CITATION: LIM et al. v. P.E.O., 2011 ONSC 106

DIVISIONAL COURT FILE NO.: 586/09

DATE: 20110208

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

FERRIER, MOLLOY and HERMAN JJ.

BETWEEN:

PAUL SIEW CHOON LIM, P. ENG and P. LIM & ASSOCIATES LIMITED Applicants

– and –

ASSOCIATION OF PROFESSIONAL ENGINEERS OF ONTARIO Respondent

William C. McDowell, for the Applicants

Aviva R. Harari, for the Respondent

HEARD at Toronto: November 10, 2010

REASONS FOR DECISION

ferrier j.:

[1] The applicants sought an order in this court quashing and permanently prohibiting a proceeding against them before the Discipline Committee of the Professional Engineers of Ontario (PEO). They allege a reasonable apprehension of bias in the Discipline Committee.

[2] Upon completion of oral argument, the relief sought was granted by this court, for reasons to follow. These are the reasons.

Background

[3] The applicants, Paul Siew Choon Lim, P. Eng and P. Lim & Associates Limited were the subject of two discipline proceedings before the Discipline Committee of the PEO.

[4] The first, the "Ballard complaint" was dismissed on November 27, 2008 following a hearing"for reasons to be delivered". The reasons were delivered on August 23, 2010.

[5] The second complaint, the "Buechner complaint" was the subject of this application. Following the complaint investigation, the Complaints Committee of the PEO referred the matter to the Discipline Committee. In due course, a statement of allegations was issued by the PEO. On March 9, 2009 the Discipline Committee began dealing with procedural matters.

The Disciplinary Structure

[6] Members of the PEO make up the Complaints Committee. Members of the Complaints Committee are prohibited from sitting on the Discipline Committee. Members of the PEO also make up the Discipline Committee which has about four dozen members, from which panels are selected to hear proceedings. The Chair selects the panels, designates the panel chairs, schedules hearings, and refers matters to the panels for hearing. The Chair may direct a tribunal member to preside at a preliminary conference.

[7] The Discipline Committee is assisted by the "Tribunals Office" which provides administrative support to the Discipline and the Registration Committee which is another statutory committee with adjudicative powers. If the Discipline Committee needs advice or assistance in connection with its adjudicative function, independent legal counsel is retained. Administrative staff is not retained to provide the committee with legal advice.

[8] The Tribunals Office is comprised of a Registrar, a Manager, Legal and Regulatory Affairs ("Manager") and an administrative assistant.

[9] At all material times, including at the time of the hearing in this court, the Manager was Mr. Sal Guerriero, who is both a lawyer and an engineer. As noted above, his function is not to give legal advice to the committee – a limitation which, as the circumstances below reveal, he appears to have ignored.

Facts relevant to the issue of reasonable apprehension of bias

(a) The Ballard complaint

[10] Although the Ballard complaint is not in itself directly relevant, its procedural history is to some extent.

[11] On December 19, 2006, Lim was referred to the Discipline Committee on allegations of incompetence and professional misconduct, following a complaint by Christine Ballard and others.

[12] The parties agreed on the date of December 10, 2007 for the hearing of that matter. The date was fixed by the Discipline Committee accordingly.

[13] On October 23, 2007, Mr. Smith, the then Chair of the Discipline Committee, wrote to advise that he was unable to provide a Panel of Discipline Committee members which complied with the quorum requirements of s. 27(2) and 27(6) of the Professional Engineers Act (the “Act”). Mr. Smith inquired whether the parties would consent to a Panel which did not meet the quorum requirements of the Act.

[14] The parties were unable to agree to this proposal and so, on October 31, 2007, counsel to PEO wrote to Mr. Smith and requested that, if the matter was to be rescheduled, that the parties be provided with alternate dates for the hearing and that the matter be rescheduled to the earliest possible dates agreeable to the parties.

[15] On November 30, 2007, Mr. Smith wrote to indicate that the hearing would not proceed on December 10, 2007 and that a new date would be imposed without reference to the availability of the parties. Mr. Smith further indicated that should a party seek an adjournment, a formal motion would have to be brought.

[16] On December 3, 2007, a new Notice of Hearing was delivered which fixed the date for hearing at January 30, 2008. Lim was unable to attend this date as he was to be out of the country. On January 14, 2008, Lim brought a motion before a Panel of the Discipline Committee to adjourn the January 30, 2008 date. This motion was granted.

[17] Following this motion, counsel for Lim wrote on two occasions to Josie D’Aluisio, Administrative Assistant in the Tribunal Office and asked to be consulted with respect to the scheduling of a new date. The Tribunal Office did not respond, but instead issued a new Notice of Hearing on February 21, 2008, fixing the hearing date for May 26, 2008. The parties were not consulted regarding this date.

[18] Eventually the Ballard matter was heard in October and November 2008. On November 27th, 2008, the complaint was dismissed, “for reasons to be delivered”. The reasons of the committee were delivered August 23, 2010. The committee expressly rejected the opinion evidence of Mr. Greg Allen, to the effect that Mr. Lim was guilty of professional misconduct.

(b) The Buechner Complaint

[19] On or about October 17, 2008, Lim was notified that the PEO was in receipt of another complaint regarding his professional conduct. On November 3, 2008, Lim responded to the complaint.

[20] On December 23, 2008, PEO wrote to Lim to advise that the Complaints Committee had met on December 1, 2008 (following the dismissal of the first prosecution), and had “considered the matter of [the Buechner] complaint against Paul S.C. Lim, P. Eng. and P. Lim & Associates Limited which was filed with the Registrar on October 17, 2008” and had referred Lim to the Discipline Committee.

[21] The Decision of the Complaints Committee refers to the documents considered by the Complaints Committee, described as “the written complaint, the response, the rebuttal, the independent report and other related documents”.

[22] On January 5, 2009, and again on January 15, 2009, counsel for Lim wrote to the PEO requesting copies of the materials provided to the Complaints Committee.

[23] On February 10, 2009, Ms. D’Aluisio wrote to the parties and sought their input regarding certain suggested hearing dates. Counsel for Lim noted that, although neither the Statement of Allegations nor any disclosure had been received and the matter was not ready to proceed to a hearing, Lim was nevertheless available on some of the proposed dates.

[24] On March 5, 2009, Ms. Harari, counsel to PEO, wrote to the PEO Tribunal Office to advise that the complainant was not available for either of the proposed hearing dates that were acceptable to Lim. She also noted that the complainant would be available from July 18 until mid November and requested that additional proposed hearing dates be provided by the PEO Tribunal Office to each counsel.

