Booklet: Discipline committee - oaciq

oaciq.com

Booklet: Discipline committee - oaciq

discipline

committee


© Copyright, Organisme d’autoréglementation

du courtage immobilier du Québec

Legal deposit: 2010

Québec National Library

Canada National Library

ISBN 978-2-921749-83-1


discipline

committee


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 is completely autonomous and

independent from the board of directors and

staff of the Organisme d’autoréglementation

du courtage immobilier du Québec. It hears

ethical complaints brought against real estate

brokers or agencies and imposes penalties on

those found guilty.

Note that the discipline committee is not

responsible for compensating victims; that

is the responsibility of the civil courts.

This brochure is intended for the general

public and briefly describes the procedure

once a complaint is lodged. This guide is

not exhaustive and in no way restrict the

disciplinary process, or can it be used as a

reference before the discipline committee.


Table of contents

Lodging a complaint.......................................................7

Disclosure of evidence............................................7

Statement regarding guilt...............................................8

Notice of hearing.............................................................9

Composition of the committee....................................10

Hearing of the complaint..............................................11

Preliminary motions..............................................11

Plaintiff’s evidence.................................................11

Defendant’s evidence............................................12

Rebuttal..................................................................12

Arguments......................................................................13

Decision on guilt............................................................14

Presentation of aggravating or mitigating

circumstances before penalties are imposed.............15

Penalties.........................................................................16

Decision regarding penalties.......................................17

Appeals...........................................................................18


Lodging a complaint

The Organization’s syndic, one of the assistant syndics

or an ad hoc syndic, represented by a lawyer, lodges

a formal complaint with the discipline committee

against a broker or an agency. Such a complaint is

usually initiated further to a request for investigation

made to the syndic by a member of the public or a

licence holder.

The complaint must be made in writing to the

secretary of the discipline committee, accompanied

by a solemn declaration stating 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 alleged.

Then, the discipline committee secretary notifies

the person against whom the complaint is lodged

(the defendant), and also serves him or her with a

document entitled Statement regarding guilt. The

plaintiff also receives a copy of the complaint.

Disclosure of evidence

Following the service of the formal complaint,

defendant has the right to request disclosure of

the evidence from the plaintiff, including the list of

witnesses who may be summoned to appear, as well as

copies of all the documents that may be produced at

the hearing.

7


Statement regarding guilt

After being served with the formal complaint, the

defendant may complete the Statement regarding guilt

and return it to the discipline committee secretary

before the hearing.

• If the defendant admits guilt, the hearing will

bear only on the penalty.

• 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.

N.B.: Due to the complex nature of the disciplinary process, we

recommend that the parties seek advice from a lawyer.

8


Notice of hearing

The discipline committee secretary sends the parties

a notice indicating the date, time and place scheduled

for the 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 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. Note that

the discipline committee has the same powers as those

of the Superior Court to compel witnesses to appear,

including the power to issue warrants.

9


Composition of

the committee

The discipline committee is generally composed of

three members: the chairman or one of the vicechairmen,

appointed by the government, and two

brokers. The chairman, like the vice-chairmen, is a

lawyer with at least ten years of practice. He must

rule on all questions of law 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 to be member of the discipline

committee.

The hearing is normally held before the three

members and the discipline committee secretary

or a hearing clerk, the plaintiff and the defendant,

and their respective lawyers, as the case may be. The

services of a stenographer are retained or a recording

system is used, unless both parties decide otherwise.

The hearing is public, but the public may be excluded

either by the discipline committee or at the request of

one of the parties. 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.

10


Hearing of the complaint

Preliminary motions

The parties may present 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.

Plaintiff’s evidence

The committee begins by verifying the intentions of

the defendant regarding his plea. The plaintiff then

presents his evidence and calls his witnesses in turn.

After solemnly declaring to tell the truth, each witness

must answer the plaintiff’s questions. If necessary,

the plaintiff produces documents in support of the

witnesses’ testimony, in six copies to be distributed

to the committee members and to defendant. These

documents are normally filed and identified as P1, P2

and so on.

Note that at this stage, the witnesses must testify only

on the relevant facts. Arguments will be presented at a

later stage.

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.

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.

11


Defendant’s evidence

The defendant may proceed in the same manner,

namely by calling witnesses and producing documents

supporting their testimony. This supporting material is

normally filed under as D1, D2 and so on.

The plaintiff and the discipline committee members

may also cross-examine 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.

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.

N.B.: Although this is not normally the case, witnesses may still be called

even if a plea of guilt is entered.

12


Arguments

Once all the witnesses have completed giving their

testimony, arguments are presented. At this stage,

the plaintiff usually summarizes the witnesses’

testimony, highlighting important facts in order to

convince the committee that the accusation counts

are well founded. The plaintiff then produces any legal

arguments or jurisprudence that might apply.

Defendant presents arguments in order to contest

the accusation counts, as well as testimony or

jurisprudence that may support his or her version of

the facts.

13


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.

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 generally within

the following 90 days. The parties are notified of the

decision.

If the discipline committee finds the defendant not

guilty of the infractions, the case is closed.

If the defendant is found guilty, a new date is set for

a hearing where the discipline committee will rule

on penalties. This allows the parties to present any

aggravating or mitigating circumstances referring to

the imposition of penalties.

14


Presentation of

aggravating or mitigating

circumstances before

penalties are imposed

If the defendant has been found guilty and a new

hearing is held to determine penalties, the parties

summarize the evidence heard at the first hearing and

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

summarize the facts and then recommend the

penalties that they deem appropriate. At this time,

defendant may request a delay to pay any fines.

N.B.: The parties may also submit additional evidence in support of their

claims regarding the applicable penalty.

15


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 $1,000 nor more than

$12,500 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.

16


Decision regarding

penalties

Once the parties have completed their

recommendations 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. However, this is not

usually the case.

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 stenographer, the committee

members’ travel expenses, the indemnities paid to

witnesses, and so on. The invoice must be paid upon

receipt unless a delay is specified in the committee’s

decision. The Organization cannot modify the

committee’s decision and therefore cannot grant a

guilty defendant a delay.

17


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 within

30 days of notification of the decision on penalties.

Information:

discipline committee secretary

Montréal area:

450 676-4800

Elsewhere in Québec:

1 800 440-5110

18


Organisme d’autoréglementation

du courtage immobilier du Québec

4905 Lapinière Blvd., Suite 2200,

Brossard (Québec) J4Z 0G2

Telephone: 450676-4800 or 1 800440-5110

Fax: 450676-7801

Info OACIQ : 450462-9800 or 1 800440-7170

www.oaciq.com • info@oaciq.com

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