5. Collecting personal information

5.1 Principles to be respected

5.2 Duty to inform when collecting personal information

5.2.1 Mandatory information

5.2.2 Optional information

5.2.3 Information on cookies

5.3 Consent form

A licensee is required to collect personal information in many situations, such as:

• During the interview with the client, by taking handwritten or computerized notes;
• By using a telephone conversation recording software;
   
• By completing forms (brokerage contract, promise to purchase, Declarations by the seller, etc.).
   

He must always ensure that no other person can hear his communications with his client when collecting personal information. It is not recommended that personal information be collected in the following situations:

• During a “hands-free” conversation in the car while another person is present;
• In a public place (e.g., in a restaurant) where conversations can be overheard by others. It is particularly inadvisable to negotiate in a public place in order, for example, to complete an offer to purchase.
• During property visits. With the growing presence of smart home surveillance devices (Google Home, smart home systems, interactive alarm systems, camera systems, etc.), real estate brokers and their clients may be unknowingly monitored (filmed or recorded) during a visit. Brokers should therefore be extra cautious in their conversations and protect their clients’ interests by informing them that such a situation is possible. It is recommended not to discuss confidential or strategic information during visits (for example the desire to want this house “at all costs” or to discuss the amount to be offered in the promise to purchase).

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5.1 Principles to be respected¹

Licensees shall adhere to the following principles when collecting personal information.

• Determining in advance the purposes for which personal information is collected. A serious and legitimate interest is required to collect personal information about an individual. Collecting necessary information to enter into a brokerage contract, to present an offer to purchase or to verify identity is, of course, a serious and legitimate interest.   
• Only personal necessary information, i.e. essential and not merely useful, may be collected. If in doubt, the licensee shall refrain from collecting information.²

For example, information about a person's income seems to be useful, but it is not essential for the completion of a real estate transaction.

Knowing a person's gender might be necessary for a doctor to make a diagnosis, but it is not necessary for a real estate broker who represents a client for the sale of his property. However, it is necessary for the broker to know the seller's marital status because of the specific rules surrounding the sale of a family home.

If the licensee collects personal information for commercial prospection purposes, only the information necessary for this purpose, such as name and telephone number, may be collected to contact potential clients and offer them services.

The need to collect information may also arise from regulations, such as the obligation for the broker to verify the identity of the parties to a transaction, their legal capacity and profession. Where applicable, it is necessary for the broker to collect and record on the brokerage form, for example, identity information, such as the number of the ID document presented, its expiry date and the country of issue.³

The refusal of the person concerned to provide information required for the performance of the transaction could lead the licensee to refuse to provide services⁴. Under no circumstances shall he violate his ethical obligations in this regard. The licensee plays the role of a watchdog, especially in preventing money laundering, and must ensure that the identity of the parties to the transaction and their legal capacity are rigorously verified. 

• Collecting  personal information by lawful (legal) means.

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5.2 Duty to inform when collecting personal information⁵

In accordance with the principle of transparency, the broker who collects personal information must provide the person concerned with the mandatory information prescribed by law.s

• Object of the file for which personal information must be collected.

For example, making a promise to purchase on a property, selling a property.

•  Use to be made of personal information.

For example, verify the identity of the person, list the property with the information listing service, etc.

Note that the object of the file and the use of personal information must be consistent with the previously determined purposes.

• The categories of individuals who will have access to personal information within the agency.

For example, the person in charge of managing this information, the listing broker, etc. 

• The location where personal information will be kept.

For example, at the agency’s head office and/or with EDM (electronic document management) service providers.  

In addition, specific obligations will apply in case personal information is communicated outside of Québec (e.g.: an EDM provider located outside of Québec).⁵

• The right to access and correct information

Any person has the right to access his personal information held by a third party and have it corrected if it is inaccurate, incomplete or ambiguous, or if its collection, communication or retention is not authorized by law.

Note that this guideline does not deal with aspects relating to the right of access and correction or recourse with the Commission d'accès à l'information (CAI). For more information in this regard, check out the Act respecting the protection of personal information in the private sector and the CAI website.

⁵ LQ 2021, c. 25, s. 107 introducing s.8 of the Private Sector Act.
⁶LQ 2021, c. 25, s. 111 introducing s.17 of the Private Sector Act.

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5.2.1 Mandatory information

This information must be included on the written consent form thay the licensee may have his client sign:

• The purposes for which personal information must be collected (see section 5.1);

For example, performing a real estate brokerage contract, making a promise to purchase on a property, selling a property, verifying identity.

• The means by which information is collected;

For example, by means of a written consent form.

• The name of the third party for whom the information is collected, if applicable;
• The names or categories of third parties to whom the licensee must disclose this personal information,, if applicable;

For example, communication to third parties such as other professionals involved in the transaction (a certified appraiser, a notary, a building inspector), to the OACIQ or FARCIQ for the purpose of supervising professional practice or for the purpose of professional liability insurance, to subscribers to information listing services for agencies or brokers (e.g. Centris), to companies offering remuneration advances, etc.

• Where applicable, the possibility that personal information collected may be communicated outside Québec;

For example, when the EDM provider is not in Québec and the information is hosted on a server outside Québec.

• The right to withdraw consent;

The individual must be informed of his or her right to withdraw consent to the collection of personal information at any time. In this case, if this information is necessary for the performance of the brokerage contract, the licensee will be entitled to refuse to continue providing his services to this person.

• The right to access and correct information.

The person must be informed that he has the right to access his personal information held by a licensee and have it corrected if it is inaccurate, incomplete or ambiguous, or if its collection, communication or retention is not authorized by law. To do so, the person concerned may send a request to the attention of the Privacy Officer.

5.2.2 Optional information

The following information will have to be provided to the person requesting it:

• Personal information retention period;
• Contact information of the person responsible for protecting personal information within the company.
• Nature of personal information collected;
• Categories of individuals who will have access to the information within the company.

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5.2.3 Information on cookies⁶

The Act also covers the "use of technologies" and functions that help identify, locate or profile an individual (especially for targeted advertising purposes).

Therefore, the person concerned must be informed of the use of such technology and, if applicable, of the means offered to activate the functions allowing to identify, locate or perform profiling. These functions must be disabled by default.⁷

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5.3 Consent form

To summarize the information given above, here are the mandatory elements that must be included in a consent form for collecting personal information:

• Each purpose for which the information is collected;
• Means by which information is collected (for example, by means of a written consent form);
• Use to be made of personal information (use must correspond to the purposes for which information is collected);
• If applicable, the names of companies or persons for whom the information will be collected;
• Names and categories of third parties to whom the information must be communicated;
• If applicable, the possibility that information may be communicated outside Québec;
• It should be specified that the information is valid only for the period required to achieve the purposes for which it was collected. As far as possible, the consent validity period (fixed or determinable) should be indicated.

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