Décision

DISCIPLINARY COMMITTEE
Organisme d’autoréglementation du courtage immobilier du Québec
CANADA
PROVINCE OF QUÉBEC
No:	33-17-1997 33-17-1998
DATE:		June 5, 2017
THE COMMITTEE:			Me Jean-Pierre Morin, attorney	Vice-Chair
			Mrs. Anne Léger, real estate broker	Member
			Mr. Salvatore Ciocca, real estate broker	Member
GIOVANNI CASTIGLIA, in his capacity as Assistant syndic of the Organisme d’autoréglementation du courtage immobilier du Québec
Plaintiff
vs.
DAMITRI GANDELMAN, (E0770)   and   GROUPE IMMOBILIER AGATE INC., (G1709)
Defendants
DECISION ON GUILT AND SANCTION

[1]       OACIQ’s Disciplinary Committee met on April 28, 2017, in order to hear the parties on the complaint against the Defendants in files number 33-17-1997 and 33-17-1998;

 

[2]       The assistant syndic was present and represented by Me Vanessa J.-Goulet, and Defendant, Damitri Gandelman, was present and represented himself;

 

[3]       As for Defendant Groupe immobilier Agate Inc., no appearance having been filed on its behalf by an attorney, and this being a question of public interest, the Committee submitted that following section 87 of the Code of Civil Procedure, it be declared absent, and that the Committee should proceed by default against it under section 46 of the Regulation respecting disciplinary proceedings of the OACIQ;

 

 

I.          Preliminary question

 

[4]       Me Goulet, for Plaintiff, made representations on this question, submitting that the corporate defendant could be represented by its sole shareholder and officer, Mr. Damitri Gandelman, before the Committee;

 

[5]       In support of her representations, Me Goulet referred the Committee to the following cases:

 

·        Ville de Longueuil v. 9198-2405 Québec inc. et al., 2017 QCCQ 2191 (CanLII)

·        65302 British Columbia Limited v. Her Majesty the Queen, [1999] 3 S.C.R. 804

 

[6]       Me Goulet was aware of a recent decision of the Committee, presided by the undersigned in the cases of Hassan and Royal Prestige Group, file numbers 33-16-1968 and 33-16-1969, and stated that her client wished to have this matter be reconsidered by the Committee;

 

[7]       On the practical side, it is true that the facts in both cases under study are identical and, if the broker files a guilty plea, the proof should nevertheless be made against the corporate agency because of section 46 of the Regulation respecting disciplinary proceedings of the OACIQ;

 

[8]       This will result that the decision on sanctions for the corporate defendant should be held subsequently causing further disbursements and costs;

 

[9]       Me Goulet also relies on sections 321, 322 and 2130 of the Quebec civil Code where it is stated that a director of legal person is considered to be its mandatory;

 

[10]    The undersigned has rendered its decision in the Hassan case relying on section 87 of the Code of civil procedure which reads:

 

The following are required to be represented before the courts by a lawyer in contentious proceedings...

(3) legal persons;

 

[11]    The Committee therefore decided to re-examine this question in order to consider the Plaintiff’s representations and arguments;

 

[12]    In the case of Ville de Longueuil here above cited, the Court of Quebec had to decide on a similar question concerning the right of a corporation to file a demand concerning the municipal evaluation of its immovable before the Tribunal administratif du Québec, Section des affaires immobilières, without having an attorney acting for it, but simply an officer of the corporation;

 

[13]    As stated in the judgment, the appeal concerned the application of sections 128 and 129 of the Bar Act;

 

[14]    First of all, let us underline the fact that section 128 of the Bar Act creates some exceptions to the monopoly of attorneys before certain instances;

 

[15]    Moreover, section 129 of the Bar Act establishes the right of a private or public organism to act by their officer before any organism which exercises a «quasi-judicial» function;

 

[16]    Let us underline that this exception does not give the legal person the right to make any representation (sauf aux fins de plaidoiries, section 129 c)), before the quasi-judicial organism;

 

[17]    In the judgment of Ville de Longueuil, the question rose when legal persons made application in writing to contest their municipal evaluation without the services of an attorney and a very important part of the judgment considered the distinction between the writing of preliminary documents and representations before the deciding authority;

 

[18]    We will not comment on this question because in our file there is no preliminary document filed by Defendant other than the possibility of a guilty or non-guilty plea;

 

[19]    We must concentrate our efforts on the following questions:

 

·        What does the term «make representation» (plaidoirie) in section 129 c) of the Bar Act mean?

