Disciplinary law: a decision concerning a motion to recuse or disqualify can be appealed before the Professions Tribunal
In a judgement rendered on August 3rd, 2022, the Professions Tribunal confirms that even if the Professions Tribunal no longer has the jurisdiction to hear appeals of interlocutory decisions, it nevertheless has the jurisdiction to hear the appeal of a decision by which a motion to recuse or disqualify a member of a disciplinary council was dismissed, as such a decision constitutes an exception to the general procedure determined by section 164 of the Professional Code (Blais c. Barreau du Québec (syndic adjoint), 2022 QCTP 31).
Following the repeal of section 164, paragraph 2 of the Professional Code in June 2013, all interlocutory decisions rendered by a disciplinary council, as well as decisions made by the president acting alone, can no longer be appealed before the Professions Tribunal.
To begin, the Professions Tribunal confirms that the decision concerning a motion to recuse or disqualify a member of a disciplinary council is an interlocutory decision. However, it is not a decision subject to section 164 of the Professional Code, as it is explicitly referred to in section 140 of the Code, a section specifically touching motions to recuse or disqualify a member of a disciplinary council.
Section 140 of the Professional Code contains an interlegislative referral to the Code of civil procedure, as it provides that sections 201 to 205 of the latter applies with the necessary adaptations. The legislator therefore chose to integrate the judicial regime provided in the Code of civil procedure relating to recusations and disqualifications into the Professional Code, most notably section 205 that stipulates that all decisions concerning a motion to recuse or disqualify can be appealed on permission before the Court of Appeal.
As the Professions Tribunal is the appeal body created by the Professional Code to hear all appeals pertaining to disciplinary decisions, the most logical and pragmatic interpretation to be given to section 140’s referral is that the appeal of a decision concerning a motion to recuse or disqualify a member of a disciplinary council is to be brought before the Professions Tribunal.
Judging in this fashion, the Professions Tribunal not only confirmed that a decision concerning a motion to recuse or disqualify constitutes an exception, for which the legislator chose to conserve the right to appeal before the Professions Tribunal, but also that the right to an impartial hearing has a quasi-constitutional value that justifies that a motion to recuse, as is provided by the Professional Code, be treated as a exception to the rule established by section 164 of the Code.
Finally, the Professions Tribunal exercised its jurisdiction in appeal and dismissed the motion, all while specifying that the decision rendered by the president in question did not contain any apparent weaknesses and that there were no motives alleged by the professional to raise an objective and reasonable apprehension of bias Dubé Légal inc., disciplinary law lawyers.
