Disciplinary law: the disciplinary committee's duty when faced with diverging expert testimonies
As was decided by the Professions Tribunal in September 2013, a professional cannot be declared guilty of having violated an article found within his code of conduct under the heading “Obligations towards the client”, if the act said to be in violation was not committed within a professional-client relationship. Furthermore, when faced with opposing expert testimonies, the disciplinary committee must explain the raisons it decided to choose one expertise over the other (Pelletier v. Agronomes (Ordre professionnel des), 2013 QCTP 7).
THE FACTS
In May 2008, Germain Pelletier, managing director general for the Association des fabricants d’engrais du Québec, published an article in which he analysed the balance sheets representing the quality of Québec soil between 2001 and 2003. In his article, Germain Pelletier concludes that the quality of Québec soil is deteriorating and suggests that the method of fertilisation in application be reviewed.
The professional is accused of having based his article, in large part, on incomplete information, thus resulting in the misrepresentation of the efforts made by Québec society in the agri-environmental sector.
After having heard the expert witnesses produced by each of the parties, the Disciplinary committee decided to apply the theory presented by the syndic’s expert. According to said expert, the professional's analysis does not prove the deterioration of Québec soil and does nothing other than raise doubt in the minds of Québec farmers.
In disagreement with the decision rendered by the Disciplinary committee, the professional chooses to appeal this decision before the Professions Tribunal.
THE PROFESSIONS TRIBUNAL’S DECISION
After having considered the arguments invoked by both parties, the Professions Tribunal draws the following conclusions :
1. A professional cannot be declared guilty of having violated a disposition found within the section of his code of conduct dealing with the professional’s obligations towards his client, if the violation did not take place within the context of a professional-client relationship.
2. The publishing of an article in a given magazine has no obvious connection to the professional-client relationship.
3. In the case where expert witnesses provide opposing testimonies before the disciplinary committee, the committee must explain, in its written judgement, the contradictions existing between the views and theories discussed by the experts.
4. Furthermore, the disciplinary committee must explain the reasons why it chooses to apply the theory discussed by one expert, and must avoid simply accepting the point of view expressed by that expert without justifying its choice.
THE LESSONS TO BE LEARNED
1. A disciplinary committee must consider the structure of the applicable code of conduct when rendering its decision as to whether or not the professional is in violation of the law.
2. Faced with opposing and diverging expert testimonies, the disciplinary committee must avoid accepting one testimony over the other, without discussing, in his written judgement, the reasons justifying its choice. Dubé Légal inc., Montréal disciplinary law lawyers.