[25] The Tribunal Office did not respond and it did not canvass additional dates with counsel.

[26] On March 26, 2009, the PEO delivered the Registrar’s Book of Documents, which included documents reviewed by the Complaints Committee as well as minutes from the meeting and the Complaints Committee’s decision. The Registrar’s Book of Documents contained an “Independent Expert Report” prepared by Greg Allen on June 3, 2008.

[27] On June 17, 2009, the PEO delivered supplementary disclosure, which included a draft of Mr. Allen’s June 3, 2008 report. In that draft report, Mr. Allen made numerous references to the review he had conducted regarding the Ballard complaint, and drew conclusions in the Buechner matter based on his review in the Ballard case.

[28] The additional disclosure also included an email exchange between Mr. Allen and Renzo Villa, the PEO investigator assigned to this matter, showing that Mr. Villa asked Mr. Allen to remove references to the Ballard investigation in his report on the Buechner matter.

[29] From reviewing the draft and final versions of Allen’s reports, it appears that Mr. Allen acquiesced to Mr. Villa’s request and removed all references to the Ballard matter from his final report. The conclusions are unchanged.

[30] Despite the fact that PEO had both the draft and final reports in its possession long before the hearing in the first Lim matter, these reports were not disclosed until long after the Ballard complaint was dismissed, even though the draft report specifically refers to Mr. Allen’s opinion in the Ballard case.

[31] On or about June 1, 2009, counsel for Lim received a Notice of Hearing fixing a hearing date of November 12, 2009. Neither Lim nor his counsel had been consulted regarding the date.

[32] At the time, Mr. Breedon, counsel to Lim, was unable to attend that date as he had a trial scheduled to proceed. Lim was also unavailable, as he was out of the country.

[33] On June 2, 2009, Mr. Breedon wrote Ms. D’Aluisio at the PEO Tribunal Office indicating that he was unable to attend the fixed hearing date and requesting dates to adjourn the hearing date. The next day, Ms. D’Aluisio emailed Mr. Breedon asking for his availability on July 15, 2009 to present a motion for an adjournment. Mr. Breedon responded and, in the afternoon of June 3, 2009, Ms. D’Aluisio sent an email fixing the date of Lim’s motion for July 16, 2009. Ms. D’Aluisio further provided some instructions with respect to service of motion materials.

[34] Lim’s motion was heard on July 16, 2009. PEO did not oppose the motion. The Panel granted the motion and remitted the matter to the Chair of the Discipline Committee, to set a new date for the hearing.

[35] It bears repeating that it is the Chair who sets the dates for hearings.

Subsequent correspondence

[36] The following series of correspondence reveal an overbearing, uncooperative and unprofessional attitude on the part of the Tribunal Office, in particular Mr. Guerriero. Furthermore, his correspondence reveals an ignorance of the limits of his role and authority; as well, it reveals his lack of appreciation of the need for absolute independence in the Discipline Committee.

[37] On July 20, 2009, Mr. Breedon wrote once again to Ms. D’Aluisio requesting that the parties be consulted regarding new hearing dates, and providing dates upon which Lim was available.

[38] That day, Ms. Harari contacted the PEO Tribunal Office and also requested that she be contacted regarding dates.

[39] Later that afternoon, Sal Guerriero, the Manager, Legal & Regulatory Affairs – Support Staff to the Tribunal, wrote Mr. Breedon and Ms. Harari. He advised that the Chair of the Discipline Committee sets dates based on “considerations which go beyond the parties’ mere availabilities”.

[40] The following is the text of his correspondence:

Dear Counsel,

Thank you both for your correspondence. It is inaccurate to state that the Tribunal Office has not consulted with the parties’ counsel prior to hearing dates set by the Chair. The Tribunal Office has already consulted both of you in the past, without much success. As an administrative tribunal, the Chair of the Discipline Committee has to consider the public interest and ensure that matters referred to it from the Complaints Committee proceed expeditiously to a hearing. The chair of the Discipline Committee sets the hearing dates, and the setting of tribunal hearing dates is based on considerations which go beyond the parties’ mere availabilities. You will be notified by Notice of Hearing for the commencement of the hearing, in due course.

In the future, if you make assertions as to why you cannot meet hearing dates, then you will be required to present such compelling evidence to support your assertions. Also, take note that the comments that your witnesses, or that legal counsel is booked on another “trial” etc. or a party is planning a vacation, excursions to another country, and any other such disingenuous excuses, without presentation of evidence to the contrary, will not be accepted as a reason for delaying a hearing of a disciplinary tribunal. [Emphasis added]

Best regards,

Professional Engineers Ontario

Sal Guerriero, LL.M. P.Eng.

Manager, Legal & Regulatory Affairs

Support staff to the Tribunals

[41] Mr. Breedon responded to Mr. Guerriero on July 22, 2009 and raised a number of concerns. Amongst other things, Mr. Breedon asked Mr. Guerriero to clarify what standard of evidence he was suggesting would be required by the Discipline Committee in the future, and asked him to disclose what advice he had provided to the Discipline Committee in this regard. The following is a full text of his letter:

Dear Mr. Guerriero:

Thank you for your email of July 20, 2009, a copy of which is enclosed.

You have raised a number of concerns in your email which must be addressed. First, you have suggested that the Tribunal Office consulted with both Ms. Harari and I for the purpose of setting dates for the hearing, “without much success”. As you are undoubtedly aware, on February 10, 2009, the Tribunal Office wrote to the parties, requesting our availability for dates between April and July, 2009. I advised the Tribunal Office at that time that the matter was not ready to proceed to a hearing, as PEO had not yet drafted a Statement of Allegations and had not made disclosure. Notwithstanding this, I provided certain dates that Mr. Lim and I were available. Ms. Harari then wrote to the Tribunal Office to indicate that her witnesses were not available on the dates which had been proposed. She provided further availability and asked that the Tribunal Office consult the parties with respect to new dates.

Given that PEO has not yet made full disclosure, none of the dates originally suggested by the Tribunal Office could have been used. Neither Ms. Harari nor I were ever consulted with respect to any alternative dates, including the November 12, 2009 date unilaterally fixed for the hearing.

Second, you suggest in your email that the “setting of tribunal hearing dates is based on considerations which go beyond the parties’ mere availabilities.” With the greatest respect, the rights of a respondent to challenge the evidence which is to be put against him at a disciplinary hearing, and to be represented by the counsel of his choice, are fundamental elements of natural justice. This is ordinarily addressed by consulting with the respondent prior to fixing hearing dates, and only fixing dates with his consent. In a case such as this, where Mr. Lim has provided many dates when he is prepared to proceed with the hearing, there is no reason that this approach should not be adopted.

Third, in your email you suggest that in the future parties will be required to “present such compelling evidence to support [their] assertions” and that justifications for adjournments “will not be accepted as a reason for delaying a hearing of a disciplinary tribunal” “without evidence to the contrary”. I find this puzzling given that, of course, Mr. Lim filed evidence on every motion to adjourn a hearing date. Are you suggesting that, in the future, the Discipline Committee will apply some more onerous standard of proof to any further requests of adjournment? Please clarify your position and advise what, if any, advice you have or will provide to the Discipline Committee or the Chair in this respect, including any written, electronic or verbal advice. I further insist that you disclose all recipients of your July 20, 2009 email, including any person who was blind copied on the email and anyone who has subsequently received a copy, directly or indirectly.

Finally, in the second paragraph of your email you characterize the previous representations made by Ms. Harari and myself as to our own availability and that of our clients and witnesses as “disingenuous” and seem to be implying, through your use of quotation marks, that I was not scheduled to attend a trial on the dates previously fixed for the hearing of this matter.

As you know, the reputation of a lawyer is of paramount importance. You have implied that I have misled the Tribunal, which is both false and quite damaging to my reputation before the Tribunal. I must insist that you withdraw this suggestion in writing and copy your letter to anyone within PEO to whom you have sent it. In the circumstances, I further expect you will apologize to Ms. Harari and myself.

Yours very truly,

[42] Mr. Guerriero responded that day by email. The entire text of his email is as follows:

Dear Mr. Breedon,

This is to confirm receipt of your faxed letter dated July 22, 2009.

This will reiterate that either party and their counsel before this Disciplinary Tribunal will be required to present evidence to support any request for delaying a hearing of the Discipline Committee, and any assertions not substantiated with evidence will be rejected.

Also, any intimidation towards Tribunal Staff will be met by a complaint being formally filed before the Law Society of Upper Canada. I expect your apology to me for your intemperate comments in your faxed letter of July 22, 2009 and that you do so immediately. [Emphasis added]

Kindly govern yourself accordingly.

Best regards,

Professional Engineers Ontario

[43] Mr. Breedon responded to Mr. Guerriero by a further letter dated July 22, 2009. Mr. Breedon asked Mr. Guerriero to identify the “intemperate remarks” he was referring to, and repeated the earlier requests that Mr. Guerriero identify his position regarding the standard of evidence required by the Discipline Committee. Mr. Breedon further requested that Mr. Guerriero withdraw his earlier suggestion that counsel had been disingenuous.

[44] The following is the whole text of the letter.

Dear Mr. Guerriero:

Thank you for your email of July 22, 2009, a copy of which is enclosed.

I was surprised by the remarks in your email. You appear to be suggesting that I have intimidated Tribunal Staff. I have never intimidated Tribunal Staff and in all of my communications with Tribunal Staff, including my letter of July 22, 2009 to which you refer, have sought to be entirely professional.

I was further surprised that you have demanded an apology for “intemperate comments” in my letter of July 22, 2009. I would appreciate it if you could identify which comments you are referring to. As you are no doubt aware, the factual assertions contained in my letter were set out in the Affidavit of Ian B. McLeod, sworn June 30, 2009 and filed with the Discipline Committee that day. Counsel to PEO did not challenge the evidence of Mr. McLeod, and a Panel of the Discipline Committee relied upon this evidence in granting Mr. Lim’s motion for an adjournment on July 16, 2009.

I note that you have reiterated your earlier position regarding the standard of evidence which will be required to obtain adjournments in the future, writing that “this will reiterate that either party and their counsel before this Disciplinary Tribunal will be required to present evidence to support any request for delaying a hearing of the Discipline Committee, and any assertions not substantiated with evidence will be rejected.” I repeat my request that you disclose whom you have communicated this position to at PEO, including in particular the Chair or any members of the Discipline Committee.

I further repeat my earlier request that you disclose all direct or indirect recipients of your July 20, 2009 email. I would further request that you disclose all direct and indirect recipients of your July 22, 2009 email.

Finally, I wish to reiterate my earlier remark that your suggestion that I have been “disingenuous” with the Discipline Committee is false, unfounded and improper. I repeat my earlier demand that you withdraw this suggestion in writing, with a copy to all direct and indirect recipients of your July 20, 2009 email.

Yours very truly.

[45] Mr. Guerriero responded by email the next day. In his email, Mr. Guerriero:

(a) admonished Mr. Breedon to use his correct title in future correspondence;

(b) demanded an apology for “intemperate” comments in Mr. Breedon’s first letter of July 22, 2009, and described that letter as “a story of your own creation”;

(c) described Mr. Breedon’s second July 22, 2009 letter as “another story of your own design”; and,

(d) advised that he would not answer any questions regarding the recipients of his earlier communication or his expected involvement in the Lim hearing.

[46] The following is the text of his email:

Dear Counsel,

This will confirm receipt of your second faxed letter which was addressed to my attention dated July 22, 2009, and which the Tribunal Office has received on July 23, 2009.

Firstly, when you address me in correspondence, you will do so respectfully by the use of my title, “P. Eng.” and include “Support Staff to the Tribunals” to my title of “Manager, Legal & Regulatory Affairs”, and you will address any correspondence to my attention to the Tribunal Office, the whole as indicated in the emails I have sent you.

Secondly, I expect an apology from you for your outburst in your first letter dated July 22, 2009, which I deem to be intemperate comments sent in your 2 page letter; and, that letter is a story of your own creation. Your second letter is not an apology, and is another story of your own design. In your first letter you asked for an apology from me and on behalf of Ms. Harari which is out of order. You do not represent counsel for the Association, and Ms. Harari’s silence clearly indicates to me that she does not share your views. More importantly, I have nothing to apologize to you about, since again, you are the architect of your own stories in your own letters.

Thirdly, as Tribunal Staff in charge of assisting the Chair of the Discipline Committee to schedule a matter that was referred to the Discipline Committee from the Complaints Committee, there is no statutory obligation or otherwise placed upon me to provide you with any disclosure whatsoever, or that I explain your own letters to you since: 1. you drafted them, 2. you signed them and 3. you sent them forth for me to read. Your requests to me for irrelevant explanations to your letters and for “disclosure” are therefore denied in my capacity as administrative staff of the Discipline Committee, as that term is defined under the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.

