New Quebec ethics bill raises concerns

A bill introduced recently by the Quebec government that aims to fortify governance and ethics in professional corporations, better protect the public, and encourage professionals to denounce reprehensible acts has been praised but also drawn concerns from disciplinary law experts.

Bill 98, a piece of legislation that acts on four of the 60 recommendations made by the Charbonneau’s Commission’s report on granting and management of public contracts in the construction industry, will bolster the powers of the regulatory body that oversees Quebec’s 46 professional corporations, including lawyers and accountants, will hand more discretionary powers to the syndic or ethics officer, and will under certain circumstances provide protection to whistleblowers.

If passed, the bill would allow the Office des professions to launch its own investigations without having to obtain prior approval from the Quebec Minister of Justice, enable it to determine through regulations the “standards of ethics” and professional conduct applicable to directors of professional corporations, and allow it to issue orders to boards of directors to take corrective measures.

Bill 98 would also make ethics and professional conduct training mandatory for aspiring professionals seeking admission into a profession, and require professional corporations to offer the training to its members. The bill would also require boards of directors of a professional corporation to receive training on the role of a board of directors, including training on governance and ethics.

“The bill is a follow-up to the Charbonneau Commission which raised awareness among different decision-making bodies over the importance of creating a culture of ethics and integrity in our society,” remarked Marie Cossette, Ad. E., an administrative law expert who heads the business integrity group for Lavery, de Billy in Quebec City. “The bill will not change attitudes but it is a step in the right direction. It fosters training and gives professional corporations powers to allow them to play an increased role in monitoring.”

The boards of directors of small professional corporations stand to benefit the most from training in governance and ethics, said Francis Gervais, Ad. E., a Montreal lawyer with Deveau, Gagné, Lefebvre, Tremblay & associés. Many directors in small professional corporations do not realize “what it means to be part of a board of directors” and fail to grasp the nature of their responsibilities, added Gervais. “It’s not a private party or something that is added to one’s curriculum vitae,” said Gervais, a former president of the Quebec law society. “There is important work to be done when one is a member of a board of directors.”

More controversially, Bill 98 also grants syndics of professional corporations the power to confer immunity to professionals who come forward to report irregular situations even though they may have taken part in the reprehensible act. One must protect whistleblowers to foster integrity, said Cossette, adding that often times the only way to discover wrongful acts is through whistleblowers. “By valuing whistleblowing and protecting whistleblowers, with appropriate mechanisms in place to avoid witch hunts, it will create a zero tolerance climate towards unethical conduct,” said Cossette.

While there is a need for whistleblowers to denounce objectionable acts, Gervais is uncomfortable with the notion that professionals may be granted full immunity for acts that they have may have had a hand in. Bill 98 doubles the size of fines that can be imposed on professionals to at least $2,000 but not more than $25,000 for each offense “to give the image that we want to be severe” towards professionals yet provides an opportunity for professionals to obtain immunity, noted Gervais. “ I am troubled by the notion that a person who participated in a reprehensible act could obtain full immunity,” added Gervais.

Rather than providing the possibility of granting immunity to professionals who have committed wrongdoing, citizens who lodge a complaint before a syndic against a professional should benefit from immunity, said Martin Courville, a Montreal lawyer with De Chantal, D’Amour, Fortier Avocats. He now has a case in which a citizen, who lodged a complaint with a syndic against a professional, is facing a lawsuit for harm to the professional’s reputation after the complaint was dismissed by the disciplinary council. “It appears we are going to be granting immunity to professionals who participated in an infraction but it seems to me that consumers who lodge complaints that ends up before a disciplinary committee deserve immunity,” said Courville.

Moreover, Bill 98 provides no guidance over the criteria that ethics officers should take into consideration before granting immunity, added Gervais. “The syndic is lord and master of the decision to grant immunity,” said Gervais. “But what are the criteria? Can the decision be revised? Can the syndic’s decision be appealed? Can the professional corporation review the ruling. This idea needs to be refined before it is put into application.”

Bill 98 will also contentiously empower syndics to request disciplinary councils to impose either a suspension or provisional restriction of the professional’s right to practice or use a reserved title in cases when proceedings are instituted for an offence punishable by five or more years of imprisonment. While ethics officers already had the power to request provisional revocation under certain circumstances when the protection of the public was at stake, the bill will make it easier for syndics to obtain their petition, said Cossette, who views this as a positive development.

