2018 QCCQ 1116, 2018 QCCQ 1116

Younan c. Frigon 2018 QCCQ 1116 COURT OF QUÉBEC Administrative and Appeal Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL LOCALITY OF MONTRÉAL Civil Division No. 500-80-030620-158 DATE: February 6, 2018 ______________________________________________________________________ PRESENT: THE HONOURABLE SERGE CHAMPOUX J.C.Q. ______________________________________________________________________ SYLVIA YOUNAN Appellant v.

RICHARD FRIGON Respondent and ORGANISME D’AUTORÉGLEMENTATION DU COURTAGE IMMOBILIER DU QUÉBEC (OACIQ) DISCIPLINE COMMITTEE Impleaded party ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The appellant entered an appeal from the decision of the Discipline Committee of the Organisme d’autoréglementation du courtage immobilier du Québec, hereinafter “the Committee”, rendered on August 29, 2014, finding her guilty of the following offences: 1.

On or about May 15th, 2006, concerning the immovable located at 905 Mc Caffrey, in Saint-Laurent, Defendant did not sent without delay to the manager of the place of business to which he is assigned, the information and documents required in order to maintain the records, books and registers, namely the brokerage contract BC 01765, the whole contrary to

section 147 of the By- Law of the Association des courtiers agents immobiliers du Québec. 3. On or about January 18th, 2011, concerning the immovable located at 905 Mc Caffrey, in Saint-Laurent, during an inquiry conducted by Syndic Giovanni Castiglia, Defendant falsely represented to Richard Frigon, investigator, that;

a) she sent to her broker, Groupe Sutton Immobilia Inc., the brokerage contract BC 01765; (. . .) commiting, on each occasion, an offence to sections 105 and 106 of the Regulation respecting brokerage requirements, professional conduct of brokers and advertising. [ sic ] [ 2 ] In her motion to introduce appeal proceedings, Sylvia Younan also indicated that she was appealing from the six-month sanction imposed.

However, the conclusions of her motion do not indicate any particular application in that regard. [ 3 ] It is appropriate to briefly outline the progress of the case to ensure a better understanding of what follows. [ 4 ] At the time of filing her motion to introduce appeal proceedings, the appellant was represented by the legal firm Greenspoon Bellemare, more specifically, by Mtre. Cyrille Duquette.

The recourse was introduced in April 2015. [ 5 ] In July 2015, the respondent, who was the complainant against Sylvia Younan before the Committee, filed a motion to dismiss the appeal, alleging a series of failures or complaints in the conduct of the appeal. More specifically, the motion alleged certain failures to comply with time limits; likewise, it reported the absence of stenographic notes in the record. [ 6 ] Ultimately, that motion was not debated, and the case was set to be called on the roll in September 2015.

At that time, the issue of the absence of stenographic notes was raised, due dates were given and the hearing was set for December 10, 2015. [ 7 ] In November 2015, a motion to cease representing was served, by which the firm that was representing the appellant sought leave to cease representation. [ 8 ] On November 18, that motion was granted. Sylvia Younan was not present at the hearing of that motion. The trial date was maintained.

[ 9 ] On November 20, 2015, the appellant filed a personal appearance. On December 7, 2015, a motion to postpone the trial was filed by a lawyer who stated that his only mandate was to present that motion.

The proceeding requested additional time to allow Sylvia Younan to retain the services of a lawyer and raised serious alleged health constraints affecting her. [ 10 ] On December 8, 2015, the hearing of the trial was postponed, and the case was referred back to the associate coordinating judge for a new date to be set. [ 11 ] In the fall of 2016, in an attempt to reset the case, the Court coordinator contacted the respondent’s lawyer and attempted to do the same with the appellant, apparently without success.

A letter was then addressed to the appellant (and the respondent’s lawyer) convening them to a case management conference. [ 12 ] That conference was held on January 12, 2017, although the appellant was not there, despite attempts to contact her. The trial was then set for November 6, 2017. [ 13 ] The appellant filed no other proceedings, no correspondence was received, and she was not heard from. [ 14 ] However, she was present at the hearing, and stated that she was ready to proceed on the basis of the brief prepared by Mtre.

Duquette and the explanations he had reportedly provided her with a few days before the hearing. [ 15 ] In her appeal proceeding, the appellant invoked a series of grounds, in all, over ten. However, in her brief, she inventoried the questions in dispute as follows: 1. CHEF D’ACCUSATION 1 (

A) LORSQUE LE FARDEAU DE PREUVE REPOSE SUR CELUI QUI VEUT FAIRE VALOIR UN DROIT COMME EN DISPOSE L’ARTICLE 2803 DU CODE CIVIL DU QUÉBEC, CELUI-CI PEUT-IL ÊTRE SUPPORTÉ PAR LA