Moreover, both counsel for the parties will be sent a Notice that the Chair will exercise his statutory discretion pursuant to subsection 27(6) of the Professional Engineers Act, R.S.O. 1990, c. P-28. You will both be invited to either make written submissions or possibly to attend a meeting to set a date for the hearing for the referred matter. Procedural fairness will be afforded to both parties to make submissions to the Chair. You have been warned to present evidence to substantiate any submissions or assertions of your non-readiness to proceed. Consequently, unless the Tribunal Office contacts you “first” for your “input” regarding scheduling of a hearing, both counsel are instructed to desist from sending premature emails, or other electronic messages to this Tribunal Office.

Again, you are to govern yourself accordingly.

Best regards,

Professional Engineers Ontario

[47] Mr. Guerriero copied his email to Ms. Harari, Kim Allen, the Registrar of PEO, Johnny Zuccon, the Deputy Registrar of PEO, Ms. D’Aluisio and David Jacobs, Independent Legal Counsel to the Discipline Committee.

[48] Later that afternoon, Ms. Harari wrote to Mr. Monsour, Chair of the Discipline Committee. In her letter, Ms. Harari set out the correspondence described above. She noted that, in his email correspondence, Mr. Guerriero had usurped the jurisdiction of the Chair of the Discipline Committee and/or the Panel. She further noted that Mr. Guerriero’s “correspondence is inappropriate and disrespectful of both me and Mr. Breedon”.

[49] The following is the text of her letter:

Dear Mr. Monsour:

I am writing to you in your capacity as Chair of the Discipline Committee. I would like to bring certain matters and correspondence to your attention, as you are responsible for directing the Tribunal Office as pertaining to the Discipline Committee. Correspondence was sent to both myself and counsel for a member relating to a matter currently being scheduled for hearing. Ryan Breedon represents the member, Mr. Lim; I of course, represent PEO.

A hearing in the Lim discipline matter was scheduled for November 12 & 13, 2009, without any consultation with either myself or Mr. Breedon as to our availability on those dates. Mr. Breedon could not attend on the scheduled dates as he has another trial scheduled. Mr. Breedon recently brought a motion to adjourn the Lim hearing. At the hearing of the motion on July 16, 2009, we advised the Panel we could proceed during the week of October 26, 2009. I further advised the panel that the complainant travels out of Ontario from mid-November to spring and if the matter could not proceed in October, it would have to be scheduled for spring 2010, when the complainant is back in Ontario and available to testify.

The Panel released its order granting the adjournment. Shortly thereafter Mr. Breedon communicated with the Tribunal office asking that he be contacted before any new dates for the hearing were to be scheduled. I contacted the Tribunal office requesting to also be consulted before new dates were scheduled. For your information Mr. Breedon’s letter is attached hereto as document A and my email to the Tribunal office is attached as document B.

In response to our letters, the Tribunal office sent an email, signed by Mr. Sal Guerriero, P. Eng., Manager, Legal and Regulatory Affairs, Support Staff to the Tribunals; a copy attached as document C. In his email Mr. Guerriero set out that what is and is not acceptable as evidence for an adjournment. It is of concern that Tribunal staff is advising counsel what reason for requesting an adjournment would be acceptable, when the discretion to grant the adjournment lies with you as Chair of the Discipline Committee. It is also extremely troubling that correspondence, sent on behalf of the Discipline Committee, implied that counsel were disingenuous in their representations to the Panel.

Mr. Breedon responded to Mr. Guerriero; attached as document D is his letter in reply.

Mr. Guerriero responded to Mr. Breedon by email, copy attached as document E. Again Mr. Guerriero is setting out the grounds as to when an adjournment request will be rejected. Again, it is not within Mr. Guerriero’s authority to decide what will and will not be rejected.

Mr. Breedon responded by letter dated July 22, copy attached as document F. Mr. Guerriero replied by email, copy attached as document G. Mr. Guerriero incorrectly infers what my position is in this matter without having first spoken to me.

In addition to usurping the jurisdiction of the Chair of the Discipline Committee and/or the Panel, Mr. Guerriero has failed to act in a manner consistent with PEO Core Values. His correspondence is inappropriate and disrespectful of both me and Mr. Breedon. As well, given that the correspondence is sent by Mr. Guerriero as PEO Tribunal Office staff, on behalf of the Discipline Committee, there is a concern as to potential bias when the matter is heard by the Discipline Committee and concern that the actions of the Tribunal Office may negatively impact the image, reputation and integrity of the Discipline Committee and the Association as a whole.

I appreciate your attention to this matter.

Yours truly,

Aviva R. Harari

PEO Litigation Counsel

[50] Ms. Harari’s letter was delivered via email to the PEO Tribunal Office, with a covering email asking that it be delivered to Mr. Monsour.

[51] Mr. Guerriero responded that day to Ms. Harari, copying Mr. Breedon, Mr. Kim Allen, Mr. Zuccon and Mr. Jacobs. The following is the text of the email:

Dear Ms. Harari,

My instructions to you were also clear, that you were to await a formal Notice in regard to the setting of hearing dates. Your disregard of instructions is amazing.

Rest assured that I will forward to the Chair your submissions regarding Tribunal Staff. In addition, I have instructed Mr. David Jacobs [independent legal counsel] to deal with your proposed course of action, and both of you will be dealt with accordingly.

In the meantime, your immediate apology to me is requested for your statements in your letter of July 23, 2009. [Emphasis added]

Best regards,

Professional Engineers Ontario

Sal Guerriero, P. Eng.

[52] On July 27, 2009, David Jacobs, independent legal counsel to the Discipline Committee, sent an email to Mr. Breedon and Ms. Harari, advising the parties that, contrary to Mr. Guerriero’s email, the Tribunal Office had not and would not forward Ms. Harari’s letter to Mr. Monsour. The following is the text of the email:

Dear Mr. Breedon and Ms. Harari,

I am instructed by the Tribunal Office of the PEO to advise you as follows. Despite the e–mail correspondence from Mr. Guerriero of the Tribunal Office to Ms. Harari of July 23, 2009, none of the correspondence in the captioned matter from and after July 20, 2009 has been or will be provided by the Tribunal Office (or any of its staff) to the Chair or any member of the Discipline Committee. Further, none of the Tribunal Office staff has provided or will provide any advice to the Chair or any member of the Discipline Committee regarding the issues raised in such correspondence (including the positions set out therein) save for the dates suggested by the parties at the hearing of the adjournment motion on July 16, 2009. [Emphasis added]

Yours truly,

David P. Jacobs

[53] On July 24, 2009, Mr. Breedon emailed Ms. D’Alusio and requested that dates be provided for the hearing of a full-day motion, in accordance with past practice in scheduling motions before the Discipline Committee.

