DISCIPLINE DECISION AND REASONS FOR DECISION

Transcription

1 Real Estate Council of Ontario IN THE MATTER OF A DISCIPLINE HEARING HELD PURSUANT TO THE REAL ESTATE AND BUSINESS BROKERS ACT, 2002, S.O. 2002, c. 30, Sch. C BETWEEN: REAL ESTATE COUNCIL OF ONTARIO - AND - TOMISLAV MATOVIC (also known as TOM MATOVIC) DISCIPLINE DECISION AND REASONS FOR DECISION Subject to Rule 4.02 of the Discipline and Appeals Committee Rules of Practice (REBBA 2002), I, the Chair of the Discipline Committee (REBBA 2002) have reviewed and considered the Agreed Statement of Facts and Penalty together with the Waiver of Hearing submitted by the Parties to this proceeding and provide the following Order: FINDINGS: ORDER: In violation of Sections 3, 4, 37 (1) and (2), and 38 of the REBBA 2002 Code of Ethics. Fine of $6, payable to RECO on or before December 15, WRITTEN REASONS: REASONS FOR DECISION INTRODUCTION This matter proceeded on the basis of an Agreed Statement of Facts and Penalty and Waiver of Hearing, pursuant to Rule 4.02 of the Rules of Practice (REBBA 2002). The Agreed Statement of Facts and Penalty read: AGREED STATEMENT OF FACTS AND PENALTY 1. Tomislav Matovic ( Mr. Matovic ) is a salesperson registered under the Act. At all material times, Mr. Matovic was employed with and carried on business on behalf of Brokerage A, a brokerage registered under the Act. 1 Page

2 2. Registrant B is a salesperson registered under the Act. At all material times, Registrant B was registered with and carried on business on behalf of Brokerage B. 3. At all relevant times, Registrant B, on behalf of Brokerage B, listed for sale a condominium property located at 1-B Street (the Property ). 4. On or about August 22, 2014, at approximately 7:05 p.m., Individual A contacted Registrant B by phone. At this time, Individual A advised Registrant B that she was having a problem with getting the key to access and show the Property to clients. 5. At approximately 8:05 p.m. the same day, Individual A called Registrant B and registered an offer on the Property. Individual A indicated that she was registering the offer on behalf of Mr. Matovic, who was out of the country at the time. Individual A also indicated that she was not a registrant under the Act, but she was a registered assistant to Mr. Matovic. 6. At this time, Registrant B asked Individual A to fax the offer to her for review. 7. The Agreement of Purchase and Sale that was forwarded to Registrant B by Individual A was handwritten and had the following salient provisions (the First Offer ): a) The parties to the transaction were the Buyer; b) The seller was the Estate of the Seller; c) The offered price was Two Hundred Eighty-Five Thousand Dollars ($285,000.00); and d) A deposit of $10, was payable upon acceptance. 8. The First Offer was irrevocable by the buyer until August 23, 2014, and the completion date of the First Offer was September 30, The First Offer was signed by the buyer on August 22, 2014, and witnessed by Mr. Matovic. Although there was only one buyer, Mr. Matovic witnessed on two (2) lines as if witnessing the signatures of two (2) buyers. 10. The Commission Trust Agreement section of the First Offer was signed by Mr. Matovic, but his signature was not dated. 11. Among other things, the First Offer was also deficient in that: a) Some sections of the First Offer were left blank; and b) Schedules B and C, which were called for by the MLS listing, were also not attached to the First Offer. 12. On or about August 23, 2014, the First Offer was presented to the sellers who expressly rejected the First Offer without a sign back or a counter offer. 13. On or about August 25, 2014, Mr. Matovic sent a text message to Registrant B advising that an improved offer may be forthcoming. Mr. Matovic indicated that while he would be 2 Page

3 returning to the City on Thursday, August 28, 2014, Individual A would be coordinating the drafting and presentation of the improved offer. 14. At approximately 6:59 p.m., on August 25, 2014, Individual A registered the improved offer which she subsequently delivered via to Registrant B (the Second Offer ). 15. The Second Offer was also handwritten and was simply an amendment of the First Offer. In the Second Offer: (a) The contract date was amended by crossing out August 22, 2014, and replacing it with August 25, 2014; (b) The offered price of $285, was crossed out and replaced with $290,000.00; (c) The irrevocable date of August 23, 2014 was deleted and replaced with August 26, 2014; and (d) The signature dates were also changed from August 22, 2014 to August 25, On or about August 26, 2014, the Second Offer was presented to the sellers. The sellers also rejected the Second Offer and simply left it to expire. 17. On or about August 27, 2014, at approximately 12:40 p.m., Individual A called Registrant B to advise that a better and improved offer had been sent to Mr. Matovic for review and signature. 18. On the same date of August 27, 2014, at approximately 12:45 p.m., Mr. Matovic ed another amended Agreement of Purchase and Sale (the Third Offer ) to Registrant B. In the that accompanied the Third Offer, Mr. Matovic indicated that his client was suspicious and felt that the first two (2) offers may not have been presented. Mr. Matovic, therefore, requested that there be at least a sign back or an indication from the sellers that the Third Offer was rejected so that he could provide the same to his client. 19. The Third Offer was also in essence the original handwritten First Offer with the following amended salient details: (a) The offered price was changed to $293,000.00; (b) The irrevocable date was changed from August 23, 2014 to August 28, 2014; and (c) The offer date and the signature dates were crossed out and changed from August 25, 2014 to August 27, Upon submitting the Third Offer to Registrant B, Individual A called Registrant B and advised her of the following: 3 Page

