2. Preservation, use and destruction of registers and records
2.1 Preserving and using records and registers
2.2 Electronic document management (EDM)
2.2.1 Digitization of documents
2.3 Paper document management
2.4 Preserving electronically signed documents
2.5 Destruction of registers and records
2.5.1 Retention period of registers and records
2.5.2 Protection of personal information
2.5.3 Destruction policy
2.1 Preservation and use of registers and records
A licensee's brokerage registers and records may be kept electronically or on paper. The licensee shall choose a single type of medium on which all registers and records shall be kept. Regardless of the medium chosen, the licensee must manage it throughout the life cycle of documents to ensure the integrity, confidentiality and durability of documents and information they contain. To do so, he must abide by rules such as1:
- Taking all the necessary measures to prevent the loss or destruction of registers and records and to prevent any falsification of the information and documents contained therein
- Ensuring that registers and records are kept securely so that only an authorized person can access them
- Ensuring, when the registers and records are conserved on an electronic medium, that access to the documents is limited to the persons employed by or authorized to act for the licence holder, and that they have access only to the information necessary for the carrying on of their activities.
Attention - A licence holder must not use personal information obtained in the course of brokerage activities for purposes other than those for which the information was obtained.2 For more information, check out the Guideline – Privacy protection.
- Keeping registers and records for at least 6 years following their final closing unless they constitute evidence in a current investigation (OACIQ, FARCIQ, FICI) or in a civil, disciplinary, penal or criminal action. In this case, they must be kept until a final judgment is rendered.3
Bon à savoir! It is recommended that a retention schedule be established to determine the destruction date of registers and records, regardless of the medium used. A schedule also allows you to follow up and make sure you do not inadvertently destroy a record that should have been kept for a longer period. For more information, see section Retention period of registers and records.
- Destroying registers and records by taking the necessary measures to protect the confidential nature of the information contained therein.4
1 S. 15 and 16 of the Regulation respecting records, books and registers, trust accounting and inspection of brokers and agencies.
2 S. 32 of the Regulation respecting brokerage requirements, professional conduct of brokers and advertising.
3 S. 17 of the Regulation respecting records, books and registers, trust accounting and inspection of brokers and agencies.
4 S. 18 of the Regulation respecting records, books and registers, trust accounting and inspection of brokers and agencies.
2.2 Electronic document management (EDM)
The EDM is the computerized management of the life cycle of a document (textual, graphic, audio, etc.) from its creation or acquisition to its destruction, so as to optimize access to this document and the information it contains. The term EDM also refers to the software used to manage this documentary content.
The agency executive officer and the broker acting on his own account are responsible for implementing policies and procedures to oversee electronic document management. These policies and procedures must enable them to meet the requirements of the Real Estate Brokerage Act and its regulations, as well as any other legal requirements to which executive officers and brokers are subject in their practice, including the Act respecting the protection of personal information in the private sector.
Once it is well established and well managed, EDM offers several advantages, including the advantage of saving on storage space by not having to keep paper documents. In addition, EDM provides quick, remote and simultaneous access to documents, which greatly facilitates the consultation, management and tracking of records, as well as collaboration between licensees.
The Act to establish a legal framework for information technology states that in order to produce digital documents equivalent to paper documents, the digitization process must be documented.
This documentation must enable the agency or the broker acting on his own account to show, in particular, that the digitized document contains the same information as the original paper document and that it can be kept and used throughout its entire life cycle, that is, from its creation to its destruction.
Attention - To perform complete document management of records, all documents must be grouped in the same place, in the appropriate file. It is not enough to keep documents jumbled up, for example scattered in emails, in a cloud, on the computer desktop or in work tools (electronic signature solution, information dissemination service, etc.).
Therefore, even if you use certain tools such as an electronic signature solution or an electronic forms platform, you must make sure you file the documents in the EDM file and not leave them in the tool.
These tools are not a storage or backup location, and the companies that provide these services are not bound by the same retention obligations as licensees. In fact, the documents could be destroyed, for example if the subscription to the service was cancelled. In addition, the documents stored on these tools are usually accessible to the broker only and not to the agency that is responsible for the EDM.
Access to the EDM system must be managed in such a way as to preserve the confidentiality of documents. Only authorized persons must have access to content that is necessary for them to perform their duties.5 It is therefore appropriate to:
- Determine the types of access by user or group of users (read, write, delete)
- Immediately remove access for users who should no longer be accessing the system (change of agency, licence suspension, termination of employment, etc.)
- Provide authentication mechanisms with user ID and password
- Ensure the confidentiality of user authentication information, for example by establishing rules about how often passwords should be changed
Attention - Afin de respecter la règlementation, il faut, avant d’accorder un accès au système GED à une personne, se questionner si l’utilisation des documents et des informations est nécessaire à l’exercice de ses fonctions et si elle doit avoir accès partiellement ou totalement aux dossiers.
TOOLS :
- Implementation of an electronic document management system – Technical specifications for agencies and brokers acting on their own account
- Firms accredited by the OACIQ for electronic document management (EDM)
- Self-study : Electronic Document Management – For a successful EDM
5 S. 16 of the Regulation respecting records, books and registers, trust accounting and inspection of brokers and agencies.
2.2.1 Digitization of documents
In order for electronic documents to be considered as equivalent to the original paper documents and retain their legal value, the use of an EDM system may involve document digitization. A digitization procedure must be developed and implemented. It must contain the following elements:
- Digitization documentation: The digitization steps must be documented. This documentation must enable the agency or the broker acting on his own account to show that the digitized document contains the same information as the original paper document and that it can be kept and used throughout its entire life cycle, that is, from its creation to its destruction.
