Sanctioning a Representative for a Minor Mistake?
Disciplinary law has existed for several decades and applies to over 40 professions in Quebec, including medicine, law and engineering. The purpose of this field of law is to protect the public by ensuring the professionalism of its members, who are overseen by a regulatory body. The field is constantly adapting to new realities such as technological change, evolving social mores and the fact that the public is increasingly well informed and aware of its rights.
The Role of the Syndic’s Office
The Chambre de l’assurance de dommages (ChAD) has one, single mission: to protect the public. It fulfills this mission by “[…] maintaining discipline and supervising the training and ethics of its members”1. The Syndic’s office and the Discipline committee have sole responsibility over disciplinary issues.
Pursuant to section 329 of the Act respecting the Distribution of financial products and services (ARDFPS), the Syndic’s office is responsible for conducting investigations. It can do so on its own initiative or upon receiving information from a third party—an insured, an insurer, a representative, a consumer or anyone else—that could lead it to suspect that a breach of one of the Codes of ethics, the Act or its regulations has occurred. When appropriate, the Syndic’s office files a complaint before the Discipline committee2, which is made up of a lawyer and two industry representatives3. Before coming to any conclusions, the Syndic’s office conducts a rigorous, comprehensive and confidential investigation.
The Investigation Process: Everyone Must Cooperate
Why do the Syndic and his investigators insist upon receiving the insured’s complete file, which may cover a long period time? Why do investigations touch upon a number of aspects of the representative’s ethical obligations?
It should be noted that when the Syndic decides to file a complaint with the Discipline committee, he must prove that breaches to the Code of ethics have occurred. His burden of proof is based on the balance of probabilities. The evidence presented must therefore be both clear and persuasive.
The committee cannot simply rule in favour of the complainant because it is partial to the complainant’s witnesses or is disgusted by what the professional has been accused of doing. It is essential that the incriminating evidence be sufficiently persuasive to convince the decision maker to accept it and reject the respondent’s theory.
Establishing the balance of evidence is no small feat for the Discipline committee. The decision must be based on a rigorous analysis of the evidence, not simply on emotions. The balance of evidence puts a heavy burden on the Syndic: the evidence must be of high quality, otherwise the complainant’s case will be simply thrown out.
Clear evidence cannot be ambiguous, questionable or vague. Confusion or uncertainty are unacceptable. Taken as a whole, clear evidence convinces the decision maker of guilt, where applicable.4
During the investigation, close cooperation between all parties involved and the member under investigation allows the Syndic’s office to determine as quickly as possible whether or not an offence has been committed. The evidence is built on testimony obtained by the representative under investigation, the complainant, the insured and the insurer, as well as on various documents—the insurance policy, endorsements, notes in the file, etc.
Ethical Misconduct or a Technical Error?
The work of the Syndic’s office does not end once the evidence has been gathered. The nature of the offence must now be determined: is it ethical misconduct or a technical error? The former is a breach of the Code of ethics and/or the law and its regulations. However, it is also “a breach of the principles of morality and ethics that are specific to the field and born of custom and tradition.”5
Thus, the offence cannot simply be a technical error.6 It must be serious in nature and jeopardize the protection of the public.7 However, the Syndic’s office has no need to prove that the public has actually been harmed. Simply the possibility of harm is sufficient.
A Complaint before the Discipline Committee
The Syndic’s office must investigate the complaints it receives. If, after having conducted an investigation, the Syndic’s office is reasonably convinced that a disciplinary breach has taken place, it will file a formal complaint before the Discipline committee. In cases where any doubt exists, it will refrain from setting in motion a formal process.
Over the past five years8, the Syndic’s office has opened an average of 250 files per year. Approximately 25 of these cases (10% of files) are filed before the Discipline committee. The remaining files are closed for various reasons: either because no breach was committed or because the breach was not disciplinary in nature. In the latter case, the Syndic’s office applies an administrative measure and offers the professional an opportunity to correct his professional practice.
Members are brought before the Discipline committee if there is evidence that they have committed extremely serious offences such as malpractice and embezzlement. The Syndic’s office has never filed a complaint simply because there were no notes or insufficient notes in the file. However, this breach occurs frequently and is indeed a problem that is often identified early in the investigation. If this is the only reason to criticize the professional, an administrative measure is applied.
Evidentiary requirements are such that the Syndic’s office cannot sanction a representative for a minor mistake. The Syndic nevertheless continues to educate representatives in order to help them constantly improve their professional practices.
1. Section 312 of the ARDFPS
2. Section 344 of the ARDFPS
3. Sections 352 and following of the ARDFPS
4. Syndic v. Duchamps, 2009 CanLII 3623.
5. Semenoff v. Jodoin, 2013-12-07 (b).
6. Syndic v. Duval, 2007 CanLII 49232.
7. Syndic v. Fournier, 2011 CanLII 81637.
8. 2013 Annual Report of the Chambre de l’assurance de dommages