In the midst of its proposed update, one question not being asked is, “Do we really need the full force of the law behind the registrant’s Code of Conduct?” I defy a single lawyer in the Province of Ontario to convince me of its legality. Any lawyer who endorses the legitimacy of the Realtor code might quickly point out “but the legal profession has one!”
Sure they do, with two caveats. The lawyers aren’t stupid enough to codify their profession into a mere nine pages. Theirs is beefed up to 150 pages. And the ultimate trump card: they’re self-regulated.
So, the next question from those left-leaning social constructionists is, “Well how many pages will it take to comprehensively codify a Realtor’s handbook?” And the answer is, “How long is a piece of string?”
Don’t be facetious you say. Well, the beauty and the beast about the real estate industry is its complexity. And the beauty and the beast about human behaviour is its complexity. You do the math.
There’s no place for the state in the bedrooms of our nation, and there’s no place for the state’s arbitrary enforcement of agency conduct on how to list and sell those bedrooms.
Let’s take a peek at modern day agency. Listing agents aren’t just handed the keys to a house. They’re handed the keys to someone’s life. They shoulder stress and balance family dynamics. They’re privy to intimate information, possibly embarrassing or even compromising information. They play supporting actor roles such as spiritual advisor, psychologist, family therapist, referee, arbitrator, counselor, friend, confidant and no doubt others. And all of that says nothing of their business role.
Agents are accountable for scores of decisions. Photos to use or not use. To stage or not to stage. Pre-inspect or not. Inclusion or exclusion of floor plans or other attachments. Signage, showings, pricing strategies, open houses, flyers, ads…. The right narrative could come down to a single word. The right offer could come down to the right quip, directed at the right party, under the right circumstances.
Is it really that complicated? In a word, yes!
And every single agent makes countless decisions without the explicit authority of his or her client. So how is it our beloved regulatory authority isn’t intervening every single step along the way to babysit that elusive “bar of professionalism”?
Well, here’s the answer. The industry has been sold a fraudulent bill of goods that reeks of illegality. When agents enter into a listing agreement with their client, an explicit authority (to list) has been created. However, they also enjoy, by way of agency common law, an implicit authority. This implicit authority, by necessity, is read into or implied as part of an agent’s express authority. One law school professor summed it up like this: every agent has an implied authority to do “everything necessary for, and ordinarily incidental to, carrying out his express authority according to the usual way such authority is executed”.
Without getting bogged down in legal mumble jumble, here’s the punchline. The courts have ruled an agent’s implied authority is far more generous than our regulatory authority would have you believe. Nor is it in their best interest to bring it to your attention, thereby safeguarding the fiefdom of its autocratic dictatorship and the preservation of its arbitrary adjudication of your conduct.
In fact, the court’s position on implied authority cannot be described as tepid. There are many cases where a principal (the client) is bound by the actions of their agent, despite the agent having exceeded their true authority. At this point, I’m guessing the vast majority of registrants just went “OMG” and then “WTF”.
Yes, the pervasive view of the court has been to place the burden on the principals (the clients) to govern their agents’ conduct. But if you think about it, this all makes sense. Why? Well, the privileged profession of agency throughout history comes down to one word: trust. Yes, clients trust their agents. They trust their agent to manage the countless decisions required to resolve their real estate needs. As an obvious example, the vast majority of agents routinely deal with clients who don’t read the fine print, and wouldn’t, even if a gun were held to their head, all because of trust.
Sadly, the press, motivated by their need for eyeballs, relish those relatively rare ‘bad apple’ stories providing the fodder for the neo-Marxist leftists to promote their social constructionist philosophies. And incidentally they’re incredibly good at it, both the media and the neo-Marxists. You don’t think it took skill and finesse to castrate the 100-year-old Ontario Real Estate Association of its educational role for the industry?
The concerns of confusing and conflicting language were raised by Dr. Jordan Peterson in his review of Bill C-16 and the human rights policy statements predicting outcomes “will be worked out very painfully in the confines of peoples private lives.” That very prediction has already been played out in the lives of thousands of registrants over the years with mean-spirited proceedings accomplishing what? Arbitrary, capricious and self-serving “coulda shoulda” rulings jammed down the throat of naïve and vulnerable registrants.
No one can deny the axiomatic benefit of good practice guidelines, but the law should focus on real crime, not orchestrated punishment, and it certainly has no business adjudicating its arbitrary interpretation of compelled conduct. Do I think we’d all better off with the legally compelled practise of holding doors open for others? Yes. But then you’d have to have me committed with a case of temporary insanity. Did I hold it open long enough? Did I strip away the dignity from a perfectly capable person? Were my actions bias, unfair or prejudicial? And so on…
I’d love to cite my legal credentials here but I’m merely a grad of the school of hard knocks. That said, I’d like to leave the world of law and end this piece in the world of science.
Egas Moniz claimed, “Normal psychic life depends on the good functioning of brain synapses, and mental disorders appear as the result of synaptic derangements. Synaptic adjustments will then modify the corresponding ideas and force them into different channels. Using this approach, we obtain cures and improvements but no failures.”
When the Real Estate Council of Ontario (RECO) was formed as the brain-child of those social scientists putting the full force of the law behind the codification of Realtor conduct, I’m sure the theory was “to obtain cures and improvements but no failures”.
Dr. Moniz was the brilliant Portuguese neurologist Nobel laureate responsible for inventing the synaptic adjustment procedure, which resulted in tens of thousands of people receiving the treatment who, as it turned out, had absolutely nothing wrong with them. You may know of the procedure by its more common name, “frontal lobotomy”.
No, RECO hasn’t performed any frontal lobotomies on its registrants, but for countless registrants their punishment was even worse. A kind of spiritual lobotomy. Blindsided by a complaint letter where substantially good intentions resided. And even though by their own admission RECO claims to understand “that being the subject of a complaint can be stressful” that’s never stopped them imposing their arbitrary, self-serving code prosecutions all in the name of “raising the professional bar” and purporting to somehow protect that cherished consumer.
You’d like to think they’d never admit that raising their own self-importance is the single most important message they want Joe Public, the media and the industry to embrace, but their propaganda is unapologetic about their apparent immortal self-prognostication. RECO’s nutritionally deficient but syrupy 2019 five-year Strategic Plan claims they are “well-equipped with the tools and people needed to embrace the challenges and opportunities in the foreseeable future, and beyond.” Maybe in a galaxy far, far away? I’m sure I just heard Mr. and Mrs. Lunar Consumer breathe a sigh of relief.
“All people know the same truth. Our lives consist of how we choose to distort it.” – Woody Allen
Is there one registrant in the province who wouldn’t have preferred to see the tens of millions wasted on lavish premises, generous payrolls, self-serving promotion and frivolous proceedings invested in something positive like homeless shelters, for example? I’m betting the press would really struggle to admonish Realtor conduct in those circumstances.
Brian D. Gogek is a sales representative with Century 21 Leading Edge Realty in Markham, Ont. Contact him by email.
