Issue: Tracy-Allan James Schwartz, representative, One Percent Realty Ltd., Vancouver, entered into a Consent Order with the Council that while licensed with 2 Percent Realty Inc., Vancouver, 2 Percent Realty Turbo, Vancouver, One Percent Realty Ltd., Vancouver and Showcase Realty Plus Ltd. dba Century 21 Showcase Plus, Port Moody, he committed professional misconduct within the meaning of section 35(1)(a) of the Real Estate Services Act in his capacity as the buyer’s agent for the purchase of property located on 4th Street in North Vancouver in that he:
(a) contrary to section 3-3(b) of the Council Rules, failed to act in accordance with the lawful instructions of the buyer when he failed to ensure that the seller had the property’s vermiculite sample tested for asbestos;
(b) contrary to section 35(1)(c) of the Real Estate Services Act, and sections 3-4 and 3-3(a) of the Council Rules, failed to act with reasonable care and skill and in the best interest of his client, and engaged in deceptive dealing, when he:
(i) advised the buyer that the seller had agreed to have a sample of the property’s vermiculite tested for asbestos;
(ii) advised the buyer that he had received a fax from the seller’s agent that stated there was no asbestos in the vermiculite sample and that it was okay for the buyer to remove subjects;
(iii) provided the buyer with a fax purportedly sent to him from the seller’s agent, which was not the case, the fax having been created by him, that indicated that there was not asbestos in the vermiculite sample and that the buyer could remove subjects;
(iv) advised the buyer to remove subjects and complete the purchase of the property, when he knew or should have known that the seller had not had the vermiculite sample analyzed for asbestos, and/or that asbestos was present in the vermiculite sample;
(c) contrary to section 2-21(2) and (3) of the Council Rules, failed to promptly notify the Council in writing with particulars, if at all, that a judgment in relation to real estate services had been made against him on January 19, 2011; and
(d) contrary to section 35(1)(g) of the Real Estate Services Act, provided a false or misleading statement on the licensing applications dated January 6, 2013, February 12, 2013, and August 26, 2013, that he submitted to the Council, when, despite the judgment he answered “No” to the question “have you ever had any court orders or judgments made against you in relation to real estate services, a dealing in insurance, mortgages or securities, or misappropriation, fraud, or breach of trust”.
Result:Tracy-Allan was subject to an Order of a discipline committee that he: (a) be suspended for one hundred and eighty days (180), from December 2, 2015 to May 29, 2016, inclusive; and (b) pay enforcement expenses to the Council in the amount of $1,500.00.