engages in a trade in real estate with the owner respecting the specific real estate before the agreement expires;

the owner is not liable to pay any remuneration to the brokerage.

Meaning of "related"

32          In sections 30 and 31 and any regulations made for the purpose of those sections, "related" means related as defined in the regulations.

DEALINGS WITH CLIENTS OF OTHER BROKERAGES

Prohibition on registrant inducing person to break contract

33(1)       A registrant must not, directly or indirectly, induce a person to break a service agreement or an agreement to trade in real estate.

No remuneration if listed with another brokerage

33(2)       A brokerage is not entitled to claim remuneration in respect of a trade in real estate if the real estate is the subject of an unexpired service agreement with another brokerage unless otherwise agreed by the person who entered into the service agreement.

FURNISHING FALSE OR DECEPTIVE INFORMATION OR DOCUMENTS

Furnishing false or deceptive information

34          In relation to a trade in real estate, a registrant must not

(a) furnish or assist in furnishing; or

(b) induce or counsel another person to furnish or assist in furnishing;

false or deceptive information or a false or deceptive document.

ADVERTISING

Advertisement must identify brokerage and any individuals depicted

35(1)       A registrant must ensure that the information in any advertisement that the registrant makes public in relation to real estate or trades in real estate includes

(a) the name of the brokerage on whose behalf the registrant provides real estate services; and

(b) the name of any individual depicted in the advertisement.

Advertisement must not name or depict non-registrant

35(2)       A registrant must ensure that no non-registrant is named or depicted in an advertisement that the registrant makes public in relation to real estate or trades in real estate.

No advertising in relation to specific real estate without owner's consent

36          A registrant must not make public advertising indicating that specific real estate is being offered for, or has been the subject of, a trade in real estate unless the owner of the real estate or the owner's authorized agent has consented to the advertising.

Prohibition on false or deceptive advertising

37(1)       A registrant must not

(a) make, or permit another person to make, a false or deceptive statement; or

(b) include, or permit another person to include, false or deceptive information;

in an advertisement respecting a trade in real estate.

Restriction on advertising future school development

37(2)       A registrant must not advertise or represent that a school building is to be built or may be built on a parcel of land, unless the applicable school board has the approvals necessary under The Public Schools Finance Board Act to call for tenders for the construction of a school building on the parcel.

TRUST ACCOUNTS

Obligation to maintain trust account

38          Except as permitted by the regulations, a brokerage that provides trading services or property management services, or that provides another category of real estate service prescribed by the regulations, must

(a) maintain in a financial institution in Manitoba, an interest-bearing account designated as a trust account;

(b) subject to subsection 41(1), deposit into the account all money that comes into the brokerage's hands in trust for other persons in connection with the brokerage's business;

(c) at all times keep the money separate and apart from money belonging to the brokerage; and

(d) disburse the money only in accordance with the terms of the trust, this Act and the regulations.

Commission may require information about trust account

39           At the request of the commission, the financial institution at which a trust account is maintained must provide the commission with any information it requires about the account.

Interest payable to the commission

40(1)       Interest earned on the trust account maintained by a brokerage belongs to the commission. The brokerage responsible for the account must direct the financial institution where the account is maintained to remit the interest, less accrued service or other charges pertaining to the operation of the account, to the commission.

Not required to account for interest

40(2)       A brokerage is not required to account to any person other than the commission for interest remitted to the commission under subsection (1).

Use of interest

40(3)       Interest received by the commission under this section may be invested by the commission, and the commission may use the proceeds

(a) to provide funding for

(i) educational programs relating to the real estate industry, and

(ii) not-for-profit initiatives to promote affordable home ownership and area revitalization; or

(b) for other purposes prescribed by the regulations.

Regulations by Lieutenant Governor in Council

40(4)       The Lieutenant Governor in Council may make regulations for the purpose of clause (3)(b) prescribing purposes for which the proceeds of investments under subsection (3) may be used.

Agreement re alternate interest arrangements

41(1)       Despite section 38, the persons who have an interest in money that is to be deposited into the trust account of a brokerage may, before the money is deposited into the trust account, instruct the brokerage to

(a) deposit the money in a separate interest-bearing trust account or investment; and

(b) in accordance with the instructions, account to them for the interest earned on it.

Brokerage must comply with instructions

41(2)       A brokerage that receives instructions under subsection (1) must comply with the instructions.

Unclaimed trust money may be paid over to commission

42(1)       A brokerage that holds money in trust for more than two years may pay it to the commission if

(a) the money is not attributed to any person in the brokerage's records; or

(b) in the case of money that is attributed to one or more persons in the brokerage's records,

(i) all reasonable efforts made by the brokerage to locate the persons have failed,

(ii) two or more persons claiming an interest in the money have failed to agree as to its disposition and no court action has been commenced to resolve the claims, or

(iii) the brokerage has issued a cheque in payment of the money and it has remained uncashed for a period of at least one year since it was issued.

Liability for trust money extinguished

42(2)       When a brokerage pays money to the commission under this section, the liability of the brokerage to pay the money to any other person is extinguished.

Trust property

42(3)       Money paid to the commission under this section is not the property of the commission and must be

(a) held, together with the interest earned on it, for the benefit of the persons entitled to it; and

(b) accounted for separately by the commission.

Payment to claimant

42(4)       Subject to subsection (5), the commission must pay money and earned interest held under this section to a person who establishes to the satisfaction of the commission that he or she is entitled to it.

Money held for 10 years without claim

42(5)       When money paid to the commission under this section has been held by it for 10 years without a claim to it by any person, the money and the interest earned on it become the property of the commission, and the commission's liability to pay the money and earned interest to any other person is extinguished.

Application to Court of Queen's Bench re claim to trust money

43(1)       A person who claims to be entitled to money and earned interest held by the commission under section 42 and disagrees with the commission's decision

(a) to refuse to pay all or some of it to the person; or

(b) to pay some or all of it to another person;

may apply to the Court of Queen's Bench for a decision regarding the person's entitlement to the money and earned interest within 30 days after becoming aware of the commission's decision.

Court may make appropriate order

43(2)       On an application under subsection (1), the court may make any order it considers appropriate in the circumstances.

Effect of order on commission's liability

43(3)       If the court orders the commission to pay out money and earned interest to a person, the commission's liability to pay the money and earned interest to any other person is extinguished.

