Carlos v. Association of Professional Engineers of Ontario, 2012 ONSC 2385
CITATION: Carlos v. Association of Professional Engineers of Ontario, 2012 ONSC 2385
DIVISIONAL COURT FILE NO.: 253/11
DATE: 20120418
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
WHALEN, SACHS AND HERMAN JJ.
BETWEEN:
DENIS CARLOS, P. ENG.
Appellant
– and –
THE ASSOCIATION OF PROFSSIONAL ENGINEERS OF ONTARIO
Respondent
Ryan Stewart Breedon and Sean Joseph O’Donnell, for the Appellant
Richard Steinecke and Michelle Kushnir, for the Respondent
HEARD at Toronto: April 18, 2012
ORAL REASONS FOR JUDGMENT
SACHS J. (orally)
[1] This is an appeal from the costs decision of the Association of Professional Engineers of Ontario (“PEO”). The costs decision arises out of the complaint made to the Discipline Committee of the PEO. The source of the complaint was Mr. Carlos’ conduct during an election campaign. The Discipline Committee heard the complaint and dismissed it. Mr. Carlos sought his costs at the hearing and in a subsequent decision the majority of the Committee denied his request.
[2] The test for costs is set out at s.28(7) of the Professional Engineers Act, R.S.O. 1990, c. P. 28. That section provides that where the Discipline Committee is of the opinion that the commencement of the proceedings is unwarranted, the Committee may order costs. In denying Mr. Carlos’ request for costs, the Committee found that the commencement of the proceedings was not unwarranted.
[3] Mr. Carlos submits before us that this conclusion was an unreasonable one, because the Committee made a palpable and overriding error about the information that was before the Complaints Committee when they made the decision to commence the proceedings against him.
[4] The complaint before the Complaints Committee when they decided to commence the proceedings against Mr. Carlos concerned the content of Mr. Carlos’ election material that he posted on his website that was linked for a time to the PEO website. The allegation was that by virtue of the content of this material on his website, Mr. Carlos had engaged in conduct that “would be reasonably regarded by the engineering profession as disgraceful, dishonourable or unprofessional”.
[5] In seeking costs before the Discipline Committee, Mr. Carlos argued that it must have been clear to the Complaints Committee that there could have been nothing in his election material that the profession regarded as disgraceful, dishonourable or unprofessional. He was elected by the profession and the only reasonable inference to draw is that the profession would not have elected someone they regarded as having engaged in disgraceful, dishonourable or unprofessional conduct. Mr. Carlos also submitted that the Complaints Committee knew that the concerns about his election material had been brought to the attention of Council and that Council had not acted on those concerns.
[6] In its decision respecting costs, the Discipline Committee dealt with this aspect of Mr. Carlos’ submissions by stating that they had no evidence before them that the Complaints Committee knew that Council had considered the complaint or that the Complaints Committee was presented with or considered the results of the Council election. Mr. Carlos asserts that when they made these statements, the Discipline Committee made a palpable and overriding error that rendered their decision unreasonable.
[7] We agree that, based on the material before them, the Complaints Committee would have known that Mr. Carlos had been elected to Council. We also agree that they would have known that the concerns had been brought to the attention of Council. What Council did with the complaints before them was not necessarily known to the Complaints Committee.
[8] The question becomes whether the fact that the Discipline Committee erred in its view of what was known to the Complaints Committee renders their decision an unreasonable one. In our view, it does not. Even if the Complaints Committee was aware of the fact that Mr. Carlos had been elected and that Council was aware of the concerns regarding his election material, these facts do not, by themselves, mean that the prosecution that was commenced against Mr. Carlos was unwarranted. Members of a profession can choose to elect someone to the governing body of their profession but still, if asked, reasonably conclude that some aspects of that person’s election material crossed the line into conduct that was disgraceful, dishonourable or unprofessional.
[9] Futhermore, if the members of a profession were to elect someone in spite of their election material, this would not preclude a prosecution by the profession’s governing body if the material itself could reasonably be viewed as constituting unprofessional conduct. For example, even members who are elected are not immune from prosecution if, in order to get elected, they published election material that was racist, homophobic, sexist or defamatory. Similarly, the fact that a complaint was referred to Council and Council took no action is not something that, by itself, would mean that any prosecution of that complaint was unwarranted.
[10] In this case, the Committee dismissed the complaint, but in doing so struggled with certain portions of Mr. Carlos’ election material. In their view, some of his material was “close to the line” of being false, offensive and/or vexatious. The Discipline Committee struggled with the complaint and they had the evidence and submissions of both sides before them. Given this, it was reasonable for the Discipline Committee to find that the commencement of the proceedings by the Complaints Committee, who did not have the benefit of Mr. Carlos’ side of the story, was not unwarranted.
[11] For these reasons, the appeal is dismissed.
COSTS
[12] I have endorsed the Appeal Book and Compendium, “For reasons given orally, this appeal is dismissed. The appellant is to pay to the respondent their costs fixed in the amount of $5,000.00, all inclusive.”
SACHS J.
WHALEN J.
HERMAN J.
Date of Reasons for Judgment: April 18, 2012
Date of Release: April 25, 2012
CITATION: Carlos v. Association of Professional Engineers of Ontario, 2012 ONSC 2385
DIVISIONAL COURT FILE NO.: 253/11
DATE: 20120418
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
WHALEN, SACHS AND HERMAN JJ.
BETWEEN:
DENIS CARLOS, P. ENG.
Appellant
– and –
THE ASSOCIATION OF PROFSSIONAL ENGINEERS OF ONTARIO
Respondent
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: April 18, 2012
Date of Release: April 25, 2012