Disciplinary law: A striking off the roll should not be imposed if it were to result in the annihilation of the professional's chances of rehabilitation
On August 10th, 2020, a decision was rendered in regards to a claims adjuster who was accused of having made a false declaration to the insurer, in contravention of the Act respecting the distribution of financial products and services and the Code of ethics of claims adjusters. Seeing as the professional had pleaded guilty to the disciplinary complaint’s one count, the parties only presented their arguments to the Disciplinary Committee regarding the sanction (Chambre de l’assurance de dommages v. Lemieux, 2020 CanLII 76070 (QC CDCHAD)).
To support his position that a striking off the roll for a period of two months and a $2000 fine should be imposed, the syndic of the Chambre de l’assurance de dommages filed several disciplinary decisions rendered in regards to very similar facts in which the disciplinary committee imposed a temporary striking off the roll.
The claims adjuster contested the syndic’s arguments and asked the Disciplinary Committee to only impose a $4000 fine in the circumstances. He pleaded notably that he had no disciplinary record, that no negative consequences had resulted from his actions, that the infraction was an isolated event, that he had pleaded guilty and that a temporary striking off the role would have a major impact on his career and family.
To begin, the Disciplinary Committee highlighted the general principle according to which even though disciplinary justice aims to protect the public, it must treat equitably those whose livelihood is placed within its hands.
The Committee also recognized that every file must be evaluated on its own merits, and that the analysis of precedents is not a universal remedy. It is essential to individualise every case in order to ensure that the sanction rendered is the most appropriate, given the particular history of the professional on whom it is imposed. The range of sanctions developed by precedents is not binding, but must rather be considered a general guideline.
The Disciplinary Committee goes on to consider the context in which the infraction was committed, as well as the fact that the claims adjustor had pleaded guilty as early as his first appearance before the Committee, otherwise known as “at the first occasion”.
Even if the infraction of having made a false declaration is a very serious infraction, the Committee concluded that the sanction imposed should nevertheless not annihilate the professional’s chances of rehabilitation. According to the Committee, a striking off the roll, even if it were to last only a few days, would bring about a definite loss of the claims adjuster’s practice, thus resulting in a purely punitive sanction.
The Committee decided to instead impose a $4000 fine to the claims adjustor in question, a sanction it deemed sufficient to ensure the public’s protection, and to recommend to the Chambre’s board of directors that additional courses also be imposed on the professional for educative reasons Dubé Légal inc., disciplinary law lawyers.