Other lawyers specializing in disciplinary law are concerned with this provision of Bill 98. According to Montreal lawyer Jean-Claude Dubé, Bill 98 will hand syndics, already vested with formidable powers, with even more powers to the detriment of professionals. “Syndics  will hold all the cards while professionals will have little recourse,” said Dubé. Gervais concurs, adding that Bill 98 is silent about the presumption of innocence and the right to silence protected under section 7 and section 11(c) of the Canadian Charter of Rights and Freedoms. “What am I going to do to defend myself before a syndic when nothing is mentioned in the bill over the presumption of innocence, the confidentiality of information, in camera proceedings if applicable, or whether decisions will be motivated? I hope hearings on the bill will bring clarifications,” said Gervais.

But Cossette counters that the presumption of innocence and the right to silence does not to be codified to exist. “It will be up to the professional to gauge his options and determine how he wants to ensure the respect of his rights,” said Cossette. “Perhaps the new provisions will be attacked constitutionally. Having said that, this is an issue about reasonableness in relation to the pursued objective of the legislator who wants to respond to the population’s expectation regarding regulatory matters.”

This story was originally published in The Lawyers Weekly.

Third parties receive immunity from damages under Quebec’s no-fault insurance automobile regime

Quebec’s no-fault insurance automobile regime leaves no place for medical malpractice suits or lawsuits alleging negligence, carelessness, or recklessness committed by third parties following a car accident, held the Quebec Court of Appeal in two separate but related rulings.

In yet another forceful reminder that injuries connected to a motor vehicle are covered by the Quebec Automobile Insurance Act, the Quebec appeal court reaffirmed that a “large and liberal interpretation” must be given by the courts when interpreting what is considered to be an automobile accident and the causal link required between the accident and the damage suffered by the victim.

But the two rulings, Gargantiel v. Quebec (Procureure générale) 2015 QCCA 224 and Pagé v. Godbout 2015 QCCA 225, not only blocks victims from being adequately compensated but also shields third party interveners such as doctors and police from being held civilly liable for faults they may have committed after the accident, assert medical malpractice experts.

“These rulings set a terrible precedent, if that is the state of the law,” said Montreal lawyer Leonard Kliger. “In any case where there is an automobile accident, even if third parties cause a major portion of the subsequent damages, there is no recourse to the victim.”

Collisions & Casualties. Transport Canada. 1993-2012In the first case, Gilles Gargantiel sued the Attorney General of Quebec, alleging that he suffered damages due to a fault committed by provincial police officers who — through negligence, carelessness or recklessness — failed to locate him and provide assistance when he was a victim of an off-road accident in western Quebec. His car was equipped with an OnStar system, an in-vehicle security, communications, and diagnostics system that is configured with a Global Positioning System (GPS), and it sent an automatic alert when the airbags of the vehicle were deployed. An OnStar operator also notified the Sûreté du Québec provincial police force, and provided precise GPS co-ordinates of the location of the accident. Evidence revealed that in the two hours following the accident, the SQ agents did a cursory search and never found Gargantiel or his vehicle. He was found approximately two days after the accident, in a semi-conscious state, on October 2009 by a railway worker doing a routine inspection of the tracks.

Gargantiel argued that the delay arising from this fault caused the amputation of his right foot below the knee and the resulting permanent physical and psychological disabilities. He argued that the theory of novus actus interveniens should apply in this case because the provincial police officers had committed new acts of negligence that broke the causal link between the damages he suffered as a direct result of his automobile accident and those damages that were caused as a direct result of the faults by the police.

But in a 21-page ruling the three-judge Court of Appeal panel held that Gargantiel “may argue” that the conduct of the provincial police officers probably deprived him of the chance to reduce the magnitude of his injury, but he could not maintain that the frostbite and amputation had nothing to do with the accident or the use of the automobile. In the absence of a complete break between the accident and the damage, the appeal court held that at most it was a “contributory fault.” “The amputation and its consequences constitute bodily injury sustained in an accident within the meaning of the Automobile Insurance Act and give rise to the compensation the Act provides, which stands in lieu of all rights and remedies,” wrote Quebec Court of Appeal Justice Marie St- Pierre.

