COURT FILE NO.: 553/07
DATE: 20090601
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Low and van Rensburg JJ.
B E T W E E N:
Louis K.C. Cheung and Louis K.C. Cheung Architect Inc.
Appellants
- and -
ontario association of architects
Respondent
V. Ross Morrison, for the Appellants
Linda R. Rothstein, for the Respondent
HEARD: At Toronto, April 20, 2009
LOW J.
[1] The appellant Louis K.C. Cheung is a member of the respondent Ontario Association of Architects (the Association) and the appellant Louis K.C. Cheung Architect Inc. is a holder of a certificate of practice issued by the respondent (collectively the member/holder).
[2] The member/holder appeals from the decision of the Discipline Committee of the Association dated October 11, 2007 in which the member/holder was found guilty of two counts of professional misconduct.
FACTual background
[3] The allegations of professional misconduct arose out of a written complaint made on August 17, 2004 by one Stephen LeBlanc, an architecture student. The complaint was considered by the respondent’s Complaints Committee, which then referred the matter to the Discipline Committee.
[4] The complaint concerned a project which started in the fall of 2003 to alter and enlarge an existing restaurant in Toronto. The owner of the property had retained Stephen LeBlanc to prepare drawings for the project and to get a variety of approvals, including a building permit.
[5] LeBlanc prepared a set of drawings dated November 15, 2003 which formed the basis of a building permit application filed by him on behalf of the owner. As he was not a licensed architect, he was able to obtain a building permit for the interior alterations only.
[6] By January 2004, demolition was underway and construction of the additions had been started by February 2004. One of the alterations was the creation of an enclosed front vestibule with a pair of glazed French doors separating interior space from the outdoors.
[7] On February 25, 2004, the permit application was returned by the Building section of the City of Toronto’s Urban Development Services identifying 15 deficiencies which precluded the issuance of a building permit. Two of the items are directly relevant to the determination of this appeal.
[8] One of the deficiency items was that the project had to be designed by both an architect and a professional engineer. Drawings bearing the signature and stamp of both had to be submitted. The drawings had an engineer’s stamp but did not bear an architect’s stamp as LeBlanc, a student, could not affix an architect's stamp.
[9] Another item was the requirement for detailed designs for at least one barrier free access and washroom. This requirement arose because of the relocation of the front entrance that resulted from the creation of an enclosed vestibule out of what was formerly a porch, an alteration which the owner was very keen to have. The City advised LeBlanc on March 5, 2004 that if the existing porch were only partially enclosed by a roof and supporting posts but without additional doors (i.e. the French doors) creating the enclosed vestibule, the property's status as a non-conforming building could be preserved and the necessity of providing the barrier free access and washroom could be avoided.
[10] The owner was determined to have the enclosed vestibule and the French doors remained in place. There was, however, no provision for a barrier free access and washroom.
[11] In late March 2004, the owner retained the member/holder to complete the building permit process and to oversee the completion of the project. By that time, the alterations were almost complete although no building permit had been issued.
[12] Under the supervision of the member/holder, his project coordinator, Nicholas Sum, reviewed and revised the LeBlanc drawings in a number of respects to bring them to building permit standard. He made a number of changes to the drawings to ensure compliance with the Ontario Building Code and fire safety requirements.
[13] The French doors creating the enclosed vestibule had already been deleted on the LeBlanc drawings, thus avoiding the Building Code requirement to provide a barrier free entrance and washroom. The member/holder was aware of the issue concerning the French doors, having reviewed the examiner's notice shortly after being retained. The member/holder added his own title blocks, affixed his seal and submitted the revised drawings for a building permit, which was issued on April 28, 2004.
[14] On April 7, 2004, Nicholas Sum conducted a site visit and noted the presence of the French doors. He told the general contractor and the owner that the doors would have to come down. The owner would not tell Sum whether she intended to comply.
[15] Sum advised the member/holder on or about April 7 that the French doors had been installed in contravention of the Building Code and not in compliance with the permit drawings. Sum showed photos of the doors to the member/holder and left it to the member/holder to deal with the owner about the issue.
[16] The member/holder acknowledged at the discipline hearing that he had seen the photos taken by Sum and that he had no doubt that the doors had to be removed. He also acknowledged that he had a professional obligation to inform the contractor and the owner in writing about the violations and that he failed to do so.
