The Role of the Tribunal des professions: True Appellate Jurisdiction or Judicial Review in Disguise?

An epic legal battle between Micheline Parizeau and the Québec Bar¹ ended on March 15, with the Supreme Court of Canada’s refusal to hear the Bar’s appeal of the Québec Court of Appeal’s decision rendered last August.

The facts

Accused in 1994 of various disciplinary infractions, Micheline Parizeau was found guilty on June 1, 1994 of six charges: fabricating and filing false evidence, incitement to perjury, exaggeration, destroying evidence and repeatedly filing useless proceedings. In 2000, the Québec Bar’s disciplinary council suspended her licence to practice for a seven-year period, which was reduced to five years by the Tribunal des professions in May 2001.

In 2005, Ms. Parizeau applied for readmission to the Québec Bar. The Bar’s readmission applications committee rejected the application on February 20, 2007.  Ms. Parizeau accordingly appealed that decision to the Tribunal des professions, which overturned it, only to see it upheld by the Superior Court. Finally, the Court of Appeal, on appeal from the judgment of the Superior Court, upheld the decision of the Tribunal des professions and ordered Ms. Parizeau reinstated as a member of the Bar. That judgment effectively ended the saga, as the Supreme Court of Canada later denied the Bar’s application for leave to appeal.

The Court of Appeal’s decision is interesting in many respects, as it examines the standard of review of the Tribunal des professions with respect to the decisions and role of disciplinary councils and reinstatement applications committees.

Standard of review of the decision of the reinstatement applications committee by the Tribunal des professions

The Court of Appeal first of all reiterated that the Tribunal des professions, while a specialized tribunal, essentially has appellate jurisdiction, in the proper sense of the term, over disciplinary and reinstatement decisions of committees of professional orders (ss. 182 and following of the Professional Code). It must therefore apply the appellate standard of review rather than the judicial-review standard:

“[TRANSLATION] Both the Supreme Court and this Court have constantly stressed that an appeal tribunal can, in principle, correct any error of law in the decision appealed from or any palpable and overriding error in the determination of facts or the application of the law (if correctly determined) to the facts.”

Thus, the question of the choice of the standard of review is now settled and reliance on judgments that apply the judicial-review standard is to be avoided.

The Court of Appeal then called into question certain case-law holding that than an appeal to the Tribunal des professions from a decision of the applications committee of the Québec Bar is subject to a stricter standard of review than an appeal of a decision of the Bar’s disciplinary council:

“[TRANSLATION] Is it appropriate to adjust that standard by making it even stricter, where the Tribunal des professions hears an appeal of a decision of the Bar’s applications committee?”

The Court of Appeal rejected that proposition. While acknowledging that the applications committee is a super-specialized tribunal, it pointed out that the Tribunal des professions is also a specialized tribunal and that applying an overly strict or exacting standard of review would effectively sterilize its appellate role. Thus, with respect to questions of law, the Tribunal must apply the standard of correctness and not intervene on the factual level unless a palpable and overriding error has been established.

Application to the facts

In this instance, the Tribunal des professions found that the applications committee’s inquiry had focused on the applicant’s past conduct and not on her situation at the time she applied for readmission.

The committee had in fact dwelt at length on the decision rendered by the disciplinary council and had examined past conduct that had never been the subject of a formal complaint. In addition, the applications committee cited the comments of certain judges who had reprimanded the applicant. The committee criticized her for quarrelling with a client as well as for the use she had made of her retainer form, and suggested that she may have thereby committed breaches of ethics.

Pursuant to section 70(4) of the Act respecting the Barreau du Québec, the applications committee can inquire into whether an applicant has the requisite qualities to be readmitted to the Bar:

“[TRANSLATION] The purpose of this provision cannot be to sanction anew past conduct of the person seeking readmission, or to allow an inquiry into possible ethical breaches that were not previously sanctioned but should be. The role of the applications committee is not disciplinary in nature and must be distinguished from that of a disciplinary council. … Accordingly, the inquiry into the applicant’s moral character, conduct, skills, knowledge and qualifications for readmission must essentially focus on elements that are contemporaneous with the application and the readmissions process.”

The Court of Appeal accordingly found that the applications committee had overstepped its role and usurped that of a disciplinary council.

The Court of Appeal was consequently of the view that this matter did not come down to a mere difference of opinion but that the Tribunal des professions performed its appeal function reasonably and did not simply substitute its assessment of the evidence for that of the applications committee.

Conclusion

This decision of the Court of Appeal is of major importance in the area of professional law as it defines the standard of review to be applied by the Tribunal des professions and the Superior Court to decisions of lower tribunals. The rigour and transparency of the process are upheld as fundamental values of the justice system.
Committees assessing admission or readmission applications are well advised to be prudent when weighing an applicant’s past conduct, as their inquiry must focus primarily on assessing the applicant’s qualities at the time he or she applies for admission or readmission.