As in civil law or criminal law, a disciplinary law professional has the right to make full answer and defence, which implies that he or she may rely on certain defences. However, not just any defences will be admissible. Let us see which are those that can be invoked in disciplinary law.
Permissible defences
Third-Party Liability
This is a partially admissible defence in disciplinary law. Thus, the professional may try to prove a lack of participation or knowledge of the illegal activity or offence, in order to prove that the liability lies with a third party. If the third party is another professional, this defence will generally be admissible. However, if the third party is instead mandated by the professional, this defence can sometimes be countered by the alter ego theory that applies in disciplinary law.
Alter ego theory
When the professional gives a mandate that is his professional duty to perform to his employee, it is a delegation of authority, so that the employee becomes a bit of an “alter ego” of the professional. The alter ego theory allows, in disciplinary law, to impute liability to the professional for acts that he delegates to a third party. This means that when the law imposes an obligation on the professional, the professional is liable for the commission of an offence by his or her employee. This theory is justified by the objective of protecting the public: the delegation of certain powers involving the protection of the public requires close supervision of the professional, he cannot avoid his ethical duties and escape his liability by invoking that the third party has exceeded his mandate. For example, in one case, the pharmacist respondent was accused of illegally sharing professional allowances received from pharmaceutical companies with a non-pharmacist, his partner, in contravention of section 49 of the Code of Ethics of Pharmacists. The respondent alleged that it was rather the fault of his partner and his accountant, in particular because the latter, during the preparation of his income statements, had failed to include in his income the professional allowances received without his knowledge while he trusted them. However, they were mandated by the professional respondent, so that the Disciplinary Council concluded that the professional’s ethical responsibility could not be diminished by the actions of his agents.
Defence of due diligence or mistake of fact
In disciplinary law, the defence of due diligence is admissible if the professional believed on reasonable grounds that there was no fact that, if it had existed, would have rendered the act or omission innocent. The onus is on the professional to demonstrate, on a balance of probabilities, that it took all reasonable precautions to avoid the event in question. Thus, passive ignorance is not a means of defence, the professional must have been proactive. The Court of Appeal, in a decision, recalled that in order to do so, it will be necessary to demonstrate “not only the implementation of adequate measures to avoid the offence, but also a monitoring mechanism to ensure its effectiveness”. For example, in one decision, the respondent, a forest engineer, had monitored work relating to forest management activities that had not been previously authorized by the prioritization committee, had omitted necessary data in a final report that he had approved and which did not comply with the requirements of the Quebec Ministry of Natural Resources. The Tribunal decided that there could be no finding of an error of fact on the part of the professional: he was responsible for monitoring these projects, signing the final report and being present at all stages of them. He had not taken the reasonable precautions that a prudent forest engineer would have taken in the circumstances, but rather had acted negligently.
Impermissible defences
Good faith defence
The good faith of the professional is not a defence in disciplinary law, and is not a relevant element in determining the guilt of the professional.
Defence of mistake of law or ignorance of the law
As in criminal law, ignorance of the law is not a permissible defence in disciplinary law. Being part of a professional order is a privilege, which comes with duties and responsibilities. The professional is presumed to be aware of the ethical rules and obligations that govern the practice of his profession, and to have agreed to follow them, in particular for the purpose of protecting the public. Thus, he cannot invoke his failure to comply with these rules as a means of defence to a breach of them. In addition, the professional must act with caution and diligence and, in case of doubt about a law or regulation, to obtain information properly by contacting his or her professional order. However, as in criminal law, a professional’s error of law may be a defence if it was caused by erroneous advice from a competent authority, such as his or her professional order. When faced with a disciplinary complaint, it is essential to adopt a suitable defense strategy to protect your reputation and your career. If you are the subject of a disciplinary investigation or prosecution, don’t wait. Contact the professional law lawyers at Lambert Avocats today!