Exemplarity is no more important than the principle of individualization of the sanction.
Background and Facts
A notary since 1994, the professional was subject to a professional inspection in September 2020. Despite several repeated requests from the Professional Inspection Service (SIP) and the deputy trustee of the Chamber of Notaries, the professional did not respond satisfactorily to the requests, including those concerning sums held in his trust account.
Decision of the Disciplinary Council
The Disciplinary Council found the professional guilty of three counts on November 15, 2022 and imposed concurrent periods of temporary disbarment: two months for counts 1 and 2, and four months for count 3 (obstruction of the trustee's work).
Appeal and Analysis of the Professional Tribunal
The professional challenged the Council's decision, in particular the severity of the sanctions.
Aggravating and Mitigating Factors: The Tribunal found that the Council erred by including a disciplinary history without analyzing its connection with the current offence.
Individualization of the Sanction: The Tribunal found that the Council had overemphasized the deterrent nature of the sanctions, neglecting the principle of individualization.
Sanction for the Obstruction Count: The Tribunal found the four-month sanction disproportionate and considered that the Council had not sufficiently justified the distinction of this sanction from the other counts.
Conclusion and Order of the Tribunal
The Tribunal allowed the appeal and replaced the sanction for count 3 with a concurrent two-month period of disbarment, thus aligning all sanctions.
References:
Full decision available on CanLII: Kevorkian v. Notaires (Ordre professionnel des), 2024 QCTP 41
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