Discipline Committee - Summary of procedures

The discipline committee of the Organisme d’autoréglementation du courtage immobilier du Québec is a decision-making body created under the Real Estate Brokerage Act. It hears ethical complaints brought against real estate brokers or agencies and imposes penalties on those found guilty. It is completely autonomous and independent from the board of directors and staff of the OACIQ.

Note: the discipline committee is not responsible for compensating victims; that is the responsibility of the civil courts. Victims of fraud, fraudulent tactics or misappropriation of funds for which a broker or agency is responsible may also be entitled to compensation paid by the Real Estate Indemnity Fund.

Lodging a complaint

The OACIQ’s syndic, one of the assistant syndic or an ad hoc syndic (complainant), represented by a lawyer, lodges a formal complaint with the discipline committee against a broker or an agency (defendant). Such a complaint is usually initiated further to a request for assistance made to the OACIQ by a member of the public or a licence holder.

The complaint must:

• be made in writing;
• be submitted to the secretary of the discipline committee;
• be accompanied by a solemn declaration of the complainant;
• Briefly state the nature, location
  and date of the infraction as well as sections of the
  Real Estate Brokerage Act or of the regulations against
  which an infraction is based.

Note: The complaint may accompanied by a request for temporary suspension of the defendant's licence.

Once the complaint is received, the Discipline Committee secretary notifies in writing
the agency or broker against whom the complaint is lodged. The secretary also sends a request to appear, which can be returned to her accompanied by a guilty or not guilty statement, and a notice to attend the provisional roll call. Defendant will also receive the disclosure of the evidence from the plaintiff, including the list of witnesses who may be summoned to appear by the syndic, as well as copies of all the documents that may be produced by the syndic at the hearing.

Note: Section 109 of the Regulation respecting brokerage requirements, professional conduct of brokers and advertising provides that a broker or agency executive officer, on whom a disciplinary complaint has been served, may not communicate with the person who requested an inquiry or intervention without prior written permission of the syndic, an assistant syndic or an analyst from the Assistance Department.

Statement regarding guilt

After being served with the formal complaint, the defendant may complete the guilty or not guilty statement and return it to the discipline committee secretary
before the hearing.

• If the defendant admits guilt, the hearing will bear only on the penalty to be imposed.
• If the defendant denies guilt, the hearing will bear on a verdict of guilty or not guilty.
• If no statement is forwarded to the discipline committee secretary, the committee will proceed as if the defendant had intended to plead not guilty.

Provisional roll call

The complaint sent to the parties is accompanied by a summon to the provisional roll call and a questionnaire to set a hearing date.

The provisional roll call serves to set a hearing date for the complaint. On the date and time indicated in the notice of hearing, the parties (plaintiff and defendant) are summoned before the chair or vice-chair of the discipline committee to inform him or her, in particular, of their availabilities and those of their witnesses, if applicable.

For this purpose, the parties must send to the secretary the questionnaire containing this information, as soon as possible, and at least five (5) business days prior to the roll call date. Failure to send the information required by showing up or submitting the questionnaire, a hearing date will be set unilaterally by the Discipline Committee.

Notice of hearing

A notice of hearing indicating the date, time and place scheduled for the Committee's session is then sent to the parties by the Discipline Committee Secretary. The agency executive officer of the broker against whom the complaint had been lodged also receives a copy of the notice of hearing.

If the parties wish to call witnesses, they must communicate to the committee secretary the witnesses' names, addresses and telephone numbers at least twenty (20) days before the hearing. The secretary will ensure that the witnesses are summoned.

The parties and witnesses must be present on the date and time indicated in the notice of hearing or subpoenas.

Note: the Discipline Committee has the same powers as those of the Superior Court to compel witnesses to appear, including the power to issue warrants.

Composition of the committee

The Discipline Committee is generally composed of three members, including the chairman or one of the vice-chairmen and two brokers. The chairman, like the vice-chairmen, is appointed by the government. He must rule on all questions of law submitted to him and ensures that the hearing is conducted in an orderly manner. The other two members, who are brokers, are chosen from a pool of some 60 licence holders who have applied to the OACIQ Board of Directors to be member of the Discipline Committee.

