Inquiry: The potential for professional staff to bias inquiry or investigation committees

The question of whether a decision of an inquiry committee to refer a matter to a discipline hearing was tainted by bias was the subject of judicial review in MK Engineering Inc. v. Association of Professional Engineers and Geoscientists of Alberta, 2017 ABCA 17.

In that case, a sub-committee of an Investigative Committee recommended that an engineering company be allowed to admit to unprofessional conduct and accept modest sanctions. During a debate by the Investigative Committee, the director of corporate affairs and investigations made remarks that caused the committee to reject the subcommittee’s recommendation, and to refer the matter to a hearing. The Discipline Committee decided that the Investigative Committee’s decision was void because the Investigative Committee had been tainted by a reasonable apprehension of bias. An Appeal Board quashed that decision, however, and a different Discipline Committee sanctioned the company for unprofessional conduct, and ordered over $93,000 in costs.

The member asserted to the court that the director had made inflammatory and inaccurate statements to the Inquiry Committee that tainted the referral. The Alberta Court of Appeal rejected this assertion, as all that was required at the investigative stage was that the members of the committee have an open mind. The transcript of the Investigative Committee’s deliberations demonstrated a healthy debate, and that the members of the committee had not closed their minds during the deliberation. [8] Given that five of the fifteen members voted against referral, the court could not say that the director’s comments tainted the referral on grounds of bias. [8] The court declined, however, to approve of the director’s conduct, noting that persons occupying such a position be mindful that any comments should be fair and based on reliable information, and that the position gives a director “the potential to unduly influence the conduct of Investigative Committee members who look to the director for guidance.” [10]

MK Engineering Inc. v. Association of Professional Engineers and Geoscientists of Alberta, 2017 ABCA 17

Lisa C. Fong and Michael Ng