Disciplinary law: The stay of proceedings resulting from an irreparable and serious harm
In a recent decision rendered on September 15th, 2020, the Court of Appeal further defined the stay of proceedings in disciplinary matters, and confirmed that a stay can be successfully pleaded by any professional who demonstrates the existence of serious and grave prejudice, such as the inability to present a full and complete defence due to unreasonable delays. In addition, the Court of Appeal established that the sole absence of a prescription period concerning disciplinary matters could not be used to neutralize an argument based on an excessively long or prejudicial delay (Champagne v. Colas, 2020 QCCA 1182).
The professional in question was accused of having performed certain acts that could not legally be performed in accordance with his personal insurance, financial planning and group brokerage certification. The disciplinary complaint had originated from a decision rendered in December 2007 by the Bureau de decision et de revision en valeurs mobilières following events that had occurred between November 1999 and December 2004; an initial report was brought to the syndic’s attention in December 2011, the disciplinary complaint was filed on December 19th, 2012, the hearing took place in August 2013 and the Disciplinary Committee’s decision was rendered on July 3rd, 2015.
Before the Disciplinary Committee, the professional invoked the duration of the delay between the alleged acts committed and the filing of the disciplinary complaint in order to justify his request to stay the proceedings. According to the professional, his right to present a full and complete defense had been violated, because the long delay had deprived him of the possibility of adequately defending himself, thus causing him a serious and grave prejudice.
This argument was rejected by the Committee, who qualified his request to stay the proceedings as being premature, all while emphasizing that there exists no prescription period in disciplinary matters. According to the Committee, the professional needs to prove the existence of a serious and grave prejudice, and the demonstration of an unreasonable delay alone is insufficient to justify a stay of proceedings.
The Disciplinary Committee’s final decision was appealed before the Court of Québec, where the question concerning the delay preceding the disciplinary complaint was once again presented by the professional. The Court of Québec concluded that the Committee had incorrectly analysed the question. According to the Court, a professional’s prejudice depends on his capacity to adequately defend himself when faced with a disciplinary complaint, and the absence of a prescription period in disciplinary matters has absolutely no relevance in determining whether such a prejudice exists or not.
In addition, the Court of Québec recognized that the delay incurred since 1999 could present many difficulties for the professional hoping to adequately defend himself before the Committee in 2013.
Although the Court of Appeal did not directly intervene given the fragmented evidence that had been presented, it nevertheless confirmed that the Committee had distorted the required analysis and misrepresented the applicable criteria, and that the motives invoked by the Court of Québec were well-founded Dubé Légal inc., disciplinary law lawyers.