“In the decisions the court says there has to be an absolute complete break in the link to the point where there is no more relationship essentially between the initial accident and the ultimate damage sustained,” said Andrew Kliger, who along with Leonard Kliger, represented Gargantiel. “That is our biggest point of contention because we don’t think in practice it is actually practical and it leads to absurd conclusions. Our position is that if there is a new act of negligence that is the true cause of the damage or aggravation of the damage – in this case the amputation of Gargantiel’s foot – then the party responsible should be held liable. How are they left off the hook, especially when they cause new injuries that otherwise wouldn’t have happened?”

In the other case, the court of first instance concluded that doctors had committed medical malpractice during the hospitalization following the car accident and thus caused a separate injury. But the appeal court overturned the ruling and held that “because the Act is based on the no-fault cardinal rule,” it cannot be “adapted” to situations involving aggravated damages, contributory fault, or apportionment of liability. By enacting this statute, the legislature chose to set aside the general civil liability scheme in favour of the quick compensation of car accident victims, without regard to fault. “Concluding otherwise would lead to the weakening of the protection offered by the Act to automobile victims, who the legislator wanted to rapidly compensate, irrespective of fault, and stave off long and expensive court proceedings over responsibility,” said Justice St- Pierre in the 22 page ruling in Godbout.

The appeal court added that it is a fallacy to believe that third-party interveners are exonerated from any faults in such situations. Professionals such as doctors can still face criminal charges as well as sanctions from their professional corporations.

Fatalities & Injuries by Age group. Transport Cda. 2012The appeal court likely did not want to open a Pandora’s box, and chose the lesser of two evils, observed Janick Perreault, Advocatus Emeritus, a Montreal lawyer who is an expert in the Act. “While there was already immunity regarding automobile accidents in Quebec because of the no-fault regime, these rulings slightly stretch it out even more because it provides immunity to people who did not their job properly,” said Perreault. On the other hand, it can also be viewed as a “victory” for victims of automobile accidents because if the court had opened the door to civil litigation then there would the risk that the Société de l’assurance automobile du Québec (the Quebec crown corporation that provides public auto insurance) would have refused to compensate victims for injuries sustained in car accidents until fault was determined by the courts, added Perreault.

Far from “harming” automobile victims or depriving them of the “lottery of common law,” these decisions ensure that the Société de l’assurance automobile du Québec will not be allowed to begin to distinguish between personal injuries it will compensate and others that it feels the victim should hold civilly responsible, said Daniel Gardner, a law professor at the Université de Laval whose analysis of the Act was cited by the appeal court. He noted that Article 5 of the Act states that compensation is granted by the Société de l’assurance automobile du Québec regardless of who is at fault, and that article 83.57 declares that compensation stands in lieu of all rights and remedies by reason of bodily injury and no action in that respect shall be admitted before any court of justice. “It’s clear, isn’t it,” Gardner wrote in an email. “It takes lawyers not to understand.”

But Jean-Pierre Ménard, a Montreal malpractice lawyer who represented Godbout, says the appeal court ruling goes “far beyond” the legislator’s intention. “The legislator certainly did not intend to grant immunity to other people besides drivers or owners of vehicles,” said Ménard. “One of the practical effects of these rulings is that it will provide immunity to doctors who treat automobile accident victims. It removes any recourse that victims may have due to medical errors. That goes too far.”

The Gargantiel ruling also controversially ruled that victims who receive compensation from the Société de l’assurance automobile du Québec because of a bodily injury sustained in an accident constitutes a bar to any other remedy.

“A renunciation must be expressed,” argued Kliger. “Our client was never advised that by accepting these indemnity payments that he was giving up any civil recourse. He never gave an enlightened consent as you would have in have in malpractice law. He received no legal advice. To say that because he received the payments that he gave up his civil rights, we find that to be an injustice and a legal absurdity.”

Both Kliger and Ménard are seriously considering filing a leave to appeal before the Supreme Court of Canada.

Witnesses testifying in public inquiries NOT necessarily protected

The lead counsel of a commission of inquiry into allegations of corruption in Quebec’s construction industry inadvertently found himself in the spotlight over a thorny legal question surrounding the immunity of witnesses who testify before the inquiry.

Sylvain Lussier, lead Commission counsel of the Charbonneau Commission, said that the sworn testimony of witnesses who testify during public inquiries cannot be used against them in criminal proceedings. But the same may not hold true for civil proceedings.

He then backtracked after his team ostensibly examined the jurisprudence, and asserted that witnesses are protected from civil suits.

Except that Lussier said nothing new.

