Administrative adjudicators can be removed from cases in deliberation, rules court

In an unusually public and legal tiff between two arbiters of Quebec’s disciplinary process, Quebec Superior Court ruled that the chair of Quebec’s disciplinary council of presidents has the power to remove cases, even in deliberation, from administrative adjudicators who take too long to render judgment.

The precedent-setting ruling, the first that examined the scope of powers in the hands of the chair, follows in the footsteps of a pan-Canadian trend by the courts to hold that the long-standing principle that adjudicators decide must give way to timely decision-making to ensure access to justice, respect for natural justice and the protection of the public, according to disciplinary law experts.

“It is said that the expectations towards administrative tribunals, particularly in terms of independence and impartiality, should be equivalent to the courts, all the while taking into account the differences between the two,” noted Emmanuelle Bernheim, a law professor at the Université du Quebec à Montréal and co-author of the book Applied Judicial Ethics. “In this case why shouldn’t the adjudicator be held to the same general rules as the courts? This decision opens the door to that.”

The case came to the fore after the chair, Marie-Josée Corriveau, became increasingly concerned that one of the presidents of the disciplinary council had a growing list of cases in deliberation. Under the Professional Code, the framework legislation that governs the Quebec professional system, disciplinary councils are expected to render a decision within 90 days from the time the matter is taken under advisement.

But following a long and complex deliberation in fall 2017, Chantal Perreault, Ad.E. and one of 14 disciplinary council presidents, had 25 cases between April 1, 2018 and June 4, 2019 that surpassed the 90-day period, more than half of which surpassed the 180 day mark, including four that exceeded a year, according to evidence provided by Corriveau. After a couple of meetings and written exchanges over a six-month stretch, Corriveau reduced Perreault’s workload so that she could concentrate on her deliberations. On March 2019, Corriveau reminded Perreault that she had undertaken a firm commitment to issue decisions under deliberation to which Corriveau wrote back she did not realize she it was a firm commitment but thought it was instead a commitment to do her best.

On April 5, 2019, Corriveau removed five cases from Perreault, all of which were in deliberation from 126 to 384 days. In response, Perreault sent a demand letter to Corriveau in which she maintained that the chair does not have the power to remove her from cases. Removing from her cases in deliberation, Perreault asserted, is akin to a partial or total disguised dismissal, a breach on her decisional independence, an abuse of power, and violates the interests of justice and those of the parties who were not consulted. Perreault continued to work on the cases that were no longer in her charge until Corriveau removed her computer access to the files. Perreault then launched a suit to determine whether the chair has the power to withdraw cases in deliberation from an administrative adjudicator.

“Even though the Professional Code does not explicitly give the power of withdrawal to the chair with respect to disciplinary council presidents, it provides that the chair can take measures to ensure the expeditious nature of decision-making,” concluded Quebec Superior Court Justice Judith Harvie in a 34-page ruling in Perreault c. Corriveau 2019 QCCS 4853. The main purpose of the Professional Code is to ensure the protection of the public, and prompt decision-making is one of the means to attain this objective, added Justice Harvie.

But, Justice Harvie cautioned that the power to withdraw cases in deliberation from adjudicators must always be exercised with respect to the decision-maker’s independence, used with extreme caution and in a reasonable manner that takes into account the interests of the parties and the administration of justice.

Justice Harvie also pointed out that the Quebec legislator amended several years ago the Professional Code to create a new body – the Bureau of disciplinary council chairs – in part to address growing concerns that the disciplinary process was not fast enough. In fact, the Professions Tribunal, an appeals tribunal composed of 11 Court of Quebec judges specializing in cases relating to the professions, lamented several times tardy decision-making by disciplinary councils, which led in certain cases to a breach of natural justice and lighter sanctions.

Under relatively new Quebec’s disciplinary framework, each of the 46 professional orders must have a disciplinary council, overseen by one of 14 disciplinary council presidents, all of whom are lawyers. The chair, in turn is responsible for the administration and overall management of the Bureau. Besides coordinating and assigning the work of the presidents, the chair’s functions include taking measures to “promote the expeditious nature” of the decision-making process, said Justice Harvie.

“There’s no doubt that there is growing pressure on the justice system to respond faster and faster,” noted Caroline Mathieu, a Quebec disciplinary lawyer. “Decisions should be rendered in the recommended timeframe if only to uphold the image of the justice system, more so because disciplinary justice exists to protect the public.”

The decision however leaves several unanswered questions, remarked Jöel Roy, a Montreal disciplinary lawyer with Mercier Leduc LLP. While the decision affirms that a chair does have the power to withdraw cases in deliberation from an adjudicator, it provides no guidance as to what happens next, noted Roy. Disciplinary councils consists of three persons, including the president who is a lawyer. Will a case that has been removed by the chair now be decided by the two remaining members of the disciplinary council? Will the chair nominate another president to take over the dossier and if that’s the case will the president be obliged to render a decision partly based on transcripts? Or will the case have to be reheard? No one seems to know.

“It’s difficult to say what will happen after,” said Roy. “That is a question that Corriveau will have to make with the parties involved. Obviously there are questions of credibility, assessing the credibility of evidence and witnesses, that are raised. Will the two members of the disciplinary council be able to fill the gaps? Those are very practical questions raised by this decision.”

Bernheim goes even further. She wonders whether the parties involved will have the impression that they were part of an independent and impartial judicial process that was able to take into account their arguments in laying out their case.

“These are problematic questions that surface when cases in deliberation are removed from decision-makers,” said Bernheim.

Julius Grey, Perreault’s lawyer, said that his client is contemplating filing an application for leave to appeal before the Quebec Court of Appeal.

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