When the issuance of a citation is unwarranted, justifying costs to a member

When a member proves himself “innocent” of unprofessional conduct at a discipline hearing, whether the panel can or should award costs to the member will depend on the regime. For example, a statute may provide for costs where the commencement of the proceedings was unwarranted.* An Ontario court recently looked at whether a hearing was warranted where a member elected to the regulator’s council used election materials that the Complaints Committee thought the profession might find disgraceful, dishonourable or unprofessional conduct in Carlos v. Association of Professional Engineers of Ontario, 2012 ONSC 2385.

In that case, a member conducted a successful election campaign in part by posting material on his website which the Complaints Committee found might be reasonably regarded by the engineering profession as disgraceful, dishonourable or unprofessional. A panel of the Discipline Committee dismissed the complaint, however, and the member then sought costs. Under s.28(7) of the Professional Engineers Act, R.S.O. 1990, c. P-28, the Discipline Committee could award costs if it was of the opinion that the commencement of the proceedings was unwarranted.

The member submitted it must have been clear to the Complaints Committee that the profession did not regard anything in his election material as disgraceful, dishonourable or unprofessional, as he was elected by the profession, and the profession would not have elected someone they regarded as having engaged in disgraceful, dishonourable or unprofessional conduct.

The Discipline Committee panel declined to award costs to the member, but made this decision on the basis it had no evidence before it that the Complaints Committee was presented with or knew the results of the Council election. The member submitted that this costs decision was unreasonable, due to a palpable and overriding error.

The court agreed that the Discipline Committee erred, since the Complaints Committee would have known the member had been elected to Council. This error did not, however, render the decision unreasonable, as the error did not mean that the prosecution was unwarranted. [8]

The court reasoned that members of a profession can elect someone in spite of their election material, and this would not preclude a prosecution if the material could reasonably be viewed as constituting unprofessional conduct. [9] It noted that “…even members who are elected are not immune from prosecution if, in order to get elected, they published election material that was racist, homophobic, sexist or defamatory.” [9] In this case, the Discipline Committee struggled with portions of the member’s election material, which was “close to the line” of being “false, offensive, and/or vexatious.” [10] Accordingly, the Discipline Committee had found reasonably that Complaints Committee had been warranted in commencing the proceeding. [10]

Carlos v. Association of Professional Engineers of Ontario, 2012 ONSC 2385.

* An example of a similar costs provision is s.39(4) of the BC Health Professions Act. If a discipline committee dismisses a matter “on the basis that the matter was without merit, it may award costs to the respondent against the college, based on the tariff of costs established under section 19(1)(w.1).”