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Disciplinary law: recusation is a serious question justifying the right to appeal before the Professions Tribunal

In a recent decision rendered on March 6th, 2023, the Professions Tribunal confirmed that a decision dismissing a motion to recuse the members of a disciplinary council can be appealed before the Professions Tribunal in accordance with sections 201 to 205 of the Code of civil procedure (Quenneville v. Médecins vétérinaires (Ordre professionnel des), 2023 QCTP 16).

Following a decision rendered by the Ordre des médecins vétérinaires du Québec’s Disciplinary Council dismissing the professional’s motion to recuse the members of the Council, the professional appealed the decision before the Professions Tribunal.

The motion was based on the content of a preliminary decision rendered by the Disciplinary Council, in which the Council declared itself without jurisdiction to decide on the professional’s motion to exclude certain elements of proof invoked in support of the motion for a provisional striking off the roll, as said motion had not yet been presented by the syndic and the elements of proof in question had not yet been filed. The Council decided that the motion to exclude certain elements of proof was premature and invited the professional to reiterate his motion during the hearing on the motion for a provisional striking off the roll, a motion that would be presented before the very same Council.

Despite this conclusion, the Council nevertheless pronounced an opinion on the proof that was administered by the professional during the presentation of his motion to exclude certain elements of proof. The professional argued that since the same Council would be responsible for rendering a decision on the motion for a provisional striking off the roll, the opinions expressed in the preliminary decision raised a reasonable apprehension of bias.

To begin, the Professions Tribunal reiterated the principal mentioned in the decision Blais, according to which a decision dismissing a motion to recuse could be appealed on permission before the Professions Tribunal, despite most interlocutory decisions being impossible to appeal following the most recent modifications to the Professional Code. As was stated in the decision rendered in Blais, this right to appeal is fully justified by the principal of natural justice recognizing the quasi-constitutional right of every individual, in accordance with section 23 of the Charter of Rights and Freedoms, to benefit from an impartial hearing.

The Professions Tribunal specified that it seemed that the Council had opined on several elements of proof, thus raising certain doubts as to its members’ capacity to decide in a wholly unbiased manner in regard to the same question during the hearing on the motion for a provisional striking off the roll.  

Concluding that the question was serious and of interest, as it touched the impartial character of the disciplinary process, the Tribunal Professions allowed the appeal of the Disciplinary Council’s decision Dubé Légal inc., disciplinary law lawyers.