PARTIE AYANT PRÉTENDUMENT COMMIS L’INFRACTION? (

B) LES ÉLÉMENTS DE PREUVE QUI RELÈVENT D’UNE DÉCISION ARBITRALE ET L’INTERPRÉTATION QUI EN DÉCOULE DANS LE PRÉSENT LITIGE PEUVENT-ILS ÊTRE ÉCARTÉS? (

C) LE DROIT À UNE DÉFENSE PLEINE ET ENTIÈRE DE L’APPELANTE EST-IL BAFOUÉ LORSQUE LA PREUVE EST ENTENDUE PAR UNE JURIDICTION PLUS DE SEPT ANNÉES POSTÉRIEUREMENT AUX FAITS ALLÉGUÉS? 2. CHEF D’ACCUSATON 3A) : (

A) LE REFUS D’ADMETTRE LA PERTINENCE DE LA PREUVE PEUT-IL MENER À DES ACCUSATIONS DE FAUSSES DÉCLARATIONS EN L’ABSENCE DE PREUVE À CET EFFET? (

B) UNE DECISION PEUT-ELLE ETRE RENDUE SUR LA BASE DE SIMPLES SPECULATIONS? (

C) LE DROIT A UNE DEFENSE PLEINE ET ENTIERE DE L’APPELANTE EST-IL BAFOUE LORSQUE LA PREUVE EST ENTENDUE PAR UNE JURIDICTION PLUS DE SEPT ANNEES POSTERIEUREMENT AUX FAITS ALLEGUES? (

D) LORSQUE LE FARDEAU DE PREUVE REPOSE SUR CELUI QUI VEUT FAIRE VALOIR UN DROIT COMME EN DISPOSE L’ARTICLE 2803 DU CODE CIVIL DU QUEBEC, CELUI-CI PEUT-IL ETRE SUPPORTE PAR LA

PARTIE AYANT PRETENDUMENT COMMIS L’INFRACTION? [ sic ] [ 16 ] A comparison of the grounds stated in the two proceedings revealed few similarities. [ 17 ] At the hearing, the appellant was alone to present her arguments, and it was inevitable that, because of her more limited knowledge of legal matters, she had some difficulty doing so. Once again, the connection between her presentation to the Court and the brief was at times difficult to make. [ 18 ] This introduction is useful in order to understand the decision that follows.

Although one must certainly be open and understanding toward litigants who are not represented, it is still necessary to ensure that the fairness of the process between the two parties is maintained and not disregard fair application of the rules of law. [ 19 ] APPLICABLE STANDARD OF INTERVENTION [ 20 ] At the same time, it is useful to state that the Court’s power to review the decision rendered by the Committee is not unlimited.

Current law inescapably establishes that the applicable standard of intervention in this matter is that of reasonableness simpliciter . [1] [ 21 ] In other words, the Court is not faced with the question of which decision it would have rendered, but simply to determine whether, in the circumstances, the decision rendered was within the range of reasonable outcomes, given the facts and applicable law. [ 22 ] In that regard, the appellant, Ms. Younan, confronts great difficulties.

The transcripts of the hearing before the Committee are missing from the record, so in addition to the Court’s limited power to reassess the evidence adduced, it is impossible to do that here, as the evidence is simply not there. [ 23 ] ISSUES COMMON TO THE APPELLANT’S TWO CONVICTIONS [ 24 ] Sylvia Younan’s two offences are regarding the Committee’s conclusion that she did not provide her broker with a certain

brokerage contract she would have signed (Exhibit P-2). [ 25 ] The Committee did indeed clearly conclude that the contract was not provided to the administration of the broker for which the appellant worked in 2006, the relevant date of the offences.

To do so, the Committee explained that it believed the testimony of certain persons and dismissed the testimony of other witnesses, including the appellant. [ 26 ] In her brief, the appellant suggests that the burden of proving that she had sent the contract P-2 was imposed on her by the Committee, thereby violating the rules on the matter provided for in the Civil Code of Québec . [2] At the hearing, instead she argued that the facts in evidence showed that the broker for which she worked, Groupe Sutton Immobilia Inc., must necessarily have had the contract. [ 27 ] The argument of reversal of the burden of proof is difficult to comprehend.

The Committee’s decision does not involve any such reversal of the burden. [ 28 ] The evidence accepted by the Committee indicates that a witness, Stéphane Arbour, administrative manager of Groupe Sutton Immobilia Inc. since 2006, examined all of the broker’s registers and records and did not find any indication of the existence of the brokerage contract. [ 29 ] Evidence of the absence of something can only be of that nature. Someone who is expected to know certain information testifies to the research done and the results obtained.

That evidence is positive and, in the circumstances, is accepted by the Committee. [ 30 ] Given the absence of indications and the research that the Committee considers sufficient and convincing, it concludes that the contract P-2 was not sent. [ 31 ] In defence, in other words in response to that evidence, the appellant, Ms. Younan, contended that, on the contrary, the existence of exhibits P-5 and I-3 confirms that she did indeed send the contract.

