C-73.2 - Real Estate Brokerage Act

À jour au 1^er mai 2020

Ce document a valeur officielle.

chapter C-73.2

Real Estate Brokerage Act

CHAPTER I SCOPE

1. For the purposes of this Act, a “real estate brokerage contract” means

(1)  a contract by which a party, the client, for the purpose of entering into an agreement for the sale or lease of an immovable, asks the other party to act as its intermediary in dealing with persons who might be interested in purchasing or leasing the immovable and, possibly, in bringing about an agreement of wills between the client and a buyer, promisor-buyer or promisor-lessee;

(2)  a contract by which a party, the client, for the purpose of entering into an agreement for the purchase or lease of an immovable, asks the other party to act as its intermediary in dealing with persons who are offering an immovable for sale or lease and, possibly, in bringing about an agreement of wills between the client and a seller, promisor-seller or promisor-lessor.

A contract by which an intermediary obligates himself or herself without remuneration is not a real estate brokerage contract under this Act.

2008, c. 9, s. 1; 2009, c. 58, s. 139; 2018, c. 23, s. 396.

1.1. For the purposes of section 1,

(1)  the following are considered to be immovables:

(a)  a promise of sale of an immovable;

(b)  an enterprise, if the enterprise’s property, according to its market value, consists mainly of immovable property; and

(c)  a mobile home placed on a chassis; and

(2)  an exchange is considered to be a sale.

2018, c. 23, s. 396.

2. No person, except the persons referred to in section 3, may be the intermediary party to a real estate brokerage contract for the sale or purchase of an immovable without holding a broker’s or agency licence issued in accordance with this Act or a special authorization from the real estate self-regulatory organization known as the Organisme d’autoréglementation du courtage immobilier du Québec (the Organization) established under section 31.

Consequently, the intermediary party to a real estate brokerage contract for the lease of any immovable is not required to hold a broker’s or agency licence. Such a licence may nevertheless be issued if the intermediary applies for it, as if the licence were necessary.

Subject to Division IV of Chapter II, a person who contravenes the first paragraph may not claim or receive remuneration for performing the obligations of an intermediary.

2008, c. 9, s. 2; I.N. 2016-01-01 (NCCP); 2018, c. 23, s. 396.

2.1. No person may, without holding the licence required under this Act, use, in any manner whatsoever, the title of “real estate broker” or “real estate agency” or any other title that may lead others to believe that the person holds such a licence.

2018, c. 23, s. 396.

3. The persons referred to in any of the following paragraphs are not required to hold a licence when they are parties, as intermediaries, to a real estate brokerage contract under that paragraph, unless they use a title that is restricted under this Act:

(1)  advocates, notaries, chartered appraisers, liquidators, sequestrators, trustees in bankruptcy or trustees, provided the contract is entered into in the exercise of their functions;

(2)  forest engineers, provided the contract concerns a forest property;

(3)  members in good standing of the Ordre professionnel des comptables professionnels agréés du Québec, provided the contract concerns the purchase or sale of an enterprise, a promise to purchase or sell an enterprise, or the purchase or sale of such a promise;

(4)  chartered administrators, provided the contract is entered into incidentally to the exercise of their real estate management functions and is not governed by section 23;

(5)  trust companies authorized under the Trust Companies and Savings Companies Act (chapter S-29.02), provided the contract concerns an immovable they hold or administer for others;

(6)  the spouse, child, father, mother, brother or sister of the owner of an immovable, provided the contract is entered into with the owner of the immovable and concerns that immovable; and

(7)  the sole shareholder of a legal person if the contract is entered into with the legal person.

2008, c. 9, s. 3; 2010, c. 40, s. 14; 2012, c. 11, s. 32; 2013, c. 18, s. 18; 2018, c. 23, s. 396.

3.1. “Brokerage transaction” means the actions taken in performing the obligations of the holder of a licence issued under this Act or of a special authorization issued by the Organization who is a party to a real estate brokerage contract as an intermediary even if the real estate brokerage contract does not require that the intermediary hold such a licence or authorization.

“Brokerage transaction” also includes the actions taken by such a licence holder with the intent to enter into a real estate brokerage contract as an intermediary.

2018, c. 23, s. 396.

CHAPTER II REAL ESTATE BROKERAGE

2008, c. 9, c. II; 2018, c. 23, s. 397.

DIVISION I REAL ESTATE BROKER’S LICENCE

2008, c. 9, Div. I; 2018, c. 23, s. 398.

4. A real estate broker’s licence authorizes its holder to be a party, as an intermediary, to a real estate brokerage contract, provided he or she personally performs his or her obligations under the contract, or to engage in a brokerage transaction for a real estate agency, personally or within a business corporation. The licence also authorizes its holder to hold himself or herself out as a real estate broker.

Only a natural person may hold a broker’s licence.

No broker’s licence holder who engages in a brokerage transaction through the intermediary of a person who is not a licence holder may claim or receive remuneration for the transaction.

2008, c. 9, s. 4; 2010, c. 40, s. 15; 2013, c. 18, s. 19; 2018, c. 23, s. 399.

5. A broker’s licence is issued to applicants who meet the requirements set out in this Act.

2008, c. 9, s. 5.

6. A broker’s licence holder must have an establishment in Québec. In the case of a broker’s licence holder who acts on behalf of an agency, his or her establishment is the agency’s establishment.

A notice of the address of the establishment and any change of address must be sent to the Organization.

2008, c. 9, s. 6; 2018, c. 23, s. 400.

7. (Repealed).

2008, c. 9, s. 7; 2018, c. 23, s. 401.

8. A broker’s licence holder must pay into the insurance fund the civil liability insurance premium determined by resolution of the Organization.

If no insurance fund has been established, he or she must take out civil liability insurance as specified in the Organization’s regulations or, in the cases prescribed in the Organization’s regulations, give security or a guarantee in lieu of security.

2008, c. 9, s. 8; 2018, c. 23, s. 402.

9. A broker’s licence is suspended by operation of law if its holder fails to comply with section 8.

The broker’s licence holder may, subject to the conditions prescribed in the Organization’s regulations, have the suspension lifted as soon as the broker is in compliance with section 8.

2008, c. 9, s. 9; 2018, c. 23, s. 403.

10. All money received by a broker’s licence holder in the course of his or her functions that does not belong to him or her must be deposited in a trust account as specified in the Organization’s regulations.

The interest earned on money held in trust that is not claimed by the person who is entitled to the interest must be paid to the Organization, as specified in the Organization’s regulations.

2008, c. 9, s. 10; 2018, c. 23, s. 404.

11. A broker’s licence holder may not, while acting on behalf of an agency, act on behalf of another agency or work on his or her own account.

A broker’s licence holder who acts on behalf of an agency must present himself or herself as such to the public.

2008, c. 9, s. 11; 2018, c. 23, s. 405.

12. A broker’s licence holder who represents an agency is solidarily liable for any prejudice caused by the breach of a brokerage contract.

2008, c. 9, s. 12; 2018, c. 23, s. 406.

DIVISION II REAL ESTATE AGENCY LICENCE

2008, c. 9, DIV. II; 2013, c. 18, s. 20; 2018, c. 23, s. 407.

13. A real estate agency licence authorizes its holder to be a party, as an intermediary, to a real estate brokerage contract, provided the licence holder causes the licence holder’s obligations under the contract to be performed by natural persons acting for the licence holder and that those persons hold a real estate broker’s licence. The licence also authorizes its holder to hold himself, herself or itself out as a real estate agency.

No real estate agency licence holder who engages in a brokerage transaction through the intermediary of a natural person who is not a licence holder may claim or receive remuneration for the transaction.

2008, c. 9, s. 13; 2013, c. 18, s. 21; 2018, c. 23, s. 408.

14. An agency licence is issued to the persons and partnerships that meet the requirements set out in this Act.

2008, c. 9, s. 14.

15. An agency licence holder must have an establishment in Québec.

A notice of the address of the licence holder’s principal establishment in Québec and any change of address must be sent to the Organization.

