Disciplinary law : a syndic and profressional order can be held liable for the damages caused by the assisting expert's gross negligence
According to a Superior Court judgement rendered in April 2014, when a syndic decides to file a disciplinary complaint on the basis of an expert opinion that is subsequently proven to be false and unacceptable, both the syndic and the professional order can be held civilly liable for the damages suffered by the professional (Gilbert v. Ordre des ingénieurs du Québec, 2014 QCCS 1489 (CanLII)).
THE FACTS
During a disciplinary inquiry concerning Yves Gilbert, engineer, the syndic, in accordance with section 121.2 of the Professional Code, hired a construction expert in order to evaluate the likelihood of a building, constructed by the engineer, collapsing. Basing its decision entirely on an incorrect expert opinion, a disciplinary complaint was lodged against the engineer.
Following a long and tedious legal battle, resulting in the engineer being acquitted and the expert’s professional errors being deemed inacceptable by the court, the engineer claimed $188 336. 16 in damages from the Ordre des ingénieurs du Québec, the syndic and the assistant syndic. The engineer argues that the syndics and the expert who assisted the syndics during the inquiry that later gave rise to the lodging of the disciplinary complaint were careless and negligent.
As their primary ground of defense, the Order and the syndics argue that the fault committed in the circumstances cannot be assimilated to gross negligence and in consequence, the immunity described by section 193 of the Professional Code remains applicable. Alternatively, they argue that even if gross negligence can be proven, it is not they, but rather the independent expert nominated in virtue of section 121.2 of the Professional Code who was negligent. In addition, the Order and the syndics invoke their good faith, the fact that they neither controlled nor supervised the expert’s work and that they were also misled by the expert in question.
THE SUPERIOR COURT’S DECISION
After having considered the arguments invoked by both parties, the Superior Court draws the following conclusions :
1. A syndic must always act prudently and diligently, respect all elementary norms applicable during a disciplinary inquiry and actively take part in said inquiry.
2. When the services of an expert are retained by a syndic, the latter cannot limit himself to the conclusions drawn by the expert and must necessarily carry out his own investigation before taking the decision to file or not file a disciplinary complaint against the professional.
3. A syndic who does not carry out his own investigation prior to taking the decision to file or not file a disciplinary complaint against a professional proves to be grossly negligent.
4. A syndic’s gross negligence is a fundamental breach of the powers that he must exercise on behalf of the professional order.
5. The expert retained by the syndic during a disciplinary inquiry is considered to be an expert within the meaning of section 121.2 of the Professional Code, rather than as defined by civil law.
6. The powers exercised by the syndic are also exercised by the expert who assists him under section 121.2 of the Professional Code.
7. The professional order will be held liable for damages caused by the expert or the syndic’s gross negligence.
8. Neither the professional order nor the syndic can benefit from total immunity when their expert, acting under section 121.2 of the Professional Code, commits a fault.
THE LESSONS TO BE LEARNED
1. During a disciplinary inquiry, the syndic must act prudently and diligently.
2. An expert, nominated in accordance with section 121.2 of the Professional Code must always investigate in a professional manner.
3. Neither a professional order nor a syndic can exclude its liability by invoking a professional error committed by the expert acting under 121.2 of the Professional Code Dubé Légal inc., Montréal disciplinary law lawyers.
