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Broker files privacy complaint against Nova Scotia Real Estate Commission

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A Nova Scotia real estate broker has filed a personal privacy complaint against the Nova Scotia Real Estate Commission (NSREC) alleging that the provincial regulator has violated her rights under Canada’s privacy law.

Martina Robinson, broker/owner with Robinson & Harmsen Lifestyle Real Estate, filed the complaint with the Office of the Privacy Commissioner of Canada, alleging that her personal information about the sale of her primary residence was disclosed to NSREC without her consent, and only occurred when NSREC demanded the information as part of its annual auditing process from the brokerage who handled the sale of her property.

“We are happy with our educated Realtor and lawyer of trust,” she says. “We are business people and are happy with our closed file, and did not wish the personal information therein to be audited by NSREC.”

The point, says Robinson, is that any consumer, whether it’s her or anyone else, should be properly informed about how their information will be used and should be given the option as to how and where they want that information disclosed.

Robinson says Nova Scotia’s current Agreement of Purchase and Sale does not comply with the Personal Information Protection and Electronic Documents Act (PIPEDA), Canada’s privacy legislation. She says that despite raising concerns to NSREC several times, the regulator has been slow to update the form.

“Brokers are being hung out to dry if they give out client information for the annual audit without explicit client consent,” says Robinson. “NSREC has been developing the new (sales agreement form) for the last 3 ½ years and are now saying it should be ready by fall 2017.”

And that, she says, is unacceptable.

Robinson says that her brokerage has been complying with NSREC’s auditing requirements and handing over closed and terminated transaction files, but only under protest after NSREC threatened to suspend her broker licence.

Registrar Brad Chisholm says that as the regulator for Nova Scotia’s real estate industry, NSREC has an obligation to consumers to ensure that licensees are complying with their regulatory obligations and does so, in part, by conducting regular brokerage audits. He points out that these audits are authorized by the provincial Real Estate Trading Act and NSREC bylaw, and that a licensee is required to co-operate by providing all relevant material.

“It is the (NSREC’s) view that there is no violation of applicable privacy legislation when licensees provide this information to the commission,” says Chisholm.

In a detailed email to REM, Chisholm referenced several sections of the NSREC bylaw to support his position. He also cited several documents that clients are required to review and sign, such as the Working with the Real Estate Industry form, which disclose that a client’s information will be used, in part, to comply with the provincial act and NSREC bylaw.

As an example, under the “Privacy and Use of Personal Information” part of the Working with the Real Estate Industry form, it states: “Real estate representatives will disclose the information to other brokerages, potential buyers and interested parties during the course of marketing of the property for sale, as well as through the sales process. In addition, all or some of it will be disclosed to government departments, appraisers, municipal organizations and others.”

“The production of mandated transactional records by the brokerage to the regulator is consistent with the reason for which they were created,” says Chisholm.  “This information in the hands of the regulator maintains its confidential status, and even without consent, the provision of the information is not a breach of PIPEDA.”

Valerie Lawton, manager, strategic communications with the Office of the Privacy Commissioner of Canada, says that as a general starting point, PIPEDA requires consent for use or disclosure of personal information and that an organization must identify the purposes for which consent is sought.

She says that while PIPEDA lists a number of exceptions to the consent requirement, she was unable to comment as to whether an auditing authority, such as a provincial real estate regulator, requires explicit consent from each individual brokerage client before performing an audit of the brokerage.

She notes, however, that consent to the disclosure of personal information can be a condition of service if it is required for the delivery of a service, but also offers a blanket caution.

“Generally speaking, we would encourage organizations to tell individuals about disclosures that they may need to make for audit purposes and to seek consent for such potential disclosures,” says Lawton.

Robinson says that she has been told her file is being processed and expects to hear more from the Office of the Privacy Commission soon.

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