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7. Disclosing personal information

7.1 Consent to communication

7.2 To whom does a licensee disclose personal information?

7.3 Particularities relating to real estate brokerage practice

7.3.1 Communicating the Brokerage contract to the information dissemination service

7.3.2 Communicating the Declarations by the seller to the information dissemination service

7.3.3 Communicating the sold price and comparables

7.3.4 Buyer's information in a previous inspection report

7.3.5 Property lockbox and alarm system codes, as well as telephone numbers on detailed description sheets

7.3.6 Prohibition to disclose marketing lists

7.3.7 Communication to companies collecting debts for third parties

7.4 Communication without consent

7.4.1 Bodies having the power to compel communication of the information

7.4.2 Other cases of communication without consent

7.4.3 Communication outside Québec


7.1 Consent to communication

The consent principle applies to the communication of personal information to third parties. An individual who consents in accordance with the law to provide his or her personal information is presumed to consent to its disclosure for the purposes for which it was collected.1

Only in exceptional cases may information be communicated without the consent of the person concerned, i.e., when:

  • such a situation is expressly provided for in the Act
  • personal information is public under the Act

1 S. 8.3 of the Private Sector Act, effective September 22, 2023.

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7.2 To whom does a licensee disclose personal information?

A licensee may be required to disclose personal information to different persons and entities, such as: 

  • Other licensees (when transmitting information to information listing services for agencies or brokers (e.g. Centris))
  • Parties to the transaction
  • Agency staff when required in the performance of their duties
  • Other professionals: the notary, building inspector, certified appraiser, etc.
  • Financial institutions
  • Companies offering advance remuneration services

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7.3 Particularities relating to real estate brokerage practice

7.3.1 Communicating the Brokerage contract to the information dissemination service

When a brokerage contract is to be forwarded to the information dissemination service for agencies and brokers (e.g.:Centris), some personal information must be redacted. This includes information regarding identity verification (clause 1.1 and 1.2). and names and this information must not be permanently deleted as the licensee must keep the original document on file. Note that those who use EDM systems must print the contract, hide the confidential information and then send the document to the information dissemination service between agencies or brokers.  

Of course, the information contained in the brokerage contract and other information relating to the property can only be forwarded to the information dissemination service if the client has expressly consented to it. 

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7.3.2 Communicating the Declarations by the seller to the information dissemination service

The Declarations by the seller (DS) form must be attached to the description sheet of the immovable, but it must be accessible only to agencies and brokers subscribed to the information dissemination service and not to the general public.

The seller's broker must therefore give other brokers access to the DS form to enable them to draft a promise to purchase with full knowledge of the facts and to learn about factors that may affect the transaction. The DS form must be provided without the buyer’s broker having to request it, in accordance with the duty to cooperate and inform all parties of the facts relevant to the transaction.

However, documents that must be provided by the seller with the DS form (for example, invoices, leases, expert reports, etc.), do not have to be attached to the sheet. They must be provided to any broker or buyer who requests them or can be obtained by using clause 9.1 of the Promise to purchase form (Review of documents by the buyer). If applicable, any Amendments form accompanying the DS form must also be attached to the sheet.

Attention: The seller's name and signature on the DS form constitute personal information and its use must be limited to the context of the real estate transaction concerned, i.e., only for drafting a promise to purchase. Therefore, the signed DS form must not be given to anyone who shows up at an open house, for example, but only to a prospective buyer for the purpose of drafting a promise to purchase.

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7.3.3 Communicating the sold price and comparables

As long as the deed of sale has not been published in the Land Register, the price recorded therein constitutes personal information concerning the buyer and the seller in case they are natural persons. Therefore, the sale price obtained, whether or not it matches the listing price, must not be advertised before the publication of the deed of sale in the Land Register. It is also not allowed to disseminate information that can be used to guess the selling price (for instance, “20% more than the asking price”).

However, with the authorization given by the client in clause 6.1 of the Brokerage contract, the sale price obtained may be communicated to subscribers of an information dissemination service. They need to know that the property has been sold to be able to stop offering it to potential buyers right away. They must also know the selling price to establish reliable comparables and then set realistic prices for new listings. The bank of sold properties is only accessible to licence holders and may not in any way be used for advertising purposes or be disseminated to general public. To preserve the confidentiality of the selling price before it is made available in the Land Register, the comparable sheets cannot be given to clients unless the information that directly or indirectly identifies the property’s seller is redacted (photos, address, owner’s name, etc.).

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7.3.4 Buyer's information in a previous inspection report

When the broker takes steps to discover factors that may adversely affect the parties2, he must verify with the seller whether a previous inspection report has already been produced on the property. If such a report exists, it should be given to the potential buyer. When submitting information, brokers must hide all personal information (e.g., mailing and email addresses, telephone number, etc.).