2008, c. 9, s. 15; 2018, c. 23, s. 409.

16. An agency licence holder must disclose to the Organization the names of the broker’s licence holders through whom the agency licence holder is acting and inform the Organization of any changes in this regard.

2008, c. 9, s. 16; 2018, c. 23, s. 410.

17. An agency licence holder must pay into the insurance fund the civil liability insurance premium determined by resolution of the Organization.

If no insurance fund has been established, the licence holder must take out civil liability insurance as specified in the Organization’s regulations or give security or a guarantee in lieu of security in the cases prescribed in the Organization’s regulations.

2008, c. 9, s. 17; 2018, c. 23, s. 411.

18. An agency licence holder is liable for any injury caused to a person or partnership by the fault of one of its broker’s licence holders in the performance of the broker’s functions.

The agency licence holder nevertheless has a right of action against the broker concerned.

2008, c. 9, s. 18; 2018, c. 23, s. 412.

19. An agency licence holder and, if applicable, its directors and executive officers must oversee the conduct of the broker’s licence holders who represent the agency licence holder and ensure that they comply with this Act.

2008, c. 9, s. 19; 2018, c. 23, s. 412.

20. An agency licence holder must ensure that the licence holder’s directors, executive officers and employees comply with this Act.

2008, c. 9, s. 20; 2018, c. 23, s. 413.

20.1. Only a broker’s licence holder who has carried on brokerage activities during the period determined by regulation of the Organization may be an executive officer of an agency licence holder.

2018, c. 23, s. 414.

DIVISION III DISCLOSURE, REPRESENTATION AND PUBLICITY

21. Licence holders and, if applicable, their directors and executive officers must act with honesty, loyalty and competence. They must also disclose any conflict of interest.

The rules governing the disclosure of conflicts of interest are set out in the Organization’s regulations.

2008, c. 9, s. 21; 2018, c. 23, s. 415.

22. Representations made by licence holders, and the real estate advertising and information they disseminate to the public for promotional purposes, must comply with the rules set out in the Organization’s regulations.

Those rules also apply to franchisers and to any person or partnership that promotes real estate brokerage services.

The Organization may also, by regulation, set out specific or supplementary rules to govern advertising by franchisers, franchisees and sub-franchisees.

2008, c. 9, s. 22; 2018, c. 23, s. 416.

DIVISION IV ACTIVITIES OF CERTAIN BROKER’S LICENCE HOLDERS

2010, c. 40, s. 16; 2018, c. 23, s. 417.

22.1. A broker’s licence holder acting on behalf of an agency may carry on brokerage activities, in accordance with the terms, conditions and rules set out in the Organization’s regulations, within a business corporation which he or she controls.

The business corporation is solidarily liable with the broker’s licence holder the performance of the obligations imposed by this Act and for any fault committed by him or her.

2010, c. 40, s. 16; 2018, c. 23, s. 418.

22.2. The civil liability insurance provided by an insurance fund to a broker’s licence holder who carries on brokerage activities within a business corporation must also designate the business corporation as an insured.

If no insurance fund exists, the civil liability insurance the broker’s licence holder must take out, or the security or guarantee in lieu of insurance the broker's licence holder must give, must also designate the business corporation as an insured.

2010, c. 40, s. 16; 2018, c. 23, s. 419.

22.3. A broker’s licence holder who carries on brokerage activities within a business corporation must ensure that its directors, executive officers and employees comply with this Act.

2010, c. 40, s. 16; 2018, c. 23, s. 420.

22.4. A broker’s licence holder may not invoke decisions or acts of the business corporation within which he or she carries on activities, or its status as a legal person, to justify a contravention of this Act or the regulations or to limit or exclude his or her personal responsibility.

2010, c. 40, s. 16; 2018, c. 23, s. 421.

22.5. Subject to special authorizations from the Organization, a broker’s licence holder acting on behalf of an agency may carry on brokerage activities in Québec within a business corporation constituted under an Act other than an Act of the Parliament of Québec if he or she meets all the other conditions prescribed in this chapter.

The personal liability of the broker’s licence holder, including that relating to the obligations of the corporation, continues to be governed by the laws of Québec for all matters concerning brokerage activities carried on in Québec, as if the corporation had been constituted under an Act of the Parliament of Québec.

2010, c. 40, s. 16; 2018, c. 23, s. 422.

22.6. The remuneration relating to the services provided by a broker’s licence holder while carrying on brokerage activities within a business corporation belongs to the corporation.

2010, c. 40, s. 16; 2018, c. 23, s. 423.

CHAPTER III CONTRACTS CONCERNING CERTAIN RESIDENTIAL IMMOVABLES

23. This chapter applies to real estate brokerage contracts concerning any of the following immovables:

(1)  part or all of a chiefly residential immovable comprising less than five dwellings; or

(2)  a fraction of a chiefly residential immovable that is subject to an agreement or declaration under articles 1009 to 1109 of the Civil Code.

2008, c. 9, s. 23; 2018, c. 23, s. 424.

24. The contract must be evidenced in writing on the mandatory form prepared by the Organization.

The contract is formed only when the parties have signed the form.

2008, c. 9, s. 24; 2018, c. 23, s. 425.

25. The licence holder must give a duplicate of the contract to the client.

The client is not bound to perform the client’s obligations under the contract before being in possession of a duplicate of the contract.

The contract may be a paper document or it may be on any medium that allows it to be printed and ensures its integrity.

2008, c. 9, s. 25; 2018, c. 23, s. 426.

26. The contract cannot be invalidated on the sole grounds that one of its provisions contravenes this chapter or that the mandatory form evidencing the contract has not been filled out.

2008, c. 9, s. 26; 2018, c. 23, s. 427.

27. An agreement requiring a client, for a specified period after a contract expires, to remunerate a licence holder even if the purchase, sale, lease or exchange of an immovable occurs after the contract expires, is without effect.

However, the first paragraph does not apply if the agreement provides for the remuneration of the licence holder when

(1)  the contract is stipulated as exclusive;

(2)  the sale, lease or exchange involves a person who was interested in the immovable while the contract was in force or, in the case of a contract with a view to purchasing or leasing an immovable, the client purchased or leased an immovable in which the client became interested through the broker’s licence holder while the contract was in force; and

(3)  the transaction occurs not more than 180 days after the contract expiry date and, during that period, the client did not enter into a contract stipulated as exclusive with another licence holder for the purchase, sale, lease or exchange of the immovable.

2008, c. 9, s. 27; 2013, c. 18, s. 22; 2018, c. 23, s. 428.

28. Despite any stipulation to the contrary, the client may terminate the contract at the client’s discretion within three days after receiving a duplicate of the contract signed by the two parties.

The contract is terminated by operation of law as of the sending or delivery of a written notice to the licence holder.

2008, c. 9, s. 28; 2018, c. 23, s. 429.

29. A licence holder may not claim any remuneration with regard to a contract terminated under section 28, unless a purchase, sale, lease or exchange meeting the conditions specified in section 27 occurs.

2008, c. 9, s. 29; 2018, c. 23, s. 430.

30. The client may not, by special agreement, waive the rights conferred by this chapter.

2008, c. 9, s. 30.

CHAPTER IV ORGANISME D’AUTORÉGLEMENTATION DU COURTAGE IMMOBILIER DU QUÉBEC

DIVISION I ESTABLISHMENT, MISSION AND POWERS

31. The Organisme d’autoréglementation du courtage immobilier du Québec is established.

The Organization is a legal person.

2008, c. 9, s. 31.

32. The Organization’s mission is to protect the public in real estate brokerage dealings by enforcing rules of professional conduct and by inspecting the affairs of licence holders. The Organization is in particular to ensure that brokerage transactions are compliant with the law.

It may also dispense training courses for broker’s licence holders and executive officers of agency licence holders, with the exception of basic training courses, and award the titles referred to in section 48.

2008, c. 9, s. 32; 2018, c. 23, s. 431.

33. The Minister may ask the Organization to take specified guidelines and objectives into account in the pursuit of its mission.

