Qualified immunity in professional law: a strong ground for dismissal
Protecting the public is the principal mission of Québec’s professional orders1 and is the very cornerstone of professional law. Section 193 of the Professional Code (CQLR c C‑26) enables these bodies to fulfil this role by conferring on the various players in the professional law system, such as syndics, professional orders, inspectors and the Professions Tribunal, a qualified immunity under which they “cannot be prosecuted by reason of acts engaged in in good faith in the performance of their duties or functions.”
At the preliminary stage, qualified immunity may be relied upon as the basis for an application for dismissal of a civil liability claim against various individuals and entities involved in the system of professional law. This legal principle, which may also be raised on the merits,2 has generated a great deal of attention in case law,3 and is the subject of a landmark decision by the Supreme Court of Canada in Finney v. Barreau du Québec.4
Indeed, in recent years, the Superior Court has repeatedly confirmed the scope of this immunity, in particular for the purpose of dismissing an action against the Disciplinary Council of the Barreau du Québec and three of its members,5 as well as an action against the Chambre des notaires and two of its syndics.6 Quite recently, in April 2022, the Court of Quebec reiterated the role of qualified immunity granted by the Professional Code in justifying the dismissal of an application against a syndic of the Barreau du Québec.
Rules relating to qualified immunity conferred by Section 193 of the Professional Code
Objective of qualified immunity
As set out by the Supreme Court, the legislature has granted qualified immunity to professional orders to alleviate the difficulties and risks associated with the exercise of their various functions, thereby protecting their freedom of action and their discretion.7 In a similar vein, in Richard v. Massicotte8, the Honourable Richard Wagner (then a Superior Court Justice) explained that this immunity is amply justified by the noble nature of the objectives pursued by professional orders and their representatives, by the increasing difficulty for them to perform their daily tasks, and by the misuse of ethics complaints by some litigants.
Presumption of good faith
The concept of good faith lies at the heart of the interpretation and application of section 193 of the Professional Code. Indeed, as a “qualified” immunity, the immunity from prosecution conferred by this provision may be overcome by demonstrating the bad faith of the person who benefits from it. According to the Supreme Court, this specific concept of bad faith encompasses intentional wrongdoing, serious recklessness or serious carelessness involving a fundamental breakdown of the orderly exercise of authority.9 This is a heavy burden of proof for a plaintiff, since good faith is always presumed pursuant to article 2805 of the Civil Code of Québec. If this presumption is not rebutted and the lack of good faith is not demonstrated, the action brought against anyone who benefits from qualified immunity must be dismissed.10
Reviewing an application for dismissal
In its analysis of an application for dismissal based on the principle of qualified immunity granted by section 193 of the Professional Code, the Superior Court determined in Gauthier v. Disciplinary Council of the Barreau du Québec11 that the Court should focus on the facts alleged in the application, and not on how the plaintiff characterizes those facts.12 The court must then assess whether any of these facts, if proven, are likely to rebut the good faith presumption of which the defendant benefits.13
Defeating qualified immunity requires more than simply alleging bad faith on the part of the person benefitting from it. On the contrary, precise and contextualized allegations are necessary to overcome this immunity. Therefore, when the Court is presented with an application for dismissal, it must find that the set of facts put forward by the applicant, if proven at trial, would likely rebut the presumption of good faith of which disciplinary decision-makers benefit.14
Prosecutorial powers of professional orders
In addition to the qualified immunity conferred by section 193 of the Professional Code, it should be pointed out that if a professional order initiates penal proceedings, in particular for the illegal exercise of a profession,15 it is presumed, as a prosecuting authority, to be exercising its prosecutorial discretion16 in good faith. In this context, in order to justify the intervention of the Court, the applicant has the burden of clearly demonstrating of the existence of improper motives or of bad faith or of an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed.17 If the only act alleged against a professional order is to have instituted proceedings, the Court may correctly find that there is no evidence of any illegitimate ground or bad faith.18
Harvey v. Bilodeau
We will now discuss the test recently applied by the Superior Court in Harvey v. Bilodeau,19 in reviewing an application for dismissal based on article 51 of the Code of Civil Procedure. In this case, the plaintiffs, Mtre Stéphane Harvey and Stéphane Harvey Avocat inc., claimed from the defendant, Mtre Guy Bilodeau, in his capacity as syndic of the Barreau du Québec, the sum of $26,000 in moral damages, pain and suffering, loss of income and punitive damages, alleging he had committed various wrongful acts in the performance of his duties.
The Court reviewed the general concepts regarding applications for dismissal, highlighting its duty to exercise caution before dismissing an action for being manifestly unfounded. In the particular context of this case, the Court added that it must also bear in mind the purpose of the qualified immunity enjoyed by the defendant, i.e., to prevent legal proceedings based on acts performed in good faith in the exercise of a syndic’s duties.
The Court stated that this immunity restricts the general rules of civil liability to cases in which the syndic’s bad faith is demonstrated. In doing so, it reiterated the broad interpretation to be given to the concept of bad faith, as confirmed by the Supreme Court in Finney v. Barreau du Québec. The Court then summarized the analysis it would need to conduct to determine whether the plaintiffs are able to defeat qualified immunity:
 There is a heavy burden on the plaintiffs because good faith is presumed. However, the Court does not have to decide whether a proceeding is risky, but rather whether it is ill founded and abusive.
