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Disciplinary law: the disciplinary committee's refusal to impose the sanction proposed by the parties

As was decided by the Professions Tribunal in January 2014, a disciplinary committee cannot refuse to impose the sanction suggested by the parties, unless said sanction is unreasonable, unjustified or contrary to the proper administration of justice. If the disciplinary committee refuses to apply the recommended sanction to the professional in question, the committee’s members must justify this decision and offer the parties the opportunity to present additional arguments. (Chan c. Médecins (Ordre professionnel des), 2014 QCTP 5).

THE FACTS           

Given the guilty plea entered by Kenneth Chan, a physician by profession, the parties proceeded in jointly representing their clients and recommending to the Disciplinary Committee of the Collège des médecins du Québec that the phsycian be struck from the roll for two weeks. Both parties presented arguments, expert rapports, as well as jurisprudence justifying the suitability of this sanction in the circumstances.

The members of the Disciplinary Committee, who always conserve the power to approve or refuse a joint recommendation made by the parties, refused to impose the proposed sanction, but allowed the parties to present additional arguments. The Committee, however, did not specify the precise reason behind its refusal, but admitted that it did question the value of a disciplinary sanction based on joint recommendations in comparison to one resulting from an open debate between the parties.

On appeal before the Professions Tribunal, the parties, once again, presented their joint recommendations concerning the sanction that they believe should be imposed in the circumstances.

THE PROFESSIONS TRIBUNAL’S DECISION

After having considered the arguments invoked by both parties, the Professions Tribunal draws the following conclusions :

1.    When faced with a joint recommendation concerning the sanction to be imposed, the disciplinary committee must determine whether said sanction is reasonable, justified and consistent with the proper administration of justice.

2.    The committee must take in consideration the jurisprudence invoked by the parties in order to determine whether the recommended sanction falls within the range of disciplinary sanctions that have been previously imposed on professionals in similar situations.

3.    If the committee decides to refuse the joint recommendation made by the parties, the committee must summarize the reasons behind its decision.

4.    The committee, after having given the reasons for its refusal, must offer the parties the opportunity to present additional arguments.

5.    If ever the committee decides to impose a harsher sanction on the professional in question, it must explain why the circumstances at hand justify such a sanction.  

THE LESSONS TO BE LEARNED

1.    When a joint recommendation concerning the sanction to be imposed on the professional is made by the parties, the disciplinary committee must not rule on the severity or the leniency of said sanction, but must instead determine whether the sanction is so unreasonable that it is considered to be contrary to public interest or to the proper administration of justice. Dubé Légal inc., Montréal disciplinary law lawyers.