·        Is the OACIQ Disciplinary Committee a «quasi-judicial organism» under section 129 c) of the Bar Act?

 

[20]   The term «make representation» or «represent» has been interpreted by Mr. Justice Cameron, in the case of Ville de Longueuil, in a large and liberal scope and even in this interpretation, one should exclude from the terms the pleadings (les plaidoiries), see paragraph 181 of the Judgment:

         

  [181]     En conclusion sur cette section, nous sommes d'avis que l'interprétation correcte de l'article 129 c) L.B. correspond à l'approche large et inclusive adoptée dans la décision rendue dans Québec inc. que l’exception vise toutes les étapes de représentation de la préparation et rédaction jusqu’à la clôture du dossier (sous réserve de la plaidoirie).

 

[21]   The undersigned cannot concur with this opinion simply on the fact that the simple production of a plea consists of a representation before the Committee and bears very important consequences for the Defendant;

 

[22]   No third party except an attorney can have the burden of taking that position for a legal person;

 

[23]   The undersigned is aware that in the case of Ville de Longueuil, all parties have made consensus on the meaning of the term pleading as being the final arguments presented to the court after the closing of the proof, but how can this principle be managed in our cases?

 

[24]   This would mean that the proof could be administered but afterwards no one could speak for the legal person on representations and plea;

 

[25]   This situation comes to a shortfall, a dead end in which there would be no way out;

 

[26]   But we must also analyze the notion of quasi-judicial function before concluding on these arguments;

 

[27]   Mr. Justice Cameron in Ville de Longueuil comes to the conclusion that the TAQ is a quasi-judicial organism in the file and therefore subject to the exception of the monopoly in section 129 c) of the Bar Act;

 

[28]   Can one make the same affirmation concerning the Disciplinary Committee of the OACIQ?

 

[29]   With deference to the opinion of Mr. Justice Cameron, in the Ville de Longueuil case, the undersigned submits that the explanations derived from the case M.R.N. v. Coopers and Lybrand, [1979] 1 RCS 45 concerning what is a quasi-judicial organism cannot give us a clear answer in our file;

 

[30]   The Committee prefers the following extracts of the case Raven v. Montreal (Ville), 2015 QCTAQ 04983:

[22]      Pour déterminer si un organisme exerce des fonctions quasi judiciaires, le test demeure celui énoncé en 1979 par la Cour suprême dans l’arrêt ministre du Revenu national c. Coopers et Lybrand[10]. Aussi, en 2001, la Cour d’appel a rendu un arrêt situant notre Tribunal à un niveau supérieur sur le large spectre des tribunaux administratifs dans l’affaire Québec (Procureur général) c. Barreau de Montréal[11]. La Cour d’appel a notamment apprécié la nature de notre Tribunal, lequel exerce une fonction exclusivement juridictionnelle et a considéré que notre Tribunal dispose de compétences qui sont normalement confiées aux cours de justice, par exemple trancher des questions constitutionnelles et décider de recours mettant en jeu les intérêts financiers ou politiques de l’État en tant que partie au litige.

[23]      C’est en prenant ces éléments dans leur ensemble que la Cour d’appel situait notre Tribunal sur le spectre des tribunaux administratifs, à un niveau supérieur d’exigence en ce qui concerne l’indépendance judiciaire des juges administratifs.

[24]      Avec égards, le Tribunal en vient à la conclusion que l’exception prévue au paragraphe c) de l’article 129 LB ne peut s’appliquer en l’espèce, car notre Tribunal n’exerce pas une fonction quasi judiciaire comme des commissions ou des régies qui ont un double rôle de réglementation et d’adjudication, mais seulement un rôle d’adjudication ou juridictionnel.

