Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, PERKINS and LOW JJ.
B E T W E E N:
Frank Basciano Applicant
- and -
The Ontario Association of Landscape Architects Respondent
Counsel: Ira Nishisato and Morgana Kellythorne, for the applicant Gerald L.R. Ranking and D.K. Robertson, for the respondent
HEARD: June 9, 2008
Reasons for Decision
LOW J.
[1]
Introduction
This is an application for judicial review. The applicant seeks an order quashing a by-law passed on October 17, 2005 by the Council of the Ontario Association of Landscape Architects (the Association) and ratified at a special general meeting of the members of the Association on November 28, 2005. The effect of the by-law is to reduce from five to three the number of sections of the prescribed examination that a candidate must pass as part of the qualifications to obtain full membership in the Association.
2The issue to be decided is whether the by-law should be quashed as an unreasonable decision.
[3]
Background
The applicant has been a full member of the Association since 1978 and is engaged in the private practice of landscape architecture.
4The respondent Association is a corporation without share capital. It was incorporated in 1968. Its affairs are governed by a private statute, the Ontario Association of Landscape Architects Act, 1984, S.O. 1984, c. Pr12 (the Act).
5Section 3 of the Act sets out the objects of the Association. They are:
(a) to furnish means and facilities by which members of the Association and students may increase their knowledge, skill and efficiency in all things related to the business or profession of a landscape architect;
(b) to hold examinations and prescribe tests of competency deemed appropriate to qualify for admission to membership in the Association;
(c) to establish and maintain standards of knowledge and skill among its members;
(d) to maintain discipline among the members of the Association and students; and
(e) to establish and maintain standards of professional ethics among members of the Association and students.
6Section 5 of the Act provides that the affairs of the Association shall be managed by the Council of the Association.
7Section 7 of the Act provides:
(1) The Council may pass by-laws regarding such matters as are necessary to conduct the business and carry out the objects of the Association and, without restricting the generality of the foregoing, in addition to the matters specifically provided elsewhere in this Act, the Council may pass by-laws,
(b) prescribing a curriculum and courses of study to be pursued by students and the subjects upon which the students and candidate for admission as members of the Association shall be examined and for granting certificates to students and candidates who have successfully passed the examinations;
(h) prescribing the categories of membership in the Association of which one category shall be full membership and such other categories of membership as the Council considers appropriate and prescribing the qualifications for membership in the various categories of membership;
(i) prescribing the custody and use of the Association seal;
8The term "full member" is not defined in the Act.
9The terms "landscape architecture" and "landscape architect" are not defined in the Act.
10Under s. 10 of the Act, every full member of the Association is entitled to use the designation "Landscape Architect" and a person who is not a full member who uses the designation is guilty of an offence.
11The term "full member" is defined at Article 6.1 of the Association's General by-law. There, the qualifications for full membership are set out, as are the rights accruing to a full member. To become a full member an applicant must complete a professional degree program in landscape architecture and work for two years under the supervision of a full member.
12The applicant's challenge to the new by-law arises out of two changes to Article 6.1 of the by-law, one relating to the examination qualification and the other relating to the entitlement to custody and use of the seal.
[13]
Standard of Review
If the enactment of the impugned by-law is a decision amenable to judicial review, the standard of review is reasonableness. The enactment of the by-law is driven by policy considerations particular to the profession. If it is a decision, it is made by members of a profession within a scheme of statutory self-governance. There is no privative clause and no question of central importance to the legal system as a whole.
[14]
Analysis
The pre-existing by-law required, at paragraph 6.1 a) vi), that a candidate for full membership shall "have passed the prescribed examination of the Association or be exempted therefrom pursuant to the regulations". Under the replacement provision, a candidate shall "have passed certain section(s) of the prescribed examination as specified by Council or have been exempted therefrom pursuant to the regulations".
15Paragraph 6.1 c) of the pre-existing by-law entitled each full member to a certificate of membership and an approved seal of the Association to be used to stamp documents and plans prepared by the full member or under his or her control and supervision. The replacement provision provides that each full member shall have a certificate of membership.
