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Disciplinary law: the professional's right to examine the syndic on the content of his sworn declaration

In a judgement rendered in July 2016, the Superior Court decided that the right to examine the author of a sworn declaration, as is provided by the Code of civil procedure, is also applicable in disciplinary law. The Court explained that any professional facing a disciplinary complaint has the right to test the reliability and the credibility of all proof presented against him, including the disciplinary complaint itself, and can therefore require that the syndic, author of the complaint and the sworn declaration in support of said complaint, be subject to an examination. The Superior Court specified that it is the Disciplinary council who will decide when and how the examination will be conducted (De Barros v. Conseil de discipline de la Chambre des notaires, 2016 QCCS 4721).

THE FACTS           

In September 2015, a notary was accused of eighteen counts before the Disciplinary council of the Chambre des notaires du Québec. The disciplinary complaint, like all other disciplinary complaints, was signed by the syndic, in her role of complainant, and was supported by her sworn declaration attesting that she had reasonable motives to believe that the facts announced in the complaint were true, all in accordance with section 127 of the Professional Code.

Invoking the right to examine the author of a sworn statement, as is provided by the Code of civil procedure, the notary asked to examine the syndic on her sworn statement out of court, a request that was denied by the Disciplinary Council.

Believing this refusal to be unjustified, the notary asked the Disciplinary Council to order a stay of proceedings, and argued how, in civil matters, an affiant’s refusal to be examined out of court will often result in the dismissal of the sworn declaration, as well as the act in support of which the declaration exists.

The motion to obtain a stay of proceedings was denied, and the notary applied for judicial review before the Superior Court.

THE SUPERIOR COURT’S DECISION

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

1.    Disciplinary law is a sui generis law that is highly influenced by both civil and criminal law.

2.    Section 127 of the Professional Code provides that all disciplinary complaints must include a sworn declaration or affidavit signed by the syndic on file, attesting that he has reasonable motives to believe that the facts mentioned in the complaint are true.

3.    The Code of Civil Procedureprovides that if requested by the opposing party, the author of the sworn declaration must accept to be examined on the content of his declaration, failing which the declaration and the act in support of which the declaration exists will be dismissed.

4.    Otherwise, the obligation to join a sworn declaration to the disciplinary complaint, as is provided by section 127 of the Code of professions, would be void of any practical utility.

5.    All professionals accused at the disciplinary level have the right to request that the syndic, author of the sworn declaration, be examined in order to test his credibility.

6.    There exists no class distinction between private complainants and syndic-complainants, as both can be examined by the professional accused.

7.    In addition, the new Code of civil procedure seems to specify that the right to examine, and the sanction that will be applied upon the affiant’s refusal to be examined, applies to all sworn declaration required by “the law”; this necessarily includes the declaration that must be signed by the syndic under the Professional Code.

8.    However, the right to examine the syndic does not give the professional the automatic right to choose the time and place at which the right to examine will be exercised.

9.    Procedural fairness does not guarantee the professional the right to examine the author of the declaration outside of court or before the hearings held before the Disciplinary council.

10.In these circumstances, the notary can still examine the syndic on her sworn declaration all while respecting the framework determined by the Disciplinary council. There is no need to order a stay of proceedings.

THE LESSONS TO BE LEARNED

1.    The basic rules of evidence require the author of the a sworn declaration to be subject to an examination at the request of the opposing party, as the right to examine is essential in order to support the reliability of the declaration and the credibility of the affiant.

2.    These rules apply to both private complainants as well as syndic-complainants.

3.    The power to define the right to examine on the content of the sworn declaration belongs to the Disciplinary council who can determine when and how this right will be exercised Dubé Légal inc., Montréal disciplinary law lawyers.