Registered/Unregistered Assistants Trading in Real Estate
The Real Estate And Business Brokers Act, 2002 (the “Act”), defines “trade” in Sec. 1:
includes a disposition or acquisition of or transaction in real estate by sale, purchase, agreement for purchase and sale, exchange, option, lease, rental or otherwise and any offer or attempt to list real estate for the purpose of such a disposition, acquisition or transaction, and any act, advertisement, conduct or negotiation, directly or indirectly, in furtherance of any disposition, acquisition, transaction, offer or attempt, and the verb “trade” has a corresponding meaning;
Sec. 4 of the Act states, in part, that no person shall trade in real estate unless registered under the Act. Sec. 30 states that a brokerage shall not employ, or pay remuneration to, another brokerage’s broker or salesperson or employ, or pay remuneration to, unregistered persons for functions for which registration is required. Sec. 31 states in part that brokers and salespersons can only be paid for trading in real estate by the brokerage with whom they are registered.
This office has been consistent in its advice regarding sales representatives and brokers hiring unlicensed assistants. These assistants cannot undertake any activity that falls into the category of “trade”. A partial list of prohibited examples would include such activities as being on site at open houses, door knocking in a farming area, phone solicitation, showing properties, or being a participant at an offer or listing presentation.
Subject to the caveat that the Canada Revenue Agency, the Ministry of Labour and other government agencies have an impact on employee/employer relationships, with laws, regulations and reporting requirements, this office holds the view that sales representatives or brokers may be able to pay these assistants directly for services not considered “trading”.
It would appear that some sales representatives and brokers have wanted to broaden the scope of their administrative assistant’s activities to include elements of “trading” as defined by the Act. They have “hired” licensed (registered) persons as assistants. The following sets out how such registered assistants can be paid.
For any activity that does not fall under the definition of “trade”, an assistant may be paid by the sales representative or broker providing all laws and regulations regarding employee-employer relationships are complied with.
For any activity that falls under the definition of “trade”, any assistant must be registered under the Act to the same brokerage as the sales representative or broker and can only be paid by the brokerage to whom he or she is registered for undertaking such activity.