PART 4

COMPLAINTS, INVESTIGATIONS

AND ACTIONS

INTERPRETATION

Definitions

44          The following definitions apply in this Part and any regulations made for the purpose of this Part.

"conduct" includes an omission. (« conduite »)

"deceptive dealing", in relation to a person providing real estate services as a registrant, means any of the following:

(a) an intentional misrepresentation, by word or conduct, or in any other manner, of a material fact in relation to real estate services, or in relation to a trade in real estate to which the real estate services relate;

(b) an intentional omission to disclose a material fact described in clause (a);

(c) a course of conduct or business that is intended to deceive a person about the nature of the real estate services, or about the nature of a trade in real estate to which the real estate services relate;

(d) an artifice, agreement, device or scheme to obtain money, profit or property by illegal means;

(e) a promise or representation about the future that is beyond reasonable expectation and not made in good faith. (« opération trompeuse »)

"investigator" means an investigator designated under subsection 21.1(1) of The Securities Act. (« enquêteur »)

"wrongful taking", in relation to a person providing real estate services as a registrant, means any of the following:

(a) a misappropriation or wrongful conversion of money or other property received by the person in relation to the real estate services;

(b) an intentional failure to — within a reasonable time — account for or pay over money or other property that

(i) was received by the person, and

(ii) belongs to one or more other persons in relation to the real estate services. (« distraction illicite »)

Application to former registrants

45          For the purpose of this Part, a provision that applies to a registrant also applies to a former registrant in relation to matters that occurred while the person was a registrant.

PROFESSIONAL MISCONDUCT BY A REGISTRANT OR CONDUCT UNBECOMING A REGISTRANT

Professional misconduct by registrant

46(1)       A registrant commits professional misconduct if the registrant does one or more of the following:

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

(b) demonstrates incompetence in performing any activity for which a registration is required;

(c) fails to comply with a condition or restriction that applies to the registrant's registration;

(d) fails or refuses to cooperate with an investigation relating to any matter that is within the scope of this Act;

(e) fails to comply with an order of the registrar or commission;

(f) 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.

Conduct unbecoming by registrant

46(2)         A registrant commits conduct unbecoming a registrant if the registrant engages in conduct that, in the judgment of the commission,

(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.

Conduct of partnerships and corporations

46(3)         A registrant that is a partnership or corporation commits professional misconduct or conduct unbecoming a registrant if a partner, officer, director or controlling shareholder does one or more of the things referred to in subsection (1) or (2).

COMPLAINTS

Complaint about registrant's or other person's conduct

47(1)       A person may make a complaint to the registrar if the person believes that

(a) a registrant has committed professional misconduct or conduct unbecoming a registrant; or

(b) a registrant or other person has contravened this Act or a regulation.

How to complain

47(2)       A complaint may be made in any form and by any medium that the registrar considers acceptable. The registrar may request that the person making the complaint provide the registrar with any information about the conduct complained about that the registrar considers necessary to assess the merits of the complaint.

Information to be provided to the complainant

47(3)       Unless a complaint is made anonymously, the registrar must

(a) acknowledge receipt of the complaint; and

(b) inform the complainant about the disposition of the complaint.

Actions by registrar

47(4)       The registrar may do any of the following in respect of a complaint:

(a) attempt to mediate or resolve the complaint;

(b) take further action as is appropriate in accordance with this Act;

(c) dismiss the complaint if the registrar is satisfied that it is trivial or vexatious or otherwise considers that dismissal is appropriate.

INVESTIGATIONS

Investigations

48(1)       Without limiting the generality of section 21.1 of The Securities Act, the registrar may conduct an investigation, or may require an investigator to conduct an investigation, to determine whether

(a) a person who is not registered has engaged in an activity for which a registration under this Act is required;

(b) a registrant has committed professional misconduct or conduct unbecoming a registrant;

(c) there is evidence that a registrant or other person has contravened this Act or a regulation;

(d) there are grounds to impose a condition or restriction on a person's registration other than those mentioned in clauses (b) and (c); or

(e) there are grounds to suspend or cancel a person's registration other than those mentioned in clauses (b) and (c).

When an investigation may be conducted

48(2)       An investigation may be conducted in relation to a complaint or whenever the registrar considers it necessary for the proper administration or enforcement of this Act or the regulations.

Registrar has powers of investigator

48(3)       For the purpose of carrying out an investigation, the registrar has the powers of an investigator, and a reference to "investigator" in subsections (4) to (8) and sections 49 to 53 includes the registrar.

Request for information

48(4)       For the purpose of an investigation, an investigator may request information in relation to the investigation from any registrant.

Duty to comply with request

48(5)       A registrant who receives a request for information must provide the information to the investigator as soon as possible.

Right of entry

48(6)       For the purpose of an investigation, an investigator may at any reasonable time, without a warrant, enter

(a) a registrant's business premises; or

(b) any other premises or place where the investigator has reason to believe that records or other evidence relevant to the administration or enforcement of this Act or the regulations may be found.

Identification to be shown on request

48(7)       An investigator must show his or her identification if requested to do so.

Entry into dwelling only with consent or warrant

48(8)       The authority under subsection (6) must not be used to enter a dwelling that is occupied as a residence except with the consent of the owner or occupant or with the authority of a warrant under section 53.

Assistance to investigator

49(1)       The registrant or other person in charge of a premises or place mentioned in subsection 48(6) or having custody or control of the relevant records or evidence must

(a) produce or make available to the investigator all records and property that the investigator requires for the investigation;

(b) provide any assistance or additional information, including personal information, that the investigator reasonably requires to conduct the investigation; and

(c) on request, provide written answers to questions asked by the investigator.

Investigator may make copies

49(2)       The investigator may use equipment at the premises or place to make copies of relevant records or evidence and may remove the copies from the premises or place for further examination.

Investigator may remove records to make copies

49(3)       An investigator who is not able to make copies of records or evidence at the premises or place where they are located may remove the records or evidence to make copies. The investigator must make the copies as soon as practicable and return the originals to the person from whom they were taken or the premises or place from which they were removed.

Electronic records

49(4)       In order to inspect records or evidence maintained electronically, the investigator may require the registrant or other person in charge of the premises, place or relevant records or evidence to produce the records or evidence in the form of a printout or in an electronically readable format.

Obstructing or interfering with investigator

50          A person must not obstruct or interfere with an investigator conducting an investigation.

Application of certain provisions of Securities Act

51          Subsections 22(3) to (9) of The Securities Act apply, with necessary changes, in respect of an investigation under this Act, and the powers set out in those subsections may be exercised by the commission or the person conducting the investigation to the same extent as in relation to an investigation under that Act.

