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Disciplinary law: the global penalty in disciplinary matters

In a judgement rendered in February 2017, the Court of Appeal confirmed that section 175 of the Professional Code allows the Professions Tribunal to adjudicate on the reasonability of a penalty imposed by a Disciplinary council, by reconsidering the evidence presented during the penalty hearing. If said penalty is manifestly unfounded, the Tribunal can substitute this penalty by another it deems more appropriate. In addition, the Court of Appeal decided that an individual penalty must be imposed for every count that the professional is declared guilty of: the imposition of a global penalty constitutes an error of law that may result in the penalty being manifestly unreasonable. Finally, the Court of Appeal specified that provided it had all relevant evidence at hand, the Court could impose all appropriate penalties to the professional itself (Landry v. Guimont, 2017 QCCA 238).

THE FACTS           

In June 2006, the lawyer in question received notification of a disciplinary complaint consisting of 16 counts accusing him of having infringed several dispositions of the Professional Code and of the Code of Professional Conduct of Lawyers. After having been declared guilty of 12 of the 16 counts and permanently struck off the role, the lawyer appeals the verdicts and the penalty before the Professions Tribunal, who quashes 8 of the 12 guilty verdicts and sends the file back to the Disciplinary council so that a new penalty hearing can be held regarding the four counts on which his guilty verdict was maintained.

Unsatisfied with the Professions Tribunal’s decision, both parties addressed an application for judicial review before the Superior Court, the appellant asking the four guilty verdicts be quashed and respondent asking the eight acquittals be annulled.

The Superior Court dismissed the application for judicial review presented by each of the two parties and decided to send the file back to the Professions Tribunal, so that a penalty hearing can be held in regards to the counts on which the lawyer had been pronounced guilty.

In December 2015, the Court of Appeal accepted to hear the contestation of the Superior Court’s decision to send the file back to the Profession Tribunal for the penalty hearing.

THE COURT OF APPEAL’S DECISION

After having considered the arguments invoked by both parties, the Court of Appeal draws the following conclusions:

1.    The Professions Tribunal’s jurisdiction is subject to section 175 of the Professional Code.

2.    The Professions Tribunal is an appeal tribunal having jurisdiction to adjudicate on the penalty imposed by the Disciplinary council, by considering the entirety of the testimonies given, the evidence presented during the penalty hearing and the Disciplinary council’s motivated decision.

3.    In order for the Professions Tribunal to modify the penalty imposed by the Disciplinary council, the said penalty must be manifestly unfounded or unreasonable.

4.    According to section 156 of the Professional Code, each count of the disciplinary complaint on which the professional is pronounced guilty must be sanctioned individually. In order for the Professions Tribunal to intervene on this point, the global penalty imposed must be unreasonable.

5.    In accordance with section 175 al. 3 of the Professional Code, when the Professions Tribunal replaces an acquittal with a guilty verdict, the file must be returned back to the Disciplinary council, thus allowing for the professional to exercise any of his rights, notably his right to make a full answer and defence.

6.    Provided the file’s return will only be useful in theory (for example, if the professional has already been struck off the role for an exaggerated and unjustified period, given the particular circumstances of the file), the Court of Appeal can put an end to the file and pronounce a stay of proceedings. 

THE LESSONS TO BE LEARNED

1.    The Professions Tribunal has jurisdiction to determine if the penalty imposed on the professional remains reasonable in light of the entire file’s evidence.

2.    The imposition of a global penalty in regards to the totality of the professional’s guilty verdicts constitutes an error of law or of principal that justifies an appeal court’s intervention if the penalty is, in consequence, manifestly unfounded or unreasonable.

3.    When the Professions Tribunal dismisses an acquittal and declares the professional guilty of an infraction, the option of returning the file to the Disciplinary council for the determination of a penalty best allows the parties to present all pertinent evidence and to appeal the penalty decision, if necessary.

4.     The Court of Appeal, when faced with the evidence of an exaggerated suspension period given the intermediate severity of the infractions, can pronounce a stay of proceedings Dubé Légal inc., Montréal disciplinary law lawyers.