Consent Order

Published on
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Licensee
Donald Tymchuk, Donald Lawrence Tymchuk
Brokerage at Time of Sanctioned Activity
New Way Realty Inc.
Current Brokerage
New Way Realty Inc., Campbell River
Consent Order Date
1 March 2006

Summary

REAL ESTATE COUNCIL OF BRITISH COLUMBIA

In the matter of the Real Estate Services Act

S.B.C. 2004, c. 42

AND in the matter of a Disciplinary Hearing held pursuant to Section 41 of the Real Estate Services Act

Hearing Date: June 22 and 23, 2005 and January 4 and 5, 2006

Decision of Council: March 1, 2006

Financial Services Tribunal Decision: September 6, 2006

Complaint: Contravention of sections 3(1), 15(1), 16(1); 17, 31(1)(b), 31(1)(c) under the Real Estate Act; sections 9.12, 9.16 and 12-01 of Regulation 75/61 under the Real Estate Act; sections 6(2)(b), 25, 27(1) and (2) and section 35(1)(a) of the Real Estate Services Act; sections 2-19, 3-1 and 8-9 of the Council Rules /Misconduct,

Issue: New Way Realty Inc, brokerage, Campbell River, contravened:

  1. section 15(1) which requires that a brokerage shall, for every real estate transaction where trust monies are held, keep a transaction record sheet,
  2. failed to pay into trust monies received on behalf of a client in that property management activities were being conducted separate and apart from the brokerage and funds that were being placed into a separate non-trust account, contrary to section 16(1);
  3. failed to deposit funds received from a client on behalf of a real estate transaction within a reasonable time into trust, contrary to section 16(1); and
  4. failed to keep proper books, up-to-date records and accounts contrary to section 12.01 of Regulation 75/61, New Way Realty Inc. contravened the Real Estate Services Act in that it:
    1. failed to maintain proper books, accounts and other records, contrary to section 25 and section 8-9 of the Council Rules;
    2. failed to deposit all monies received on behalf of a client with respect to a real estate

Issue: Donald Lawrence Tymchuk, managing broker, New Way Realty Inc, Campbell River, was incompetent within the meaning of section 9.12 of Regulation 75/61 under the Real Estate Act in that he:

  1. failed to ensure that the brokerage kept proper and up-to-date books, records and accounts, in accordance with sections 15(1) of the Real Estate Act and 12.01 of Regulation 75/61 under the Real Estate Act,
  2. failed to ensure that all monies held and received on behalf of the property management clients were deposited into the trust account in the name of the brokerage in accordance with section 16(1);
  3. permitted a representative to hold herself out as a managing broker without being the holder of a valid and subsisting managing broker 's licence, contrary to section 3(1), in that she conducted property management services independent of her employing brokerage;
  4. withdrew funds from the brokerage 's trust account and paid such funds directly to the licensee, contrary to section 17;
  5. failed to be in active charge of the business of the brokerage being conducted in the brokerage 's office, both with respect to the transactions that resulted in the complaint and in general course of the business of the brokerage, contrary to section 9.16 of Regulation 75/61 and was incompetent in that regard contrary to

Mr. Tymchuk, as managing broker, misconducted himself pursuant to section 31(1)(c) of the Act in that he failed to ensure that all monies held and received on behalf of clients in respect of a real estate transaction were deposited into trust within a reasonable time, contrary to section 16(1) of the Real Estate Act.

Mr. Tymchuk, as managing broker committed professional misconduct pursuant to section 35(1)(a) of the Real Estate Services Act in that he:

  1. failed to ensure that the brokerage kept proper books, accounts and other records, in accordance with section 25 of Act and sections 3-1(3) and 8-9 of the Council Rules;
  2. failed to ensure that the brokerage paid trust funds received on behalf of a principal in relation to real estate services promptly into trust, contrary to section 27(2);
  3. failed to ensure that a representative in providing rental property management services on behalf of the brokerage, immediately delivered all trust monies received on behalf of a principal in relation to real estate services to the brokerage trust account, contrary to section 27(1);
  4. failed to take reasonable steps to ensure that the property management services provided by the representative on behalf of the brokerage complied with the provisions of the Real Estate Services Act and the Council Rules, including section 3-1(2) of the Council Rules;
  5. failed to fulfill his responsibility as a managing broker for the performance of the duties imposed on the brokerage by his licence within the meaning of section 6(2)(b) of the Real Estate Services Act and section 3-1(1) of the Council Rules; and
  6. failed to adequately and promptly respond to requests for a response by the Council contrary to section 2-19 of the Council Rules.

Penalty: An independent accountant as defined by section 1-1 of the Council Rules, be engaged by New Way Realty Inc to provide a written opinion to Council on the brokerage 's compliance with the trust accounting and other financial requirements by September 6, 2006 with the cost to be paid by New Way Realty Inc. In the event that the opinion is received by the Council and it indicates that the books, records and accounts comply with the Real Estate Services Act and the Council Rules, New Way Realty Inc. shall be reprimanded. In the event that the opinion is not received by the Council, the licence of New Way Realty Inc. shall be cancelled. In the event that the opinion is received and it does not confirm that the books, records and accounts comply with the Real Estate Services Act and the Council Rules, the hearing shall be reconsidered at which time it will be open to the Discipline Hearing Committee to make a determination as to the licence

New Way Realty Inc. must, as of June 6, 2006, provide to the Council proper monthly reconciliations of its trust bank accounts and its general bank accounts for a period of twelve consecutive months as a condition of continued licensing. Each monthly trust reconciliation is to be received by Council no later than the end of the month following the month to which the trust reconciliation relates.

Donald Tymchuk 's managing broker 's licence was cancelled effective July 20, 2006 and, as a condition of re-licensing as a managing broker, he must successfully complete the Broker 's Licensing Course and Examination and enroll in and attend the Accelerated Residential Trading Services Applied Practice Course. He is immediately eligible to be licensed as a representative provided he has complied with all of the other terms of the Council decision as modified by the Financial Services Tribunal decision. As a condition of continued licensing as a representative, he must enroll in and attend the CPE Course on Agency by December 7, 2006 and "Legal Update " by June 7, 2007.

New Way Realty Inc. and Donald Tymchuk were fined the sum of $10,000 jointly and severally to be paid within sixty days of the date of this decision. If that sum has not been paid by November 6, 2006, the licenses of New Way Realty Inc. and Donald Tymchuk shall be suspended forthwith until such a time as the fine has been paid in full.

New Way Realty Inc. and Donald Tymchuk were assessed enforcement expenses jointly and severally in the sum of $12,457.90 to be paid by November 6, 2006. If that sum has not been paid by November 6, 2006, the licences of New Way Realty Inc. and Donald Tymchuk shall be suspended forthwith until such time as the fine and enforcement expenses are paid in full.

Appeal The Financial Services Tribunal upheld the disciplinary decision of the Council in its entirety. The deadlines noted above incorporate the effect of the Financial Services Tribunal decision on the compliance deadlines in question. The Financial Services Tribunal will be considering, at some future date, whether costs of the appeal should be