Disciplinary law: the syndic's obligation to investigate seriously
In a judgement rendered in August 2016, the Court of Appeal confirmed that a syndic’s civil liability will be incurred if he decides to lodge a disciplinary complaint on the basis of an erroneous expert opinion. The Court of Appeal specified that even if a professional order may mandate an expert to assist the syndic during a disciplinary inquiry, the syndic is nevertheless obliged to personally investigate with care and to consider all elements of proof at his disposition, including his expert report, before the filing of a complaint (Ordre des ingénieurs du Québec v. Gilbert, 2016 QCCA 1323 (CanLII)).
THE FACTS
During a disciplinary inquiry concerning Yves Gilbert, engineer, the syndic, in accordance with section 121.2 of the Professional Code, hired a construction expert in order to evaluate the likelihood of a building, constructed by Yves Gilbert, collapsing. Basing its decision entirely on an incorrect expert opinion, a disciplinary complaint was lodged against Yves Gilbert.
Following a long and tedious legal battle, resulting in Yves Gilbert being acquitted and the expert’s professional errors being deemed inacceptable by the court, Yves Gilbert claimed damages from the Ordre des ingénieurs du Québec, the syndic and the assistant syndic, all the while invoking that the syndics and the expert who assisted the syndics were careless and negligent. This claim was allowed by the Superior Court.
Unsatisfied with the Superior Court’s judgement, the Ordre des ingénieurs du Québec and the syndics chose to appeal the decision before the Court of Appeal.
THE COURT OF APPEAL’S DECISION
After having considered the arguments invoked by both parties, the Court of Appeal draws the following conclusions :
1. A syndic cannot lodge a disciplinary complaint before having seriously and thoroughly examined all the information and documents obtained in the course of his inquiry, including the reports prepared by any experts mandated by the professional order.
2. Given the potentially damaging consequences that may arise from the lodging of a disciplinary complaint, the syndic’s work cannot be superficial, ordinary or incomplete.
3. In the case where a syndic mandates an expert to assist him during an inquiry, he must make sure that the expert works in accordance with regulations, that his theory holds up and that he remains objective.
4. Otherwise said, a syndic cannot blindly follow the opinion found in his expert’s report, and must instead make sure that the content of the complaint to be filed against the professional is justified.
5. According to the Professional Code, the expert who, given his expertise, assists the syndic in the course of the disciplinary inquiry has all powers necessary to properly do his job: the expert must not be hampered during the inquiry, must take an oath of secrecy, can take note of all documents obtained from the professional, and benefits from a partial immunity.
6. Vicarious liability, as is defined by the general regime, does not apply in this particular case, as neither the syndic nor the professional order have any authority on the expert, who must remain independent, at the risk of being disqualified for any eventual hearings before the disciplinary council.
THE LESSONS TO BE LEARNED
1. The Professional Codedoes not create a civil liability different from that already existing under the general regime; neither recognizes the expert as being the syndic’s alter ego.
2. An expert acting gravely negligent in the execution of his contract incurs his own liability, but does not incur that of the professional order, in absence of a situation of vicarious liability predetermined by law; the syndic’s grave negligence can, however, incur the order’s liability Dubé Légal inc., Montréal disciplinary law lawyers.