[31]     The undersigned submits that the Disciplinary Committee of the OACIQ does not have a quasi-judicial activity as some other commission or board have by enacting by-laws and render decisions;

[32]     The Disciplinary Committee of the OACIQ has only but one object, that is to be seized and dispose of any complaint filed by the syndic against a broker or an agency, see Divison V of the Real Estate Brokerage Act;

[33]     The Committee therefore cannot retain the arguments concerning section 129 c) of the Bar Act;

[34]     As mentioned herein above, Me Goulet also referred to the case of 65302 British Columbia Limited v. Her Majesty the Queen, 1999 CanLII 639 (CSC);

[35]     Me Goulet has referred to this case on the question of interpretation of laws in relation to others and more specifically on the following extract:

The statute book as a whole forms part of the legal context in which an act of Parliament is passed.  As Driedger notes in the second edition, at p. 159, “one statute may influence the meaning of the other, so as to produce harmony within the body of the law as a whole”; see also Côté, supra, at pp. 433-40.  Sullivan in Driedger on the Construction of Statutes is even more explicit in this regard, at p. 288:

 

The meaning of words in legislation depends not only on their immediate context but also on a larger context which includes the Act as a whole and the statute book as a whole.  The presumptions of coherence and consistency apply not only to Acts dealing with the same subject but also, albeit with lesser force, to the entire body of statute law produced by a legislature.  The legislature is presumed to know its own statute book and to draft each new provision with regard to the structures, conventions, and habits of expression as well as the substantive law embodied in existing legislation.

 

. . . It is presumed that the legislature does not intend to contradict itself or to create inconsistent schemes.  Therefore, other things being equal, interpretations that minimize the possibility of conflict or incoherence among different enactments are preferred.  [Footnotes omitted.]

 

[36]     The Committee does not consider that there is a contradiction in the legislation or that the present situation creates an inconsistent scheme;

 

[37]     As it has been established more than 40 years ago in the case of Lemieux v. Lippens, [1973] R.L. 40, disciplinary law is «sui generis» and must be distinguished from penal law or civil law, it has its own set of rules in procedure matters, borrowing from one or the other domain, but the general rule is that it is closer to the rules set in the Code of Civil Procedure;

 

[38]     It is quite a new phenomenon that legal persons are Defendants in disciplinary matters, traditionally only individuals were members of professional organizations, we must therefore act cautiously in developing or applying procedural rules concerning legal persons;

 

[39]     The consequences of a disciplinary hearing can be very important for the Defendant and important sanctions can result of such proceedings;

 

[40]     The interest of the legal person is different from those of its shareholders or directors; this in one of the basic principles of company law and, therefore, its interests must be defended properly by an independent professional such as an attorney;

 

[41]     To conclude on this question, even though it may cause delays and costs if a legal person is not represented at the beginning of a trial, it is the duty of the Committee to ask that the Plaintiff make its proof in order that the Committee may conclude to guilt or acquittal;

 

[42]     In the present case, the counts served on both Defendants are the same, therefore, the guilty plea and the proof made in the real estate broker’s case can be transferred to the file concerning the legal person, the agency;

 

[43]     The agency having abandoned its rights of representation before the Committee, the latter may proceed to hear the case and render a decision on guilt immediately and afterwards, but at the same hearing impose penalties, section 98 of the Real Estate Brokerage Act, not prohibiting such procedural manner;

 

[44]     Thus the costs of hearing will not be more important and the interest of the administration of justice is preserved;

 

[45]   The two files were therefore, consolidated to be tried at the same time and determined on the same evidence the counts of each file being the same;

 

 

 

II.                    The complaints

 

[46]     The complaints read as follows:

 

33-17-1997

 

Damitri Gandelman, at all relevant time holder of a licence delivered by the Organisme d’autorègementation du courtage immobilier du Québec, has committed derogatory acts, namely:

 

