The Salway Saga: Alternate resolution processes, and standards of review, in Salway v. APEGBC

The year 2002 marked the beginning of a lengthy legal battle began Mr. Salway, a Member, and the Association of Professional Engineers and Geoscientists of British Columbia (APEG) which has, at different stages, revealed significant lessons for regulators about administrative law principles.

In response to a complaint about Mr. Salway, APEG entered into a Stipulated Order with Mr. Salway in November 2005, which was followed by a Supplemental Determination in October 2006. Shortly afterwards, Mr. Salway challenged APEG’s jurisdiction to use Stipulated Orders in lieu of a disciplinary hearing. In August 2009, reversing the BC Supreme Court’s ruling on the matter, the Court of Appeal found that APEG had acted outside its jurisdiction in adopting the Stipulated Order procedure, since its governing legislation did not authorize it. As such, the Stipulated Order was declared void.

Following the Stipulated Order being struck, the legal conflict between the two parties continued. Following a complaint about Mr. Salway in September 2006, Mr. Salway was found guilty of unprofessional conduct in March 2008, and Mr. Salway appealed. The finding was initially set aside, but in February 2010, the Court of Appeal reversed the ruling by the BC Supreme Court, and upheld APEG’s finding; the lower court had failed to accord appropriate deference to the Association. Mr. Salway’s application for leave to appeal to the Supreme Court of Canada was dismissed in July 2010.

To Take Away:

Informal or alternate resolutions are key processes for professional regulators to have in order to resolve disciplinary matters without having to proceed to a hearing. The majority of disciplinary matters are resolved through informal or alternate resolution mechanisms.  These mechanisms generally have the advantage of allowing flexible solutions, are expeditious, and much more cost efficient than a disciplinary hearing.  Regulators must, however ensure that informal or alternate resolutions utilized fall are squarely within the professional body’s governing legislation.

A summary of the Salway cases follow. For any regulator or lawyer practising in this area, these cases are well worth reading as they cover a wide range of key concepts in the law of regulating professionals.

Decision Summaries:

Stipulated Order – November 2005: In 2002, APEG received two complaints about reports prepared by Salway. Following an investigation, the Investigation Committee recommended a disciplinary inquiry. The Discipline Committee offered Salway a Stipulated Order in lieu of proceeding with an inquiry. Salway accepted the offer and admitted to unprofessional conduct on November 14, 2005. The conditions under the order included a reprimand, a general and technical practice review, peer review of all work and reports for a 12-month period, and costs of $40,485.89.

Supplemental Determination – October 20, 2006: Pursuant to the Stipulated Order of November 2005, Salway obtained a peer reviewer acceptable to the Registrar, but after a few months, the peer reviewer informed Salway and APEG he could not continue. Salway was unable to provide the name of a suitable peer reviewer after this time, and he failed to attend a scheduled practice review. Approximately a week after APEG suspended Salway’s membership, Salway provided supporting documentation and the peer reviewers suggested by Salway were approved on September 8 and 14, 2006. On October 20, 2006, APEG issued a Supplemental Determination reinstating Salway’s membership, subject to several conditions, including stipulations that Salway have all his work peer reviewed for a 12-month period beginning November 1, 2006, he undergo practice reviews, and he pay costs amounting to roughly $1,800.

Discipline Committee Panel – January 31, 2008: Salway was under an order from the Association’s Discipline Committee Panel requiring him to have his work peer reviewed by another geoscientist. He, however, provided a report for his clients regarding subdivision approval without having it peer reviewed in February 2006. In the following months, the clients sent 2 e-mails and a letter to Salway regarding the need for a peer review of his report. After receiving the first e-mail in this series of correspondence, Salway telephoned his clients and advised them he would consult a colleague. Salway failed to follow-up after this first and only phone call. After the clients filed a complaint with the Association around September 2006, Salway was issued a Notice of Inquiry, dated July 18, 2007. The Notice alleged Salway had engaged in unprofessional conduct by neglecting or refusing to provide a timely response to his clients’ communications within a reasonable time. The Panel noted in para. 23 that “[w]hile in many cases a failure to provide timely communication may not constitute unprofessional conduct, in this case the finding of liability turn[ed] on the gravity, consequences and importance to Dr. Salway’s clients of the failure to respond” as the report was virtually useless to the clients without a peer review. As such, on March 18, 2008, the Panel reprimanded Salway and $16,373 in costs was awarded against him.

BC Supreme Court – June 20, 2008 (2008 BCSC 803): re Stipulated Order: In November 2006, after receiving the Supplemental Determination to his Stipulated Order of November 2005, Salway commenced an action challenging the Association’s jurisdiction to utilize Stipulated Orders, impose additional conditions via Supplemental Determinations, and the provision regarding costs in his Stipulated Order was unenforceable. The Supreme Court dismissed Salway’s action, both in terms of an appeal, and a judicial review.

