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Barreau du Québec
Appellant
v.
Christina McCullock-Finney
Respondent
and
Attorney General of Canada and
Federation of Law Societies of Canada
Interveners
Indexed as: Finney v. Barreau du Québec
Neutral Citation: 2004 SCC 36.
File No.: 29344.
2004: February 12; 2004: June 10.
Present: McLachlin C.J. and Iacobucci, Major, Bastarache,
Binnie, Arbour and LeBel JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Civil liability -- Barreau -- Immunity of
professional orders -- Nature and extent of Barreau's civil
liability -- Action in damages against Barreau for breach of
obligation to protect public in handling of complaints against an
advocate -- Whether Barreau can claim immunity set out in
Professional Code -- Concept of good faith -- Professional
Code, R.S.Q., c. C-26, ss. 23, 193 -- Civil Code of
Québec, S.Q. 1991, c. 64, art. 1376.
Law of professions -- Professional orders -- Civil
liability -- Immunity -- Barreau -- Scope
of immunity granted to professional orders -- Professional
Code, R.S.Q., c. C-26, s. 193.
B. was entered on the Roll of the Order
of Advocates in 1978. Between 1981 and 1987, the Barreau's Committee on
Discipline and the Professions Tribunal found him guilty on at least
three occasions of disciplinary offences. In 1990, after a lengthy
investigation, the Professional Inspection Committee submitted a report
to the Executive Committee concluding that B was incompetent. Two years
later, the Executive Committee required that B complete a refresher
training period and ordered that he practise his profession only under
the supervision of a tutor. The respondent's difficulties with B began
in 1990. Between 1991 and 1993, she filed several complaints against B
and even contacted the Office des professions to complain about the
Barreau's inaction. It was not until 1994 that the syndic served B with
a request to have him provisionally struck off the Roll, which was
granted by the Barreau's Committee on Discipline in May 1994. In
1998, B was found guilty on 17 counts and struck off the Roll of
the Order for five years. In 1996, the respondent launched an action in
damages against the Barreau for breach of its obligation to protect the
public in the handling of the complaints made against B. The Superior
Court dismissed the action. The Court of Appeal allowed the respondent's
appeal in part and ordered the Barreau to pay her $25,000 for the moral
injury she had suffered.
Held: The appeal
should be dismissed.
It is the Professional Code that sets out the basic rules
governing the organization and activities of professional orders in
Quebec, including the Barreau. Section 23 of the Code expressly
provides that professional orders are created primarily to protect the
public. To this end, the Code establishes two mechanisms for monitoring
the professional competence of the members of a professional order and
ensuring compliance with the rules of ethics, namely professional
inspection and disciplinary action. On the other hand, because of the
difficulties and risks to which the professional orders are exposed in
performing their various functions, s. 193 of the Code prohibits
prosecutions of professional orders and their officers and staff
"by reason of acts engaged in good faith in the performance of
their duties or functions". This immunity provision gives
professional orders the scope to act and the latitude and discretion
that they need in order to perform their duties. This case raises the
question of civil liability for acts or omissions of the Barreau in
relation to the performance of its duties and functions in respect of
supervision of the profession of law, that is, the manner in which the
complaints made by the respondent were handled. The respondent alleged a
number of consecutive faults which continued to be committed up to 1994.
Since the legal situation of the parties was still in the course of
being created on January 1, 1994, the rules governing liability in
the Civil Code of Québec apply by virtue of the principle that
the new legislation had immediate effect, set out in the Act
respecting the implementation of the reform of the Civil Code.
The Barreau du Québec is a public body
and, because of the specific nature of governments and the diversity and
complexity of the duties assigned to them, art. 1376 C.C.Q.
recognizes that the general rules of liability set out in art. 1457
C.C.Q. apply only "subject to any other rules of law which may be
applicable to them". In this case, the changes to the general rules
reflect the nature of the faults that are required to be shown in order
to establish liability that is limited by the partial immunity granted
by s. 193 of the Professional Code. Since good faith is the
key concept in this provision, the respondent must show that the Barreau
acted in bad faith. However, in the case of duties relating to the
management of disciplinary cases, it would be contrary to the
fundamental objective of protecting the public set out in s. 23 of
the Professional Code if this immunity provision were interpreted
as requiring evidence of malice or intent to harm in order to rebut the
presumption of good faith. The concept of bad faith must be given a
broader meaning that encompasses serious carelessness or recklessness.
The conduct of the Barreau, when
considered in its entirety, constitutes a fault for which it cannot
claim the immunity set out in s. 193. Exceptional though the case
may have been, the conduct of the Barreau was not up to the standards
imposed by its fundamental mandate, which is to protect the public. The
virtually complete absence of the diligence called for in the situation
amounted to a fault consisting of gross carelessness and serious
negligence. Neither the need to adhere to the statutory and procedural
discipline framework and to act with care and caution nor the complexity
inherent in any administrative process can explain the slowness seen in
this case. The nature of the complaints and B's professional record in
fact made it plain that this was an urgent case that had to be dealt
with very diligently to ensure that the Barreau carried out its mission
of protecting the public in general and a clearly identified victim in
particular. Despite the urgency of the situation the Barreau took over a
year to request provisional striking off. The very serious carelessness
the Barreau displayed amounts to bad faith, and the Barreau is civilly
liable. As to the existence of a causal connexion and the assessment of
the injury suffered by the respondent, the Barreau has not shown any
error in the Court of Appeal's judgment.
Finally, this is an exceptional case in
which the circumstances justify awarding the respondent costs on a
solicitor and client basis since she represented herself until the case
came before this Court and her appeal raises issues of general
importance concerning the application of the legislation governing the
professions in Quebec, the implications of which go beyond her
particular case.
Cases Cited
Referred to: Fortin
v. Chrétien, [2001] 2 S.C.R. 500, 2001 SCC 45; Doré
v. Verdun (City), [1997] 2 S.C.R. 862; Prud'homme v.
Prud'homme, [2002] 4 S.C.R. 663, 2002 SCC 85; Quebec
(Commission des droits de la personne et des droits de la jeunesse) v.
Communauté urbaine de Montréal, 2004 SCC 30; Morier v.
Rivard, [1985] 2 S.C.R. 716; Québec (Procureur général)
v. Deniso Lebel Inc., [1996] R.J.Q. 1821, leave to appeal
refused, [1997] 1 S.C.R. vi; Quebec (Public Curator) v.
Syndicat national des employés de l'hôpital St-Ferdinand, [1996] 3 S.C.R.