4 (a) That she had received a call from Mr. Matovic requesting that the sellers sign the offer presentation acknowledgement form for all the three (3) offers, indicating the amount of each of the offers and the dates on which they were presented; and (b) At this time, Registrant B advised Individual A that she would, from then on, be dealing directly with Mr. Matovic in relation to the Third Offer. 21. On or about August 27, 2014, at approximately 6:07 p.m., Registrant B called BOR A, the broker of record of Brokerage A, and advised her of the following: (a) That Mr. Matovic had been out of the country for approximately three (3) months and had been using an unregistered assistant to help him in trades; (b) That Mr. Matovic had witnessed the signature of his client, although he was not physically present in the country at the time; (c) Some parts of the offers that were presented to her were left blank and even when Mr. Matovic witnessed the signature of his client, it was not dated; and (d) That Individual A had been practising real estate without the benefit of registration. 22. At this time, BOR A expressed shock and indicated that she was not aware that Mr. Matovic had an unregistered assistant. BOR A undertook to address the issues as soon as she returned. 23. On or about August 27, 2014, the Third Offer was also rejected and at this time Registrant B advised Mr. Matovic not to submit any other offers unless it met certain minimum requirements specified by the sellers. 24. On or about September 24, 2014, Mr. Matovic met with Mr. Craig Sanson ( Mr. Sanson ), an Inspector/Investigator with RECO (the September 24, 2014 Meeting ). At the September 24, 2014 Meeting, Mr. Matovic advised Mr. Sanson of the following: (a) He had been registered under the Act since 2006; (b) He was involved in the transaction of the Property; (c) He was out of the country at the time; (d) That he used the services of an unlicensed assistant to help him show, draft and present the offers; (e) The unregistered assistant drafted and presented the offers in accordance with his instructions; (f) Once Individual A drafted the offers, they were forwarded to him by where he witnessed the signature of his client, although he was not physically present when his client signed the offers; 4 Page

5 (g) He accepted responsibility for his conduct; (h) When BOR A found out about his mistake, his registration with Brokerage A was terminated; and (i) He was re-employed by Brokerage A after he had completed six (6) online professional development courses. 25. On or about November 3, 2014, Mr. Sanson met and interviewed Individual A. At this time, Individual A stated as follows: (a) That she was an assistant to Mr. Matovic; (b) At the time, she was not registered under the Act, but she was working towards getting her registration under the Act; and (c) That she assisted Mr. Matovic in showing, drafting and presenting offers in relation to the Property, and the Mr. Matovic signed as witness to the client when she ed the offers to him. 26. On or about August 30, 2014, RECO received a complaint from Registrant B in relation to the above stated facts. 27. Mr. Matovic voluntarily suspended his registration for a month and took six continuing education courses that were relevant to the allegations and put himself under supervision of his broker of record for one year. SUMMARY OF AGREEMENTS It is agreed that Mr. Matovic acted unprofessionally when he: 1. Employed the services of an unregistered person to show, draft and present offers in relation to the Property, thereby breaching Sections 4 and 38 of the Code of Ethics under the Act (the Code of Ethics ). 2. Signed as a witness to his client s signature, although he was not physically present at the time his client signed the offers, thereby breaching Sections 33, 37 and 38 of the Code of Ethics. 3. Presented or caused his unregistered assistant to present offers that were not only handwritten but incomplete in detail and with no dates in certain respects, and omitting to include schedules B and C, which were required by the seller as indicated in the MLS listing, thereby breaching Sections 4 and 38 of the Code of Ethics. It is agreed that Mr. Matovic breached the following sections of the Code of Ethics: Fairness, Honesty, Etc. 3 A registrant shall treat every person the registrant deals with in the course of a trade in real estate fairly, honestly and with integrity. 5 Page

6 Best Interests 4 A registrant shall promote and protect the best interests of the registrant s clients. Inaccurate Representations 37 (1) A registrant shall not knowingly make an inaccurate representation in respect of a trade in real estate. (2) A registrant shall not knowingly make an inaccurate representation about services provided by the registrant. Error, Misrepresentation, Fraud, Etc. 38 A registrant shall use the registrant s best efforts to prevent error, misrepresentation, fraud or any unethical practice in respect of a trade in real estate. AGREED PENALTY TOMISLAV MATOVIC (also known as TOM MATOVIC), the Respondent, be ordered to pay a penalty of $6, on or before December 15, By initials below, I, TOMISLAV MATOVIC (also known as TOM MATOVIC), acknowledge that I have read and understand the penalty outlined herein and agree to the said terms and/or conditions. [Respondent s Initials] By initials below, I, TOMISLAV MATOVIC (also known as TOM MATOVIC), agree, understand, acknowledge and consent to waive the requirement for a hearing and to request an Order from the Chair of the Discipline Committee that includes this Agreed Statement of Facts and Penalty as a final settlement of this matter. [Respondent s Initials] By initials below, I, TOMISLAV MATOVIC (also known as TOM MATOVIC), acknowledge that I exercised my right to be represented by Counsel or agent in this matter. [Respondent s Initials] By signature below the Parties agree, acknowledge, understand and consent to the final settlement of this matter by way of this Agreed Statement of Facts and Penalty. [The Agreed Statement was duly signed by the Parties.] DECISION OF THE CHAIR Having reviewed and considered the Agreed Statement of Facts, the Chair of the Discipline Committee (REBBA 2002) concluded that the Respondent breached Sections 3, 4, 37 (1) and (2), and 38 of the REBBA 2002 Code of Ethics. The Chair of the Discipline Committee (REBBA 2002) is also in agreement with the joint submission of the Parties as to penalty and accordingly makes the following order: 6 Page

7 1. Tomislav Matovic (also known as Tom Matovic), is Ordered a Fine of $6, payable to RECO on or before December 15, [Released: May 2, 2016] 7 Page