October 30, 2016

Discipline Committees that find misconduct outside of citations

Administrative Law
Professional Regulation

Discipline committees that decide a respondent has engaged in professional misconduct not listed in any formal allegations, e.g., in a citation, may fail to afford the respondent procedural fairness, which includes a right to know the case which he or she must meet. This is illustrated by the setting aside of a discipline decision of the Saskatchewan Institute of Agrologists (the “Institute”) in Meier v. Saskatchewan Institute of Agrologists, 2016 SKCA 116.

The Meier case involved two agrologists, a respondent who worked for a particular company (B Co.) that produced a particular kind of seed drill (i.e., one that placed fertilizer between seed rows), and a complainant who owned another company (S Co.) that produced a another kind of seed drill (i.e., one that engages in “side-row banding” which places fertilizer below and to the wide of each seed).

In 2008, a farm tested a drill of B Co. against a drill of S Co. by seeding two side-by-side fields, each using one of the drills. The field seeded by B Co.’s drill had better germination. [8] The evidence of a manager with B Co. was that the seeding depth in each field was the same. [8]The Respondent also determined that the seed depths in the two fields matched, [9] and went on to determine that S Co.’s drill had placed nitrogen too close to the seed. [9] However, when the complainant visited the fields, he concluded that the seeds had been planted too deeply by S Co.’s drill, as the seed had been inadvertently delivered through the fertilizer chutes. [10]

In 2009, the respondent was interviewed in a magazine article that featured photos of the two fields and the superior results attributed to B Co.’s drill. [12] The complainant called the magazine, which published a correction saying the photo was representative of the effects of seeding a crop too deeply, but nothing else. [13] The Respondent disagreed. [14]  In two agricultural conferences in 2009 and 2011, the Respondent presented on the results.

In 2011, the Complainant complained to the Institute of Agrologists that the Respondent was knowingly misrepresenting the differences in the two crops to the difference between how the drills deposited fertilizer, whereas the differences were the result of seeding depth only. The Institute proceeded to a hearing on that basis, under the The Agrologists Act, 1994, SS 1994, c. A-16.1. [18-19] The respondent defended himself by pursuing two themes: first, no difference in seeding depth, and second, the evidence did not establish that the seeding depth problems had occurred at the field in the photographs as opposed to other pieces of land owned by the same owner. After a hearing, the Disciplinary Committee found the appellant guilty of professional misconduct, but based on the appellant failing to employ proper scientific principles and practices in his work relating to the field. [20-21]

The Court of Queen’s Bench was satisfied that the decision of the Committee was reasonable (at para. 24). On appeal, however, the appellant raised a new line of argument: that the conviction was based on a ground different than what is set out in the Formal Complaint. The Court of Appeal concluded that it could deal with the new argument raised on appeal (at para. 35).

The court found first that counsel at the Discipline Hearing was focused on the Formal Complaint as it was worded and was not trying to defend the appellant against allegations of failing to follow the scientific method (at para. 48). Second, it found that the Discipline Committee based its finding of professional misconduct “on something substantially broader than the notion that [the appellant] published photographs and text about the differentials… being due to fertilizer placement when he had knowledge that the differentials had been caused by the depth of seed placement” (at para. 49). In light of the different basis for its finding, the appellant “was convicted of unprofessional conduct on a broader and different basis than what was alleged in the Formal Complaint and in relation to which he had mounted his defence” (at para. 52).

The Court decided that “[i]n convicting [the appellant] of unprofessional conduct… the Discipline Committee ran afoul s. 26(10) of the Act”, which requires the Committee to notify a person if the evidence shows that the person may be guilty of a charge other than that specified in the Formal Complaint (at para. 53). Most pertinent to other regulatory bodies, the Court of Appeal also held the Discipline Committee ran afoul of the principle of audi alteram partem, which requires a party in a hearing to be given adequate notice of the case to be met (at para. 55). The Discipline Committee found professional misconduct on a basis that did not conform to the allegations of misconduct as particularized in the Formal Complaint, such that it “acted contrary to s.26(10) of the Act and breached a fundamental principle of procedural fairness” (at para. 58). The court quashed the Committee’s decision.

Meier v. Saskatchewan Institute of Agrologists, 2016 SKCA 116

Lisa C. Fong and Michael Ng