2 Section 84 of the Regulation respecting brokerage requirements, professional conduct of brokers and advertising.

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7.3.5 Property lockbox and alarm system codes, as well as telephone numbers on detailed description sheets

Property lockbox and alarm system codes and telephone numbers are confidential information. These codes constitute personal information that must never be disclosed without the explicit consent of the individual concerned, once this person has been clearly informed of the risks that this can entail, even if this information is shared only with subscribers of the information dissemination service between brokers or agencies.
 
In the absence of express consent from the individual concerned, the licence holder may not disclose these codes and numbers to a buyer’s broker or to a collaborating broker without a brokerage contract prior to a visit. For example, if a seller does not give his consent, the seller's broker must be present during the visits. If this is not possible, the broker must send a replacement.
 
It is also important to remember that a when real estate broker represents a buyer, he must be present during the visits. If this is not possible, the broker must send a replacement.  Also prohibited is the practice of signing an Exclusive brokerage contract – Purchase in order to obtain the lockbox number from the seller’s broker and allow prospective buyers to visit the property by themselves.

Being present during visits enables licence holders to communicate relevant information to prospective buyers and to ensure the security of the property. 

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7.3.6 Prohibition to disclose marketing lists

Licensees cannot use or communicate to third parties the nominative list of their clients for commercial prospection purposes without first obtaining the express consent of the persons concerned.

The nominative list consists of a person's name, telephone number, mailing and email addresses.

Licensees who use personal information for commercial prospection and solicitation purposes must ask the individuals concerned for their express consent for solicitation purposes. They must also identify themselves to these individuals and inform them of their right to withdraw their consent for the use or communication of their information at any time. Consent to solicitation cannot be implicit. 

At the same time, a licensee wishing to use the nominative list must comply with Canada’s Anti-Spam Law (CASL) (S.C. 2010, c. 23) which provides a stricter framework for commercial solicitation and prospection.


3 S. 22 of the Private Sector Act, effective September 22, 2023.

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7.3.7 Communication to companies collecting debts for third parties

Some companies offer advance remuneration services. They require licensees to provide them with documents that may contain personal information about parties to a transaction, such as the promise to purchase, bank financing approval and brokerage contract.

The exceptions to personal information communication under the Private Sector Act include cases involving debt collection:

  • Communication to a person who may collect debts for a third party and who requires the information for that purpose4
  • Communication to a person if the information is necessary for collecting a debt of the company5

However, the steps taken by some companies that specialize in remuneration advances are not necessarily covered by the exceptions applicable to debt collection.

In some cases, following an agreement with the broker or agency, the company advances the amount of remuneration while the broker undertakes to remit it to the company when he receives the remuneration. In this case, the company does not acquire the broker's or agency's debt claim following an assignment of that claim. It is always the broker or the agency that collects the amount of remuneration.  In this situation, there is no right to communicate personal information to these companies without the consent of the persons concerned.

The person concerned must therefore be informed beforehand of the possibility of his or her information being communicated to this type of company and must consent to it (see section 5.2.1).


4 S. 18 par. 9 of the Private Sector Act.
5 S. 18, par. 9 .1 of the Private Sector Act.

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7.4 Communication without consent

The Private Sector Act sets out exceptions where personal information may be disclosed to a third party without the consent of the individual concerned.7


6 S. 18 to 24 of the Private Sector Act, effective September 22, 2023.

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7.4.1 Bodies having the power to compel communication of the information

To carry out the mission and duties entrusted to them by their constituting Act, certain bodies have special powers to request the communication of personal information without the consent of the individuals concerned.

To do so, two conditions must be met:

  • The person or organization making the request has the power to compel communication of the personal information requested; and
  • The person or organization must make the request in the course of their duties

In addition, licensees are permitted to disclose personal information without consent when the provision of an Act or court order so requires.7

Thus, when a licensee receives a subpoena to submit documents from a court (or a lawyer who has the power to summon witnesses by subpoena), the licensee must comply with it or be held in contempt of court. Under the Code of Civil Procedure, the court has the power to compel disclosure of documents.8

The Private Sector Act provides, among other things, that personal information can be disclosed without the consent of the person concerned to the following persons or bodies9:

  • A body responsible by law for the prevention, detection or repression of crime or statutory offences, which requires it in the exercise of its functions, if the information is necessary to prosecute an offence against an Act applicable in Québec
  • A person or body having the power to compel communication of the information if required in the exercise of their duties

The OACIQ is responsible for detecting and repressing violations to the Real Estate Brokerage Act. Therefore, the OACIQ's syndic or inspector acting in the course of his duties may request from a licensee personal information concerning a person, such as a client. In addition, he may require from any person having custody of it, any information or document relating to the application of the Real Estate Brokerage Act.10

For example, the person whose personal information is the subject of such a request could be a client, a broker acting on behalf of an agency or on his own account, an employee, a supplier or mandatary of a broker or agency, a spouse, a director of the broker's or agency's business corporation, etc.