The Minister may require the Organization to give its opinion on any question the Minister submits to it concerning matters under its jurisdiction.

The Minister may also require the Organization to amend its internal by-laws as directed by the Minister.

2008, c. 9, s. 33.

34. The Organization may act as conciliator or mediator in disputes between a licence holder and a client, if the parties so request.

The Organization may also arbitrate when reconciliation or mediation fails, if the parties so request.

The Organization may establish an arbitration committee and delegate its functions and powers under the second paragraph to the committee.

The committee’s operating and decision-making rules are to be determined by regulation of the Organization.

2008, c. 9, s. 34; 2013, c. 18, s. 23; 2018, c. 23, s. 432.

35. The Organization may, by an application, apply to a judge of the Superior Court for an injunction in respect of any matter relating to this Act, including an injunction to stop the dissemination of non-compliant advertising and compel the advertiser to rectify it, within the time and in the manner determined by the Court.

An application for an injunction constitutes a proceeding in itself.

The rules set out in the Code of Civil Procedure (chapter C-25.01) apply to such a proceeding, except that the Organization is not required to give security.

2008, c. 9, s. 35; I.N. 2016-01-01 (NCCP).

36. The Organization may make a search in accordance with the Code of Penal Procedure (chapter C-25.1).

2008, c. 9, s. 36.

37. The Organization may refuse to issue a licence or may impose restrictions or conditions on a licence

(1)  if the applicant’s licence has previously been revoked, suspended or made subject to restrictions or conditions by the discipline committee, by a body in Québec responsible for overseeing and monitoring real estate brokerage, or by such a body in another province or State;

(2)  if the applicant has made an assignment of property or been placed under a receiving order pursuant to the Bankruptcy and Insolvency Act (R.S.C. 1985, c. B-3);

(3)  if the applicant has previously been convicted, by a court, of an offence or an indictable offence which, in the Organization’s opinion, is related to brokerage transactions, or has pleaded guilty to such an offence; or

(4)  if the applicant has been assigned a tutor, curator or adviser.

2008, c. 9, s. 37; 2013, c. 18, s. 24; 2018, c. 23, s. 433.

38. The Organization may suspend, revoke, or impose restrictions or conditions on a licence if the licence holder or, in the case of a broker’s licence holder, the business corporation within which he or she carries on brokerage activities,

(1)  has previously had a licence revoked, suspended or made subject to restrictions or conditions by the discipline committee, by a body in Québec responsible for overseeing and monitoring real estate brokerage, or by such a body in another province or State;

(2)  has made an assignment of property or been placed under a receiving order pursuant to the Bankruptcy and Insolvency Act (R.S.C., 1985, c. B-3);

(3)  has previously been convicted by a court of law of an offence or an indictable offence which, in the Organization’s opinion, is related to brokerage transactions, or has pleaded guilty to such an offence; or

(4)  has been assigned a tutor, curator or adviser.

2008, c. 9, s. 38; 2010, c. 40, s. 17; 2013, c. 18, s. 25; 2018, c. 23, s. 434.

38.1. The Organization may require from the applicant or the licence holder any information or document it considers necessary for the purposes of sections 37 and 38. If the applicant or licence holder fails to provide such information or document, the Organization may refuse to examine the application or may suspend the licence, as applicable, until the required document or information has been provided.

2013, c. 18, s. 26.

39. The Organization informs the syndic of any decision under section 38 and the decision serves as a notice under section 84. A decision made under paragraph 3 of section 38 is valid

(1)  until the syndic or assistant syndic decides not to file a complaint; or

(2)  until the discipline committee renders a final, enforceable decision on a complaint filed by the syndic or assistant syndic.

A decision of the Organization under section 38 must be served immediately on the licence holder in accordance with the Code of Civil Procedure (chapter C-25.01).

2008, c. 9, s. 39; I.N. 2016-01-01 (NCCP); 2018, c. 23, s. 435.

40. (Repealed).

2008, c. 9, s. 40; 2009, c. 58, s. 140.

41. For the purposes of sections 37 and 38, the Organization serves notice on the applicant or the licence holder, at least 15 days in advance of the date on which the applicant or the licence holder may submit its observations. The allegations against the applicant or the licence holder are set out in the notice.

2008, c. 9, s. 41; 2009, c. 58, s. 141.

42. The Organization may delegate its functions and powers under sections 37 to 39 and 41 to a committee.

The operating and decision-making rules of such a committee are to be determined by regulation of the Organization.

2008, c. 9, s. 42; 2009, c. 58, s. 142.

43. Any appeal from a decision made under section 37 or 38 or from a decision to suspend a licence made under section 38.1 is brought before the Court of Québec, in accordance with subdivision 1 of Division VIII of Chapter IV of the Professional Code (chapter C-26), with the necessary modifications. Any reference to the secretary of the board of directors or of the executive committee in the Professional Code must be understood as a reference to the Organization within the meaning of this Act.

An appeal does not suspend the contested decision unless a judge of the Court of Québec decides otherwise.

2008, c. 9, s. 43; 2009, c. 58, s. 143; 2013, c. 18, s. 27; 2018, c. 23, s. 436.

44. (Repealed).

2008, c. 9, s. 44; 2013, c. 18, s. 28.

44.1. Decisions of the Organization to suspend or revoke a licence or to impose conditions or restrictions on a licence must be made public according to the terms and conditions prescribed by regulation.

2009, c. 58, s. 144.

45. The Organization may, after informing the Minister, negotiate and enter into an agreement in connection with its mission with any person or body, including a government or a government department or body.

However, if the person or body is outside Québec, the agreement is subject to the Act respecting the Ministère du Conseil exécutif (chapter M-30) or the Act respecting the Ministère des Relations internationales (chapter M-25.1.1), as the case may be.

The Minister or the Government, as the case may be, may terminate, or require the modification of, any agreement entered into by the Organization, after giving the Organization an opportunity to submit observations.

2008, c. 9, s. 45.

46. In addition to its regulatory powers under this Act, the Organization may determine, by regulation,

(1)  rules governing the training required to become a broker’s licence holder or an executive officer of an agency licence holder and the examination to be taken by prospective brokers or executive officers;

(2)  rules governing continuing or additional training, including the specific circumstances under which such training is compulsory for all or some of the broker’s licence holders or of the executive officers of agency licence holders;

(3)  the terms and conditions governing the issue, suspension or revocation of a licence, and the cases in which restrictions or conditions may be imposed on a licence;

(4)  the licence fees to be paid;

(5)  the rules of professional conduct applicable to broker’s licence holders or executive officers of agency licence holders;

(6)  the information and documents to be provided by a prospective broker or executive officer or by a licence holder;

(7)  the particulars a licence must contain;

(8)  the requirements to be met in order to engage in a brokerage transaction described in section 3.1;

(9)  the nature, form and tenor of the records, books and registers that must be kept by licence holders, as well as rules for the preservation, use and destruction of records, books and registers;

(10)  rules for opening and maintaining a trust account, as well as the terms and conditions governing deposits and withdrawals;

(10.1)  what measures may be taken to safeguard money entrusted to a licence holder or held in trust, and who may take such measures;

(11)  the real estate brokerage contracts to which, on an ad hoc basis or occasionally, persons, partnerships or groups of persons or partnerships, other than licence holders, may be parties as intermediaries following a special authorization, the terms and conditions applicable to the resulting brokerage transactions and the fees chargeable for such transactions;

(12)  the qualifications required of executive officers of an agency licence holder;

(13)  (paragraph repealed);

(14)  the activities that licence holders may not engage in;

(15)  the terms and conditions governing the eligibility of claims submitted to the indemnity committee and the payment of indemnities;

(16)  the maximum amount of indemnities that may be paid with regard to the same claim; and

(17)  the contributions that must be paid by licence holders to the Organization for payment into the Real Estate Indemnity Fund, according to the licence they hold and the date of their registration with the Organization, as well as the terms of payment for those contributions.

2008, c. 9, s. 46; 2009, c. 58, s. 145; 2013, c. 18, s. 29; 2018, c. 23, s. 437.