211; Augustus v. Gosset, [1996] 3 S.C.R. 268; Gauthier
v. Beaumont, [1998] 2 S.C.R. 3; Roncarelli v. Duplessis,
[1959] S.C.R. 121; Chaput v. Romain, [1955] S.C.R. 834;
Corporation de St-Joseph de Beauce v. Lessard, [1954] B.R. 475;
Directeur de la protection de la Jeunesse v. Quenneville, [1998]
R.J.Q. 44, leave to appeal refused, [1998] 1 S.C.R. xiii;
Edwards
v. Law Society of Upper Canada, [2001] 3 S.C.R. 562, 2001 SCC 80;
Cooper v. Hobart, [2001] 3 S.C.R. 537, 2001 SCC 79;
Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405,
2002 SCC 13; Roberge v. Bolduc, [1991] 1 S.C.R. 374.
Statutes and Regulations Cited
Act respecting the Barreau du Québec, R.S.Q., c. B-1, ss. 81
et seq. [rep. 1994, c. 40, s. 261], 128.
Act respecting the implementation of the reform of the Civil Code,
S.Q. 1992, c. 57, arts. 3, 85.
Charter of Human Rights and Freedoms, R.S.Q, c. C-12, s. 49.
Civil code of Québec, S.Q. 1991, c. 64, arts. 300,
1376, 1457, 1474, 2805.
Professional Code, R.S.Q., c. C-26, art. 23, 48, 109,
112, 113, 116, 121 et seq., 126 et seq., 130, 162,
164, 193 [am. 1988, c. 29, s. 9], 194, 195, 196.
Supreme Court Act, R.S.C. 1985, c. S-26, s. 47.
Authors Cited
Baudouin, Jean-Louis, et Patrice Deslauriers. La
responsabilité civile, 6e éd. Cowansville: Yvon Blais, 2003.
Dussault, René, and Louis Borgeat. Administrative Law: A
Treatise, vol. 5, 2nd ed. Toronto: Carswell, 1990.
Giroux, Pierre, et Stéphane Rochette. "La mauvaise foi et
la responsabilité de l'État", dans Développements récents en
droit administratif et constitutionnel, vol. 119. Cowansville,
Qué. : Yvon Blais, 1999, 117.
APPEAL from a judgment of the Quebec
Court of Appeal, [2002] R.J.Q. 1639, [2002] R.R.A. 706, [2002]
Q.J. No. 1522 (QL), setting aside a judgment of the Superior Court,
[1999] R.R.A. 83, [1998] Q.J. No. 3690 (QL). Appeal dismissed.
J. Vincent O'Donnell, Q.C.,
Raymond Doray and Jean St-nge, for the
appellant.
Guy J. Pratte, Susie N. Paquette
and Georges Thibaudeau, for the respondent.
Michel F. Denis and Michèle Ducharme,
for the intervener the Attorney general of Canada.
William J.Atkinson, for the
intervener the Federation of Law Societies of Canada.
English version of the judgment of the
Court delivered by
LeBel J. --
I. Introduction
1 An independent bar
composed of lawyers who are free of influence by public authorities is
an important component of the fundamental legal framework of Canadian
society. In Canada, our tradition of allowing the legal profession to
regulate itself can largely be attributed to a concern for protecting
that independence and to lawyers' own staunch defence of their autonomy.
In return, the delegation of powers by the State imposes obligations on
the governing bodies of the profession, which are then responsible for
ensuring the competence and honesty of their members in their dealings
with the public (see Fortin v. Chrétien, [2001] 2 S.C.R. 500,
2001 CSC 45, at paras. 11-18 and 52, per Gonthier J.).
Subject to the limits defined by the applicable legal rules and
principles, a law society will be liable for a breach of this
supervisory duty. Such cases are indeed rare, but one has arisen in this
instance. For the reasons that follow, which differ in part from the
reasons of the Quebec Court of Appeal ([2002] R.J.Q. 1639), I would
dismiss the appeal by the Barreau du Québec (the "Barreau")
and accordingly affirm the decision appealed from, which found the
Barreau liable to the respondent, Christina McCullock-Finney, and
ordered it to pay her $25,000 in moral damages. The appeal thus raises
the issues of the nature and extent of the Barreau's liability and the
scope of the immunities it enjoys in the exercise of the duties and
functions assigned to it by the legislation governing the organization
of the profession and the practice of the profession of law in Quebec,
on which it relies here.
II. Origin of the Case
2 Following an order
I made on October 22, 2003, the appellant filed a certificate
stating that parts of the record were still covered by a sealing order
and publication ban. Since some of the facts covered by the publication
ban will be mentioned, the ban will be lifted with respect to the
information disclosed in these reasons.
3 The Barreau's
difficulties and the problems experienced by McCullock-Finney, and the
ten-year dispute between the parties, can be traced to a lawyer named Éric Belhassen
and his misconduct. Mr. Belhassen was entered on the Roll of the
Order of Advocates in 1978. In short order, he committed several
breaches of professional ethics. Between 1980 and 1985, the Syndic of
the Barreau lodged four disciplinary complaints against him for a
variety of offences. The Committee on Discipline and the Professions
Tribunal found him guilty on at least three occasions between 1981 and
1987. The Barreau was also concerned about his professional competence.
The Professional Inspection Committee, the body with jurisdiction in
this respect, initiated the first investigation in 1985. In 1990, after
a number of delays caused for the most part by investigators departing
and new investigators being appointed, the Professional Inspection
Committee submitted a report to the Executive Committee concluding that
Belhassen was incompetent. It recommended that his right to practise be
completely suspended and that he be required to repeat his professional
training in its entirety at the École du Barreau. The Court of Appeal
characterized the Committee's recommendation as [TRANSLATION]
"polite, but alarming" (para. 11). The
Professional Inspection Committee seemed to be persuaded that Belhassen
was incompetent and unfit to practise the profession. At the same time,
it recommended that the Executive Committee order, under ss. 81 et
seq. of the Act respecting the Barreau du Québec, R.S.Q..,
c. B-1 (repealed on October 15, 1994; see now s. 48 of the Professional
Code, R.S.Q., c. C-26), that Belhassen submit to a medical
examination to determine his physical and mental fitness to practise the
profession. The examination was performed. The Court of Appeal judgment
is silent as to its results.
4 The Executive
Committee then convened to consider the report of the Professional
Inspection Committee. Belhassen was given notice to attend and was
heard. Ultimately, on June 1, 1992, the Executive Committee did not
suspend Belhassen's right to practise law. Instead, it decided to
require that he complete a refresher training period, which consisted of
participating in the activities offered by the Continuing Education
Department of the Barreau in family law. Belhassen was also restricted
to practising his profession under the supervision of a tutor, an
eminent Montréal lawyer. The tutor was to submit quarterly reports to
the Executive Committee. The tutor agreed to the appointment and
undertook work under that mandate, which ended a year later in the
circumstances described below.
