COMMENTS
COMMENTAIRES
Some Comments from a Symposium
on Quebec’s Professional Code
On Wednesday, January 21, 1976 a symposium was held by the
Quebec Board of the Canadian Bar Association section on Adminis-
trative Law. The purpose of the symposium was to examine certain
features of Quebec’s new Professional Code and of three unpublished
documents de travail emanating from the newly-created Office des
professions: “R~glement d6terminant la proc6dure du Comitd d’ins-
pection professionnelle”, “R~glement concernant la tenue des dos-
siers et des cabinets de consultation” and “Code de ddontologie type”.
There were six speakers, three representing the Office des professions
and three unconnected with it. The McGill Law Journal has asked
the three independent panelists to summarize their comments. It
is hoped that the Office des professions will reply in a subsequent
issue and that a useful debate will be set in motion on this topical
and important subject.
I. Lack of recourse
“Recourses” which are open to an individual under a legal sys-
tem are traditionally of two types –
appeal and review. The right
of appeal is iot presumed but must be expressed by statute.’ On
the other hand, the possibility of review exists (albeit on fairly
narrow grounds), unless taken away.2 It is the goal of this comment
to examine the situations in which review and appeal are available
to professionals under the new Professional Code3 together with
certain related evidentiary problems,4 and to suggest a number of
ominous lacunae.
1 R. Dussault, Traitg de Droit Administratif (1974), 1054.
2 Ibid., 1018. Judicial review of an administrative action is available where a
tribunal acts without jurisdiction or ultra vires; it is also available when a
breach of natural justice or an improper exercise of discretion has occurred,
or when there is an error of law on the face of the record.
3 S.Q. 1973, c.43, as am.by S.Q. 1974, c.65; Bill 32, 3d Sess., 30th Leg., Que.Nat.
Ass. 1975, assented to June 19, 1975; Bill 62, 3d Sess., 30th Leg., Que.Nat.Ass.
1975, assented to December 9, 1975.
4 E.g., hearsay; self-incrimination.
19761
COMMENTS – COMMENTAIRES
The Code envisages three distinct situations which may give rise
to sanctions: (i) questions of discipline;5 (ii) questions of general
incompetence revealed by professional inspection;6 and (iii) ques-
tions of incapacity due to physical or mental condition. A preli-
minary problem is that as far as the last two situations are concerned,
there is no form of recourse available to prevent an enquiry into a
professional’s competence or health. On the contrary, an obligation
is created to submit both to professional inspection” and to medical
(including psychiatric) examination.9 Given the effect that such an
examination can have not only on the reputation” and the general
sense of well-being and dignity of an individual, but also on the
ability of a professional to obtain insurance, the failure to provide
strict guidelines for use of the power to demand a medical examin-
ation is surely a serious violation of individual rights. At the present
time, the Bureau of a corporation ordering such an examination is
merely required to give the reasons for its decision.”
In addition, it must be remembered that attacks on individuals’
competence or physical or mental health can, even more than attacks
on probity, be used to discourage unorthodox (though not necessarily
incorrect) professional theories, or unpopular opinions. It is gener-
ally agreed that professions thrive in an atmosphere of free research
and experimentation, and it is submitted that, while a certain level
of professional competence must be maintained, everyone has a
right to a degree of eccentricity. An untrammelled power to inspect
and to examine individuals is a threat both to this right and to
innovative ideas in general.
In Samuel Butler’s classic Erewhon, we find a world in which
illness and ugliness are more serious matters than wickedness. Under
the Professional Code, before a person can be brought before the
committee on discipline, a complaint must be lodged which is not
only in writing and under oath 12 but “which appears to be justi-
fled”.3 In comparison, no such minimal protection exists for profes-
sionals whose competence or health is called into doubt and one
5 Supra, note 3, ss.114-176.
0 Ibid., ss.107-113.
I Ibid., ss.51-53.
8 Ibid., s.112.
9 Ibid., s.53.
‘0 The system of “confidentiality” is quite clearly insufficient to protect
reputation, especially in smaller communities; see the comment by Michel
D~cary in this issue of the McGill Law Journal, infra.
11 Supra, note 3, s.53.
12 Ibid., s.124.
‘3 Ibid., s.125.
McGILL LAW JOURNAL
[Vol. 22
wonders if the Erewhon philosophy has not taken root among us.
It is submitted that a recourse should be created without delay, to
allow professionals to demand reasonable grounds before submitting
to inspection or examination.
