Canada: Is The Civil-Law Right To Examine The Declarant Of A Sworn Statement Transposable To Disciplinary Law?

The facts

The facts of this case are fairly straightforward. A disciplinary complaint alleging 18 separate offences (the "Complaint") was filed by Mtre Annick Normandin, the assistant syndic of the Chambre des notaires (the "Complainant") against a notary, Mtre De Barros (the "Respondent"), accompanied by Mtre Normandin's sworn statement, as required by section 127 of the Professional Code1.

At the outset of the proceedings, the Respondent moved to examine the Complainant on her sworn statement. The syndic of the Chambre des notaires objected on the grounds that the Complainant was not bound to submit to an out-of-court examination, as she had fulfilled her obligation to disclose the evidence against the Respondent, and an examination would serve no purpose under the circumstances. The syndic added that the Complainant would be testifying at the hearing on the merits of the Complaint and could be cross-examined on that occasion.

The Respondent then filed an application to have the Complaint dismissed based on article 93 of the former Code of Civil Procedure2, which provides that the signor of a sworn statement may be summoned before a judge or a clerk to be examined on the truth of the facts sworn to in the statement, and that failure to submit to such an examination entails the dismissal of the sworn statement and of the proceeding which it supports. According to the Respondent, the Complainant's failure to submit to an examination on her sworn statement violated the principles of natural justice, particularly the audi alteram partem rule, as the Respondent was thereby deprived of knowing what disciplinary faults he was accused of and could not mount a full and complete defence.

Previous decisions

The disciplinary council dismissed the Respondent's application for the dismissal of the Complaint3 on the grounds that the Complainant's refusal to submit to an examination on her sworn statement in no way deprived the Respondent from mounting a full and complete defence. The Complaint was clear, free from ambiguity, and respected the requirements of section 129 of the Professional Code. The Complainant had also fulfilled her obligation to disclose the evidence. In addition, the disciplinary council pointed out that disciplinary law is a sui generis branch of the law such that former article 93 CCP cannot be imported into it. Moreover, nothing in the Professional Code allows the Respondent to conduct such an examination.

The Superior Court4, which took the view that the question of whether or not the Respondent had the right to examine the Complainant on her sworn statement pursuant to section 127 of the Professional Code did not come within the expertise of the disciplinary council, applied the correctness standard and granted in part the application for declaratory judgment and judicial review of the council's interlocutory decision. Superior Court Justice Jean-François Buffoni concluded that the right to examine and the corresponding sanction provided for in article 105 of the new Code of Civil Procedure for breaching that right applied to a sworn statement filed in support of a disciplinary complaint pursuant to section 127 of the Professional Code. However, the disciplinary council had discretion in that regard and could thus decide on the conditions for the holding of the examination. The Court therefore returned the file to the disciplinary council in order for it to define those conditions.

Analysis

The Court of Appeal overturned the Superior Court's decision and held that the reasonableness standard applied, given the robust privative clause that protected the disciplinary council's jurisdiction5. The province's highest court also pointed out that the abolition of the right to appeal an interlocutory decision of a disciplinary council was further confirmation of the legislature's intent to enhance the expeditiousness of the disciplinary process.

The Court of Appeal concluded that the Superior Court erred in law by stating that the disciplinary council had to apply a provision of the Code of Civil Procedure. Contrary to what the Respondent-appellant maintained, the question at issue in this matter involved the interpretation of the Professional Code, and consisted of determining whether it was appropriate to import certain procedural rules into disciplinary matters. Consequently, the reasonableness standard applied and deference had to be shown towards the council's decision.

The Court of Appeal thus reinstated the disciplinary council's decision, and pointed out that the procedural rules under the Code of Civil Procedure are not automatically transposable to the disciplinary process [TRANSLATION]:

  1. ... One need think only of the detailed content of the complaint specified by section 129 of the Professional Code, the syndic's role as investigator and accuser, the communication of the evidence and the procedural autonomy of the Council as evidenced by section 144 of the Professional Code, the inquisitorial nature of the disciplinary process, the determination of guilt on the basis of the evidence led before the Council and not on the basis of the syndic's investigation and, finally, the goal of expeditiousness sought by the legislature.

In addition, the purpose of the oath required under section 127 of the Professional Code is not to attest to the veracity of the facts alleged in the complaint, but to the existence of "reasonable grounds for believing that the facts alleged in the complaint are true". The oath is inspired more by that accompanying the laying of an information in criminal law than an affidavit in support of a procedural document in civil proceedings.

Conclusion

This decision of the Court of Appeal confirms the sui generis nature of disciplinary law under which the disciplinary council of a professional order derives its jurisdiction from the Professional Code, its constituting statute. However, while a disciplinary council has limited jurisdiction, it nonetheless has broad powers allowing it to "decide any question of law or fact necessary for the exercise of its jurisdiction"6.

When the result of a decision of a disciplinary council is reasonable, the courts must show great deference towards it, given the privative clause in the council's constituting statute, as the Court of Appeal rightly reminds us.

The undersigned would like to point out that this recent decision confirms the principle whereby the syndic's investigation is confidential and reiterates that the legislature sought to make the disciplinary process more expeditious. The issue remains however whether a private complainant who has not fulfilled his or her evidentiary obligations qua complainant could be examined on the sworn statement filed pursuant to section 127 of the Professional Code.

Footnotes

1 C.Q.L.R. c. C.-26:

  1. The complaint must be made in writing and supported by the oath of the complainant. The secretary of the disciplinary council may not refuse to receive a complaint on the sole ground that it was not made using the form proposed pursuant to subparagraph 9 of the fourth paragraph of section article 12.

2 R.L.R.Q. c. C.-25. This article corresponds to articles 105 and 222 of the new Code of Civil Procedure, C.Q.L.R. c. C-25.01.

3 Notaires (Ordre professionnel des) v. De Barros, SOQUIJ AZ-51209153 (D.C.)

4 De Barros v. Conseil de discipline de la Chambre des notaires du Québec, 2016 QCCS 4721

5 Sections 194 to 196 of the Professional Code

6 Section 143 of the Professional Code

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