Hearing of the complaint

The hearing is usually conducted in the presence of the following persons:

• three members, the Discipline Committee Secretary or Assistant Secretary or a hearing clerk;
• Plaintiff;
• Defendant;
• The lawyers of both parties, if any.

The hearing is recorded, unless both parties decide otherwise.

The hearing is public, but the Discipline Committee may order that the hearing be held in camera. Among the possible reasons: at the request of either party to ensure, for example, the protection of information that the broker obtained in the performance of his duties, the protection of the professional secrecy of a professional order member, or the protection of the privacy, reputation or safety of an individual.

For the same reasons, the Committee may also prohibit the disclosure, publication or release of certain information or documents.

Preliminary motions

The parties may present to the Discipline Committee any motion that could influence the proceedings. For example, they can request the exclusion of witnesses or bring up any procedural questions. At this stage, among other things, the plaintiff can submit a request to amend the complaint.

Confirmation of the guilty plea

The committee begins by verifying the intentions of the defendant regarding his plea. If the defendant confirms his guilty plea, the plaintiff then presents his evidence and calls his witnesses in turn.

Plaintiff’s evidence

After solemnly declaring to tell the truth, each witness must answer the plaintiff’s questions. To support the answers provided by the witnesses, the plaintiff may produce documents (reproduced in six copies in advance) to be distributed to the Committee members and to defendant. These documents are normally filed and identified as P-1, P-2, P-3 and so on.

The defendant can cross-examine each of the plaintiff’s witnesses. The Discipline Committee members may then examine the witness before the chairman or vice-chairman either releases the witness or asks him or her to stay. The same procedure applies to each witness.

Note that at this stage, the witnesses must testify only on the relevant facts. Arguments will be presented at the pleadings stage.

Once all the plaintiff’s witnesses have been heard and all the supporting material has been presented, the plaintiff declares his or her case closed.

Defendant’s evidence

The defendant may, if desired, proceed in the same manner as the plaintiff, namely by calling his or her own witnesses and producing documents supporting their testimony. These supporting documents are normally filed and identified as I-1, I-2, I-3 and so on.

The plaintiff may also cross-examine the defendant's witnesses. The Discipline Committee members may also question them before the chairman or vice-chairman either releases them or asks them to stay.

As with the plaintiff, defendant declares his or her case closed once all witnesses have been heard and all supporting material has been produced.

Witnesses may attend a hearing to which they are summoned to appear, unless they are excluded to ensure the objectivity of their testimony. They must remain available until they are released by the chairman or vice-chairman.

Rebuttal

If necessary, and with the Discipline Committee’s permission, the plaintiff can introduce new evidence to rebut new facts adduced by defendant’s defence.

Arguments

Once all the witnesses have completed giving their testimony, arguments are presented. At this stage, the plaintiff usually summarizes the witnesses’ testimony made during the hearing, highlighting important facts in order to convince the Committee that the accusation counts are well founded. The plaintiff then produces to the Discipline Committee members any legal arguments or jurisprudence that might apply.

Defendant presents arguments in order to contest the accusation counts brought against him or her, as well as testimony or jurisprudence that may support his or her version of the facts.

Decision on guilt

 Once all arguments have been presented, the Discipline Committee has two options. It may order a short recess so that the members can quickly consult each other, and then reconvene to render its decision on the guilt or innocence of the defendant. This decision and the supporting reasons will then be recorded in writing.

The Committee may also take the case under advisement and render a decision, which will then be served on the parties.

If the Discipline Committee finds the defendant not guilty of the infractions, the case is closed.

Hearing on penalties

If the defendant is found guilty, a new hearing date is set. A hearing date is also set to determine penalties if the defendant has pleaded guilty. This allows the parties to present before the Discipline Committee any aggravating or mitigating factors of the defendant's conduct, and to recommend the penalties to be imposed. The parties may then call witnesses to testify. The Discipline Committee will then rule on appropriate penalties.