As far as appeals are concerned, sections 158 and 51 create a
general right of appeal from decisions of the committec on discipline
and from decisions regarding the physical or mental health of a
professional, to a tribunal consisting of three Provincial Court
judges.14 However, no appeal lies from a decision of a professional
inspection committee regarding general competence. A further com-
plication is that section 138 allows the committee on discipline to
suspend provisionally a professional in the interests of the public
before a final decision is made. The section does not provide an
appeal from such provisional measures and while the tribunal has
in the past entertained such appeals and is continuing to do so, the
rights involved are too important to be granted “on tolerance”. The
Code should be amended to make appeals from provisional suspen-
sion and from decisions of inspection committees a matter of right.
When we turn to the concept of review, we find that the Code
has attempted to take it away entirely. An appeal taken to the tribunal
from a decision of the committee on discipline or from a decision
concerning a medical examination is final and cannot be reviewed
by a higher appellate body. 5 Furthermore, section 187 frees members
of the committee on discipline, the professional inspection committee
and the appeal tribunal from prosecution for acts done in good faith.
One also feels some uneasiness at the wording of sections 188 and
189. Not only are the extraordinary recourses eliminated for the
purpose of the Professional Code, but section 189 is a specific attempt
to destroy the general supervisory jurisdiction of the Superior Court
which is described in article 33 of the Code of Civil Procedure and
dates from the dawn of the common law. Quite apart from the consti-
tutional issues it raises, 6 it seems safe to say that this privative clause
goes much too far in depriving individuals of established recourses.,
14 Ibid., s.158.
15 Ibid., s.170.
10 This section could be interpreted as an attempt to usurp the exclusive
supervisory jurisdiction of the Superior Court, whose judges must be appointed
federally; British North America Act, 1867, 30-31 Vict., c.3, s.96 (U.K.). See
generally, G. LeDain, The Supervisory Jurisdiction in Quebec (1957) 35 Can.Bar
Rev.788.
17.e., the ordinary recourses such as a declaratory judgment, action in nullity
or injunction and the prerogative or extraordinary recourses such as certiorari,
mandamus and prohibition.
1976]
COMMENTS – COMMENTAIRES
Finally, article 190 enables two judges of the Court of Appeal to
strike out any action commenced contrary to sections 187 and 188.
It is of course true that, according to traditional administrative
law, such privative clauses do not operate when an excess of juris-
diction occurs.’ However, recent decisions of the Supreme Court
indicate that greater weight may henceforth be given to such pro-
visions, 9 and the inclusion of these sweeping privative clauses in the
Professional Code is certain to have considerable importance in
reducing the success of applications for review. Where an appeal lies
to the tribunal, one can argue that no further recourses are required.
But, as we have seen, the appeal is an incomplete weapon since it is
unavailable in the case of a decision of a professional inspection
committee. It must be noted, too, that since the Code makes the
extraordinary recourses unavailable, there seems to be no way of
limiting the exercise of an official’s discretion or to stop him or her
from meddling unduly.
It is unclear what mischief the privative clauses are designed to
remedy. Courts have never been inclined to interfere with profes-
sional affairs,2 0 and it is therefore likely that any attempt to obtain
redress before the Superior Court would succeed only in cases of clear
injustice. The impartiality and detachment of the Superior Court
could only encourage the maintenance of high professional standards
along with a desirable level of justice.
Finally, we come to the problems of evidence. Sections 139 and
145 appear to permit any type of evidence, including hearsay, to be
used before the committee on discipline. Only recently, the law ex-
cluding hearsay was recognized as part of Quebec civil procedure 2′
The right to practise as a professional is no less important than any
other civil right and there is no reason for allowing less stringent
rules of evidence for professional matters. 22
Sections 143 and 145 give the committee on discipline the power
to compel professionals and witnesses to appear and answer all
questions. It would seem to follow from these provisions that a
person could be forced into a situation of self-incrimination. While
18E.g., Lalonde Automobiles Ltge v. Naylor [1974] R.P. 372. Excess of juris-
diction includes a breach of the rules of natural justice; ibid., 373.
19 Pringle v. Fraser [1972] S.C.R. 821, (1972) 26 D.L.R. 3d 28; Re Woodward
Estate [1973] S.C.R. 120.
2 0 E.g., Re a Solicitor [1974] 3 All E.R. 855.
21 Morrow v. Royal Victoria Hospital [1974] S.C.R. 501.
2 It is perhaps arguable that we should let into evidence all “direct” hearsay
as Britain did in the Civil Evidence Act 1968, 16-17 Eliz.II, c.64. But this is no
justification for inventing special, lax rules for one category of individuals.