The bodies responsible for preventing, detecting or repressing statutory offences and/or having the power to compel the communication of personal information include the following: 

  • Canada Revenue Agency
    Pursuant to section 231.2(1) of the Income Tax Act (R.S.C. (1985, c. 1 (5th Supp.)), the power is granted to the federal Minister of Revenue (or a person authorized by the Minister) to require any person to provide any information or produce any document for the administration or enforcement of the Act.
  • Québec Revenue Agency
    According to section 39 of the Tax Administration Act (CQLR, c. A-6.002), the Québec Minister of Revenue (or the person authorized by the Minister) has the power to require the disclosure of any information for the administration of a tax law.
  • Autorité des marchés financiers
    Pursuant to section 10 of the Act respecting the regulation of the financial sector (CQLR, c. E-6.1), any person authorized by the Autorité des marchés financiers to carry out an inspection relating to a law administered by the AMF may require examining certain documents.
  • Police
    Under section 48 of the Police Act (CQLR, c. P-13.1), the mission of the police forces is to prevent and repress crime and statutory offences, in accordance with their respective jurisdictions. As such, the Sûreté du Québec, municipal police forces, and specialized police forces (e.g., UPAC) may request and obtain personal information without the consent of the individuals concerned. If a police officer presents a production order issued by the Court of Québec concerning a transaction record, the record must be disclosed without the consent of the person concerned.
  • Director of Criminal and Penal Prosecutions
    Section 18 par. 2 of the Private Sector Act expressly provides that personal information may be communicated to the Director of Criminal and Penal Prosecutions if the information is necessary to prosecute an offence against an Act applicable in Québec.

Although under the Real Estate Brokerage Act, a broker acting on behalf of an agency sees his obligations relating to the keeping of records and registers delegated to the agency, the specific laws granting the power to compel to various bodies do not provide for such a distinction. Thus, if an organization sends a request to a broker rather than to his agency, the broker must necessarily respond and provide the required information.

Finally, it is important to note that licensees must make a record of any disclosure of personal information made without consent of the person concerned to a body having the power to compel the disclosure of information.


7 Section 31 of the Regulation respecting brokerage requirements, professional conduct of brokers and advertising
8 S. 269, 286, 288 of the Code of Civil Procedure (CQLR, ch. C-25.01).
9 S. 13 and 18 (3° to 6°) of the Private Sector Act.
10 S. 78 and 89 of the Real Estate Brokerage Act.

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7.4.2 Other cases of communication without consent

The Private Sector Act provides for other exceptions allowing the communication of personal information, without prior consent. Among other things, personal information may be disclosed:

  • To a person to whom it is necessary to communicate the information under a law applicable in Québec or to a public body that collects it in the exercise of its powers, or for the implementation of a program under its management. It is therefore possible, for example, to disclose personal information to representatives of the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) established under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act.
  • To a mandatary or a party to a contract for work or services.11Except if the co-contractor or mandatary is a member of a professional order (e.g. lawyer, notary, chartered professional accountant) or a public body, the licensee who must send personal information must:
    • provide for a written agreement with the co-contractor or mandatary;
    • this agreement must specify the measures to be taken by the mandatary or the person performing the contract to ensure that the confidentiality of the disclosed personal information is protected, that the information is used only for carrying out the mandate or performing the contract and that it is not kept after the expiry of the mandate or contract. The mandatary or executor of the contract (for example, the EDM provider)must also notify the licensee of any violation or attempted violation of confidentiality.     
  • To a person to whom the information must be disclosed because of the urgency of a situation that threatens the life, health or safety of the person concerned. This includes paramedics, police officers, firefighters, and doctors.

11 S. 18.3 of the Private Sector Act., effective September 22, 2023.

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7.4.3 Communication outside Québec

When the agency or broker acting on his own account is asked to disclose personal information outside Québec (for example, hosting data on the server outside Québec), he must first ensure that this personal information will be properly protected outside Québec. Such disclosure must be made by written agreement and must be preceded by an assessment of privacy-related factors.12 In other words, before disclosing personal information outside Québec, an analysis must be made of the sensitivity of information, the purpose of its use and the legal regime applicable in the place where it would be disclosed. If, following this assessment, it is concluded that there are privacy risks, mitigation measures must be included in the agreement. Ultimately, we need to ensure that personal information is protected in accordance with generally accepted standards. If the mitigation measures do not allow such protection, information cannot be communicated outside Québec.


12 S. 17 of the Private Sector Act., effective September 22, 2023.

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Last updated on: October 03, 2023
Numéro d'article: 253276