[17] Despite being told by Sum that the French doors were built into the alteration in contravention of the Building Code and not in accordance with the permit drawings, the member/holder wrote to Orville Grant, Building Inspector for the City, on May 10, 2004 as follows:
Site reviews have been carried out periodically for the captioned project. I hereby confirm that the alteration work of the captioned project has been constructed in general conformance to the Ontario Building Code and to the approved permit drawing. The Final Site Review will be carried out by the end of this week.
[18] At the date of the writing of the letter, the member/holder had not yet visited the site. At the date of the writing of the letter, the member/holder had been advised and had been shown photos of the presence of the French doors which were in violation of the Building Code and not in compliance with the permit drawings.
[19] Three days later, on May 13, 2004, two days before the restaurant was scheduled to re-open, the member/holder conducted a site visit. He signed and issued a site visit report dated May 25, 2004 the entire content of which is as follows:
Comment & Deficiency:
Basement exit door will be relocated to the Ground Floor as instructed by building inspector.
Emergency light in Vestibule is not required as instructed by fire department, due to the glass provided in second set of doors.
Emergency light has not been installed in the upper landing of the basement stair.
Rear exit door is relocated facing rear yard, and the exit light is not on at the time of inspection.
Emergency and exit light in rear stair of upper landing should be relocated further towards stair steps, but not hidden behind door.
The door swing direction for the 2nd floor exit door has been changed.
[20] The French doors had not been removed but there is no mention in the report of their presence or of the fact that they violated the Building Code. On the same day, the member/holder delivered his May 10, 2004 letter to the Building Inspector, referred to above.
[21] In the course of his testimony before the Discipline Committee, the member/holder offered three different explanations for his failure to mention the non-compliant French doors in his site visit report: he saw the doors, but disregarded them because he thought they were storm doors; he "oversighted" the doors because he was pre-occupied with other matters; and he had simply not thought that the doors were important. He acknowledged that even if the doors were storm doors, they would nevertheless be in violation of the Building Code.
[22] On August 17, 2004 LeBlanc lodged a complaint about the member/holder alleging, inter alia, that the member/holder had affixed or permitted a seal to be affixed to a design that was not prepared substantially under the personal supervision and direction of the member.
[23] On November 9, 2004 the respondent’s Complaints Committee issued its decision and referred the matters in the LeBlanc complaint to the respondent’s Discipline Committee. The referral states:
Pursuant to Section 30, (2)(a) of the Architects Act, R.S.O. 1990, c.A.26, this Committee hereby directs that the matter arising out of the written complaint of Stephen LeBlanc be referred to the Discipline Committee to hear and determine allegations of professional misconduct with respect to a project at 1910 Queen Street East, Toronto, Ontario, and the following matters arising out of the written complaint respecting the professional conduct of the member, Louis K.C. Cheung and the holder, Louis K.C. Cheung Architect Inc.,:
• That the member, Louis K.C. Cheung and Louis K.C. Cheung Architect Inc. affixed a seal or permitted a seal to be affixed to a design that was not prepared substantially under the personal supervision and direction of a member or holder of a temporary license, contrary to Regulation.
• That Louis K.C. Cheung and Louis K.C. Cheung Architect Inc. misrepresented the authorship of the design and drawings for the same project.
• That Louis K.C. Cheung and Louis K.C. Cheung Architect Inc. copied the work of another person.
• That Louis K.C. Cheung and Louis K.C. Cheung Architect Inc. acted in a manner that could be regarded as disgraceful, dishonourable or unprofessional.
[24] The Notice of Hearing dated August 23, 2005 before the Discipline Committee contained four allegations of professional misconduct:
During the year 2004, the Member and Holder affixed a seal or permitted a seal to be affixed to a design that was not prepared in its entirety under the personal supervision and direction of a member or a holder of a temporary license, contrary to paragraph (19) of Section 42 of the Regulation.
During 2004, the Member and the Holder misrepresented the authorship of a design and drawings, contrary to paragraphs (15) and (31) of Section 42 of the Regulation.
During 2004, the Member and the Holder copied the design or work of another person without the consent or agreement of the other person, contrary to paragraph (34) of Section 42 of the Regulation.
During 2004, the Member and the Holder engaged in conduct or an act that, having regard to all of the circumstances, would reasonably be regarded by members of the Association as disgraceful, dishonourable or unprofessional, contrary to paragraph (54) of Section 42 of the Regulation.