16The applicant asserts that the by-law is unreasonable because it establishes two categories of full members rather than one category as required by the Act. Second, the applicant asserts that the amendment has the potential to mislead the public and is therefore contrary to the public interest. He argues that there will be no way for members of the public to know whether their landscape architect is entitled to use the seal or not. Third, the applicant asserts that the by-law is unreasonable because it was motivated by an improper or irrelevant consideration of increasing membership.
17The profession of landscape architecture was originally organized in 1934 as the "Canadian Society of Landscape Architects & Town Planners" and was incorporated in 1968 under the name of "The Ontario Association of Landscape Architects". Prior to the enactment of the Act, however, there was no legal prohibition against individuals holding themselves out as "landscape architects" whether they were members of the Association or not.
18By 1983 there were 300 members in the Association. Membership increased to almost 600 in 1985 as a result of a grandfathering provision exempting the apprenticeship requirement and the prescribed examination for those individuals who had been substantially earning a living at landscape architecture.
19Under the pre-existing by-law, there were therefore full members who had passed all five sections of the prescribed examination and full members who had been exempted from taking the examination. Under the new by-law, there may be full members who have passed all sections of the examination, full members who have not taken the examination (having been exempted) and full members who have passed three or four but not all five of the sections of the prescribed examination. All have an equal right under the Act, by virtue of having full membership, to use the designation "Landscape Architect".
20Article 8.1 of the new by-law provides:
a) A Full Member who has passed all sections of the prescribed examination shall have custody and use of an approved Association seal, the impression of which shall contain the name of the Full Member and the words "Member" and "Ontario Association of Landscape Architects",
b) A Full Member having custody and use of the Association seal shall use such Association seal to stamp professional documents and plans prepared by such Full Member or prepared under his or her control and supervision or under his or her signature, unless such Full Member be employed in government where the affixing of an Association seal is prohibited or when professional documents and plans are prepared under the control and supervision of another Full Member,
c) a member who has become a Full Member pursuant to Paragraph 6.1 a) vi) of the By-laws but has not yet completed all sections of the prescribed examination or been exempted therefrom pursuant to the regulations shall not be entitled to have or use an Association seal.
21Accordingly, although qualification for full membership requires the successful completion of three or more sections of the prescribed examination, unless the person has been exempted from examinations, the right to custody and use of the Association seal is no longer an incident of full membership. It has become an additional entitlement conferred only upon completion of all five sections of the prescribed examination. It is conceivable therefore that, from time to time, there will be no full members who are entitled to custody and use of the Association seal.
22The evidence is that the use of the seal is not relevant in many variants of the profession of landscape architecture as currently practiced. The application of the seal is primarily, although not exclusively, associated with the design and construction of built works and indicates that the drawings therefor have been prepared by a member of the Association who has passed all five sections of the prescribed examination.
23The association's position that the use of the seal is not relevant in the context of many variants of the practice arises from the plastic nature of the profession of landscape architecture. As indicated above, there is no statutory definition of "landscape architecture" or "landscape architect". Those terms are therefore capable of a multitude of meanings, some more inclusive than others.
24The Association adopts an expansive interpretation of the term "landscape architecture": it views the activities reasonably comprehended by "landscape architecture" to include activities such as urban design, site planning, regional landscape planning, ecological planning and design, heritage conservation, and landscape reclamation and restoration.
25There is no statutory prohibition against practicing the profession of landscape architecture without having received membership and a certificate from the Association entitling the practitioner to use the designation "landscape architect".
26Individuals who are not members of the Association carry on activities which the Association considers to be landscape architecture. They do so outside the governance of the Association and without regulation. They carry on their professional activities without the benefit of the right to use the landscape architect's seal and are not impeded in doing so because the seal is unnecessary and irrelevant to the purposes of the segment of the profession in which they are active.