[54] On July 30, 2009, a Notice of Hearing was issued, fixing the hearing date for October 26, 2009. No response was given to the request for a motion date.

[55] As a result, on July 31, 2009, Mr. Breedon served and filed a motion record returnable before the Discipline Committee on a date to be fixed by the Chair of the Discipline Committee. In the motion, Lim sought an Order staying the prosecution against him.

[56] On August 7, 2009, Deputy Registrar, Mr. Zuccon responded to Mr. Breedon’s email of July 24, 2009, and noted that a request for motion dates was to be addressed in writing to the Chair of the Discipline Committee. Mr. Zuccon went on to note that staff at the Tribunal Office does not act as an intermediary for parties before the proper adjudicator.

[57] On August 11, 2009, Mr. Breedon wrote Mr. Monsour, the Chair of the Discipline Committee, requesting that a date be fixed for the hearing of the motion. Mr. Breedon noted that, as a hearing date had been fixed for October 26, 2009, the motion would have to be heard at least two weeks before that date, in accordance with Rule 4.3 of the Rules of Procedure of the Discipline Committee. Mr. Breedon further provided dates upon which counsel would be available to argue the motion. The following is the full text of the letter:

Dear Mr. Monsour:

We are counsel to Paul Lim, P. Eng. and P. Lim & Associates, the respondents in a matter currently before the Discipline Committee.

I am writing to you at the request of Johnny F. Zuccon, P. Eng., Deputy Registrar Standards and Tribunals, Professional Engineers Ontario.

On July 24, 2009, I sent an email to the PEO Tribunal Office requesting dates for a motion in this matter. A copy of my email is attached herewith.

I sent this request directly to the Tribunal Office as, in the past, I have scheduled several motions in this and other proceedings before the Discipline Committee through the Tribunal Office. Subject to the email I have recently received from Mr. Zuccon, referred to below, the Tribunal Office has never suggested that this procedure was inappropriate.

Unfortunately I did not receive any response to this request, and so on July 31, 2009, delivered a motion record returnable on a date to be fixed by yourself. Again, this was submitted to the Tribunal Office. A copy of my covering letter is enclosed herewith.

Six copies of the Motion Record have been delivered to the Tribunal Office and presumably remain in its possession. The motion seeks a stay of this action on the basis of, amongst other things, serious concerns regarding the conduct of Tribunal Office staff.

On August 7, 2009, I received an email from Mr. Zuccon advising me that any requests for a motion date are to be addressed in writing to your attention. As noted above, this appears to be a fundamental about turn in procedure from that adopted by the Tribunal Office as recently as June 2009.

In any event, I am writing to request that you appoint a Discipline Panel in accordance with Rule 4.1 of the Rules of Procedure of the Discipline Committee to hear this motion. A Notice of Hearing was delivered July 30, 2009 fixing the date for the hearing of this matter to October 26, 2009. In accordance with Rule 4.3, this motion should be heard at least two weeks before that date.

With respect to available dates for the argument of the motion, I anticipate that William McDowell from our office will be arguing this motion. William McDowell is available on any of the following dates for the return of the motion: September 28, 29, and October 6 to 30 inclusive.

Thank you for your consideration of this matter.

Yours very truly,

[58] On August 18, 2009, Mr. Monsour responded, noting that:

Before I make an interim decision referring your motion to the panel that I have already assigned to hear the above-captioned matter, I would be interested in obtaining Ms. Harari’s written submissions. You are free to make additional written submissions as well.

[59] On August 21, 2009, Ms. Harari wrote to Mr. Monsour in response to Mr. Monsour’s August 18th letter, referred to above, and noted that she was unclear as to what written submissions were being requested at this time. Ms. Harari further proposed certain dates for the hearing of the motion.

[60] On August 25, 2009, Mr. Guerriero, writing as “PEO Tribunal Office”, delivered a 10-page single-spaced letter to Mr. Monsour titled “Submissions of Administrative Staff of the Discipline Committee”. In these submissions, Mr. Guerriero:

(a) Took the position that the Administrative Staff of the Discipline Committee was a “person entitled by law” to be a party to Lim’s motion;

(b) Alleged that Mr. Breedon “made several inaccurate submissions about the Tribunal Office before a panel of the Discipline Committee”, which submissions were later characterized as “groundless”;

(c) Took the position that the Motion Record filed by Lim was irregular as it described Lim’s counsel as “Counsel for the Respondents” rather than “Counsel for the Moving Party”;

(d) Took the position that Administrative Staff should be named as a respondent on the Motion; and,

(e) Requested the Chair to make an Order adding Administrative Staff as a party and requiring Lim to file revised motion materials.

[61] Mr. Guerriero sought similar relief with respect to a cross-motion brought by PEO.

[62] On August 26, 2009, Mr. Breedon wrote Mr. Monsour inquiring as to what “issues” (referred to in his letter of August 18, 2009) they were being requested to address in “additional submissions”.

[63] Mr. Breedon further noted that he had received Mr. Guerriero’s submissions and asked Mr. Monsour to disclose to the parties what involvement or advice Mr. Guerriero had provided to him in connection with this matter, including any assistance in the drafting of Mr. Monsour’s letter of August 18, 2009. No response was ever provided to Mr. Breedon’s letter of August 26, 2009. The following is the text of his letter:

Dear Mr. Monsour:

Thank you for your letter of August 18, 2009.

I have also had the opportunity to review Ms. Harari’s response, dated August 21, 2009.

In your letter you ask for submissions from Ms. Harari and indicate that I am welcome to make additional written submissions, should I wish. Like Ms. Harari, I am uncertain as to what issue you are requesting additional submissions on. With respect to the outstanding motion, I join Ms. Harari in asking that the motion and cross-motion be heard and considered prior to the current dates for the hearing of this matter.

You have also raised a question as to who will be acting for Mr. Lim. As I have sworn the affidavit in respect of the motion, Mr. McDowell from my office will appear to argue the motion. Should the motion be unsuccessful and the matter proceed to a full hearing, I will appear for Mr. Lim at the hearing. As such, I do not believe a revised Statement of Readiness is required. I apologize for any confusion.

