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Disciplinary law: a disciplinary council's civil liability when its members act in bad faith

In a judgement rendered in May 2014, the Court of Appeal confirmed that neither the disciplinary councils nor the professional orders can be held liable for the damages resulting from an unfounded disciplinary decision, unless it is proven that the council or the order acted in bad faith during the performance of their duties. The notion of bad faith must be interpreted largely, as to include carelessness, negligence, and imprudence (Bohémier v. Barreau du Québec, 2014 QCCA 961 (CanLII)).

THE FACTS           

In September 2005, two disciplinary complaints, accompanied by a motion to order a temporary striking off the role, were submitted by the Barreau’s assistant syndic against Myriam Bohémier, attorney at law. The Disciplinary Council decided to only rule on the motion to order a temporary striking off the role. In November 2005, it was decided that the lawyer would be struck off the role until a subsequent ruling on the complaints. All motions submitted by the lawyer in order to suspend the striking off the role during the appeal of the Council’s decision were refused.

In October 2006, following a motion, presented by the lawyer, in order to recuse the members of the Disciplinary Council, the Professions Tribunal held that the Council had been partial. In consequence, the order to temporarily strike the lawyer off the role was reversed and her reinstatement to the role was ordered.

Believing that she had been subject to an illegal striking off the role for roughly a year, the lawyer took an action in hopes of obtaining punitive damages from the Barreau, its board of directors and the members of the Disciplinary Council.

The Superior Court of Québec qualified the immunity enjoyed by the Disciplinary Council’s members as per article 193 of the Professional Code as relative and affirmed that the good or bad faith of the members must be evaluated by considering their interventions during the disciplinary process. The Superior Court judge concluded that members’ bad faith had not been established in the circumstances.

Unsatisfied with the decision rendered by the Superior Court, the lawyer brought it to appeal. While recognizing that the immunity granted to the members of the Disciplinary Council is relative, she argued that the need to prove the malicious intent of the members is too high a burden. The lawyer argued that it is not an intentional fault that must be established, but rather gross negligence, carelessness or an abuse of power. Once the members are proven to have acted in bad faith, their immunity will fall.

THE COURT OF APPEAL’S DECISION

After having considered the arguments invoked by both parties, the Court of Appeal draws the following conclusions :

1.    Legal action cannot be taken against a disciplinary council or their members for any acts performed in good faith; a similar protection applies to the Professions Tribunal, the syndic and an Order’s board of directors, although the degree of protection may vary according to the duties each one fulfills.

2.    The concept of bad faith must be interpreted flexibly.

3.    As was decided by the Supreme Court of Canada in Finney, bad faith does not always imply malicious intent and must be interpreted largely, as to include carelessness, imprudence and gross negligence.

4.    Proof of a malicious intent is not needed in order to establish bad faith or to hold a disciplinary council’s members civilly liable.

5.    The context in which the decision was rendered must be considered in order to determine whether or not the members who rendered said decision acted in bad faith.

6.    If there exists no proof that a clear and determinative error was committed by the court of first instance, an appeal court cannot put aside any conclusions drawn by the court of first instance.

THE LESSONS TO BE LEARNED

1.    Legal action cannot be taken against the disciplinary council or its members who act in good faith, as they are covered by the immunity provided by article 193 of the Professional Code.

2.    The concept of bad faith does not necessarily imply malicious intent.

3.    Bad faith may also be established by proving carelessness, imprudence or gross negligence Dubé Légal inc., Montréal disciplinary law lawyers.