Canada: Will The Jordan Decision Have An Impact On Disciplinary Law?

Despite the efforts of the legislature and various interveners in the judicial system, major procedural delays are still prevalent in the legal system. The area of disciplinary law is no exception.

In disciplinary matters the legislature has intervened progressively in stipulating the timelines for the preliminary procedural steps in files1, the trial stage2 and drafting the judgment3. While these timelines have been established as guidelines, the intention is to recognize the respondents' interest in having their cases heard and decided upon within a reasonable time.

In July 2016 in the Jordan case4, the Supreme Court of Canada established the procedural delays beyond which the accused is presumed to have been deprived of the right to a fair trial in a reasonable time. The Court created a presumption of unreasonable delay leading to a stay of proceedings where the period between the laying of charges and the conclusion of the trial is more than 18 months, for cases in provincial courts, and more than 30 months for cases before superior courts.

Whereas previously excessive delays could impact the outcome of a case if harm could be proven, this new analytical framework relieves defendants of the burden of having to prove harm.

Can this presumption established by our highest court in criminal and penal matters be transposed to professional disciplinary law?

Recent decisions5 rendered following Jordan have held that the presumption created in that case cannot be applied in disciplinary law, as the respondent before a disciplinary tribunal is not a "person charged with an offence" as contemplated by the Canadian Charter of Rights and Freedoms. Moreover, disciplinary law is separate and distinct from penal law, even though it shares some of the latter's terminology and procedure. Furthermore, disciplinary tribunals have repeatedly cited the dicta of Justice Baudoin of the Quebec Court of Appeal in its 1992 decision in Béliveau v. Comité de discipline du Barreau du Québec6 [TRANSLATION]: 

[D]isciplinary law is a sui generis domain of law and it is wrong to seek at all costs to introduce the methodology, reasoning and principles of penal law into that domain. The hearing of a complaint before a disciplinary council is not a criminal or quasi-criminal proceeding. Nor is a professional fault the equivalent of a criminal offence.

Disciplinary procedure has its own specific rules, derived from both civil law and penal law. However, in disciplinary law the passage of time alone cannot entail a stay of proceedings, as a disciplinary fault is subject to no statute of limitations and thus cannot become prescribed or time-barred. Nevertheless, it has long since been established that disciplinary tribunals must apply the principles of natural justice and have the obligation to act fairly.

In disciplinary law, proof of harm on account of undue delays is required for either a stay of proceedings to be ordered, or a mitigation of the sanction imposed by the tribunal. Also to be considered is which side is responsible for the delays, and whether the respondent has been deprived of the right to present a full and complete defence as a result.

Contrary to what is the case in criminal and penal matters, disciplinary councils tend to mitigate the sanction rather than stay the proceedings, particularly where the unreasonable or excessive delays result from the length of the hearing and subsequent deliberations of the tribunal. The extent to which the sanction is lessened may be influenced by factors such as the seriousness of the infraction from an objective standpoint, and the need to protect the public. Another factor that may be taken into consideration in assessing the overall fairness of the proceedings is the length of time between the facts complained of and the filing of the actual complaint.

In this regard, the recent decision of the Court of Appeal in Landry v. Guimont7 is noteworthy. In that case, rather than returning the file to the disciplinary tribunal for the imposition of the sanction, the Court ordered a stay or proceedings on the basis of the exceptional circumstances of the matter, stating the following in that regard [TRANSLATION]:

... Between 11 and 13 years have elapsed since the commission of the acts complained of, for which the respondent' right to practice was suspended for more than 55 months, a measure that was later overturned by the Professions Tribunal.

[74]  It is therefore appropriate in this case to consider a remedy that will put an end to these singularly unproductive proceedings, which have evolved in a confrontational climate aggravated by the passage of time, and whose very purpose does a disservice to the interests of justice, in addition to using judicial resources ineffectively and to the detriment of other citizens whose access to justice is thereby compromised.

[75] Under the circumstances, I am of the view that a stay of proceedings is the only remedy that will ensure that this intolerable situation will cease.

Given the importance afforded delays by the superior courts, we will have to wait and see whether the response of disciplinary tribunals to Jordan will be sufficient to maintain the confidence of respondents, other professionals and the public and in the professional justice system. The Jordan decision may have some influence on professional law and increase the pressure on disciplinary tribunals to deal more expeditiously with files.


1 Rules of evidence and practice for the conduct of proceedings relating to complaints lodged with the disciplinary councils of professional orders, CQLR c. C-26, r. 8.1

2 Section 139 Professional Code

3 Sections 150 and 154.1 Professional Code

4 R. v. Jordan, 2016 SCC 27

5 Organisme d'autoréglementation du courtage immobilier v. L'Écuyer 2016 CanLII 74017, Organisme d'autoréglementation du courtage immobilier v. Safdar 2016 CanLII 78378, Ordre professionnel des dentistes v. Terjanian 2016 CanLII 71683

6 [1992] R.J.Q. 1822, 1825

7 2017 QCCA 238

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions