Disciplinary law: the delay as a criteria to be considered when faced with a motion to order the immediate provisional striking off the roll or the immediate provisional restriction of the right to engage in certain professional activities
In a decision rendered in July 2003, the Professions Tribunal decided that, when faced with a syndic’s motion to order the immediate provisional striking off the roll of a professional or the immediate provisional restriction of his right to engage in certain professional activities, a disciplinary council could take into consideration the time that elapsed between the moment the syndic became aware of the professional’s behavior and the moment the syndic presented said motion (Bell v. Chimistes, 2003 QCTP 092 (CanLII)).
THE FACTS
The syndic of l’Ordre des chimistes du Québec lodged a disciplinary complaint against a chemist for having violated several dispositions of the Code of ethics of chemists.
Convinced that the nature of the alleged infractions would compromise the protection of the public if the chemist retained his right to practice prior to the disciplinary hearing, the syndic filed a motion before the Disciplinary Council asking the immediate provisional striking off the roll of the professional in question.
The Disciplinary Council dismissed the syndic’s motion, instead accepting the chemist’s argument that the fifteen-month delay between the perpetration of the alleged violations and the filing of the disciplinary complaint could not justify the syndic’s motion. According to the Council, the syndic’s failure to file his motion within a reasonable time frame was a reason sufficient enough to dismiss the motion.
Unsatisfied with the Disciplinary Council’s decision, the syndic chooses to appeal it before the Professions Tribunal.
THE PROFESSIONS TRIBUNAL’S DECISION
After having considered the arguments invoked by both parties, the Professions Tribunal dismisses the appeal and draws the following conclusions :
1. When faced with a syndic’s motion to order the immediate provisional striking off the roll of a professional or the immediate provisional restriction of his right to engage in certain professional activities, the delay elapsing between the start of the syndic’s investigation and the filing of the complaint must be considered by the disciplinary council.
2. A long delay may be a sufficient enough reason for the disciplinary council to judge that the professional does not present a danger to the public.
3. However, the delay is neither the sole, nor the most important element, to be considered by the disciplinary council when deciding whether or not to grant the syndic’s motion to order the immediate provisional striking off the roll of a professional or the immediate provisional restriction of his right to engage in certain professional activities.
4. In other words, the time elapsing between the syndic’s initial investigation of the professional’s activities and the filing of the disciplinary complaint will not always be determinant in the disciplinary council’s decision to grant or dismiss the syndic’s motion.
THE LESSONS TO BE LEARNED
1. Section 130 of the Professional Code allows the disciplinary council to order the immediate provisional striking off the roll of a professional or the immediate provisional restriction of his right to engage in certain professional activities when the practice of that professional risks the endangerment of the public.
2. The time that elapses between the professional’s violations and the syndic’s motion asking that the professional be struck off the roll or that his practice be restricted may be pertinent in deciding whether or not the syndic’s motion is founded Dubé Légal inc., Montréal disciplinary law lawyers.
