what is National Do Not Call List (DNCL) ?
- As a salesperson, you will be expected to have knowledge of legislation and regulations that may impact real estate activities.
- One such legislation is the Telecommunications Act, the legislation that created the National Do Not Call List (DNCL).
- Telemarketing is defined as the marketing of goods or services by means of telephone calls, typically unsolicited, to potential customers. Unsolicited calls to potential clients or customers with whom you have had no prior contact are commonly referred to as cold calls
- telemarketer conducting telemarketing activities-Anyone who makes a call for business purposes or sends a fax to someone who did not ask to be contacted
does DNCL impact all businesses ?
The National Do Not Call List (DNCL) impacts all businesses involved in cold calling or telemarketing. The National DNCL provides consumers with a choice to reduce the number of unsolicited telemarketing calls they receive by registering their land line, cellular phone, and fax machine numbers on the National DNCL.
By federal law, a telemarketer cannot contact a consumer whose name and telephone number are in the National DNCL to solicit business. Any violations by a telemarketer could lead to penalties.
what is Internal Do Not Call List?
A brokerage, as a telemarketer, must not only register with the National DNCL but also maintain an internal brokerage list (internal DNCL). Consumers who are contacted and state that they do not want to receive calls or faxes from the brokerage must be placed on this list. This will ensure that you will not make telemarketing calls to consumers who do not want to be contacted.
The internal DNCL should contain the:
• Date and time of the request
• Consumer’s name and contact information
• Applicable 10-digit phone number(s)
exceptions to the National DNCL:
While the National DNCL Rules specify that a brokerage cannot contact a consumer whose name and telephone number are registered on the National DNCL, certain exceptions apply. For example, you will be permitted to call a consumer who has an existing business relationship with the brokerage. A business relationship exists if the consumer:
- Made an inquiry within the last six months (for example, a consumer contacting the brokerage for details of properties for sale or lease, or wanting to discuss the sale or lease of their property)
- Purchased, leased, or rented a property through the brokerage in the past 18 months
- Had a written agreement with the brokerage (for example, a representation or customer service agreement that is still in effect or expired within the past 18 months)
Verify that the brokerage has subscribed to the National DNCL and that the brokerage is a registered telemarketer.
Do not engage in telemarketing unless your brokerage has subscribed to the National DNCL.
Check with the broker of record and/or manager for the brokerage’s policies and procedures on telemarketing and the National DNCL.
Brokerage policy manuals will vary based on brokerage structure and internal handling of telemarketing lists. Duties of the individual coordinating the telemarketing activities are outlined in the policy, including responsibilities for the registration process, arranging necessary National DNCL subscription services, and updating brokerage lists at least once every 31 days.
The brokerage policy may require that all telemarketing calls be recorded and that the National DNCL and the internal DNCL be checked before any calls are made. If the brokerage is going to record calls, it will need to obtain consent from the recipient before the call is recorded.
Use both the National DNCL and the internal DNCL.
Use these lists to identify people who do not want to receive solicitation calls. A consumer’s number may not be on the National DNCL but may be on the internal DNCL.
Canada’s Anti-Spam Legislation (CASL) became law on July 1, 2014.
CASL is also known as: “An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act, and the Telecommunications Act” (S.C. 2010, c. 23).
The goal of CASL is to help create a safer and more secure online environment by setting requirements for sending commercial electronic messages (CEMs).
Impact of CASL and CEMs?
The federal government introduced CASL to protect Canadians from unsolicited CEMs that could potentially lead to spam, malware, and other internet-related threats. The intent of CASL is to provide a relatively secure online environment for consumers.
what is CEM?
CEM can be sent by any means of telecommunication, such as email, telephone, or instant messaging. It can include a text, sound, voice, or image message. It can also include hyperlinks in the message to content on a website or other database with the intent to promote commercial activity. Messages sent to other users on a social media platform, such as Facebook or LinkedIn, also qualify as CEMs.
CASL does not apply to:
- Twitter and Facebook wall posts
- Websites
- Blogs
- Two-way voice communication between individuals
- Faxes and voice recordings sent to a telephone account (however, salespersons should be aware of the requirements of the National DNCL)
Requirements for Sending a CEM
1-Obtain consent from the recipient-
- Identify yourself-
- Provide a means for the recipient to withdraw consent
Express Consent?
Some aspects to consider when requesting express consent:
- Consent can be oral or in writing. If challenged, you will need to prove that you obtained consent to send the CEM.
- Silence or inaction on the part of the intended recipient cannot be construed as providing consent.
- Consent must be obtained through an opt-in mechanism rather than an opt-out mechanism. A pre-checked box for consent is not permitted as this would assume consent where it was not intended.
Implied Consent?
Implied consent is assumed based on the actions of the recipient. Consent can be implied in situations where:
- You or your brokerage have an existing business relationship with the recipient for the last two years (such as the purchase of a property, a listing agreement, or a buyer representation agreement). In the case of an existing business relationship, the implied consent expires after two years. You will be able to use this transition time to get express consent for sending CEMs.
