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Contracts - Disclaimers. Smith v. Real Estate Council of Ontario
In Smith v. Real Estate Council of Ontario (Div Court, 2024) the Divisional Court dismissed a JR challenging a RECO (Real Estate Council of Ontario) Appeal Panel disciplinary decision. These review cases are few in the courts.
Here the court considers the application and efficacy of a real estate agent's 'disclaimer', and "whether the disclaimer ... added to the listing clearly articulated to prospective buyers that the tax information was not accurate":[29] The outcome of the case before the Discipline Panel turned on a very narrow issue: was the “disclaimer” Ms. Smith included in her listing sufficient given that she knew the tax information she included in the listing was inaccurate? In other words, the decisive issue was whether the disclaimer Ms. Smith added to the listing clearly articulated to prospective buyers that the tax information was not accurate. That was the focus of Ms. Martinez’s evidence. Ms. Smith’s proposed experts did not address the adequacy of the disclaimer so the Discipline Panel’s decision to exclude their evidence was not unfair.
[30] I, therefore, find that the Appeal Panel’s decision to uphold the Discipline Panel’s decision on the inadmissibility of the expert witnesses was reasonable.
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[49] Based on all the evidence, it was open to the Discipline Panel to find that a disclaimer in the listing that was visible only to other agents and brokers did not clearly communicate that the tax information was based on Ms. Smith’s own calculations, not verified information. And it would not have been obvious from the information Ms. Smith included that the amount listed for the taxes was only an estimate. Ms. Smith included a very precise figure in the listing for the taxes - $3,554.32. It was reasonable for the Discipline Panel to find that that $3,554.32 figure was misleading without a clear disclaimer, visible to anyone viewing the listing, that Ms. Smith had done her own calculation of the taxes and had not verified her calculation against the municipal tax records. The Discipline Panel’s finding that Ms. Smith did not treat everyone fairly, honestly and with integrity was, therefore, reasonable. The Discipline Panel’s finding that Ms. Smith did not act diligently was also reasonable given its finding that Ms. Smith did not clearly communicate that the information in the listing was unverified and was only an estimate.
[50] It was also open to the Discipline Panel to find that by including inaccurate information in the listing without a sufficient disclaimer, Ms. Smith exposed her clients to various forms of harm, including a civil claim. The Discipline Panel also found that by including inaccurate information in the listing, Ms. Smith created “stressful last-minute issues.” And she created a risk that the transaction would be aborted when the purchaser figured out that the tax information was incorrect the day before the property was to close. It was reasonable for the Discipline Panel to find that, by including inaccurate information in the listing without a proper disclaimer, Ms. Smith was not acting in a way that protected the client’s best interests.
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