33-09-1185

RÉJEAN LEBEL,

in his capacity as assistant syndic, Organisme d’autoréglementation du courtage immobilier du Québec Plaintiff c.

ILONA TROSMAN,

(D0128) Defendant

DECISION ON PENALTY

Hearing of a formal Complaint held in the office of the ORGANISME D’AUTORÉGLEMENTATION DU COURTAGE IMMOBILIER DU QUÉBEC, situated at 6300 Auteuil Avenue, suite 105, Brossard (Québec), on June, 15 2010, at 9 h a.m.

THE TRIBUNAL

The members appointed for the present hearing are :

Me Patrick Choquette, chairman

Mr. Sylvain Thibault, member

Mr. Michel Liboiron, member

THE PARTIES

The Plaintiff is present and assisted by Me Karoline Khelfa. Defendant is present but not represented. In a previous Decision, Defendant was found guilty on the count number 2 b) of the formal Complaint.

THE COMPLAINT

In the present instance, Defendant was charged with the following:

1. (…) 2. On or about June 8th, 2007, concerning the immovable located at 1466, De l’Everest st., in Saint-Laurent, defendant, while acting as the buying real estate agent, committed derogatory acts, namely :

a) by initiating a discussion directly and aggressively with Marc-André St-Laurent, seller, pertaining to the buying real estate broker’s share of compensation;

b) by threatening to not proceed with the presentation of the promise to purchase PP 47604 if the buying real estate broker’s share of compensation was not increased; committing, at each and every occasion, an offence to sections 1, 10, 13, 40, 46 and 49 of the Rules of professional ethics of the Association des courtiers et agents immobiliers du Québec.

PROOF ON PENALTY

First witness : Mrs. Ilona Trosman

Mrs. Trosman is thankful to the committee for having taken the time to carefully analyse the events and for having rendered a decision which does not depict everything either all black or all white.

She also states that the destination of the Promise to Purchase was not influenced by the negotiation of the commission but by the price offered which did not meet the expectation of the client.

She concludes that a situation such as the one for which she was found guilty will be corrected by the coming into force of the new Real Estate Brokerage Act and the obligation for the listing broker to declare to the owner the share of the commission offered to other agents.

REPRESENTATIONS

Me Khelfa reminds the committee of the ruling by the Court of Appeal in the matter of ACAIQ c. Daigneault, 2003 CanLII 32934 (QC C.A.), R.J.Q. 1090 and the guidelines by which this committee should establish the just and appropriate penalty.

Objectively, the infraction for which Defendant was found guilty is serious in that it touches the profession’s public image and also deals with the duty to collaborate with other agents. Subjectively, Plaintiff submits that Defendant has no prior condemnation, offered a good collaboration and, therefore, suggests that a fine of $1,000 plus costs would be the appropriate penalty.

Plaintiff’s assessment and recommendation is based on the following decisions: - ACAIQ c. Silva (33-04-0776); - ACAIQ c. Naji (33-04-0779).

Defendant has very little more to add and appears to be generally in agreement with Plaintiff’s recommendations.

ANALYSIS

The committee is impressed by Mrs Trosman’s attitude and it seems that the disciplinary process has achieved one of its main purposes which is allowing an agent to reflect on its conduct and learn from the experience. Defendant has no prior disciplinary record, offered a good collaboration and the risk of recidivism appears to be very remote especially in light of the coming into force of the new Real Estate Brokerage Act on May 1st, 2010.

The infraction for which Defendant was found guilty has a certain level of seriousness, more particularly with respect to the public’s image of the profession.

Mr. St-Laurent was not impressed by the situation and uncomfortable being in the middle of discussions concerning the sharing of the commission rather than negotiations on the merit of the promise to purchase presented by Mrs. Trosman.

The fine of $1,000 appears to be reasonable especially in light of the fact of the precedents that were submitted by Plaintiff and also considering that the minimum fine for an infraction committed during that period would be $600.

DECISION

THE COMMITTEE :

ORDERS Defendant to pay a fine of $1,000.

ORDERS that all costs of the present case be awarded against Defendant.

BROSSARD, July 30, 2010

Me Patrick Choquette, chairman

Mr. Sylvain Thibault, member

Mr. Michel Liboiron, member