47. (Repealed).

2008, c. 9, s. 47; 2018, c. 23, s. 438.

48. The Organization may determine, by regulation, the specialist titles a broker’s licence holder may use and the terms and conditions governing the conferral and withdrawal of those titles.

2008, c. 9, s. 48; 2018, c. 23, s. 439.

49. The Organization may, for the purposes of any regulation, establish special or supplementary rules for licence holders.

2008, c. 9, s. 49; 2013, c. 18, s. 30; 2018, c. 23, s. 440.

49.1. The Organization may, by regulation, require that persons it identifies take an oath of discretion, and determine the form of the oath. However, the oath is not to be construed as prohibiting the sharing of information or documents within the Organization for the protection of the public.

2013, c. 18, s. 31.

50. Sixty days after serving on the Organization a formal notice enjoining it to adopt regulations as provided in this Act, the Government may exercise that regulatory power itself.

Such regulations are deemed to be regulations of the Organization.

2008, c. 9, s. 50.

51. (Repealed).

2008, c. 9, s. 51; 2018, c. 23, s. 441.

52. If the Autorité des marchés financiers grants an authorization to the Organization in accordance with section 41 of the Insurers Act (chapter A-32.1), the Organization may establish an insurance fund and administer it in accordance with that Act and require licence holders to subscribe to it.

The Organization determines, by resolution, the tariff of rates and amounts of the premiums broker’s or agency licence holders must pay.

2008, c. 9, s. 52; 2010, c. 40, s. 19; 2018, c. 23, s. 442.

53. The Organization may not communicate information about an insured person except for the purposes for which the fund was established.

2008, c. 9, s. 53; 2018, c. 23, s. 443.

53.1. The professional liability insurance decision-making committee that the Organization must establish, under section 354 of the Insurers Act (chapter A-32.1), when establishing an insurance fund must notify the syndic immediately if it has reasonable grounds to believe that an offence under this Act has been committed.

The same applies to a member of the decision-making committee.

2018, c. 23, s. 444.

DIVISION II OPERATION

54. The Organization adopts and brings into force internal by-laws establishing its operating rules.

2008, c. 9, s. 54; 2013, c. 18, s. 32; 2018, c. 23, s. 445.

55. The Organization has its head office in Québec at the place specified in its internal by-laws.

A notice of the address of the Organization’s head office and any change of address is published in the Gazette officielle du Québec.

2008, c. 9, s. 55.

56. (Repealed).

2008, c. 9, s. 56; 2018, c. 23, s. 446.

57. The affairs of the Organization are administered by a board consisting of 12 directors appointed or elected for a term of three years.

Directors may not hold office for more than 10 years, whether consecutively or otherwise.

2008, c. 9, s. 57; 2013, c. 18, s. 33; 2018, c. 23, s. 447.

58. After consulting the Organization, the Minister appoints six directors who are neither broker’s licence holders nor directors or executive officers of agency licence holders.

The licence holders elect from among their number the other directors of the board; three of the directors must engage mainly in brokerage transactions relating to the contracts referred to in section 23 and the three others must engage mainly in other brokerage transactions. The internal by-laws must prescribe the rules applicable to the election of the directors.

A person may not be appointed or elected a director or remain a director if the person is or becomes a director or executive officer of an association or enterprise whose purpose is to defend the interests of licence holders or franchisers.

A director may not hold any other remunerated position with the Organization.

2008, c. 9, s. 58; 2010, c. 40, s. 20; 2013, c. 18, s. 34; 2018, c. 23, s. 448.

58.1. The members of the board of directors designate, in the manner prescribed in the internal by-laws, a chair from among the members appointed by the Minister.

2018, c. 23, s. 449.

59. At the end of their term, directors remain in office until they are replaced, re-appointed or re-elected.

2008, c. 9, s. 59.

59.1. A vacancy among the directors appointed by the Minister is filled by the Minister; a vacancy among the other directors is filled by the board of directors.

A director who is appointed or elected to fill a vacancy holds office for the unexpired portion of his or her predecessor’s term.

2018, c. 23, s. 450.

59.2. A member’s absence from the number of board meetings determined by the Organization’s internal by-laws constitutes a vacancy, in the cases and circumstances they specify.

2018, c. 23, s. 450.

60. A director who has a direct or indirect interest in an enterprise that places the director’s personal interest in conflict with the Organization’s interest must, on pain of forfeiture of office, disclose that personal interest and abstain from participating in any decision involving the enterprise. The director must also withdraw from a meeting for the duration of discussions on the matter.

2008, c. 9, s. 60.

61. The Organization is subject to the Act respecting Access to documents held by public bodies and the Protection of personal information (chapter A-2.1).

However, the Act respecting the protection of personal information in the private sector (chapter P-39.1) applies to personal information held by a liability insurance fund established in accordance with section 52.

2008, c. 9, s. 61; 2018, c. 23, s. 451.

DIVISION III FINANCIAL PROVISIONS AND DOCUMENTS

62. The Organization’s activities are financed out of the licence fees paid by licence holders under paragraph 4 of section 46 and the other amounts payable to the Organization under this Act.

2008, c. 9, s. 62.

63. The Organization keeps a register of licence holders.

The register must contain the name of each broker’s licence holder, the titles he or she may use, the address where he or she carries on brokerage activities and, if applicable, the name of the agency licence holder that he or she represents, a statement that he or she carries on brokerage activities within a business corporation, the name of the business corporation and any restrictions or conditions on his or her licence.

The register must contain the name of each agency licence holder, the address of the agency licence holder’s head office, the restrictions or conditions on the agency licence holder’s licence, and the names of the broker’s licence holders through whose intermediary the agency licence holder carries on activities.

The register must also contain any other information the Organization considers appropriate.

2008, c. 9, s. 63; 2010, c. 40, s. 21; 2018, c. 23, s. 452.

64. The Organization must have its books and accounts audited by an auditor every year.

If the Organization fails to do so, the Minister may have the audit conducted and may, for that purpose, designate an auditor whose remuneration is borne by the Organization.

2008, c. 9, s. 64.

65. The auditor has access to all the Organization’s books, registers, accounts, other accounting records and vouchers. Any person having custody of such documents must facilitate their examination by the auditor.

The auditor may require the information and documents needed to conduct the audit from the Organization’s directors, executive officers, mandataries or employees.

2008, c. 9, s. 65.

66. The auditor may require a meeting of the board of directors on any matter related to the audit.

2008, c. 9, s. 66.

67. The fiscal year of the Organization ends on 31 December.

2008, c. 9, s. 67.

68. Within four months after the end of its fiscal year, the Organization sends the Minister its annual report showing its financial position and activities for the preceding fiscal year.

The report must contain any other information required by the Minister. The auditor’s report must be attached.

The report is laid before the National Assembly by the Minister within 30 days after receiving it or, if the Assembly is not sitting, within 30 days after resumption.

2008, c. 9, s. 68; 2018, c. 23, s. 456.

69. The Organization must send the Minister, on request, any statements, statistical data, reports, documents or other information the Minister considers appropriate for the purposes of this Act, in the form and on the dates specified by the Minister.

2008, c. 9, s. 69.

CHAPTER V ASSISTANCE, INSPECTION, DISCIPLINE AND COMPENSATION

DIVISION I ASSISTANCE SERVICE

70. An assistance service is set up within the Organization.

The role of the assistance service is, among other things, to provide a first examination of any request addressed to the Organization, to decide how requests should be handled and to assist anyone in presenting a request.

The service exercises the Organization’s power under the first paragraph of section 34.

2008, c. 9, s. 70; 2013, c. 18, s. 35.

71. The assistance service must notify the syndic immediately if it has reasonable grounds to believe that an offence under this Act has been committed.

2008, c. 9, s. 71.

72. The assistance service must inform the initiator of a request that, if not satisfied with how the request has been settled, the initiator may request that the assistance service forward the request to the syndic.

2008, c. 9, s. 72.

DIVISION II INSPECTION COMMITTEE

73. An inspection committee is appointed within the Organization.

2008, c. 9, s. 73.