[25] The member/holder was found guilty on charge 1 and was found to have committed dishonourable and unprofessional conduct under charge 4. Count 2 was withdrawn and the member/holder was found not guilty on count 3.
[26] The penalty imposed was a four month suspension, reducible to three months if the member attends not less than a cumulative total of one day of courses administered by the Association and as selected by the registrar of the Association. He was also ordered to pay costs of $20,000.00.
jurisdiction and the standard of review
[27] The Court’s jurisdiction to hear this appeal is found at s.36(1) and (3) of the Architects Act, R.S.O. 1990, c.A.26, as amended, which provide:
(1)A party to proceedings before the Registration Committee or the Discipline Committee may appeal to the Divisional Court, in accordance with the rules of court, from the decision or order of the committee.
(3)An appeal under this section may be made on questions of law or fact or both and the court may affirm or may rescind the decision of the committee appealed from and may exercise all powers of the committee and may direct the committee to take any action which the committee may take and as the court considers proper, and for such purposes the court may substitute its opinion for that of the committee or the court may refer the matter back to the committee for rehearing, in whole or in part, in accordance with such directions as the court considers proper.
[28] It is agreed that the standard of review is reasonableness.
the issues raised on the appeal
[29] The member/holder argues that the Discipline Committee lacked jurisdiction in respect of Count 1 because the matter was not properly referred to it by the Complaints Committee. The allegation as expressed in the Notice of Hearing was that the member/holder had affixed his seal to a design not prepared in its entirety under his personal supervision and direction whereas the allegation in the decision of the Complaints Committee referring the matter alleged that the member/holder had affixed his seal to a design not prepared substantially under his personal supervision and direction.
[30] As a second ground of appeal, the member/holder argues that the Discipline Committee erred in law by misinterpreting s. 42(19) of the Regulation defining the professional misconduct underlying Count 1. It is argued that the regulation does not mean that the draftsman must be supervised from start to finish by the member/holder but rather that every aspect of the design must be subject to the supervision and direction of the member/holder.
[31] As a third ground, the member/holder argues that the Discipline Committee erred in law in making a finding of professional misconduct under Count 4: (a) because there was no evidence from which it could infer that the member "with the participation of the owner and contractor knowingly disregarded building code requirements, and further, that he knowingly misled the Chief Building Official as to the actual status of the completed work" and (b) because it did so without receiving peer evidence from members of the Association as to whether the impugned conduct would be regarded by members of the Association as disgraceful, dishonourable or unprofessional.
[32] The relevant provisions of the Regulation in effect at the time of the alleged misconduct underlying the findings of professional misconduct on Count 1 and Count 4 respectively are s. 42 (19) and s. 42(54) of Regulation 27 under the Act:
For the purpose of the Act"professional misconduct" means,
Affixing a seal or permitting a seal to be affixed to a design that was not prepared in its entirety under the personal supervision and direction of a member or a holder of a temporary license.
Conduct or an act relevant to the practice of architecture that, having regard to all of the circumstances, would reasonably be regarded by members of the Association as disgraceful, dishonourable or unprofessional.
[33] I do not accept the argument that the Discipline Committee lacked jurisdiction to proceed in respect of Count 1.
[34] The complaint from LeBlanc was that the member/holder had affixed his seal to a design that was not prepared substantially under the personal supervision and direction of the member/holder and the Complaints Committee mirrored that terminology in referring the matter to the Discipline Committee. The language of Count 1 in the Notice of Hearing, however, tracks the statutory language: "in its entirety".
[35] The role of the Complaints Committee under s. 30(1) of the Act is to refer, not specific allegations as is the case under statutes governing certain other self-regulating professions, but rather to direct that "the matter" be referred, in whole or in part. The matter was the complaint by LeBlanc.
[36] In Kupeyan v. Royal College of Dental Surgeons of Ontario (1932), 1982 1966 (ON SC), 37 O.R. (2d) 737 (Div. Ct.) at 31, in the context of language virtually identical to that in s. 30(1) of the Act, the Court held that "the matter" meant the subject matter of the complaint.
[37] I am therefore satisfied that the Discipline Committee had jurisdiction to deal with the matter in its entirety, including Count 1.
[38] I do not accept the alternative construction of s. 42(19) urged upon us on behalf of the member/holder.