27The Association's rationale for changing the requirements for full membership is set out in a 6 page document authored by Linda Irvine, president of the Association, dated November 10, 2005 titled "EXPLANATION AND RATIONALE FOR PROPOSED CHANGES TO OALA GENERAL BY-LAWS". Three reasons are advanced for the changes set out above: to achieve professional inclusiveness, to better serve the public interest, and to better protect the public interest. The document gives a brief exposition as to how the three objectives would be fostered by adoption of the amendments to the by-law.
28Despite the applicant's allegation that the second and third rationales of serving and protecting the public interest were included only to add legitimacy to the first rationale, there is no plausible evidence that the Association was not bona fide in having all three purposes in mind in advancing the changes. They are, in any case, logically interlinked in that greater membership inclusiveness brings individuals into the educational, ethical and disciplinary jurisdiction of the Association who otherwise would be subject to no professional regulation or discipline at all. The Association has a mandate to set professional standards and to discipline its members in the public interest. It is therefore at least arguable that achievement of the first purpose contributes to the achievement of the second and third purposes by widening the net of the Association's jurisdiction over individuals who are carrying on professional activities that are similar or identical to activities carried on by members of the Association.
29Greater professional inclusiveness has, as a potential by-product, an increased membership in the Association. Increased membership from the ranks of individuals not previously members but who practice landscape architecture in some variation has, as a direct by-product, an enhanced regulation and control over the standards of practice and conduct of those individuals in their dealings with members of the public. We are therefore unable to accede to the applicant's argument that increase of membership is an improper purpose rendering the by-law unreasonable or contrary to the public interest.
30The applicant argues that the by-law will lead to confusion. It is said that a member of the public dealing with a member of the Association will have no way of knowing whether or not the member is entitled to apply the seal of the Association.
31Following the ratification of the changes to the by-law, the Code of Ethics and Professional Practice of the Association was amended on June 12, 2006. The amended Code of Ethics provides, at article 3.7, that "Members shall not undertake to provide professional services for which the member is not qualified and shall make full disclosure to a client or employer whether they have been granted custody and use of the Association seal."
32The legislature has not seen fit to define landscape architecture in the Act. The profession, through the Association, has therefore been at liberty to self-define. In the 2007 edition of the Association's Resource Guide the profession is described by it in this way:
Landscape architecture is recognized as a profession by the Province of Ontario. It is a profession that applies artistic and scientific principles to the research, planning, design and management of both natural and built environments.
Practitioners use creative and technical skills together with scientific, cultural and legislative knowledge in the planned arrangement of natural and constructed elements on the land. The principles of stewardship, conservation and preservation of natural features are paramount in the practice of landscape architecture.
Landscape architects are qualified to render advice on matters related to the planning, design and management of landscapes for human use and enjoyment. Further, landscape architects are trained to have the multidisciplinary education and experience to recognize, analyze, and synthesize the complex issues surrounding land use changes which often result in the design of landscapes that accommodate human activity, while protecting and enhancing the natural processes upon which we depend.
33Landscape architecture is thus a highly elastic concept and, given the expansive nature of the profession, there is, in my view, nothing inherently misleading in the fact that an individual may be a full member of the Association without necessarily being entitled to custody and use of the seal. A fortiori, where the Association's Code of Ethics requires express disclosure, there is no misleading of the public in the absence of a breach of the Code of Ethics.
34While it is the province of the court to inquire as to the legality of subordinate legislation, its engagement does not extend to a weighing of its practical efficacy. Even if the subordinate legislation were being so examined, it ought to be assessed on the basis that the individuals governed by it will comply and not upon the assumption that it will be contravened. The fact that a rule may be disobeyed by some individuals does not render the rule bad.
35There is no evidence of public confusion, and I reject the proposition that the possibility that some members may on some occasions violate the Code of Ethics is sufficient to render the by-law, which must be read in context with the Code of Ethics, contrary to the public interest.
36The applicant argues that the impugned by-law creates two categories of full members, one having the right to the seal and the other without.
37In my view, there is but one category of full members. There is one minimum standard for full membership. If some members choose to pass all five courses, that does not derogate from the membership rights of those who choose to pass three or four.