5 In the interim,
between 1990 and 1992, McCullock-Finney's conflict with Belhassen was
brewing. The respondent had the misfortune of crossing paths with this
member of the Barreau in 1990. At the time, her husband, Samir Badr,
was being represented by Belhassen in some commercial litigation. The
respondent's son, Jasson, had also retained his services for a number of
matters. McCullock-Finney gave Belhassen a $2,000 advance on her son's
behalf. By a few months later, there was general dissatisfaction. Jasson
and his mother sought an accounting. Belhassen sued McCullock-Finney to
collect a debt that she claimed had been trumped up. In 1994, the action
was dismissed. Jasson's lawyer then sent the Syndic of the Barreau a
strongly worded complaint against Belhassen. The conflict between the
respondent and the Barreau can be traced to this initial volley.
6 The respondent
charged that the Barreau took no action on that complaint before it was
repeated in 1996. The Barreau replied that an assistant syndic met with
Belhassen to get his version of the events and then asked for comments
from Jasson, who did not contact him again until 1996. After the initial
complaint, there was one mishap after another. The lawyer representing
McCullock-Finney filed a fresh complaint in January 1991 regarding
his colleague's conduct toward him and contacted the Barreau again in
March 1991 in connection with the same difficulties.
7 The next complaint
was filed by the respondent herself on January 22, 1993. It arose
out of a confrontation with Belhassen that took place after the
breakdown of the respondent's relationship with her spouse, Samir Badr.
Following a complex series of legal disputes involving numerous
proceedings, the respondent obtained a judgment against Badr and
attempted to have it executed. Belhassen at times represented Badr in
those cases, or was involved in various ways. Once judgment had been
given, he himself brought a whole range of proceedings, or had them
brought by third persons, to prevent execution of the judgment and
recovery of the money owing. The complaint filed in January 1993
alleged breaches of the rules of ethics in the course of those
proceedings. For instance, it was alleged that Belhassen had appeared
both for the plaintiff and for the defendant in a proceeding thought up
in an attempt to create a debt that could be set off against the
respondent. Further complaints were sent to the syndic over the weeks
that followed. McCullock-Finney's lawyer alerted the Office of the
Syndic to the fact the Belhassen was threatening him with bankruptcy
proceedings. Belhassen later withdrew the petition in bankruptcy,
however, after being given notice to appear by the Syndic in early March 1993.
At that time, apart from files being opened and investigations
initiated, nothing had yet been done. The respondent therefore decided
to contact the Office des professions to complain about the Barreau's
inaction. She brought the first action in damages against both the
Barreau and Belhassen. At the end of April, however, she withdrew the
action as against the appellant.
8 In the interim,
the guerilla war that Belhassen had started in the courts reached its
peak. The Superior Court was concerned about the deluge of proceedings,
and the unusual nature of those proceedings. The Hon. Pierre A. Michaud,
Associate Chief Justice of the Superior Court, had all of the
proceedings joined and brought before him, and summoned all of the
parties involved. The Office of the Syndic was given notice by the
Superior Court and attended the hearing, the outcome of which was that
any proceeding brought by Belhassen was to be subject to a special
review. All this time, the tutor noticed nothing. At the end of April 1993,
he complained to the Syndic that he was no longer able to contact
Belhassen. He then learned about the Superior Court's intervention in
respect of a series of proceedings, none of which he knew anything
about. A few days later, he resigned from his position as tutor and
reported to the Executive Committee. As a result of the respondent's
complaints, further communications from the Office des professions, the
Superior Court hearing and the breakdown of the refresher training, the
seriousness of the situation created by Belhassen's behaviour prompted
the Chief Syndic to recommend to the Executive Committee that a syndic ad
hoc be appointed. The appointment was made in October, and the new
syndic took over the files in November.
9 In the interim, as
the Court of Appeal observed, [TRANSLATION]
"Belhassen's guerrilla war against the [respondent] in the
courts was in full gear" (para. 34). On October 28,
1993, the lawyer who was then advising the respondent contacted the
Office des professions to stress the seriousness of the case. The Office
asked the Barreau for an explanation on November 3. A few days
later, in response to threats from Belhassen, the lawyer withdrew from
the case. On January 12, 1994, the Office again contacted the
Barreau and asked it to come to the respondent's assistance. On January 14,
the syndic ad hoc sent Belhassen a formal notice and gave him 15 days
to explain his actions. On March 29, 1994, the syndic ad hoc
served Belhassen with a complaint containing 23 counts, and
attached a request to have him provisionally struck off the Roll.
Belhassen was provisionally struck off by the Committee on Discipline of
the Barreau on May 19, 1994, effective May 24, 1994. On April 22,
1998, the Committee on Discipline found Belhassen guilty on 17 counts.
On August 12, 1998, he was struck off the Roll of the Order for
five years, but retroactively to 1994.
III. Judicial History
10 Before the
disciplinary proceedings against Belhassen concluded, the respondent
launched an action against the Barreau in damages, on January 8,
1996. In the action as amended on July 31, 1998, the respondent
claimed $975,000 in compensatory, material, moral and exemplary damages.
The respondent was initially seeking damages against the Barreau and
certain of its senior officials for breach of their obligation to
protect the public in their handling of the complaints made against
Belhassen. The Barreau vigorously denied any wrongdoing but, on the
other hand, cited the immunities granted by the legislation that governs
the professions in Quebec.
A. Quebec Superior Court,
[1999] R.R.A. 83
11 The respondent
failed completely in the Superior Court. In its judgment, the court
analyzed the Belhassen case, the relationship between Belhassen and the
respondent and the dispute between the respondent and the Barreau
carefully and at length. Because of the three-year prescription in the Civil
Code of Québec, S.Q. 1991, c. 64, the trial judge held
that since the action had been served in early 1996, only the facts that
had transpired since the beginning of 1993 should be taken into account
in determining whether the Barreau had committed any wrongful acts for
which it could be held liable. In the judge's opinion, because of the
immunity granted to the Barreau and its functionaries and officers by s. 193
of the Professional Code for acts engaged in the performance of
their duties or functions, the respondent had to prove intentional
wrongdoing. While he recognized that there had been considerable delays
in the consideration of the complaints made by McCullock-Finney and in
the course taken by the disciplinary proceedings against Belhassen,
Normand J. concluded that the Barreau had exercised its powers
properly and had committed no wrongful act in this case, the difficulty
of which he acknowledged. He therefore dismissed the action. His
judgment was appealed to the Quebec Court of Appeal.
B.Quebec Court of Appeal, [2002]
R.J.Q. 1639 (Deschamps, Robert and Pelletier JJ.A.)
