The practice of 366 000 professionals in Québec is controlled by many laws and regulations, some specific to the field, others of general application. This structure prescribes obligations for the professional and the recourse available to the client.
The control measures contained in professional legislation and regulations are designed to reduce the risk of harm associated with the practice of particular professional activities. Harm can take the form of the infringement of an individual's physical or psychological integrity, property, or a violation of confidentiality or privacy. Infringement may be direct or indirect in nature.
Professional legislation and regulations impose various obligations on the professional. They are related to both the context and content of professional practice. Some obligations are expressed as prescriptions or prohibitions. Others are expressed as the ethical principles that should govern the professional's activity. Obligations may relate to the client, the public, the profession or other members of the order.
Non-compliance with professional obligations, in the form of negligence, misconduct or breach, could, for example, result in a complaint being lodged with the order's disciplinary council. The professional could then receive various types of sanction.
Professionals, like all other citizens, are also subject to laws of general application. For example, under the Civil Code of Québec, they may be found responsible by a civil court for damages caused to a client for which they are at fault. In such cases, professionals may be ordered to compensate the client. Similarly, professionals are subject to penal and criminal legislation. If they defraud a client, for example, they may be charged and convicted of a crime. A sentence may then be pronounced against them.
Important decisions are made every day in Québec based on the analysis, advice and activities of professionals. Every year thousands of professional services contribute to our quality of life and personal and economic development.
Despite the competency verification and monitoring activities of the order, a client may be injured while receiving a professional service. Given the variety of structures governing professional practice one problematic situation may be viewed from a number of perspectives and be the object of several forms of recourse on the part of an injured client.
For instance, professional misconduct could be considered simultaneously from the angles of professional discipline, public liability and criminal law. This would be the case, for example, of sexual misconduct.
The injured client must clearly define the complaint against the professional and decide on the form of recourse according to the objectives being sought. The following headings provide an overview.
A client who does not understand or contests the account presented by a professional may require explanations. Despite this explanation, the client may want the account to be changed.
In a dispute with the professional, the client may request a conciliation proceeding. A conciliation proceeding is usually conducted by the syndic, who, within a prescribed time period, tries to bring the parties to an agreement on the account.
A client who disagrees with the dispute conciliation report may make a request for arbitration. An arbitration council whose members are appointed by the order's board of directors hears the request.
The arbitration council must render a decision within a prescribed period. It may maintain or reduce the disputed account, determine the amount of the refund or payment to which a party is entitled, or pronounce on the amount the client acknowledges owing.
Both the conciliation and arbitration are based on the complexity of the required services, the nature of the issues at stake and the experience of the professional.
The client addresses the order in question to exercise her/his right to recourse; the process is free of charge to the client. However, when a client loses before the arbitration council, he/she may be obliged to pay a percentage of the amount under dispute.
When clients observe that a professional is not fulfilling his or her obligations, has behaved inappropriately or demonstrated a lack of competence, they may communicate with the syndic of the order to which the professional belongs.
The inquiry is conducted by the order's syndic, who has 90 days in which to complete the inquiry and render a decision on the action to be taken. If the syndic is unable to meet this deadline, she or he must furnish progress reports on the inquiry every 60 days to the person who made the request. At the conclusion of an inquiry the syndic will make one of the following decisions:
In addition to the syndic, the client may lodge a complaint directly with the disciplinary council. This is generally known as a « private complaint ».
When, after being seized of the request to hold an inquiry on a member, a syndic decides not to lodge a complaint with the disciplinary council, the person who requested the inquiry may ask for an opinion from the review committee. The committee may give one of the following opinions:
When it is seized with a complaint and after the hearing, if the member is found guilty, the disciplinary council makes one or more of the following decisions:
Decisions of the disciplinary council may be appealed to the Professions Tribunal.
The objective of the syndic's inquiry and disciplinary mechanisms is to punish violations of the Professional Code and professional regulations and prevent their recurrence.
It is important to know that the purpose of this recourse is not designed to compensate an injured client. Note, however, that in cases of sexual misconduct on the part of the professional, the imposed fine may be remitted by the order to the victim to cover the cost of therapy in connection with the misconduct.
To exercise her/his recourse, the client must contact the syndic of the order in question. This recourse is exercised without charge to the injured client, except in cases where the client lodges a "private complaint." In such cases, the client must assume the cost of preparing and presenting her or his complaint. In addition, if the professional is acquitted or the complaint is manifestly unfounded, the client may be ordered to pay costs related to the handling of the complaint (procedural fees, stenographic recording, expertise, compensation paid to witnesses, etc.).
When professionals appropriate sums entrusted to them by a client for their own use, the client may contact the order concerned to recover said funds. The client may decide to report the incident to the syndic. If the order has created a compensation fund, the client may also submit a compensation request to this body.
Professional orders whose members may hold sums of money for the account of their clients (chartered administrators, lawyers, chartered professional accountants, bailiffs and notaries) determine by regulation the terms of receipt, custody and disposition of these sums of money.
Such professional orders also establish a fund to be used to refund clients, under certain conditions, for sums of money or other securities misappropriated by a professional. The maximum amount the fund may reimburse to a claimant with respect to a particular professional and the maximum amount the fund may reimburse to all claimants with respect to a particular professional is set by regulation.
The objective of this recourse is to reimburse the injured client, according to parameters set by regulation.
To exercise her or his recourse, the client must contact the order in question(Sites of the professional orders). It is available free of charge to the injured client.
When a professional commits a fault, error or act of negligence in the course of her or his practice, causing damages to a client, the client may address a civil court to establish the professional's liability and obtain compensation.
This recourse is not specific to the professional system; rather, it falls under the general system of the Civil Code of Québec. It may be used simultaneously with the recourse available under the professional system. For example, in a case of a professional's non-compliance with the rules of his or her profession, the client may request an inquiry by the syndic.
To ensure the effectiveness of civil recourse, the Professional Code obliges professionals to furnish a security for their liability in case of errors or negligence committed in the practise of their profession. To this end, a regulation of the order provides the terms and levels of coverage for professional liability insurance.
The objective of this recourse is to compensate the injured client.
To exercise this recourse, the client must address the competent civil court (Small Claims Court, Court of Québec, or Superior Court, depending on the amount being claimed). It is preferable to obtain the advice of lawyer before undertaking this procedure. The client pays the fees (lawyer, procedural fees, judicial fees, expertise, witness, etc.).
When clients observe a professional commit a criminal or indictable offence in the course of performing his or her professional activities, they can report the incident to the police. The professional may then become the object of a policy inquiry, and subsequently be charged and convicted. A sentence may then be pronounced against him/her.
Note that this form of recourse is not specific to the professional system, but rather comes under the general criminal and penal system. It may be undertaken at the same time as the recourse available under the professional system (for example, in cases involving fraud or assault).
The objective of this remedy is to punish violations of penal and criminal laws and prevent recidivism.
To exercise this form of recourse, the client must contact the police force having jurisdiction over the territory in question. It is available free of charge to the injured client.