In a story I wrote about the very subject, Lussier told me that the testimony provided by witnesses before commissions of inquiries can be used in civil proceedings. In fact that’s exactly what he did when he was retained by the federal government to manage the litigation phase for the recovery of funds pertaining to the infamous sponsorship scandal.

Here are the relevant passages of the story I wrote:

In Quebec, it is possible that a judge may hold that a “clear admission of responsibility” made during a commission of inquiry may be introduced as evidence. Under s.2850 of the Civil Code of Quebec, an admission is the acknowledgment of a fact which may produce legal consequences against the person who makes it.

“A clear admission of responsibility made before a commission of inquiry may be introduced in civil proceedings in Quebec because the Civil Code states that it is possible to introduce admissions as evidence,” said a Canadian lawyer specializing in public inquiries who spoke on condition of anonymity.

That’s exactly what Lussier did in the Canada (Procureur général) c. Brault 2006 QCCS 999. In interim rulings rendered by Quebec Superior Justice Gilles Hébert as case management judge in the sponsorship case, some admissions that were made during the Gomery Commission, formally the Commission of Inquiry into the Sponsorship Program and Advertising Activities, were allowed to stand.

“I myself used what was said in the Gomery Commission against civil defendants and was vindicated by Justice Hébert,” said Lussier, adding that in his own opinion s. 13 of the Canadian Charter does not grant protection against self-incrimination in civil proceedings. Though on less solid ground because of the absence of precedence, Lussier also believes that witnesses who slander while providing testimony before a commission of inquiry cannot hide behind the shield of immunity.

Another lawyer familiar with the inner workings of public inquiries notes that while the Canadian and Quebec Charter as well as the Quebec Act respecting public inquiry commissions provides protections against self-incrimination, it does not necessarily preclude the testimony provided by other witnesses during a commission of inquiry from being used against a person facing a civil trial.

“That is not a case which involves protection against self-incrimination but rather an issue that deals with the admissibility of evidence,” said the lawyer who spoke on condition of anonymity. “It is simply information that can be used against someone in a civil proceeding.”

Here’s one more interesting observation Lussier shared with me at the time.

“You can sue for defamation for slanderous procedures. Lawyers and clients do engage their liability if they write defamatory procedures. The fact that it’s in court does not grant immunity from defamation suits. So why would something slanderous being said before a commission (of inquiry) be immune from ulterior prosecution.

“The only place where you would get immunity is in Parliament. That’s why people want to testify before Parliament because you can’t use what they said.”

There are yet more nuances that need to be considered. Transcripts of sworn testimony before a public inquiry cannot be introduced as evidence in a civil proceeding. “The rules of evidence in a commission of inquiry are very slack,” told me a public inquiry expert. “There are really no standards that exist.” Of course, there are exceptions such as when a witness has passed away, and even then the use of transcripts must be approved by a judge.

But that doesn’t mean the transcripts of sworn testimony cannot be used in other ways. Lawyers can use transcripts to help them prepare their case or use it to help them during the discovery process. “There is a world of a difference between introducing the transcripts of sworn testimony and using that information to prepare the case. There are no obstacles that prevent someone from doing that,” added the expert.

Witnesses in public inquiries can be caught in a tight bind. Though they may be vulnerable to civil suits, they have no choice but to testify. As Lussier told me, witnesses “can be jailed and cited for contempt if they refuse to answer.”

Immunity and Public Inquiries

Sworn testimony provided by former Quebec justice minister Marc Bellemare before the provincial commission of inquiry into Quebec’s system of nominating judges may be possibly be used against him in a $700,000 suit launched by Premier Jean Charest for “false, malicious and defamatory remarks.”

After five days of vigorous cross-examination before the commission headed by former Supreme Court of Canada justice Michel Bastarache, Bellemare stood firm behind his testimony that Quebec Liberal Party fundraisers, with the consent of Premier Charest, had undue influence on the appointment of judges in the appointment of judges in the province.

But in another surprising twist, Bellemare — who sought to dissolve the inquiry he described as a “costly and useless exercise only to abandon the lawsuit after he obtained assurances that his testimony would be broadcast — was granted last week the status of full participant, allowing his lawyer to cross-examine the 40 or so witnesses the commission has lined up to testify in the coming weeks, including Premier Charest.

While the sworn testimony of witnesses such as Bellemare who testify during commissions of inquiry cannot be used against them in criminal proceedings, the same may not hold true for civil proceedings.