Finally, we have today received a letter from Mr. Guerriero asking that the Administrative Staff of the Association of Professional Engineers of Ontario be added as a party to this motion. We shall respond to Mr. Guerriero’s submissions under separate cover; however, in light of this request, we ask that you disclose to the parties what involvement or advice Mr. Guerriero has provided to you in connection with this matter, including any assistance in the drafting of your letter of August 18, 2009.

Yours very truly.

[64] On September 10, 2009, Mr. Breedon delivered a substantive response to the Submissions of Administrative Staff of the Discipline Committee. The letter reads as follows:

Dear Mr. Monsour:

We are in receipt of Mr. Guerriero’s letter of August 25, 2009. This is our response.

ADMINISTRATIVE STAFF ARE NOT A PROPER PARTY

We do not agree that Administrative Staff of the Discipline Committee (“Staff”) are proper parties to this motion. Given that Staff act in an administrative capacity at the direction of the Discipline Committee, it would be highly irregular for Staff to also be added as parties to the motion. This is of particular concern given that the motion alleges a reasonable apprehension of bias on the part of the Discipline Committee itself, in large part because of the actions of Staff. Nothing in the Statutory Powers Procedure Act (“the SPPA”) authorizes Mr. Guerriero’s proposed intervention, which we believe would be without precedent in Canadian administrative law.

To the extent that Staff become witnesses, each member would be entitled to the protection afforded witnesses by the SPPA.

ALLEGED FORMAL DEFECTS IN THE MOTION MATERIALS

Mr. Guerriero also raises a number of alleged formal defects in both our motion materials, submitted on behalf of Mr. Lim, and those of PEO. We do not agree that PEO is precluded from bringing a cross-motion in this matter. Moreover, any formal defects in either our motion materials, or those filed on behalf of PEO, can be addressed before the Panel which ultimately hears this motion and cross-motion.

NO ORDER SHOULD BE MADE

For the reasons described above, it is our submission that no order should be made in connection with Mr. Guerriero’s submissions of August 25, 2009.

Yours very truly.

[65] On September 21, 2009, the Chair of the Discipline Committee released an Interim Decision and Notice of Pre-Hearing Conference. In his decision, the Chair wrote:

Therefore, adding Administrative Staff as a responding party to make legal submissions on the internal processes of the tribunal and to make jurisdictional submissions regarding the SPPA, the Rules of Procedure of the Discipline Committee, and Professional Engineers Act might be quite useful for the panel hearing the motions, for the purposes of constituting a complete and balanced record of proceedings.

[66] The Interim Decision and Notice of Pre-Hearing Conference goes on to note that:

Both parties simply appear to concede bias and usurpation by tribunal staff based on alleged events leading to Ms. Harari’s email of July 23, 2009 during the scheduling phase of the main matter. To make such serious accusations against the good reputation of persons without giving accused persons any opportunity to respond would most likely amount to a great denial of justice. The respective Motion Documents could be subject to a refusal decision under s.4.5 of the SPPA having been made ex parte, that is, because they are made without prior notice and without service on impugned persons as motion participants. Administrative Staff in these circumstances meets the definition of motion participant under Rule 1 of the Rules of Procedure of the Discipline Committee, and such persons clearly would be affected by findings and orders sought by the moving parties. In this case, Administrative Staff should therefore have been given prior Notice and served as a responding motion participant since they were directly accused in both Motions. Hence, there exists prima facie non-compliance with both Rule 1 and Rule 4 of the Rules of Procedure by both parties.

[67] Despite these remarks, however, the Chair declined to make the order sought by Administrative Staff. Instead, the Chair ordered the parties to attend a public Pre-Hearing Conference (“Pre-Hearing”). The Pre-Hearing was to be held before a Member of the Discipline Committee, the purpose of which was to:

(a) review the motion documents, having regard to the written submissions of Administrative Staff of the Discipline Committee identifying various irregularities in the motion documents;

(b) consider the making of orders adding Administrative Staff to the Discipline Committee as a responding party, and granting Administrative Staff “full participation rights to respond to each of the current parties’ motions…on issues where they were directly impugned”;

(c) consider the making of orders directing the parties to amend their motion documents as suggested by Administrative Staff’s submissions; and,

(d) consider severing the motion into two parts.

[68] In making this order, the Chair held:

Specifically, as Chair of the Discipline Committee I have decided to refer these issues as appropriate topics for a pre-hearing conference for a determination by the presiding member. I believe the presiding member would be in a better position to issue Orders as envisioned under section 5.3(3) of the SPPA to add Administrative Staff as a responding party; and to deal with the prima facie non-compliance in both the Association and Defendants Motion Documents when these documents are compared to the various requirements set out in the Rules of Procedure of the Discipline Committee. [Emphasis added]

[69] On September 25, 2009, Mr. McDowell, counsel for Lim, wrote Mr. Monsour and requested that Mr. Monsour disclose what, if any, input Mr. Guerriero had in the preparation or drafting of the Interim Decision and Notice of Pre-Hearing Conference. There was no response.

[70] The Pre-Hearing took place on October 7, 2009. Bill Walker, P.Eng. presided as Chair of the Pre-Hearing Conference. Ms. Harari appeared as counsel for PEO, Mr. McDowell and Mr. Breedon appeared on behalf of Lim, and Mr. Guerriero appeared as counsel for Staff of the Discipline Committee.

[71] Over the course of his lengthy submissions at the Pre-Hearing Conference, which are transcribed, Mr. Guerriero:

(a) Accused counsel for the parties of “taking a certain amount of shortcuts on the law”, which allegation he later withdrew at the suggestion of the Chair;

(b) Suggested that Administrative Staff only sought standing to “explain the law and our jurisdiction, and explain the process of the Tribunal Office”;

(c) Stated that, before Ms. Harari’s letter was delivered to the Chair of the Discipline Committee, he had retained Mr. Jacobs as independent legal counsel to the Administrative Staff, who in turn advised the parties that the letter would not be delivered; and,

(d) Suggested that the Administrative Staff was itself a tribunal.

[72] Mr. Walker rendered an oral decision at the Pre-Hearing, declining to add Administrative Staff as a party to the proceeding. Mr. Walker held that:

I find that tribunal staff should not have any participatory rights on the portion of the stay motion dealing with allegations of bias. I recognize that allegations of bias are extremely serious, and call into question the impartiality of the Discipline Committee as a whole.

