Did you know that experts whose services are retained by a syndic for a disciplinary complaint enjoy immunity under the Professional Code?
The decision in Touchette v. Ordre des psychologues 2022 QCCA 1498 handed down by the Court of Appeal in November 2022 is a good example of just that.
In the case at hand, the syndic of the Ordre des psychologues retained Touchette’s services for a disciplinary complaint against psychologist Houle. The complaint against Houle was filed and debated before the professional order’s disciplinary council, which dismissed it, noting certain shortcomings in Touchette’s competence, objectivity and impartiality in her role as an expert.
Houle went on to file a private complaint against Touchette before the disciplinary council, where she invoked her immunity under section 116 para. 4 of the Professional Code as a ground for dismissal. The council rejected the claim. During its judicial review, the Superior Court also dismissed the immunity claim and did not grant the application for dismissal.
The Court of Appeal completely reversed the position of the lower courts.
The Court of Appeal pointed out that the principal mission of the Professional Code is to protect the public, and that, as such, the Code includes mechanisms to monitor the practice of the profession by its members. Under section 116 para. 4, any complaints made against those exercising a function under the Code are inadmissible. This limits the authority of the disciplinary council to hear and sanction disciplinary complaints made against professionals exercising a function in support of the public protection mission.
In the disciplinary process, a professional order’s syndic is both an investigator and the plaintiff. Given this dual role, syndics are independent when fulfilling their duties. In other words, the disciplinary council does not have the power to oversee how syndics conduct their inquiries. Section 121.2 of the Professional Code sets out that a syndic may retain the services of an expert or other such persons to assist in the performance of the investigative functions. It stands to reason that such experts must be familiar with the file of the professional under inquiry and the details of the case. They also need to take an oath of discretion as provided for under the Professional Code.
The expert’s report then becomes part of the evidence used by the syndic to decide whether or not to lodge a disciplinary complaint.
According to the Court of Appeal:
“The council’s conclusion that an expert mandated by a syndic in the context of his or her inquiry does not exercise a function under the Code, unless the expert is expressly vested with an inquiry power under the terms of his or her mandate, ignores the functions of the syndic’s inquiry and the expert’s assistance under the Prof. C. Syndics who require the assistance of an expert to validate their inquiry necessarily do so under section 121.2 Prof. C. From that moment on, the expert shares, among other things, the same powers with regard to professional records set out under section 192 Prof. C. The expert must therefore be able to enjoy the same immunity as the syndic.” [Translation]
Based on the Professional Code, this immunity is critical to the work of the syndic and the stability of decision making during the disciplinary process.
The concept of good faith, of course, determines the limits of immunity. As the Court of Appeal pointed out, it may be appropriate to provide experts with broad access to the syndic’s documentation to help them perform their duties in a comprehensive, meaningful manner, and to refer to section 121.2 of the Professional Code, which is also relevant, in addition to the oath of discretion.