Conflict between the Code and Fiduciary Duties at Common Law

Under existing legislation, all the obligations of an agent under the Code of Ethics and under the common law were consistent. The Code reflected the common law. Now, we are going to have a conflict effective 1 April 2023 when the new TRESA Regulations come into effect.

Have a look at this:

“Disclosure of facts by seller’s broker or salesperson

22.2 (1) If a seller has a legal obligation to disclose a fact to the buyer and the fact is known to the broker or salesperson who represents the seller, the broker or salesperson shall disclose the fact to every buyer who expresses an interest in the real estate. O. Reg. 357/22, s. 12.

(2) The registrant shall make best efforts to obtain a written acknowledgement from each buyer who receives the disclosure under subsection (1) indicating that the disclosure has been received and, if a buyer makes the acknowledgement, provide them with a copy of it. O. Reg. 357/22, s. 12.”

The agent’s obligations at common law are:

  • Disclosure
  • Obedience
  • Competence
  • Confidentiality
  • Accounting
  • Loyalty

So, going forward, the Seller decides not to reveal certain information and subsequently accept the consequences. This is my “secret”. The agent was under an obligation to keep that information “secret”. It was not theirs to tell. But, now, the agent must pass on that “secret” to every potential buyer as soon as possible.

The disclosure obligation was in favour of the principal not anyone else. Now, it’s everyone!

Obedience is gone. The principal says “don’t tell” and the agent simply responds “I’m telling everyone”. So much for loyalty!

When it comes to competence, this is clearly a step down, because whether or not it’s in the Seller’s interest, it is going to be told.

The matter really could be worse when we are discussing “confidentiality”. Now, you have no secrets at all.

There is also a breach of loyalty, where this duty is nullified in favour of the prospective buyers.

Brian Madigan LL.B., Broker

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