On June 10, 2004, a unanimous Supreme Court of Canada ordered the Barreau du Québec to pay $25,000, plus solicitor and client costs, to Christina McCullock-Finney for “moral damages” (available under the Québec Civil Code) for failing to prosecute diligently Ms. Finney’s complaints against Eric Belhassen, a practitioner with a prior history of serious professional misconduct. It is the first time that a professional regulatory body is found civilly liable for failure to discharge its mandate to protect the public. As the Court noted, “[...] the delegation of [regulatory] powers by the State imposes obligations on the governing bodies of the profession, which are then responsible for ensuring the competence and honesty of their members in their dealings with the public.”
The Court recognized that statutory immunity is necessary to provide a public body ‘with the freedom that it needs in order to perform its functions’. However, on the particular facts of the case, the Court found that the Barreau could not escape liability by relying on its statutory immunity for acts done in good faith in the performance of [its] duties: “it would be contrary to the fundamental objective of protecting the public if this immunity were interpreted as requiring evidence of malice or intent to harm to rebut the presumption of good faith. Gross or serious carelessness is incompatible with good faith.”
The decision affects all law societies across the country and, most likely, all self-regulated professions whose claim of independence rests on protection of the public. Now it is clear that professional disciplinary bodies will have to act in a timely and effective way if that is necessary to protect members of the public from their delinquent members, whether they are lawyers, accountants or doctors. The case qualifies somewhat the Court’s earlier decisions in Edwards v. LSUC and Cooper v. Hobart, which had been widely interpreted as effectively immunizing professional regulatory bodies from civil suits.
Ms. Finney was represented by Guy Pratte, assisted by Georges Thibaudeau and Susie Paquette of Borden Ladner Gervais. The Barreau was represented by J. Vincent O’Donnell, Q.C., Raymond Doray, Jean Saint-Onge and Odette Jobin-Laberge of Lavery, de Billy.
Editor’s Note: The Barreau did not wait for the Court’s decision to proceed to improve the efficiency of its professional inspection and disciplinary procedures. Since 1995, the budget and resources allocated to the Professional Inspection Service, the Office of the Syndic and the Greffe has almost doubled (90 per cent). Particular emphasis has been placed on prevention. This year the total budget allocated to the services which play a professional inspection and disciplinary role is $7 million—45 per cent of the budget of the Barreau.