Decision on penalties

If the defendant has been found guilty and a new hearing is held to determine penalties, the parties summarize the evidence heard at the hearing on guilt. They may then recommend the penalties they feel are appropriate, given all the circumstances and any jurisprudence that might apply.

If the defendant party has pleaded guilty, the parties usually agree on a summary of the facts to avoid witnesses' travel and then recommend to the Discipline Committee the
penalties that they deem appropriate.

The parties may also submit evidence in support of their claims regarding the applicable penalty.

In some cases, the parties agree in advance to make joint recommendations on the choice of penalty to the Discipline Committee. The Committee is not bound by the recommendations, even though they are common. It could therefore impose a penalty which is either more or less severe than the one recommended by the the parties.

The defendant may ask the Committee for a delay to pay the fine, if any.

Objectives of the disciplinary sanction

The aim of the disciplinary sanction is to protect the public by its deterrent and exemplary effect, and ensure rehabilitation, reintegration and remedy.

When assessing the choice of the penalty, the Committee shall focus on the objective and subjective factors of the penalty to determine whether the submitted recommendation is applicable, including:

Objective factors

• Protecting the public;
• Deterring the professional from re-offending;
• The exemplary effect for other brokers;
• The right of the professional concerned to practise his or her profession;
• The direct connection with the offence;
• The act is isolated or repetitive.

Subjective factors

• The presence or absence of a disciplinary record;
• Experience and age;
• The will to correct one's behaviour.

Possible penalties

Under section 98 of the Real Estate Brokerage Act, the Discipline Committee may impose the following penalties:

• a reprimand;
• a suspension or revocation of the licence, or the imposition of conditions or
• restrictions to the licence;
• a fine of not less than $2,000 nor more than $50,000 for each count; the minimum and maximum fines are doubled for a repeat offence;
• the obligation to remit to any person or partnership entitled to it a sum of money the broker or agency is holding for him;
• the obligation to transmit a document or any
  information;
• the obligation to complete, delete, update or rectify any document or information;
• the obligation to successfully complete a course
  or any other education activity.

Once the parties have completed their representations on the penalty to be applied, the Committee can call a brief recess, so that the members may consult each other, and then reconvene the hearing to render a decision. Usually, the decision is not taken so quickly. More often, the Discipline Committee takes the case under advisement and renders a written decision in due course.

The parties are notified of the decision and of its motives. The committee must also decide who will pay the costs of case, including the costs of the bailiff (for notification), the committee members’ travel expenses, the indemnities and allowances paid to witnesses, and so on. The invoice must be paid upon receipt, unless a delay is specified in the Committee’s decision.

Note that neither the Registry nor the OACIQ can modify the Committee’s decision and therefore cannot grant a guilty defendant a delay or payment methods.

Appeals

Under the provisions of section 100 of the Real Estate Brokerage Act and sections 164 to 177.1 of the Professional Code, the Discipline Committee’s decision can be appealed before the Court of Quebec.

The appeal can be filed through a written request to the parties and Discipline Committee's secretary.

The request, containing the a detailed statement of reasons for appeal, shall be sent to the Registry of the Court of Québec in the District of Montréal or Québec, depending on whether the district where the defendant has his professional domicile is under the appeal jurisdiction of Québec or Montréal, under the Code of Civil Procedure. The request must be received no later than 30 days after receipt of the Discipline Committee's decision.

Note: Due to the complex nature of the disciplinary process, it's recommended to seek advice from a lawyer.

Members of the Discipline Committee

Chair
M^e Patrick de Niverville

Vice-Chairs
M^e Claudine Barabé
M^e Daniel Fabien
M^e Louis-Denis Laberge
M^e Jean-Pierre Morin
M^e Sylvie Poirier
M^e Pierre R. Sicotte

Members

Secretary
Renée Dionne

Assistant Secretary
Camille Beaudry
Sophia Di Gregorio
Gérard Dossou
Vasile Rusu

Information:

Registry of the Discipline Committee