Because of the seriousness of the allegations, I find it would be inappropriate for tribunal staff, because of its links with the adjudicative arm of the Discipline Committee, to present any evidence, information or otherwise, on the issue of bias. To allow the Tribunal staff to do so would only further call into question the Discipline Committee’s impartiality. [Emphasis added]

[73] After the decision was delivered, a discussion then ensued with respect to the alleged deficiencies in the motion documents of both parties on the stay motion and cross-motion. The parties agreed that neither had an issue regarding the format of the other’s motion materials and that there was no need to split the motion into two motions. It was decided that the motion and cross-motion would be heard on October 26, 2009, the first day of the scheduled hearing. The issues which had ostensibly prevented the scheduling motion had, therefore, been addressed.

[74] Subsequent to the above-noted oral decision, on October 19, 2009, Mr. Walker issued a Pre-Hearing Conference Order, deciding that:

(a) Administrative Staff would not be joined as a party or have participatory rights on the stay motion before the Discipline Committee;

(b) It “would be inappropriate for the Tribunal Office, because of its links with the adjudicative arm of the Discipline Committee, to present any evidence, informational or otherwise, as a party, intervener or amicus curiae equivalent on the issue of bias”, and that to allow Administrative Staff, “who is responsible for facilitating administrative matters on behalf of the Discipline Committee in the convening of hearings, to appear before it would only further call into question its [the Tribunals’] impartiality”;

(c) There would be no order amending the motion and cross-motion, or otherwise finding the motion documents to be non-compliant, as “all parties had agreed that, in light of the decision on the status of the Tribunal Office, no amendments were needed”;

(d) There would be no order severing the motion, as “All parties also agreed that there was no purpose in severing the motions”; and,

(e) The stay motion be heard on October 26, 2009, and, if necessary, the hearing on the merits proceed on October 27, 28 and 29, 2009.

[75] Astonishingly, despite having appointed a Pre-Hearing Conference to address the issues raised in the Submissions of Administrative Staff of the Discipline Committee, the Chair of the Discipline Committee ignored the decision of his delegate, Member Walker. The Chair released a Decision and Notice on October 19, 2009. In that decision, the Chair refused to process Lim’s motion record for the following reasons:

(a) The style of cause was irregular, in that it did not identify Lim as the Moving Party and did not name the Administrative Staff as respondents;

(b) Improperly included Affidavit evidence, which was “not permitted by the Rules of Procedure of the Discipline Committee”;

(c) “The purported use of previously admitted evidence from another matter is non-compliant with s. 15.1 of the SPPA”; and,

(d) “Failure to name a motion participant required to be made a responding party”, which is presumably a reference to the Administrative Staff.

[76] As a result, the Chair adjourned the hearing of the main matter sine die. This decision was for practical purposes a temporary stay of the proceedings.

[77] The Chair also released a Decision and Notice refusing to process PEO’s cross-motion, for similar reasons.

The Application in this Court

[78] The appellant raises three bases for an order staying the proceedings below:

(i) a reasonable apprehension of bias on the part of the Discipline Committee;

(ii) the improper failure of PEO to disclose Mr. Allen’s June 3, 2008 report and drafts thereof during the Ballard prosecution; and,

(iii) the improper failure of PEO to disclose the results of the Ballard prosecution, including Mr. Allen’s involvement therein, to the Complaints Committee in connection with the Buechner complaint.

Reasonable Apprehension of bias in the Discipline Committee

[79] The test to be applied has been set out by the Supreme Court of Canada:

The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly.”

I can see no real difference between the expressions found in the decided cases, be they “reasonable apprehension of bias”, “reasonable suspicion of bias”, or “real likelihood of bias”. The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the “very sensitive or scrupulous conscience”.

[80] If a reasonable apprehension of bias is demonstrated the tribunal has no further jurisdiction in the proceedings. All decisions and orders made during the proceedings are rendered void and without effect by such a finding. See: R. v. Curragh Inc., [1997] 1 S.C.R. 537, 144 D.L.R. (4th) 614 at paras. 5, 7-8.

[81] I shall examine first the conduct of the staff of the Tribunal. In this respect, it would appear that Mr. Guerriero, being the manager, was in charge of scheduling related issues with the Chair of the Discipline Committee being the ultimate authority.

[82] In the context of the Ballard complaint, the then Chair of Discipline, Mr. Smith, indicated that dates for hearings would be imposed without reference to the availability of the parties. This applied equally to both the appellants and the respondent. The resulting difficulties in scheduling, as reflected above, does not bring forward an apprehension of bias, however ill advised such an approach to scheduling would appear to be.

[83] The refusal by the PEO to produce the reports of Mr. Allen in reference to other members’ matters was not conduct of the staff of the Tribunal, nor the Discipline Committee. In due course the Committee ordered the material produced.

[84] Thus, there would appear to be no conduct of the staff nor of the Discipline Committee which would raise an apprehension of bias in connection with the Ballard matter.

[85] The conduct of the staff of the Tribunal in connection with the Buechner complaint does raise concern.

[86] The scheduling difficulties referred to above once again reflect an ill-advised approach to scheduling, but it was applied both to the appellants and the respondent and does not in itself raise an apprehension of bias. Nevertheless, in refusing to respond to requests for consideration of the availability of parties and witnesses, and in setting dates without further consultation, an atmosphere was created in which other events occurred – magnifying the significance of those other events in the eyes of a "reasonable and right minded person".

[87] In the Buechner matter the first hearing date was fixed without consultation. The PEO did not oppose a change in the hearing date but the appellants were required to bring a motion before the discipline committee panel in order to change the date. The new date was to be set by the Chair of Discipline. Both parties wrote to the tribunal staff requesting consultation about a new date.

[88] It was following this request that the manager wrote his letter of July 20, 2009. In that letter Mr. Guerriero clearly enters the territory of the discipline committee by telling counsel:

…If you "make assertions" as to why you cannot meet hearing dates, compelling evidence will be required to "support your assertions".

[89] Furthermore, the language in this letter, written by one lawyer to another, does not take the word of the other concerning the difficulty in meeting dates, and refers to the statements as "assertions". The letter also refers to "such disingenuous excuses" as being booked "on another ‘trial’""excursions" to another country, etc. These words are directed at counsel for each party, but the initiator of the request for consultation was counsel for the appellant. One must not lose sight of the fact that it was the appellants, not the PEO, who were facing prosecution.

[90] Appellants’ counsel raised his concern with Mr. Guerriero's letter – the implication of impropriety in counsel's "excuses" for adjournment, and the standard of evidence required by the Discipline Committee to obtain an adjournment. He asked what advice Mr. Guerriero had given to the Discipline Committee.

[91] Mr. Guerriero’s response is astonishing. See paragraph [42] above.

[92] Appellants’ counsel responded as noted above in paragraph [43] and the response of Mr. Guerriero was similarly astounding. See paragraph [46] above.

[93] This correspondence was of such a concern to counsel for the PEO that she wrote to the Chair of Discipline, noting the inappropriate and disrespectful language and expressing concern as to "potential bias" and concern that "the actions of the Tribunal Office may negatively impact the image, reputation and integrity of the Discipline Committee and the Association as a whole."

[94] I pause here to indicate that the panel hearing this matter was quite mindful of the difficult position in which Ms. Harari found herself at the time, as counsel for the PEO. At the conclusion of the oral hearing and the order quashing the discipline proceedings, this court complimented Ms. Harari for the position which she took with the then Chair of Discipline and with the administrative staff. Her conduct was consistent with the highest ethical standards of the bar.

[95] Ms. Harari sent her e-mail letter to the Tribunal office with a request that it be forwarded to the Chair to whom it was addressed.

[96] The astonishing conduct of Mr. Guerriero continued when he responded to the e-mail which was addressed to the Chair, indicating that independent counsel will deal with “your proposed course of action and both of you will be dealt with accordingly.” Surely it would be for the Chair to give instructions to independent counsel not for a staff person to do so.

[97] Independent counsel to the Discipline Committee then wrote indicating that Ms. Harari’s email would not be forwarded to Mr. Mansour, despite the fact that it was addressed to him. The opening words of independent counsel’s letter are:

I am instructed by the Tribunal Office of the PEO to advise you as follows: [Emphasis added]

[98] The appellant’s counsel then brought a motion returnable before the Discipline Committee on a date to be fixed by the chair, seeking an order staying the prosecution. Mr. Mansour asked for Ms. Harari’s submissions. Not unexpectedly, she did not understand what he was requesting.

[99] To continue the bizarre tale, Mr. Guerriero then sought to have the administrative staff made a party respondent to the motion for a stay lodged by the appellant, and to file material in connection there with. He also pursued picayune requests concerning the form of the appellant's materials.

[100] Appellant's counsel then wrote to Mr. Mansour asking what involvement or advice Mr. Guerriero had provided to him. No response was ever received.

[101] As noted above, the Chair then issued a decision that it "might be quite useful" for the administrative staff to be added as a party. Clearly the Chair had no understanding of the independent roles of the discipline committee and its staff.

[102] Nevertheless, The Chair did not make the order but rather directed Mr. Walker, a panel member of the Discipline Committee, to hold a prehearing conference to deal with the issues raised by staff including the adding of staff as a party. This was part of his "interim decision", a decision which closely mirrored the position advanced by Mr. Guerriero.

[103] At the conference before Mr. Walker, which was transcribed, Mr. Guerriero pressed his position, and in doing so exhibited some inappropriate behaviour for which he was obliged to apologize and which he retracted.

[104] Mr. Walker declined to add the staff as a party and file material as to do so “would only further call into question the Discipline Committee’s impartiality”. The other picayune matters were resolved by agreement with no action being necessary by either party.

[105] To add a further bizarre element to this bizarre tale, the Chair of Discipline refused to process the appellants’ motion by fixing a date for it. Rather, he in effect reversed Mr. Walker's decision, without affording the parties a hearing. It is apparent from his decision that he remained of the view that staff might be added as a party. He adjourned the hearing of the prosecution sine die –in effect, temporarily staying the proceedings and indefinitely blocking the appellants’ motion to permanently stay the proceedings on the ground of reasonable apprehension of bias.

[106] These facts, and the detail provided in the extensive review above, draw one to the reasonable apprehension that:

(i) Mr. Guerriero was biased against the appellants;

(ii) Mr. Guerriero was giving advice to the Chair;

(iii) Mr. Guerriero was usurping the role of the Chair;

(iv) the Chair was complicit in the conduct of Mr. Guerriero to the extent that the Chair lost his impartiality;

(v) the Chair directly interfered with the independence of Mr. Walker;

(vi) the Chair failed to appreciate the need for impartiality in the Discipline Committee and failed to appreciate the function and role of staff as distinct from that of the Discipline Committee.

[107] Thus, a reasonable apprehension of bias in the Discipline Committee was well-established and all proceedings arising out of the Buechner matter were permanently stayed.

[108] I stress that it is not the apprehension of bias in Mr. Guerriero’s conduct on its own which causes the granting of relief. On its own, his conduct, however unfortunate, would not have resulted in a stay. That said, his conduct in giving advice to the Chair (and therefore to the Discipline Committee), and in usurping the role of the Chair, which the Chair tolerated and with which the Chair concurred, created the problem. This was compounded by the Chair’s interference with Mr. Walker’s independence which directly and negatively impacted on the rights of the appellants.

[109] Furthermore, concerning making the staff a party to the proceeding, the Chair’s approach mirrored that of Mr. Guerriero – which led to the Chair purporting to nullify Mr. Walker’s order.

[110] It is on this basis that a reasonable apprehension of bias arises concerning the Discipline Committee.

[111] Concerning the second and third bases raised by the appellants, I note that the Ballard matter was dismissed, so that any failure to disclose was of no moment. Furthermore the third basis, – the nondisclosure of the Allen report in the Buechner matter – could not be sustained because the reasons for the Ballard dismissal were not known at the time the Complaints Committee dealt with the Buechner complaint.

Costs

[112] Failing agreement on costs, the appellants shall deliver written submissions, within 14 days; the respondent within a further seven days. Submissions are not to exceed five pages.

Ferrier J.

Molloy J.

Herman J.

Released: February 8, 2011

CITATION: LIM et al. v. P.E.O., 2011 ONSC 106

DIVISIONAL COURT FILE NO.: 586/09

DATE: 20110208

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

FERRIER, MOLLOY and HERMAN JJ.

BETWEEN:

PAUL SIEW CHOON LIM, P. ENG and P. LIM & ASSOCIATES LIMITED Applicants

– and –

ASSOCIATION OF PROFESSIONAL ENGINEERS OF ONTARIO Respondent

REASONS FOR DECISION

Ferrier J.

Released: February 8, 2011