 The Court must consider whether, among the facts alleged in the application, there are any facts which, if proven, are likely to defeat the presumption of good faith enjoyed by the defendant, regardless of how the plaintiffs have characterized those facts.
 In the context of an application for dismissal, the Court may consider both the plaintiff’s and the defendant’s proceedings and exhibits in order to assess the merits of the application for dismissal. The same is true of previous rulings on the facts relevant to the dispute.
[translation; notes omitted]
Following an analysis of the facts and the wrongful acts alleged against the defendant, the Court concluded that, regardless of how these wrongful acts were qualified by the plaintiffs, the facts, even if proven, were insufficient to defeat the immunity conferred by section 193 of the Professional Code. The exhibits and the judgment filed, together with the proceedings in the file, convinced the Court that the action was manifestly ill founded and abusive. It therefore dismissed the plaintiffs’ application to institute proceedings.
The importance of qualified immunity granted by section 193 of the Professional Code in protecting the public requires that no proceedings should be allowed to proceed if they are unreasonable and likely to undermine the credibility of the justice system or to discredit its administration. If such proceedings were allowed to proceed, it would have the effect of limiting the actions of individuals involved in the system of professional law to carry out their mission because they would fear subsequent law suits.20 As a result, the application for dismissal is an appropriate procedural means for asserting the qualified immunity conferred by section 193 of the Professional Code, the primary purpose of which is to prevent the continuation of proceedings, and not merely to bring about its dismissal following a trial on the merits, as the Superior Court recently pointed out in Gauthier v. Disciplinary Council of the Barreau du Québec.21
In this regard, it should be noted that in Malus v. Chambre des notaires, the Court reiterated that it must ensure that the path to a hearing on the merits remains narrow when faced with an action against an organization protected by legal immunity. Otherwise, an overly broad approach would lead to hearings on the merits in which the immunity of those responsible for protecting the public is questioned and their good faith tested, simply on the basis on frivolous allegations and subjective opinions, ultimately hampering those responsible for protecting the public from exercising their duties.22
1 Professional Code, CQLR c C-26, s 23.
2 See Blanchet v. Chapados, 2010 QCCA 174; Létourneau v. Ordre des acupuncteurs du Québec, 2015 QCCQ 4156; Andrade-Franco v. Arseneault, 2017 QCCS 1753 (appeal dismissed: 2019 QCCA 155).
3 Qualified immunity has been successfully invoked many times at the preliminary stage, including in: Richard v. Massicotte, 2007 QCCS 471; Paré v. Le Tarte, 2007 QCCS 2083; Truong v. Ordre des dentistes du Québec, 2009 QCCS 1976 (motion for dismissal of appeal allowed: 2011 QCCA 1138); Morin v. Deschênes, 2011 QCCS 4247; Jean-Pierre v. Bélanger, 2016 QCCQ 2819 (motion for leave to appeal beyond the time permitted dismissed: 2016 (QCCA 2049); Labbé v. Nadeau, 2017 QCCS 6193; Gauthier v. Disciplinary Council of the Barreau du Québec, 2020 QCCS 679; Sandor v. Collège des médecins, 2021 QCCS 3870; Malus v. Chambre des notaires du Québec, 2021 QCCS 966; Harvey v. Lavoie, 2021 QCCS 2364 (motion for leave to appeal dismissed: 2021 QCCA 1024. Some applications for dismissal or inadmissibility at the preliminary stage have instead been dismissed, as the Court has generally considered that a trial is required to determine whether the immunity actually applies in the absence of clear facts justifying inadmissibility, including in: Picard v. Ordre des médecins vétérinaires du Québec, 2003 CanLII 29764 (QC CS); Bohémier v. Barreau du Québec, 2012 QCCA 308; Fanous v. Gauthier, 2018 QCCA 293; Lacroix v. Barreau du Québec, 2019 QCCQ 7713; Casale v. Ordre des chiropraticiens du Québec, 2020 QCCS 1343.
4 2004 SCC 36 [“Finney”].
5 Gauthier v. Disciplinary Council of the Barreau du Québec, 2020 QCCS 679.
6 Malus v. Chambre des notaires du Québec, 2021 QCCS 679.
7 Finney at paras 21 and 40.
8 2007 QCCS 471 [“Richard”].
9 Finney, supra at paras 38-40.
10 Ibid at para 36.
11 2020 QCCS 679.
12 Gauthier v. Disciplinary Council of the Barreau du Québec, 2020 QCCS 679, at para 39.
13 Ibid at para 51.
14 Ibid at para 53.
15 Professional Code, CQLR c C-26, s 189.
16 Collège des médecins du Québec v. Collège d’études en ostéopathie inc., 2021 QCCS 1991, at para 17.
17 Ibid at para 18.
18 Ibid at para 19.
19 Court File no. 200-22-090903-212.
20 Richard, supra at paras 58-59.
21 Gauthier, supra at paras 28, 31-32.
22 Malus v. Chambre des notaires du Québec, 2021 QCCS 966, at paras 69-70.