The Disciplinary Council’s duty to assist an unrepresented party

he lack of legal representation for a defendant or witness in a disciplinary dispute can sometimes raise questions for the opposing party or for the Disciplinary Council (“Council”) as to the duty to assist the unrepresented party.

In Attara v. Dentistes (Ordre professionnel des)¹, the Professions Tribunal shed light on this increasingly common problem.

Facts

Dr. Attara, the defendant, was appealing the decision finding him guilty of the nine (9) counts contained in the disciplinary complaint, charging him primarily with failing to act in accordance with generally accepted scientific standards in the profession.

In the first instance, the plaintiff produced three expert reports and heard from two experts. For his part, the defendant had called an investigator from the Ordre des dentistes’ Professional Liability Insurance Fund. The investigator had reviewed the file and produced a report favourable to the defendant in another proceeding, namely a civil litigation in which the defendant was claiming unpaid fees from his client. Before the Council, the defendant presented the same evidence as in the Court of Quebec, since the grounds contained in the complaint related to the same events.

The Insurance Fund investigator testified for the defendant as an ordinary witness after the Council authorized him to file his report. However, the Council rejected his expert status.

As part of his evidence before the Council, the defendant also testified to challenge the expert opinions presented by the Syndic. Several objections were upheld to remind him that he could not act as an expert in his own case.

In his appeal, Dr. Attara alleged that he did not receive a fair and equitable hearing because the Council did not adequately fulfill its role of assisting an unrepresented professional.

The main issue in dispute, therefore, was whether the Council met the requirements of its duty to assist an unrepresented professional.

Analysis

First of all, the Professions Tribunal pointed out that the duty to assist an unrepresented professional rests with the Council and not with the plaintiff². It is a component of the audi alteram partem rule, which requires that an unrepresented party understand and grasp the issues at stake in the proceeding in which he or she is engaged.

The extent of the duty to assist is left to the discretion of the Council. In fact, the assistance provided to an unrepresented defendant will vary from one situation to another. However, the Council should not become legal counsel for the self-represented party.

In the circumstances of this case, the Professions Tribunal (“Tribunal”) noted that the chair of the Council demonstrated concern in responding to the duty of assistance incumbent upon the chair, in particular by showing great patience with the defendant and ordering the Syndic to send a collection of sources to Dr. Attara in order to inform him of the issues applicable to his file. However, the Tribunal found that the Council failed to inform Dr. Attara of the benefits of consulting a lawyer, to explain the differences between an expert witness and an ordinary witness, and to explain the consequences of not properly challenging the expert evidence presented by the Syndic. As a result, the defendant was not in a position to understand the real issues in his case and to properly challenge the plaintiff’s evidence. Furthermore, the Council did not analyze with the defendant the elements of the complaint in order to indicate to him the grounds on which expert evidence was required.

The Council’s only involvement was limited to mentioning to the defendant that he could not give opinion evidence, despite the defendant having spent two days challenging the Syndic’s evidence.

The Tribunal found that the lack of information provided by the Council led to major shortcomings, which had the effect of tainting the fairness of the trial. For these reasons, it set aside the guilty finding and ordered a new culpability hearing before a new panel.

Comments

A Council’s duty to assist is fundamental. Depending on the circumstances of each case, the Council must determine the degree of assistance to be provided to an unrepresented party. All parties should be informed of their right to consult a lawyer. It also appears that the Council’s duty to assist should be more than minimal, in order to respect and uphold the fundamental rights of a party and to avoid serious consequences, such as a new trial.

This decision is currently the subject of an appeal for judicial review before the Superior Court of Québec³ and it will be interesting to follow this case.