Professionals subject to a code of ethics may face disciplinary complaints. If they violate the rules governing their practice, their disciplinary council can impose penalties ranging from a warning or fine to suspension and revocation of their licence.
When a professional is found guilty of misconduct, it is common for victims to seek compensation in civil court, since the purpose of disciplinary law is to protect the public rather than to compensate victims. Indeed, in certain circumstances, a breach of professional ethics may also constitute a civil fault.
This raises the following question: can a disciplinary decision influence the outcome of a civil proceeding?
Distinction between professional misconduct and civil fault
It is well established that disciplinary law is a sui generis body of law that should not be confused with civil law. Disciplinary law aims to protect the public, whereas civil proceedings aim to compensate the victim.
Disciplinary proceedings and civil proceedings rest on different legal foundations. The former seeks a finding of misconduct for violations of the Professional Code, the law governing the profession, or the regulations of a professional body. The latter seeks to establish civil liability leading to an award of damages.
Professional misconduct arises from non-compliance with a profession’s standards of conduct, as set out in its code of ethics and professional regulations. It stems from behaviour that falls below acceptable standards and meets a certain threshold of seriousness.
Civil fault, on the other hand, is an error in conduct that a reasonable person in the same circumstances would not have committed. It is assessed against an abstract, and therefore objective, standard of conduct.
To establish civil liability, three elements must be proven: fault, injury, and a causal link between the two.
While the elements of injury and causality are relevant when determining civil liability, they are irrelevant to the determination of professional misconduct. Professional misconduct can be established regardless of the consequences of the act or behaviour in question.
Influence of disciplinary decisions on the outcome of civil proceedings
Case law clearly establishes that disciplinary decisions do not bind civil proceedings.
Professional misconduct and civil fault are different types of fault, subject to different analytical criteria. As such, the findings of one proceeding do not bind the other.
A professional body’s disciplinary council does not take into account civil proceedings initiated in parallel with the disciplinary process, and it is not bound by a decision rendered by another civil authority on the facts that are the subject of a complaint. Similarly, whether or not the Superior Court concludes that the respondent committed professional misconduct giving rise to civil liability has no bearing on any finding of guilt in the disciplinary proceedings.
While the courts are not bound by disciplinary decisions and must rule on the matters brought before them that fall within their own jurisdiction, the question remains: can a disciplinary decision influence the outcome of a civil proceeding?
The Court of Appeal answered this question in the affirmative in Hamel v. J.C., ruling that a disciplinary decision is relevant evidence.
Indeed, case law generally recognizes the value of such decisions as “relevant legal facts” that the trial judge may consider. Courts go so far as to consider a disciplinary decision to be a relevant legal fact that cannot be ignored and which carries probative weight. Disciplinary decisions may even be presumed to be true.
Indeed, the fact of being judged by one’s peers, particularly in highly specialized fields, lends the disciplinary decision considerable authority and legitimacy.
In Pierre-Louis v. Ville de Québec, the Court of Appeal confirmed that evidence of a guilty verdict or acquittal is admissible and relevant in a civil proceeding concerning a professional’s liability, although such evidence must be treated with all due consideration. As a general rule, in a civil proceeding, evidence of an acquittal carries less weight than a finding of guilt, given the standard of proof required to obtain such a verdict.
The initiation of disciplinary proceedings, however, does not constitute relevant evidence.
Moreover, since section 149 of the Professional Code provides that a professional’s testimony before the disciplinary council cannot be used against them, the courts have recognized that it is generally not possible to introduce the contents of such testimony through an examination for discovery, barring exceptional circumstances.
The judge in civil proceedings is still allowed to depart from the disciplinary decision, particularly when the evidence presented differs or new evidence is introduced. The courts recognize that the probative value of these decisions is limited, primarily because of differences in the evidence and testimony presented in each proceeding.
However, failure to consider a relevant disciplinary decision could constitute an error of law.
Conclusion
Although civil and disciplinary proceedings are independent of each other and their analytical criteria differ, case law recognizes that disciplinary decisions may influence the outcome of a civil proceeding.
As relevant legal facts, they may be taken into account by the trial judge, particularly when they involve a finding of guilt by peers in a highly specialized field. Such findings may be presumed to be true, subject to the nuances specific to each liability regime.
That said, the judge in civil proceedings retains full discretion and may depart from the disciplinary decision when the evidence differs or new facts are presented, although case law recognizes that failure to consider a relevant disciplinary decision could constitute an error of law.