October 8, 2014

Problems that invalidate discipline decisions

Administrative Law
Professional Regulation

As citations serve the purpose of formally notifying registrants about issues that may lead to regulatory penalties or other measures, a discipline committee may be unable to find that the registrant failed to comply with standards in a way not be set out in the citation. This is illustrated in a recent decision of the Ontario Divisional Court, setting aside a decision of a discipline committee (but referring the matter back for re-hearing before a different hearing panel) in Katsoulakos v. Association of Professional Engineers of Ontario, 2014 ONSC 5440.

Insufficient notice of the ultimate basis for measures: After an engineer designed a concrete manure storage tank, the farm owner cut out a 2×2 hole in a concrete wall of the tank to install transfer pipes, and the engineer suggested that the owner use a concrete bonding agent between the old and new concrete pours, without addressing a relevant rebar specification. The cut-out area suffered a leak. However, the citation did not refer to the cut-out of the tank wall, and instead only raised issues concerning the design stage for the tank. Although the discipline committee determined that the engineer had been negligent in addressing the 2×2 cutout, the court decided that the College had not afforded the engineer procedural fairness. [27-28] “In a disciplinary proceeding the obligation is on the professional association to specify the allegations of professional misconduct with reasonable particularity, not on the member to discern from the general “subject matter” of the circumstances what he may or may not be alleged to have done wrong.” [24]

Findings of negligence without evidence of professional standards: Additionally, the court found that the discipline committee improperly decided that the engineer had failed to comply with professional standards. The committee relied on evidence of professional standards provided by a College witness who was not accepted as an expert on the relevant issues. The panel declined to accept the witness as an expert in the field of “circular liquid retaining storage structures” or in respect of “the standard of practice of engineers providing structural engineering in the agricultural sector”. [30]

By ruling that the College’s witness was not qualified to give opinion evidence relating to circular liquid retaining storage structures, or about the relevant standard of practice, “the Discipline Committee excluded the only independent expert evidence tendered before it on the standard of practice applicable to the Appellants” [33]. Note, however, that under Ontario’s Professional Engineers Act, court rules of evidence applied to the discipline committee, as the statute stipulated (in s. 30(6)) that “…nothing is admissible in evidence before the Discipline Committee that would be inadmissible in a court in a civil case and the findings of the Discipline Committee shall be based exclusively on evidence admitted before it.” [32]

Katsoulakos v. Association of Professional Engineers of Ontario, 2014 ONSC 5440 (Ont.Div.Ct.)

Lisa Fong and Michael Ng