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Disciplinary law: the syndic ad hoc's nomination

In a judgement rendered in October 2016, the Professions Tribunal confirmed that, contrary to the syndic, the assistant syndic and the corresponding syndic, the syndic ad hoc is not considered to be part of the syndic’s office and can only exercise the powers of the syndic for the mandates that have been specifically entrusted to him by the order’s board of directors. In absence of a legal nomination, he who believes to be a syndic ad hoc cannot conduct an investigation nor file a complaint before a disciplinary council (Adessky v. Avocats (Ordre professionnel des), 2016 QCTP 139 (CanLII)).

THE FACTS           

Following the Review board’s decision to order the completion of the disciplinary investigation, a lawyer’s file, previously studied and closed by the Bar’s assistant syndic, was transferred to the syndic who, given the extra workload, chose to undertake the measures required to have the respondent nominated to the title of syndic ad hoc.

In August 2009, the Bar’s executive board, in accordance with section 121.3 of the Professional Code, adopted a resolution nominating the respondent to the position of syndic ad hoc. This resolution did not, however, make mention of any specific files. It was rather via a letter written by the Bar’s syndic in November 2009 that the lawyer’s file was transferred to the newly nominated syndic ad hoc.

In September 2010, the syndic ad hoc filed a disciplinary complaint against the lawyer in question. During the first scheduled hearing, the lawyer contested the respondent’s nomination as syndic ad hoc and argued that the mandate that had been given to the respondent, by executive resolution, had not been limited to any specific files. The syndic ad hoc instead based his principal argument on the confidentiality of the disciplinary investigations carried out by the syndic’s office and explained that he has explicitly taken the oath of secrecy in regards to the lawyer’s file.

The Disciplinary council decided that, in this particular context, there was no proof of irregularity in the nomination of the syndic ad hoc.

On appeal before the Professions Tribunal, the lawyer files new exhibits that had not been previously presented to the Disciplinary council, notably an executive summary in which the adoption of a resolution nominating the respondent to syndic ad hoc in seven identified files, is proposed. The disciplinary file of the lawyer in question is not mentioned.

THE PROFESSIONS TRIBUNAL’S  DECISION

After having considered the arguments invoked by both parties, the Professions Tribunal draws the following conclusions :

1.    The syndic ad hoc cannot be put in the same category as the syndic or the assistant syndic; the syndic ad hoc only holds the rights, powers and obligations belonging to the syndic in the specific files with which he is entrusted.

2.    According to the new exhibits filed with the Professions Tribunal, the respondent was not named syndic ad hoc for the lawyer’s disciplinary file; he was nominated as syndic ad hoc only for the specific files mentioned in the executive summary that later led to the adoption of the executive board’s resolution.

3.    The syndic’s office cannot add a file to the syndic ad hoc’s mandate by simply writing a letter confirming that another file had been added to his workload.  

4.    He who is not legally entitled to act as syndic ad hoc in a particular file cannot conduct a disciplinary investigation on the professional in question, nor can he file a disciplinary complaint against him.

5.    Without a legal nomination in regards to a specific file, all actions taken by someone who falsely believes he is the syndic ad hoc are void, including the collection of information during the investigation.

6.    An order’s board of directors cannot confirm a person’s nomination as syndic ad hoc nor ratify the actions taken when he falsely believed to be legally acting as syndic ad hoc.

THE LESSONS TO BE LEARNED

1.    The syndic ad hocmust be nominated for specific disciplinary files, whose numbers are clearly identified at the time the executive board’s resolution is adopted.

2.    It is the executive board, and not the syndic’s office, that has the competence necessary to nominate a syndic ad hoc.

3.    Without a legal nomination, he who falsely believes he is acting as the syndic ad hoc cannot conduct a disciplinary investigation, nor file a disciplinary complaint before the disciplinary council Dubé Légal inc., Montréal disciplinary law lawyers.