Disciplinary law: The impossibility defence when faced with a hinderance infraction

On Septembre 3rd 2019, the Professions Tribunal reversed the decision rendered by the Ordre professionnel des chimistes du Québec’s Disciplinary council declaring the chemist guilty of having hindered the syndic during a disciplinary investigation, although it was impossible for the chemist in question to provide the syndic with the numerous documents that had been requested of him at the time (Weigensberg v. Chimistes (Ordre professionnel des), 2019 QCTP 90).

The professional is a biochemist working as director at CDL Laboratories inc. During a disciplinary investigation into CDL’s billings, the syndic asked the chemist to provide a copy of CDL’s price lists for all the biochemical analyses performed between 2009 and 2014. In response, the chemist explained to the syndic that as he was no longer a shareholder or an administrator of CDL, he no longer had access to the information requested, and suggested that the syndic ask the president for the price lists instead.

Following several discussions between the chemist and the syndic concerning the information in question, the chemist wrote an e-mail to the president of CDL, asking him to provide a copy of the price lists, in accordance with the syndic’s demands. The president refused to give the chemist access to said lists, invoking that the nature of these documents were strictly confidential.

Having not received the information required, the syndic decided to file a complaint against the chemist accusing him, among other things, of having refused to provide the price lists from 2009 to 2014.

In its decision, the Disciplinary Council decided that the obligation to answer the syndic and to provide him with all required information was a performance obligation that forced the professional to respect all demands made by the syndic, unless he could prove his impossibility to comply with these demands. The Council also decided that the alter ego theory and the CDL president’s refusal did not need to be considered in order to decide whether or not the chemist in question was guilty. The Disciplinary council concluded that because the professional title of chemist was needed by the professional to work as a director at CDL, he had the legal responsibility of responding to all requests made by the syndic of his Order.

During the appeal before the Professions Tribunal, the chemist accused the Disciplinary council of not acknowledging that he did not have the necessary authority to provide the numerous documents that had been requested by the syndic.

The Tribunal reiterated that a professional could not, via an enterprise, contravene to the Professions Code. In other words, the professional is always personally liable to his Order, and cannot limit his liability by delegating his responsibilities to a third party, or by hiding behind a corporate entity. However, as a the director or a laboratory, the responsibilities of the chemist in question consisted of assuring the competencies of the working personnel as well as quality control, but did not include any financial or commercial responsibilities regarding the laboratory. In this context, the chemist did not have the necessary authority to transmit any documents belonging to CDL to the syndic.

Furthermore, the Professions Tribunal confirmed that the alter ego theory did not apply, as the chemist, who was only an employee to the enterprise belonging entirely to a third party, did not even attempt to delegate his legal responsibilities.

Given the president’s refusal to turn over the requested documents to the syndic, the chemist could not be found guilty of having hindered the syndic during the disciplinary investigation, as it was impossible for him to comply. Consequently, he is acquitted Dubé Légal inc., disciplinary law lawyers.