Disciplinary law : ability of a disciplinary committee to revoque a decision convicting a professional
As was decided by the Disciplinary Committee of the Barreau du Québec in October 2013, a disciplinary committee cannot order the re-opening of a hearing in order to authorize the applicant to submit an additional authority that was unavailable during the proceeding, even if said authority can undoubtedly influence the decision that is yet to be rendered by the committee (Barreau du Québec (syndic ad hoc) v. Adessky, 2013 QCCDBQ 78).
THE FACTS
A disciplinary complaint, accusing Kenneth Adessky of having failed to avoid a conflict of interests and having illegally deposited sums in his trust account, resulted in the respondent being convicted by the Disciplinary Committee of the Barreau du Québec on July 5th, 2013. The respondent asks the Committee to revoke the July 5th decision and to allow him to produce a new exhibit.
The lawyer invokes that in June 2013, he became aware of the Superior Court’s ruling in Kaufman Laramée L.L.P. v. Fonds d’assurance responsabilité du Barreau. This judgment was rendered on November 27th, 2013, and hence, during the period in which the Disciplinary Committee had taken the trial under advisement. Believing that this decision may have a significant impact on the Committee’s eventual ruling, the respondent sent a copy of the decision to the Committee’s secretary and asked that it be given to the members of the Committee.
Given the secretary’s refusal to transmit the decision to the Committee’s members, the respondent proceeded in preparing a motion in order to ask the Disciplinary Committee of the Barreau du Québec to consider his newly discovered authority. However, on July 8th, 2013, after having been served the Committee’s decision convicting him of the disciplinary infractions of which he was accused, the respondent discovers that his motion had not been properly filed and would never be considered by the Committee.
The lawyer therefore presents a new motion before the Disciplinary Committee, asking its members to revoke the judgment rendered on July 5th 2013 and to reopen the hearing, as to allow the production of the Superior Court’s decision as a new exhibit. His motion is notably based on the rule of precedent (stare decisis), the principle of procedural fairness and on his right to make full answer and defence.
THE DISCIPLINARY COMMITTEE OF THE BARREAU DU QUÉBEC’S DECISION
After having considered the arguments invoked by each of the parties, the Disciplinary Committee of the Barreau du Québec draws the following conclusions :
1. In general, courts can only revoke final decisions.
2. Even if in disciplinary matters, the decision by which a professional is convicted is not considered to be a final decision, seeing as the decision determining the sanction has not yet been rendered, a disciplinary committee can nevertheless apply the dispositions of the Code of civil procedure and consider revoking the decision that convicts the professional.
3. The conditions that may give rise to the motion in question include the existence of a decisive exhibit that could not be deposited earlier due to an irresistible force (a force majeure), or the discovery of a new fact that can significantly influence the trial’s outcome.
4. The judgment given by the Superior Court in Kaufman Laramée L.L.P. v. Fonds d’assurance responsabilité du Barreau can be qualified as neither an “exhibit” nor a “new fact”.
THE LESSONS TO BE LEARNED
1. A party cannot ask that the hearing be reopened in order to deposit an additional authority, even if the production of said authority can greatly affect the committee’s eventual decision. Dubé Légal inc., Montréal disciplinary law lawyers.