12 The Quebec Court
of Appeal allowed the respondent's appeal in part. The court held,
first, that the trial judge had erred in failing to have regard to the
events prior to January 1993 in assessing the Barreau's liability.
Even though an action in liability based on those specific facts was
prescribed, they should have been taken into account in assessing the
conduct of the Barreau in this case. The Court of Appeal examined those
facts and the facts set out by Normand J., and strongly criticized
the Barreau's conduct. In short, Belhassen posed a grave and imminent
danger to the public and the Barreau was aware of this danger. The court
found the time that elapsed between the complaints made by the
respondent in early 1993 and the request for provisional striking off to
be unacceptable and inexcusable. In the court's opinion, the Barreau
had, by its conduct, failed to exercise the administrative discretion
and perform the duties delegated to it by the Professional Code
to achieve the objective set out in s. 23: the protection of the
public. The court found that the Barreau had thus failed to exercise its
jurisdiction and accordingly no longer enjoyed the immunity set out in
s. 193 of the Professional Code. Consequently, the delays
and negligence on its part all constituted civil faults for which it was
liable. The Court of Appeal concluded by ruling that McCullock-Finney
had suffered a moral injury which it assessed in the amount of $25,000,
and which it imputed to the wrongful acts committed by the appellant.
The appeal decision therefore ordered the Barreau to pay that amount but
denied any relief against individual members of the Barreau's staff. The
appeal for which leave was granted by this Court seeks to have that
judgment set aside and the action dismissed in its entirety.
IV. Relevant Legislation
13 The relevant
statutory provisions, as they read at the time of the dispute, are as
follows:
Professional Code, R.S.Q., c.
C-26Code des professions, L.R.Q., ch. C-26
23.The principal function of
each corporation shall be to ensure the protection of the public.
For this purpose it must in particular
supervise the practice of the profession by its members. 23.Chaque
corporation a pour principale fonction d'assurer la protection du
public.
À cette fin, elle doit notamment contrôler
l'exercice de la profession par ses membres.193.The syndics,
assistant syndics, corresponding syndics, the investigators and experts
of a professional inspection committee, the members of the Office, of a
Bureau, of a committee on discipline, of a professional inspection
committee or of a committee of inquiry established by a Bureau, and the
members of a tribunal hearing an appeal from a decision by a committee
on discipline or by a Bureau, shall not be prosecuted for acts done in
good faith in the performance of their duties.193.Les syndics,
les syndics adjoints, les syndics correspondants, les enquêteurs et les
experts d'un comité d'inspection professionnelle, les membres de
l'Office, d'un Bureau, d'un comité de discipline, d'un comité
d'inspection professionnelle ou d'un comité d'enquête formé par un
Bureau, de même que les membres du tribunal entendant un appel d'une décision
d'un comité de discipline ou d'un Bureau, ne peuvent être poursuivis
en justice en raison d'actes accomplis de bonne foi dans l'exercice de
leurs fonctions.
Civil code of Québec, S.Q. 1991, c. 64
Code civil du Québec, L.Q.
1991, ch. 641376. The rules set forth in this Book apply to the
State and its bodies, and to all other legal persons established in the
public interest, subject to any other rules of law which may be
applicable to them.1376. Les règles du présent livre
s'appliquent à l'État, ainsi qu'à ses organismes et à toute autre
personne morale de droit public, sous réserve des autres règles de
droit qui leur sont applicables.1457. Every person has a duty to
abide by the rules of conduct which lie upon him, according to the
circumstances, usage or law, so as not to cause injury to another.
Where he is endowed with reason and
fails in this duty, he is responsible for any injury he causes to
another person and is liable to reparation for the injury, whether it be
bodily, moral or material in nature.
He is also liable, in certain cases, to
reparation for injury caused to another by the act or fault of another
person or by the act of things in his custody.
1457. Toute personne a le devoir de respecter les règles de
conduite qui, suivant les circonstances, les usages ou la loi,
s'imposent à elle, de manière à ne pas causer de préjudice à autrui.
Elle est, lorsqu'elle est douée de
raison et qu'elle manque à ce devoir, responsable du préjudice qu'elle
cause par cette faute à autrui et tenue de réparer ce préjudice,
qu'il soit corporel, moral ou matériel.
Elle est aussi tenue, en certains cas,
de réparer le préjudice causé à autrui par le fait ou la faute d'une
autre personne ou par le fait des biens qu'elle a sous sa garde.
V. Analysis
A. The Nature of the
Issues
14 The issue in
this appeal is the nature of the civil liability rules that apply to the
activities of the Barreau, a public body with administrative, regulatory
and disciplinary powers delegated by the Quebec National Assembly. The
positions taken by the parties on that liability lead to different
conclusions. The respondent argued that the rules were similar to the
common law rules of liability. The appellant argued for rules under
which it would be liable only in exceptional cases, because of the
statutory immunities and the limitation of liability principles that it
contends derive from the public law that applies in Quebec.
15 Given these
divergent positions, we must first examine the civil law rules that
apply to the liability of professional orders. It will then be necessary
to determine whether that liability is limited by the immunities or
public law principles, and if so, to what extent. To complete this
analysis, we will determine whether the conduct of the Barreau
constitutes a fault for which it would have delictual civil liability.
To carry out this analysis, we must first review the legal framework
governing the activities of the Barreau in Quebec and the functions
delegated to professional orders by Quebec legislation and, more
specifically, by the Professional Code. In the course of this
analysis, we will also review the mechanisms created for supervising the
competence and discipline of lawyers and the obligations that the
applicable legislation governing professions imposes on the Barreau in
this respect.
B. The Professional
Organization of the Barreau in Quebec
16 In Quebec law,
it is the Professional Code that sets out the basic rules
governing the organization and activities of the more than 40 professional
orders,
which include the Barreau. In addition, the Act respecting the
Barreau du Québec
contains special provisions that do not, however, alter the principles
governing its organization and activities that are set out in the Professional
Code. The Professional Code states the essential purpose for
which independent orders, such as the Barreau du Québec, are created.
The primary objective of those orders is not to provide services to
their members or represent their collective interests. They are created
to protect the public, as s. 23 of the Professional Code makes
clear:
23. The principal function of
each corporation shall be to ensure the protection of the public.
For this purpose it must in particular
supervise the practice of the profession by its members.
(See also Fortin v. Chrétien, supra, at para. 11, per
Gonthier J.)
