Court File and Parties

COURT FILE NO.: 602-06

DATE: 20070817

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

In the Matter of the Architects Act, R.S.O. 1990, c.A.26, and in the Matter of a Hearing before the Discipline Committee of the Ontario Association of Architects held on October 19, 2005, October 20, 2005, February 7, 2006, and June 15, 2006

RE: RICHARD YALLOWEGA, ARCHITECT AND NICHOLLS YALLOWEGA BÉLANGER ARCHITECTS – ARCHITECTES Appellants

• and -

ONTARIO ASSOCIATION OF ARCHITECTS Respondent

BEFORE: LANE, CARNWATH & KITELEY JJ.

COUNSEL: Leah Price, for the Appellants Eldon J. Bennett & Ellen Swan, for the Respondent

HEARD: August 13, 2007

E N D O R S E M E N T

CARNWATH J.:

[1] Richard Yallowega, Architect, and Nicholls Yallowega Bélanger Architects – Architectes appeal from the Orders of the Discipline Committee of the Ontario Association of Architects, dated February 16, 2006 and November 7, 2006, whereby the Committee found the appellants guilty of professional misconduct.

[2] The act of professional misconduct of which they were found guilty was:

During the year 2004 you solicited work with respect to the design of a student resident [sic] for Collège Boréal in Sudbury, Ontario when you knew that another member or holder had been engaged for the same purpose by the same client, contrary to subsection 47 of Section 42 of the Regulation.

[3] The appellants advanced several arguments on the appeal. We need respond only to one. The appellants submit that the counsel retained by the Discipline Committee to give it legal advice during the hearing went far beyond the role of counsel advising the Committee.

[4] We agree with this submission. Section 35(3) of the Architects Act, R.S.O. 1990, c.A.26 permits the Discipline Committee to obtain the advice of counsel during the hearing. The Committee cannot, however, allow counsel to, in effect, take over the conduct of the hearing. We find that happened in this case.

[5] Hearings were held on October 19 and 20, 2005, February 7, 2006 and June 15, 2006. We have reviewed the transcripts of October 19 and 20, 2005 and February 7, 2006 and have identified twenty-two occasions where counsel to the Committee interrupted the submissions of counsel for the appellants. We have identified nineteen occasions where counsel to the Committee purported to speak for the Committee, giving the appearance of being its Chairperson. We have identified four occasions in which counsel to the Committee engaged in heated arguments with counsel for the appellants.

[6] The Divisional Court considered an eerily similar set of facts in Venczel v. Assn. of Architects (Ont.) (1989), 1989 4306 (ON SC), 74 O.R. (2d) 755 (Div. Ct.). We cannot improve on the view expressed of counsel’s conduct in that matter in characterizing the conduct of counsel to the Committee in the matter before us:

[4] In our view, it is intolerable that a man faced with a disciplinary hearing should have to face not only the Discipline Committee that has been provided for by the Legislature but, in addition, counsel hired by it who runs the hearing, makes decisions for the Committee, and makes those decisions without even consulting the Committee. A person facing such a hearing would not know whether he has been tried by the Committee appointed under the Act or by someone hired to assist it.

[7] As a result of the conduct of counsel to the Committee, the appellants did not have a fair hearing. The findings of guilt are set aside and the matter is returned for a hearing before a Committee differently constituted.

[8] Brief submissions as to costs, not exceeding three pages in length, are to be forwarded by September 1, 2007.

LANE J.

CARNWATH J.

KITELEY J.

DATE: