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MORE PROOF ABOUT ADESSKY'S ACQUITTAL FROM A LAW JOURNAL:

Adessky case (Lawyers): The limits of the powers of the ad hoc syndic
UNCATEGORIZED By Anthony Battah /May 23, 2017 f

In Adessky [1] , the Professions Tribunal (hereinafter "the Tribunal") had before it the appeal of an interlocutory decision of the Disciplinary Council of the Barreau du Québec (hereinafter the "Conseil") dismissing the appellant's preliminary application, Kenneth Adessky, for a stay of proceedings on the ground that the complaint against him was invalid.

The facts of this case are summarized as follows. On November 17, 2008, a first inquiry was filed against the appellant. The file was then taken care of by Mr. Montbriand, assistant syndic, who decided not to file a complaint before the Council. Making this decision before the Quebec Bar Review Committee (hereinafter referred to as the "Bar"), the inquiry applicant obtains a decision requiring the trustee to reconsider his decision not to file a disciplinary complaint. In August 2009, Mr. Leduc was appointed ad hoc trusteeby the Law Society Executive Committee. This appointment was a direct result of a request to this effect made by the Law Society Syndic, who alleged a surplus of work at his offices. After receiving the appellant's file, Mr. Leduc filed a complaint against him on September 28, 2010.

The appellant was convicted of three (3) of the seven (7) counts of the complaint against him at trial, appealing the guilty and sentencing decisions of August 6, 2014. March 21, 2016 the parties agreed that the appeal file should be supplemented by the production by each of them of new evidence. In argumentation, the appellant repeated arguments already pleaded and rejected at first instance to the effect that the appointment of Mr. Leduc as an ad hoc trusteewas illegal. However, this time he supported his case with evidence recently filed before the Tribunal, which found that Mr. Leduc had indeed been appointed to deal with certain predetermined cases, among which his was not included.

Accepting the Appellant's arguments, the Tribunal found that the intention of the Law Society and the Executive Committee of the same Professional Order was that Mr. Leduc be appointed ad hoc trustee for a list of cases in particular. Consequently, since Mr. Leduc had not been appointed to deal with the appellant's file, he could not legally initiate an investigation or file a disciplinary complaint. The Disciplinary Board was therefore not seized of a complaint within the meaning of section 116 of the Professional Code and had no jurisdiction to judge it.

In closing, the Tribunal also stated that, given the circumstances, it was not appropriate to ask whether the evidence gathered could still be admissible. In fact, in discerning the facts of the present case from those in Sylvestre [2] , the Tribunal distinguishes the situation where a trustee is the subject of a valid appointment, but subsequently becomes disqualified, from that in which the trustee is absent. , basically, the status necessary to file a disciplinary complaint. In this case, the ad hoc syndicsimply did not have the jurisdiction to file a complaint against the appellant. According to the Tribunal, this form of illegal appointment can not be ratified by a subsequent resolution. Indeed, it is a matter of public policy that no one can ratify illegal acts, especially since nothing in the Professional Code or the Law on the Bar [3] provides for this.

In conclusion, we take from this case a reminder of the rigidity of the principle that ad hoc trustees can only deal with cases for which they have been appointed by the Board of Directors of their professional order. In fact, a flaw with this principle leads directly to the invalidity of any complaint lodged by them in the context of cases for which they have not been appointed, as well as the Council's inability to hear these complaints.

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