In the recent decision of Truman v Association of Professional Engineers of Ontario, 2016 ONSC 472, the Divisional Court reversed a decision of the Discipline Committee of the Association of Professional Engineers of Ontario, which had refused to award a member costs of a stayed discipline proceeding. In so doing, the Court also confirmed that it has the jurisdiction to award costs to a member for an unwarranted Discipline Committee hearing.
Pursuant to the Professional Engineers Act (the “Act”), complaints against professional engineers are investigated by a Complaints Committee which then decides whether to refer the matter to the Discipline Committee.
In Truman, the Complaints Committee referred a matter to the Discipline Committee which then proceeded to stay the disciplinary hearing, finding that the Complaints Committee's referral lacked the necessary requirements to enable a disciplinary hearing to take place. In so doing, the Discipline Committee stated that the referral by the Complaints Committee was so deficient that there were no clearly defined allegations of actions, or lack of actions, in the Statement of Allegations to which an individual could respond or mount a proper defence. The Discipline Committee when on to state that the discipline proceeding was unwarranted as it could not succeed.
Section 28(7) of the Act permits the Discipline Committee to order costs payable to the member where it, "is of the opinion that the commencement of the proceedings was unwarranted." However, the Discipline Committee then refused to award the member costs of the proceeding.
The member appealed, arguing that the Discipline Committee’s decision to refuse costs was unreasonable, especially when taking into account that the initial complaint lacked sufficient detail.
The parties agreed that the standard of review to be applied on the appeal was reasonableness, however, the Divisional Court found the Discipline Committee’s costs decision to be unreasonable.
The Complaints Committee had sent a Statement of Allegations to the Discipline Committee, which asserted that the appellants were guilty of professional misconduct. However, the complaint failed to set out any specific act of misconduct within the meaning of section 72 of Regulation 941 made under the Act, which defines professional misconduct. The Discipline Committee in staying the proceedings had found that they were unwarranted.
However, in its costs decision, the Discipline Committee held that there was evidence before the Complainants Committee, which if proved, would have allowed a finding of professional misconduct. Essentially, the Discipline Committee came to the opposite conclusion than it had on the stay application.
The Divisional Court held that given that the Discipline Committee had stated that a finding of professional misconduct could not succeed based on the allegations made against the appellants, the decision to deny costs was unreasonable. In effect, the Divisional Court found that the Discipline Committee "sucked" in deciding to stay the proceedings as being unwarranted and could not turn around in its costs decision and "blow" by denying the member his costs of the unwarranted proceedings.
As a result, the Divisional Court went on to award the member costs of the discipline proceedings, in accordance with section 31(3) of the Act, which gives an appellant court jurisdiction to “exercise all powers of the committee.”
About the Author
Christopher Wirth is a Partner and Renata Antoniuk is a student-at-law at Keel Cottrelle LLP.