17 This legislation
gives the members of the Barreau a monopoly over the performance of a
number of professional acts, such as giving consultations, drawing up
pleadings and representing parties before the courts (Act respecting
the Barreau du Québec, s. 128). Since that monopoly was not
created for private purposes, but rather to recognize the social
importance of the role of the lawyer in a democratic society founded on
the rule of law, it imposes significant obligations on the professional
order to monitor the competence and supervise the conduct of its members
once they have been entered on the Roll of the Order (Fortin v. Chrétien,
at paras. 12-18).
18 The Professional
Code establishes two mechanisms for monitoring the professional
competence of the members of a professional order and ensuring
compliance with the rules of ethics: professional inspection by the
Syndic and the committees on discipline, and the discipline that they
may impose. There are other means available to the Barreau to enable it
to meet its objective of preserving the competence, honesty and
diligence of its members, such as professional training, refresher
training, information services and trust account audits. The only
mechanisms of concern for the purposes of this appeal are professional
inspection and discipline. Although the two share the ultimate goal of
maintaining and improving professional standards, professional
inspection is more specifically concerned with lawyers' competence,
while discipline focusses on their conduct. The role of professional
inspection is preventive, while the role of discipline is punitive. As
we shall see, however, a single problem may raise both professional
inspection and discipline issues. This was certainly true in the
Belhassen case.
19 Like all other
professional orders, the Barreau was required to establish a
Professional Inspection Committee, in accordance with s. 109 of the
Professional Code. The Committee performs a general function of
supervising the manner in which professionals keep their records and
offices. In addition, at the request of its Bureau or of its own
initiative, the Committee may inquire into the fitness of members to
practise their profession, or their professional competence (s. 112).
The Committee may recommend a range of measures, including training
courses or limitations on the right to practise law (s. 113). It is
then up to the decision-making bodies of the Barreau to take the action
they consider appropriate. It should also be noted that the lawyer in
question has to be heard, is entitled to defend himself or herself and
has a right to appeal to the Professions Tribunal in certain cases.
20 The other
mechanism for protecting the public is discipline. Under the Professional
Code, an independent functionary, the Syndic, is responsible for
investigating disciplinary complaints and deciding whether a complaint
should be lodged with the Committee on Discipline (ss. 121 et
seq.). If the situation so warrants, the Syndic brings the matter to
that Committee. The procedure is adversarial. The Syndic must inform the
lawyer and obtain his or her version of the facts. The Committee on
Discipline is an administrative tribunal that is required to apply the
rules of the adversarial process and the principles of procedural
fairness (ss. 116, 126 et seq.). No finding of guilt is
made, or penalty imposed, until that process has been completed, and
those decisions may be appealed to the Professions Tribunal (ss. 162
and 164). As an exception to that rule, the Syndic may, before a
decision is made on a complaint, request the provisional striking off of
a lawyer, inter alia if the protection of the public could be
compromised (s. 130). This complex mechanism reflects the values
that underlie the Canadian justice system, but neither simplifies nor
facilitates the work of the Barreau's staff or of the members of the
Professional Inspection Committee and the Committee on Discipline, whose
responsibility it is to take action. The action that they take is
necessarily governed by a binding legal framework. We must bear the
existence and scope of that framework in mind, in analyzing the
appellant's situation and assessing its liability.
21 On the other
hand, because of the difficulties and risks to which the professional
orders are exposed in performing their various functions, the
legislature has granted them immunity for acts engaged in in good faith
in the performance of their duties or functions, within the meaning of
and subject to the limits set out in s. 193 of the Professional
Code. In addition, ss. 194, 195 and 196 limit the availability
of judicial review of the decisions of professional orders and the
Professions Tribunal.
C. The Applicable Rules
of Civil Liability
22 The Barreau du
Québec is a public body and, as such, performs a variety of functions
delegated to it by the legislature. The acts or omissions it is accused
of by the respondent, which form the basis of her action for damages,
occurred in the course of its performance of its functions in
supervising the conduct and competence of one of its members. Here
again, then, the question of the relationship between the civil law and
public law of Quebec must be addressed in order to determine what rules
of civil liability apply to McCullock-Finney's action in damages.
23 To answer that
question, we must first briefly review the transitional law problem
raised by the coming into force of the Civil Code of Québec on
January 1, 1994, in relation to facts that found an action and that
took place before and after that date, approximately between early 1993
and the spring of 1994. Depending on the solution that is reached, the Civil
Code of Québec may or may not apply, and the answer has a direct
impact on the substance of the rules governing the delictual civil
liability of a public body. To solve this problem, we must refer to the
transitional rules of law set out in the Act respecting the
implementation of the reform of the Civil Code, S.Q. 1992, c. 57
(the "Transitional Law Act").
24 Section 85
of the Transitional Law Act provides that the law in force at the
time of the fault or act out of which liability arose:
85. The conditions of civil
liability are governed by the legislation in force at the time of the
fault or act which causes the injury.
25 That provision
is problematic in this case, because the facts out of which liability
arose do not boil down to a single isolated event at a particular point
in time. Rather, as noted earlier, the respondent alleges a number of
consecutive faults which continued to be committed up to 1994. The legal
situation of the parties was still in the course of being created on
January 1, 1994. The Civil Code of Québec therefore applies
by virtue of the principle that the new legislation had immediate
effect, set out in s. 3 of the Transitional Law Act:
3. The new legislation is
applicable to legal situations which exist when it comes into force.
Any hitherto unfulfilled conditions for
the creation or extinction of situations in the course of being created
or extinguished are therefore governed by the new legislation; it also
governs the future effects of existing legal situations.
26 The coming into
force of the Civil Code of Québec had a significant impact on
the rules governing the civil liability of governments and public bodies
in Quebec. This change was the result of the new position assigned to
the Civil Code in the hierarchy of the sources of law in matters
within the legislative jurisdiction of the Quebec National Assembly. As
this Court has had occasion to note in the past, the effect of the
preliminary provision of the Civil Code is that it became the jus
commune of Quebec. In addition, under art. 1376 C.C.Q. the law
that applies as a general rule to the contractual undertakings and
delictual liability of governments is the law set out in the C.C.Q.,
subject to the rules of public law; the relevance of those rules to the
conduct of the business of public bodies is recognized by art. 300 C.C.Q.
(Doré v. Verdun (City), [1997] 2 S.C.R. 862, at paras. 15-17
and 20-21, per Gonthier J.; Prud'homme v. Prud'homme,
[2002] 4 S.C.R. 663, 2002 SCC 85, at paras. 28-31; Quebec(Commission
des droits de la personne et des droits de la jeunesse) v. Communauté
urbaine de Montréal, 2004 SCC 30, at para. 20).
27 As a rule, an
examination of the liability of governments begins with the application
of the rules of liability established by the Civil Code of Québec.