- A recipient made an enquiry within the last six months. The time limit for sending a CEM without express consent is six months from the date of enquiry. You will be able to use this six-month period to obtain express consent for sending CEMs where consent is currently implied.
Consent in the Case of a Referral?
Consent from the recipient is not required in the case of a referral provided that certain conditions are met:
- The referral must have been made by an individual who has an existing business relationship, an existing non- business relationship, a family relationship, or a personal relationship with both the sender and the recipient.
- The full name of the person making the referral and a statement that the CEM is being sent as a result of the referral must be included in the CEM.
- The CEM must contain the sender’s identification information and an unsubscribe mechanism.You may only send one CEM. Any further CEMs will require consent from the recipient of referral CEM.
Information to Include in a CEM?
Identification of registrant:
dentification of individuals:
dentification of brokerage:
Description of registrant: The CEM must include the designation of the sender (such as salesperson, broker, broker of record, or brokerage, real estate agent, broker real estate agent, REALTOR®, REALTOR® broker, REALTOR® salesperson).If you are the owner of a sole proprietorship brokerage, you must clearly indicate that you are both a registered brokerage and the broker of record.
The Competition Act?
- The Competition Act is a federal statute addressing many forms of competition in the interest of promoting a fair and efficient Canadian marketplace.
Contravention of the Competition Act can lead to significant penalties, lost time, and negative publicity for the brokerage and the salesperson.
- This legislation seeks to protect consumers by regulating selected business conduct throughout Canada. The Competition Act applies, with few exceptions, to all business enterprises, including real estate brokerages.
1.Misleading advertising:
A salesperson cannot advertise that they always sell their listings for 105% of the list price.
- Conspiracies: Conspiracies are unlawful agreements between competitors to fix or increase prices, manipulate markets, or in some way control output. In real estate, this could involve agreements to establish remuneration or other fees, or amounts paid to co- operating brokerages
- Price maintenance
- Bid-rigging:
Maintaining Compliance with the Competition Act?
- Do not collude: You must not enter into an agreement with a competitor to fix, maintain, increase, or control the price of aproduct (for example, fixing remuneration).
- Do not discriminate: You must not engage in price maintenance practices that can adversely affect competition in the market, such as the exclusion of rivals (due to their discounted pricing) or new entrant competitors. Any conduct used to inhibit competition among brokerages would be a violation of the Act.
- Do not mislead: You must be truthful and accurate in making performance claims, and avoid false and misleading representation in your advertisements (for example, claiming to be number one in a neighbourhood without giving proof of the statement and the criteria for establishing the claim).
Differences between business income and capital gains?
- Business income refers to income a person earned from an activity undertaken for profit (such as, the sale of a property). Business income does not include salaries a person received from an employer.
- Capital gain refers to the increase in value of a capital property from the date the property was purchased or the valuation date of December 22, 1971 (whichever is later) to the date the property is sold.
Capital gains are taxed differently than business income. With business income, the entire amount is taxed. With a capital gain, only 50% of it is taxed.
Treatment of a principal residence under the Income Tax Act
- A principal residence is a house, an apartment in a duplex or apartment building or condominium, a cottage, a houseboat, a trailer or mobile home, or a share in a co-operative housing corporation, where a person usually lives.
- The Income Tax Act specifies different tax treatment depending on whether a property is used as a principal residence or for generating business/investment income. While the principal residence is generally excluded from taxation under the Act, taxes are payable on the business and investment income.
Impact of the Income Tax Act on the sale of property by a non- resident of Canada
To ensure there are no outstanding tax obligations where the seller is a non- resident of Canada and the seller has not paid the tax required on the capital gain, Section 116 of the Income Tax Act imposes the tax obligation on the buyer. If the seller’s lawyer does not receive a certificate from the Ministry of National Revenue stating that the tax has been paid, the buyer’s lawyer will hold back a percentage of the sale price in order to have the money to pay the seller’s tax liability.
Purpose of the EPA?
The EPA is the primary environmental legislation impacting the ownership and use of real property in Ontario. The objective of this legislation is to promote sustainable development that benefits the present generation without compromising the future generation’s ability to meet their own needs.
Role of the Ministry of the Environment, Conservation and Parks as it relates to compliance with the EPA?
As the ministry that administers and enforces the EPA, the Ministry of the Environment, Conservation and Parks is empowered to investigate matters concerning pollution, waste management, waste disposal, and litter management/disposal with an objective to protect and conserve the natural environment. The ministry exercises a range of powers, including search and seizure provisions to ensure adherence to environmental regulations. The EPA empowers officers to enter and search premises, interview individuals, and examine documents to ensure that violations of the EPA are dealt with expediently.
Impact of the EPA on the salesperson’s activities?
A salesperson needs to have a general understanding of how the EPA applies to Ontario. Having an awareness of potential hazards and a general knowledge of key environmental provisions will be beneficial in their day-to-day interactions with a seller or a buyer.