“What is said before a commission of inquiry cannot be held against you in a criminal court,” remarked Sylvain Lussier, a Montreal lawyer with Osler, Hoskin & Harcourt LLP who was the Government of Canada’s counsel before the Gomery Commission. “The same is not true in my opinion in civil proceedings.”

Thanks to various evidence acts as well as sections 7, 11(d) and 13 of the Canadian Charter of Rights and Freedoms, s. 38 of the Québec Charter of Human Rights and Freedoms, and s. 11 of the Quebec Act respecting public inquiry commissions, public inquiry experts assert that while witnesses may be compelled to testify before commissions of inquiries, self-incriminating testimony cannot be directly used to incriminate the person in subsequent criminal proceedings.

But there is a notable nuance. In Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, the Supreme Court of Canada held that prior testimony cannot be introduced a criminal trial, but evidence related to the subject of the inquiry testimony can be used if it would have been discovered in any event, points out a working group that published a model Public Inquiries Act on behalf of the Uniform Law Conference of Canada (ULCC). Established in 1918, the ULCC seeks to harmonize the laws of the province and territories of Canada and where appropriate the federal law as well.

“Public inquiries are a tool for investigations and recommendations to policymakers,” observed Alastair Lucas, the dean of the Faculty of Law at the University of Calgary and the head of the ULCC working group on model Public Inquiries Act.

“As an investigative body there has to be some limits as to how coercive public inquiries can be in dragging witnesses before them and forcing them to testify and produce documents to the inquiries,” added the co-author of A Handbook on The Conduct of Public Inquiries in Canada.

Though it is also well established that the testimony provided by witnesses before commissions of inquiries cannot also be introduced as evidence during civil proceedings, there are exceptions, points out a Canadian lawyer specializing in public inquiries who spoke on condition of anonymity.

“In principle one cannot use the testimony given before a commission of inquiry and submit it as evidence before a civil proceeding – it is normally non-admissible,” said the lawyer. “The rules of evidence are not the same. They are more relaxed in commissions of inquiry. Standards don’t really exist. There is no burden of proof. And also the person who is being sued often does not have the occasion to cross-examine before a commission of inquiry. So the difficulty lies with the reliability of the evidence introduced in commissions of inquiries.”

The same holds true for final reports penned by commissioners of inquiries. Even though commissioners may find fault or lay blame, their findings do not bind a judge presiding over a civil proceeding, added the lawyer.

But there are exceptions such as when it is revealed that a witness provided contradictory testimony and there are telling and important differences between what they testified in a civil proceeding compared to what they said in a commission of inquiry. Another exception to the rule may be when a witness who testified before a commission of inquiry passes away in which case the judge presiding over the civil proceeding may hold that the testimony of the deceased may be introduced as evidence. And in Quebec alone, it is also possible that a judge may hold that a “clear admission of responsibility” made during a commission of inquiry may be introduced as evidence. Under s.2850 of the Civil Code of Quebec, an admission is the acknowledgment of a fact which may produce legal consequences against the person who makes it.

“A clear admission of responsibility made before a commission of inquiry may be introduced in civil proceedings in Quebec because the Civil Code states that it is possible to introduce admissions as evidence,” said the lawyer.

That’s exactly what Lussier did in the Canada (Procureur général) c. Brault 2006 QCCS 999. In interim rulings rendered by Quebec Superior Justice Gilles Hébert as case management judge in the sponsorship case, some admissions that were made during the Gomery Commission, formally the Commission of Inquiry into the Sponsorship Program and Advertising Activities, were allowed to stand.

“I myself used what was said in the Gomery Commission against civil defendants and was vindicated by Justice Hébert,” said Lussier, adding that in his own opinion s. 13 of the Canadian Charter does not grant protection against self-incrimination in civil proceedings. Though on less solid ground because of the absence of precedence, Lussier also believes that witnesses who slander while providing testimony before a commission of inquiry cannot hide behind the shield of immunity.

Another lawyer familiar with the inner workings of public inquiries notes that while the Canadian and Quebec Charter as well as the Quebec Act respecting public inquiry commissions provides protections against self-incrimination, it does not necessarily preclude the testimony provided by other witnesses during a commission of inquiry from being used against a person facing a civil trial.

“That is not a case which involves protection against self-incrimination but rather an issue that deals with the admissibility of evidence,” said the lawyer who spoke on condition of anonymity. “It is simply information that can be used against someone in a civil proceeding.”

This story was originally published in The Lawyers Weekly.