Professional law: order to stay of a written exam imposed by the CIP in regards to an extensive inspection

In a judgement rendered in June 2018, the Superior Court of Québec, by going through the criterion governing the issuance of an order to stay, decided that it was appropriate, in the given circumstances, to stay the notice to an extensive inspection aiming to have the professional in question undergo a written exam. The Court specified that the question raised by the professional was serious and warranted to be decided on the merit, that the professional would suffer an irreparable damage without an order to stay the notice and that the balance of convenience doctrine favoured said professional (Paparella v. Ordre des ingénieurs du Québec, 2018 QCCS 2896).

THE FACTS           

The professional, an engineer with 35 years of practice, received an inspection notice, from the Professional Inspection Committee (herein identified as the “PIC”), scheduling a first visit in March, 2018. This visit was followed by a report informing the professional that the PIC had decided to continue the inspection process by imposing, in June, 2018, a second visit during which an extensive inspection in the form of a written exam consisting of theoretical questions and lasting between 3 to 4 hours would be required. The PIC’s competence to impose such an exam is provided by the Politique sur l’inspection professionnelles, while the Professional Code provides that the PIC can recommend that an exam by imposed, but it is only the Board of directors of the Order that has the power to require that the professional passes an exam.

Convinced that professional law does not allow the PIC to impose an exam on a professional for the purposes of an extensive inspection concerning that professional’s competence, the engineer decided to contest the holding of the inspection before the Superior Court of Québec. Before a hearing could take place and a final decision rendered, the professional asked that the Court order the stay of the exam until his case could be heard.

THE SUPERIOR COURT’S DECISION

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

1. The criteria permitting the issuance of an order to stay are the same that are applicable in regards to an interlocutory injunction.
    
2. These criteria are (1) the appearance of a right, (2) an irreparable damage (3) the balance of convenience.
    
3. The appearance of a right can be demonstrated when the application presented by the professional raises an important or serious question to settle.
    
4. The Superior Court determines that the question that must be answered, in the present circumstances, is the following: can the PIC impose a guided interview or an exam for the purposes of an extensive inspection regarding the competence of a professional, while the law provides that the passing of such an exam can only be imposed on the professional by the Board of directors of the Order on recommendation from the PIC? The question is qualified as serious by the Court.
    
5. The question concerns the competence of the PIC, which requires the interpretation of certain dispositions of the Professional Code and its regulations.
    
6. Regarding the second criterion, the Court is asked to determine whether or not the party who requests the stay of the notice to an extensive inspection, will suffer an irreparable damage if said stay is not issued.
    
7. The Court decides that without an order to stay, the engineer in question will be forced to undergo an exam before his case can even be heard, thus rendering any decision on the merit theoretical.
    
8. Finally, for the third and last criterion, the Court must determine which of the two parties is favored by the balance of convenience doctrine.
    
9. All while considering public interest, as well the protection of the public, the Court decides that the professional in question, who has had a clean disciplinary background for the last 35 years and who would be forced to undergo a written exam in absence of an order to stay, is the party who suffers the greater damage in the circumstances. 

THE LESSONS TO BE LEARNED

1. Concerning an order to stay, the first criterion to consider is to determine whether, after a preliminary analysis of the facts on file, the application raises a serious question that is neither frivolous nor vexatious. 
    
2. For the second criterion, one must determine if there exists a serious risk or an irremediable situation that may be created by the dismissal of the application to stay.
   
   
3. The third criterion consists of determining which of the two parties will suffer the greater damage in light of the Court’s decision to either accept or dismiss the application for a stay.
    
4. It is only if the plaintiff meets these three criteria that a stay will be issued by the Court Dubé Légal inc., Montréal professional law lawyers.