However, art. 1376 C.C.Q. states that the Civil Code applies
only "subject to any other rules of law which may be applicable
to them". This reserve on the part of the legislature reflects
the specific nature of governments, and the diversity and complexity of
the duties assigned to them. Very often, the assessment of a public
body's conduct and decisions that a court might make based on the
simple, straightforward application of the rules of the jus commune
would not provide it with the freedom it needs in order to perform its
functions. That is why this Court recognizes that general principles or
specific rules of public law may either prevent the general rules of
civil liability from applying altogether or substantially alter the
rules by which they operate (Prud'homme v. Prud'homme, supra,
at para. 31; Quebec(Commission des droits de la personne et des
droits de la jeunesse) v. Communauté urbaine de Montréal, supra,at
para. 22).
28 As I noted
earlier, the professional orders governed by the Professional Code
perform significant, diverse and often difficult social functions. To
achieve their fundamental objective of supervising the practice of their
profession, professional orders exercise regulatory powers, manage
complex administrative systems and, on occasion, through the actions of
committees, perform adjudicative functions.
29 The difficulties
inherent in the exercise of the powers of professional inspection and
discipline, in particular, for a body such as the Barreau are
undeniable. Although the objectives of professional inspection actions
are training and prevention, they may call for a thorough examination of
a lawyer's methods of practice, and the lawyer's right to practise the
profession may be at stake as a result. Confrontation is an unavoidable
result of disciplinary proceedings. When disciplinary investigation is
initiated, the aggrieved or dissatisfied client or third party, the
lawyer in question and the Syndic are brought into contact. In this
often emotion-filled and very tense situation, in which the lawyer
nonetheless has the right to defend himself or herself, the Syndic must
verify the material in the file, gather information from the parties,
and assess that information. The Syndic must then decide whether a
complaint should be lodged with the Committee on Discipline. Such a
process requires time, care and tact to do this job. It will sometimes
displease some people, whatever the outcome of the case. In this
situation, it is very easy to understand why the rules of public law are
applied in order to determine the extent of a professional order's
liability.
30 While reference
is sometimes made to general principles that derive from the case law,
the law itself frequently provides the necessary rules. In fact, it is
important to examine the wording of those rules carefully before
proceeding too hastily to apply the general principles. This is true in
the case of the Professional Code. That Act contains an immunity
provision, s. 193, which prohibits prosecutions of professional
orders and their officers and staff "by reason of acts engaged
in in good faith in the performance of their duties or functions".
The existence of such a provision requires that courts hearing an action
against the Barreau examine the scope of that provision to determine the
circumstances in which a body of that nature may be liable.
31 Although the
result of this method is also recognition of the Barreau's liability, it
is preferable to take an approach different from the one taken by the
Quebec Court of Appeal. That court declined to apply s. 193,
because in its opinion the appellant had failed to exercise its powers
for the purposes set out in the Act, that is, the protection of the
public. That method has the disadvantage of confusing review of the
legality of a public body's decisions with the rules that determine that
body's civil liability. Undoubtedly those questions will overlap on
occasion, and acts that are illegal and that may be set aside under the
rules that govern review for legality may found an action in civil
liability. However, this does not often happen, and illegality is not
necessarily synonymous with civil fault, or a source of delictual
liability (Morier v. Rivard, [1985] 2 S.C.R. 716, at p. 745,
per Chouinard J.; Québec (Procureur général) v. Deniso
Lebel Inc., [1996] R.J.Q. 1821, at pp. 1836-37, leave to
appeal refused [1997] 1 S.C.R. vi; R. Dussault and L. Borgeat,
Administrative Law: A Treatise (2nd ed. 1990), vol. 5, at p. 190).
32 In this case,
the issue is clearly the question of civil liability for the acts or
omissions of the Barreau in relation to the performance of its duties
and functions in respect of supervision of the profession of law, that
is, the manner in which the complaints made by McCullock-Finney and the
cases involving Belhassen were handled. This is not an issue of
jurisdiction. The answer to the question depends on how s. 193 of
the Professional Code is interpreted and applied, and on the
scope of the immunity that s. 193 confers with respect to actions
in delictual civil liability. The parties acknowledge that s. 193
gives the Barreau only partial immunity with respect to its actions.
After that, their positions differ strongly when they attempt to
delineate the rules of civil liability that apply to the legal situation
in issue in this case.
D. The Scope of the Barreau's
Immunity
33 In the
submission of the Barreau, the key concept in analyzing s. 193 is
good faith. Article 2805 C.C.Q. establishes a presumption of good
faith. Moreover, in the appellant's submission, s. 193, which
applies in this case, shields it from all liability unless its bad faith
is established. In other words, according to the appellant's arguments
on appeal, only an action based on proof of intentional fault, which
would essentially amount to malice, would fall outside the purview of s. 193.
In the appellant's submission, even if it concedes that it was slow to
deal with these complaints and cases, there is nothing from which it
could be concluded that an intentional fault was committed. The
respondent, relying on the reasoning of the Court of Appeal, tried to
rule out any application of immunity, but argued that the fault in the
conduct of the Barreau was so serious that no protection was available
to it under s. 193 on a correct interpretation of that provision. What
must therefore be done is to determine what kind of gross negligence, if
any, would fall outside the purview of an immunity provision like the
one in issue here.
34 As long as there
have been systems of civil liability, legal scholars have tried to
classify faults according to their seriousness and to define each of
them. That effort is plainly ongoing, and it has generated a
considerable body of case law and never-ending debates in the legal
literature. Some of these distinctions have been incorporated into the Civil
Code of Québec, where they appear in art. 1474, which
prohibits the exclusion of liability for intentional or gross fault:
1474. A person may not exclude
or limit his liability for material injury caused to another through an
intentional or gross fault; a gross fault is a fault which shows gross
recklessness, gross carelessness or gross negligence.
He may not in any way exclude or limit
his liability for bodily or moral injury caused to another.1474.
Une personne ne peut exclure ou limiter sa responsabilité pour le préjudice
matériel causé à autrui par une faute intentionnelle ou une faute
lourde; la faute lourde est celle qui dénote une insouciance, une
imprudence ou une négligence grossières.
Elle ne peut aucunement exclure ou
limiter sa responsabilité pour le préjudice corporel ou moral causé
à autrui.
35 It remains
easier to describe than to define those categories of fault, as
illustrated by a passage from a frequently cited Quebec treatise on the
law of civil liability. The authors of that work point out that the
positive law recognizes a classification, but the description of the
categories demonstrates the fluidity of their content:
[TRANSLATION]
165 . . . However, the courts
and now the legislature (see art. 1474 C.C.Q.) have retained
the concept of gross fault from this classification, a concept that
refers, in both contractual and extracontractual contexts, to conduct
that shows recklessness, gross carelessness or total disregard for the
interests of others, and assign specific legal consequences to it. The
courts have also equated gross fault with intentional, wilful and
fraudulent fault and sometimes, in specific circumstances,
"serious" fault.