- Quality control: Regardless of who digitized documents, quality control is an essential step in this process. It ensures that the digitized document is identical to the paper document.
- Secure destruction of source documents: Source documents can be destroyed after digitization. However, before destroying them, it is necessary to ensure that a quality control has been carried out and that the files have been saved. The destruction of source documents must be done in such a way as to preserve the confidentiality of information they contain.
TOOL :
2.3 Paper document management
In today's era of rapidly advancing technologies, it is becoming less and less realistic to fully retain paper documents, especially due to the increasing use of electronic forms and signatures, text messages, emails, etc. Licensees may, however, choose to keep their paper documents.
Attention - There can be no mixed management of documents. A medium must be chosen, either paper or electronic. Regardless of the medium chosen, all documents must be in the same place.
However, it is possible to use different media, for example paper for register keeping and electronic for record keeping.
For sound management of paper documents, it is recommended that:
- Metal filing cabinets with locks be used, ideally fireproof cabinets
- Files not be stored in a flood-prone area, such as a basement, unless they are stored in airtight containers
- Access to records and registers be controlled and limited to authorized persons6
- Documents be destroyed using a shredder or by enlisting the services of a specialized firm
Attention - As part of a paper document management, certain electronic documents must nevertheless be kept in their original format, including those containing encrypted information such as electronic signatures. To do this, a copy must be filed in the paper record and the original document must be stored electronically in compliance with the retention, security and confidentiality rules.
In addition, paper files must contain indications about the location of electronic documents. In this context, licensees must ensure proper backups to preserve the files and clearly identify them. They must also preserve the confidentiality and security of the information contained therein. Remember that they cannot be destroyed before at least the six-year period provided by the Act.7
6 S. 16 of the Regulation respecting records, books and registers, trust accounting and inspection of brokers and agencies.
7 S. 17 of the Regulation respecting records, books and registers, trust accounting and inspection of brokers and agencies.
2.4 Preserving electronically signed documents
Regardless of the document management medium used by the licensee (paper or electronic), electronically signed documents must be stored electronically since they contain encrypted information allowing their authenticity to be verified. This information is an integral part of the document and must be kept as long as the document itself exists. It is the electronic form that the broker must send to the other broker engaged in the transaction, making it possible to validate the authenticity of signatures in the document.
In addition, it is essential for the broker who starts the electronic signing process to keep the authentication certificate in the establishment's file. This certificate contains information such as the author’s identity, creation date, file type, date and time of exchanges and consultations, IP addresses, identity of signatories, etc. It can be designated under different names depending on the solution used: e-Z-Sign of e-Z-max firm designates it by “Electronic proof element;” whereas Authentisign® of Instanet Solutions firm calls it “Signing certificate.”
When sending documents to the lender, the notary or any other body authorized to intervene in the case, the file sent must include all the electronically signed documents and the authentication certificate.
TOOLS :
- Preservation of documents bearing one or more electronic signatures– Good practices
- Is the electronic signature secure? Yes!
- A practical guide on the validation of an electronic signature
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2.5 Destruction of records and registers
The destruction of registers and records consists in the disposal of documents that have reached the age limit of their retention period. To do so, various principles must be respected.▲ Return to top
2.5.1 Retention period
Before destroying registers and records , it is necessary to keep them for at least 6 years following their final closing.8 This rule also applies to licensees who cease their activities.
- Real estate brokerage contract and transaction record: 6 years after the publication of the deed of sale, the signing of the lease or the last renewal
- Record of brokerage contract with no transaction: 6 years after the expiration or end of the real estate brokerage contract
- Real estate brokerage contract and transaction register: 6 years after the final closing of the last brokerage contract or transaction record
- Notice of disclosure record: 6 years after the final closing of the associated transaction (establishment record or other)
- Register of disclosure notices: 6 years after the last associated transaction (establishment record or other)
- Record for unaccepted transaction proposals: 6 years after the refusal of the last unaccepted transaction proposal
- Register of brokers: 6 years after the final closing of the agency
- Record for all business corporations: 6 years after the final closing of the broker's business corporation
Litigation records (civil, penal, disciplinary or criminal action) or those under investigation (OACIQ, FARCIQ, FICI) must be kept longer, i.e. until the final decision and after the appeal period (while respecting the minimum 6-year period from the closing date).
8 S. 17 the Regulation respecting records, books and registers, trust accounting and inspection of brokers and agencies
2.5.2 Protection of personal information
The destruction of registers and records must be done by taking the necessary measures to protect the confidential nature of the information9 contained therein. For more information, see the Guideline – Privacy protection.
9 S. 18 of the Regulation respecting records, books and registers, trust accounting and inspection of brokers and agencies.
2.5.3 Destruction policy
The holder of an agency licence or the broker acting on his own account must implement a document destruction policy. The policy must provide for a secure method of destruction and include the option of retaining documents beyond the required period if the file is under investigation or prosecution, or if the individual concerned consents thereto. For paper document management, the chosen method of destruction must be specified.
Destruction of paper documents
The destruction of paper documents can be done by shredding or burning them at the establishment or through a specialized firm. The method used must guarantee that the information included in the documents is unrecoverable.
Destruction of electronic documents
There are many ways to destroy electronic documents containing confidential information. This may include:
- The destruction of the medium on which electronic documents are stored:
- This is the final method. The destruction can be done with tools or by using specialized services. It is thus possible to shred, crush, grind the surface, disintegrate, puncture or burn the medium used. It is also possible to demagnetize the medium by applying a powerful magnetic field.
- Overwriting information stored on the medium:
- This can be done by digital shredding using secure deletion software that will write random information in the location of the deleted file. Note that it is important to choose an overwriting method and tool adapted to the medium.
