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Disciplinary law: the principles of natural justice and of procedural fairness justify that a professional who is referred to by a resolution adopted by the executive committee, following a recommendation made by the professional inspection committee, consult all examinations that may have given rise to the recommendation

Disciplinary law, right to consult : In a judgment rendered in February 2013, the Québec Court of Appeal confirmed the decision previously rendered by the Superior Court. The latter decision stated that a resolution, by which the executive committee adopts the recommendations made by the professional inspection committee, can be annulled if the professional concerned was refused the right to consult all examinations that may have given rise to these recommendations. Failure to allow the professional in question to consult his examinations constitutes a violation to the principles of natural justice and of procedural equity (Ordre des infirmières et infirmiers du Québec v. Ngoya Tupemunyi, 2013 QCCA 134).

THE FACTS

In April 2010, the Order of Nurses' surveillance bureau put into question the professional competence of the respondent, a registered nurse since 1999. In response to this information, the inspection committee proceeded to the individual inspection of the nurse in question, notably by asking her to fill out a self-assessment form and to take part in a personal interview.

In February 2011, the professional inspection committee transmitted a report to said nurse, informing her that a recommendation had been made to the Order of Nurses' board of directors and inviting her to present her written observations on this recommendation.

Although the nurse's lawyer requested, on three separate occasions, that a copy of her client's complete file, including a copy of the individual inspection examination be sent to her, the Order of Nurses, invoking article 40 of the Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information, sent only certain documents and refused all access to the examination.

Unable to consult the examination, the nurse chose to emphasize on other aspects of her file when addressing her comments to the Order. Despite these observations, the board of directors adopted a resolution, ordering the nurse to complete refreshed training and limiting her right to exercise the profession.  

THE SUPERIOR COURT'S DECISION

The Superior Court judge decided that by refusing to give the professional in question access to the questions and answers contained in her individual examination, the executive committee violated the principles of natural justice and of procedural equity. According to the Superior Court, this refusal deprived the nurse of the ability to present her written observations with full knowledge of the reasons behind the given recommendation.

THE COURT OF APPEAL'S DECISION

To begin, the Court of Appeal confirms that the obligation to respect procedural equity applies to all administrative inquiries and professional inspections that may result in recommendations affecting the rights of the professional. The more important the decision and its repercussions on the personal life of the professional involved, the more important the need to ensure that procedure is respected. This being said, the nurse in question had not only the right to properly defend herself against the recommendations made by the inspection committee, but also the correlative right to consult her individual inspection examination.

According to the Court of Appeal, the executive committee's decision put into play the nurse's right to exercise her profession. As the deprivation of this right may have serious consequences on the life of the individual involved, the executive committee was, in fact, subject to very strict procedural requirements.

Consequently, the Court of Appeal decides that the nurse had, at the very least, the right to consult her professional inspection examination. The Court proceeds by explaining that article 40 of the Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information, a disposition allowing an public body to refuse communication of a study prepared in connection with a recommendation, must be interpreted restrictively. Allowing the on-site consultation of an examination balances the protection offered by the law, the professional's rights, and the transparency of the system put into place by the legislator.

CONCLUSION

The Court of Appeal dismisses the appeal and orders the executive committee to render a decision based on the recommendation given by the professional inspection committee only following the respondent's consultation of the questions and answers of her examination. Dubé Légal inc., Montréal disciplinary law lawyers.