74. The role of the inspection committee is to oversee the activities of licence holders, in particular by auditing their records, accounts, books and registers and, if applicable, those of business corporations within which broker’s licence holders carry on brokerage activities.

2008, c. 9, s. 74; 2010, c. 40, s. 22; 2018, c. 23, s. 457.

75. The inspection committee may make any recommendation it considers appropriate to a licence holder that has been inspected.

If the committee notes that an offence under this Act has been committed, it must notify the syndic.

The committee may also require a broker’s licence holder or an executive officer of an agency licence holder to successfully complete a course or to take any other training program. The broker’s licence holder or executive officer may request that this decision be reviewed by the Organization’s board of directors.

2008, c. 9, s. 75; 2018, c. 23, s. 458.

76. The inspection committee’s operating rules are set out in the Organization’s regulations.

2008, c. 9, s. 76; 2009, c. 58, s. 146.

77. An inspection may be conducted on the Organization’s request or on the inspection committee’s own initiative.

2008, c. 9, s. 77.

78. A person conducting an inspection under this division may

(1)  enter the establishment of the licence holder concerned, or, if applicable, the establishment of the business corporation within which the broker’s licence holder carries on brokerage activities, at any reasonable hour;

(2)  examine and make copies of the books, registers, accounts, records and other documents relating to the licence holder’s activities; and

(3)  require any information or document relating to the carrying out of this Act.

A person having custody, possession or control of the books, registers, accounts, records and other documents must, on request, make them available to the person conducting the inspection and facilitate their examination, regardless of the storage medium and the means by which they may be accessed.

2008, c. 9, s. 78; 2010, c. 40, s. 23; 2018, c. 23, s. 459.

79. A person conducting an inspection must, on request, provide identification and produce a certificate of authority signed by the secretary of the Organization.

2008, c. 9, s. 79.

80. No one may hinder the work of or mislead a person conducting an inspection.

2008, c. 9, s. 80.

81. The inspection committee must submit an annual report to the Organization, on the date and in the form the Organization determines.

2008, c. 9, s. 81.

DIVISION III SYNDIC

82. The Organization appoints a syndic and, if necessary, one or more assistant syndics.

The rules for appointing the syndic and assistant syndics and any replacements are set out in the Organization’s regulations.

2008, c. 9, s. 82.

83. Assistant syndics exercise their functions under the direction of the syndic and have all the powers of the syndic.

2008, c. 9, s. 83.

83.1. The Organization appoints one or more ad hoc syndics on the suggestion of the review committee.

Within the given mandate, an ad hoc syndic has the rights, powers and obligations of a syndic, but does not have authority over an assistant syndic.

The Organization must take steps to preserve the independence of an ad hoc syndic at all times.

2013, c. 18, s. 36.

84. The role of the syndic is to investigate any alleged contravention of this Act by a licence holder and, if applicable, a director or executive officer of the licence holder. The syndic may retain the services of any person needed to carry out an investigation.

A syndic who has grounds to believe that an offence under this Act has been committed by a licence holder and, if applicable, a director or executive officer of the licence holder, investigates the matter and, if warranted, files a complaint with the discipline committee. The complaint may also require a provisional measure.

2008, c. 9, s. 84; 2009, c. 58, s. 147; 2013, c. 18, s. 37; 2018, c. 23, s. 460.

85. When a person has requested an investigation into the conduct of a broker’s licence holder, the syndic informs the person in writing, within a reasonable time, of the syndic’s decision to file or not to file a complaint with the discipline committee as a result of the request; if the decision is not to file a complaint, the syndic must include reasons.

If a complaint is filed, the syndic must, on request, send the discipline committee’s decision to the person or inform the person of the decision; the person is bound by any order banning publication or release that may be included in the decision.

2008, c. 9, s. 85; 2018, c. 23, s. 461.

86. A complaint may be filed against a person or partnership that no longer holds a broker’s or agency licence if, at the time of the alleged offence, the person or partnership did hold such a licence.

2008, c. 9, s. 86.

87. The syndic submits an annual report to the Organization, on the date and in the form the Organization determines.

2008, c. 9, s. 87.

88. The syndic or an assistant syndic may, by way of a complaint, seize the discipline committee of any decision finding a broker’s licence holder, the business corporation within which he or she carries on brokerage activities or an agency licence holder guilty of an offence or an indictable offence which, in the syndic’s or assistant syndic’s opinion, is related to the licence holder’s activities. The syndic or assistant syndic may also seize the discipline committee, by the same means, of any guilty plea in relation to such an offence. A duly certified copy of the judicial decision is proof before the discipline committee that the offence was committed and that any facts reported in the decision are true. If the discipline committee considers that a penalty is warranted, the discipline committee imposes on the licence holder one of the penalties prescribed by section 98.

2008, c. 9, s. 88; 2010, c. 40, s. 24; 2013, c. 18, s. 38; 2018, c. 23, s. 462.

89. Sections 78 to 80 apply to a syndic, assistant syndic and ad hoc syndic when conducting an investigation.

The syndic, assistant syndics and ad hoc syndics have the powers and immunity of commissioners appointed under the Act respecting public inquiry commissions (chapter C-37), except the power to order imprisonment.

2008, c. 9, s. 89; 2013, c. 18, s. 39.

DIVISION IV SYNDIC DECISION REVIEW COMMITTEE

90. A syndic decision review committee is appointed within the Organization.

The review committee’s operating rules, including those applicable to its decision-making process, are set out in the Organization’s regulations.

2008, c. 9, s. 90.

91. A person who requested an investigation by the syndic may, within 30 days after being informed in writing of the syndic’s decision not to file a complaint with the discipline committee, request a ruling from the review committee.

Within 90 days after receiving a request under the first paragraph, the review committee makes its ruling in writing after considering the entire record and all the evidence, which must be forwarded by the syndic, and after hearing both the syndic and the person who requested the investigation.

2008, c. 9, s. 91.

92. In its ruling, the review committee must make one of the following decisions:

(1)  find that there is no cause to file a complaint with the discipline committee;

(2)  suggest that the syndic complete the investigation and subsequently make a new ruling as to whether or not to file a complaint; or

(3)  find that there is cause to file a complaint with the discipline committee and suggest that an ad hoc syndic be appointed who, after investigation, if one is necessary, will decide whether or not to file a complaint.

The review committee may also suggest that the syndic refer the case to the inspection committee.

If the review committee suggests that the syndic complete the investigation or finds that there is cause to file a complaint with the discipline committee, the Organization must reimburse any fees charged to the person who requested the investigation.

The review committee must send its ruling to the person who requested the investigation and to the syndic without delay.

2008, c. 9, s. 92; 2013, c. 18, s. 40; 2018, c. 23, s. 463.

92.1. An ad hoc syndic’s decision to file or not to file a complaint under subparagraph 3 of the first paragraph of section 92 may not be submitted to the review committee for a ruling.

2018, c. 23, s. 464.

DIVISION V DISCIPLINE COMMITTEE

93. A discipline committee is appointed within the Organization.

The discipline committee is seized of any complaint filed by the syndic against a broker’s licence holder or agency licence holder, including, in the latter case, a director or an executive officer of the licence holder, for an offence under this Act. A complaint may include two or more counts.

2008, c. 9, s. 93; 2018, c. 23, s. 465.

94. The discipline committee is composed of three or more members.

The chair and vice-chairs are appointed by the Minister, after consultation with the Barreau du Québec, from among advocates who have been practising for at least 10 years.

The other committee members are appointed by the board of directors from among broker’s licence holders.

The term of office of the members appointed by the Minister is not more than five years and that of the other members is three years; the terms of office are renewable.

2008, c. 9, s. 94; 2018, c. 23, s. 466.

95. The discipline committee’s operating rules including those applicable to the filing and hearing of complaints and those applicable to its decision-making process, such as the imposition of provisional measures are set out in the Organization’s regulations.

A person who, by act or omission, infringes an in-camera, no-access, non-publication or non-release order made by the discipline committee is guilty of contempt of court.