(J. L. Baudouin and P. Deslauriers,
La responsabilité civile (6th ed. 2003), at pp. 123-24)
36 In this case,
there is no need to revisit this issue in its entirety. The nature of
the analysis that is required in order to resolve this matter may be
determined by referring to the concept of good faith in s. 193 of
the Professional Code. That concept lies at the heart of the
interpretation and application of this provision. On this point, I
accept the appellant's argument that the respondent's action must be
dismissed if she is unable to rebut the presumption of good faith under
art. 2805 C.C.Q. and show absence of good faith in the conduct of
the Barreau.
37 What, then,
constitutes bad faith? Does it always correspond to intentional fault?
The courts do not appear to equate the state or acts of bad faith
squarely with a demonstrated intent to harm another or, consequently, to
require evidence of intentional fault. That direct linkage is made only
in the case law relating to punitive damages under s. 49 of the Charter
of Human Rights and Freedoms, R.S.Q., c. C-12. For example, in Quebec
(Public Curator) v. Syndicat national des employés de l'hôpital
St-Ferdinand, [1996] 3 S.C.R. 211, this Court adopted a
narrow definition of intentional fault, based on the nature and function
of that type of action. The actual consequences of the wrongful conduct
must have been intended (para. 117). Proof of recklessness is not
sufficient (paras. 114 and 121). This approach has been followed in
subsequent decisions of this Court (see Augustus v. Gosset,
[1996] 3 S.C.R. 268, at paras. 77-78; Gauthier v.
Beaumont, [1998] 2 S.C.R. 3, at para. 105).
38 Outside the
context of claims for punitive damages, the law of civil liability in
Quebec does not, however, appear to take such a narrow view of the
content of the concept of bad faith. It appears, rather, to accept
evidence of conduct described as "l'insouciance ou l'incurie
grave ou déréglée" (recklessness or serious or extreme
carelessness), expressions that reflect an attempt to translate into
French the legal concept of "recklessness" that is familiar to
legal English. The application of that concept to the civil liability of
governments has been debated. It has been observed that the
interpretations applied to that concept have been varied and sometimes
irreconcilable. In some cases, overly broad interpretations threatened
to unduly extend the scope of public liability and deny administrative
decision-makers the latitude and discretion they need in order to
discharge their duties. In others, the interpretation was so narrow that
bad faith was of very little practical use as a source of liability (P. Giroux
and S. Rochette, "La mauvaise foi et la responsabilité de l'État",
in Développements récents en droit administratif et constitutionnel,
vol. 119 (1999), 117, at pp. 127-33).
39 These
difficulties nevertheless show that the concept of bad faith can and
must be given a broader meaning that encompasses serious carelessness or
recklessness. Bad faith certainly includes intentional fault, a classic
example of which is found in the conduct of the Attorney General of
Quebec that was examined in Roncarelli v. Duplessis, [1959] S.C.R. 121.
Such conduct is an abuse of power for which the State, or sometimes a
public servant, may be held liable. However, recklessness implies a
fundamental breakdown of the orderly exercise of authority, to the point
that absence of good faith can be deduced and bad faith presumed. The
act, in terms of how it is performed, is then inexplicable and
incomprehensible, to the point that it can be regarded as an actual
abuse of power, having regard to the purposes for which it is meant to
be exercised (Dussault and L. Borgeat, supra, at p. 485).
This Court seems to have adopted a similar view in Chaput v. Romain,
[1955] S.C.R. 834. In that case, provincial police officers were
held liable for breaking up a meeting of Jehovah's Witnesses. Although
the police had been granted immunity by a provincial statute for acts
carried out in good faith in the performance of their duties, Taschereau J.
concluded that the police officers could not have acted in good faith,
as there was no other explanation for their negligence (p. 844).
(See also, but in the context of an action to quash a municipal by-law,
the comments by Garon Pratte J. in Corporation de St-Joseph
de Beauce v. Lessard, [1954] B.R. 475, at p. 479.)
Moreover, the fact that actions have been dismissed for want of evidence
of bad faith and the importance attached to this factor in specific
cases do not necessarily mean that bad faith on the part of a
decision-maker can be found only where there is an intentional fault,
based on the decision-maker's subjective intent (see, for cases dealing
with intentional fault: Deniso Lebel Inc., supra; Directeur
de la protection de la Jeunesse v. Quenneville, [1998] R.J.Q. 44
(C.A.), leave to appeal refused [1998] 1 S.C.R. xiii).
40 An immunity
provision such as the one set out in s. 193 of the Professional
Code is intended to give professional orders the scope to act and
the latitude and discretion that they need in order to perform their
duties. In the case of duties relating to the management of disciplinary
cases, it would be contrary to the fundamental objective of protecting
the public set out in s. 23 of the Code if this immunity were
interpreted as requiring evidence of malice or intent to harm in order
to rebut the presumption of good faith. Gross or serious carelessness is
incompatible with good faith. It may therefore be concluded that, in the
case of the exercise of these case management powers, the requirement
that the performance or failure to perform an act have been committed in
bad faith is not a bar to an action in damages against a professional
order that is subject to the Professional Code. In accordance
with art. 1376 C.C.Q., the rules of civil liability that are
applicable to the actions of the Barreau are the general rules set out
in art. 1457 C.C.Q., with the changes that reflect the nature
of the faults that are required in order to establish liability that is
limited by the partial or qualified immunity granted by s. 193 of
the Professional Code. I would point out, however, that we need
not make a finding as to the legal principles that would apply to the
exercise of adjudicative functions by bodies such as the committees on
discipline and the Professions Tribunal. Accordingly, we must now apply
the rules that govern liability that were defined above and determine
whether the conduct of the Barreau was such as to justify the award made
against it by the Quebec Court of Appeal.
E. Application of the Rules of
Liability
41 First, the
problem of how the rules of civil liability defined above are to apply
does not raise a question of fact or of the assessment of evidence. On
this point, the appellant is wrong to suggest that the Court of Appeal
improperly revised the trial judge's findings of fact. Rather, we must
resolve a question of law, having regard to facts that have been clearly
established; the question is whether the conduct of the Barreau, when
considered in its entirety, constitutes a fault for which the Order
cannot claim the immunity set out in s. 193 of the Professional Code.
