Professional law: Application for a stay following a decision rendered after a professional inspection
In a judgement rendered on March 6th, 2020, the Superior Court of Québec decided that it was appropriate, in the given circumstances, to stay the Executive Committee’s decision to impose on the professional the obligation to follow refresher trainer courses, do an internship and find a supervisor willing to review all his files, failing which his licence to practice would be limited until completion of the courses and internship (Gauthier v. Ordre des optométristes du Québec, 2020 QCCS 796).
The criteria permitting the issuance of an order to stay are (1) the demonstration of a serious question or a apparent weakness in the decision taken by the Executive Committee; (2) the demonstration that the professional will likely suffer an irreparable damage if the stay is not issued, and (3) the demonstration that the balance of conveniences is in favour of the professional’s private interests.
In application of the first criterion, the Court judged that the argument presented by the professional invoking that the Professional Inspection Committee, the Executive Committee and the inspectors and experts responsible for conducting his inspections had all failed to act within the limits of their competence, was a serious enough question to justify the issuance of a stay. The professional raised notably as issues the fact that the Règlement sur la procédure du Comité d’inspection professionnelle des optometrists did not provide the conditions of appointment of inspectors and experts, the possibility of using a structured oral interview as an inspection method, the determination of the type and length of the courses and/or internships imposed by a coordinator, nor the ability of the Executive Committee to impose a supervision.
In application of the second criterion, the Court reiterated that it was necessary to examine the decision’s concrete effects on the professional in question, and to avoid limiting the examination to only generic considerations. The Court considered the general number of hours that had been imposed on the professional to complete the courses and internship, his impossible task of finding a supervisor willing to review his files to ensure the continuation of his private practice, as well as the important fees that would be charged to him in order for all obligations imposed on him to be respected, and decided that this second criterion was fulfilled.
In application of the third criterion, the Superior Court implemented the case law requiring the proof of an imminent danger to the public in order for the public interest to outweigh the professional’s private interests. Considering the evidence presented, notably the fact that the Order had never limited or otherwise suspended the professional’s practice, despite having inspected him numerous times since 2000, the Court decided that the public’s protection will not be in jeopardy during the duration of the stay and that the professional’s private interests outweighed that of the public in the circumstances.
For these motives, the Superior Court decided to order a stay of the Executive Committee’s decision limiting the professional’s licence and obligating him to find a supervisor, following refresher trainer courses and do an internship, until the final decision rendered on the application for judicial review Dubé Légal inc., Montréal professional law lawyers.