On that question, the Committee concluded: [TRANSLATION] [245] Considering the whole of the evidence, the Committee finds that the evidence adduced by the assistant syndic on count 1 of the complaint meets the criteria of clear and convincing evidence, and the Committee finds the respondent guilty of count 1; [246] Mr. Arbour’s testimony concerning the research he conducted is convincing; [247] Ms.

Gager testified that she saw the brokerage contract filed as P-2; [248] As for the respondent, she had reasons for not sending the said documents and, in addition, it is not the respondent’s first offence in such matters and the Committee grants her no credibility; [ 32 ] One might indeed contend that the Committee’s reasons could have gone beyond what is stated above. But the reasoning is intelligible. A part of the evidence was accepted and the appellant’s testimony was clearly dismissed, considering, in addition, that she had reasons, according to the committee, for not telling the truth.

The absence of a transcript of the evidence also makes impossible further examination of those conclusions. [ 33 ] The other component concerning the two offences contains allegations related to the delays in the case, more specifically the assumed delays between the allegations and the hearing before the Committee. [ 34 ] Once again, the appellant’s position is rather delicate in view of her own presentation of that argument. [ 35 ] In the Committee’s decision, it is noted that, although the issue was raised, it was curiously argued, if at all.

The Committee wrote: [TRANSLATION] [3] At the calling of the provisional roll on April 12, 2013, Mtre. Duquette had announced that he would present a preliminary exception to dismiss based on the delays between the alleged events and the filing of the complaint; [4] At the start of the hearing, Mtre.

Duquette opted to have the Committee hear the evidence before presenting his preliminary exception; (…) [209] At the calling of the provisional roll on April 12, 2013, the respondent’s lawyer had indicated that he intended to raise a preliminary exception to dismiss the complaint, without indicating the basis for his preliminary exception; [210] At the start of the hearing, the respondent’s lawyer opted to have the Committee hear the evidence before presenting his preliminary exception; [211] After the case was closed for both the plaintiff and the defence, the respondent’s lawyer had not presented a preliminary exception; [ 36 ] Without the transcript of the proceedings, it is difficult to establish whether or not the appellant actually presented arguments on the issue.

The Committee settled the matter as follows: [TRANSLATION]

[216] In this case, the respondent did not prove that the delays were so unacceptable that they rendered the proceedings oppressive and vexatious; [217] The respondent did not prove irremediable prejudice to her right to a full and complete defence, and the Committee dismisses the arguments based on the delays as preliminary exception; [ 37 ] The Court does not know whether that determination seeks to end a potential incident with the proceeding, or whether the issue really was debated before the Commitee. [ 38 ] In any event, the case as it is presented does not make possible a useful reassessment, if only because there is no evidence that a continuation of proceedings was oppressive or vexatious, or that the appellant suffered irremediable prejudice. [ 39 ] THE APPEAL OF COUNT 1 [ 40 ] Given the Committee’s conclusion based on its assessment of the evidence, according to which the brokerage contract P-2 was not sent to Groupe Sutton Immobilia Inc., and given that the Committee’s assessment in light of the case can hardly be described as unreasonable, the count is founded.

The decision concerning the delays should not be overturned either. [ 41 ] THE APPEAL OF COUNT 3A) [ 42 ] Given the preceding, that is, the express conclusion according to which the appellant failed to send the contract P-2 to her broker, her answer to the syndic investigator that she had duly given the said contract to the broker was false and misleading. [ 43 ] The issue of delays is the same for both counts and must be given the same treatment. [ 44 ] At the hearing, the appellant invoked Kienapple , [3] by the Supreme Court of Canada.

She seemed to contend that, under the rules stated in that decision, she could not be found guilty of the two offences, which overlap, and would result in her being punished twice for the same conduct. [ 45 ] That is not so. The two charges are completely separate and, what is more, did not happen at the same time. The first offence occurred at the time of her failure to send the contract to her broker in the prescribed manner.

The second offence occurred several years later, when she provided answers to the syndic investigator, and is entirely independent. [ 46 ] It is readily conceivable that one of the offences can be committed without committing the other. [ 47 ] Therefore, the argument cannot be allowed. [ 48 ] THE PENALTY [ 49 ] Although the appellant’s brief mentions an 18-month sentence suspending her right to practice, ultimately the sentence imposed was a total of six months instead. [ 50 ] The criteria for the review of imposed sentences appear even more severe than for guilt. [4] The Committee’s discretion is broad and must be respected. [ 51 ] No palpable and overriding error was demonstrated. [ 52 ] THEREFORE, THE COURT: [ 53 ] DISMISSES the appeal. [ 54 ] The whole with legal costs. __________________________________ Serge Champoux J.C.Q.

Sylvia Younan Representing herself Mtre. Marc Gaucher Gaucher Tabet, nominal partnership Counsel for the respondent Date of hearing: November 6, 2017