Inquiry or investigation committees of self-regulating professions may wish to assess the extent they provide robust reasons when dismissing public complaints against registrants. Such an awareness should not be isolated to regulators whose complainants have a statutory right to reviews of complaint dismissals. Such was the advice of an Ontario court to a committee of a regulator in Harrison v. Association of Professional Engineers of Ontario, 2017 ONSC 2569.
In that case, a professional engineer, Downey (the “Respondent”), acting through a professional corporation, oversaw a high school renovation project. The complainant, Him Harrison (the “Applicant”), supplied heating, ventilation and air-conditioning units for the project, but the Respondent twice rejected the Applicant’s shop drawings. The Respondent initially rejected the Applicant’s drawings because the proposal lacked vital information regarding the refrigerant systems. [4] Months later, when the Applicant re-submitted drawings, the Respondent rejected them again, with little to no explanation. The subcontractor for the project then cancelled the Applicant’s supply contract, which was issued to a competitor. [4-6] The Applicant complained to the complaints screening committee, alleging
- the Respondent had sent the Applicant’s confidential shop drawings to the competitor for review and comments;
- the Respondent and the competitor had “mutually benefitted from informal and inappropriate specification changes” in their subsequent supply contract, and
- the Respondent and a sales representative from the competitor had taken a vacation together with their respective wives. [6]
The Respondent provided a detailed response to each allegation. [8] Under s. 24(1) of the Professional Engineers Act, R.S.O. 1990, c. P.28, the complaints committee had to consider and investigate the applicant’s complaint, and under sections 24(3) and (4), had to provide its decision in writing to the Registrar, who would then provide a copy of the decision to the applicant. The complaints committee “clearly did” these actions. [12] It sent the Respondent a letter of advice and had “indicated that the timing and circumstances of Downey’s vacation to Ireland could appear unusual and that Downey should maintain an arm’s length relationship with equipment suppliers when working on public projects”. [12]
On judicial review, the court reviewing the decision decided that the committee’s reasons were too terse to be sufficient. The reasons were defective because “they [stated] the central conclusion, namely that ‘there was no evidence of professional misconduct of a significant nature on the part of Downey…’ without explaining why the committee thought so”. [16] To be sufficient, the reasons of the complaints committee “should have indicated that it accepted the version of events provided to it by Downey”. [20]
The court recognized, however, that adequacy of reasons is not a stand-alone basis for its quashing the decision. [17] Accordingly, the court looked to the record to decide if the decision fell within “a range of possible acceptable outcomes which are defensible on the facts and the law”. [18] Ultimately, the court held that although the committee’s reasons were inadequate, it could conclude from the evidence that the committee’s decision fell within the range of possible acceptable outcomes. Despite this conclusion, the court went on to “make certain observations” for the committee:
- First, it noted that the “Complaints Committee is expected to issue appropriate reasons”. [23]
- Second, it noted that the committee “should not assumes that the material before it will always satisfactorily explain its written reasons”. [24]
- Third, it noted that while the court can consider material before the committee, the court “cannot uphold a decision by writing reasons and substituting them for defective reasons”. [25]
The court’s reasons are an explicit warning that inquiry or investigation committees should provide adequate reasons when they dismiss complaints, and should not expect that the record of the decision will always render their decisions justified, transparent and intelligible.
Reasons may be especially important when committees assess registrant conduct using professional knowledge, including knowledge of professional standards and practices. While such assessments receive deference precisely because they are made by “experts” in a profession, and are to be set aside only if “unreasonable,” assessments might well appear inexplicable and unreasonable to lay persons, when they are not informed, through reasons, of factors that are obvious to registrants, but not obvious to lay persons.
Harrison v. Assn. of Professional Engineers of Ontario, 2017 ONSC 2569
Lisa C. Fong and Michael Ng