1. Starting from June 27, 2016, while acting as executive officer of the agency Groupe Immobilier Agate Inc., did not collaborate with the Inspection Department of the OACIQ by not transmitting the following s documents:

a) Register of disclosure notices for 2015;

b) Annual Trust transaction report -Summary of deposits and withdrawals for 2015;

 

therefore committing at each of the above occurrences, an offence towards  section 62, 69, 71 and 105 of the Regulations respecting brokerage requirements, professional conduct of  brokers and advertising, and section 80 of the Real estate brokerage act;

 

2., Starting from October 19, 2016, while acting as executive officer of the agency Groupe Immobilier Agate Inc., did not collaborate with Giovanni Castiglia, assistant syndic by not transmitting the following s documents:

a) Register of disclosure notices for 2015;

b) Annual Trust transaction report -Summary of deposits and withdrawals for 2015;

 

therefore committing at each of the above occurrences, an offence towards  section 62, 69, 71 and 105 of the Regulations respecting brokerage requirements, professional conduct of  brokers and advertising, and sections 80 and 89 of the Real estate brokerage act;

 

33-17-1998

 

GROUPE IMMOBILIER AGATE INC., at all relevant time holder of a licence delivered by the Organisme d’autorègementation du courtage immobilier du Québec, has committed derogatory acts, namely:

 

1. Starting from June 27, 2016, Defendant did not collaborate with the Inspection Department of the OACIQ by not transmitting the following s documents:

a) Register of disclosure notices for 2015;

b) Annual Trust transaction report -Summary of deposits and withdrawals for 2015;

 

therefore committing at each of the above occurrences, an offence towards  section 62, 69, 71 and 105 of the Regulations respecting brokerage requirements, professional conduct of  brokers and advertising, and sections 19, 20 and 80 of the Real estate brokerage act;

 

2., Starting from October 19, 2016, defendant did not collaborate with Giovanni Castiglia, assistant syndic by not transmitting the following s documents:

a) Register of disclosure notices for 2015;

b) Annual Trust transaction report -Summary of deposits and withdrawals for 2015;

 

therefore committing at each of the above occurrences, an offence towards  section 62, 69, 71 and 105 of the Regulations respecting brokerage requirements, professional conduct of  brokers and advertising, and sections 19, 20,80 and 89 of the Real estate brokerage act;

 

[47]     At the beginning of the hearing, Defendant Damitri Gandelman declared that he was pleading guilty on all counts against him, and the Committee after assuring itself that the plea was made voluntarily and consciously, declared Defendant Damitri Gandelman guilty of each and every count of the complaint filed against him;

 

[48]     The Committee then invited the Plaintiff to make its proof of the counts against Defendant Groupe immobilier Agate Inc.;

 

 

III.                   Proof of guilt and sanction

 

[49]     Me Goulet produced exhibit P-1 and P-2 concerning the licences held by both Defendants on January 30, 2017;

 

[50]     The first witness to be heard was Ms. Johanne Langlois, who works as an agent in the professional inspection department;

 

[51]     Ms. Langlois explained to the Committee the procedure that as been put in place since 2005 to compel every agency and their executive officers to answer and complete a form giving a picture of the agency’s activities in the past year;

 

[52]   For the 2015 inspection year, Ms. Langlois produced the following exhibits:

 

-       P-3: Communication plan for the 2015 return;

-       P-4: First notice concerning the 2015 return;

-       P-5: In bulk, reminder letter concerning online self-inspection for 2015 and settings for the email transmission;

-       P-6: Final notice for online self-inspection for 2015 and settings for the email transmission;

-       P-7: Pro@actif bulletin of February 10, 2016;

-       P-8: Pro@actif bulletin of March 16, 2016;

-       P-9: Letter of default sent to Damitri Gandelman and Groupe immobilier Agate inc. of April 4, 2016;

-       P-10: Groupe immobilier Agate inc. online self-inspection return dated April 18, 2016;

 

[53]   From Ms. Langlois testimony and the documents produced, we understand that for every year, a campaign is launched in the beginning of the following year to have all agencies produce before the 31^st of March, an online self-inspection return;

 

[54]   This campaign is made by email at the email addresses of every agency, as registered at the OACIQ, and by bulletins transmitted to all the professionals as seen from exhibits P-7 and P-8;

 

[55]   The return for 2015 was revised by Ms. Langlois, who discovered that certain documents that should have been filed with the return were missing, namely, the register of disclosure notices and the Annual trust transaction report- summary of deposits and withdrawals for 2015;

 

[56]   A letter of notice of default was then sent to the agency and Mr. Gandelman, on May 9, 2016, as sown by exhibit P-11;

 

[57]   As seen from P-11, the documents should have been filed on or before May 20, 2016, which was not done;

 

[58]   The file was then submitted to the Inspection Committee on June 10, 2016, who demanded further action, as seen from exhibit P-12;

 

[59]   Ms. Langlois then sent to the agency and to Mr. Gandelman an email on June 14, 2016, requesting that a commitment be signed in order to file the requested documents on or before June 27, 2016, as seen from exhibit P-13;

 

[60]   Having not received the requested documents on June 27, 2016, the file was sent to the syndic, as seen from the letter dated July 4, 2016, exhibit P-14;

 

[61]   The witness then testified concerning the online self-inspection concerning the return of 2016 and produced the following exhibits:

 

-       P-15: Letter of default transmitted to the Agency and Mr. Gandelman for the year 2016, dated April 7, 2017;

-       P-16: Email correspondence between Ms. Langlois and Damitri Gandelman, as of April 19, 2017;

-       P-17: Annual return from Groupe immobilier Agate Inc., dated April 22, 2017;

-       P-18: Email correspondence between OACIQ Inspection department and Damitri Gandelman on April 26, 2017;

 

[62]   The proof therefore being made that the agency was again in default to file its return before the due date of March 31^st of this year;

 

[63]   The second witness was the syndic Giovanni Castiglia;

 

[64]   Mr. Castiglia received the file from the OACIQ’s Inspection Department and made summary verification with Ms. Langlois, before sending a letter to the Agency and Mr. Gandelman, by registered mail and email on October 19, 2016, as seen from exhibit P-19;

 

[65]   Having received no reply from either the agency or Gandelman, the syndic filed on February 22, 2017, two complaints, which are before the Committee today;

 

[66]   On February 27, 2017, Mr. Castiglia received the missing documents, receipt produced as exhibit P-20, and then transferred them to Ms. Langlois who, after examination, declared that the documents were complete;

 

[67]   Plaintiff declared its proof close;

 

[68]   Mr. Damitri Gandelman then testified on his behalf;

 

[69]   The witness declared that all the proof that was made was the truth and that he was taking upon him the full responsibility of all this mess;

 

[70]   Mr. Gandelman also stated that his wife, mother of two young children, became very sick in November of 2015 and that he had neglected his duties as an executive director of the agency, having to take care of his kids, and accompany his wife for numerous treatments at the hospital for breast cancer;

 

[71]   He missed several days of work and lost 10 out of 60 real estate brokers at the agency;

 

[72]   He relied on his secretary to prepare the returns but she did not do it;

 

[73]   Now, his wife is better and he his trying to rebuild his practice;

 

[74]   As for the 2016 return, the agency had a big computer breakdown in the beginning of 2017 and that is why he was late to file it, declaring having with him on the day of the hearing, documents in support of the 2016 return that would be filed on the same day;

 

[75]   In cross-examination, the witness said that he had not informed the Inspection Department or the syndic of his problems;

 

[76]   The Defendant declared its proof close and Plaintiff having no further proof to present, the proof was declared close on both sides;

 

 

[77]   The Committee having heard the proof which made a complete demonstration of the faults of the agency, as shown above, declared Groupe immobilier Agate Inc. guilty of all the counts made against it in file number 33-17-1998;

 

 

IV.          Representations by the parties

 

[78]     Without any surprise, Plaintiff’s attorney made a statement concerning the objectives that a disciplinary committee should try to reach in order to determine the adequate sanction that should be imposed on the defendants;

 

[79]     These objectives have been established in the case of Pigeon v. Daigneault[1] in which the Court of appeal stated that the following objectives should be sought by a Committee, the objectives being:

 

-       The protection of the public;

-       The example to be given to the profession;

-       The dissuasive effect of the sanctions;

-       The right of the professional to earn its living;

 

[80]     To reach those objectives, the Committee must examine the objective and subjective factors in order to tailor fit the sanctions on each defendant;

 

[81]     In file number 33-17-1997, Me Goulet made the following recommendations:

 

·        Count 1a):        a 30-day suspension of Defendant’s licence;

·        Count 1b):        a 30-day suspension of Defendant’s licence;

·        Order that the periods of suspension on counts 1a) and 1b) be served concurrently;

·        Count 2a):        a 30-day suspension of Defendant’s licence;

·        Count 2b):        a 30-day suspension of Defendant’s licence;

·        Order that the periods of suspension on counts 2a) and 2b) be served concurrently;

·        Order that the periods of suspension on counts 1 and 2 be served consecutively;

·        Order a public notice of the decision;

 

[82]     Me Goulet mentioned that both Defendants had no prior disciplinary condemnation;

 

 

[83]     She underlined the fact that the Defendants have not collaborated with the OACIQ and, therefore, there is a chance that they will continue in the future, the proof made concerning the 2016 return being very eloquent on the matter;

 

[84]     In support of her recommendations, Me Goulet produced the following cases:

·        Castiglia v. Mc Guigan, 2009 CanLII92309 (QC OACIQ);

·        Lebel v. Massad, 2017 CanLII15528 (QC OACIQ);

·        Castiglia v. Gilbert, 2008 CanLII 90038 (QC OACIQ);

·        Frigon  v. Selyé, 2015 CanLII 80604 (QC OACIQ);

·        Castiglia v. Kordzian, 2008 CanLII 90030 (QC OACIQ);

 

[85]     These cases establishing the scope of sanctions imposed by the committee in similar cases;

 

[86]     Turning to the sanctions that should be imposed on the agency in file 33-17-1998, Me Goulet made the following recommendations:

 

·        Count 1: payment of a fine of $3,000;

·        Count 2: payment of a fine of $5,000;

 

[87]     In support of her recommendations, Me Goulet produced the following cases:

·        Frigon v. Intelligence Hypothécaire, 2013 CanLII 42761 (QC OACIQ);

·        Pigeon v. Corporation des Associés Worldwide, 33-96-0102, 17 juillet 1996;

·        Pigeon v. Service immobilier Option, 33-96-0177 4 mars 1997;

 

[88]     The scope of sanctions in similar cases ranging from a fine of $6,000 to $10,000;

 

[89]     Mr. Gandelman on his side declared that the Committee should take into account the fact that before his wife’s illness never had he or the agency committed any disciplinary offence and that he has learned from this bad experience for the future;

 

[90]     He submitted that the returns and documents produced to the OACIQ showed no further fault and he acknowledges that he did not give full collaboration to the OACIQ and its departments;

 

 

V.           Analysis and decision

 

[91]   The Committee has often declared that it is of the outmost importance for a real estate broker to collaborate with the OACIQ, which primary mission is to protect the public by assuring that the professionals acting in the real estate business respect the rules of conduct;

 

[92]   In the case of individuals, the Committee has always had a zero tolerance in cases where the broker has not collaborated with the syndic or any department in charge of obtaining information;

 

[93]   As shown in the case of Selyé, herein above stated, a suspension of the licence for a period of 30 days is the minimum sanction to be imposed;

 

[94]     Therefore, the recommendations from the Plaintiff are in accordance with this long-time position of the Disciplinary Committee;

 

[95]     That being said, the Committee has to determine if the period of suspension for count 1 and count 2 in the case of Mr. Gandelman should be served consecutively for a total period of 60 days;

 

[96]     As stated in the case of Gardner v. Poor[2]:

En ce qui concerne l’aspect de la consécutivité, le Tribunal des professions, dans Pomminville c. Avocats[2], mentionnait : « […]attribuer aux périodes de radiation un caractère consécutif ne doit pas être vu comme la règle, mais plutôt comme une exception qui doit être suffisamment motivée par les infractions en cause. »

the consecutive principal must not be considered the rule but an exception who must be sufficiently motivated for the infractions under study;

 

[97]     On the other hand, the Committee is also aware of the court of appeal judgment in the case of Tan v. Lebel[3] where Mr. Justice Dufresne says:

 

[26] En matière pénale, les peines sont généralement concurrentes lorsque les    Infractions sont intimement reliées et découlent du même incident. Ce principe doit tout          autant prévaloir en matière de sanctions disciplinaires.