38Although under the pre-existing by-law the right to custody and use of the seal was made co-extensive with membership, it is not required by statute to be so. The Association is empowered to determine who may have custody and use of the seal.
39What the Association has done is to uncouple the right to use the seal from membership per se. It is acting within its statutory powers in doing so, and I am not persuaded that severing the right to use the seal from the incidents of full membership has created another category of full member.
40For the reasons above, the applicant has not shown that the enactment of the by-law is unreasonable on any of the grounds advanced by him.
[41]
Nature of the Decision
Moreover, I am in agreement with the respondent that the only proper question to be addressed in a challenge of the impugned by-law is whether it was ultra vires the Association. The enactment of a by-law by the Association is not an adjudicative or administrative function. It is a legislative function, and as such, is not amenable to judicial review (see Brown v. Alberta Dental Assn. 2002 ABCA 24, [2002] A.J. No. 142 (Alta. C.A.))
42The Association clearly has the statutory authority under s. 7 of the Act to enact by-laws prescribing the qualifications for membership in various categories.
43There is no suggestion that the by-law is ultra vires. There is no evidence to support a finding of bad faith and for the reasons set forth above, I find that the applicant has not shown that the by-law was passed for an improper purpose. The heart of the applicant's challenge goes to the wisdom of lowering the bar for qualification for full membership.
44The power vested in the Association's council to enact by-laws pursuant to s. 7 of the Act is analogous to the power vested in a municipal council to enact by-laws under the provincial municipal acts. There is, however, in the case of the Association, an additional protection in ratification by the membership of the Association.
45Where an applicant seeks review of subordinate legislation passed by a municipality that is intra vires, the courts will adopt a deferential approach (see Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13, [2000] 1 S.C.R. 342 at para. 35 and Adult Entertainment Association of Canada v. Ottawa (City), 2007 ONCA 389, [2007] O.J. No. 2021 (C.A.) at para. 30). Here, the Association has the mandate of regulating the practice of the profession of landscape architecture. With that mandate goes a dual obligation to its constituency of practitioners on one hand and to members of the public on the other. In the discharge of that mandate, the association is empowered by statute to determine the standards that are appropriate and necessary by way of educational and other qualifications for membership. No body is in better position to assess those needs than the Association and it is clearly better placed to make those determinations than the court. The court should therefore defer to the Association's greater expertise. As the court stated in Patterson v. Alberta Dental Association and College, [2004] A.J. No. 1162 (Q.B.) at para. 61:
As to the second factor, in this case the tribunals whose decisions are being reviewed have relative expertise in the specific subject-matter of their decisions. The decision of the Alberta Dental Association and College is, at its core, a decision about what qualifications a dentist must have to practice in Alberta. That is essentially a technical question: the ADA&C has expertise in deciding what qualifications an individual must possess in order to practice dentistry in Alberta, and the court does not. The Council of the ADA&C has both technical expertise arising from its linkage with the ADA&C, and a broad representation of public policy perspectives; while the court must be alert to public policy objectives, it does not have the means of obtaining input on public policy objectives. The Council therefore has a greater combination of technical and public policy expertise than does the court. Overall, the Council has a better ability than does the court to assess the qualifications of an individual who wishes to practice dentistry in Alberta.
46In Patterson, the function was an adjudicative one in the sense that the decision made was a determination as to whether the applicant had satisfied the College's standards criteria. In my view, the point made in Patterson is, if anything, even more strongly apropos in the context of a legislative act which is the case at bar.
[47]
Disposition
I would dismiss the application.
48If the parties are unable to agree as to costs, submissions may be made in writing by the respondent within 10 days and by the applicant within 10 days thereafter.
Low J.
Carnwath J.
Perkins J.
Released: 20080929
Court File No.: 122/06
DATE: 20080929
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, PERKINS and LOW JJ.
B E T W E E N:
Frank Basciano Applicant
- and -
The Ontario Association of Landscape Architects Respondent
REASONS FOR JUDGMENT
Low J.
Released: 20080929