Copies as evidence

52          A document certified by an investigator to be a printout or copy of a record or other document obtained under this Part

(a) is admissible in evidence without proof of the office or signature of the person purporting to have made the certificate; and

(b) has the same probative force as the original record or document.

Warrant to enter for purposes of investigation

53(1)       A justice, upon being satisfied by information on oath that

(a) an investigator has been refused entry to any premises or place in the course of conducting an investigation; or

(b) there are reasonable grounds to believe that

(i) an investigator would be refused entry to any premises or place for the purpose of an investigation, or

(ii) if an investigator were to be refused entry to any premises or place for the purpose of an investigation, delaying the investigation in order to obtain a warrant on the basis of the refusal could be detrimental to the investigation;

may at any time issue a warrant authorizing an investigator or any other person named in the warrant to enter the premises or place and conduct the investigation.

Application without notice

53(2)       A warrant under this section may be issued upon application without notice.

Request to commission for investigation order

54(1)       If the registrar considers it necessary for the effective conduct of an investigation under this Act, the registrar may request the commission to make an investigation order under subsection 22(2) of The Securities Act, and the commission may make the order as though the subject matter of the request were a matter mentioned in any of clauses 22(2)(a) to (c) of that Act.

Application of section 24 of Securities Act

54(2)       Section 24 of The Securities Act applies, with necessary changes, in respect of any investigatory actions conducted under an order made in accordance with subsection (1).

DISCIPLINARY ACTIONS BY REGISTRAR

Disciplinary actions by registrar

55(1)       In accordance with the regulations, the registrar may, on a ground referred to in subsection (2)

(a) reprimand a registrant;

(b) impose conditions or restrictions on a registrant's registration or vary or add to existing conditions or restrictions;

(c) suspend or cancel a registrant's registration;

(d) take another action permitted by the regulations; or

(e) request the commission to hold a disciplinary hearing under section 58;

but only after giving the registrant notice and, in the case of the actions mentioned in clauses (a) to (d), giving the registrant the opportunity to be heard.

Grounds for disciplinary action

55(2)       The registrar may take action under subsection (1) on any of the following grounds:

(a) the registrar determines, on the basis of an investigation or otherwise, that the registrant has committed professional misconduct or conduct unbecoming a registrant;

(b) the registrar determines, on the basis of an investigation or otherwise, that evidence exists that the registrant has contravened this Act or a regulation;

(c) another ground prescribed in the regulations.

When disciplinary action is effective

55(3)       A disciplinary action taken under subsection (1) takes effect at the time specified in the regulations.

Emergency suspension

56(1)       If the registrar has reason to believe that the delay involved in giving the registrant notice of suspension and an opportunity to be heard under subsection 55(1) is contrary to the public interest, the registrar may suspend the registrant's registration, without notice or hearing, for a period of up to 45 days.

Notification of suspension

56(2)       In accordance with the regulations, the registrar must, without delay,

(a) notify the registrant that the registration is suspended under subsection (1) and that the suspension may be reviewed in accordance with the regulations; and

(b) state the suspension's expiration date in the notification.

Duration of suspension

56(3)       An emergency suspension takes effect immediately and remains in effect until

(a) the expiration date stated in the notification required by clause (2)(b); or

(b) the date the suspension is revoked by the registrar or the commission in accordance with the regulations;

whichever is earlier.

Review by the commission of registrar's decisions

57(1)       Subsections 29(1) and (2) of The Securities Act apply, with necessary changes, to a decision or action of the registrar to

(a) do anything mentioned in section 20 or any of clauses 55(1)(a) to (d); or

(b) to impose a suspension under section 56;

as though the decision or action was one by the Director under that Act.

Reference by registrar to commission

57(2)       Subsection 29(3) of The Securities Act applies, with necessary changes, to the registrar and matters under this Act or the regulations in the same manner as it applies to the Director under that Act.

DISCIPLINARY HEARINGS BY THE COMMISSION

Initiating a disciplinary hearing

58(1)       The registrar may ask the commission to hold a disciplinary hearing if the registrar has reason to believe that

(a) a registrant has committed professional misconduct or conduct unbecoming a registrant, has contravened this Act or a regulation or has engaged in other conduct for which the registrar might have taken action under section 55;

(b) a person who is not registered provided a real estate service to another person in circumstances under which this Act required registration; or

(c) a person

(i) who is not registered and provided a real estate service to another person, and

(ii) who claims that a registration exemption applies to him or her in relation to the provision of the service,

is not entitled to rely on the registration exemption.

Conduct of disciplinary hearing

58(2)       The provisions of The Securities Act respecting the conduct of hearings apply, with necessary changes, to the conduct of a disciplinary hearing.

Orders that may be made against a registrant

59(1)       If, after holding a hearing, the commission determines that a registrant has committed the contravention or has committed or engaged in the conduct or misconduct, the commission may, by order, do one or more of the following:

(a) impose conditions or restrictions on the registrant's registration, or vary or add to existingconditions or restrictions;

(b) suspend the registrant's registration for the period of time the commission considers appropriate or until specified conditions are fulfilled;

(c) cancel the registrant's registration;

(d) require the registrant to cease, or to carry out, a specified activity related to the registrant's real estate business;

(e) require the registrant to pay investigation and hearing costs in accordance with section 60;

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

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

(ii) not more than $100,000, in any other case.

Orders respecting unregistered persons carrying on an activity requiring registration

59(2)       If, after holding a hearing, the commission determines that a person who is not registered provided real estate services in circumstances under which this Act required registration, the commission may, by order, do one or more of the following:

(a) require the person to cease the activity;

(b) require the person to carry out an action specified in the regulations if the commission considers the action necessary to remedy the situation;

(c) require the person to pay investigation and hearing costs in accordance with section 60;

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

(i) not more than $500,000, in the case of an activity that would have required registration in a brokerage registration category, or

(ii) not more than $100,000, in any other case;

(e) order that no registration exemption under this Act or the regulations applies to the person after the date of the order and that the person must not, without being registered under this Act, provide a real estate service to another person for or in expectation of remuneration.

Regulations by minister

59(3)       The minister may make regulations specifying actions that the commission may order a person to carry out under clause (2)(b).

