Disciplinary law: the disciplinary council shall notify the parties of its intention to dismiss a joint recommendation regarding sanctions and it cannot reduce the duration of a striking off the roll for the sole reason that there exists a delay between the hearing regarding the sanction and the decision regarding the sanction.

Disciplinary law. In a decision issued in November 2012, the Professions Tribunal reiterated the principle stating that when the disciplinary council has the intention of dismissing a joint recommendation that imposes a sanction on a member of a professional order, it must notify the parties who formulated the given recommendation. The Professions Tribunal also confirms that a disciplinary council cannot reduce the period of a temporary striking off the roll imposed on a member for the sole reason that there exists a significant delay between the hearing regarding the sanction and the hearing of the decision regarding the sanction. (Infirmières et infirmiers auxilaires (Ordre professionnel des) v. Gauthier, 2012 QCTP 151).

THE FACTS

Following a complaint filed against Ms. Gauthier by the Assistant College of Nurses, Ms. Gauthier entered a guilty plea. During the hearing regarding the sanction, the parties presented a joint recommendation, suggesting that Ms. Gauthier be temporarily struck off the roll for periods varying from two weeks to a month. These periods, served by Ms. Gauthier simultaneously, would depend on the seriousness of the accusation in question.

THE DISCIPLINARY COUNCIL’S DECISION

Without having first heard the parties, the disciplinary council for the College of Nurses decides not to follow the joint recommendation that had been previously presented by the parties. Taking into consideration the delay between the hearing regarding the sanction and the decision regarding the sanction (a delay of 35 months), the disciplinary council chooses to instead strike Ms. Gauthier off the roll for a reduced period of a day, a decision it bases primarily on equity and natural justice. The Assistant College of Nurses decides to appeal this decision before the Professions Tribunal.

THE PROFESSION TRIBUNAL’S DECISION

The disciplinary council’s failure to notify the parties of its intention to dismiss their joint recommendation

The Professions Tribunal first highlights that the question at hand concerns procedural fairness, notably the parties’ right to be heard. The Professions Tribunal then discusses the guiding principles that define the joint recommendation made to a professional order’s disciplinary council. It must first be noted that because the disciplinary council is never bound by a joint recommendation, it preserves its discretionary power to impose the sanction that it believes to be most appropriate in the circumstances. However, in exercising its discretion, the disciplinary council must continue to respect certain rules, notably its obligation to notify the parties of its intention to dismiss their joint recommendation and of the reasons justifying this decision. In order for this rule to be fully respected, the disciplinary council must necessarily give the parties a right to be heard and thus, a right to defend their proposal. The Professions Tribunal explains that the disciplinary council cannot dismiss the joint recommendation and render another decision regarding the sanction, without first allowing the parties to justify their recommendation. Consequently, the Professions Tribunal declares the disciplinary council’s decision null and instead subscribes to the joint recommendation presented by the parties, believing it to be the more appropriate sanction to impose on Ms. Gauthier.

The decision to reduce the duration of the periods of temporary striking off the roll, as there exists a significant delay between the hearing regarding the sanction and the hearing of the decision regarding the sanction

Given that Ms. Gauthier had pleaded guilty to the accusations held against her, that the parties had presented a joint recommendation as to the sanction to impose and that the hearing regarding the sanction had only lasted an hour, the Professions Tribunal confirms that a delay of 35 months between the hearing regarding the sanction and the hearing of the decision regarding the sanction is inconceivable. The Professions Tribunal nevertheless considers that a disciplinary council cannot choose to reduce the duration of a given sanction simply because a decision was not rendered in a reasonable time frame. Furthermore, the disciplinary council, aware of the importance that must be accorded to the protection of the public when determining the appropriate sanction to impose on a professional found guilty of a disciplinary offence, must allow the parties to present their respective arguments concerning the injuries resulting from the unreasonable delay and the exceptional circumstances that may justify such a delay. The decision to reduce a sanction must always take into account the public’s trust in the disciplinary process and must remain by nature, exceptional.

THE CONCLUSION

Through this decision, the Professions Tribunal aims to emphasize the ground rules that must continue to be respected by the disciplinary councils created by Québec’s multiple professional orders. Dubé Légal inc., Montréal disciplinary law lawyers.