[39] The member/holder asserts that the Legislature intended by s. 42(19) that "every aspect of the design be subject to the supervision and direction of the member". It is argued that what happened here, a careful review of the aspects and details of the drawings by the member with amendments made by his project manager under his supervision, is all that was required by the section.
[40] The construction of s. 42(19) proposed on behalf of the member/holder is, in my view, not reasonable. Had the Legislature intended only that the member be prohibited from affixing his seal to a design unless he has carefully reviewed and approved all aspects and details of it, it could easily have so stipulated. Instead, the statute requires the personal supervision and direction by the member or holder of the preparation of the design in its entirety before that member/holder’s seal may be affixed.
[41] The interpretation of the regulation by the Discipline Committee was consistent with its grammatical sense. The words “supervision and direction” clearly refer to “the preparation” of the design. Preparation is an action. While an object may be reviewed and revised, I do not accept the suggestion that it can be supervised and directed. In my view, the Discipline Committee did not misinterpret s. 42(19) in taking it to mean that the action of making the design has to have been supervised and directed, from inception to completion, by the member/holder.
[42] With respect to Count 4, there appear to be two aspects to the member/holder’s arguments. First, it is argued that in order to find the member/holder guilty of conduct that would “reasonably be regarded by members as disgraceful, dishonourable or unprofessional”, the Discipline Committee was required to receive opinion evidence from members of the Association on the point. Second, it is argued that there was no evidence that the member/holder knowingly disregarded Building Code requirements or that he knowingly misled the Chief Building Official. Rather, it is said, any failure on his part was merely the result of an oversight and does not amount to dishonourable or unprofessional conduct.
[43] I do not accept the argument that it was an error in law for the Discipline Committee to have arrived at the conclusion that the conduct of the member/holder was dishonourable and unprofessional without receiving peer or expert opinion evidence on the issue. Although there are compelling reasons for holding that where there is a dispute concerning the standard of practice, opinion evidence should be received as to the standard of practice, there is no equivalent functional need for peer or expert evidence where the issue is one of integrity, as it is in the instant case.
[44] The gravamen of the alleged misconduct is that the member/holder knowingly disregarded requirements of the Building Code and knowingly made a misleading statement to the Chief Building Official. Whether this conduct is such that members of the Association would reasonably consider it to be unprofessional and dishonourable in all the circumstances is a matter upon which members of the Committee, including its lay member(s), are in as good a position as a member of the Association to opine and expert evidence is unnecessary.
[45] The member/holder has referred us to White v. Association of Professional Engineers (Ontario) (2006), 2006 17320 (ON SCDC), 210 O.A.C. 160 (Div. Ct.). In that case, disciplinary action arose from a letter written by an engineer which contained a scathing assessment of another firm’s recommendations in such terms as would constitute a personal attack on the firm’s principal.
[46] Under a regulation similar to s. 42(54) of the Regulation under the Architects Act, the engineer was found guilty of professional misconduct in that he had engaged in conduct that was unprofessional.
[47] The Association of Professional Engineers did not lead opinion evidence of the member’s peers as to whether the impugned conduct would be regard by members as unprofessional. The member did call the evidence of other members of the Association. They, however, testified that they would not have written the letter complained of.
[48] The Discipline Committee concluded that the impugned conduct displayed a lack of judgment and professional courtesy that would be expected by the engineering profession in the circumstances. Its decision was upheld by the Divisional Court on appeal. Cusinato and Jennings JJ., for the majority of the Court, referred to the panel as “an experienced group of professional engineers”, and noted that, “the Panel’s own assessment was bolstered by the evidence tendered through a number of professional engineer witnesses called by the defence that they would not have written such a letter”.
[49] The Divisional Court decision simply observes that the testimony of the professional engineer witnesses reinforced the panel’s own assessment, and does not support the proposition that peer or expert evidence is necessary to support a finding that a member had engaged in conduct that members would reasonably regard as unprofessional.
[50] In my view, the Discipline Committee in this case did not err in coming to its own conclusions as to whether the impugned conduct would reasonably be regarded by members as dishonourable or unprofessional.
[51] The final argument is that the finding of fact, set out in paragraph 31 above, is unsupported by evidence or is contrary to the weight of the evidence.