Costs of the investigation

60(1)       The investigation and hearing costs referred to in clauses 59(1)(e) and 59(2)(c) may include, but are not limited to,

(a) all disbursements incurred by the commission, including

(i) fees and reasonable expenses for experts, investigators and auditors whose reports were or attendance was reasonably necessary for the investigation or hearing,

(ii) fees, travel costs and reasonable expenses of witnesses required to appear at the hearing,

(iii) fees for making a record of the proceedings, including transcripts if applicable, and

(iv) costs for serving documents, communications charges, courier delivery charges and similar miscellaneous expenses; and

(b) costs incurred by the commission in providing counsel for the commission.

Failure to pay penalties and costs by time ordered

60(2)       If a registrant fails to pay a penalty or costs ordered under subsection 59(1), the registrar may, without notice, cancel the registrant's registration until payment is made.

Filing of order

60(3)       The registrar may file an order to pay a penalty or costs made under section 59 in the Court of Queen's Bench. Once filed, the order may be enforced as a judgment of the court in favour of the commission.

ORDERS TO FREEZE FUNDS AND OTHER ASSETS

Application of section

61(1)       This section applies in any of the following circumstances:

1.  The registrar has advised the commission that the registration of a person (referred to in this section as the "designated registrant") is about to or has expired, and the registrar has not received an application from the person to renew the registration.

2.  The registrar has advised the commission that he or she has notified, or is about to notify, the designated registrant that their registration is or is to be suspended, cancelled or not renewed, except in the case of a consensual non-renewal.

3.  The commission has reason to believe that the designated registrant, a director or partner of the designated registrant or an officer or employee of the designated registrant has contravened or is about contravene this Act or a regulation.

4.  The commission has information that criminal proceedings have been or are about to be commenced against the designated registrant, a director or partner of the designated registrant or an officer or employee of the designated registrant, which, if the proceedings were to result in a finding of guilt, would satisfy the commission that the designated registrant is not of suitable character to be registered under this Act.

5.  The commission has reason to believe that, other than as described in item 4 of this section, proceedings in relation to a contravention of the law of any jurisdiction have been or are about to be instituted against the designated registrant, a director or partner of the designated registrant or an officer or employee of the designated registrant, but only if the proceedings are instituted in connection with or arising out of an activity for which a registration is required under this Act.

Orders without notice

61(2)       The commission may make any order under this section with respect to the designated registrant if the commission is satisfied that doing so is in the public interest and may make the order without notice to any person.

Orders to third party

61(3)       The commission may order a person who holds assets or trust funds on deposit or controls them for or on behalf of the designated registrant to continue to hold them until further order of the commission or until the assets or trust funds are released under subsection (7).

Order to refrain from withdrawals

61(4)       The commission may order the designated registrant to refrain from withdrawing assets or trust funds from a person who holds them for or on behalf of the designated registrant or who otherwise has them on deposit or controls them.

Trust order against designated registrant

61(5)       The commission may order the designated registrant to hold assets or trust funds of another person in trust for the person entitled to them.

Effect

61(6)       An order takes effect immediately and may be made subject to any conditions that the commission considers appropriate.

Release of assets

61(7)       With or without conditions, the commission may consent to the release of any particular asset or trust fund from the order or may wholly revoke the order.

Filing notice in the land titles office

61(8)       The commission may file in the appropriate land titles office a notice stating

(a) that an order has been made under subsection (3), (4) or (5); and

(b) that the order may affect land specified in the notice and belonging to the person named in it.

Effect of notice in land titles office

61(9)       A notice filed under subsection (8) has the same effect as the registration of a certificate of pending litigation, except that the commission may in writing modify or revoke the notice. Unless it is sooner revoked, the notice expires two years after it is filed.

Application to court re order coverage

62(1)       A person in receipt of an order under section 61 may apply to the Court of Queen's Bench if the person is in doubt about whether the order applies to a particular asset or trust fund.

Application to court re disposition

62(2)       A person who claims an interest in an asset or trust fund that is subject to an order made under subsection 61(3), (4) or (5) may apply to the Court of Queen's Bench for a decision concerning the disposition of the asset or trust fund.

Application by commission re direction or disposition

62(3)       The commission may apply to the Court of Queen's Bench for directions or an order relating to the disposition of assets or trust funds affected by an order under section 61 or land affected by a notice filed under subsection 61(8). The application may be made without notice to any other person.

Court may make appropriate order

62(4)       On an application under subsection (1), (2) or (3), the court may make any order it considers appropriate in the circumstances.

Application by registrant to cancel order

62(5)       A registrant in respect of whom the commission has made an order under section 61 may apply to the Court of Queen's Bench for cancellation of the order in whole or in part.

Cancellation by court

62(6)       On an application under subsection (5), the court may cancel the order in whole or in part if it is satisfied that the order or part of the order is not required in the public interest.

Application by affected person to discharge filing

62(7)       A person who has an interest in land affected by a notice filed under subsection 61(8) may apply to the Court of Queen's Bench to have the registration of the notice discharged in whole or in part.

Discharge by court

62(8)       On an application under subsection (7), the court may make an order discharging the notice in whole or in part if it is satisfied that registration of the notice or part of the notice is not required to protect other persons having an interest in the land.

APPOINTMENT OF RECEIVER, RECEIVER AND MANAGER, OR TRUSTEE

Commission may apply to court for appointment

63(1)       The commission may apply to the Court of Queen's Bench for an order appointing

(a) a receiver;

(b) a receiver and manager; or

(c) a trustee;

of property that is in the possession of, or under the control of, a registrant or a person who the commission has reason to believe is or was required to be registered under this Act (in this section referred to as the "designated registrant or person").

Order by court

63(2)       If the court is satisfied that the appointment is in the public interest, the court may make the appointment and may impose any conditions that the court considers appropriate.

Appointment period

63(3)       The court must specify the appointment period in the order, but the period must not exceed 15 days if the court makes the order on an application without notice.

Continuation

63(4)       If an order is made without notice, the commission may apply to the court within 15 days after the date of the order to continue the order or for such other order as the court considers appropriate.

Powers of appointee

63(5)       The appointee has the powers specified in the order and, if so directed by the court, has the authority to wind up or manage the affairs of the designated registrant or person.

Effect of appointment

63(6)       During the appointment period specified in an order made under this section, the directors of a designated registrant or person that is a corporation are no longer entitled to exercise any powers that are given to the appointee by the order.

Orders relating to fees, expenses and costs

63(7)       For the purpose of this section, the court may make any order that it considers appropriate respecting payment of the appointee's fees and expenses and the costs of any person, including the commission, in connection with the application.

