Doyon, Ruel, Kalichman

Appeal from a judgment of the Superior Court dismissing an application for judicial review of a decision of the Professions Tribunal. Dismissed.

The appellant, a lawyer convicted in seven disciplinary files, argued that certain aspects of the professional disciplinary regime violated the guarantees of independence and impartiality in s. 23 of the Charter of human rights and freedoms (CQLR, c. C-12). The Superior Court dismissed his application for judicial review of the decision rendered by the Professions Tribunal, which had rejected the conclusions sought in the notices of intent to plead the constitutional invalidity of certain provisions of the Professional Code (CQLR, c. C-26) and the Code of ethics applicable to members of the disciplinary councils of professional orders (CQLR, c. C-26, r. 1.1).

Disciplinary councils are bodies with no constitutional existence or independent jurisdiction; they are not part of the judicial branch. To identify the guarantees of structural independence and impartiality, we must determine where they fall on the spectrum, range, array, or scale of administrative bodies. To do so, the contextual criteria to apply include the nature of the body, its functions, its attributes, its mode of operation, its powers, its jurisdiction, the finality of its decisions, the parties affected and the impact of its decisions on them, and the interests at stake, particularly whether the body rules on disputes between the State and citizens.

The appellant is wrong to claim that the criteria defined in Québec (Procureure générale) c. Barreau de Montréal (C.A., 2001-09-05), SOQUIJ AZ-50099903, J.E. 2001-1710, D.T.E. 2001T-914, [2001] R.J.Q. 2058, were rejected or redefined in Bell Canada v. Canadian Telephone Employees Association (S.C. Can., 2003-06-26), 2003 SCC 36, SOQUIJ AZ-50180846, J.E. 2001-1710, D.T.E. 2003T-644, [2003] 1 S.C.R. 884, and in Association des juges administratifs de la Commission des lésions professionnelles c. Québec (Procureur général), (C.A., 2013-10-02), 2013 QCCA 1690, SOQUIJ AZ-51006449, 2013EXP-3291, J.E. 2001T-914, [2001] R.J.Q. 1593. Those cases merely reiterate the importance of a contextual and overall analysis to determine the degree to which the guarantees of structural independence and impartiality of administrative tribunals and bodies must be applied.

In this case, the Superior Court performed this contextual analysis, and its conclusions are correct and consistent with the law. Disciplinary councils are not at the end of the spectrum justifying the application of a high degree of structural independence and impartiality, nor are they at the other end as bodies closely associated with the executive functions of the State. Rather, they fall in the intermediate range. The legislature has reasonable flexibility to arrange the composition, appointment, remuneration, training, and removal of members. It is not for the courts to legislate on these matters. Moreover, the appellant is mistaken to state that the guarantees of structural administrative independence and impartiality require that peers sitting on disciplinary councils be remunerated. Their voluntary and unpaid participation does not diminish but strengthens their independence. The appellant’s other arguments regarding the distinction between presidents and peers and the lack of oath were rightly rejected.

The structure of disciplinary councils, which are subject to the Professional Code and its regulations, provides solid guarantees of independence and impartiality, given the position of the councils on the scale of administrative tribunals and bodies. As determined in earlier proceedings, the question of whether a reasonable and well-informed person would perceive the provisions governing the participation of peers as a threat to their structural independence or impartiality should be answered in the negative in a large number of cases.

Text of the decision: http://citoyens.soquij.qc.ca