 

 [31]   D'ailleurs, le juge d'appel explique fort bien, dans le jugement entrepris, en quoi la condamnation pour l'accusation  portée en vertu du troisième chef est distincte    des deux premiers et elle justifie l'imposition d'une peine consécutive:

[61]      À cet égard, le Tribunal partage l’avis de l’Intimé à l’effet que, si cette période de suspension devait être purgée de manière concurrente aux autres périodes de suspension, elle aurait pour effet pratique d’encourager un professionnel sous enquête à déformer  la vérité lors de l’enquête menée par le syndic. L’agent immobilier visé par une enquête pourrait trouver avantageux de mentir lors de ses déclarations, afin de compliquer la tâche du syndic dans sa       recherche des faits et éventuellement peut-être réussir à faire en sorte que l’enquête n’aboutisse point à l’émission d’une plainte, en raison de l’existence de versions contradictoires.

 

[98]     In the present case, Defendant Gandelman did not follow up on the filing of the requested documents and this situation had to be referred to the syndic, at which time upon deposit and serving of the complaint Defendant finally reacted;

 

[99]     The Committee is comprehensive of the problems encountered by the Defendant in his personal life and even though it is not an excuse, the Committee does not see how two periods of suspension for a total of 60 days could be a good remedy in this particular situation;

 

[100]   The Committee also took in consideration, the fact that the agency and Mr. Gandelman complied with the voluntary auto-inspection for the years of 2012, 2013 and 2014 and did not comply when the director had personal problems;

 

[101]   The Committee does not think that the Defendant will do the same thing in the future and, therefore, decides that all the suspension periods will be served concurrently;

 

[102]   As for the agency, Groupe immobilier Agate Inc., the Committee understands that a suspension period would be very harmful for it and for the 50 real estate brokers who are working in this agency;

 

[103]   Therefore, a substantial fine should be imposed because of the seriousness of the infractions, in order to have a deterrent effect for those who think that it is not important to collaborate with the syndic or the inspection committee;

 

[104]   In light of the cases given as example by the syndic’s attorney, the Committee believes that the sanctions recommended are appropriate and well founded and will act accordingly;

 

 

 

THEREFORE, THE DISCIPLINARY COMMITTEE:

 

33-17-1997

 

DECLARES Defendant, Damitri Gandelman, guilty on count 1a) of the complaint for committing an infraction to Section 105 of the Regulations respecting brokerage requirements, professional conduct of brokers and advertising.

 

PRONOUNCES a conditional stay of all proceedings concerning the other sections alleged in support of count 1a);

 

DECLARES Defendant, Damitri Gandelman, guilty on count 1b) of the complaint for committing an infraction to Section 105 of the Regulations respecting brokerage requirements, professional conduct of brokers and advertising;

 

PRONOUNCES a conditional stay of all proceedings concerning the other sections alleged in support of count 1b);

 

DECLARES Defendant, Damitri Gandelman, guilty on count 2a) of the complaint for committing an infraction to Section 105 of the Regulations respecting brokerage requirements, professional conduct of brokers and advertising;

 

PRONOUNCES a conditional stay of all proceedings concerning the other sections alleged in support of count 2a);

 

DECLARES Defendant, Damitri Gandelman, guilty on count 2b) of the complaint for committing an infraction to Section 105 of the Regulation respecting brokerage requirements, professional conduct of brokers and advertising;

 

PRONOUNCES a conditional stay of all proceedings concerning the other sections alleged in support of count 2b);

 

ORDERS THE FOLLOWING SANCTIONS TO BE IMPOSED ON THE DEFENDANT DAMITRI GANDELMAN :

 

COUNT 1A):

 

ORDERS, as regards to count 1a), the suspension of Defendant’s Real Estate Broker license (E0770), for a period of thirty (30) days, from the expiration of the time limit for appeal, if Defendant is holder of a license delivered by the Organisme d’Autoréglementation du courtage immobilier du Québec, or else, upon the time he should become effectively holder of any category of license issued by the Organisme d’Autoréglementation du courtage immobilier du Québec;

 

COUNT 1B):

 

ORDERS, as regards to count 1b), the suspension of Defendant’s Real Estate Broker license (E0770), for a period of thirty (30) days, from the expiration of the time limit for appeal, if Defendant is holder of a license delivered by the Organisme d’Autoréglementation du courtage immobilier du Québec, or else, upon the time he should become effectively holder of any category of license issued by the Organisme d’Autoréglementation du courtage immobilier du Québec;

 

COUNT 2A):

 

ORDERS, as regards to count 2a), the suspension of Defendant’s Real Estate Broker license (E0070), for a period of thirty (30) days, from the expiration of the time limit for appeal, if Defendant is holder of a license delivered by the Organisme d’Autoréglementation du courtage immobilier du Québec, or else, upon the time he should become effectively holder of any category of license issued by the Organisme d’Autoréglementation du courtage immobilier du Québec;

 

COUNT 2B):

 

ORDERS, as regards to count 2b), the suspension of Defendant’s Real Estate Broker license (E0770), for a period of thirty (30) days, as from the expiration of the time limit for appeal, if Defendant is holder of a license delivered by the Organisme d’Autoréglementation du courtage immobilier du Québec, or else, upon the time he should become effectively holder of any category of license issued by the Organisme d’Autoréglementation du courtage immobilier du Québec;

 

ORDERS that all periods of suspension imposed on counts 1a), 1b), 2a) and 2b) be served concurrently;

 

ORDERS that a notice of the present decision of suspension be published in a newspaper distributed in the place where the broker’s establishment is located as from the expiration of the time limit for appeal, if Defendant is holder of a licence delivered by the Organisme d’Autoréglementation du courtage immobilier du Québec, or else, upon the time he should become effectively holder of any category of licence issued by the Organisme d’Autoréglementation du courtage immobilier du Québec;

 

ORDERS that all of the costs incurred in the file 33-17-1997, including the costs related to the publication of a suspension notice and the half of the costs of the present hearing to be paid by Defendant;

 

 

33-17-1998

 

DECLARES Defendant, Groupe immobilier Agate Inc., guilty on counts 1a) and 1b) of the complaint for committing an infraction to section 80 of the Real estate brokerage act;

 

PRONOUNCES a conditional stay of all proceedings concerning the other sections alleged in support of counts 1a) and 1b);

 

 

DECLARES Defendant, Groupe immobilier Agate Inc., guilty on counts 2a) and 2b) of the complaint for committing an infraction to Section 89 of the Real estate brokerage act;

 

PRONOUNCES a conditional stay of all proceedings concerning the other sections alleged in support of counts 2a) and 2b);

 

ORDERS THE FOLLOWING SANCTIONS TO BE IMPOSED ON THE DEFENDANT GROUPE IMMOBILIER AGATE INC.:

 

COUNT 1:

 

A fine of $3,000;

 

COUNT 2:

 

A fine of $5,000;

 

ORDERS that all of the costs incurred in the file 33-17-1998 and half of the costs of the present hearing to be paid by Defendant.

 

 

	____________________________________ Me Jean-Pierre Morin, attorney Vice-chair       ____________________________________ Mrs. Anne Léger, real estate broker Member       ____________________________________ Mr. Salvatore Ciocca, real estate broker Member
Me Vanessa Joannisse-Goulet Attorney for Plaintiff   Mr. Damitri Gandelman Defendant, present   Groupe immobilier Agate Inc. Defendant, absent
Date of hearing: April 28, 2017