Very often, we hear that the syndics’ investigations are entirely confidential. However, this is not entirely true, since under section 124 of the Professional Code, the syndic only takes an oath of secrecy.
Investigations are said to be confidential because the information collected for the benefit of the professionals who are the subject of the investigations, the people who do business with them, and the professional order are confidential. The confidentiality of this information also makes it possible to participate in the objective of public protection of disciplinary law, in that it encourages the denunciation of professionals, particularly in matters of sexual misconduct. However, this confidentiality has limits and does not apply universally.
Scope of confidentiality
The oath of secrecy means that the syndic may not reveal or make known, without being authorized by law, anything of which he or she has become aware in the course of his or her work. Under section 108.3 of the Professional Code, the syndic may refuse to confirm the existence of an investigation or to communicate information the disclosure of which is likely to reveal the content of an investigation in progress or to have an effect on an investigation that is to come or subject to reopening. Moreover, for the same reasons, the syndic also has the power to refuse to confirm the existence of information or a document when it is requested to be disclosed.
Supervision of the discretion of the trustee
The syndic’s discretion to refuse the sharing of certain documents or information is not governed by any particular guidelines. The potential consequences of disclosure need not be demonstrated.
Only the general guidelines that apply to any discretionary power apply, i.e., that:
- Discretion must be exercised by the decision-maker, on a case-by-case basis, in light of the circumstances of each situation;
- An organization cannot decide in advance, through administrative policy for example, that a class of records must always be refused under an optional restriction;
- Discretion cannot be exercised under the dictation of a third party in a discriminatory or arbitrary manner.
The burden rests on the party challenging the refusal to disclose to show that the trustee breached these principles.
Exception to confidentiality
Under section 123, except in penal matters, the syndic must inform the person who requested an investigation in writing of his decisions. The disclosure of certain information in these documents will not contravene the syndic’s oath of discretion .
In addition, although the trustee cannot voluntarily reveal information during the course of his investigation, the courts may require him to disclose certain information when it is in the interests of justice to do so. For example, a search warrant may compel the disclosure of an investigation file. Finally, where there is a confrontation between the trustee’s duty of discretion and the fundamental right to make full answer and defence, the latter must be given priority while breaching the trustee’s duty as little as possible.
End of confidentiality
Investigation documents and information are and remain confidential until a disciplinary complaint has been filed with a Discipline Committee. However, as soon as the investigation stage gives way to the hearing of the complaint before the Discipline Committee, the syndic’s oath of secrecy ceases and the syndic is required to disclose all information in his possession in order to allow the professional to make full and complete defence.
If you are the subject of a disciplinary investigation, it is crucial to understand your rights and the limits of the syndic’s confidentiality. An effective defence relies on a thorough knowledge of the rules governing the disclosure of evidence. Don’t let uncertainty compromise your defense. Contact our team of disciplinary lawyers today for a detailed analysis of your case and a strategy tailored to your situation.