In any event, as the Court of Appeal pointed out, the Superior Court
made an obvious and serious error in assessing the facts. The trial
judge failed to have regard to events prior to 1993 in assessing the
conduct of the Barreau. Even though civil liability based on the events
that occurred before that time is precluded by prescription, those
events were still relevant in assessing the conduct of the Barreau after
fresh complaints were made by McCullock-Finney. They were also useful
for putting together a profile of Belhassen's professional career since
he was entered on the Roll of the Order and were needed in order to make
a better assessment of the duty of diligence that rested on the Barreau
after it received these complaints.
42 In the face of
all of these facts, the Court of Appeal passed harsh judgment on the
conduct of the Barreau, particularly in respect of its lack of diligence
and its slowness to act, not to say its lack of action, in its handling
of McCullock-Finney's complaints. In my view, that judgment was
justified. The attitude exhibited by the Barreau, in a clearly urgent
situation in which a practising lawyer represented a real danger to the
public, was one of such negligence and indifference that it cannot claim
the immunity conferred by s. 193. The very serious carelessness it
displayed amounts to bad faith, and it is liable for the results. This
is apparent on a quick review of all the facts.
43 At the point
when fresh complaints were made by the respondent, the Barreau had to
have been aware of Belhassen's problematic professional history. In the
language of criminal law, he had a record. He had committed disciplinary
offences and had been found guilty of them. Furthermore, the
Professional Inspection Committee had conducted a lengthy investigation
into his professional practices and competence, and had stated its
concerns in that respect in the clearest terms possible. In any event,
the Executive Committee had decided that it was necessary, at the very
least, to subject Belhassen to a supervision period, which was still in
effect when McCullock-Finney again went to the Barreau in early 1993.
The Barreau and its Syndic had to have been aware of this situation and
must have taken it into account in considering the complaint and making
a decision on it. In spite of the necessary administrative separation
between discipline and professional inspection, the Barreau had
knowledge of everything that Belhassen had done and of his record of
professional misconduct.
44 The Barreau must
exercise judgment and care in performing its disciplinary functions. The
Syndic must take care in conducting investigations, and must respect the
rights guaranteed to lawyers by the legislation governing the profession
and by the principles of procedural fairness. The Syndic may not disbar
lawyers of his or her own accord. A complex, binding procedure must be
followed, and it provides that provisional striking off is an
exceptional measure to be taken by decision of the Committee on
Discipline or the Professions Tribunal. Neither the need to adhere to
the statutory and procedural discipline framework and act with care and
caution nor the complexity inherent in any administrative process can
explain the slowness and lack of diligence seen in this case. The nature
of the complaints and the lawyer's professional record in fact made it
plain that this was an urgent case that had to be dealt with very
diligently to ensure that the Barreau carried out its mission of
protecting the public in general and a clearly identified victim in
particular.
45 Despite the
urgency of the situation the Barreau took over a year to request
provisional disbarment, which was in fact quickly granted by the
Committee on Discipline. In the interim, McCullock-Finney had repeated
her complaints. The Office had more than once asked the Barreau for an
explanation. Even the Superior Court had had to get involved in the
matter. Troubled by the rising tide of proceedings brought by Belhassen
in court cases involving McCullock-Finney, the Hon. Pierre A. Michaud,
Associate Chief Justice of the Superior Court, had summoned all the
parties to a special hearing to stem the procedural flood. The Superior
Court had informed the Syndic of the situation and notified him of the
hearing, which he in fact attended. Several days later, when Belhassen's
tutor was informed of the hearing that had been held, he terminated his
mandate. Thereafter, despite the nature of the acts of which Belhassen
had been accused, a syndic ad hoc was not appointed until the
fall of 1993. The complaints that were needed were not lodged until the
end of March 1994. The provisional striking off, which put an end to the
harassment of McCullock-Finney, was granted in May 1994.
Exceptional though the case may have been, the conduct of the Barreau in
this matter was not up to the standards imposed by its fundamental
mandate, which is to protect the public. The virtually complete absence
of the diligence called for in the situation amounted to a fault
consisting of gross carelessness and serious negligence. The Barreau is
liable, as held by the Court of Appeal.
46 One other
comment seems timely here, regarding an aspect of the arguments made by
the Barreau regarding the analysis of its civil liability. In the
appellant's submission, the common law principles that apply to public
bodies preclude liability in its case. As the respondent pointed out, in
common law, the Barreau would have been no less liable in the
circumstances of this case if the analysis adopted by this Court in Edwards
v. Law Society of Upper Canada, [2001] 3 S.C.R. 562, 2001
CSC 80, and Cooper v. Hobart, [2001] 3 S.C.R. 537,
2001 CSC 79, had been applied. The decisions made by the Barreau
were operational decisions and were made in a relationship of proximity
with a clearly identified complainant, where the harm was foreseeable.
The common law would have been no less exacting than Quebec law on this
point.
F. Damages and Causation
47 I now turn to
the issues of damages and causal connection. The Court of Appeal
concluded that the inaction on the part of the Barreau had allowed
Belhassen to pursue his campaign of harassment in the courts. That
conclusion is the necessary inference from the facts in the record. The
Court of Appeal did not err in this regard. It also recognized that
McCullock-Finney had suffered moral injury, which it assessed at
$25,000. Here again, no error has been shown with respect to the
existence of the injury. There was no demonstrable error in the
assessment of that injury. Although the award was probably generous, it
is not vitiated by any error in principle that would warrant
intervention by this Court to revise it. I would find the appeal to be
without merit in all respects.
G. Costs
48 Given the
circumstances of this case, I would award the respondent her costs in
this Court on a solicitor and client basis. Costs are awarded on this
basis only in exceptional cases, under s. 47 of the Supreme
Court Act, R.S.C. 1985, c. S-26 (see: Mackin v.
New Brunswick (Minister of Finance), [2002]1 S.C.R. 405,
2002 SCC 13, at paras. 86-87; Roberge v. Bolduc, [1991]
1 S.C.R. 74, at pp. 445-46.) In this case, the
respondent represented herself until the case came before this Court,
where a lawyer agreed to represent her. The appellant's appeal raised
issues of general importance concerning the application of the
legislation governing the professions in Quebec, the implications of
which go beyond her particular case. Given the situation, this Court is
justified in awarding the respondent costs on a solicitor and client
basis.
VI. Conclusion
49 For these
reasons, I would dismiss the appeal. I would award the respondent her
costs in this Court on a solicitor and client basis.
Appeal dismissed.
Solicitors for the appellant :
Lavery, de Billy, Montréal.
Solicitors for the respondent:
Borden Ladner Gervais, Ottawa.
Solicitor for the intervener the
Attorney General of Canada: Attorney General's Prosecutor,
Montréal.
Solicitors for the intervener the
Federation of Law Societies of Canada: McCarthy Tétrault, Montréal.
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