Any proceedings before the discipline committee are public. Anyone may attend committee hearings wherever they are held, and have access to the committee’s records.

The discipline committee may make an exception to the principle of open proceedings if, in its opinion, public order requires that the hearing be held in camera, that access to a document or the disclosure or release of information or documents specified by the committee be prohibited or restricted, or that the anonymity of the persons involved be protected.

2008, c. 9, s. 95; 2009, c. 58, s. 148; 2018, c. 23, s. 467.

96. When a licence holder has ceased to hold a licence, the disciplinary process may nevertheless be initiated; if it has already been initiated, it is not interrupted.

2008, c. 9, s. 96; 2018, c. 23, s. 468.

97. The members of the discipline committee have the powers and immunity of commissioners appointed under the Act respecting public inquiry commissions (chapter C-37), except the power to order imprisonment.

They have all the powers of the Superior Court to compel witnesses to appear and answer, and to punish them if they refuse; for such purposes, the respondent is deemed to be a witness. The discipline committee has jurisdiction to the exclusion of any court, in first instance.

2008, c. 9, s. 97; 2009, c. 58, s. 149.

98. The discipline committee renders a decision on each count contained in the complaint. If it finds the licence holder, including, in the case of an agency licence holder, a director or executive officer of the agency licence holder, guilty of an offence under this Act, the discipline committee, after giving them the opportunity to present their case, imposes one or more of the following penalties:

(1)  a reprimand;

(2)  suspension or revocation of the licence holder’s licence, or the imposition of restrictions or conditions on the licence;

(3)  a fine of not less than $2,000 nor more than $50,000 for each count, which maximum and minimum amounts are doubled for a second or subsequent offence;

(4)  remittal to any person or partnership of a sum of money the licence holder is holding for that person or partnership;

(5)  the surrender of any document or information;

(6)  the obligation to complete, destroy or delete, update or rectify any document or information; or

(7)  the obligation to successfully complete a course or to take any other training program.

When a licence holder is found guilty of having appropriated, without entitlement, sums of money or other assets held by the licence holder for others, or of having used such sums of money or assets for purposes other than those for which they were entrusted to the licence holder, the discipline committee imposes on the licence holder at least the licence suspension prescribed by subparagraph 2 of the first paragraph.

Each day during which the offence continues constitutes a separate offence, and the discipline committee may impose for each of those separate offences the fine prescribed by subparagraph 3 of the first paragraph.

The discipline committee’s decision to impose one or more penalties may include terms and conditions. The decision may also prescribe that penalties apply consecutively.

In determining the amount of a fine, the discipline committee considers such factors as the injury suffered as a result of and the benefits derived from the offence.

2008, c. 9, s. 98; 2009, c. 58, s. 150; 2018, c. 23, s. 469.

98.1. The discipline committee must, on rendering a decision to suspend, revoke or impose restrictions or conditions on a licence, decide whether or not it will publish a notice of the decision in the newspaper it considers most likely to be read by the licence holder’s clientele. If the discipline committee orders the publication of such a notice, it must, in addition, decide whether the publication costs are to be paid by the licence holder, by the Organization, or divided as specified between the licence holder and the Organization.

The notice must include the name of the licence holder concerned, the location of the establishment, the date and nature of the offence, or, if the decision imposes a provisional measure, the date and nature of the facts underlying the charge and the date and summary of the decision.

A decision of the discipline committee ordering the licence holder to pay costs, imposing a fine on the licence holder, or ordering the licence holder, the agency or the Organization to pay the publication costs referred to in the first paragraph may, if not complied with, be homologated by the Superior Court or the Court of Québec, according to their respective jurisdictions, and becomes enforceable as a judgment of that Court.

2009, c. 58, s. 151; 2013, c. 18, s. 41; 2018, c. 23, s. 470.

99. The discipline committee has its decisions served on the parties in accordance with the Code of Civil Procedure (chapter C-25.01) within 10 days.

However, a decision rendered in the presence of one of the parties is deemed to be served on that party in accordance with the first paragraph as soon as it is rendered.

2008, c. 9, s. 99; I.N. 2016-01-01 (NCCP).

100. Any appeal from a decision made by the discipline committee is brought before the Court of Québec in accordance with subdivision 5 of Division VII of Chapter IV of the Professional Code (chapter C-26), with the necessary modifications.

2008, c. 9, s. 100.

101. A decision of the discipline committee to impose one or more penalties prescribed by the first paragraph of section 98 is enforceable, as specified in the decision, on expiry of the appeal period, unless the discipline committee orders provisional enforcement of the decision on its being served on the broker or agency concerned.

However, a decision of the discipline committee to revoke a licence is enforceable on being served on the broker or agency concerned.

A decision of the discipline committee under the first paragraph of section 98.1 is enforceable on expiry of the appeal period or, in the case of an appeal from a decision to suspend a licence under subparagraph 2 of the first paragraph of section 98, on service of the final decision of the Court of Québec imposing one or more penalties.

The discipline committee may order that a decision referred to in the first or third paragraph be enforceable at a time other than that specified in those paragraphs.

The discipline committee may at any time rectify a decision so long as it has not become enforceable, unless it is being appealed.

2008, c. 9, s. 101; 2009, c. 58, s. 152; 2013, c. 18, s. 42.

102. A licence holder fined by the discipline committee must pay the fine to the Organization.

2008, c. 9, s. 102; 2018, c. 23, s. 471.

103. If a decision of the discipline committee orders a licence holder to remit a sum of money in accordance with subparagraph 4 of the first paragraph of section 98, the discipline committee must inform the person or partnership concerned within six days.

The licence is automatically suspended from the date on which the sum of money determined by the discipline committee is due to the time the licence holder remits the amount to the person or partnership, including principal, interest and costs.

2008, c. 9, s. 103; 2018, c. 23, s. 472.

104. The holder of a licence that has been suspended or made subject to restrictions or conditions by the discipline committee may petition the discipline committee, before the expiry of the penalty, to have the suspension or the restrictions or conditions lifted. The syndic may contest the petition; the licence holder must serve the petition on the syndic, in accordance with the Code of Civil Procedure (chapter C-25.01), at least 10 days before it is to be presented.

If the discipline committee is of the opinion that the petition should be granted, it makes a recommendation to that effect to the Organization. If the discipline committee dismisses the petition, no new petition may be submitted before the expiry of the penalty unless the discipline committee so authorizes. A decision of the discipline committee under this section may not be appealed.

2008, c. 9, s. 104; 2018, c. 23, s. 473.

DIVISION VI INDEMNITY COMMITTEE

105. An indemnity committee is appointed within the Organization.

2008, c. 9, s. 105.

106. The indemnity committee rules on the eligibility of claims submitted to it and decides the amount of the indemnities to be paid, in accordance with the rules set out in the Organization’s regulations.

It may rule on the eligibility of a claim whether or not the broker or agency responsible has been prosecuted or convicted.

2008, c. 9, s. 106.

107. The operating rules of the indemnity committee, including those applicable to its decision-making process, are set out in the Organization’s regulations.

2008, c. 9, s. 107; 2009, c. 58, s. 153.

DIVISION VII REAL ESTATE INDEMNITY FUND

108. The Real Estate Indemnity Fund is established.

The Fund is dedicated to the payment of indemnities to victims of fraud, fraudulent tactics or misappropriation of funds for which a licence holder is responsible.

2008, c. 9, s. 108; 2018, c. 23, s. 474.

109. The Real Estate Indemnity Fund is made up of the contributions paid by licence holders in accordance with the Organization’s regulations, the fines imposed by the discipline committee less the costs relating to the disciplinary process, the money recovered by way of subrogation from a licence holder, the interest earned on the money in the Fund and any increase in the assets of the Fund.

Any insufficiency of assets is to be offset by a loan contracted by the Organization. The loan must be repaid out of the Fund.

Moreover, the Organization may determine the contribution so as to offset an insufficiency.

2008, c. 9, s. 109; 2018, c. 23, s. 475.