[52] Having made assessments about the member/holder’s credibility, the Committee had ample evidence upon which an inference could reasonably be drawn that the member/holder knew that his representation to the Building Inspector was untrue at the time that he made it: he was aware of the existence of the French doors in the structure as built; he was aware that the French doors were a violation of the Building Code and not in compliance with the permit drawings; his attention had been drawn to the violation by his project manager Nicholas Sum; he was aware that the owner was very determined to keep the doors; he visited the site himself; he was aware of his obligations; and he gave three different and conflicting explanations for his failure to disclose the violation in his site report.
[53] On the totality of the evidence, an inference could reasonably be drawn that the misrepresentation to the Building Inspector was not an oversight but was made knowingly and with the complicity of the owner and the contractor.
[54] I am not persuaded that the Committee's conclusion was unreasonable that the conduct could reasonably be regarded as dishonourable and therefore also unprofessional, a lesser and included type of misconduct.
[55] The final issue is penalty. The gross penalty is a four month suspension. It is reducible to three months on the assumption that the member/holder takes the cumulative equivalent of one day’s courses administered by the respondent and chosen by its registrar. The Discipline Committee also ordered that the member/holder pay part of the costs of the proceeding fixed at $20,000.
[56] It is argued that the penalty is excessive and unreasonable and that the Committee erred in failing to take into account the change, in April 2005, in the wording of s. 42(19) which substituted the words “prepared in its entirety” with the words “responsible control”. I note, however, that the wording of that regulation was further amended in 2007 reinstating the original language"in its entirety".
[57] The Discipline Committee is a professional body charged with a public responsibility to ensure standards of integrity and professionalism among member/holders of the Association. The Committee is to balance the interests of the profession, of members of the public and of members of the Association. It is an expert body and, in the discharge of its functions, is the body best able to assess the gravity of misconduct and its consequences to the public and to the profession. Unless there is an error in principle, the court on appeal ought not to disturb the penalty and substitute its own views (see Takahashi v. College of Physicians and Surgeons of Ontario (1979), 1979 2045 (ON SC), 26 O.R. (2d) 353 at 29 (Div.Ct.)).
[58] The change of the language in s. 42(19) of the regulation in April 2005 does not impact on the penalty that would be appropriate in the circumstances. If there was a change in the gravamen of the offence (and we express no opinion as to whether there was a change) it is not relevant, as the misconduct must be assessed in light of the legislation in force at the time of the events which form the alleged misconduct (see Kalin v. College of Teachers (Ontario) (2005), 2005 18286 (ON SCDC), 254 D.L.R. (4th) 503 at 76-78 (Div.Ct.)). We find no error in principle in this respect.
[59] The finding of guilt under s. 42(19) is not the first of its kind under the Act. We have been referred to other decisions of the Discipline Committee where similar penalties were imposed in similar circumstances. In Ontario Association of Architects v. Thaddeus Konopacki, Architect [Reasons for Decision and Order of the Discipline Committee, January 14, 1986] a penalty of four months' suspension was imposed for two counts of misconduct, one of which was affixing a seal on drawings not prepared in their entirety under the supervision of the member. In Ventin v. Ontario Association of Architects (1988), 28 O.A.C. 130 (Div.Ct.) a two month suspension was imposed after a guilty plea on a single count of affixing a seal to drawings not prepared in their entirety under the supervision of the member.
[60] These decisions indicate the level of seriousness with which the conduct has been viewed by the Association and demonstrate also that the penalty imposed on the member/holder is in line with prior penalties for similar acts. The Discipline Committee is in the best position to gauge the seriousness of the misconduct and its impact on the profession and there appears to us no compelling rationale for interfering with the penalty imposed.
[61] The Discipline Committee's costs decision is entitled to deference. The appellant has not shown any error of principle, nor that the award is excessive for a six day hearing.
[62] For the foregoing reasons, the appeal is dismissed.
[63] The parties have agreed that costs are to follow the event and that they be fixed at $10,000. Costs of $10,000 all inclusive are payable by the appellant to respondent in 30 days.
Low J.
Swinton J.
van Rensburg J.
Released:
COURT FILE NO.: 553/07
DATE: 20090601
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Louis K.C. Cheung and Louis K.C. Cheung Architect Inc.
Appellants
- and -
ontario association of architects
Respondent
REASONS FOR JUDGMENT
Low J.
Released: June 1, 2009