Assessing the seriousness of an offence when applying disciplinary measures

The OACIQ Assistance Department receives and processes around 2,500 requests for assistance emanating from the public, the industry and the OACIQ Inspection Department each year. Its role is to analyze all requests received by performing a “pre-investigation.” In this initial step, a priority rating is given to each case based on the seriousness of the alleged offence, with a view to protecting the public.

Based on this rating, the Assistance Department will decide on the appropriate handling of the request for assistance. There are three avenues to choose from:

  1. Make an urgent, immediate and preventive intervention with the agency executive officer to inform him of a problem situation in progress and ask him to take action;
  2. Close the file if warranted by one of the following reasons:
    1. Absence of OACIQ jurisdiction;
    2. Death or licence revocation of the licensee concerned;
    3. Lack of cooperation from the person who asked for assistance;
    4. No ethical breach alleged against a licensee;
  3. Transfer the file to the Syndic, the FARCIQ and/or the FICI.

If the file is transferred to the Syndic, an investigation is launched. If the evidence shows that an offence of sufficient objective seriousness has been committed, the Syndic may decide to file a disciplinary complaint before the Discipline Committee.

The seriousness of the offence is determined based on the extent to which the broker’s behaviour deviates from the standards of conduct and practice, and on the potential consequences of the offence.

The Syndic also takes into consideration the recurrence of problems observed in the brokerage industry and may decide to intervene by targeting specific offences, such as the broker’s advisory role concerning pyrite, septic installations, asbestos, etc. To err is human, and licence holders are not expected to be perfect.

For example, unintentionally entering inaccurate room dimensions on a detailed description sheet may not be serious enough to warrant the filing of a disciplinary complaint. However, refusing or delaying to put a property on the public market to favour unrepresented prospective buyers in order to retain the full amount of the remuneration represents a lack of integrity that could lead to a sanction by the Discipline Committee. The same goes for fraud, money laundering, conflicts of interest, or failure to cooperate with the Syndic.

To determine whether to file a complaint, the Syndic considers the objective seriousness of the offence, along with several other criteria, including the impact on clients and on the profession. Subjective characteristics related to the licence holder, such as number of years of experience, training and role as an agency executive officer, absence of disciplinary record, or acknowledgement of wrongdoing, remorse, ability to reflect and learn from the experience, are also taken into consideration.

It is important to remember a feature of disciplinary law, which is that the purpose of the sanction is not to punish, but to protect the public through deterrence and correction of the behaviour. Furthermore, cases are analyzed under the lens of the reasonably prudent and diligent licensee, and not the best licensee.

Thus, when mitigating factors are present in the case, such as a minimal risk of reoffending, recognition of misconduct, change in the licensee’s practices, or lack of experience or competence that led to an error in judgment with no significant consequences, alternative measures may be imposed, such as an order to complete additional training or a formal warning.

These measures can be more effective in addressing the need to protect the public, by preventing repetition of the behaviour and ensuring improvement of the broker’s practice, while allowing the Discipline Committee to deal with more serious cases. However, such warnings are kept in the licence holder’s file and will be taken into consideration when recommending disciplinary sanctions in the event of a repeat offence or other violation of the regulations.

In 2021, 53 disciplinary complaints were filed with the OACIQ Discipline Committee for objectively serious offences. These cases led to convictions in more than 96% of cases and the imposition of 368 sanctions, including 157 fines totalling $500,500, 8 licence revocations, and 118 licence suspensions.

Last updated on: August 19, 2022
Numéro d'article: 236401