110. The Real Estate Indemnity Fund is managed by the Organization. The Organization keeps separate books for the money in the Fund; the costs incurred for the administration and operation of the Fund are paid out of that money.

The assets of the Fund are not part of the Organization’s assets and may not be used to perform the Organization’s obligations.

2008, c. 9, s. 110.

111. The Organization compensates victims in accordance with the decisions of the indemnity committee.

2008, c. 9, s. 111.

112. The Organization is subrogated in all the rights of a victim it compensates, up to the amount of the indemnities paid. Prescription begins to run against the Organization from the day the indemnities are paid. Any money recovered is paid into the Fund.

2008, c. 9, s. 112; 2013, c. 18, s. 43.

CHAPTER VI OVERSIGHT OF THE ORGANIZATION

2008, c. 9, c. VI; 2018, c. 23, s. 476.

113. The Minister conducts or orders an inspection of the affairs of the Organization whenever the Minister considers it appropriate for the carrying out of this Act.

2008, c. 9, s. 113; 2013, c. 18, s. 44.

114. A person conducting an inspection may, for the purposes of the inspection,

(1)  enter the head office of the Organization at any reasonable hour;

(2)  examine and make copies of the books, registers, accounts, records and other documents relating to the activities of the Organization; and

(3)  require any information or document relating to the carrying out of this Act.

A person having custody, possession or control of the books, registers, accounts, records and other documents must, on request, make them available to the person conducting the inspection and facilitate their examination by that person.

2008, c. 9, s. 114.

115. A person conducting an inspection must, on request, provide identification and produce a certificate of authority signed by the Minister.

2008, c. 9, s. 115.

116. No one may hinder the work of or mislead a person conducting an inspection.

2008, c. 9, s. 116.

117. If, in the Minister’s opinion, it is necessary in the public interest, the Minister may order an investigation into any matter within the Minister’s purview.

The Minister and any person the Minister authorizes in writing have the powers and immunity of commissioners appointed under the Act respecting public inquiry commissions (chapter C-37), except the power to order imprisonment.

2008, c. 9, s. 117.

118. If, in the Minister’s opinion, the Organization is engaged in a course of action contrary to this Act, the Minister may order it to alter its course of action and remedy the situation.

2008, c. 9, s. 118.

119. The Minister’s order must include reasons and be sent to the Organization with a prior notice of at least 15 days to allow it to submit observations. The order becomes enforceable on its date of service or on any later date specified in the order.

2008, c. 9, s. 119.

120. The Minister may, without prior notice, issue a provisional order valid for a period of not more than 15 days if, in the Minister’s opinion, any time granted the Organization to submit observations may undermine the public interest.

The order must include reasons and becomes enforceable on its date of service. The Organization may submit observations to the Minister within six days after receiving the order.

2008, c. 9, s. 120.

121. The Minister may revoke an order issued under this chapter.

2008, c. 9, s. 121.

122. The Minister may, by an application, apply to a judge of the Superior Court for an injunction in respect of any matter relating to this Act.

An application for an injunction constitutes a proceeding in itself.

The rules set out in the Code of Civil Procedure (chapter C-25.01) apply to such a proceeding, except that the Minister is not required to give security.

2008, c. 9, s. 122; I.N. 2016-01-01 (NCCP).

123. If the Organization fails to exercise its responsibilities under this Act, or acts in such a manner that the public is not protected or the requirements set out in this Act are not met, the Minister may exercise all or part of the powers held by the Organization and prohibit the Organization from exercising those powers to the extent and for the period determined by the Minister.

Before making such a decision, the Minister must notify the Organization and give it an opportunity to submit observations. The Organization may appeal to the Superior Court from the Minister’s decision within 30 days.

2008, c. 9, s. 123.

CHAPTER VII PENAL PROVISIONS

124. Any person who

(1)  contravenes section 2.1, or

(2)  without holding the licence required by law, in any manner whatsoever, enters into a real estate brokerage contract, claims to have the right to enter into such a contract, or acts in such a way as to lead others to believe that the person is authorized to enter into such a contract, subject to sections 2 and 3 and to special authorizations granted by the Organization,

is guilty of an offence.

For the purposes of subparagraph 2 of the first paragraph, if the prosecuting party proves that the defendant was a party to a real estate brokerage contract as an intermediary, the defendant is presumed to have bound himself, herself or itself in exchange for remuneration.

2008, c. 9, s. 124; 2018, c. 23, s. 477.

125. The following are guilty of an offence and are liable to a fine of not less than $2,500 nor more than $62,500 in the case of natural persons and to a fine of not less than $5,000 nor more than $125,000 in other cases:

(1)  an agency licence holder or a director or executive officer of the agency licence holder who, in contravention of section 19, neglects or fails to oversee the conduct of the broker’s licence holders who represent the agency licence holder or to ensure that they comply with this Act;

(2)  an agency licence holder who, in contravention of section 20, neglects or fails to ensure that the licence holder’s directors, executive officers and employees comply with this Act;

(3)  a broker’s licence holder who, in exercising brokerage activities within a business corporation, neglects or fails, in contravention of section 22.3, to ensure that its directors, executive officers and employees comply with this Act; and

(4)  anyone who contravenes any of sections 80, 116 and 124.

A director, executive officer, mandatary or representative of a legal person referred to in the first paragraph who knowingly authorizes, encourages, recommends, or allows the commission of the offence is liable to a fine of not less than $2,500 nor more than $62,500.

In determining the amount of a fine, the court considers such factors as the injury suffered as a result of and the benefits derived from the offence. The minimum and maximum fines are doubled for a second or subsequent offence.

2008, c. 9, s. 125; 2013, c. 18, s. 45; 2018, c. 23, s. 478.

126. Proceedings for an offence under section 80 or 124 may be instituted by the Organization.

When the Organization takes charge of the prosecution, the fine imposed to punish the offence belongs to the Organization.

2008, c. 9, s. 126.

127. Penal proceedings for an offence under section 124 are prescribed two years from the date on which the investigation record relating to the offence was opened by the Organization. However, no proceedings may be instituted if more than five years have elapsed since the date of the offence.

A certificate of the secretary of the Organization stating the date on which the investigation record was opened constitutes conclusive proof of that date in the absence of any evidence to the contrary.

2008, c. 9, s. 127; 2013, c. 18, s. 46.

128. If the respondent continues to commit or again commits the offence during the proceedings, the Attorney General, or the Organization with the Attorney General’s authorization, may apply to the Superior Court for an interlocutory injunction enjoining the person and, if applicable, its directors, executive officers, mandataries or representatives to cease committing the alleged offence until final judgment is pronounced in the penal proceedings.

After pronouncing the judgment in the penal proceedings, the Superior Court itself renders final judgment on the application for the interlocutory injunction.

The Attorney General or the Organization is dispensed from the obligation to give security. In every other respect, the provisions of the Code of Civil Procedure (chapter C-25.01) concerning interlocutory injunctions apply.

2008, c. 9, s. 128; I.N. 2016-01-01 (NCCP).

CHAPTER VIII MANDATORY FORMS AND MISCELLANEOUS PROVISIONS

2008, c. 9, c. VIII; 2018, c. 23, s. 479.

DIVISION I MANDATORY FORMS

2018, c. 23, s. 480.

129. The Minister determines the brokerage contracts and other acts relating to brokerage transactions that must be evidenced on a mandatory form.

2008, c. 9, s. 129; 2018, c. 23, s. 480.

129.1. The Organization prepares the mandatory forms for the contracts and other acts determined by the Minister under section 129.

The forms so prepared are submitted to the Minister for approval.

The Organization posts the forms on its website on their being approved by the Minister and makes them available to licence holders. The Organization also determines, by regulation, the manner in which the forms must be completed.

2018, c. 23, s. 480.

129.2. The Minister may prepare a form if the Organization fails to do so within the time specified by the Minister.

2018, c. 23, s. 480.

DIVISION II MISCELLANEOUS PROVISIONS

2018, c. 23, s. 480.

130. All regulations of the Organization, except internal by-laws, must be submitted to the Government for approval with or without amendments.

