Did you know that a warning letter or caution issued by the office of the syndic of a professional order can have significant repercussions, even if no formal complaint is filed?
A warning letter usually follows an application for investigation. It officially informs the professional of any misconduct related to the action complained of, even if a formal complaint has not been filed with the disciplinary council. It is intended to prevent recidivism and provides written documentation of the observed misconduct.
Disciplinary matters
It is worth noting that warning letters are not considered disciplinary records. That said, although they do not prove the facts they report, warning letters can still play a significant role in subsequent disciplinary cases. In fact, if a disciplinary complaint is filed against a professional after a warning letter has been issued, the letter may be used as evidence by the syndic to show that the professional has already been made aware of the problematic behaviour. These letters can also be used to establish a history in the event of a repeat offence.
Insofar as the facts giving rise to the warning predate the disciplinary complaint and relate to similar facts, the warning letter may be taken into account to set the context of an offence. It may also be considered an aggravating factor in determining the appropriate penalty, particularly in cases of persistent negligence. However, it is important to note that the courts insist on a reasonable balance: the relevance of a warning letter depends on the link between the facts set out in the disciplinary complaint and the facts reported in the warning, as well as on how long the warning has been in effect.
Civil matters
While warning letters can be used in disciplinary cases, they are inadmissible as evidence in civil proceedings. Their contents are confidential, as they result from investigations that did not lead to a formal complaint.
Moreover, they have no bearing on the assessment of the alleged civil fault and are not binding on the court. In other words, the existence of a warning does not, on its own, lead to a finding of fault on the part of the professional against whom a civil liability claim is made.
As a precautionary measure and to avoid debate in the event of subsequent civil proceedings, it may be wise to include a confidentiality clause in warning letters sent to professionals and in responses to parties who request an investigation.