APPLICATION FOR INJUNCTION

Application for injunction

64(1)       The commission may apply to the Court of Queen's Bench for an injunction restraining a person from contravening, or requiring a person to comply with,

(a) this Act or the regulations;

(b) an order of the registrar or the commission; or

(c) the conditions or restrictions applicable to the person's registration, if applicable.

Court may grant injunction

64(2)       The court may grant an injunction sought under subsection (1) if the court is satisfied that there is reason to believe that the contravention or failure to comply has occurred or may occur.

Court may grant interim injunction

64(3)       The court may grant an interim injunction until the outcome of an application under subsection (1).

PART 5

REAL ESTATE REIMBURSEMENT FUND

Establishment or continuance of reimbursement fund

65(1)       The Manitoba Real Estate Association Inc. may establish or continue a fund to be known as the "Real Estate Reimbursement Fund".

Payment out of fund — misconduct

65(2)       When, in connection with a trade in real estate, a brokerage registered in a brokerage registration category on the basis of membership in the Manitoba Real Estate Association Inc., a director, partner, officer or employee of the person or a registrant engaged by the person

(a) is found, after an investigation under Part 4, to have committed a fraudulent act, including, in the case of a registrant, an act of professional misconduct or conduct unbecoming a registrant;

(b) is a party to civil proceedings in a court resulting in final judgment, based upon a finding of fraud, being given against the brokerage, director, partner, officer, employee or registrant; or

(c) is convicted of an offence under this Act or a regulation, or an offence the Criminal Code (Canada) relating to real estate services;

the commission may, subject to the regulations, order the association to pay out of the fund any amount to a person or the commission that the order may require and the regulations may permit.

Payment out of fund — bankruptcy

65(3)       When a brokerage registered in a brokerage registration category on the basis of membership in the Manitoba Real Estate Association Inc., a director, partner or officer of the person or a registrant engaged by the person

(a) has, in the case of an individual, become a bankrupt as defined in the Bankruptcy and Insolvency Act (Canada) or made a proposal under that Act; or

(b) has, in the case of a corporation, become a bankrupt as defined in the Bankruptcy and Insolvency Act (Canada), made a proposal under that Act or had a winding-up order made against it;

the commission may, subject to the regulations, order the association to pay out of the fund any amount to a person or the commission that the order may require and the regulations may permit.

Compliance with order

65(4)       When an order is made under this section, the Manitoba Real Estate Association Inc. must comply with the order without delay.

Manitoba Real Estate Association is subrogated

65(5)       The Manitoba Real Estate Association Inc. is subrogated to the rights and remedies to which any person or the commission receiving payment out of the fund under subsection (2) or (3) would have been entitled as against the affected brokerage, director, partner, officer, employee or registrant.

Amounts recovered to be credited to fund

65(6)       The Manitoba Real Estate Association Inc. may pursue the rights and remedies described in subsection (5) in its own name, but any amount so recovered by it must be credited to the fund.

PART 6

REGULATION OF TRADING IN SUBDIVISION LOTS LOCATED OUTSIDE MANITOBA

Definitions

66          The following definitions apply in this Part.

"subdivision" means improved or unimproved land divided or proposed to be divided into five or more lots or other units for the purpose of sale or lease and includes land divided or proposed to be divided into condominium units. (« ensemble de lotissement »)

"trade" means to sell or let real estate or to endeavour by negotiation, promotion, advertising or other means to bring about or further a sale or lease of, or to stimulate interest in, any real estate which is, or is to be, available to purchase or rent. (« opération »)

Prospectus required for subdivision outside Manitoba

67(1)       Subject to section 77, a person must not, in any capacity, trade in any real estate which is or comprises, one or more lots or units in a subdivision outside Manitoba, unless

(a) a prospectus relating to the subdivision containing the information prescribed by the regulations has been filed with the registrar; and

(b) the registrar has issued a certificate of acceptance of the prospectus and the certificate is still in force.

Certain representations prohibited

67(2)       A person must not make a written or oral representation that the registrar or the commission has passed upon the merits of a prospectus required to be filed under subsection (1) or upon the financial standing, fitness or conduct of any person in connection with the prospectus.

Right of rescission

67(3)       A contract for the sale or lease of a lot or unit of land in a subdivision located outside Manitoba made in contravention of this section may be rescinded by the purchaser or tenant at any time before taking possession of the lot or unit of land unless the purchaser or tenant has been given a clear statement in writing of their right to rescind the contract and has unequivocally affirmed the contract after receiving the statement.

Other rights preserved

67(4)       The right of rescission provided in this section is in addition to any other rights that the purchaser or tenant may have in respect of the contract.

Prospectus to be delivered

68(1)       A person must not, either as a vendor or registrant, enter into or negotiate any contract for the sale or lease of a lot or unit of land in a subdivision located outside Manitoba unless

(a) a copy of the prospectus referred to in section 67, or any shorter form of it that the registrar may have approved for distribution to the public, has been delivered to the prospective purchaser or tenant;

(b) the prospective purchaser or tenant has in writing acknowledged receiving a copy of the prospectus or the shorter form of the prospectus and having been afforded the opportunity to read it; and

(c) the person is registered in a brokerage registration category that permits the person to enter into or negotiate the contract or the contract is negotiated by a person who is registered in such a registration category or a registrant engaged by that person and permitted to provide such real estate services.

Acknowledgment to be retained

68(2)       An acknowledgment referred to in clause (1)(b) must be retained by the vendor or the brokerage involved and be available for inspection by the registrar for at least than five years after having been given.

When purchaser entitled to rescission

68(3)       A purchaser or tenant who has entered into a contract to which subsection (1) applies is entitled to rescission of the contract if

(a) subsection (1) has not been complied with; and

(b) written notice of exercising the right of rescission is served on the vendor or brokerage within 90 days after the contract is signed.

Onus of proof

68(4)       In an action for rescission under subsection (3), the vendor has the onus of proving compliance with subsection (1).

Other rights preserved

68(5)       The right of rescission provided in this section is in addition to any other rights that the purchaser or tenant may have in respect of the contract.

Disclosure required in prospectus

69(1)       A prospectus must contain full, true and plain disclosure of all material facts relating to the land offered by the prospectus that are relevant to its value to a person proposing to use it for any purpose indicated or suggested by the prospectus.

By whom prospectus to be filed

69(2)       A prospectus must be filed by or on behalf of the owner of the subdivision to which it relates.