2008, c. 9, s. 130.

131. (Repealed).

2008, c. 9, s. 131; 2018, c. 23, s. 481.

132. The costs incurred by the Government for the administration of this Act, as determined each year by the Government, are borne by the Organization.

2008, c. 9, s. 132; 2018, c. 23, s. 482.

133. No judicial proceedings may be brought against the Organization, its directors, or executive officers, the syndic, the assistant syndics, an ad hoc syndic, the persons the Organization authorizes to act on its behalf, the committees established under this Act or the members of those committees for acts in good faith in the exercise of their functions.

2008, c. 9, s. 133; 2013, c. 18, s. 47.

134. The answers given or statements made by the person who requested an investigation or by a broker’s licence holder or a director or executive officer of an agency licence holder, and the documents prepared or obtained in the course of conciliation, mediation or arbitration may not be used nor are they admissible as evidence against a broker’s licence holder or a director or executive officer of an agency licence holder in judicial or quasi-judicial proceedings other than a hearing before the discipline committee into an allegation that the licence holder, including the licence holder’s director or executive officer, knowingly gave a false answer, made a false statement or produced a false document with the intent to mislead.

The members of the committees appointed under this Act, the syndic and the assistant syndics may not be compelled to disclose anything learned by them in the exercise of their functions. The same applies to conciliators, mediators or arbitrators, as well as to the persons who assist them during the settlement of a dispute, in respect of anything learned by them within that process.

Despite section 9 of the Act respecting Access to documents held by public bodies and the Protection of personal information (chapter A-2.1), no person may have access to a document in a conciliation, mediation or arbitration record.

2008, c. 9, s. 134; 2013, c. 18, s. 48; 2018, c. 23, s. 483.

135. A sworn declaration filed by a member of the Organization’s personnel is proof, before a court of justice, of the signature and authority of the signatory.

2008, c. 9, s. 135.

136. The Minister and the Organization may, on their own initiative and without notice, intervene in any civil proceedings relating to a provision of this Act to take part in the trial as if they were a party.

2008, c. 9, s. 136; I.N. 2016-01-01 (NCCP).

CHAPTER IX AMENDING PROVISIONS

137. (Omitted).

2008, c. 9, s. 137.

138. (Amendment integrated into c. D-9.2, s. 100).

2008, c. 9, s. 138.

139. (Omitted).

2008, c. 9, s. 139.

140. (Amendment integrated into c. D-9.2, s. 143).

2008, c. 9, s. 140.

141. (Omitted).

2008, c. 9, s. 141.

142. (Omitted).

2008, c. 9, s. 142.

CHAPTER X TRANSITIONAL AND FINAL PROVISIONS

143. The Association des courtiers et agents immobiliers du Québec becomes the Organisme d’autoréglementation du courtage immobilier du Québec on 1 May 2010.

2008, c. 9, s. 143.

144. An investigation opened by the syndic of the Association des courtiers et agents immobiliers du Québec on or before 30 April 2010 is governed by the legislation in force on the date on which it was opened.

2008, c. 9, s. 144.

145. A complaint of which the discipline committee of the Association des courtiers et agents immobiliers du Québec was seized on or before 30 April 2010 is continued in accordance with the legislation in force on the date on which the discipline committee was seized of it.

However, if a complaint, including any preliminary exception, has not yet begun to be heard on or before 30 April 2010, it is heard by, and in accordance with the operating rules of, the discipline committee appointed under this Act.

2008, c. 9, s. 145; 2009, c. 25, s. 116.

146. A natural person who, on 1 May 2010, holds a real estate agent’s certificate or a real estate broker’s certificate issued by the Association des courtiers et agents immobiliers du Québec under the Real Estate Brokerage Act (chapter C-73.1) is deemed to hold a real estate broker’s licence. A person holding an affiliated real estate agent’s certificate may act on the person’s own account only after meeting the qualification requirements set by the Organization.

2008, c. 9, s. 146; 2018, c. 23, s. 484.

147. A person or partnership that, on 1 May 2010, holds a real estate broker’s certificate issued by the Association des courtiers et agents immobiliers du Québec under the Real Estate Brokerage Act (chapter C-73.1) and acts through the intermediary of a natural person holding a real estate broker’s or real estate agent’s certificate is deemed to hold a real estate agency licence.

2008, c. 9, s. 147; 2013, c. 18, s. 49; 2018, c. 23, s. 485.

148. Firms, independent partnerships and their insurance or securities representatives and independent representatives governed by the Act respecting the distribution of financial products and services (chapter D-9.2) that are authorized to engage in brokerage transactions relating to loans secured by immovable hypothec at the date of coming into force of sections 137 and 139 are entitled to be issued a mortgage broker’s licence or a mortgage agency’s licence, as applicable, under this Act, provided the application is made within 12 months following that date.

2008, c. 9, s. 148; 2013, c. 18, s. 50.

149. The Organisme d’autoréglementation du courtage immobilier du Québec, established by section 31, may refuse to issue a licence or may suspend, revoke or impose restrictions or conditions on a licence if the applicant or licence holder, as applicable, contravened the Act respecting the distribution of financial products and services (chapter D-9.2), prior to the date of coming into force of sections 137 and 139, in the course of brokerage transactions relating to loans secured by immovable hypothec.

Sections 41 to 44 apply for the purposes of the previous paragraph, with the necessary modifications.

2008, c. 9, s. 149.

150. The Organization is substituted for the Fonds d’indemnisation du courtage immobilier constituted by section 9.14 of the Real Estate Brokerage Act (chapter C-73) and continued by section 44 of this Act. The Organization acquires the rights and assumes the obligations of that fund.

2008, c. 9, s. 150.

151. The employees of the Fonds d’indemnisation du courtage immobilier in office on 1 May 2010 become, without further formality, employees of the Organization. They hold the position and exercise the functions assigned to them by the Organization.

2008, c. 9, s. 151.

152. The files, records and other documents of the Fonds d’indemnisation du courtage immobilier become files, records and documents of the Organization.

2008, c. 9, s. 152.

153. The current business of the Fonds d’indemnisation du courtage immobilier is continued by the Organization.

2008, c. 9, s. 153.

154. The Organization becomes, without continuance of suit, a party to any proceedings to which the Fonds d’indemnisation du courtage immobilier was a party.

2008, c. 9, s. 154.

155. Sections 105 to 107 apply with regard to the indemnification of victims of fraud, fraudulent tactics or embezzlement for which a mortgage broker is responsible, where the act was committed before the date of coming into force of sections 137 and 139 in the course of brokerage transactions relating to loans secured by immovable hypothec under the Act respecting the distribution of financial products and services (chapter D-9.2).

The Organization may recover the amount from the Fonds d’indemnisation des services financiers, established by section 258 of that Act.

2008, c. 9, s. 155.

156. (Omitted).

2008, c. 9, s. 156.

157. The Government may, by a regulation made within 12 months after the coming into force of this section, prescribe transitional measures for the purposes of this Act.

2008, c. 9, s. 157.

158. (Omitted).

2008, c. 9, s. 158.

159. The Minister may delegate to any person or body functions and powers relating to the administration of this Act, including those conferred by sections 64, 68, 69, 113, 115, 117 to 123 and 136.

The Minister may, in the instrument of delegation, authorize the subdelegation of specified functions and powers; in such a case, the Minister identifies the person or body to whom or which the subdelegation may be made.

2008, c. 9, s. 159.

160. Not later than 1 May 2015 and every five years after that, the Minister must report to the Government on the carrying out of this Act and on the advisability of maintaining it in force or amending it.

The report is laid before the National Assembly within the next 15 days or, if the Assembly is not sitting, within 15 days after resumption.

2008, c. 9, s. 160.

161. The Minister of Finance is responsible for the administration of this Act.

Not in force

However, the Government designates the Minister responsible for the administration of paragraph 14 of section 3 and section 129. The designated Minister may delegate to any person or body powers relating to the administration of those provisions of this Act.

2008, c. 9, s. 161.

162. (Omitted).

2008, c. 9, s. 162.