October 3rd - 2011

Doing business under the Do Not Call legislation

In a profession that relies on cold calls and consumer contacts, the national Do Not Call List may seem like an impossible roadblock for real estate professionals.

In a profession that relies on cold calls and consumer contacts, the national Do Not Call List may seem like an impossible roadblock for real estate professionals.

The Do Not Call List (DNCL) is a nation-wide registry of consumers’ telephone and fax numbers that prohibits telemarketers from calling those numbers without the express consent of those consumers. Brokerages and individual real estate brokers or salespeople who (directly or indirectly) make unsolicited telephone calls for the purpose of selling or promoting a product or service qualify as telemarketers.

The list has been in effect for almost three years, but it need not spell doom for your future business prospects as a REALTOR® as long as you play by the rules and use good judgement.

“The list shouldn’t be a problem for you as long as you follow the legal requirements and the process established in your brokerage office policy,” says real estate lawyer Merv Burgard.

If consumers (private sellers included) register with the national DNCL, you cannot contact their phone or fax number to sell them a product or service or in any way solicit business unless the person has an existing business relationship with your company or the call is to a business (corporate) consumer. On the flip side, an individual can consent to be called by a specific organization, even if he or she is registered on the national DNCL.

The list does not prevent you from using other legal methods to contact consumers such as direct mail or door-to-door approaches, nor does it prohibit you from connecting with your recent clients and customers.

The Canadian Radio-television and Telecommunications Commission (CRTC) defines an existing business relationship in three ways: (1) The consumer purchased or leased a product from your organization within the past 18 months; (2) The consumer signed a written contract (such as a listing agreement) with your organization that is either still in effect or has expired within the past 18 months; or (3) The consumer made an inquiry with your organization within the past six months, such as calling you for a listing presentation.

“Before you pick up the phone, remember that you must look at several do-not-call lists,” says Burgard. “Check the national list, your personal list and your brokerage list.”

Under the legislation, all telemarketers must also maintain their own do-not-call lists – even if they make calls to numbers exempt from the national DNCL rules. If you phone a consumer with whom you have an existing business relationship, for example, that consumer can still ask to be placed on your organization’s internal do-not-call list. If a consumer makes that request, you must process it immediately.

For an expired listing, members should also check the MLS® system to see whether the seller has consented to be contacted by other members. Check also any special circumstances, as noted in OREApedia and Legal Forum. Remember that the REBBA 2002 Code of Ethics also contains a provision that prohibits members from contacting the client of another registrant.

Brokerages whose people make “cold calls” or engage in telemarketing activities should have an office telemarketing policy to provide to consumers on request. If you are phoning consumers, be sure to disclose immediately the purpose of your call and the company or individual you represent.

Violating the rules of the national DNCL can result in significant penalties. Although the CRTC can use various sanctions and weighs the severity of each infraction, it has the power to impose monetary penalties on those who don’t comply. The maximum penalty for each violation is $1,500 for an individual and $15,000 for a corporation.

However, there’s more than just a fine at stake, Burgard warns. “Your professional reputation matters more than any financial penalty,” he says. “By fulfilling consumers' expectations and respecting their wishes, you’ll maintain your good reputation in your community or marketing area.”

To help REALTORS® understand their compliance obligations, the Canadian Real Estate Association has established a DNCL Compliance Centre website at www.realtorlink.ca. The National Do Not Call List booklet can be accessed on the site, as can a recommended office policy guide and links to further information, including telemarketer subscription rates.

The CRTC has also created resource centres at www.crtc.gc.ca and https://www.lnnte-dncl.gc.ca/index-eng where telemarketers can find information to help them understand their obligations. The sites include common questions and answers about the national list as well as various pamphlets.

For more information, check out the OREApedia topic of Do Not Call in the Members Only section of www.orea.com as well as Legal Forum, where you’ll find answers to various registrant’s questions about DNCL under Topic: Brokerage Operations, Subtopic: Privacy Compliance and Do Not Call.

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Ontario Real Estate Association

Jean-Adrien Delicano

Senior Manager, Media Relations

JeanAdrienD@orea.com

416-445-9910 ext. 246

Ontario Real Estate Association
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