Material in support of prospectus

69(3)       Each prospectus filed with the registrar must be accompanied by

(a) an affidavit of the owner of the subdivision, or — if the owner is a corporation — of all or any three of its directors, verifying that every matter of fact stated in the prospectus is correct and that the prospectus contains all the information required by subsection (1) that is known to the owner;

(b) a copy of every plan referred to in the prospectus;

(c) a copy of every form of contract referred to in the prospectus;

(d) any documents that the registrar may require to support any statement of fact, proposal or estimate set out in the prospectus;

(e) any financial particulars of the owner that the registrar may require;

(f) a statement of the name of the registrant with which the land is or is to be listed for sale or lease in Manitoba and a copy of every service agreement or other contract between the owner and the registrant; and

(g) the fees specified by the regulations.

Further requirements

69(4)       When a prospectus is filed with the registrar, the owner of the subdivision

(a) must file with the registrar a surety bond acceptable to the commission;

(b) must, in the prospectus, designate an address for service; and

(c) must submit any further information or material that may from time to time be required by the registrar and, if so required by the registrar, must furnish verification by affidavit or otherwise of any matter then or previously submitted.

Service of notices at designated address for service

69(5)       A notice under this Act or the regulations is for all purposes conclusively deemed to have been served if posted by registered mail addressed to the owner at the owner's last address for service designated under clause (4)(b).

Non-resident owner

69(6)       When a prospectus is filed by or on behalf of an owner who is not resident in Manitoba,

(a) the owner must, before the certificate of acceptance is issued, file with the registrar a duly executed power of attorney under seal in a form acceptable to the registrar empowering the person named in the power of attorney to act as the owner's attorney for the purpose of

(i) accepting service of, or being served with, any process in any suit or proceedings against the owner within the province,

(ii) receiving all lawful notices, and

(iii) declaring that service of process in respect of such suits and proceedings and of such notices on the attorney are legal and binding on the owner; and

(b) every form of contract for the sale or lease of lots in the subdivision used in Manitoba must contain a provision by which the parties submit to the jurisdiction of the courts of Manitoba and agree that the courts of Manitoba have jurisdiction to entertain any action that may be brought on that contract.

Revocation of power of attorney

69(7)       The owner may revoke the power of attorney by filing with the registrar a new power of attorney nominating a new attorney in place of the former one, but an owner may not revoke a power of attorney filed under this subsection in any other way without the prior written consent in writing of the registrar. A revocation that does not comply with this subsection and subsection (8) is null and void.

Attorney must be Manitoba resident

69(8)       The attorney named in a power of attorney filed with the registrar for the purpose of this section must be a resident of Manitoba.

Conditions precedent to grant of certificate

70          The registrar must not grant a certificate of acceptance if it appears that

(a) the prospectus contains any statement, promise or forecast that is misleading, false or deceptive or has the effect of concealing material facts;

(b) adequate provision has not been made for the protection of deposits or other funds of purchasers or for assurance of title or other interest contracted for;

(c) the prospectus fails to comply in any substantial respect with any of the requirements prescribed;

(d) the requirements of section 69 have not been complied with in any substantial respect; or

(e) the proposed methods of offering do not accord with standard real estate practices in Manitoba.

Inquiries in respect of prospectus

71(1)       The registrar may make such inquiries in respect of a prospectus as the registrar considers necessary, including

(a) an examination of the subdivision and any of the surrounding circumstances; and

(b) obtaining reports from public authorities or others within or outside Manitoba.

Costs

71(2)       The reasonable and proper costs of such inquiries or reports must be paid by the owner by whom, or on whose behalf, the prospectus was filed.

Issuing certificate of acceptance

72(1)       The registrar may issue a certificate of acceptance in respect of a prospectus if the requirements of this Act and the regulations have been complied with and the registrar believes that issuing it is in the public interest.

Refusing to issue certificate of acceptance

72(2)       The registrar must not refuse to issue a certificate of acceptance without giving the owner of the subdivision an opportunity to be heard.

Time for appeal by non-residents

73          If an owner resides outside Manitoba or is a corporation that has its head office outside Manitoba, the deadline for a request to the commission under subsection 29(1) of The Securities Act to review a direction, decision, order or ruling of the registrar is 60 days after the mailing of the direction, decision, order or ruling.

Change in circumstances

74(1)       If a change occurs with regard to any of the matters set out in any prospectus,

(a) that would have the effect of rendering a statement in the prospectus false or misleading; or

(b) that brings into being a fact or proposal that should have been disclosed in the prospectus if the fact or proposal had existed at the time of filing;

the owner of the subdivision must, within 20 days after the occurrence of the change, notify the registrar in writing of the change and file an amendment to the prospectus or a new prospectus as the registrar may direct.

New prospectus annually

74(2)       Where trading in real estate mentioned in section 67 is still continuing 12 months after the date of the certificate of acceptance for the last prospectus filed, a new prospectus must be filed with the registrar and a certificate of acceptance obtained for it within 20 days after the end of the 12-month period.

Failure to file new prospectus

74(3)       If the certificate of acceptance of a new prospectus has not been issued before the end of the 20-day period referred to in subsection (2), a person must not trade in the real estate concerned until a new prospectus has been filed and a certificate of acceptance of it has been issued.

Application of sections 67 to 72

74(4)       Sections 67 to 72 apply, with necessary changes, when a prospectus is amended or a new prospectus is filed under subsection (1) or (2).

Stop orders

75(1)       After giving the owner of the subdivision and the registrant named under clause 69(3)(f) an opportunity to be heard, the registrar may revoke the certificate of acceptance of a prospectus and order that all trading in the real estate to which the prospectus relates must cease immediately if

(a) after the issuance of the certificate of acceptance, it appears to the registrar that any of the conditions referred to in section 70 exist; or

(b) the registrar believes that revoking the certificate and making the order is otherwise in the public interest.

Emergency stop order

75(2)       If the registrar has reason to believe that the delay involved in giving an opportunity to be heard under subsection (1) is contrary to the public interest, the registrar may, without notice or hearing, revoke the certificate of acceptance and make the order described in subsection (1).

Notice of emergency order

75(3)       After making an emergency stop order under subsection (2), the registrar must without delay notify the owner of the subdivision and registrant named under clause 69(3)(f) about the order and that a hearing before the registrar will be conducted on a specified date no later than 15 days after the date of the order.