The appeal was not brought properly under s. 39 of the Engineers and Geoscientists Act, as only persons aggrieved by an order of the Discipline Committee had a right to appeal, and neither the Stipulated Order nor the Supplemental Determination was such an order.

With respect to the application for judicial review, first, the Supreme Court found that APEG had jurisdiction to utilize Stipulated Orders in lieu of an inquiry. Though lacking statutory jurisdiction, APEG had jurisdiction to enter into contracts. Moreover, the use of Stipulated Orders was not a delegation of the Discipline Committee’s functions to a Reviewing Member, as it was an alternative to the disciplinary process rather than process of the Discipline Committee itself. According to the Council-approved Stipulated Order procedures, the Reviewing Member had the authority to sign the Stipulated Order on behalf of APEG, which constituted a valid, binding contract between Salway and APEG. Secondly, the Reviewing Member had authority to issue a Supplemental Determination, the jurisdiction for which was found in the Stipulated Order which stated any breaches of conditions by Salway would be addressed by the Reviewing Member. Lastly, the provision regarding costs, which left the time of payment to be decided by Salway and APEG, was enforceable, as the reference to a later agreement specifying the time of payment was not fatal to the provision to pay costs.

BC Court of Appeal – August 6, 2009 (2009 BCCA 350): re Stipulated Order: The Court of Appeal allowed Salway’s appeal. APEG acted outside its jurisdiction in adopting the Stipulated Order procedure. Since no provision in the Engineers and Geoscientists Act authorized the procedure, APEG contravened the Act and it was also improperly delegating the Discipline Committee’s functions to a Reviewing Member. The governing statute required the Discipline Committee to conduct an inquiry once recommended by the Investigation Committee. “The complaint, at [this] stage, [was] within the exclusive jurisdiction of [the Discipline] [C]ommittee, and the Association [had] no authority to compromise it, or to shunt it off to some other forum.” (para. 22) Essentially, APEG derived its disciplinary powers from its governing statute, not from a contractual relationship with members. As such, it did not have the jurisdiction or authority, by entering into a contract with Salway, to create an alternative, non-statutory disciplinary regime that was binding. “A person does not, by virtue of becoming a member of a self-governing profession, grant that profession’s governing body contractual rights to impose disciplinary sanctions.” (para. 28) Therefore, the Stipulated Order was void and APEG was ordered to repay costs to Salway which were paid pursuant to the Supplementary Determination.

[It should be noted that in 2007, the Engineers and Geoscientists Act was amended to allow Members subject to disciplinary inquiries to enter consent orders or opt for an alternative resolution. Since the events giving rise to Salway’s action occurred in 2005, however, the amendments were inconsequential.]

BC Supreme Court – March 2, 2009 (2009 BCSC 262): re finding of unprofessional conduct: The Supreme Court allowed Salway’s appeal from the Discipline Committee Panel decision of January 31, 2008, and set aside the decision and penalty, finding that the Panel erred in law, as the authorities required omissions to go beyond mere negligence in order to amount to unprofessional conduct. “[F]or conduct to be characterized as unprofessional it must be flagrant and not merely ‘a failure to respond as the Panel would expect of a fellow [M]ember in the circumstances.’” (at paragraph 33) Here, Salway was negligent or deficient in failing to respond to his clients in relation to a matter of significant importance that was time-sensitive. His conduct, based on evidence, however, did not go beyond mere negligence.

BC Court of Appeal – February 24, 2010 (2010 BCCA 94) re finding of unprofessional conduct: The court allowed APEG’s appeal from Supreme Court decision of March 2, 2009, and reinstated the finding of the Discipline Committee Panel. The Supreme Court erred in law by failing to employ the two-step standard of review analysis enumerated in Dunsmuir and accord appropriate deference to the Panel’s finding of unprofessional conduct. In addressing the appropriate standard of review, the court noted the Administrative Tribunals Act, S.B.C. 2004, c. 45 did not apply, as APEG’s governing statute did not refer to it. Additionally, the matter involved “a highly fact-drive inquiry.” (paragraph 31) Accordingly, the reasonableness standard of review applied, which “requires courts to give deference to a professional body’s interpretation of its own professional standards” (paragraph 32) whether written or unwritten, so long as it is justified, transparent and intelligible, within the range of reasonable outcomes, and defensible in respect of the facts and law. It is not necessary for conduct to be “dishonourable, disgraceful, blatant or cavalier” (paragraph 32) in order to make a finding of professional misconduct or unprofessional conduct.

Supreme Court of Canada – July 15, 2010 ([2010] S.C.C.A. No. 122): re finding of unprofessional conduct: Application by Salway for leave to appeal the BC Court of Appeal decision, dated February 24, 2010 (2010 BCCA 94) was dismissed with costs and without reasons.