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Disciplinary law: the Profession Tribunal's analysis of the aggravating and mitigation factors applicable in sentencing

In a judgement rendered in September 2017, the Professions Tribunal reiterated the principles that had previously been outlined by the Court of Appeal of Québec in Drolet-Savoie concerning the role played by Professions Tribunal when it is the sanction imposed by the Disciplinary Council that is contested. Most notably, the Professions Tribunal qualified its power to intervene regarding the sanction as being limited, all while specifying that the mere possibility that the aggravating and mitigating factors, analysed by the Disciplinary Council when determining the appropriate sanction to impose, can be appreciated differently by the appeal court, does not constitute an error justifying the Tribunal’s intervention Sinclair v. Comptables professionnels agréés (Ordre de), 2017 QCTP 79).

THE FACTS           

For the offences committed during the financial years of 2007, 2008 and 2009, the chartered professional accountant, Lévi, was found guilty for having prepared an assurance engagement and having done the quality-control review of financial statements belonging to a company run by his brothers. He was also found guilty of having failed to take all necessary measures to ensure that his associate, Sinclair, also respected his ethical obligations.

The chartered professional accountant Sinclair, Lévi’s associate, was found guilty of having participated in the same assurance engagements, despite the relationship between Lévi and the client-company’s directors. He was also found guilty of having failed to take all necessary measures to ensure that his associate, Lévi, respected his ethical obligations.

Each of the accountants were sentenced by the Disciplinary Council to the payment of an $18 000 fine, a sanction that they believed to be utterly exaggerated in the circumstances.

The accountants thus brought the Disciplinary Council’s decision to appeal before the Profession’s Tribunal, invoking the Council’s error in having considered their lack of remorse and the maintenance of their innocence as relevant factors in the determination of the sanction. They argued that the appropriate sanction in the circumstances is a reprimand.

The syndic, on the other hand, argued that the points raised by the accountants were related to the Disciplinary Council’s appreciation of the evidence and that in absence of a manifest and dominant error, the Tribunal should not intervene.

THE PROFESSION TRIBUNAL’S DECISION

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

1.    The professional that wishes to contest a decision rendered by the Disciplinary council must file with the Professions Tribunal the relevant passages from the stenographer’s transcript and the documentary evidence presented before the Council.

2.    Failing the filing of the relevant documentation allowing the Professions Tribunal to re-weigh the evidence administered before the Council and re-evaluate its decision, the Tribunal will be prevented from calling into question any of the factual conclusions drawn by the Council.

3.    The Professions Tribunal plays a limited role when re-weighing the factors applicable when imposing a disciplinary sanction, as these factors have often already been considered by the Disciplinary Council.

4.    In matters concerning disciplinary sanctions, the Professions Tribunal’s power to intervene is only possible when there exists an error of principle, a failure to consider a relevant factor or the wrongful consideration of an aggravating or mitigating factor, but only if the latter error has an impact on the sanction imposed.

5.    Although a lack of remorse is not to be considered an aggravating factor, this element alone cannot justify the Profession Tribunal’s intervention when the sanction imposed is also based on other motives explained by the Disciplinary Council in its decision, as well as precedents set by earlier cases.

THE LESSONS TO BE LEARNED

1.    A lack of remorse is not to be considered an aggravating factor, but rather a neutral factor, in the determination of the sanction by the Disciplinary Council. 

2.    The Disciplinary Council has a limited power to intervene and cannot weigh the aggravating and mitigating factors differently in absence of an error in the Disciplinary Council’s analysis.

3.    The Professions Tribunal can always intervene if the sanction is clearly inappropriate, even if no absence in the Council’s decision is detected Dubé Légal inc., Montréal disciplinary law lawyers.