In the recent case of Leduc v. Ordre des chiropraticiens du Québec 2022 QCCS (Leduc), the Superior Court of Québec considered an application for judicial review challenging decisions by the professional inspection committee of the order of chiropractors of Québec and by the board of directors of the order of chiropractors of Québec (the Defendants). This case reiterates the criteria examined by courts for issuing a stay of execution of a decision.
In Leduc, a chiropractor (the Applicant) requests a stay of execution of the Defendants’ decisions that have the effect of suspending his right to practice until he successfully completes two training periods and a clinical proficiency examination with a minimum passing grade of 70%. While the Applicant does not contest the professional order’s right to impose training periods on its members, which is provided for in the Professional Code, CQLR c C-26 (the Code), and in the Regulation respecting refresher training periods for chiropractors C-16, r. 13 (the Regulation), the Applicant claims that the Defendants did not have the authority to require the clinical proficiency examination, and therefore, to suspend the Applicant prior to the successful completion of the examination. Further, the Applicant argues that the Defendants did not have the authority to require payment in advance of the full cost of the training and of the examination. Finally, the Applicant submits that the Defendants’ decisions do not comply with procedural fairness.
Court’s stay of execution issuance test
The Court’s criteria for issuing a stay of execution are similar to those applicable to interlocutory injunctions. The Applicant must show that there is a serious issue to be decided, that he will be seriously prejudiced if the stay is denied, and that the balance of inconvenience tips in his favour. These criteria are cumulative and must be considered in relation to each other.
- The “serious issue to be decided” criterion is not very demanding at the stay stage. It is sufficient that the application is not frivolous or vexatious. The Applicant only needs to show that he has a reasonable chance of having the decision overturned. The Court is of the opinion that the request for a stay of execution with respect to the authority to impose the clinical proficiency examination and with respect to the authority to impose training fees is neither frivolous nor vexatious because there is nothing in theCode,nor in theRegulation, that gives the Defendants such authority. However, the Court concluded that the Applicant’s allegation of a breach of procedural fairness is not a serious argument.
- The Court found that the “serious prejudice” criterion is met since the Applicant’s reputation will undoubtedly be compromised if he has to advise his clients that his right to practice has been suspended by his professional order.
- The balance of inconvenience test requires balancing the disadvantages that the Applicant may suffer if a stay is not granted versus the need to protect the public. The Court grants the Applicant a stay of execution with respect to the suspension of his right to practice until the successful completion of the clinical proficiency examination because neither the Code nor the Regulation provide for such a sanction. However, the Court indicates that the Defendants have the right to require the Applicant to undergo a training and to suspend his right to practice until the training is completed because this is provided for in the Code and in the Regulation, and because the training is directly related to the protection of the public. With respect to the imposition of fees, the Court grants the Applicant a stay of execution because it is of the view that the protection of the public will not be harmed if this condition is lifted. Finally, with respect to the breaches of procedural fairness alleged by the Applicant, the Court is of the opinion that the balance of inconvenience clearly favours the interest and protection of the public because the Applicant’s diagnostic methods are insufficient and do not allow for appropriate conclusions concerning patients’ state of health. For this reason, the Court grants a stay of execution only for the suspension of the Applicant’s right to practice conditional upon the successful completion of the clinical proficiency examination and for payment of the training.
As previously mentioned, this case reiterates the criteria examined by courts for issuing a stay of execution of a decision. The decision emphasizes at the interlocutory stage that professional orders must ensure that they act within the scope of their competence when imposing sanctions on professionals. While it is clear from the law that a professional order can impose training periods on its members, according to the judge in this case, it is not clear whether the order can impose the successful completion of an examination. The Court’s decision on the merits will be very interesting to see the extent of the power of professional orders in Québec in carrying out their mission to protect the public.
For more information on this topic, please reach out to the author Alexandre Boileau.