Disciplinary law: the disciplinary council's illegal formation constitutes an error of principle
In a decision rendered on April 15th, 2019, le Professions Tribunal confirmed that a disciplinary council’s formation is a question touching the very jurisdiction of the council and in the case of an error, the Tribunal must intervene. When the formation does not respect the dispositions provided by the Professional Code, an error of principle exists, regardless of whether or not the parties concerned consented to the council’s formation being contrary to the law (Bégin v. Psychologues (Ordre professionnel des), 2019 QCTP 33).
Before the disciplinary trial even began, one of the Disciplinary Council’s members was unable to take part, and the complaint was instead presented to the two remaining members, including the president of the Council. Following the decision regarding culpability, which acknowledged the accountant’s guilty plea, and the hearing regarding sentencing, the Disciplinary Council went into deliberation. During the period of deliberation, the president of the Council stepped down. The decision regarding sentencing was finally rendered, with the consent of both parties, by a Council consisting of an initial member and a new president. This decision is appealed by the professional before the Professions Tribunal.
To begin, the Professions Tribunal goes over the legislative history of the multiple sections of the Professional Code regarding situations where a member of a disciplinary council is unable to take part in a trial. The Tribunal explains that the determination of the council’s quorum is not a procedural question, but rather one touching the very jurisdiction of the council; the sections of the Professional Code in question are provisions of public policy. Notwithstanding the consent given by the parties, the disciplinary council’s quorum must be legal in order for a decision rendered by said council to be valid.
Section 118.5 of the Professional Code provides the conditions under which a trial can continue despite the stepping down of the council’s president. The Professions Tribunal emphasizes the notion of trial, and explains that it is a phase very different from the phase of deliberation. The trial is defined as the step during the disciplinary process where the evidence is administered and argued by the parties involved, whereas the deliberation is the period, following the trial, during which the decision-maker will appreciate the evidence and render a decision.
The Professions Tribunal also indicates that because section 118.5 of the Professional Code constitutes an exception to the rule stating that three members must sit on a disciplinary council, it must receive a restrictive interpretation.
Section 118.5 of the Professional Code covers the continuance of the trial in two situations: (1) before a decision regarding culpability is rendered or (2) during the hearing regarding sentencing. It does not at all cover the phase of deliberation.
Considering the facts on file, the Tribunal recognizes that the president had stepped down during the deliberation, and not during the trial. As this situation is not covered by the scenarios described in section 118.5 of the Professional Code, the continuance of the deliberation by a new president is simply not allowed. By rendering a decision regarding sentencing, the Disciplinary Council, consisting of an initial member and a new president, exceeded its jurisdiction.
The Professions Tribunal decides to not consider the consent expressed by the parties who had agreed that the deliberation be continued by a new president, seeing as the provisions in question are of public policy. The Tribunal concludes that the Council was not legally formed at the time the decision regarding sentencing was rendered, and quashes and cancels said decision Dubé Légal inc., disciplinary law lawyers.
