February 14, 2011

Adequacy of discipline reasons

Administrative Law
Professional Regulation

A discipline committee which finds professional misconduct must, in its reasons, “make clear the analysis and the findings that underpin its conclusion that the member has committed professional misconduct.”  Accordingly, a discipline committee finding misconduct for a “lack of clarity” or a “failure to state limitations and alternatives” in a professional report must explain, in its reasons, why a registrant’s conduct would reasonably be regarded by the profession as coming within the meaning of “unprofessional conduct.” It must point out “the precise failings” in the registrant’s conduct. A failure to make express findings about “the nature of the misconduct” may result in the decision being found unreasonable, putting it outside the range of reasonable outcomes.

The legal requirement for justifiable, transparent and intelligible decision-making is illustrated in Association of Professional Engineers of Ontario v. Caskanette, [2009] O.J. No. 3591 (Ont.Sup.Ct., Div. Ct.) (August 28, 2009), where an Ontario engineer authorized an  accident reconstruction report for a civil lawsuit. The dispute involved a motor vehicle accident occurring under snowy conditions, and the speed of one of the vehicles being no less than 90 kilometres per hour.

The Discipline Committee found against professional negligence [10], and also found that no evidence showed that the “shortcomings” of the report affected the quantum of damages in the litigation [11], but it reprimanded the member on the basis of shortcomings amounting to “unprofessional conduct,” on the basis that the findings were “not stated with sufficient clarity to avoid confusion,” and “did not address alternatives or limitations,” such that lack of clarity could “contribute to confusion and misinterpretation.”[13]

Although the court had to give deference to the Discipline Committee on what constitutes unprofessional conduct [33], the committee had to make clear its analysis and findings underlying its conclusion of professional misconduct. [35] The Discipline Committee did not discuss the regulations being applied, or explain why lack of clarity and failure to state limitations and alternatives would reasonably be regarded by the profession as unprofessional conduct [37]; it did not identify particular deficiencies [38]; it failed to discuss the meaning of “unprofessional conduct” [39]; no evidence showed that anyone at the trial was actually confused by the report; [48] and no evidence proved standards of the profession that required an accident reconstruction report include alternatives and limitations. [57] The court found it “difficult to understand” why shortcomings in the report constituted unprofessional misconduct. [46] Accordingly, the decision was unreasonable, failing to articulate the deficiencies of the registrant’s conduct. [58]

This decision illustrates that even a finding that amounts to “slapping the hand” of a registrant where primary and far more serious allegations of misconduct have not been made out – like the reprimand in this case – must still meet a standard of justifiable, transparent and intelligible decision-making, based on sufficient evidence of applicable standards, and specific findings of misconduct.

Assn. of Professional Engineers of Ontario v. Caskanette, [2009] O.J. No. 3591 (Ont.Sup.Ct., Div. Ct.) (August 28, 2009)