Disciplinary law: a decision on penalty's stay of execution is not automatic, even if the penalty is a permanent limitation
In a judgement rendered on February 17th, 2022, the Professions Tribunal went over the applicable criteria established by jurisprudence regarding a stay of execution, and confirmed that even when a permanent limitation is imposed by a disciplinary council, a stay of execution is not automatic. The Professions Tribunal also reiterated the importance of allowing the parties to be heard concerning the imposition of penalties that largely exceed those suggested by the parties or recognized by other disciplinary councils in similar matters. When a disciplinary council decides to impose such sanctions, its decision must necessarily be motivated (Conea v. Infirmières et infirmiers (Ordre professionnel des), 2022 QCTP 5).
A disciplinary complaint consisting of four counts accusing the nurse in question of having inappropriately prepared, manipulated or administered narcotics was filed before the Disciplinary Council. The nurse pled guilty to all four counts. Concerning the penalty, the syndic suggested that a temporary striking off the roll, for a duration between 9 and 12 months, be imposed, as well as a temporary limitation of the nurse’s access to narcotics for a duration of 24 months; the nurse instead suggested that a fine of 2 500$ be imposed for each of the counts, and on a subsidiary basis, a striking off the roll for a duration of 6 months in regards to certain counts, and for a duration of 10 months in regards to the remaining counts. She notably invoked her 6-month leave from her employment in order to justify the shorter periods she recommended. The Disciplinary Council decided to dismiss each and every suggestion made by the parties and to instead impose a striking off the roll for a period of 7 and 10 months, and a permanent limitation to the nurse’s right to access, manipulate, prepare and administer narcotics.
The nurse decides to appeal the decision on penalty before the Professions Tribunal, but as a preliminary measure, asks the Tribunal to order the permanent limitation’s stay of execution while awaiting the final decision on the appeal. A disciplinary complaint consisting of four counts accusing the nurse in question of having inappropriately prepared, manipulated or administered narcotics was filed before the Disciplinary Council. The nurse pled guilty to all four counts. Concerning the penalty, the syndic suggested that a temporary striking off the roll, for a duration between 9 and 12 months, be imposed, as well as a temporary limitation of the nurse’s access to narcotics for a duration of 24 months; the nurse instead suggested that a fine of 2 500$ be imposed for each of the counts, and on a subsidiary basis, a striking off the roll for a duration of 6 months in regards to certain counts, and for a duration of 10 months in regards to the remaining counts. She notably invoked her 6-month leave from her employment in order to justify the shorter periods she recommended. The Disciplinary Council decided to dismiss each and every suggestion made by the parties and to instead impose a striking off the roll for a period of 7 and 10 months, and a permanent limitation to the nurse’s access to narcotics and her right to manipulate, preparer and administer them.
The nurse appeals the Disciplinary council’s decision regarding penalties before the Professions Tribunal, but as a preliminary measure, asks that the Tribunal order a stay of execution of her permanent limitation, while awaiting the final decision on appeal.
To begin, the Professions Tribunal reiterates the four criteria applicable to a stay of execution, namely (1) the economy of the law; (2) the apparent weakness of the decision; (3) the existence of exceptional circumstances and (4) the irreparable damage and the balance of inconveniences.
On the subject of the economy of the law, the Tribunal recognizes that the Professional Code provides the execution of the decision ordering a permanent limitation notwithstanding appeal. Considering the nurse’s argument that the Council had dismissed all of the parties’ suggestions without motivating its decision or offering them the chance to be heard on the question of the permanent limitation, the Tribunal confirms an apparent weakness on two levels: when a disciplinary council decides to dismiss the penalties proposed by either party or decides to impose a penalty that differs greatly from those generally imposed in similar matters, the council must not only give the opportunity to the parties to plead their cases, but must also motivate its decision and explain why the suggestions were dismissed. According to the Tribunal, the Disciplinary council seems to have failed on both these levels. In addition, the permanent limitation is not based on any comparable precedent and is so severe that it constitutes in itself an exceptional circumstance.
Regarding the irreparable damage and the balance of inconvenience, the Professions Tribunal explains that the permanent limitation only touches one aspect of the nurse’s practice, namely her access to and management of narcotics. The Tribunal also considers the fact that the nurse now occupies an administrative position, and even though her new duties may not be as interesting as they once were, her complete right to practice nursing is not at all at stake. The Tribunal confirms that there is no irreparable damage proven by the nurse in question.
Finally, the Professions Tribunal reiterates that its power to order a stay of execution is discretionary, and that given the circumstances, the nurse’s application must be dismissed Dubé Légal inc., disciplinary law lawyers.
