- 2000, McGill College Avenue, Suite 600, Montreal, QC, H3A 3H3
- Tél:514 286-9800
- Fax:514 286-7827
Dubé Légal inc., disciplinary law lawyers.
Our law firm provides legal representation in hearings, regarding disciplinary law and professional liability, held before the Disciplinary Board or the Professions Tribunal. Simarly, Dubé Légal inc. advises many professionnals (engineers, veterinarians, notaries, dentists, opticians, optometrists, chartered professional accountants, lawyers, nurses, etc.) who are the object of a disciplinary investigation or a disciplinary complaint presented by the syndic to their Professional Order.
Our legal team, offering services in disciplinary law, assure its clients a thororugh and virgorouse defence that aims to acquit them of all unjustified charges. A fault, error or violation is not always equivalent to an ethical misconduct or a violation within the meaning of the Professional Code.
Our lawyers advise their clients on their professional rights and on the necessary procedure to follow in order to contest a complaint. Following successful negociations, the intervention of a lawyer in a disciplinary file may result in the reduction of the number of infractions listed in the disciplinary complaint. The presence of a lawyer in disciplinary law, capable of applying the mitigating and aggravating factors defined by jurisprudence, may also result in the reduction of the sanction.
The syndic of an order has the necessary powers in order to ensure that all professional obligations are respected by the members of that order. The syndic is thus expected to take the necessary measures to ensure that the appropriate sanctions are applied to members who fail to respect the rules of their profession.
A disciplinary inquiry begins by the syndic receiving information to the effect that a professional has committed an offence in violation with his order’s code of ethics or with the Professional Code. Although this information often comes from a member of the public, an offence may also be discovered by the office of the syndic, in which case no outside information is necessary in order for the syndic to commence an inquiry.
The syndic of an order exercises extremely large powers during his disciplinary inquiry, but may only investigate one subject at a time. The syndic must exercise its functions in complete independence and must stay clear of all outside influence or pressure from the order or from the public. Furthermore, the professional must not attempt to influence the syndic during the disciplinary inquiry and must instead provide him with all information and documents deemed pertinent. As is provided by section 14.3 of the Professional Code, it is strictly prohibited to hinder the syndic during the disciplinary inquiry, mislead him by concealment or false documents, or refuse to provide him with any documents, records or information requested.
The content of the disciplinary inquiry remains confidential and within the hands of the syndic for the entire duration of the inquiry.
According to section 123.1 of the Professional Code, the syndic who does not complete his inquiry within the 90 days of the reception of the request for the holding of the inquiry, must report to the member of the public who requested the inquiry and inform him of all progress that has since been made.
In order to improve the transparency of the disciplinary system in cases where the syndic refuses to lodge a complaint with the disciplinary council, there exists a review committee within each professional order. This committee must, on request by the person unsatisfied with the syndic’s decision to not lodge a complaint, determine whether or not this decision is justified. The process of review is a method of controlling the validity of the syndic’s decision.
After having analysed and reconsidered the entire file built by the syndic, the review committee gives its opinion on the matter. In the case where the review committee believes that the facts at hand justify that a complaint be lodged with the disciplinary council, it may suggest the appointment of an syndic ad hoc, who must make the final decision as to whether or not to lodge a complaint.
Once the syndic’s disciplinary inquiry is completed, he will decide whether or not to lodge a complaint against the professional in question with the disciplinary council. If no complaint is lodged, the syndic must explain the reasons behind his decision and inform the person who requested the holding of the inquiry of the possibility of requesting an opinion from the review committee.
If the syndic instead decides to go forward and lodge a complaint with the disciplinary council, a written complaint, describing all the violations committed by the professional in question, is communicated to the professional. The professional must then appear, in person or by counsel, before the disciplinary council in order to plead guilty to all or to part of the violations of which he is accused, or to express his intention to contest the complaint. The syndic is neither expected nor obliged to inform the professional that a disciplinary inquiry concerning him had been underway until the complaint is lodged.
In the case where a formal complaint is lodged against the professional, the syndic will play the role of complainant before the disciplinary council. As complainant, the syndic must give to the professional all elements of proof held against him, whether they be inculpatory of exculpatory.
The disciplinary council, as a disciplinary court consisting of three members, is invested with the exclusive power to receive all complaints, hear all proof presented and determine whether or not the professional accused has violated his order’s code of ethics or the Professional Code.
REPRESENTATIONS ON THE SANCTION
Once the professional in question has been declared or has pleaded guilty to the violations of which he is accused, the parties proceed in presenting their representations on the sanction before the disciplinary council. In order to do so, each party must refer to the pertinent jurisprudence and must ask the council to consider both objective and subjective factors. The objective factors include the protection of the public, the severity of the violation and the need to discourage future infractions, whereas the subjective factors include the absence of a disciplinary record, the age and experience of the professional, the absence of the risk to re-offend and the professional’s chances of rehabilitation.
In the case where the professional condemned is unsatisfied with the decision rendered by the disciplinary council, this decision can be appealed before the Professions Tribunal.