Sections 128 and 193 of the Professional Code stipulate that the syndic of a professional order, in the same way as any individual filing a private complaint, may not be prosecuted for acts he has performed in good faith and in the exercise of his powers. This section raises a question, does an individual have any recourse against the trustees? The answer is yes, since he only has relative immunity.
Possible lawsuits
All remedies for damages are available in cases where the trustee has acted in bad faith or has been grossly negligent. The law has also evolved towards a more flexible approach that also allows for recourse when it is possible to demonstrate serious negligence or recklessness on the part of the syndic or its employees, such as in the case of inexplicable or incomprehensible behaviour .
The burden of proof
On the other hand, to file such an action against a trustee, the burden of proof for the plaintiff is heavy. Indeed, it is up to the court to prove the lack of good faith, negligence or serious recklessness or negligence. On the other hand, under article 2805 of the Civil Code of Québec, the trustee benefits from a presumption of good faith. Generally speaking, this is the belief that a person is in a situation that is in accordance with the law, and the awareness that he or she is acting without infringing the rights of others. In 2001, the Court of Appeal set out two circumstances in which the presumption of good faith is rebutted and, consequently, immunity is set aside. The first circumstance is the laying of serious charges without a factual basis and without reasonable and probable cause. The second is the exercise of a right in an excessive and unreasonable manner, thus contrary to the requirements of good faith. Intentional misconduct and gross recklessness are examples of bad faith, as are inexplicable or incomprehensible behaviour.
Immunity and procedure
The immunity relating to sections 128 and 193 of the Professional Code is generally invoked at the preliminary stage of proceedings, in particular to request that the Court dismiss an action brought against the professional order. In this case, the Tribunal will be responsible for examining the facts alleged in the pleading and determining whether, if they are proven, they would be able to rebut the presumption of good faith enjoyed by the professional order. If you believe that you have suffered harm as a result of the actions of a trustee and wish to explore your rights and recourses, a rigorous analysis of your situation is essential. Don’t let the qualified immunity of trustees stop you from acting. Contact Lambert Avocats today for an evaluation of your case and a strategic defense adapted to your situation.