No appeal from emergency order

75(4)       An emergency stop order made by the registrar under subsection (2) is not reviewable by the commission under subsection 29(1) of The Securities Act and not subject to any other appeal.

Stop order for failure of bond

75(5)       The registrar may, without notice or hearing, revoke the certificate of acceptance of a prospectus and order that all trading in the real estate to which the prospectus relates must cease immediately if the registrar has reason to believe that the owner's surety bond has been cancelled or is otherwise not valid.

No appeal from stop order re bond

75(6)       A stop order made by the registrar under subsection (5) is not reviewable by the commission under subsection 29(1) of The Securities Act and not subject to any other appeal.

Approval of advertisements

76(1)       A person must not within Manitoba use any advertising material for the sale of a lot or unit in a subdivision located outside Manitoba unless its use has been authorized by the registrar and the authorization has not been revoked under subsection (2).

Changes of circumstances

76(2)       The registrar may revoke an authorization given under subsection (1) if after having given it the registrar becomes aware of facts or a change of circumstances that the registrar believes renders the advertisement inaccurate or potentially misleading.

Exemption of certain trading

77          Sections 67 to 76 do not apply in respect of

(a) a sale of a lot or unit in a subdivision in which the vendor has not, within the previous five years, directly or indirectly owned five or more lots or units;

(b) a lease that has a term that is one year or less; or

(c) a sale or lease of Crown land anywhere in Canada that is offered by or on behalf of the Crown.

Power of commission to exempt

78          Despite sections 67 to 69, on application from a proposed vendor of a lot or unit in a subdivision outside Manitoba, the commission may, with or without conditions, exempt the vendor from any or all of the requirements of those sections if

(a) the circumstances of the proposed transaction are such as to make strict compliance with this Act and the regulations unduly onerous;

(b) the prospective parties do not require the protection afforded by this Part; or

(c) a prospectus or other disclosure document satisfactory to the commission and approved by another jurisdiction is available for distribution.

PART 7

GENERAL PROVISIONS

REGISTRANT'S BUSINESS RECORDS

Requirement to keep business records

79(1)       A registrant must make and maintain business records, as required by the regulations, that are necessary to properly record the registrant's business transactions and financial affairs in providing real estate services.

Registrar may examine records

79(2)       At any reasonable time, the registrar, or a person authorized by the registrar, may make any examination and analysis of a registrant's business operations and financial affairs that the registrar considers necessary for the proper administration of this Act.

Records to be made available for examination.

79(3)       The registrant must make the records that the registrant is required to maintain under this Act and the regulations available, at the place where they are maintained, for examination or analysis under this section.

Fees

79(4)       The commission may charge any fee that is prescribed by the regulations for an examination or analysis made under this section, and the registrant must without delay pay the fee charged.

Investigation powers apply to examinations

79(5)       Sections 48, 49, 50 and 53 apply, with necessary changes, to the registrar or a person authorized by the registrar in relation to the examination or analysis of a registrant's business operations and financial affairs.

COMMISSION DECISIONS AND ORDERS MUST BE PUBLIC

Decision and orders available to the public

80(1)       Decisions and orders made by the commission under this Act must be available to the public.

Identity of certain persons may be withheld

80(2)       Despite subsection (1), the commission may

(a) in respect of any decision or order, withhold the name of or any other information that might identify a person who is not the subject of the decision or order; and

(b) withhold the name of or any other information that might identify a registrant or other person who is the subject of a decision or order, but only in respect of a decision or order other than

(i) a decision or order that is required to be part of the registration records required by subsections 15(4) to (6), and

(ii) a decision or order that is prescribed by the regulations.

APPEALS

Application of section 30 of Securities Act

81          A person affected by a decision or order of the commission under this Act may appeal under section 30 of The Securities Act.

REMUNERATION IN CONNECTION WITH REAL ESTATE SERVICES

Prohibited remuneration

82(1)       A registrant must not collect or attempt to collect, and is not entitled to receive, remuneration for providing a real estate service if the amount of the remuneration or the basis upon which it is calculated or determined is prohibited by the regulations.

No recovery of remuneration by unregistered person

82(2)       Except as permitted by the regulations, a person who is not registered under this Act and provides a real estate service in circumstances under which registration is required must not collect or attempt to collect, and is not entitled to receive, remuneration for providing the service.

EXEMPTIONS BY COMMISSION ORDER

Exemption orders by commission

83          With or without conditions, the commission may, by order, exempt a person from the application of any or all of the provisions of this Act or the regulations if it is satisfied

(a) that compliance with the provision or provisions would cause undue hardship or would not advance the purpose of this Act; and

(b) that the exemption is not contrary to the public interest.

OFFENCES

Offences

84(1)       A person who contravenes a provision of this Act or the regulations, or who contravenes or fails to comply with an order of the commission or a condition or restriction of registration, transfer or surrender, is guilty of an offence.

Penalty

84(2)       A person who commits an offence mentioned in subsection (1) is liable on summary conviction

(a) in the case of an individual who at the time of the offence was registered in a brokerage registration category, to a fine of not more than $500,000 or imprisonment for a term of not more than two years, or both;

(b) in the case of a person — other than an individual — who at the time of the offence was registered in a brokerage registration category, to a fine of not more than $500,000;

(c) in the case of an individual who at the time of the offence was registered in a registration category other than brokerage, to a fine of not more than $100,000 or imprisonment for a term of not more than one year, or both;

(d) in the case of a person — other than an individual — who at the time of the offence was registered in a registration category other than brokerage, to a fine of not more than $100,000;

(e) in the case of an unregistered individual who in committing the offence acted as a brokerage, to a fine of not more than $500,000 or imprisonment for a term of not more than two years, or both;

(f) in the case of an unregistered person — other than an individual — who in committing the offence acted as a brokerage, to a fine of not more than $500,000;

(g) in the case of an individual not mentioned in clause (a), (c) or (e), to a fine of not more than $100,000 or imprisonment for a term of not more than one year, or both; and

(h) in the case of a person — other than an individual — not mentioned in clause (b), (d) or (f), to a fine of not more than $100,000.

Corporate officers and directors

84(3)       If a corporation commits an offence mentioned in subsection (1), a director or officer of the corporation who authorized, permitted or acquiesced in the commission of the offence is also guilty of the offence and liable on summary conviction to the applicable penalty set out in subsection (2), whether or not the corporation has been prosecuted or convicted.

Offences by partners

84(4)       If a partnership commits an offence mentioned in subsection (1), a partner who authorized, permitted or acquiesced in the commission of the offence is also guilty of the offence and liable on summary conviction to the applicable penalty set out in subsection (2), whether or not the partnership has been prosecuted or convicted.

REGULATIONS

Regulations by commission

85(1)       Subject to subsection (3), the commission may make regulations

(a) prescribing anything referred to in this Act as being prescribed, other than purposes for using proceeds of investments referred to in section 40;

(b) respecting the registration of persons under this Act and the conduct and activities of registrants, including

(i) governing the process for registration,

(ii) prescribing the requirements that must be fulfilled to be registered in particular registration categories and to maintain registration,

(iii) prescribing the registration categories in which individuals and other persons may be registered,

(iv) specifying the real estate services that may be provided by persons who are registered in specific registration categories,

(v) prescribing circumstances under which a brokerage may operate without a managing registrant,

(vi) specifying when and under what conditions corporations and partnerships may be registered in a registration category other than a brokerage category and governing how a corporation or partnership registered in another registration category may provide real estate services,

(vii) prescribing circumstances and conditions under which the registrar may refuse to register a person or to renew a person's registration,

(viii) respecting the transfer or surrender of a registrant's registration,

(ix) prescribing information or reports that a registrant must provide to the registrar, and

(x) establishing a code of conduct for specified categories of registrants, or adopting by reference a code of conduct made by a body other than the commission, and requiring registrants in the specified categories to comply with the code of conduct;

(c) exempting persons or classes of persons from the requirement to be registered under this Act;

(d) specifying registration fees;

(e) respecting the registration records that the registrar is to maintain about persons registered under this Act and specifying any limitations on the extent the records are to be open to the public;

(f) respecting service agreements;

(g) respecting the type or amount of remuneration that a registrant may charge and receive for providing a real estate service, including

(i) specifying acceptable methods of calculating remuneration, and

(ii) prohibiting certain types or amounts of remuneration or methods of calculating it;

(h) respecting contracts under which trades in real estate are carried out and how they are to be made, including

(i) specifying terms, conditions and other information that must be stated in an offer to trade in real estate or in the acceptance of an offer, and

(ii) specifying who must execute a contract and other formalities of execution;

(i) for the purpose of subsection 27(4), prescribing a form of offer to purchase for a completed single-family residential house or completed single-family residential unit in a condominium and prescribing the required terms, conditions and information that offers in the prescribed form must contain;

(j) for the purpose of subsection 29(1), prescribing the form of acceptances of offers to trade in real estate and prescribing the required terms, conditions and information that acceptances in the prescribed form must contain;

(k) defining "related" for the purpose of section 30 or 31;

(l) governing trust accounts for the purpose of section 38 and respecting the disbursement of money from a trust account;

(m) respecting disciplinary actions by the registrar under section 55 and emergency suspensions under section 56;

(n) for the purpose of section 65, respecting claims against the Real Estate Reimbursement Fund and the payment of claims out of that fund, including specifying limits on the amount that may be paid in respect of a claim;

(o) for the purpose of section 79, respecting the business records that a registrant must keep;

(p) specifying the fees that the commission may charge

(i) for conducting an examination or analysis of a registrant's business records, and

(ii) in connection with the filing of a prospectus and issuing certificates of acceptance under Part 6;

(q) respecting bonds that are to be provided under any provision of this Act and governing the circumstances under which a bond is forfeited and the manner in which a forfeited bond may be enforced;

(r) respecting any matter that the commission considers necessary or advisable to carry out the purposes of this Act.

Regulations may be general or particular

85(2)       A regulation under subsection (1) may be general or particular and may apply differently to registrants in different registration categories or registrants who provide real estate services of a particular nature.

Approval of certain regulations

85(3)       A regulation made under clause (1)(d) or (p) has no effect unless it is approved by the Lieutenant Governor in Council.

CONSEQUENTIAL AMENDMENTS

Consequential amendments, C.C.S.M. c. C200

86(1)       The Consumer Protection Act is amended by this section.

86(2)       Clause (n) of the definition "collection agent" in subsection 1(1) is replaced with the following:

(n) a person providing real estate services as a registrant under The Real Estate Industry Act, or

86(3)       Clauses 78(1)(d) and 84(1)(c) are amended by striking out "The Real Estate Brokers Act" and substituting "The Real Estate Industry Act".

Consequential amendments, C.C.S.M. c. M210

87(1)       The Mortgage Brokers Act is amended by this section.

87(2)       Clause 15(4)(c) is amended by striking out "broker under The Real Estate Brokers Act" and substituting "brokerage under The Real Estate Services Act".

87(3)       Clauses 34(1)(c) and 38(1)(b) are amended by striking out "The Real Estate Brokers Act" and substituting "The Real Estate Services Act".

Consequential amendment, C.C.S.M. c. S50

88(1)       The Securities Act is amended by this section.

88(2)       Clauses 4(2)(b) and 21.1(1)(d) are amended by striking out "The Real Estate Brokers Act" and substituting "The Real Estate Services Act".

88(3)       Section 21 is amended

(a) by striking out "The Real Estate Brokers Act" wherever it occurs and substituting "The Real Estate Services Act"; and

(b) in clause (c), by striking out "Part VI" and substituting "Part 6".

Repeal

89          The Real Estate Brokers Act, R.S.M. 1987, c. R20, is repealed.

C.C.S.M. reference

90          This Act may be referred to as chapter R21 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

91          This Act comes into force on a day to be fixed by proclamation.

Explanatory Note

This Bill replaces The Real Estate Brokers Act.

The role of The Manitoba Securities Commission as the regulator for companies and individuals in the business of providing real estate services is continued. Companies and individuals are required to be registered with the Commission.

The Commission and the person appointed as the registrar can take disciplinary action against a registrant if the registrant does not comply with the Bill's requirements, any regulatory requirements or conditions or restrictions of the registration. Included in the disciplinary action that may be taken are monetary penalties of up to $500,000. Similar disciplinary action may be taken against a person who, without being registered, provides a service that only a registrant may provide.

The Bill requires an online registry of registrant information to be available, including information about disciplinary actions.

The former Act's provisions regulating the sale in Manitoba of subdivision lots outside the province are included in the Bill.

Regulations may be made by the Commission to regulate the real estate services industry, including regulations that require registrants in specified categories to comply with a code of conduct.

The Bill also includes consequential amendments to The Consumer Protection Act, The Mortgage Brokers Act and The Securities Act.